Joseph v. North York General Hospital, 1986 CanLII 6548

Joseph v. College of Nurses of Ontario (No. 2)

1986-02-17

Ontario Board of Inquiry

Cynthia Joseph Complainant

v.

North York General Hospital Respondent

Date of Decision: February 17, 1986

Place: Toronto, Ontario

Before: Peter A. Cumming

Appearances by: J.A.M. Judge and J.C. Field, Counsel for the Ontario Human Rights Commission and Cynthia Joseph C.G. Riggs and M. Tims, Counsel for North York General Hospital

RACE, COLOUR AND PLACE OF ORIGIN — employment terminated on basis of race

Summary: The board of inquiry finds that Cynthia Joseph was not discriminated against because of her race or colour by North York General Hospital.

Cynthia Joseph was born in India of Burmese parents. She was employed by North York General Hospital as a psychiatric nurse from 1975 to 1980. For the first three years of her employment she received excellent evaluations and was considered a competent and caring nurse.

In 1978, however, the administrator of her unit gave her a more negative evaluation, and Ms. Joseph eventually complained that she was being harassed by her administrator over inconsequential details of nursing care and that this harassment was due to her race and colour.

The board of inquiry finds that the administrator was not motivated by racial prejudice, but corrected Ms. Joseph, when she made errors in carrying out her duties, in a constructive and appropriate way. Ms. Joseph refused to accept the criticism or correction and the work relationship deteriorated as a result. Ms. Joseph's employment was eventually terminated by the hospital.

The board of inquiry finds no fault on the part of the hospital or the administrator in charge of Ms. Joseph's unit.

The complaints are dismissed.

INTRODUCTION

1The Complainant, Ms. Cynthia Joseph, filed a Complaint dated October 1, 1979 (document #1, Exhibit #3), and a further Complaint dated January 25, 1982 (document #4, Exhibit #3), under the Ontario Human Rights Code, R.S.O. 1980, c. 340, as amended (hereafter, the "Code").

2The second Complaint principally refers to facts that occurred after the filing of the first Complaint, but is addressed to the same issues as the first. Both Complaints allege discrimination in the terms of the employment of Ms. Joseph, and racial harassment, and the second Complaint alleges as well both a reprisal, and suspensions and termination in respect of her employment. The alleged grounds of discrimination are race, color, ancestry and place of origin, contrary to section 4(1)(b), (c), (d) and (g), section 5(2) and section 6(a), (b), (c) and (d) of the Code. These provisions state:

4(1) No person shall,

(b) dismiss or refuse to employ or to continue to employ any person;

(c) refuse to train, promote or transfer an employee;

(d) subject an employee to probation or apprenticeship or enlarge a period of probation or apprenticeship; (or)

(g) discriminate against any employee with regard to any term or condition of employment,

because of race . . . colour . . . ancestry, or place of origin of such person or employee.

5(2) No self-governing profession shall exclude from membership or expel or suspend any person or member or discriminate against any person or member because of race . . . colour . . . ancestry or place of origin.

6 No person shall,

(a) refuse to employ or to continue to employ any person;

(b) threaten to dismiss or threaten to penalize in any other way any person in regard to his employment or any term or condition thereof;

(c) discriminate against any person in regard to his employment or any term or condition thereof; or

(d) intimidate or coerce or impose any pecuniary or other penalty upon any person

on the ground that such person

(e) has made or may make a complaint under this Act;

(f) has made or may make a disclosure concerning the matter complained of;

(9) has testified or may testify in a proceeding under this Act; or

(h) has participated or may participate in any other way in a proceeding under this Act.

3Racial discrimination in employment has been a most insidious, and invidious form of discrimination. The common law did not provide any protection to individuals from discrimination because of race: Bhadauria v. Bd. of Govs. of Seneca College of Applied Arts and Technology, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181 [2 C.H.R.R. D/468]. Equality rights are different from the other civil liberties (such as freedom of speech or freedom of association) in that equality rights require positive legislative support for their existence, which is done through human rights legislation, as seen by the above provisions of the Code. Moreover, protection from discrimination by governments because of race is now constitutionally entrenched through section 15 of the Canadian Charter of Rights and Freedoms (Part 1, Constitution Act 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)).

4Ontario first attacked racial discrimination in employment by enacting The Fair Employment Practices Act, 1951, S.O. 1951, c. 24. Section 4 of the 1980 Code, or its successor provision in the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, proclaimed in force June 15, 1982, has been considered in numerous human rights proceedings, including more recently: B.L. Mears et al. v. Ontario Hydro et al. (1984), 5 C.H.R.R. D/1927 (Chairperson Frederick H. Zemans) involving the ranking of employees for layoffs; Ganganelli Almedia v. Chubb Fire Security Division of Chubb Industries Limited (1984), 1984 CanLII 5036 (ON HRT), 5 C.H.R.R. D/2104 (Chairperson John D. McCamus) involving the failure to promote; Walter Hyman v. Southam Murray Printing et al. (1984), 1984 CanLII 5039 (ON HRT), 5 C.H.R.R. D/2254 (Chairperson John D. McCamus) involving discipline and dismissal of an employee (the complaint being dismissed); Harjit S. Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police and Inspector William Dickson (1983), 1983 CanLII 4719 (ON HRT), 4 C.H.R.R. D/1757 (Chairperson Peter A. Cumming) where the law concerning racial harassment is considered at D/1764 to D/1771; and Scott v. Foster Wheeler Limited (1985), 1985 CanLII 5246 (ON HRT), 6 C.H.R.R. D/2885 (Chairperson lan Hunter).

THE EVIDENCE

5Ms. Joseph, age 41, was born in Bombay, India of Burmese parents during World War II. She later moved to Rangoon, Burma with her family after the War. Ms. Joseph was a scholarship student at teachers' college and upon graduation becoming a high school teacher for some four years. She immigrated to Canada in 1966, taking a pre-nursing course in 1967 at Kingsway College in Oshawa, and then completed her qualifications as a registered nurse at Branson Hospital in North York from 1968 to 1970. From 1970 to 1975 she worked at Branson as a nurse, specifically in the field of her specialty, psychiatric nursing. Ms. Joseph was never disciplined for any reason in her work at Branson and left that hospital on good terms (Vol. I, pp. 70, 71).

6In 1975 she was hired as a psychiatric nurse at North York General Hospital by Ms. Gail Ouellette, being assigned to "Unit 7-West," which is a psychiatric unit. Ms. Joseph included amongst her references one of the physicians at North York General Hospital, who provided a "good reference" (Vol. VIII, p. 1).

7Each unit at North York General Hospital has as its head a unit administrator who is in overall charge of the unit, the one for 7-West being Ms. Gail Ouellette. Ms. Oueilette in turn reported to an Assistant Director of Nursing, Ms. Charmaine Caron, who in turn reported to the Director of Nursing, Ms. Helen Evans, at the time relevant to this matter.

8Ms. Ouellette had become a registered nurse in 1963, assumed positions in various hospitals, and came to North York General as a staff psychiatric nurse in Unit 7-West in 1969, becoming a team leader in 1970, the acting unit administrator in 1973, and in 1974 the unit administrator which position she continues to hold.

9Unit 7-West has about 37 in-patients, at the times relevant to this matter four team leaders (until 1983, when an assistant unit administrator replaced the team leaders), 12 registered nurses on staff, and three part-time nurses (Vol. VII, pp. 8, 9). There would be eight nurses on the day shift, including two team leaders, with five to six nurses on the evening shift including one team leader, and two nurses on the night shift with no team leader. The patients would include some who are schizophrenic, have personality disorders, have manic-depressive psychosis, or might have any one or more of several other forms of mental illness. Quite obviously, the work of the medical, nursing and other staff on 7-West is extremely important and demanding as they deal with critical issues of health care in respect of seriously ill patients within their charge.

10There is another unit, 7-North, on the same floor of the hospital, which is a psychiatric unit as well, with the same structure as Unit 7-West. With some 73 psychiatric beds in total, including those of Unit 7-West, North York General Hospital has the largest psychiatric department of any general hospital in Canada (Vol. VII, p. 122).

