PAUL KAIHLA September 14 1992



PAUL KAIHLA September 14 1992

Anti-racism rally outside the Ontario legislature: venturing into new territory

Sitting in his office at Toronto’s Hospital for Sick Children last January, Dr. Alan Goldbloom, the hospital’s associate chief pediatrician, was stunned as he read a proposed Ontario law on consent and hospital treatment. The legislation would grant to children aged 12 or over the formal right to refuse medical treatment without parental consent. “I have no qualms about protecting vulnerable adults,” said Goldbloom later, noting that an Ontario law already guarantees people 16 and older the right to make decisions about hospital care, “but this could become ludicrous.” For one thing, he noted, the fear of needles could lead children to refuse vaccinations during a measles or meningitis epidemic. “Most kids who are 12 and 13 don’t like needles or other treatments that hurt,” adds Goldbloom. “They'll do it if their parents tell them to, but with this law, parents can’t make them do anything.” The Consent to Treatment Act is only one of many social-reform measures proposed by Premier Bob Rae’s New Democratic government that would dramatically transform the lives of Ontario’s 10 million citizens.

Goldbloom: a bill that 'interferes with a very normal parental role'

The NDP’s raft of suggested new laws and programs would have far-reaching effects on everything from picket lines to police stations, classrooms to nursing homes, factories to doctors’ offices. In spite of the diversity of those initiatives, a common thread runs through each of the major elements in the NDP’S social reform agenda. Two years after the party’s surprise election victory over David Peterson’s Liberals on Sept. 6, 1990, its declared aim is nothing less than to change the distribution of power and redress what the government perceives as deep-seated social injustices in Canada’s most populous province. “We are empowering people by creating a new set of rights and new centres of power,” Rae told Maclean's last week during a break in a three-day cabinet meeting at a lakeside resort north of Toronto. He added that his government’s objective is to generate “countervailing power that will have an impact where power is very much held by small groups.”

Progressive: Rae’s administration has ventured onto ground where no other North American government has trod—including Canada’s two other NDP provincial governments, in Saskatchewan and British Columbia. One of the most controversial planks in the Ontario NDP platform is what officials describe as the continent’s most progressive labor legislation— a bill that, among other things, would prohibit companies from hiring replacement workers during a strike. It would also ban any union member who wanted to work from going to his job during a strike. And the New Democrats are intent on expanding the pay equity program introduced by the Liberals, already one of the western hemisphere’s most comprehensive efforts to ensure that women are paid as much as men for work of equal value.

Most recently, and perhaps most significantly, Ontario has become the first province in Canada to propose a mandatory employment equity program that would have the effect of requiring privately owned companies to hire and promote women, nonwhites, aboriginals and disabled people.

Ugly: So far, the government’s opponents have taken aim most directly at the proposed labor laws. Business groups and many of the country’s largest employers have argued that the legislation will give trade unions too much power and frighten off investors from Canada’s industrial heartland. Critics also charge that the New Democrats’ approach to empowering vulnerable or disadvantaged members of society—including workers, visible minorities, women, natives, children, the elderly and the disabled—is fundamentally misguided. They claim that some of the programs will hand power to narrowly focused interest groups rather than to needy individuals. Acknowledged one veteran NDP organizer: “We are getting into some very dicey areas. If we are not careful we can create all kinds of tension.”

Indeed, some analysts say that the NDP’S employment equity proposal is a potentially divisive instrument. Declared University of Toronto historian Michael Bliss: “People are being defined by race and gender, and it is profoundly wrong. In a liberal society you think about people in terms of their character, not the color of their skin.” Bliss said that he is worried that the program could produce an ugly backlash. “The government says that it is trying to stop racism and sexism,” he added, “but I think they are raising the awareness of race and sex almost to a fever pitch.”

Rae, a Rhodes Scholar and the son of renowned diplomat Saul Rae, has a lengthy track record as a defender of society’s least privileged. In an interview, the 44-yearold premier said that his government’s proposals would give “ordinary people of all backgrounds and colors and creeds” the legal tools to assert their rights and interests. He added that criticism of the Ontario NDP agenda is based on resistance from elites that do not wish to share their power. “It clearly upsets some in the power structure,” Rae said. “But those people have really got to think about the consequences of economically disenfranchising hundreds of thousands of people—which is what has been happening and will continue to happen unless we make some changes.”

