BOARD OF INQUIRY (Human Rights Code) IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H. 19, as amended; AND IN THE MATTER OF the complaint by Michael McKinnon alleging reprisal, discrimination in employment on the basis of race, ancestry, ethnic origin and harassment by Her Majesty the Queen in Right of Ontario (Ministry of Correctional Services), Frank Geswaldo, George Simpson, Phil James and Jim Hume. BETWEEN: Ontario Human Rights Commission - and - Michael McKinnon Complainant - and - Her Majesty the Queen in Right of Ontario (Ministry of Correctional Services), Frank Geswaldo, George Simpson, P. James and Jim Hume. Respondents DECISION Adjudicator H. Albert Hubbard : Dates April 28, 1998 : Board File No: BI-0115-92 and BI-0033-95 Decision No. 98-010 : Board ofInquiry {HumanRights Code) 150 EglintonAvenue East 5thFloor, Toronto ON M4P 1E8 Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946 TTY: (416) 314-2379 / 1-800^24-1168 / BOARD OF INQUIRY (Human Rights Code) Ontario IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H. 19, as amended; AND IN THE MATTER OF the complaint by Michael McKinnon alleging reprisal, discrimination in employment on the basis of race, ancestry, ethnic origin and harassment by Her Majesty the Queen in Right of Ontario (Ministry of Correctional Services), Frank Geswaldo, George Simpson, Phil James and Jim Hume. BETWEEN: Ontario Human Rights Commission - and - Michael McKinnon Complainant - and - Her Majesty the Queen in Right of Ontario (Ministry of Correctional Services), Frank Geswaldo, George Simpson, P. James and Jim Hume. Respondents DECISION Adjudicator H. Albert Hubbard : Dates April 28, 1998 : Board File No: BI-0115-92 and BI-0033-95 Decision No. 98-010 : Board ofInquiry (Human Rights Code) 150 Eglinton Avenue East 5thFloor, Toronto ON M4P 1E8 Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946 TTY: (416) 314-2379 / 1-800-424-1168 APPEARANCES ) Ontario Human Rights Commission Paul Martial, Counsel ) ) ) Michael McKinnon, Complainant David Wright, Counsel ) ) Respondents: Ministry of Correctional Services Frank Geswaldo George Simpson Dennis Brown, Counsel Phil James John Zarudny Jim Hume Michael Fleishman PART INTRODUCTION I - 2 PART EXPOSITION AND ANALYSIS OF THE EVIDENCE II - 3 1. General Matters 3 2. Appropriate Forum 5 3. The First Complaint and its Setting: racial slurs 6 4. The Second Complaint 65 5. Relevant "Third-Complaint" Circumstances 102 6. Similar Fact Evidence and Other Relevant Post-Complaint Circumstances 127 PART III - LIABILITIES 149 1. Liability for poisonous atmosphere 149 2. Liability of the Ministry of Correctional Services 151 3. Liability of Frank Geswaldo 154 4. Liability of Phil James 156 5. Liability of Jim Hume 158 6. Liability of George Simpson 160 7. Liability in respect of the OM14 Competition 161 PART IV - THE MATTER OF REMEDIES 163 1. General 163 2. Special Damages and Related Matters 167 3. Other Remedies Sought 173 PART V - ORDERS 174 Digitized by the Internet Archive 2014 in https://archive.org/details/boi98_010 PART INTRODUCTION I - In his complaint of November 29, 1988, Mr. McKinnon (the Complainant), a person of native Canadian ancestry, alleges that his right to equal treatment in employment without discrimination, and his right to be free from harassment in the workplace, because of race, ancestry and ethnic origin, in contravention of (what are now) s.5(l) and (2) and s.9 of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the "Code"), were infringed by the Ministry of Correctional Services (the "Ministry"), and by Messrs Frank Geswaldo, George Simpson and Jim Hume. Mr. McKinnon's complaint ofJune 28, 1990, alleges that, in contravention of (what are now) s.8 and s.9 of the Code, these same Respondents together with the Respondent Phil James, infringed his right to be free from actual or threatened reprisal for having claimed and sought to enforce his rights under the Code. The relevant provisions of the Code are as follows: 5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, ... ethnic origin ... (2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or by another employee because of race, ancestry, ... ethnic origin... 8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act ... without reprisal or threat of reprisal for so doing. 9. No person shall infringe or do directly or indirectly, anything that infringes a right under this Part. 10. (1) In Part I and in this Part, "harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. 41. (1) Where the board of inquiry, after a hearing, finds that a right of the Complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the board may, by order, (b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish. -2- 45. (1) For the purpose of this Act, except subsection 2(2), subsection 4(2), subsection (2), section 7 and subsection 44 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association or employers' organization. Although the Complainant filed a third complaint against these Respondents on April 2, 1992, the question of liability in relation to it was not before me because the Ontario Human Rights Commission (the Commission) decided not to request the appointment of a Board of Inquiry to hear that complaint. However, while that issue is confined to the allegations made in the first two complaints, in view of the nature of the remedies sought by the Commission and the Complainant, for the reasons set out in my interim decision of April 9, 1996, evidence was admitted regarding circumstances and events alleged to have occurred after June 28, 1990, involving racial discrimination and harassment affecting the environment, or atmosphere, of