11The unit administrator, who works during the day shift, sets the objectives for the unit, manages the overall patient-control activities on the floor, communicates with patients and staff, and is responsible for hiring, educating and evaluating staff (Vol. VI, p. 11). In particular, included within Ms. Ouellette's duties is the annual evaluation of nurses working in her unit

12Ms. Ouellette regards the annual evaluations as "a staff development tool (which) . . . provides an opportunity to identify strengths so they can be capitalized on, and to identify weaknesses so they can be worked on" (Vol. VII, p. 21).

13As mentioned, at the times pertinent to this case, under the unit administrator were two "team leaders" who were "group 3" nurses, and each team had five or six general duty or staff nurses. The team leaders served as co-ordinating, in-charge nurses, with the general duty or staff nurse's role being to assess, plan, implement and evaluate patient care (Vol. VI, p. 11).

14Ms. Joseph was a member of "team 3" on Unit 7-West, her job description as a "General Staff Nurse Group 2" being filed as an exhibit (p. 125, Exhibit #3). These general guidelines for all group 2 nurses were developed further by more specific guidelines in 1977 for a nurse on 7-West (see p. 141, Exhibit #3).

15A so-called "primary nursing system" was established in 1977 so that "all patients on the unit would have nurses working with them consistently throughout their hospital stay" (Vol. VII, p. 13). The version of primary nursing adapted on 7-West involved the continued use of the team leaders as resource, co-ordinating, in-charge people (Vol. VII, p. 14).

16With the implementation in 1977 of what can be called a "modified primary nursing scheme," a particular nurse was made primarily responsible for the care, treatment and needs of the three or four patients assigned to that nurse. With the "primary nursing" approach (see Exhibit #4), the objective was to ensure that a particular nurse was most familiar with the nursing care plan devised for, and the treatment being accorded to, the particular patients under her charge.

17There was considerable evidence given about the "team" approach in contrast to the "primary nursing" approach (Evidence, Vol. I, pp. 81, 82, pp. 122-127). However, although the team leader role lessened with the shift toward primary nursing, the team leader position was maintained until 1983.

18There are three nursing shifts at the hospital, the day shift (7:30 a.m. to 3:30 p.m.), the afternoon shift (3:30 p.m. to 11:30 p.m.) and the night shift (11:30 p.m. to 7:30 a.m.). The work of a psychiatric nurse is varied and demanding. Duties include taking patients for "shock treatment," administering medicine, attending clinical conferences together with the physicians, occupational therapists, psychologists and other nurses, leading or co-leading with another nurse one of the four types of group therapy sessions, attending staff meetings, cleaning up, revising nursing care plans, helping the patients in recreational activities, charting and recording patient care and reporting to superiors (Evidence, Vol. I, pp. 84-95).

19There are two multidisciplinary teams on the unit, each of which includes an occupational therapist, social worker, psychologist, nurses, and a psychiatrist who is ultimately responsible for the patient treatment. On admission, a "Nursing Care Plan" is started for the patient by the primary nurse in collaboration with the multidisciplinary team. The teams meet once or twice a week to review the progress of a patient, and decisions are made as to the treatment. Short and long term goals for the patient are set forth in the Nursing Care Plan.

20Ms. Joseph satisfactorily completed her three month probationary period at North York General Hospital in 1975, becoming a permanent employee.

21Ms. Ouellette's first appraisal of Ms. Joseph, done July 8, 1975, (pp. 12, 13, Exhibit #3) was quite laudatory. Ms. Ouellette noted that Ms. Joseph:

. . . had adapted quickly to 7-West and is a valuable addition to the staff. She is a mature and trustworthy nurse. . . (p. 13, Exhibit #3).

The evaluation stated further (p. 13, Exhibit #3);

. . . Her interpersonal relationships are excellent, and Ms. Joseph communicates effectively, and is able to accept constructive criticism . . .

22The next evaluation, April 13, 1977, (pp. 14, 15, Exhibit #3) was also very favourable:

. . . Ms. Joseph is functioning very well as a primary nurse therapist and member of the health team on 7-West . . . (p. 15. Exhibit #3).

23Similarly, the April 21, 1978 evaluation (p. 16, Exhibit #3), being the third evaluation of Ms. Joseph, was generally quite favourable. On the whole, Ms. Joseph was given an "above average" rating in the 1978 evaluation (p. 16, Exhibit #3, Vol. VIII, p. 34). Ms. Ouellette felt she "had performed very well, to this point in time" (Vol. VIII, p. 34). Thus, for about the first three years, Ms. Joseph considered her relationship with Ms. Ouellette to be satisfactory (Vol. IV, pp. 6, 7), and Ms. Ouellette clearly saw Ms. Joseph as a very satisfactory and valuable staff nurse.

24However, Ms. Joseph did quarrel with minor aspects of the 1978 evaluation (at page 17, Exhibit #3) Ms. Ouellette's evaluation included the comment:

. . . Ms. Joseph is oriented to the fact that social needs of the patient . . .

However, when the basic needs have to be met, must consider them a priority. . . (Vol. IV, p. 9)

25Ms. Joseph considered this (after reflection due to her inferences from later incidents, to be discussed) to be "an indication of harassment" (pp. 9, 10, 12, Vol. III). She opined that "a lot of" unit administrators at North York General Hospital use the evaluation as "an intimidating tool" (Vol. IV, pp. 10, 11). However, Ms. Ouellette's above-stated comment in the evaluation was based upon an incident in respect of a patient, as Ms. Joseph was well aware (Vol. IV, pp. 13, 14).

26In what is referred to as #19 of the 1978 evaluation form (p. 17, Exhibit #3), Ms. Ouellette had commented:

. . . Generally Ms. Joseph's approach to patients is to attempt to get them on a feeling level. All aspects of the patient care must be considered. There are times Ms. Joseph becomes very protective of her patients, an effort must be maintained to remain objective. Ms. Joseph's performance in groups 1 and 2 is good. Ms. Joseph seems to be easily frustrated with groups 3 and 4. A review of the group guidelines would be helpful on occasion. Ms. Joseph has her new patient's interests at heart . . . (Vol. IV, p. 15).

27Ms. Joseph could not see this mildly negative comment as constructive criticism. Rather, she disagreed with the criticism, and saw the comment (after reflection due to her inferences from later incidents, to be discussed) as part of a "campaign of harassment" (Vol. IV, pp. 15, 16).

28In doing the evaluation, the nurse being evaluated takes the blank form and rates herself in the various categories. Then the evaluating unit administrator rates the nurse, and finally the two together agree on a rating if possible, which is stated, or the category is left blank if there is not agreement.

29There were many categories in the 1978 evaluation where Ms. Joseph gave herself a given performance level appraisal, while Ms. Ouellette gave a higher rating, and the appraisal was raised into the higher category upon their review together (Vol. IV, p. 17). That is, Ms. Ouellette ranked Ms. Joseph higher in some categories than Ms. Joseph ranked herself. Surely this attests to Ms. Ouellette's good intentions in so far as the mildly negative comments on that evaluation are concerned. Ms. Ouellette's criticisms were intended to be constructive.

30The 1978 evaluation also made reference to a conflict that Ms. Joseph had had with another group 3 nurse. It is clear from Ms. Joseph's own testimony that she did have a conflict over the implementation of primary nursing with her then team leader, Ms. Mary Ellis. Ms. Ouellette had two meetings with Ms. Mary Ellis and Ms. Joseph to try and resolve the conflict (Vol. I, pp. 11, 8, 130).

31Ms. Joseph described the conduct of her team leader, Ms. Mary Ellis, with whom she had the conflict, as constituting "abusive power" (Vol. IV, p. 20), and later referred to another team leader, Ms. Marie Williams, with whom she had a disagreement about the removal of clothes of a patient as "threatening the patient" (Vol. IV, p. 32). Ms. Ouellette testified that Ms. Mary Ellis "from time to time . . . could come on quite strong" (Vol. VII, p. 27) but Ms. Ouellette spoke to her about this (Vol. VII, pp. 40, 41) with the result that she modified her approach.

