Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

Legislative developments. Provincial. The Committee notes with interest that pursuant to the Manitoba Human Rights Code Amendment Act, which was adopted on 14 June 2012, “gender identity” is now included as a prohibited ground of discrimination under section 9(2)(g) of the Manitoba Human Rights Code. It also notes that the Ontario Integrated Accessibility Standards Regulation was promulgated on 18 June 2011, and provides for an obligation of the public and private sectors to ensure accessibility standards for persons with disabilities. The Government indicates that under this Regulation, accessibility standards, such as the availability of accommodation, are ensured at all stages of employment, including recruitment, retention, career development and reintegration into the labour force. The Committee further notes that the New Brunswick Human Rights Commission updated its Guideline on Political Belief and Activity, with regard to discrimination in employment and occupation on the basis of political belief or activity under sections 3 to 7 of the New Brunswick Human Rights Act. The Committee asks the Government to continue to provide information on the legislative and policy developments at the federal, provincial, and territorial levels, and to indicate the impact of such measures.

Sexual harassment. The Committee notes the Government’s indication that for the fiscal year 2011–12, the Canadian Human Rights Commission registered 66 complaints concerning sexual harassment out of 3815 total complaints. Most cases of violations detected through general labour inspections concerned non-existence of a sexual harassment policy or employers’ failure to post the policy to be known to employees, both of which are required pursuant to section 247.4 of the Canada Labour Code. The Committee also notes with interest that the Ontario Occupational Health and Safety Act was amended to include employers’ obligation to develop workplace violence and workplace harassment policies and programmes (part III.0.1 of the said Act). It further notes that in New Brunswick, following the adoption of a Guideline on sexual harassment in June 2011, seven complaints concerning sexual harassment at the workplace were filed for the period until May 2012. The Committee asks the Government to continue to provide information on the measures taken to address sexual harassment through legislation and policies both at the federal and provincial levels, and to provide specific information on measures taken to prevent and address sexual harassment in practice, including awareness-raising activities among workers and employers. The Committee also asks the Government to continue to provide information on the number and nature of violations detected by or reported to the labour inspectorate, including those related to employers’ obligation to develop a sexual harassment or workplace harassment policy, as laid out by the Canada Labour Code and the Ontario Occupational Health and Safety Act, as well as on any judicial or administrative decisions dealing with sexual harassment, including the remedies provided or sanctions imposed.

Employment equity designated groups. The Committee notes the updated statistical information provided by the Government on the representation of the four designated groups under the Employment Equity Act, namely, women, visible minorities, persons with disabilities, and aboriginal peoples. With regard to the recommendation by the Canadian Labour Congress to include LGBT (lesbian, gay, bisexual and transgender) workers as a designated group, the Committee notes the Government’s indication that LGBT workers are protected against discrimination under the Canadian Human Rights Act. The Committee also notes the Government’s indication that the Employment Equity Act continues to be applied through its statutory programmes (the Federal Contractors Program, and the Legislated Employment Equity Program), supported by the Racism-Free Workplace Strategy (RFWS), as well as through labour market agreements for persons with disabilities. The Opportunities Fund for Persons with Disabilities has an annual budget of $26.7 million. The RFWS, which focuses primarily on visible minorities and aboriginal peoples, includes building networks among employers and designated groups to work on innovative partnership approaches to training, recruitment, advancement and retention, and raising awareness of employers including disseminating tools and best practices. As a result, 830 individuals representing 490 organizations participated in the RFWS supported activities. The Government adds that progress has been made in assisting employers to develop non-discrimination policies, and between April 2010 to March 2011, 529 interventions with employers were completed providing direct assistance to employers with resources, tools and expertise to address issues of diversity and racism in the workplace. The Committee asks the Government to provide information on the following:

• (i) the representation levels in employment and occupation of the four designated groups under the Employment Equity Act (EEA);
• (ii) whether any research or study has been conducted on the representation of LGBT in employment and occupation, with a view to modifying the designated groups under the EEA, and any measures taken in practice to protect LGBT workers against discrimination;
• (iii) the impact of the measures taken under the Racism-Free Workplace Strategy to address discrimination against visible minorities and aboriginal peoples in employment and occupation;
• (iv) the impact of the measures taken under the labour market agreements for persons with disabilities and the Opportunities Fund for Persons with Disabilities; and
• (v) whether any consideration has been given to the recommendation of the Canadian Labour Congress to foster the use of equity audits within organizations and institutions.

