Chapter 6: Fundamentally rethinking the regulatory oversight pillar

The role of the Labour Program

The Minister of Labour, largely through the Labour Program’s Workplace Equity Division, is responsible for the administration of the Employment Equity Act. It is called upon it to:

• develop and conduct information programs to foster public understanding the Employment Equity Act and foster public recognition of its purpose^{Footnote 5}
• undertake research related to the purpose of the Employment Equity Act^{Footnote 6}
• promote the purpose of the Employment Equity Act^{Footnote 7}
• publish and distribute information, guidelines and advice to private sector employers and employee representatives regarding the implementation of employment equity^{Footnote 8}
• develop and conduct programs to recognize private sector employers and employee representatives for outstanding achievement in implementing employment equity^{Footnote 9}
• issue penalties to private sector employers for non-compliance with the Employment Equity Act^{Footnote 10}
• submit an Annual Report to Parliament on the status of employment equity in the federally regulated private sector^{Footnote 11}
• make available to employers any relevant labour market information respecting designated groups in the Canadian workforce in order to assist employers in fulfilling their obligations under the Employment Equity Act^{Footnote 12}, and
• administer the Federal Contractors Program (FCP)^{Footnote 13}

The Labour Program also administers the WORBE program discussed in Chapter 5, alongside an Employment Equity Achievement Awards program.

The Labour Program’s limited means:

The Labour Program’s responsibilities and powers are broad. The capacity and results have been less so.

Consider that only 4 employers have ever received a notice of assessment of a monetary penalty. The last penalty was issued in 1991, which is also when the largest penalty was issued - $3,000.00. Under the FCP, no contractor has been found to be in non-compliance since the 2013 redesign.^{Footnote 14}

This is despite the fact that the Labour Program conducts compliance assessments annually for federally regulated private sector employers. For the FCP, the Labour Program conducts individual compliance assessments the year after the contract award date, then every three years afterward.

There are built-in limits in the Employment Equity Act framework, explored throughout this report, that affect what the Labour Program can do. The point of the Employment Equity Act framework should have been to create incentives for employers to comply wherever possible.

If we knew that employment equity was actually being achieved and sustained, the limited assessments of penalties would be something to celebrate. But that is far from the reality.

Consider that currently, when a compliance officer in the Labour Program finds that an employer is not meeting an undertaking – for example, the employer has failed to review and revise its employment equity plan as required by Section 13 of the Employment Equity Act, or has failed to consult with employee representatives as required by Section 15 – the compliance officer is required to notify the employer and “attempt to negotiate a written undertaking.”^{Footnote 15} That’s it.

Consider also that Workplace Equity Officers used to be available across Canada, working out of regional offices, and close to the workplace actors themselves. They were able to undertake on-site visits to FCP contractors. The positions were eliminated in 2013. Compliance assessments are now based on reporting rather than on-site visits. While there is a lot that can be done with virtual meetings and we were told that the Labour Program has gotten creative with them during the pandemic, there are limits.

Our task force recognized the depth of knowledge of our interlocutors on the policy side of the Workplace Equity Department, including the capacity developed to administer the tool developed by the Labour Program. The Workplace Equity Information Management System (WEIMS) program enables LEEP and FCP employers to prepare and submit their reports online. The chair and vice-chair were provided with a demonstration of WEIMS’ capabilities alongside an emerging platform to share results on the pay transparency requirements under the Employment Equity Act framework.

On pay transparency under the Employment Equity Act framework, we were told that there was little ongoing exchange between the Labour Program and the Pay Equity Commissioner, despite the closely related framework and objectives under the Pay Equity Act. There are silos enabled by law.

Regarding data management, we were informed that a separate module of WEIMS is made available to the Canadian Human Rights Commission to review individual employer reports, and the Labour Program and the Canadian Human Rights Commission report meeting to discuss current and emerging issues. Canadian Human Rights Commission staff told the task force that they have to request some information available to the Labour Program on the WEIMS data management system directly from employers.

Remarkably, too, both the Labour Program and the Canadian Human Rights Commission told us that the audits conducted by the Canadian Human Rights Commission are not shared with the Labour Program that subsequently advises employers.

We could of course simply recommend that each institution share more information and collaborate. The impediments to sharing seemed not to be strictly legally mandated. Under Section 34 (3) of the Employment Equity Act, the Canadian Human Rights Commission is permitted to communicate or disclose “on any terms and conditions that the Commission considers appropriate”, to a minister of the Crown in right of Canada or to any officer or employee of Her Majesty, “for any purpose relating to the administration or enforcement” of the Employment Equity Act. 

Regrettably, the current practice seems to reflect the institutional silos that have developed over time.

The division may have had merits in the past, but currently it is part of the problem.

So many years into a process that should be helping us to achieve employment equity, our task force came away concerned. The bifurcation of responsibilities seems to be a big part of the problem facing regulatory oversight of the Employment Equity Act framework.

Public Service Commission of Canada – an employer and an auditor

Employment equity implementation and regulatory oversight in the federal public service is cross-cutting.

In the core federal public administration, responsibility for carrying out the obligations under the Employment Equity Act is shared:

• The Public Service Commission (PSC) assumes responsibility for appointments to the public service or from within the public service, including promotions, under the Public Service Employment Act (Sections 11 & 29). These responsibilities are delegated to deputy heads of departments.
• The Treasury Board Secretariat’s Office of the Chief Human Resources Officer (TBS-OCHRO) assumes human resources responsibilities under the Financial Administration Act (Section 11.1), including classifications of positions and establishing policies and programs to implement employment equity in the public service. The president of the Treasury Board tables public sector reports to Parliament on an annual basis.

The Public Service Commission’s employment equity responsibilities also include conducting investigations and audits under the Public Service Employment Act (Sections 11 & 17). As discussed in Chapter 4, this includes the power to conduct audits to determine whether there are biases or barriers that disadvantage persons belonging to any equity-seeking group. When assuming this role, the Public Service Commission has all the powers of a commissioner under the Inquiries Act.

The takeaway is that the Treasury Board Secretariat and the Public Service Commission share responsibility for identifying and removing barriers to achieving and sustaining employment equity, and for supporting departments to implement positive measures to close representation gaps.

We stress two features:

• First, the language of the Public Service Employment Act does not refer specifically to groups as designated by the Employment Equity Act. Any equity-seeking group is broader and suggests the kind of recognition of the importance of barrier removal that this report has emphasized.
• Second, the Public Service Commission has an auditing responsibility for recruitment processes. But the relationship between its own role in hiring – essentially delegated to departments and agencies - and its function as an auditor requires serious attention.

Responsible for safeguarding a merit-based, representative and non-partisan federal public service for the benefit of all Canadians, the Public Service Commission reports independently to Parliament.

Constituencies that met with our task force expressed frustration, however, at not being able to obtain the kind of granular data on merit and representativeness in the federal public service that show what is really happening on hiring, promotion and retention in the federal public service.

Names matter. If the Public Service Commission is the joint employer with responsibility for appointments, should we really be calling their reviews of employment practices by the deputy heads of departments to whom they have delegated their authority audits?