32Ms. Ouellette testified that the April, 1978 evaluation report discussion between herself and Ms. Joseph took three and a quarter hours, with Ms. Joseph rejecting Ms. Ouellette's criticisms. In her testimony, Ms. Ouellette explained all of the detailed criticisms in the evaluation very well. It is obvious that her criticisms were well-founded from her perspective, and given with a constructive intent (Vol. VII, pp. 30-40). The criticisms involved minor incidents that were relatively insignificant as shown by the overall favourable evaluation. However, it is obvious that Ms. Joseph was unable to accept these minor criticisms as being intended to be constructive.

33Ms. Ouellette testified that at this time Ms. Joseph accused her of "spying on her," and of attempting to "screw" her. Ms. Ouellette said that she told Ms. Joseph she might be losing her perspective and offered her a medical leave of absence but this was refused (Vol. VII, pp. 38, 39; Vol. VIII, p. 37). Ms. Ouellette testified that she felt "that the hostility was coming over to me, around the issues of authority" (Vol. III, p. 59) and suggested a medical leave because "(t)ime off helps psychiatric nurses gain their perspective" (Vol. VIII, p. 63).

34Ms. Ouellette noted on the 1978 evaluation that:

this conflict (being the one between Ms. Joseph and her then team leader, Ms. Mary Ellis) . . . .has been transferred to myself, with similar issues . . . (p. 18, Exhibit #13).

35Ms. Joseph testified that she disagreed the conflict had been transferred to Ms. Ouellette and added a comment to this effect on her evaulation (Evidence, Vol. I, p. 134).

36Ms. Ouellette testified that thereafter she found "Ms. Joseph very critical of anything that was happening on the unit" (Vol. VII, p. 42). Ms. Ouellette testified that "a lot of times things would go along fairly smoothly unless I attempted to point out any concerns that I had related to patient care" (Vol. VII, p. 60). Ms. Ouellette said that Ms. Joseph felt that the staff's needs were being put ahead of those of the patients, and Ms. Joseph would "not accept what I had to say" (Vol. VII, p. 62). By the time of the September, 1979, evaluation, Ms. Ouellette found Ms. Joseph to be "(n)ot open to listening to any kind of explanation" (Vol. VII, p. 100).

37There was clearly no action taken against Ms. Joseph that could in any way be construed as discipline from her commencement of employment in 1975 until, at least, some point in time after the 1978 evaluation (Vol. IV, pp. 26-28). As well, it is clear that for the first three years of employment, from 1975 to 1978, Ms. Joseph was doing quite well, and Ms. Ouellette, who had hired Ms. Joseph, considered her to be doing generally a good job as a staff nurse.

38Moreover, to that point in time, Ms. Joseph herself testified that she did really not perceive that Ms. Ouellette treated her differently than other nurses on the unit (Vol. I, p. 137). However, as time went on, a succession of incidents took place which led to criticisms by Ms. Ouellette of Ms. Joseph as a functioning nurse, and in turn, resulted in an increasing deterioration in the relationships between Ms. Ouellette and Ms. Joseph.

39Ms. Ouellette made detailed, anecdotal notes of these incidents, which ultimately would fill three large looseleaf binders. Ms. Ouellette testified that one reason she kept very detailed notes in respect of incidents involving Ms. Joseph was because at the time of the 1978 appraisal, Ms. Joseph had insisted that in respect of any criticisms by Ms. Ouellette, "I want facts: give me facts" (Vol. VIII, p. 116). Ms. Ouellette was to use these detailed incidents to support the relatively low rating levels she thought Ms. Joseph, deserved when it came to the 1979 evaluation (Vol. VIII, p. 185). As well, it is apparent that Ms. Ouellette generally kept some detailed anecdotal notes in respect of incidents for all nurses under her charge, for on-going evaluation purposes, although it was not seen as necessary to keep for others the extensive notes made in respect of Ms. Joseph.

40Ms. Ouellette felt that over the period between 1978 and the September 5, 1979 evaluation that Ms. Joseph simply would not accept anything that Ms. Ouellette had to say (Vol. VIII, p. 122) and could not accept "constructive criticism" (Vol. VIII, p. 123). A great deal of evidence was given in respect of the incidents over this period of time.

41The central issue is whether there was any racial motivation in Ms. Ouellette's actions in particular, and more generally, in the actions of other members of the hospital supervisory staff, such as Ms. Caron and Ms. Evans. Was Ms. Ouellette singling out Ms. Joseph, the only non-white nurse then on the unit, for discriminatory treatment based upon a prohibited ground? Was Ms. Joseph disciplined more severely than other nurses in similar circumstances? Was Ms. Joseph subjected to a campaign of racial harassment by Ms. Ouellette, through Ms. Joseph being more closely scrutinized in her work than other nurses and her work being made subject to daily criticisms that other nurses did not have to endure? Was Ms. Ouellette trying to force Ms. Joseph to leave? Was Ms. Joseph suspended due to a racial motivation? Was her employment ultimately terminated because of a racial motivation? Were any of the disciplinary actions taken after October 1, 1979 done in reprisal for the complaint filed (document #1, Exhibit #3) with the Human Rights Commission on that date?

42To answer these questions necessitated a meticulous examination of a great many detailed incidents and situations. The evidence was given over some twelve days of hearing. As well, so-called ”˜similar fact' evidence was adduced in an attempt to buttress the Complainant's assertions.

43Voluminous patient records were entered into evidence (in camera) as Exhibits #26, #38 and #39. A Table of Contents for the two volumes of records was filed as Exhibit #27. The documents put into evidence approximated 1000 pages.

44Most of Ms. Ouellette's anecdotal notes date from 1978, with relatively few for 1977 (Vol. X, pp. 13-15). Ms. Ouellette emphasized that with the problems in respect of the April 1978 evaluation, she felt it was particularly necessary to keep detailed notes thereafter (Vol. X, p. 15). Moreover, she said that as the disagreement grew Ms. Joseph was threatening to take legal action against her and therefore, Ms. Ouellette wanted an "accurate account" (Vol. X, pp. 18, 19). I accept Ms. Ouellette's statement that she did not keep the notes for vindictive purposes (Vol. X, p. 19). She was wise to keep detailed notes considering all the circumstances.

45On June 24, 1978, an incident arose involving the care for a manic-depressive patient, Ms. Joseph was the primary nurse for this patient. The patient's family had brought her own clothes which the patient put on; however, the care plan specified (as the doctors often did) that she was not to have her own clothes so as to avoid stimulus to her. The team leader, Ms. Marie Williams, requested that Ms. Joseph have the patient change into bed clothes, but Ms. Joseph thought it best not to get the patient excited, with the result that Ms. Williams herself had to get the patient to comply to a change of clothes (Evidence, Vol. I, pp. 144-148). Ms. Williams gave a memo to Ms. Ouellette about the incident. Ms. Ouellette asked Miss Joseph to respond to the memo.

46Incidentally, Ms. Joseph testified that the patient's physician the next day allowed the patient to have her own clothes (Evidence, Vol. I, p. 165). The patient records do indicate that, the day following the clothes removal incident, the patient's physician authorized a pass to go home for a new set of clothes, although the pass was not in fact written as the patient's daughter refused to take her (Vol. X, pp. 34, 35). However, the point of controversy in respect of this minor issue as between Ms. Joseph and Ms. Ouellette was the manner of patient care. Given differing judgments on such matters, it was up to Ms. Joseph to accept and follow the unit administrator's direction.

47In her testimony, Ms. Ouellette expressed a concern that Ms. Joseph did not have a sufficient knowledge and understanding of a manic depressive illness and that Ms. Ouellette said she simply wanted to ensure that the patients "got good care" (Vol. VII, pp. 46-58). Ms. Ouellette testified that she understood that Ms. Joseph had simply stated that Ms. Williams should try to get the other clothes, because Ms. Williams could be firmer with patients (Vol. VIII, p. 70) and that Ms. Joseph had not suggested at this time that the clothes should not be removed for the reason that this would just aggravate the patient further, Ms. Ouellette being of the view that Ms. Joseph only adopted this view as a rationalization some time later (Vol. VIII, pp. 73, 74).

48It must be remembered that the involvement of Ms. Ouellette in this incident arose because of the initiative of the team leader, Ms. Williams, who had sent a "documentation" to Ms. Ouellette (Vol. VIII, p. 82). Ms. Joseph saw Ms. Ouellette's opinion that the clothes of the patient should have been removed by Miss Joseph, as part of the alleged "campaign of harassment" (Vol. IV, p. 75). In fact, the incident was relatively insignificant. Ms. Ouellette was responding to the team leader's documentation and expressing her own best judgment as to how the matter should have been handled. It is really irrelevant whether Ms. Joseph ultimately was exercising good judgment or not; the relevant point is simply that her unit administrator was providing a judgment as to how such an incident should be handled from the standpoint of proper nursing care. Ms. Joseph simply would not accept from Ms. Ouellette a judgment of the situation that was different from her own. A minor instance of intended constructive criticism was blown out of all proportion by Ms. Joseph.

49Meetings were held in August in respect of this incident, resulting in two letters of August 4 and 8, 1978 (p. 20, Exhibit #3) being delivered to Ms. Joseph by Ms. Ouellette. Ms. Ouellette testified she sent the letters because she "was not sure that (Ms. Joseph) had heard me when we discussed them" (Vol. VII, p. 60). Ms. Joseph in turn regarded Ms. Ouellette's letters of August 4 and 8, 1978 as constituting "defamation of character" (Vol. IV, pp. 46-48).

50Ms. Joseph testified that she felt the letters "twisted" the incident and were inaccurate (Evidence, Vol. I, pp. 130-134). Whoever's judgment should have been followed in this situation, the undisputed fact remains that Ms. Joseph did not comply with her team leader's direction which triggered the incident in question. Moreover, the only reason the disagreement with the team leader was projected into a major dispute with the unit administrator was because Ms. Joseph refused to accept the judgment ultimately expressed by her unit administrator as to the proper patient care.

51Ms. Joseph had initially grieved the two letters of August, 1978, but the grievance was withdrawn on the basis that the letters served an "educational" rather than a "disciplinary" function (Vol. I, p. 160). However, Ms. Joseph testified that she felt Ms. Ouellette "was on (her) back all the time" thereafter, calling her into the office on pretexts three or four times a day for criticism, and felt that Ms. Ouellette was aggressive and authoritarian in manner, testifying that Ms. Ouellette was constantly checking her nursing notes and charts, and was checking to see whether Ms. Joseph was arriving and leaving on time (Vol. I, pp. 169-173).

52On August 4, 1978, the same patient referred to in respect of the above-mentioned incident tried to reach Ms. Ouellette by telephone, and asked Ms. Joseph to relay the request to Ms. Ouellette, but Ms. Joseph neglected to do so. Ms. Joseph testified that she believed Ms. Ouellette had otherwise received the message (Vol. I, pp. 165-169). Ms. Ouellette had wanted to be called out of a conference meeting for any telephone call from this particular patient (Vol. VIII, p. 111). The patient apparently called several times, but Ms. Joseph, who answered the calls, did not advise Ms. Ouellette (Vol. VIII, p. 112).

53Another incident (#A(4) at p. 3 B, Exhibit #3) involved the question of the failure to remove clothing from, and the failure to search the purse of, a patient about December 6, 1978, by Ms. Joseph and another nurse, Ms. Hogan (Vol. II, pp. 2-6). Ms. Ouellette testified that her concern was that there should be a search, and a removal of clothing, because the chart indicated the patient was suicidal, and the patient was paranoid and disoriented when admitted (Vol. VII, pp. 65-66), and the nurses had not done what was required.

54Ms. Ouellette testified that she criticized Ms. Hogan for not completing the removal of clothes and search of the patient's purse, and "Ms. Hogan accepted what I said and that was the end of it" (Vol. X, p. 58). A note was made of the criticism of Ms. Hogan (Vol. X, p. 59; Exhibit #28). Ms. Jospeh would not accept the same criticism and thus, it was noted in her evaluation.

55Another incident involved Ms. Joseph suggesting to a patient that the patient consider asking her physician for the services of a particular social worker (Vol. II, pp. 5-10; p. 37, Exhibit #3; #A5 in document #3, Exhibit #3). Ms, Ouellette criticized Ms. Joseph for suggesting a particular social worker, and proposing "a plan of care that was completely different than what the patient was having at the present time" (Vol. VII, p. 82). Ms. Ouellette testified that Dr. Shinobu, the patient's physician, criticized Ms. Joseph in this matter as well, "for not bringing her suggestions to the team first" (Vol. VII, p. 82). Ms. Ouellette was critical in this regard, because she felt the decision as to the involvement of, and allocation of a specific social worker, should be made by the team before any communication was made to the patient (Vol. IV, p. 76).

56One incident (#A7, p. 3B, Exhibit #3) involved the question of medication of a patient about February 28, 1979. Ms. Joseph did not administer medication because of the refusal of the patient (Vol. II, pp. 15-17) and was admonished by Ms. Ouellette in the September, 1979 evaluation.

57As well, Ms. Ouellette testified that on September 10, Ms. Joseph failed to give her 1700 hour medications until 1830 because she "was busy on the phone calling people" and her team leader had to tell her to get on with her work (Vol. VII, p. 120).

58Ms. Joseph alleged that she was singled out for such criticism, claiming that other nurses made medication errors (referring to one specifically) but were not disciplined, and that one nurse was even drunk at work on one occasion, and that other nurses neglected to chart, without reprimand (Vol. III, pp. 50-58).

59In her testimony, Ms. Ouellette corrected Ms. Joseph, stating that it was not the nurse Ms. Joseph referred to in her evidence who had made a medication error, but rather another nurse, and that in fact Ms. Ouellette took "action" (Vol. VII, p. 179).

60Ms. Ouellette also replied in respect of the allegation that a nurse drunk on duty had gone undisciplined. Ms. Ouellette testified that a team leader had indeed reported the smell of alcohol on the particular nurse's breath, but Ms. Ouellette could not smell it, and after consulting Ms. Caron, Ms. Ouellette monitored the particular nurse the rest of the day but there was nothing which suggested the nurse's judgment was impaired (Vol. VII, p. 180).

61Ms. Nancy Smart (nee Rattle) worked as a psychiatric nurse on Unit 7-West at North York General Hospital from August, 1974 until November, 1980. She testified that she got to know Cynthia Joseph well, and found her to be a "conscientious and reliable nurse" (Vol. V. pp. 23, 24). She never had occasion to question Miss Joseph's "mental stability" (Vol. V, pp. 39, 40). Ms. Smart testified that she herself had made a medication error on one occasion, and had sometimes given late medications, but had never been reprimanded (Vol. V, pp. 25-29).

62However, Ms. Smart also testified that Ms. Ouellette was a competent, fair administrator who communicated well (Vol. V, p. 41). Ms. Smart also viewed all the team leaders as competent and fair. Ms. Smart did not believe there was any suggestion of racial prejudice by anyone on Unit 7-West toward Ms. Joseph (Vol. V, p. 42).

63One nurse, according to Ms. Ouellette's own records (Exhibit #22) had six medication errors. Ms. Ouellette said she spoke to the nurse who "certainly took these medication errors very seriously and there were no further errors after that" (Vol. X, p. 124).

64Ms. Rhoda Spencer has been employed as one of the full-time nursing co-ordinators at North York General Hospital since June, 1971. She makes routine rounds of the various units during the evening shift, receiving reports from the nurses on the units. Ms. Spencer found Ms. Joseph's reports to be "good and comprehensive" (Vol. V, p. 225). Ms. Spencer found Ms. Joseph to be very "empathetic and sympathetic . . . aware . . . (and) knowledgeable" (Vol. V, p. 226).

65Another patient incident involved Ms. Ouellette's criticism of Ms. Joseph for allowing a patient to use Ms. Joseph's hymn book, when the patient's health care plan sought to prelude access to printed religious music (Vol. II, pp. 20-24). Ms. Ouellette testified that after she first corrected Ms. Joseph in respect of this matter, that Ms. Joseph continued "to have religious music on the unit" some nine days later (Vol. VII, pp. 78, 79).

66The only reference in the patient record is in respect of the Clinical Conference Summary which suggests that hymn singing at night should be discouraged. The patient was not Ms. Joseph's so that she might not have been aware of this minimal restriction (Vol. X, p. 84). Moreover, throughout the relevant period the patient was receiving passes for choir practice (Vol. X, pp. 85, 86). Finally, as Ms. Ouellette was aware, the patient had a considerable amount of religious material (unconnected with Ms. Joseph) in her room (Vol. VIII, p. 160). Ms. Ouellette testified that they were trying to discourage the hymn singing in the hospital . . . (as) this was her only social life ." (Vol. X, pp. 86, 90). Ms. Ouellette's real criticism of Ms. Joseph in respect of this incident was that Ms. Ouellette had to ask her twice to remove the material she had given to the patient (Vol. X, pp. 88, 89). This very minor incident illustrates what was happening more generally. Ms. Ouellette would correct Ms. Joseph on a minor matter, Ms. Joseph would ignore Ms. Ouellette or expressly reject the criticism, Ms. Ouellette would be frustrated and angered by the insubordination and refusal to accept Ms. Ouellette's direction, and Ms. Ouellette would in turn then note the incident in her detailed anecdotal notes, and ultimately such incidents would impact adversely upon Ms. Joseph's evaluation.

67A further incident involved Ms. Ouellette criticizing Ms. Joseph for failing to be concise when completing an incident report in respect of a patient that occurred about July 19, 1979. Ms. Joseph had gone through the personal effects of a patient being admitted whose blood report had shown an excessive amount of drugs. Subsequently, Ms. Ouellette asked Ms. Joseph to make out an incident report as to what the search revealed, but Ms. Joseph initially objected saying the nurse who did the first search should be the one to complete the report. Upon Ms. Joseph then completing the report, Ms. Ouellette criticized her for including superfluous detail (Vol. II, pp. 28-37).

68It is clear that what Ms. Ouellette really objected to in respect of Mrs. Joseph was that she simply would not accept constructive criticism. In respect of this incident, Ms. Ouellette testified that, in contrast to Ms. Joseph, another nurse had overlooked making an incident report until Ms. Ouellette asked her to, but "did it immediately when requested" (Vol. X, pp. 96, 97, 98). Ms. Ouellette testified that:

It was hard to deal with Ms. Joseph because when I tried to talk to her, she always yelled at me that it was me and my moods or "I don't take what you say" or whatever. I tried to remain as calm as possible (Vol. X, p. 120).

69I accept Ms. Ouellette's position that throughout this dispute she was concerned about patient care and proper hospital and nursing procedures and practices to achieve that objective (Vol. X, p. 122). In respect of the above-mentioned incident, Ms. Ouellette wanted the nurse who finds the prohibited items during a search to be the one who completes the incident report (Vol. IV, p. 86). Ms. Joseph saw Ms. Ouellette's request of her to complete the incident report as part of the "campaign of harassment." The substance of such incidents was not the major problem, Rather, it was Ms. Joseph's inability to accept criticism, and insubordination, which became the real issues.

70Ms. Shirley Brockstra was employed as a psychiatric nurse on Unit 7-West by the North York General Hospital from August, 1977 until September, 1984. Ms. Brockstra worked with Ms. Joseph, who she described as "an excellent nurse . . . very conscientious . . . very competent" (Vol. V, p. 62).

71Ms. Brockstra testified that she noticed the relationship change between Ms. Ouellette and Ms. Joseph in 1979, when Ms. Ouellette would say good morning only to Ms. Brockstra but not to Ms. Joseph when Ms. Brockstra and Ms. Joseph came off the night shift together. Ms. Brockstra said that Ms. Ouellette would not be friendly toward Ms. Joseph, would make "quite an issue" with Ms. Joseph over an insignificant thing such as leaving a pantry door open, would scrutinize Ms. Joseph's charts very closely and would call Ms. Joseph into her office at least once a day (Vol. V, pp. 67-77). Ms. Brockstra felt Ms. Joseph was being "picked on" (Vol. V, p. 78). Ms. Brockstra testified in respect of several of the "incidents" for which Ms. Joseph was criticized by Ms. Ouellette, Ms. Brockstra's testimony tending to support Ms. Joseph's version. She shared many of Ms. Joseph's suspicions (Vol. V, pp. 122-124).

72Another incident involving patient care was the topic of considerable testimony. Ms. Ouellette criticized Ms. Joseph for failing to give an enema to a patient, and thereby not following an order of the patient's physician. Ms. Joseph argued that she did not do so because the patient had in fact just had two large bowel movements (Vol. V, pp. 40, 41).

73It was clear from Ms. Brockstra's testimony, that she was the nurse in charge of the particular patient in the enema incident, and that Ms. Brockstra had made the decision that Ms. Joseph not give the enema. Moreover, Ms. Brockstra testified that Ms. Ouellette never spoke to Ms. Brockstra about the incident, but that Ms. Ouellette nevertheless had criticized Ms. Joseph (Vol. V, pp. 101-104).

74However, Ms. Ouellette explained in her evidence that she had concerns due to the charting information as to bowel movements that caused her to fear a possible bowel obstruction (Vol. VII, p. 33). She was concerned that both nurses, Ms. Brockstra and Ms. Joseph, did not understand that the fact of bowel movements did not preclude the need for the enema. Moreover, it was later determined upon investigation that the elderly patient in fact did have an impaction in his bowel. Ms. Ouellette's judgment was thus correct (Vol. VII, pp. 35-36).

75On cross-examination, Ms. Ouellette allowed that Ms. Brockstra had made the decision not to contact the doctor in respect of the nurses' decision not to administer the enema the doctor had ordered, but testified that she in fact had spoken to Ms. Brockstra about "her responsibility." Ms. Ouellette felt that both nurses should "know that loose stools could be a symptom, in an elderly person, of impaction" and she said that was her reason for speaking to Ms. Joseph, testifying that this was not a major criticism (Vol. VII, pp. 41-43).

76Counsel for the Commission cross-examined Ms. Ouellette extensively about the "enema" incident through going over the patient records in detail, and Mrs. Ouellette was able to explain satisfactorily how the records supported her view as to proper patient care in the particular situation (Vol. X, pp. 20-32).

77Ms. Ouellette denied that she grew to dislike Ms. Joseph and denied that she would be abusive with Ms. Joseph and sometimes not exchange pleasantries (Vol. III, p. 125). Ms. Ouellette testified that between August, 1978 and September, 1979 she "did everything possible, humanly possible, to keep my cool, and try to stick just with the issues" (Vol. VIII, p, 128).

78Ms. Brockstra had never discussed any of the "incidents" with Ms. Ouellette nor did she know the nature of the discussions Ms. Ouellette was having with Ms. Joseph (Vol. V, pp. 129-134). Ms. Brockstra's perspective was an impartial and honest one, but limited in terms of knowledge of the overall situation.

79Ms. Ouellette claimed that Ms. Joseph failed to implement certain nursing care plans. One incident involved Ms. Joseph's failure to chart that a patient was under what is called "close observation." Another involved a dispute with a team leader, Ms. Nancy Trumphour, about giving a patient her own clothes (Vol. II, pp. 44-49).

80Ms. Joseph was also criticized for referring at a team conference on December 12, 1978, to a female teenaged patient as a "passive/aggressive brat." Ms. Joseph testified that she thought Ms. Ouellette's criticism related to the mildly derogatory aspect of the comment (Vol. II, pp. 51-55), however, Ms. Ouellette testified that her concern was as to whether Ms. Joseph truly understood the nature of the patient's illness.

81Ms. Joseph considered a particular female patient to be manipulative, and in this regard that the patient would refer to her imagined husband. Ms. Joseph suggested at a team conference that the patient be requested to bring in her imaginary husband (Vol. II, pp. 55-57; pp. 35, 115, Exhibit #3).

82Ms. Ouellette testified that this patient was "a paranoid schizophrenic patient," and to challenge such a patient on a delusion would put the patient "in the position of being very defensive, and hanging on even more to the delusion" (Vol. VII, p. 71). Ms. Ouellette's criticism of Ms. Joseph related to a concern of proper patient care.

83Another incident involved a complaint by the wife of a patient to the team leader that Ms. Joseph had talked about religion with the patient which upset him. Ms. Joseph testified that her comment was quite innocuous, simply that "God helps those who help themselves" in a successful attempt to get him to eat food and take his medication (Vol. II, pp. 57-61; Vol. Ill, p. 5; p. 116, Exhibit #3).

84Ms. Ouellette later testified that the patient in question "was guilt ridden and ruminative" (Vol. VII, p. 69). The nursing care plan provided that the patient was not to be exposed to the stimuli of religious activities (Vol. IV, pp. 79-81). The nursing care plan for this patient has a note "Agitation extreme, feels guilty re sinful things he had done, not able to be rational or logical" (Vol. X, p. 65).

85Another incident involved Ms. Joseph being criticized for calling a physician when she was not assigned to the particular patient. Ms. Joseph testified this arose because of confusion on the part of her team leader (Vol. II, pp. 61-66). Ms. Ouellette testified, in effect, that the confusion was created entirely by Ms. Joseph (Vol. VII, pp. 77, 78).

86Ms. Joseph claimed that about August, 1978, she was no longer given the opportunity of being assigned on occasion to be a substitute team leader (Vol. II pp. 75, 78). She also claimed that about mid-1978, she was no longer reassigned to the group therapy sessions that she particularly liked, was no longer always assigned a normal quota of patients on occasion, and was no longer involved in certain training sessions involving new shock treatment equipment and "in-services" educational programs (Vol. II, pp. 78-98).

87However, on cross-examination, it was evident that when Ms. Joseph complained to her team leader, Ms Williams, about not participating in the electro-convulsive therapy equipment training sessions, the oversight was immediately rectified (Vol. IV, p. 95).

88Moreover, Ms. Ouellette testified that Ms. Joseph, when assigned as acting leader, would not communicate with Ms. Ouellette "about matters on her team" and in fact, another team leader brought to Ms. Ouellette's attention a problem involving one of the patients under Ms. Joseph's team leadership (Vol. VII, pp. 73, 74; 174).

89In my view, considering all the evidence, Ms. Ouellette's comments to Ms. Joseph in respect of all incidents were all intended to be constructive and educational. I have little doubt that Ms. Ouellette was becoming increasingly frustrated by Ms. Joseph's refusal to accept criticism, and by Ms. Joseph's rudeness toward Ms. Ouellette. Moreover, perhaps Ms. Ouellette could have been more flexible from time to time in responding to some of the incidents (Ms. Anne Lennox, the unit administrator for 7-North later commented in her testimony that she was more flexible than Ms. Ouellette). As well, I sense that Ms. Ouellette was becoming somewhat curt toward Ms. Joseph (as Ms. Brockstra testified), because of Ms. Joseph's continuing insubordination. However, there was no racial motivation at all in Ms. Ouellette's actions toward Ms. Joseph. Ms. Joseph's own behaviour was the sole real reason for Ms. Ouellette's responses. The fact of Ms. Joseph's race, colour, ancestry or place of origin were entirely irrelevant.

90Ms. Joseph testified that at one point she spoke about her perceived problems with Ms. Ouellette with Ms. Nancy Mokadenz, the vice-president of the union who was another nurse on the floor. Ms. Joseph implied in her testimony that this nurse was no help because she was "applying for a team leader's position herself" (Vol. II, p. 93). Ms. Joseph felt that Ms. Nancy Mokadenz, "hung around with the team leaders" and was thus part of the "campaign of harassment" (Vol. IV, pp. 60, 61). Ms. Joseph also spoke four or five times to the president of the union, Ms. Cathleen Muggel, who advised her to "do what (Ms. Ouellette) says, but document" (Vol. II, pp. 95, 96). However, Ms. Joseph was wary of Cathy Muggel, the president of the union, who attended as a third party at a November 6 meeting with Ms. Joseph, Ms. Evans and Ms. Ouellette (Vol. IV, pp. 156, 157). Ms. Joseph was suspicious of these two nurses who were union representatives, for no good reason at all. Ms. Joseph felt that they were somehow a part of a plot to harass her. Ms. Joseph was prepared to accuse people of "harassment" on no concrete evidence. It was quite enough for Ms. Joseph to base her judgment on flimsy, vague suspicion.

91Ms. Joseph saw all the team leaders on 7-West, being Mary Ellis, Marie Williams, Gerry Blackmore, Nancy Trumphour and Edda Hogan, together with Nancy Mokadenz, as part of the "harassment team" against her, (Vol. IV, pp. 63, 65). She saw them all as complaining about her, but really offered very little by way of specifics (Vol. IV, pp. 65-67). Those in authority in the unit were seen by Ms. Joseph as part of the "campaign of harassment," "most of the time" (Vol. IV, p. 89). These team leaders were involved in the various ”˜incidents' in respect of which Ms. Joseph received criticism from Ms. Ouellette in her 1978 and 1979 evaluations. Anyone who in any way was involved with a criticism of Ms. Joseph was seen by Ms. Joseph to be racially motivated.

92The above-mentioned incidents were referred to in Ms. Ouellette's September 5, 1979 evaluation of Ms. Joseph and in support of the relatively low ratings given on that evaluation in some categories. Nevertheless, Ms. Ouellette regarded the September 5, 1979 evaluation as "still a satisfactory evaluation" but the lower ratings were because "(t)here had been a change in performance, and this is what I was trying to point out to her" (Vol. VIII, p. 183).

93For item 12 (p. 17, Exhibit #3) of the June, 1978 evaluation, which relates to ". . . Provides for emotional security of each patient, with consideration for personal worth and dignity . . ." Ms. Ouellette gave the highest rating ("six") to Miss Joseph that could be given, and a higher one than Ms. Joseph had suggested for herself in the preceding self-evaluation (Vol. VIII, p. 196). However, with the September 5, 1979 appraisal for item 12 (p. 17, Exhibit #3) in the evaluation, Ms. Joseph had fallen to just a "satisfactory" ("three") rating. One could argue that the relatively minor incidents complained of by Ms. Ouellette over the year did not warrant such a drop in ratings for this category (Vol. VIII, pp. 195-200).

94In my view, the problems Ms. Ouellette experienced over the year with Ms. Joseph led to a general damnation in terms of her overall evaluation, and Ms. Ouellette did not seem to disagree with this on cross-examination (Vol. VIII, pp. 195-201). However, this general damnation could really only be considered such because of relatively high praise in previous evaluations. That is, Ms. Ouellette still considered Ms. Joseph's performance to be generally satisfactory. Ms. Ouellette was still giving Ms. Joseph a passing grade as a functioning nurse in the 1979 evaluation.

95With the September, 1979 evaluation (pp. 35, 40, Exhibit #3), while criticisms were documented, Ms. Ouellette still gave a generally favourable appraisal:

. . . Ms. Joseph is functioning adequately as a general staff nurse. I would like to see her establish a high level of functioning which she had demonstrated in the past (Vol. IV, p. 104).

96In respect of the 1979 evaluation review, Ms. Joseph described it as being "very one-sided" (Vol. II, pp. 97, 101), alleging that Ms. Ouellette "was not listening" (Vol. II, p. 98). Ms. Joseph testified that in respect of that part of the evaluation that related to "goals" for the next year, Ms. Joseph told Ms. Ouellette she wanted "to improve my communication with my U.A. with a third person present" naming Dr. Shinobu, but Ms. Ouellette refused to include and consider that request (Vol. II, p. 102).

97Accordingly, Ms. Joseph wrote to Ms. Evans September 10, 1979 suggesting Dr. Shinobu be a third party to discuss Ms. Joseph's evaluation (Vol. IX, p. 107). Ms. Evans replied by letter dated September 11, 1979, saying that Ms. Charmaine Caron would be the third person present (Vol. II, p. 108). Ms. Caron was assistant director of nursing at North York General Hospital from December, 1975 to September, 1981. She testified that Ms. Ouellette had alerted her as to the "communication problem" between Ms. Joseph and her team leader, Mary Ellis, at one point in time (Vol. XI, p. 6). Ms. Joseph testified that she did not trust Ms. Caron because she had seen Ms. Caron on the unit with Ms. Ouellette many times and that I "knew they were in on this together . . . whatever it was" (Vol. II, pp. 106, 107; Vol. Ill, p. 20). Ms. Joseph testified ". . . I have seen Ms. Caron enough to know that she was teaching Ms. Ouellette what to do" (Vol. IV, p. 108). Ms. Joseph saw herself as being "setup" by Ms. Ouellette and Ms. Caron (Vol. IV, p. 120), the purpose being "to destroy a person" (Vol. IV, p. 121). Ms. Joseph's accusations were unfounded, and made without any even apparent basis, but in her own mind Ms. Joseph was certain of a plot to get her.

98Ms. Joseph replied to Ms. Evans by letter dated September 19, 1979 (p. 46, Exhibit #3) requesting a transfer to the day care centre of psychiatry on the 8th floor of the Hospital. Ms. Joseph testified she did not want a request to Unit 7-North because she "had heard from the girls what had happened there" (Vol. II, p. 109). Ms. Joseph felt that the unit administrator for 7-North would discriminate against her. Again, Ms. Joseph was prepared to condemn the unit administrator for 7-North, whom she did not even know personally, on some vague view that such person would racially discriminate against her.

99Ms. Joseph met with Ms. Caron and Ms. Ouellette in Ms. Caron's office September 28, 1979 to solve the "communication problem" (Vol. III, p. 18). Ms. Joseph testified that she told Ms. Caron that Ms. Ouellette "was harassing me around my back for non-existing problems" (Vol. Ill, p. 19). Ms. Joseph did not "think it was an objective meeting . . . (but) exactly what I had expected" (Vol. Ill, p. 23).

100Ms. Ouellette testified that at the meeting in Ms. Caron's office, that Ms. Joseph sat "with her back, partially turned, to Ms. Caron" (Vol. VII, p. 128) and "just was not prepared to discuss anything, except to make negative remarks about me, and not substantiate them with fact" (Vol. VII, p. 130).

101Ms. Caron corroborated this, and testified that when Ms. Joseph turned her back on her she found it ". . . very different behaviour in that . . . (Ms. Joseph) had asked to see me and yet she was not giving me the courtesy of at least facing me" (Vol. XI, p. 8).

102Ms. Caron testified that Ms. Joseph ". . . had very great difficulty giving me concrete examples of why she had come to the conclusions that she had about (Ms. Ouellette) . . . (and) she would have almost a flight of ideas . . . (going) from one point to another, like almost in mid-sentence" (Vol. XI, pp. 9, 10). This testimony sets forth my own general impression of Ms. Joseph's accusations as given at the hearing.

103Similarly, Ms. Caron's ". . . feeling was that . . . (Ms. Joseph) was a very emotionally disturbed person at that particular time . . . (and) was really a very upset person . . . (so) that I did have some worries about her being on the unit" (Vol. XI, p. 10). Ms. Caron felt that Ms. Joseph "should be assessed by our Employee Assistance Program to see if she was well enough to be performing her duties on the unit" (Vol. XI, p. 11).

104Ms. Caron later made the decision to suspend Ms. Joseph for her refusal to attend the Program (Vol. XI, p. 13).

105Ms. Ouellette testified that the initial suggestion that Ms. Joseph use the Employee Assistance Program had come from the union representatives, as Ms. Muggel, president of the union, was receiving many calls from Ms. Joseph (Vol. VII, p. 119).

106By the September meeting Ms. Ouellette also had decided to take the suggestion of the union representatives and ask Ms. Joseph "to go to the employee assistance program" (Vol. VII, p. 133). Ms. Ouellette felt there "might be someone objective down there, that she could talk to: someone not involved in all the problems of the unit" (Vol. VIII, pp. 100, 101). Ms. Ouellette testified that she wondered "whether there was a health problem relating to . . . (Ms. Joseph's) poor performance" (Vol. VIII, p. 227).

107The Employee Assistance Program Outline was filed as Exhibit #24 (Vol. VIII, p. 227). Ms. Ouellette testified that when she made the request of Ms. Joseph on October 2, that Ms. Joseph said to put it in writing, and "closed the door in my face" (Vol. VII, p. 134).

108Ms. Ouellette wrote October 3, 1979 to Ms. Joseph as a follow-up to their conversation of October 2, stating that Ms. Ouellette had made an appointment for Ms. Joseph to see Dr. Sidgwick at the Employee Assistance Program. Ms. Caron's letter of October 1 had said I am asking you to take every opportunity to get help and guidance to grow professionally" (pp. 53, 54, Exhibit #3). It is obvious from all the evidence that Ms. Ouellette and Ms. Caron, and the union representatives, were all skeptical of Ms. Joseph's mental stability. They were trying to ensure that she was truly fit to perform her duties and also trying to help her as concerned colleagues. They had her best interests in mind, and it is very unfortunate that Ms. Joseph never took this proffered opportunity for assistance.

109Ms. Joseph refused to see Dr. Sidgwick (Vol. Ill, pp. 40, 41). She testified that her lawyer, Charles Roach, had advised her not to go (Vol. Ill, p. 41). Ms. Caron made the decision to suspend Ms. Joseph for her refusal to attend the Program (Vol. Ill, p. 46; p. 59 Exhibit #3).

110When Ms. Ouellette communicated the suspension decision to Ms Joseph October 3 for failing to keep the appointment with the physician in respect of the employee assistance plan that had been made for that day, Ms. Joseph refused to leave the Nursing Station until Ms. Caron gave her a letter (p. 33, Exhibit #3) and spoke to Ms. Joseph's lawyer, notwithstanding the confusion this might cause for patients in the area (Vol. VII, pp. 135-138). Ms. Caron prepared a letter and delivered it personally, asking the union representative, Ms. Mokadenz, to ask Ms. Joseph "to leave the unit because I was concerned that she was losing her dignity and that she would be very embarrassed with her peers after the fact" (Vol. XI, p. 14). It is clear that Ms. Ouellette and Ms. Caron were acting with Ms. Joseph's best interests in mind.

111At this point in time, Ms. Joseph had also been switched to day shifts which would bring her under the closer scrutiny of Ms. Ouellette who herself worked day shifts. Ms. Caron's letter of October 1, 1979 had suggested this would facilitate communication. Ms. Joseph claimed that as a result she was called into Ms. Ouellette's office "three or four times a day, for no reason" (Vol. Ill, p. 24).

112Ms. Joseph wrote to the College of Nursing October 1, 1979 (the day she filed her first Complaint) complaining about her treatment at North York General Hospital, but felt "they didn't bother to listen to me too well," with her presuming, as she testified, that this was because Ms. Evans was also the president of the College (Vol. III, p. 28). Ms. Joseph was very vague when confronted in cross-examination as to the basis for her accusations against Ms. Evans (Vol. IV, pp. 129-131).

113Ms. Joseph had filed her first Complaint with the Ontario Human Rights Commission on October 1, 1979. On October 2, Ms. Ouellette asked Ms. Joseph to attend the "employee assistance program" of the Hospital for the purpose of being interviewed by a staff psychiatrist. However, this was not a reprisal for the filing of the Complaint even if the filing of the Complaint was then known to Ms. Ouellette. Ms. Ouellette, Ms. Caron, and the union representatives all thought that Ms. Joseph's wild accusations and erratic behaviour suggested that she might well benefit from speaking with a physician. Ms. Joseph refused to attend and was suspended as a result. However, the Hospital did not follow its own required procedures for implementing this program, with the ultimate result that Ms. Joseph was later reinstated with full compensation. Given the proximity of the request to Ms. Joseph to attend the "employee assistance program" to the date of the filing of the Complaint, it was suggested that events subsequent to the Complaint were a reprisal because the Complaint had been filed. However, it is clear to me, considering all the evidence, that Ms. Ouellette and Ms. Caron were genuinely concerned about Ms. Joseph as a functioning staff nurse, and moreover, that they wanted also to help her personally through Ms. Joseph attending the employee assistance program.

114Ms. Caron and Ms. Evans were increasingly involved by Ms. Ouellette in trying to deal with the deteriorating situation. As well, a number of grievances were filed by Ms. Joseph through the Nurses' Association under the collective agreement, and Ms. Joseph retained a solicitor to intervene directly on her behalf.

115A second appointment was arranged in the Employee Health Service department for October 11, and Ms. Joseph attended, meeting with a Ms. Assaf, coordinator for the Employee Assistance Program. At this meeting Ms. Joseph referred to her problems concerning Ms. Ouellette and mentioned her request for a transfer. Ms. Assaf said that Ms. Joseph's "stability" might be in question, and the next day Ms. Assaf telephoned her, requesting that she see Dr. Armstrong, a staff psychiatrist on 7-North (Vol. Ill, pp. 69-77).

116However, Ms. Joseph refused to see Dr. Armstrong for the reason that she felt his "specialty is . . . drug problems," and because he "was always in the company of Ms. Ouellette and Ms. Lennox," the unit administrator for 7-North, and therefore, in her view could not be objective (Vol. Ill, p. 77). Ms. Lennox later described her association with Dr. Armstrong as entirely "professional" and said she had never discussed Cindy Joseph with him (Vol. IX, p. 19). Ms. Joseph claimed that Ms. Assaf was "not objective" simply because Ms. Assaf had referred to Ms. Ouellette as a "good nurse" (Vol. IV, p. 148). Clearly, Ms. Joseph was suspicious of virtually everyone connected with the management of the hospital that she was dealing with at this point in time. Instead of seeing them as trying to help her, which was the true situation, she imagined a plot to harass her.

117Ms. Ouellette wrote to Ms. Joseph October 26, 1979 (p. 65, Exhibit #3) suggesting that since September 5 there had been a further deterioration in Ms. Joseph's performance, referring to an incident in which Ms. Joseph had to be reminded to take the vital signs of a patient in her care; a second incident in which Ms. Joseph was one-and-a-half hours late in the administration of the medication of a patient; and a third incident which questioned Ms. Joseph's assessment of a patient's need for an analgesic (Vol. III, pp. 79-81). Clearly this letter was attempting to stress the progressive decline in Ms. Joseph's performance and to try to get her to have her "problem diagnosed" and "take whatever steps are necessary to improve . . . (her) work performance or be subject to dismissal." A number of specific suggestions were made as to how Ms. Joseph must improve her performance as a nurse.

118On November 5, 1979, Ms. Joseph met with Ms. Evans, Ms. Ouellette, and Ms. Muggel, the union president, to review suggested "goals" for Ms. Joseph. Ms. Joseph was not prepared to agree to follow hospital policies, because one of them was the employee assistance program (Vol. III, pp. 90-95; p. 68, Exhibit #3).

119Because of the difficulty in respect of obtaining an agreed set of goals for Ms. Joseph, the goals prepared by Ms. Joseph and sent November 2 (p. 41, Exhibit #3) were reworded by both Ms. Ouellette and Ms. Evans into a set of ”˜goals' (p. 68, Exhibit #3) for discussion at the November 6 meeting (Vol. VII, p. 146). However, no agreement could be achieved (Vol. VII, pp. 147, 148).

120Ms. Ouellette wanted Ms. Joseph to work under closer supervision for a period of time, and therefore, Ms. Ouellette and Ms. Evans spoke to Ms. Joseph the morning of November 7 before she started work (Vol. VII, p. 150).

We asked Ms. Joseph to adhere to the polices of the hospital, to make her personal phone calls with permission of myself, or a delegate, to not make the time changes for a five week period, and to do her work without adding stipulations. Free to question, but not to add stipulations to what she was asked to do (Vol. VII, p. 149).

121Ms. Ouellette gave a follow-up letter dated November 6, 1979 to Ms. Joseph (p. 70, Exhibit #3) when Ms. Joseph reported to work on November 7. This letter set forth a number of stipulations upon Ms. Joseph. Ms. Joseph was also asked to sign her September 5, 1979, evaluation form (Vol. Ill, pp. 97-103; 241). On November 7, Ms. Joseph returned the copy of this evaluation which Ms. Ouellette had given to her, with "allegations" without substantiation (Exhibit #3, p. 71). Ms. Ouellette testified she asked Ms. Joseph to provide supporting documentation for the allegations, or remove them, but that Ms. Joseph refused. Ms. Ouellette then spoke to Ms. Evans, and after Ms. Joseph was given a further opportunity to remove the allegations or provide supporting documentation, Ms. Ouellette suspended Ms. Joseph for two days for insubordination (Vol. VII, pp. 151-153; p. 71, Exhibit #3). Ms. Joseph refused to leave the unit and Ms. Ouellette said, "made threatening statements" to Ms. Ouellette (Exhibit #3, p. 71), (Vol. III, p. 109), and then was suspended further until November 14 (Vol. Ill, p. 112).

122Ms. Joseph worked at the Hospital from November 14 to December 9, 1979 (Vol. Ill, p. 114). She was then absent due to illness until February 14, 1980. Over the November 14 to December 9 period, Ms. Joseph testified that she felt that the situation was improved, and that her relationship with Ms. Ouellette was better (Vol. Ill, pp. 116-120). However, Ms. Joseph requested a change in shifts from days to evenings February 20, 1980, to which Ms. Ouellette replied by letter February 21, turning the request down (Vol. Ill, pp. 120-123). Ms. Joseph felt Ms. Ouellette had turned down her request because the Human Rights Commission was involved at this point in time (Vol. Ill, p. 126). Ms. Joseph felt that her relationship with Ms. Ouellette again deteriorated over the period February 21 to March 25, 1980 (Vol. Ill, pp. 129, 130).

123Ms. Ouellette testified that from December, 1979 until the proposed transfer in the spring of 1980, that there was no improvement in communication between Ms. Joseph and Ms. Ouellette, but that there was an improvement in the performance of duties by Ms. Joseph in respect of patients (Vol. VII, pp. 155, 156). Ms. Ouellette testified that there was friction over Ms. Joseph's attempts to get a change in shift to the evening, as that would mean Ms. Ouellette could not closely supervise and evaluate Ms. Joseph and have a scheduled meeting of March 25 for "the next review of (Ms. Joseph's) goals" (Vol. VII, pp. 158-161). I accept Ms. Ouellette's evidence. It is clear that the administration of the hospital, Ms. Ouellette, Ms. Caron, and Ms. Evans were quite concerned about Ms. Joseph's competence as a functioning nurse at that time, and for that reason wanted to keep her under close scrutiny.

124Ms. Joseph had an appointment for March 25, 1980, to again discuss her "goals." Ms. Joseph testified that this was a brief meeting of only a few minutes, and that as soon as she suggested to Ms. Ouellette that she did not "listen" to Ms. Joseph, Ms. Ouellette told her "You can go now" (Vol. III, pp. 136-144). However, Ms. Joseph herself also testified that she felt in the month following this meeting, they got along fairly well (Vol. Ill, p. 143).

125In respect of the March 25 meeting between Ms. Ouellette and Ms. Joseph, Ms. Ouellette testified that she stated to Ms. Joseph that there had been some improvement in certain areas of her work, with some continuing concerns in others. However, Ms. Joseph was reluctant to discuss these concerns (Vol. VII, pp. 163, 164).

126By letter dated April 24, 1980, (Exhibit #3, p. 93), Ms. Ouellette confirmed a conversation of April 23 between the two about Ms. Joseph's request for a transfer, Ms. Ouellette saying that due to the continuing "communication problem" with Ms. Ouellette, it had been decided by Ms. Caron and Ms. Evans to transfer Ms. Joseph to Unit 7-North (Vol. Ill, pp. 143, 144-145). This letter from Ms. Ouellette (p. 93, Exhibit #3) stated:

. . . I trust that you will see this transfer as a fresh start, to make every effort to establish communication with your unit administrator . . .

127Ms. Caron testified that she had spoken with Ms. Evans about the transfer and,

. . . if we were to give. . .(Ms. Joseph) the opportunity to show us that she was certainly capable of carrying out her duties, that she should be given the opportunity to go onto a parallel unit. And 7-North had very similar patients (Vol. XI, pp. 15, 16).

128Ms. Caron testified that, moreover, while there was an existing vacancy on 7-North, 8-North did not have any vacancies at the time and because it was a popular unit might have had a bit of a waiting list of nurses who wanted to be transferred there (Vol. Xl, p. 16).

129Ms. Lennox was the unit administrator for 7-North at the time. