In the last issue,
Canadian Employment Law Today
looked at a case out of Nova Scotia where a board of inquiry from the Nova Scotia Human Rights Commission ruled an employer’s use of the term “kemosabe” did not constitute a racial slur. (CELT #427, Dec. 8, 2004.)
Now the Ontario Court of Appeal has upheld earlier rulings by a board of inquiry of the Ontario Human Rights Commission that penalized the Ontario Ministry of Correctional Services for failing to stop systemic racism among its employees over the last 16 years. The situation first came to light in 1988 when Michael McKinnon, an Aboriginal jail guard at a provincial prison, filed a complaint with the commission following a disturbing and almost unbelievable series of events at the jail.
The case: Ontario v. McKinnon
Michael McKinnon, an Aboriginal, began his career as a corrections officer in December 1977 at the Toronto East Detention Centre. He was generally considered to be a good worker, though he was suspended once in 1982 — along with five other guards — for allegedly using excessive force while breaking up a fight among inmates.
During his time at the centre he was subjected to numerous incidents of racial discrimination. On Nov. 29, 1988, he reached the breaking point and filed a complaint with the Ontario Human Rights Commission over his treatment.
McKinnon alleged he had been referred to by both supervisors and co-workers as “chief,” “wagon burner,” “McInjun,” “Geronimo,” and other offensive terms. His wife, who was also an Aboriginal and worked as a jail guard, was subjected to similar language.
But Aboriginal workers were far from the only minorities who were picked on. Offensive racist language was flying around the workplace. Black workers were called “niggers,” Chinese workers were called “chinks,” Italians were called “wops” and Pakistanis were called “pakis,” according to witnesses who testified in front of the commission during hearings in 1998. Stronger and even more offensive language was also used.
One employee who testified called the centre “the worst work environment I had ever worked in.” Another said he took a demotion just to “get out of there.”
But the problem went beyond offensive language. One bizarre incident in the early 1980s involved a number of workers. They donned headbands with feathers and gleefully awaited McKinnon’s arrival in the admitting and discharge area of the jail. When he walked in, they greeted him with war whoops, dancing and laughter. There were numerous other examples, and the Ontario Human Rights Commission ruled in favour of McKinnon and imposed a number of penalties on the Ministry of Correctional Services and some of the employees in its 1998 ruling.
Brief history of McKinnon
As a result of its findings the board made a number of orders to the ministry. They were designed to remedy the workplace environment and to compensate McKinnon. It awarded damages totalling $20,000 from the ministry and some co-workers.
It also ordered the ministry to compensate him for the difference between his salary and actual remuneration received by him while he was on stress-related sick leave caused by the racism. The ministry also had to promote McKinnon and his wife to positions they had been denied and it had to relocate one of the individuals who had been harassing him.
One order required the ministry to establish a human rights program, approved by the Ontario Human Rights Commission, and deliver it to employees within six months. The ministry prepared a program and delivered it to employees in 1999.
McKinnon returned to work. Despite the board’s orders, he found the work environment as poisoned as ever. He wrote to the board on March 2, 1999, and asked it to consider his new complaints when it reconvened to discuss the progress the ministry was making on its orders.
The ministry challenged the board’s jurisdiction to do so on the basis that these were fresh complaints unrelated to the implementation of the training program, the only outstanding order at the time of the hearing.
Therefore, the ministry argued, McKinnon’s complaints required a new investigation by the commission. But in a decision made in May 1999 the board said it had jurisdiction to hear allegations of continued discrimination and reprisals related to the implementation of its orders in this case.
The ministry sought judicial review of that decision. Its application was heard in December 2000 by the Ontario Divisional Court and was dismissed on March 21, 2001. The court held the board was not precluded from hearing the new complaints because it has a remedial authority of a supervisory nature to facilitate the implementation of its order.
32 days of hearings
Ending in July 2002 the board held 32 days of hearings related to the McKinnon case. Much evidence was heard relating to workplace events affecting him directly in the four years since the original decision. The objection of the ministry that there was no jurisdiction to admit this evidence, at least without submissions on the relevance of such evidence to the implementation of the original order, was not allowed.
The board issued its second report on Nov. 29, 2002. Essentially it said the ministry did not act in good faith in attempting to comply with the 1998 order and that, as a result, the atmosphere in the workplace remained racially poisoned.
The board said the root of this problem remained the ineptitude, indifference and bad faith of management at the jail in dealing with race issues.
The board made a series of further orders requiring extensive additional training within the centre and ministry-wide, publication and explanation of the decision in the workplace and specific relief to McKinnon in the form of a paid leave of absence pending rectification of the workplace environment.
A motion was made to the Ontario Divisional Court in March 2003 to stay the order of the board of inquiry. In December 2003 the Ontario Divisional Court ruled the board was within its rights to hear McKinnon’s new evidence without opening a new case.
“The finding of a poisoned workplace in which the complainant was continuously and repetitively harassed by his co-workers, made by the tribunal at its original hearing in 1998, was found in the Nov. 29, 2002, decision to have continued unabated,” the court said in that ruling.
The tribunal attributed the cause for the continuing problems, in part, to the failure of the ministry to comply with the training order. Therefore it was necessary for the board to hear new evidence to determine whether there had been compliance.
“This does not appear to us to be embarking on a fresh inquiry,” the court said. “Rather it is the exercise of the tribunal’s supervisory role to ensure delivery of an effective remedy.”
At the same time the court cautioned its ruling did not mean that supervisory jurisdiction is unlimited “so as to invite fresh post-decision evidence of differing acts of discrimination from those originally adjudicated.”
“We are confronted in this appeal with a unique situation in which outrageous discrimination continued unabated for a period of approximately 15 years and in which the tribunal’s original remedial orders appear to have been at least in part subverted,” the court said.
The ministry appealed that decision. On Dec. 6, 2004, the Ontario Court of Appeal handed down its ruling, agreeing with the board and the lower court.
“We share the view of the Divisional Court that it was open to the tribunal, as part of its ongoing obligation to oversee implementation, to recast its original orders to meet what it found to be a continuing problem,” the Court of Appeal said.
For more information:
Ontario v. McKinnon
, 2004 CarswellOnt 5191 (Ont. C.A.)
|McKinnon’s reaction: ‘A David-and-Goliath issue’|
In an interview with the Globe and Mail shortly after the ruling, Michael McKinnon said he was “very happy” with the Ontario Court of Appeal’s decision.
“I hope somebody has the political courage to stand up at the plate and remove the senior officials and managers who contributed to this poisoned work environment,” he said.
McKinnon was upset that those who had used racist slurs against him had been essentially unpunished and had “flourishing” careers. He also said he had paid dearly, as has his wife, for trying to put a stop to the racism.
“Once you try to bring about change, you become a target,” he said. “It is a David-and-Goliath issue.”