We learned that this concern is not merely a matter of terminology.

We were informed in particular that the Office of the Auditor General of Canada’s anticipated audit of an inclusive workplace for racialized employees was not expected to cover recruitment in the public service in part because the Public Service Commission conducts its own audits. We understood that the Auditor General’s decision was in part to respect responsibilities that are legislatively granted to other federal institutions and to avoid duplication.^{Footnote 16}

We accorded the utmost seriousness to the call by the Public Service Commission for accountability to be increased by focusing on outcomes rather than simply monitoring efforts, that is, for an oversight body to ensure that progress is actually made to close gaps.^{Footnote 17}

The Canadian Human Rights Commission

In effect, a demonstrably effective process which is frustratingly limited in coverage has been replaced by a broader process which lacks features critical to effective implementation.

Following the National Capital Alliance on Race Relations case before the Canadian Human Rights Tribunal, the Canadian Human Rights Act was amended to prevent employment equity cases – that is, cases relying on statistics - from coming forward. Subsequently, the Canadian Human Rights Commission has been responsible for monitoring compliance, a responsibility entrusted to them as an independent agency. Stakeholders came to see the role initially assumed by the Labour Program in what was then HRDC as presenting a potential “conflict of interest” given its proximity to employers in other programs.^{Footnote 18} So responsibilities were divided up.

The Canadian Human Rights Commission monitors compliance by conducting compliance audits for both the federal public service and federally regulated private sector employers. It is also able to receive and examine complaints regarding non-compliance.^{Footnote 19}

As discussed in detail below, the Canadian Human Rights Commission may also apply to the Chairperson of the Canadian Human Rights Tribunal to request that an Employment Equity Review Tribunal be appointed, with power to issue decisions enforceable as court orders.^{Footnote 20} This application is made when an employer requests a review of a decision issued by the Canadian Human Rights Commission^{Footnote 21} or the Canadian Human Rights Commission requests the confirmation of its decision.^{Footnote 22} The Employment Equity Review Tribunal itself has barely ever been used.

The Canadian Human Rights Commission’s annual report is also submitted to Parliament, comprising information about the Canadian Human Rights Commission’s audits and enforcement activities.

Regulatory oversight to achieve and sustain employment equity

There is nothing inevitable about the employment equity enforcement gap.^{Footnote 30} Research confirms that the success of Canada’s employment equity framework depends in significant measure on “increased and vigorous enforcement”.^{Footnote 31}

We are nowhere near there.

The time has come to adopt a unified model, which would ensure that one independent entity, reporting directly to Parliament, has comprehensive regulatory oversight for the Employment Equity Act framework.

This would be consistent with the contemporary equity frameworks put in place by the federal government under the Pay Equity Act and the Accessible Canada Act.

Creating the position of an Employment Equity Commissioner was recommended by a wide range of stakeholders, including the Canadian Human Rights Commission.

There are many strengths to the Commissioner model, which requires individual integrity and credibility alongside a depth of expertise in alternative dispute resolution methods to provide guidance, support, and identify sustainable ways to ensure that the frameworks, and their purposes, are achieved. However, commissioners cannot achieve equity or accessibility alone. They require significant resources including personnel to make sure the breadth of their mandate is respected. To succeed, they must be supported by a robust office helping to carry out and sustain their mandate.

Ensuring institutional autonomy

Employment equity can readily be sidelined, not only through ideological attacks, but institutionally through severe funding challenges.^{Footnote 34} Human rights commissions across Canada have not been immune to significant budget cuts. Our task force has expressed our significant concern about the small staff size of those responsible for auditing compliance with the Employment Equity Act in both the public service and the private sector.

Employment equity programs are constitutionally protected under Sections 15(1) and 15(2) of the Charter, understood together. Attention must be paid to institutional autonomy and the ability to meet the magnitude of the task available.

Law does indeed convey commitment. And a lack of funding undermines law’s commitments.

Funding levels ultimately tell us what commitments we mean to keep. Our task force unfortunately heard a fair bit of cynicism on this point.

More troubling still is the deep-set presumption that equity work will be close to voluntary work, done out of duty and love by the very people who have faced structural inequity throughout their working lives. That assumption is replete with stereotypes on the basis of the very grounds that employment equity seeks to redress. Those stereotypes fuel employment barriers and pay inequities. The assumption perpetuates the undervaluing of the work to be done and can lead to stress and burnout for the people doing the equity work. Government should be setting a better example.

It is time to break out of the idea that equity work should be done on a nickel and a dime. If we are committed to championing employment equity in this global moment of rising intolerance, if we understand how critical substantive equality is to our workplaces, our economy as a whole, and our identity as Canadians, we must show it.

Employment equity requires real change; real support to implementation in workplaces; real auditing and oversight. If any one of the pillars is weak, it will remain highly unstable, and fail to achieve its results. If fortified, it can support societal inclusion and growth.

Establishing supportive and sustainable regulatory oversight

The Committee emphasizes the importance of ensuring coordination and complementarity between the interlocking measures and strategies adopted, and between the various competent bodies with a view to ensuring coherence and enhancing impact, while avoiding duplication of efforts and promoting the optimal use of resources.

We want to ensure that the Employment Equity Commissioner is able to assure the level of regulatory oversight necessary to meet the purpose of the Employment Equity Act. There are three options:

• Option 1. House an Employment Equity Commissioner within the CHRC, through a buttressed proactive compliance branch
• Option 2. Create a stand-alone Office of the Employment Equity Commissioner
• Option 3. Build an Office of Equity Commissioners

Option 1: House an Employment Equity Commissioner within the CHRC, through a buttressed proactive compliance branch

Currently the Canadian Human Rights Commission houses the Employment Equity Division, the Accessibility Commissioner’s Unit and the Pay Equity Commissioner’s Unit within the Proactive Compliance Branch. The total staff of that branch is 65 persons, including the director general’s office. The Pay Equity Commissioner and the Accessibility Commissioner have a staff comprising primarily full time but also a few part time workers totalling 25 and 28 persons respectively. The Employment Equity Division has a staff of 11 persons.

Our task force heard concerns in particular about the capacity given to the CHRC to assume the responsibility for yet another commissioner. Some stakeholders categorically requested that the oversight bodies be separate from the CHRC and Tribunal systems, and representative of equity groups. Some cited a lack of resources to address the magnitude of the challenge. Others pointed to a lengthy history of inaction or inadequate action on systemic barriers, particularly as they relate to systemic racism.

The conclusions of the 2020 Hart Report are clear: while the CHRC has made a “laudable commitment” to strengthen how it handles race-based complaints, and taken “significant preliminary steps”, the path ahead of it is long and challenging.