Equal employment opportunities for aboriginal peoples. The Committee notes that the representation of aboriginal peoples was 1.9 per cent in the federally regulated private sector, and 4.5 per cent in the federal public sector for the year 2009, according to the statistics provided by the Government. The Committee recalls the Government’s indication that the Aboriginal Skills and Employment Training Strategy resulted in more than 14,300 people finding employment and 7,000 returning to school in 2010–11. It notes the Government’s indication that the Skills and Partnership Fund is funded at 210 million Canadian dollars (CAD) for the period from 2010–15, and that the Aboriginal Skills and Employment Partnership programme resulted in the development of partnerships between industrial leaders in the private sector and aboriginal peoples. The Committee further notes the Government’s indication that Newfoundland and Labrador, Manitoba, New Brunswick, Nova Scotia and Ontario have funded various projects and programmes concerning improving access to employment for aboriginal peoples. In New Brunswick, for example, as a result of various employment programmes, 26 aboriginal persons under the Work Ability Program, 45 aboriginal persons under the Workforce Expansion Program, and 13 aboriginal persons under the Student Employment and Experience Development Program received workplace opportunities. The Committee asks the Government to continue to provide information on the various initiatives concerning improving access of aboriginal peoples to employment and to a wider range of occupations, at the federal and provincial levels, as well as the impact of such initiatives. It also asks the Government to indicate whether any research or survey has been conducted on the retention rate of aboriginal peoples receiving employment opportunities through the various programmes.

Migrant workers. Federal. The Committee notes the Government’s indication that amendments made to the Immigration and Refugee Protection Regulations (sections 183 and 200 to 203), which came into effect on 1 April 2011, provide further protection for temporary foreign workers. The increased protection includes the establishment of criteria for assessing the genuineness of an employer’s offer of employment to a temporary foreign worker (sections 200(5) and 203(1)(a)), and additional criteria in the case of Live-in Care Givers (section 203(1)(d)), as noted in the Committee’s previous comments. In addition, a list of employers who have been found to have failed to provide wages, working conditions or employment in an occupation that were substantially the same as those offered shall be maintained (section 203(6)). The Government further indicates that employer compliance reviews are performed randomly, and a brochure “Your Rights are Protected” has been published targeting temporary foreign workers. The Committee asks the Government to provide information on the practical application of the amended Immigration and Refugee Protection Regulations in the context of the Temporary Foreign Work Program and the Live-in Caregiver Program, including the number and nature of violations of the rights of migrant domestic workers detected, and any sanctions imposed and remedies provided.

Provincial. The Committee notes that in Nova Scotia, the Worker Recruitment and Protection Act, which amended the Labour Standards Code, came into force in May 2011. The amendments include prohibiting employers from eliminating or reducing a benefit or condition of a foreign worker’s employment that the employer undertook to provide in the course of recruitment (section 89F(1) of the amended Labour Standards Code), and requiring employers who wish to recruit foreign workers to register with the Director of Labour Standards (section 89H of the amended Labour Standards Code). In Ontario, following the adoption of the Employment Protection for Foreign Nations Act (Live-in Caregivers and Others) of 2009, 43 complaints by live-in caregivers were investigated for the period from 1 April 2010 to 31 December 2011. The Committee asks the Government to provide information on the practical application of the Nova Scotia amended Labour Standards Code of 2011, and the Ontario Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others) of 2009, including information on the number and nature of complaints brought before the courts on the rights of migrant workers. 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.

Access to justice. The Committee recalls its previous comments asking the Government to indicate the measures taken to ensure equal access to justice with a view to addressing violations of discrimination in employment and occupation, especially in the context of the Court Challenges Program. It notes the Government’s indication that a comprehensive range of initiatives, programmes and special measures have been taken to facilitate access to justice for all at the federal, provincial, and territorial levels. Among others, the Access to Justice in Both Official Languages Support responds to the needs of official language minority communities by providing provinces, the judiciary and non governmental organizations working in the justice sector with the resources necessary to build appropriate institutional capacity to deliver legal services. The Government indicates that the Aboriginal Justice Strategy increases access to justice by strengthening collaboration between formal justice systems and aboriginal community-based justice systems. In addition, the Canadian Human Rights Commission, through its National Aboriginal Initiative, has undertaken a number of measures to raise awareness of the rights and protection under the Canadian Human Rights Act among First Nations peoples, including the release of a Human Rights Handbook for First Nations in June 2011, which has been translated into English, French and four indigenous languages. In Ontario, Legal Aid provides services in many languages to enhance access to justice for aboriginal peoples, non-English or French speakers, and the hearing impaired. The Committee asks the Government to continue to provide information on the measures taken to foster equality of access to justice, including under the Aboriginal Justice Strategy and the Access to Justice in Both Official Languages Support for language minorities, with respect to discrimination in employment and occupation, and to indicate the impact thereof.

Enforcement. The Committee notes the detailed information provided by the Government concerning discrimination complaints brought before the Canadian Human Rights Commission, and cases from Quebec. The Committee also welcomes the information provided by the Government on court and tribunal cases related to discrimination in employment. The Committee also notes the Government’s indication that aboriginal peoples, including First Nations peoples, have filed a total of 150 complaints against the federal Government, for the period from 2008 to May 2012. According to the Government, the complaints include alleged disparity in federal funding for services such as education, policing, child welfare and disability support. The Committee asks the Government to continue to provide information on discrimination complaints brought and registered, and on courts and tribunal cases related to discrimination in employment, at the federal, provincial and territorial levels. The Committee also asks the Government to provide information on the number and nature of the complaints lodged before the Canadian Human Rights Commission by First Nations peoples, including with respect to the Indian Act of 1985.