Sexual Harassment Allegations Rock Canadian Politics: What Are The Legal Implications? feature image

Sexual Harassment Allegations Rock Canadian Politics: What Are The Legal Implications?

We’ve previously written about the proposed Bill C-65, which would amend current provisions to the Canada Labour Code. The new bill would extend protections to those Canadians employed in federally -regulated industries (i.e. Crown corporations and agencies, aviation, transport, broadcasting, banking, etc.) and would cover all aspects of workplace misconduct, including sexual harassment. Bill C-65 enters second reading on Monday.

The resignation of several high-level politicians this week due to allegations of sexual misconduct, including Patrick Brown (former PC Leader in Ontario) and Kent Hehr (former Federal Sport and Disabilities Minister) raises questions about what effect this Bill may have on staffers and others employed in politics.

Workplace Protections for Parliamentary Staffers

Political staffers on Parliament Hill, including those who work in the House of Commons and the Senate, may have fewer protections than others in the federal public service because their employers are technically the MP or senator that they work for, not Parliament. Even under Bill C-65, something known as “parliamentary privilege” may be triggered. This privilege provides protections for elected representatives and is intended to shield them from pressure from external actors, including courts.

CBC News reports that a memo written for Labour Minister Patty Hajdu about the effect of Bill C-65 on Hill staff notes that “the extent of parliamentary privilege remains unclear. Parliament itself does not have the authority to determine the limits of its own privilege”, and further, that

“the extent of Parliament’s privilege over the management of its employees has not been definitively established by the courts.”

Currently, staffers who have harassment allegations can either speak directly to their harasser, take a complaint to their party’s whip, or take their complaint to Parliament’s chief HR officer.

Under Bill C-65, politicians accused of harassing staff would be obligated to submit to mediation by an independent third party, chosen from a list of professionals (generally lawyers with experience in mediation and dispute resolution). The independent third party would have to be agreed to by both the alleged harasser and the person accusing them. It is unclear, under the proposed Bill, what the potential consequences might be for someone found to have engaged in misconduct.

However, despite the above, politicians will still be able to benefit from two privileges that are unique to their position:

  • They cannot be sued for breaches of the Canada Labour Code; and
  • They cannot be fired or dismissed.

Ostensibly, that would mean that a politician found to have engaged in misconduct, for example, sexual harassment, would not be subject to the same consequences as a non-politician federal employee. They would not be able to be removed from their post, but would have to resign.

Power Dynamics on Parliament Hill

This may be a problematic legal loophole in an environment that has, in Hajdu’s words “a power dynamic that is unique”.

Hajdu, who introduced Bill C-65 last November says that she spoke to all parties and heard similar stories from staffers, particularly around the vulnerability of staff and others who work for parliamentarians.

In an interview with CBC News, Hajdu noted that prior to her tabling the Bill:

“Staffers talked about having a whisper network, knowing which parliamentarians to avoid and which ones were more lecherous when they were drinking,”

Hajdu further noted that many of stories she heard were “heartbreaking”. Politics she says, is still by far and large, predominantly male, with young support staff, “liberal access” to alcohol, and long hours of work. It is also an environment that is defined by a team mentality and partisanship, making it difficult to come forward when “it’s actually a member of your own team because it politically could jeopardize your own team’s success”.

It will be interesting to follow the progress of Bill C-65 as well as other measures that will be taken in various workplaces, including on Parliament Hill to address sexual harassment and other problematic behavior of employees.

At HMC Lawyers in Calgary, our exceptional Employment Team understands that employment disputes almost always involve very high stakes, irrespective of the workplace. Most employees see their employment as a critical part of their identity, in addition to relying on income and benefits from that employment. Employers, on the other hand, must balance pressing financial, organizational, and other pressing concerns with their obligations to their employees.

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