The Canadian Civil Liberties Association, however, has raised concerns about the principle—enshrined in the Rae government’s social-justice proposals—of group-based rights. The association’s general counsel, Alan Borovoy, says that there is a danger that laws which carve out rights for specific groups in society will lead to reverse discrimination. “Even if whites and men in general enjoy a number of advantages because of our society’s heritage of discrimination,” Borovoy said in a brief to the provincial government, “it is not acceptable for any individual white or man to be made to suffer for the sins committed by other people.” 

Picket-line violence: the NDP calls its labor legislation the most progressive on the continent

Victims: In the United States, similar programs aimed at helping women and minorities have come under fierce attack from conservatives and civil-liberties proponents alike. One widely published critic of such measures, University of Rochester historian Christopher Lasch, says that when governments offer benefits to specific groups, they encourage members of disadvantaged minorities to think of themselves as victims of society. “These programs institutionalize a kind of dependency,” Lasch said in an interview. “In the long run, that can only mean a bigger state and a bigger welfare apparatus.”

Still, New Democrat policy-makers say that the proposed changes are necessary to keep pace with Ontario’s evolving population. According to demographers, about 45 per cent of Metropolitan Toronto residents in 2001 will be members of so-called visible minorities, including blacks, Orientals and others of non-European descent.

By the same year, according to government projections, 80 per cent of the people entering the provincial workforce will be women, disabled people, aboriginals and other nonwhites. Said former NDP MPP Ross McClellan, who is now Rae’s chief policy adviser: “When I was a kid, this was a place where the population was largely from the British Isles. Now, our institutions have to adapt to a multicultural and multiracial reality, and government has an important role to play in creating fairness.” Added McClellan: “We are trying to help foster opportunity and equality in our society. We are trying to do that with our jobs agenda, our equity agenda and our social policy initiatives.” The NDP actually began to implement its social-reform agenda five years before it took office. When the Liberals formed a minority government in 1985 with the support of Rae’s caucus, Peterson signed an accord pledging to introduce several NDP policies, including pay equity for women. Now, Rae’s party is moving to strengthen those measures in line with longstanding NDP policies. A new bill that is scheduled for third and final reading this fall will extend pay equity to another 500,000 women working in what provincial officials describe as “pink ghettos”—hospitals, day care centres and other publicly funded institutions that have traditionally been staffed by women. The measure, combined with the existing pay equity program, will cost taxpayers $2.6 billion over the next three years.

Pay equity expansion is the first of several steps planned by the government to change the face of the province’s workforce. Under the proposed Employment Equity Act, introduced in June, private companies with 50 or more workers, the entire 90,000-member provincial civil service, and public sector institutions such as schools and hospitals with 10 or more employees will be required to conduct surveys to determine the percentages of their workforce that consist of women, nonwhites, aboriginals and disabled people. With some exceptions, if the employers’ workforce fails to reflect the demographic composition of the region in which it is located, management would have to establish numerical goals and a timetable for hiring and promoting workers in the target groups, a In setting those goals, compau nies would be allowed to take o into account the skills required for specific jobs and the number of available canE didates among the target groups. (According to the officials responsible for drafting the new law, 50.4 per cent of Ontario residents are women, 8.6 per cent are members of racial minorities, 1.7 per cent are native and 7.4 per cent are physically or mentally disabled.)

Fierce: As envisaged, the employment equity legislation would affect about three-quarters of Ontario’s workforce—more than three million individuals. After it took effect, a newly created Employment Equity Commission would monitor compliance by conducting random audits of employers, and a tribunal would be established to consider complaints that employers had not met their targets. Companies not obeying tribunal rulings could face fines of up to $50,000.

The proposed law would be far tougher than Ottawa’s own employment equity program, introduced by the Conservatives in 1986. Under Ottawa’s system, federally regulated enterprises such as Crown corporations, banks and some telecommunications companies must file annual reports showing progress in hiring women and members of racial minorities. But minority groups have criticized the scheme as ineffective, pointing out that there are no penalties for non-compliance. For his part, Rae said that his government chose to introduce a stronger law because the national program “did not go as far as people wanted.” He added: “There will be a lively debate. The issues are critical.”


  • PAY EQUITY FOR WOMEN: A $1-billion program to extend the principle of equal pay for equal work of equal value to 500,000 public sector women not covered by the existing legislation.
  • EMPLOYMENT EQUITY: New legislation that would compel public and private sector employers to hire and promote more women, nonwhites, natives and the disabled.
  • LABOR REFORMS: The Rae governmeni plans to outaw strikebreakers wake it easier to form a union and guarantee new bargaining units a first contract.
  • ADVOCACY LEGISLATION: Proposed measures would allow children to withhold consent for hospital treatment, and create an advocacy commission to protect the rights of young people, the infirm and others.

Indeed, other attempts to regulate the workplace have already ignited fierce debate in the province. One controversy erupted in June, when the fire department in Kitchener, Ont., rejected a job application from Jake Smola, a 31-year-old self-employed carpenter. Smola, who is married with two young children, says that before submitting his application he took 18 months off work to complete his high school diploma in order to meet the basic requirements for a firefighter’s position. But he was disqualified from consideration after he received a score of 83 per cent on the department’s aptitude test.

Under the city’s employment equity program, white males seeking jobs as firefighters need a mark of 85, while women and nonwhites only require a score of 70.

Cutbacks: Smola has since formally complained about the city’s employment standards to the Ontario Human Rights Commission, arguing that he is the victim of reverse discrimination. He and  his wife, Kim, 30, also collected more than 5,000 signatures on a petition which they ¡5 have submitted to Kitchener g city council. Said Kim Smola, who works at a day care centre: “We wouldn’t be doing this if we were prejudiced. But young males of today are being penalized for wrongs of the past.” She added that employment equity programs should remove barriers to disadvantaged groups, but not confer special status on them. “After all, when they finally gave women the vote they did not give us two votes.”


Leshner and partner Michael Stark: a landmark ruling that extends gay rights

lthough the Rae government is clearly prepared to withstand pressure from opponents of its employment equity program, it may have more difficulty reconciling the competing interests of several of the NDP’S traditional supporters. According to party insiders, union leaders have complained privately to the government about the potential impact of employment equity on the rights of their members. In many cases, union contracts specify that in the event of cutbacks, companies have to implement layoffs on the basis of seniority—a principle known as “last hired, first fired.” In addition, some contracts stipulate that the most experienced workers in particular job classifications should be first in line for promotions. Both provisions could conflict with the government’s stated aim of opening up the labor force to a broader cross-section of society.

As a result, some minority rights activists say that organized labor is potentially as great a threat to fairness in the workplace as are conservatives. Declared Dwight Whylie, a CBC radio news announcer who is president of the Toronto-based Black Business and Professional Association: “There is a mind-set in many parts of the labor movement that people who are not of the mainstream are less qualified and less capable.” For her part, Ontario Federation of Labor (OFL) secretary-treasurer Julie Davis, a close Rae adviser and co-chair of the party’s 1990 campaign, said that her organization strongly supports employment equity, although “lots of discussion and lots of compromises will be needed” during its implementation. The OFL, she added, has taken many steps within its own ranks to combat racism. Of the federation’s 26 board members, eight are women and two are non-white.

Another challenge facing policy-makers is how to define membership in three of the groups targeted by the program: visible minorities, natives and disabled people. Drawing a clear distinction could be particularly difficult in the case of the offspring of interracial marriages, or of the descendants of mixed families. Said Whylie, 56, a native of Jamaica who immigrated to Canada 16 years ago: “The definition of visible minority is always problematic. The point is, are they still visibly darker than the majority in terms of skin hue and hair texture?”

He added that he is not surprised that some liberal whites are uncomfortable with the program. “Inevitably there are going to be dislocations,” Whylie said. “If two people come to your door with equal qualifications, the person who is black is going to get the job. In effect, it’s reverse discrimination. But eventually things will begin to work themselves out.”

The Rae government will also have to fend off claims by other interest groups for inclusion in the employment equity provisions. Gay and lesbian activists have criticized the Ontario NDP for excluding them from the designated groups, arguing that their community also faces discrimination in the job market. Last week, the campaign for homosexual rights gained momentum when the Ontario Human Rights Commission issued a ruling that effectively compels governments and private employers to give gay and lesbian couples the same health and pension benefits currently available to heterosexual partners. The commission’s leader, Catherine Frazee, said later that the ruling, upholding a challenge by 44year-old provincial crown attorney Michael Leshner, would likely serve as a precedent for gays and lesbians across the country.