the Complainant's workplace, known as the Metropolitan Toronto East Detention Centre (the Centre). The hearing of these complaints took place in Toronto over a period of forty-five days, commencing February 7, 1996 and ending October 21, 1997, and the record of these proceedings (for which there is no transcript) consists of scores ofaudio cassettes or tapes, the clarity of many of which leaves much to be desired, together with 246 exhibits. While there is some disagreement as to the range of remedies this Board is empowered by the Code to order, there is no dispute between the parties as to the law regarding the issue of liability, which, in this case, turns entirely on the credibility of the witnesses and the inferences to be drawn from their testimony. -3 - PART H EXPOSITION AND ANALYSIS OF THE EVIDENCE - 1. General Matters The Complainant began his career as a corrections officer with the Ministry in December of 1977 at the Centre, and it is there that all the events involved in these complaints are alleged to have occurred and where, except for a brief interruption, he has been continuously employed ever since. Annual and special assignment "Performance and Review Report" appraisals covering this entire period were not placed before me, but those that were made part of the record by the Complainant (Exhibits 4 to 9, inclusively) were clearly positive, ranking him on a numerical scale as a "very good" to "excellent" corrections officer in every category of assessment. While over the course ofthis long span ofemployment he was the subject of occasional managerial criticism (the validity of which is at issue), there is nothing to suggest that the Complainant's general performance record is less than commendable. Despite ready access to the records, the Respondents did not provide any performance appraisal reports suggesting anything to the contrary, and it was the consistent evidence ofvirtually all the witnesses that the Complainant was dedicated, conscientious and meticulous in his work. Subject to some gaps, the period covered by these exhibits runs from January 1, 1984 to December 31, 1991, and it should be noted that one of these appraisals contains a marginally negative observation. Although indicating that his rating in respect of "working relationships with fellow officers and supervisors" ranged from "satisfactory" through "commendable" to "exceptional", Exhibit 1 also notes that the Complainant "on occasion encounters some difficulty when dealing with some supervisors". The Complainant's explanation was that he found some of the supervisors to be complacent and defensive about safety issues when questioned by him in that regard. Indeed, his pre-occupation with such issues was made clear by his own testimony and that of everyone else whose evidence addressed that aspect of the matter. The interruption in the Complainant's employment with the Ministry to which reference has been made was occasioned by an incident in 1982 involving a fight amongst prisoners in a section of the Centre known as the 5C unit. The staff members who responded to this apparently drug- -4- related altercation physically separated the two main combatants and, as an apparent consequence of their intervention, one of these prisoners suffered a cheek injury. This led to the suspension of six officers who were alleged to have used excessive force. The other prisoner involved in the incident was found dead in a cell a few weeks later. Although subsequently dismissed for allegedly interfering with the investigation into this incident, following a grievance hearing the Complainant and three other officers were later re-instated with a three month suspension. One of two general submissions made by the Respondents at the outset of their argument was that the Complainant harboured a festering bitterness over this 1982 incident which fuelled his many grievances and led ultimately to the filing of his complaints with the Commission. The other was the suggestion that the matters before me had to do with labour relations rather than human rights. Neither of these submissions appears to advance the Respondents' position, and it is convenient to dispose of them before dealing with the evidence relating to the specific events primarily in question here. In my view, not only is the suggestion that the Complainant's complaints were spawned by the 1982 incident pure conjecture ofan improbable character, but it is virtually irrelevant. While two of the Respondents' witnesses so surmised (Messrs Dvorak and Windebank), they offered no A concrete evidence to support that supposition. few other witnesses called by them indicated that they found the Complainant had changed following this incident, but they did not even try to link this perceived change with the pursuit of his human rights complaints. Moreover, the Complainant's denial that the incident had anything to do with his complaints is far more plausible since none ofthe individual Respondents had acted in any adverse manner towards him regarding that incident so as to trigger such a reaction. Indeed, Mr. Hume was not yet at the Centre, and Messrs Geswaldo and James were simply uninvolved co-workers of no higher rank at the time. Be that as it may, if the Complainant's allegations are true they provide ample motivation and, indeed, justification, for the laying of his complaints; and if they are untrue the suggestion that he acted out of revenge, or was driven by some sub-conscious resentment over that incident to go to the Commission some six years later with groundless complaints, is entirely unnecessary to the Respondents' case and, in any event, lacks probative value.