In the thorough review of practices and procedures, former Ontario Human Rights Tribunal Vice-Chair Mark Hart identified a range of challenges. One was the discretion provided under Section 41(1)(a) or (b) of the Canadian Human Rights Act to dismiss a complaint where it appears that the alleged victim ought to exhaust grievances or another procedure under another Act of Parliament may be more appropriate. He called for these provisions not to be used automatically or perfunctorily and to be alive to the prospect that racialized complainants may face barriers to having their grievances processed appropriately.^{Footnote 35} Another centred on reducing the risk of anti-claimant bias, which he characterized in light of the #MeToo movement to affirm that “there is a difference between moving from a place of ‘I don’t believe you until you can prove it’, to starting from a place of hearing and accepting the claimant’s stated experience with an approach of openness and curiosity, without abdicating the need to ultimately assess the evidentiary support for the allegation required by the legal process”.^{Footnote 36} Yet another was the absence of support to most racialized claimants to properly prepare their complaints. He cited promising practices to support complainants in place in other Canadian jurisdictions, such as the Nova Scotia Human Rights Commission, but that require resources.^{Footnote 37} The extent to which the CHRC, for limited resource reasons, may elect only to represent a complainant in a race-based complaint through “partial participation” was also a source of concern given the negative impact on cases that are already “notoriously difficult to prove at a hearing”.^{Footnote 38} And he was consistently mindful of the limited resources available to the CHRC and quite explicitly sought to tailor his recommendations in light of the limits.

The overall thrust of the Hart Report is that for the CHRC to be successful, it requires not only sustained commitment, but significant resources.^{Footnote 39}

The CHRC has embarked upon a modernization process, which it describes as a work-in-progress.^{Footnote 40}

On 6 March 2023, the Public Service Staff Relations Board found that the CHRC had breached the “no discrimination” clause of its collective agreement. This has prompted inquiries into the CHRC and to state the least, has not helped instill confidence in the CHRC.

The widely acknowledged limited resources of the CHRC are a source of considerable concern. Does it make sense to continue to add critical equity responsibilities to the CHRC’s mandate without a clear commitment to securing for it a budgetary envelope that would enable these mandates to be conducted in the fulsome, comprehensive manner that a federal all-of-government commitment to employment equity would require?

There are structural integration questions that also need to be thought out. Consider, for example, that while the Pay Equity Commissioner is established under the Canadian Human Rights Commission and reports to the Minister (of Labour), the Pay Equity Commissioner’s staff reports ultimately to the Chief Commissioner. The integration of thematic commissioners within the Canadian Human Rights Commission requires great care from a structural perspective, and significant resources.

The model below offers a map of the Accessibility Commissioner’s partial integration into the Canadian Human Rights Commission structure:

The Accessible Canada Act and the Accessibility Commissioner

Text description of figure 6.1

The Accessible Canada Act (ACA) establishes:

• The Canadian Accessibility Standards Development Organization: responsible for developing accessibility standards in collaboration with the disability community and industry.
  • The Standards Organization is an agent of her Majesty in Right of Canada. The Minister may issue directions to the Standards Organization to carry out its mandate.*
• Chief Accessibility Officer: advises the Minister of Accessibility and monitors accessibility issues.***** Appointed by Governor in Council.******

Under the ACA and the Canadian Human Rights Commission is:

• Accessibility Commissioner: (Full-time member of the Canadian Human Rights Commission) spearheads compliance and enforcement activities under ACA.******* Staff of 27.

The Governor in Council appoints Board of Directors (max 11 persons, including Chair and Vice-Chair),** and Chief Executive Officer.*** Officers and employees conduct the work of the Standards Organization.****

Alongside the Commissioner, the Canadian Transportation Agency and the Canadian Radio-television and Telecommunications Commission are responsible for implementing accessibility rules for the telecommunications and broadcasting industries.********

• * Accessible Canada Act, SC 2019, c. 10 ss. 17(1) and (2), 21(1) [ACA]; Government of Canada, “News Release - Historic appointment of Canada’s first Accessibility Commissioner” (April 25, 2022), online: <https://www.canada.ca/en/employment-social-development/news/2022/04/historic-appointment-of-canadas-first-accessibility-commissioner.html> .
• ** Accessible Canada Act, s. 22, 23.
• *** Accessible Canada Act, s. 30.
• **** Accessible Canada Act, s. 33.
• ***** Government of Canada, “News Release: Historic appointment of Canada’s first Accessibility Commissioner” (25 April 2022).
• ****** Accessible Canada Act, s. 111.
• ******* Appointed under Canadian Human Rights Act s. 26(1). Also responsible for monitoring the Government of Canada’s compliance with the UN Convention on the Rights of Persons with Disabilities. Canadian Human Rights Commission, “The Accessible Canada Act” online.
• After consulting with the Chief Commissioner of the Canadian Human Rights Commission, the Accessibility Commissioner may delegate their powers, duties or functions to another member of the Canadian Human Rights Commission (other than the Chief Commissioner) or to a member or staff of that Commission. ACA s. 40(2), 40(3).
• ******** Accessible Canada Act ss. 42(1), 60(1); Canada Radio-television and Telecommunications Commission, The Accessible Canada Act and the CRTC Accessibility Reporting Regulations (Sept 20, 2022), online: < https://crtc.gc.ca/eng/industr/acces/index.htm>; Canadian Transportation Agency, “Summary of the Accessible Canada Act and Reporting Regulations: A Guide on Accessibility Plans” (Feb 18, 2022), online: <https://www.otc-cta.gc.ca/eng/summary-accessible-transportation-planning-and-reporting-regulations-accessibility-plans>; Laverne A Jacobs et al, The Annotated Accessible Canada Act, University of Windsor, Faculty of Law, 2021 CanLIIDocs 987, https://canlii.ca/t/t58r

The integration of thematic commissioners within the Canadian Human Rights Commission may respect the preference for broad human rights mandates to remain within national human rights institutions within the Principles Relating to the Status of National Human Rights Institutions known as the Paris Principles. However, the remarkable and chronic underfunding, the serious concerns raised by some of the equity groups and the lack of sustained attention to functional fit call for a response of a different magnitude.

During its 2019 visit to Canada, the Special Rapporteur on the Rights of Persons with Disabilities commended developments under the Accessible Canada Act ensuring independent monitoring through the Canadian Human Rights Commission, while underlining the importance of ensuring that the Commission receive “an unequivocal national monitoring mandate and appropriate financial and human resources to implement this function”.^{Footnote 41}

If this option is adopted, the funding envelope and the institutional configuration will need to be significantly rethought.

This is our second-best option of the three.

Models to guide the choice of options

There are other Commissioner models available within the federal government and beyond. The task force canvassed a number of Commissioners’ offices within the federal system, to gain a closer understanding of the different structures within and beyond the Canadian Human Rights Commission that might inform the decision about the appropriate options for an Employment Equity Commissioner. The Office of the Auditor General of Canada, the Official Languages Commissioner and the Privacy Commissioner offer particular insights, including on funding levels.

Office of the Auditor General of Canada

The Office of the Auditor General of Canada (OAG) is independent of government, although it is subject to the Employment Equity Act and acknowledges the cross-cutting, underlying value to its work and for its own workplace. The Office of the Auditor General also understands its vision to be a transformative one – “to bring together people, expertise and technology to transform Canada’s future, one audit at a time.^{Footnote 43} It is noteworthy that the OAG’s publicly available, online employment equity report was one of the rare public reports to include the employment equity plan with each commitment, measure, targets and results.