In its campaign for employment equity rights, the Ontario Coalition for Lesbian and Gay Rights is distributing postcards that endorse its position and urging supporters to mail them to Rae’s office. Rae, however, told Maclean’s that identifying gays as a designated group under the legislation could intrude on individual privacy. Said the premier: “The challenge with respect to gays and lesbians as part of a formal employment equity program is that you’re dealing in an area of life where not everyone wants to identify themselves in terms of their sexual orientation.”

Compared to the employment equity bill, the proposed Consent to Treatment Act and related legislation known as the Advocacy Act have attracted relatively little public attention. But in some respects, the aims of the bills are similar: each is designed to assist classes of people that have traditionally lacked a strong voice in society. Currently, the law says that individuals have to be 16 or older to consent to medical treatment in a public hospital; the proposed law would have the effect of lowering the age to 12—and in some cases even younger. Children of any age already have the right to obtain, or refuse, medical treatment outside a hospital, but they can be overruled if a doctor decides that they are incapable of making a competent decision. Under the new law, children 12 and older could challenge doctors’ decisions and request to meet with a provincially employed “rights adviser,” regardless of their parents’ views. Even if the adviser supported the doctor, the child could still appeal the finding to a review board.

Complains: Goldbloom, who testified before a legislative committee examining the proposed law last month, says that he opposes the bill in part because “it interferes with a very normal parental role”—that of responsibility for a child’s welfare. But he also complains that many of the bill’s proponents harbor an unjustified distrust of the medical profession. “They make it sound like we hold children down for internal pelvic examinations against their will,” he said in an interview. Another critic, Diane Cresswell, spokeswoman for the Ontario Association of Children’s Aid Societies, told the committee that the legislation was “likely to promote family conflict even among well-functioning families.” Sparks: In fact, the so-called rights advisers would be available to counsel not only children but a wide range of people with physical or mental disabilities, as well as frail elderly people. The NDP says that the advocacy service would be particularly valuable for residents of nursing homes who are unhappy about their treatment.

Overseeing the service would be a newly created Advocacy Commission, which would be dominated by people from organizations representing vulnerable groups such as paraplegics, AIDS patients, senior citizens and the mentally ill.

Citizenship Minister Elaine Ziemba, who is responsible for the advocacy bill, has estimated that the commission will have a budget of about $22 million a year and will employ about 150 rights advisers across the province. Those advisers would have substantial powers, including the right to enter private homes without a warrant if they believe that a “vulnerable person” inside is at risk or wants the services of an advocate. In comparison, police can only enter a home without a warrant if they believe that a life is at risk, or that a person may suffer grievous bodily harm.

Rae’s government is also working to reform the education system in a way that would assist groups that are now perceived to be disadvantaged, including many black students and children of recent immigrants. In the past, students entering grade nine were directed into three levels of classes based on academic ability. The system, known as streaming, was intended in part to ensure that brighter students would be allowed to flourish with their intellectual peers. But NDP policy adviser McClellan says that minority children were often unfairly streamed into vocational programs, while the children of middle-class couples went on to university. As a result, Education Minister Tony Silipo has ordered an end to streaming in Grade 9 beginning in the fall of 1993, which means that all students will be placed in the same pool. He has also privately said that the province intends to destream Grade 10.

As well, Maclean’s has learned that NDP policy-makers are studying how to transfer some decision-making powers from school boards to voluntary parents’ councils that would oversee individual schools. Said the director of education for a large Toronto-area school board, who commented on condition of anonymity: “This decentralization is reckless. Parents were not bom with total enlightenment to make decisions.”

Whether in the workplace, the classroom or a hospital emergency ward, however, the Ontario government’s policies appear to be based on a conviction that there have to be additional checks on the powers of those who have traditionally wielded control. Said Rae: “What we are trying to do is redress the imbalances of the marketplace by creating alternatives to the centres of power.” He added that the government’s anti-establishment reforms to Ontario’s labor and employment laws and health-care policies were bound to spark opposition. “There are those who don’t like it. But there is always going to be resistance to social change, particularly when we ask some people to share power.” In fact, in many cases the government is prepared to go beyond mere requests for cooperation by dictating the terms of a new order—one that would place Ontario in the front lines of a social revolution.