The OAG differs from most other government departments and agencies because of its independence from the government of the day and its reporting relationship to Parliament. Controls are in place to ensure the OAG’s independence, including exemptions from certain Treasury Board policy requirements, its status as a separate employer, and a 10-year non-renewable term for the Auditor General.

In the 2018 report, the Auditor General explained why the report into inappropriate sexual behaviour in the Canadian Armed Forces was conducted in the following terms:

This audit is important because inappropriate sexual behaviour is wrong. It undermines good order and discipline, goes against the professional values and ethical principles of the Department of National Defence and the Forces, and weakens cohesion within the Forces… Moreover, if inappropriate sexual behaviour persists, it could negatively affect the Forces’ recruitment and retention efforts.^{Footnote 44}

It conducted the review following the External Review of Sexual Harassment in the Canadian Armed Forces and referenced it. The 2000 Task Force also recommended that external advice and independent review should be enabled. They recommended that a three-member external advisory group, including one member from the private sector in the position of management, be appointed for 5-year mandates to advise on implementation in the public service.

During the deliberations, we considered whether the Auditor-General might be an appropriate institution to assume responsibility for the all-of-government approach to achieving employment equity. This was an imperfect fit, not least because the Employment Equity Act requires private sector reporting beyond Crown corporations. Employment Equity Act implementation requires auditing, certainly, and it requires so much more to foster ongoing implementation. We want the dynamic regulatory oversight and engagement of the Commissioner model foregrounded through the Pay Equity Commissioner.

However, the Auditor General’s model is important for another reason: it gives a really clear example of the independence, the people power and the resources necessary to do auditing work well. Serious auditing requires serious resource allocation:

Text description of figure 6.2

• Office of the Auditor General of Canada (OAG): The OAG reports to Parliament. and employs approximately 700 people in its head office and four regional offices.* Its planned spending is nearly $120 million for 2022-23.**
  • The Powers of the Auditor General (AG):
    • Power to make examinations. The AG has the power to make any examinations and inquiries necessary in order to report under the Auditor General Act.****
    • The AG has the power to examine financial statements and other statements presented for audit by the President of the Treasury Board or Minister of Finance and issue an opinion as to the fairness of the statements.*****
    • Power to inquire and report. The AG’s annual reports to the House of Commons shall report on the Office’s work and whether they received the information and explanations required to carry out their work. The reports shall also call attention to anything significant e.g. money expended other than for purposes for which it was appropriated by Parliament.******
  • The OAG Executive Committee and Employees:
    • In addition to the Auditor General, there is a Deputy Auditor General, Commissioner, seven Assistant Auditors General, a Chief Audit Executive, and a General Counsel (along with the Commissioner of the Environment and Sustainable Development).
    • The OAG’s audit professionals include accountants, engineers, lawyers, management experts, information technology professionals, environmental specialists, economists, historians, and sociologists.
    • Auditors are supported in their work by specialists in law, professional practices, international relations, information technology, knowledge management, financial management, parliamentary liaison, and more.*******
  • The Commissioner of the Environment and Sustainable Development (CESD):
    • The CESD, who is appointed by the AG, audits the federal government’s management of environmental and sustainable development issues. To do so, the CESD provides independent analysis and recommendations on the federal government’s efforts related to the environment, climate change, and sustainable development.********
• Auditing the OAG: An external auditor appointed by the Treasury Board audits the OAG’s financial statements annually. The OAG submits annual spending estimates to Parliament and appears before the Standing Committee on Public Accounts. The OAG also voluntary subjects its work to independent external reviews.***

• * Office of the Auditor General of Canada, “Who We Are,” online: <https://www.oag-bvg.gc.ca/internet/English/au_fs_e_370.html#organization>. The OAG’s legislative basis is in the Auditor General Act, the Financial Administration Act, among other statutes.
• ** Office of the Auditor General of Canada, “2022-23 Departmental Plan” (Feb. 4, 2022), online: <https://www.oag-bvg.gc.ca/internet/English/acc_rpt_e_44002.html>.
• *** Office of the Auditor General of Canada, “Who We Are.” online: <https://www.oag-bvg.gc.ca/internet/English/au_fs_e_370.html#organization>.
• **** Auditor General Act, RSC, 1985, c. A-17, s. 5
• ***** Auditor General Act, RSC, 1985, c. A-17, s. 6; Financial Administration Act, RSC, 1985, c. F-11, s. 64.
• ****** Auditor General Act, RSC, 1985, c. A-17, s. 7(1) and (2).
• ******* Office of the Auditor General of Canada, “Who We Are” online: <https://www.oag-bvg.gc.ca/internet/English/au_fs_e_370.html#organization>.
• ******** Office of the Auditor General of Canada, “Who We Are,” online: https://www.oag-bvg.gc.ca/internet/English/au_fs_e_370.html#organization; Auditor General Act, RSC, 1985, c. A-17, s. 15.1; The CESD has responsibilities under the Auditor General Act, the Federal Sustainable Act, and the Canadian Net Zero Emissions Accountability Act.

Office of the Privacy Commissioner of Canada (OPC)

Privacy rights are also fundamental rights protected by the Charter. The institutional structure is distinct from that of the commissioners housed within the Canadian Human Rights Commission. The resource envelope is significantly larger than that available to Accessibility Commissioner or the Pay Equity Commissioner:

Text description of figure 6.3

• The Office of the Privacy Commissioner of Canada (OPC)*: The OPC reports to Parliament. As of March 2021, 323 peopled worked in the OPC.** Under the OPC is:
  • The Compliance Sector Deputy Commissioner::
    • Includes three directorates: Privacy Act Compliance Directorate (public sector), Personal Information Protection and Electronic Documents Act (PIPEDA) Compliance Directorate (private sector), and Compliance, Intake and Resolution Directorate (public and private sectors).
  • The Policy and Promotion Sector Deputy Commissioner:
    • Includes five directorates: the Government Advisory Directorate, the Business Advisory Directorate, the Policy, Research and Parliamentary Affairs Directorate, the Technology Analysis Directorate and the Communications Directorate.
  • The Corporate Management Sector Deputy Commissioner:
    • Includes four directorates: the Human Resources Directorate, the Finance and Administration Directorate, the Information Management/information Technology Directorate, and the Business Planning, Performance, Audit and Evaluation Directorate.
  • The Legal Services Directorate.
  • Assistant Privacy Commissioner(s) who can be appointed upon recommendation of the Commissioner.****
  • The OPC Executive Secretariat which supports the Commissioner.
  • The OPC’s Internal Audit Committee which provides the Commissioner with objective advice and recommendations in the areas of risk management, control and governance.
• Federal Court may review Commissioner’s investigation results.***

• * For a detailed summary see Office of the Privacy Commissioner of Canada, “Organizational Structure” (Oct 21, 2019), online: <https://www.priv.gc.ca/en/about-the-opc/who-we-are/organizational-structure/>. Unless otherwise indicated, citations are to this source. In 2018, following an organizational review, the OPC adopted a new structure to be more proactive and have more impact.
• The Governor in Council appoints the Privacy Commissioner after consultation with leaders of each party in the Senate and House of Commons, and appointment by resolution of the Senate and House of Commons. Privacy Act, RSC, 1985, c. P-21, s. 53(1) [Privacy Act]
• The Privacy Commissioner my appoint officer and employees as necessary to perform their functions and duties, and may engage on a temporary basis persons with technical or specialized knowledge to assist the Commissioner and with approval of Treasury Board, pay that person. Id. s. 58(1) and (2).
• The Privacy Commissioner may also delegate powers, duties, and functions to any person, except for making reports to Parliament. Id. s. 59(1).
• ** Government of Canada, “Infographics for Offices of the Information and Privacy Commissioner of Canada” (March 2021), online: <https://www.tbs-sct.canada.ca/ems-sgd/edb-bdd/index-eng.html#infographic/dept/256/people>.
• *** Privacy Act, RSC, 1985, c. P-21, s. 41.
• **** Privacy Act, RSC, 1985, c. P-21, s. 56(1).

Office of the Commissioner of Official Languages

Finally, the Office of the Commissioner of Official Languages is an example of a significant governmental priority – whose emergence was discussed in the introduction to this report and parallels that of employment equity. There is much to be learned from this model and it should be looked at as a close comparator. We heard that it reaches out directly and works with the Public Service Commission and TBS-OCHRO on official language representation and measures. Its regional office-structure is informative for the effective institutionalization of employment equity and other equity mandates.

Text description of figure 6.4

• The Commissioner of Official Languages* (reporting to Parliament)
  • The Office of the Commissioner of Official Languages (OCOL) supports the Commissioner, with staff in a Head Office (Gatineau, QC) and five regional offices across Canada.**
  • In March 2021, 177 people were employed by OCOL (157 in the Head Office and 1-5 people in each of the regional offices).***
• In addition to the Commissioner, other federal departments and agencies have special responsibilities with respect to official languages: Treasury Board of Canada Secretariat, Canada Heritage, Department of Justice, Public Service Commission of Canada, Canada School of Public Service, Standing Committees on Official Languages.****

• * The Privacy Commissioner is an agent of Parliament appointed by the Governor in Council after consultation with leaders of each party in the Senate and House of Commons, and appointment by resolution of the Senate and House of Commons. Official Languages Act, RSC, 1985, c. 31 (4th Supp), s. 49(1) [Official Languages Act]; Office of the Commissioner of Official Languages, “Mandate & roles” (7 November 2022), online: https://www.clo-ocol.gc.ca/en/aboutus/mandate.
• Staff and employees necessary for the Commissioner’s work shall be appointed in a manner authorized by law. Official Languages Act, s. 51.
• The Privacy Commissioner my engage on a temporary basis persons with technical or specialized knowledge to assist the Commissioner and, with approval of Treasury Board, pay that person. Id. s. 52.
• ** Office of the Commissioner of Official Languages, “About us” (12 September 2022), online: <clo-ocol.gc.ca/en/contact/index#head>.
• *** Government of Canada, “Infographic for Office of the Commissioner of Official Languages” (17 November 2022), online: <https://www.tbs-sct.canada.ca/ems-sgd/edb-bdd/index-eng.html#infographic/dept/242/people>.
• **** Office of the Commissioner of Official Languages, “Mandate & roles” (7 November 2022), online: https://www.clo-ocol.gc.ca/en/aboutus/mandate; Official Languages Act, RSC, 1985, c. 31(4th Supp), s. 70. The Commissioner has the power to delegate any powers, duties, or functions (except for reporting functions to the Treasury Board, Governor in Council, and Parliament, and appearing as a party in court proceedings).

Recommendation 6.15: Establishing an Office of Equity Commissioners should be closely considered with a view to harmonizing and appropriately funding and ensuring effective equity oversight and parliamentary reporting in the federal jurisdiction with consideration given to the structures and funding of the Office of Auditor-General of Canada, the Office of the Privacy Commissioner of Canada, and the Office of Official Languages.

Introduction

There is latitude for employers to adopt voluntary employment equity programs linked to prohibited grounds of discrimination under the Canadian Human Rights Act. To recall, the grounds are:

• race
• national or ethnic origin
• colour
• religion
• age
• sex (including pregnancy)
• sexual orientation
• marital status
• genetic characteristics
• gender identity or expression
• family status
• disability, and
• conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered

For example, and as mentioned earlier, the task force heard from employers who have already included 2SLGBTQI+ workers in employment equity programs. Section 16(1) of the Canadian Human Rights Act allows federally regulated employers and service providers to develop and implement voluntary “special programs”. It clarifies that:

It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discrimination, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.

Section 16(3) similarly enables information to be collected on prohibited grounds of discrimination to adopt and carry out the special program, plan or arrangement. The Canadian Human Rights Commission may provide advice and assistance to the employer.

This task force has witnessed few signs that voluntary approaches can be counted on to achieve employment equity, although they can become the basis for claims for more sustained, formal programs as we have already observed for 2SLGBTQI+ and Black workers. Yet Section 54.1(2) of the Canadian Human Rights Act prevents the Canadian Human Rights Tribunal from requiring an employer to adopt a special program, plan or arrangement even when a discrimination complaint is substantiated.

In contrast, in Québec, there are strong measures to allow public institutions to require employment equity programs to be put in place.

Mandated employment equity on the basis of an inquiry by the Commission des droits de la personne et des droits de la jeunesse

The Québec Charter of Human Rights and Freedoms anticipates that public and some private enterprises can have an employment equity program imposed on them. Not only is the Commission des droits de la personne et des droits de la jeunesse (Cdpdj) required, when requested, to provide assistance to devise an employment equity program, to supervise their administration, to investigate and to require reports.^{Footnote 45} Section 88 allows that if the Cdpdj, after investigation, confirms that discrimination in employment^{Footnote 46} exists, it may propose the implementation of an equal access employment program. If its proposal is not followed, it may take the matter to a tribunal, usually but not necessarily the Québec Human Rights Tribunal, to obtain an order for the program to be devised and implemented. This process was followed in the landmark decision, Commission des droits de la personne et des droits de la jeunesse v. Gaz métropolitain.^{Footnote 47}

Researchers have expressed concern that the Cdpdj has not used this and other powers provided to it to redress discrimination more frequently,^{Footnote 48} although the Cdpdj indicated to our task force that it has launched a process of judicializing files that are ready to go before the human rights tribunal to seek compliance; in other words, it is ready to use its legislated powers proactively.^{Footnote 49} The key takeaway for the federal reform is that the power must be accompanied by a strong and efficient process for implementation. The distinct role of the Employment Equity Commissioner will be essential to the success of any proactive approach to diagnosing and implementing employment equity.

An Employment Equity Commissioner should play an important role in supporting employers, including providing brief written advice on the special programs that the employers seek to adopt.

It should also be in a position to recommend and monitor special programs.

Investigatory powers are addressed in greater detail below, under initiatives to harmonize equity frameworks.

Introduction

Bargaining agents must be able to bring forward employment equity complaints under the Employment Equity Act and trigger an audit, including when they have not been properly consulted.

If the laws on equity are not harmonized, the complexity will undermine their transformative potential. This would be tragic because we have rarely had greater consensus on the part of employers, workers and society at large on one basic truth: Canada needs all of us, all of our talents, all of our contributions, all of our know how and ways of thinking and doing and being in the world.

Employers did not come before the task force to complain about employment equity. They told us that they want to foster workplace equity but they want to do it in a coherent, comprehensive manner. FETCO for example wanted to know that new obligations would be “practicable” in the organizations, and that the burden on organizations would be “reasonable and realistic”.^{Footnote 50} The Conseil du Patronat du Québec asked us to harmonize the timelines during which reports would need to be submitted.^{Footnote 51} The task force took these considerations to heart.

Unions similarly told us that it was important to harmonize frameworks for equity.^{Footnote 52} Workers may feel discouraged by how hard it is to figure out their rights and to see what is actually being done to achieve and sustain substantive equality.

Harmonization must include the Employment Equity Act framework’s approach to accountability and penalties for non-compliance. If employment equity is truly an all of society matter, it must help to lead rather than lag behind the newer equity schemes for pay equity and accessibility.

The imperative of harmonization

It is the right moment to get the harmonization piece around federal equity legislation right. The Accessible Canada Act has come into force since 2019, with regulations in force since December 2021. Initial accessibility plans were required on 31 December 2022 for the federal public service and Crown corporations; they are required on 1 June 2023 for federal private sector organizations with over 100 workers, and on 1 June 2024 for federal private sector organizations with between 10 – 99 workers.^{Footnote 53}

It is expected the Accessible Canada Act of 2019, will identify, remove and prevent employment barriers (including ones created by policies) for people with disabilities. Identifying barriers through employment systems reviews is also contained within the Employment Equity Act. We see an overlap in the two pieces of legislation with respect to employment systems reviews and the requirement to develop accessibility plans. There is nothing in the Accessible Canada Act to reconcile the overlap. We ask the taskforce to examine how the Employment Equity Act can support the requirements under the Accessible Canada Act.

Accessibility is cross-cutting. The Accessible Canada Act necessarily extends beyond employment, to encompass the built environment, information and communication technologies, communication, procurement of goods, services and facilities, design and delivery of programs and services, transportation, and other areas designated under regulations.^{Footnote 54} To remove employment barriers, workplaces themselves need to consider many of these aspects, including the built environment, communications and workers’ access to adaptive technologies.

Harmonization between statutory frameworks would not necessarily be unidirectional and is likely to focus on the functional and operational integration to ensure that equity objectives are met.

Five areas would make a big difference to the effectiveness of regulatory oversight under the Employment Equity Act framework and across proactive equity mandates.

• harmonize timelines for implementation
• harmonize reporting
• harmonize and update complaints procedures
• harmonize and repurpose penalties, and
• harmonize sustainable support for employment equity groups

Harmonize timelines: Achieving employment equity alongside barrier-free workplaces By 2040

I now believe quite firmly that the only way we’re going to achieve true and full accessibility is for the various standards and objectives to have a definable date in place and a government that is willing to enforce the implementation of these measures. … I looked at the previous reviews and listened to people’s real-life stories of the barriers they were facing and the dispiriting situations that they found themselves in…. I know there is a strong difference of opinion on this, but I would simply put it to you that as you look at other endeavours by government, whether they are matters related to climate change or the environment, or whether you’re dealing with students as I do at the University of Toronto in political science, you have to have a date, a deadline and a clear objective in mind. If you don’t, it just becomes an endless process.

First, harmonize timelines. The principle is simple: when commitments are made, they should be respected.

Goals are short term or long term under the Employment Equity Act. Implicitly then, they are meant to be achieved.

The Accessible Canada Act has a clear timeline. The Minister is responsible for realizing a Canada without barriers on or before 1 January 2040.

Implementing pay equity is a short-term, 3-5-year process. Most of the work subsequently is on maintaining pay equity.

Canada has committed to achieving the UN Sustainable Development Goals by 2030.

Achieving equality in the workplace should also come to be understood as something that must be achieved. That would mean that today’s children could count on employment equity – and enter workplaces who can welcome them and are simply working to sustain equity. It is of course a significant commitment, but we need to be able to achieve and sustain employment equity.

Achieving employment equity is complex, but attainable, like the barrier removal that must be achieved under the Accessible Canada Act by 2040.

A legislated governmental goal for achieving employment equity would give greater meaning to the establishment of short-term goals in the Employment Equity Act.

The Employment Equity Act should be revised to ensure that the long-term goals are understood to entail sustaining employment equity and a commitment to a broader societal striving for representation that reflects the Canadian population.

Harmonize reporting:

The current public reporting structure requires analysts to perform significant effort in order to understand the current state of employment equity in an organization, how the employment equity numbers compare to the broader community and what progress has been made toward achieving an employer's employment equity plan.

Second, harmonize reporting. At one level, the Accessible Canada Act’s plans and the Employment Equity Act’s employment equity plans will contain overlapping features, and as mentioned above, there might be mutual learning. Our task force heard that in some cases, the precise character of the requirements under the Employment Equity Act are preferable to the approach currently adopted to accessibility plans.^{Footnote 55}

The Accessibility Commissioner and the Employment Equity Commissioner should be able to streamline the reporting requirements and be legislatively encouraged to determine – through regulations or guidelines – who will assume responsibility for the employment-related dimensions. This means paying attention to the dates set, and the periodicity.

At another level, our task force was told that public reporting can be significantly supported by having oversight that offers data software to improve the sophistication of the data received while simplifying the public reporting. The goal should be that users can assess and learn from the relative progress over time. This is an important responsibility that we would encourage an employment equity commissioner to develop, with the support of the Employment Equity Data Steering Committee.

Harmonize and update complaints procedures

Enforcement has been a longstanding challenge, and notoriously weak component of accessibility-related legislation across Canada. Without visible enforcement and tangible action to incentivize compliance, legislating accessibility standards is moot. As a stakeholder in the Onley review said, enforcement of the AODA is like “telling drunk drivers about impaired driving laws and asking them to obey or trying to enforce speed limits without radar” (2019).

Third, harmonize and update complaints procedures. When lined up with other equity frameworks, the Employment Equity Act stands out. The Employment Equity Act traded a limited systemic human rights complaint prospect available in 1986 for a broad audit process. The hope might have been that we would gain in depth of commitment – a truly more proactive approach to dealing with underrepresentation that would build on the collaborative efforts of all.

Instead, we have a somewhat opaque process channeled through a dysfunctional bifurcation between the Labour Program and the Canadian Human Rights Commission that may mask rather than remove barriers to representation. Progress right from the start has been extremely slow.^{Footnote 56}

The regulatory oversight under the Employment Equity Act needs to be at once close to employers, not necessarily geographically but in terms of the comprehensive quality and nature of the support. And it needs to be able to respond when there is no reasonable progress.

The scope for complaint is narrow. As mentioned above, the employer or the CHRC may seize the Tribunal to review a direction following an audit. Now, 23 years later, the Tribunal has yet to render a substantive decision. The severely limited auditing, despite the best efforts of the small, dedicated and knowledgeable staff working on employment equity in the proactive compliance branch, might explain why.

We have recommended clarifying that employers are required to make reasonable progress on achieving employment equity, and a responsibility to sustain employment equity once it has been achieved. The following recommendation ensures the Employment Equity Commissioner’s oversight powers:

This recommendation respects the existing structure of the Employment Equity Act, and is sustainable.

A complaints-based process should not be allowed to take over an approach that stimulates compliance through persuasion and incentives and regulatory support and oversight.

The 1997 National Capital Alliance on Race Relations (NCARR) v. Health and Welfare Canada showed what was possible when the evidence was made available to be able to demonstrate the existence of systemic discrimination in the federal public service. It is an example of the useful contributions that complaints procedures can make to redressing systemic racism and systemic discrimination.^{Footnote 57} Our task force was told by senior public officials that this case made a concrete difference toward achieving equality in the workplace. This perspective was reflected in the 2000 Canadian Human Rights Act Review Panel.

Had the amendments been in place earlier, the decisions rendered in [Action travail des femmes and NCARR would not be part of Canadian jurisprudence. The understanding they have given us of systemic discrimination itself … and the rationale for an employment equity remedy, would not be there.

We did not hear during our consultations that the solution is simply to return to a complaints model and jettison auditing. On the contrary, the 1996 amendments were put in place to go beyond the limits of a complaints-based approach. Our task force agrees with the 2000 Canadian Human Rights Act Review Panel: we should enable the Canadian Human Rights Act and the Employment Equity Act to complement and reinforce each other, to eliminate enforcement gaps.^{Footnote 58}

It is time, now, to arrive at a balance of both.

The task force listened carefully to the many representations made that the Employment Equity Act needs to be enforceable. We understood those concerns and we recognized that the Employment Equity Act is an outlier, even amongst the two other proactive equity models for pay equity and accessibility:

What we did not receive was a litany of requests for individual complaints to be brought before the Employment Equity Tribunal about individual employment equity determinations. There is a deep understanding that employment equity is systemic and proactive.

There are other reasons to be cautious about fully opening up the ability to bring complaints.

Pay equity is distributive but for workers it has been crafted so that it only ever benefits employees who are compared to each other. So, while the pay equity plan prevails to the extent of any inconsistency with existing collective agreements, pay increases are deemed to be incorporated into the collective agreement. The kind of complaints that would come before the Pay Equity Commissioner are much more contained in scope than those that could arise in the context of employment equity. Lengthy procedures on affirmative action from jurisdictions like the United States, India and South Africa reveal the real risks of judicializing and of adopting a rigid quota-based approach.

Individual complaints procedures can be more than a distraction. They can overwhelm the systemic focus of the Employment Equity Act if they are not carefully tailored toward achieving the systemic remedy. The employment equity framework should not devolve into an individual complaints mechanism. The focus has to remain on making the requirements of the Act enforceable.

We did not take these risks lightly.

The example in Northern Ireland shows careful attention to encouraging actively negotiating agreements while permitting legally enforceable agreements to be sought by the Commission comes close to the kind of model that we prefer. It was built upon and is not terribly far from our model, despite the very significant differences in coverage (Catholic and Protestant men and women) as discussed in Chapter 3. Regulatory oversight appears to be sufficiently strong and there are important if invariably limited indicators of success over time. The key seems to be that employment equity is actually implemented, with effective auditing and compliance measures as well as a willingness and ability on the part of the Commission to use its powers.^{Footnote 59}

So, what would a complaints procedure add if there is a well-functioning Employment Equity Commissioner?

What we recommend is a dynamic process that incentivizes agreement rather than litigation.

The Canadian Labour Congress has expressed the view that bargaining agents should be able to bring complaints.^{Footnote 60} We have kept the focus on shoring up the meaningful consultation pillar.

Our task force proposes a limited complaint model, that may be brought by any worker in an employer’s covered workplace, on the grounds that an employer’s implementation obligations under the Employment Equity Act are not being respected.

The complaints are to be brought to the Employment Equity Commissioner.

There is to be a presumption that the Employment Equity Commissioner shall dismiss a complaint unless the Commissioner considers there to be sufficient evidence, brought by the complainant, to dislodge the presumption that the internal mechanisms to implement employment equity are functioning appropriately.

Should the Employment Equity Commissioner decide that there is sufficient evidence, an audit by the Employment Equity Commissioner would be the remedy.

The proposed use of the presumption adapts a recommendation provided by the Canadian Human Rights Act Review Panel in 2000 to the context of the Employment Equity Act framework.

The entire mechanism as proposed is meant to prevent the complaints procedure from simply bypassing existing complaints or grievance procedures available to federally regulated employees.

The following recommendations support the establishment and powers of the recommended Employment Equity Commissioner:

The following recommendations should support a strengthened role for the Employment Equity Tribunal:

Care will be required to ensure that the Employment Equity Tribunal’s powers align with those allotted to the Employment Equity Commissioner.

The provisions in the Employment Equity Act and the Canadian Human Rights Act should be reviewed to ensure that the role, powers and responsibilities of the Employment Equity Tribunal are fully in keeping with the recommendation to implement an Employment Equity Commissioner. For ease of reference, the provisions might be moved from the Canadian Human Rights Act into the Employment Equity Act. The review includes the following specific recommendations:

The issue of qualifications of members presents its own challenge and should not be left to chance.

We were concerned to ensure that the tribunal would both be public and encourage alternative dispute resolution:

Finally, we wanted to ensure that orders would be enforceable and that the relationship between tribunals and their powers would be clarified:

Harmonizing and repurposing penalties

Section 36 sets out monetary penalties for violations of the Employment Equity Act. However, the violations under Section 35 are for failures to file the employment equity report required, and without reasonable excuse, failure to include the required information, or knowingly providing false or misleading information. The penalties are limited to $10,000 for a single violation or $50,000 for repeated or continued violations.

Far from new, reports on compliance have consistently challenged what is meant by the term, both under the legislation and under the Federal Contractors Program:

It appears that the very definition of "compliance" is problematic. In FCP today, “compliance” effectively is defined as not refusing to do employment equity, rather than the stated requirement in the U.S. where “good faith effort” is defined and treated as actually making progress. A related problem for compliance reviews is that there is no way to distinguish between different levels of involvement/commitment to employment equity. This suggests that a compliance “continuum” – a range of compliance tools or procedures – would help. Such a continuum could be linked to a range of penalties rather than just the ultimate penalty of disbarment.^{Footnote 61}

Regulatory oversight needs to be taken seriously to avoid undermining the objectives of the Employment Equity Act framework. That includes adapting measures to apply to the Federal Contractors Program.

In Chapter 4, we recommended that the Employment Equity Act be amended to ensure that reasonable progress goes beyond simply producing a plan that could yield reasonable progress if it were implemented. The plan needs to be implemented.

Stakeholders who came before our task force recognized that penalties were at best a last resort. They understood that a focus on penalties would detract from the collective work needed to build inclusive practices in the workforce.

What bothered stakeholders was the sense that the Employment Equity Act could essentially be ignored, and that employers could start their processes if and when they were audited by the CHRC. That seemed to challenge the good faith process that underlies the reflexive Employment Equity Act framework.

The Canadian Human Rights Commission in its submissions to the task force added that a full range of remedial powers should be made available. These included penalties scaled to the level of non-compliance and the size of the employer.

Ensuring that penalties are appropriate to achieve results is also part of Canada’s international obligations.^{Footnote 62}

Our task force agreed. The main recommendations made are to harmonize and repurpose penalties under the Employment Equity Act framework, so that they reflect the more contemporary understandings in the other related equity legislation, the Accessible Canada Act and the Pay Equity Act.

Harmonize sustainable support for employment equity groups

Establish an Ombudsperson for Indigenous Reconciliation as a trusted safe space mandated to resolve the widest possible range of issues pertaining to bias, racism, discrimination faced by Indigenous federal employees. The office of the Ombudsperson for Indigenous Reconciliation would provide managers and employees with a confidential environment where informal conversations and conflict resolution drive improved workplace understanding, support and relationships.

Finally, we wanted to pay careful attention to the request by several employment equity groups to have someone with regulatory oversight available to foster understanding and support in a transversal manner. They would allow workers themselves to seek confidential guidance, informal interventions in support of employment equity interventions, training and enhanced capacity for implementation of the Employment Equity Act alongside pay equity and accessibility.

We did not simply want to multiply responsibilities. To foster integration and harmonization, we would recommend that in addition to vesting transversal responsibility for women workers in the Pay Equity Commissioner and transversal responsibility for disabled workers in the Accessibility Commissioner, four newly created deputy commissioners, or ombudspersons should be created, with transversal responsibilities for Indigenous reconciliation (First Nations, Métis and Inuit workers), Black workers, racialized workers and 2SLGBTQI+ workers.

The overall funding of the Office of Equity Commissioners would need to be commensurate with the significance of this additional responsibility.

Introduction

Finally, it is an important principle that employment equity goals should apply internally to the public oversight bodies that apply the Employment Equity Act framework. Our task force heard particular concern to sustain leadership on equity within the federal public service.

Deputy Minister Champions

Deputy Minister champions’ role entails championing a range of corporate initiatives, programs or functional communities across the federal Public Service. They are appointed by the Clerk of the Privy Council, and according to the Government of Canada website are asked to provide support and guidance to communities or programs from a strategic level and “to build awareness of and advance issues.” The Deputy Minister champions structure includes a range of university champions with a role in public service renewal, as well as deputy minister champions of development programs and communities, including the human resources community, Christine Donoghue, who we met separately in relation to the work of TBS-OCHRO.

Our task force was pleased to meet with the three Deputy Minister champions appointed for employment equity – Indigenous Federal Employees, Federal Employees with Disabilities, and Visible Minorities. Their comments to the task force have been discussed at various points throughout this report. We met with each of the three Deputy Minister champions independently; they appeared alongside members of the equity group(s) that they support. Some of the representatives who came with them had already met with the task force, through their separately organized networks. The network briefs were submitted to the task force both autonomously and in consolidated form through TBS-OCHRO.

We were told that the Deputy Minister champion structure has flourished throughout the public service, although support for them was uneven. We were told that they understand their role as advocating on behalf of the equity group that they support, embodying the principle that those with relatively greater privilege should use that power to advocate for greater inclusion. Others appropriately stressed co-creation and consultation, underscoring that bargaining agents must play a crucial role in achieving employment equity.

The Emerging from the Purge Report offered the following reflection on the various roles of champions and allies that have emerged throughout the federal public service:

Some entities make use of executive-level Champions for different marginalized groups and who often act as spokespeople at executive tables for their groups. Champions are not paid for this role and they do not generally receive training to support them in their responsibilities. Further, the degree to which Champions can impact EDI efforts seems to depend on their degree of authority in their main line of work, as opposed to having authority because of the Champion role itself. Overall, there is a lack of clarity on the specific roles and responsibilities between equity staff, Champions, network chairs and positive space ambassadors. The degree of interaction between Champions, equity staff, and ERGs also varies greatly between entities.

The Canadian Labour Congress also queried the effectiveness of the system of champions.^{Footnote 64}

It is terribly important for the ally relationship to be appropriately understood. The role of champion is crucial, but it should never supplant the role of meaningful consultation with employees themselves, through their chosen representatives. As discussed in Chapter 5, the meaningful consultation pillar needs to be strengthened, independently. While members of equity groups may benefit from the appropriate support of allies, they also require autonomy. Champions may provide helpful guidance and support. But champions are part of the third pillar, accountability, and along with other Deputy Ministers, they need to be attentive to their relative power, and assessed on the results that they achieve.

Achieving goals in the federal public service: Linking responsibility and performance

Legislation should achieve results. Public monitoring agencies should meet their goals, including those under the Employment Equity Act.

The federal public service already has a Treasury Board Policy on Results, which took effect on 1 July 2016.

For the federal core public administration, the Treasury Board, this across-the-board policy has as its dual objective to “improve achievement of results across government” and “enhance the understanding of the results government seeks to achieve, does achieve, and the resources used to achieve them”. The Treasury Board secretariat is expected to provide leadership, oversee resource alignment reviews and evaluations, report, raise compliance issues with the deputy head or president of the Treasury Board, and support policy implementation.

The Policy on Results applies to almost all departments as defined in the Financial Administration Act and includes Parliamentary entities and Crown corporations. It includes ESDC, which is responsible for monitoring the Employment Equity Act as it applies to the federally regulated private sector, including reporting by the federally regulated private sector. It also applies to the CHRC, whose compliance audits include both the federal public service as well as federally regulated private sector employers.

In understanding this policy, the Labour Program staff stressed that “equity-related targets can feature in different ways in performance measurement and evaluations” conducted under this policy.

The CHRC’s report recommends “working toward a diversity and inclusion plan that is developed in consultation with employees and unions and is regularly updated.”^{Footnote 65} The CHRC reports that a focal point was appointed in 2020 to support implementation of the employment equity and anti-racism agenda. The report focused a lot on comments garnered from consultations. It emphasized accommodations. Starting with the requirement to conduct an employment systems review might have offered more conclusive recommendations.

As of 1 April 2021, deputy heads need to designate a senior official responsible for employment equity, diversity and inclusion (SDOEEDI). That senior designated official’s responsibilities are set out in a Directive on Employment Equity, Diversity and Inclusion dated 1 April 2020.The task force heard that this move to accountability should become a part of how deputy ministers are evaluated. This would send a strong message.

Several networks that appeared before the task force emphasized that deputy ministers should be held directly accountable for achieving results under the Employment Equity Act through their performance evaluations.

We agree. It has long been reaffirmed: responsibility for achieving employment equity must reside in positions sufficiently senior in an organization to make management’s commitment clear to all.^{Footnote 66} Government can set a crucial example in this regard.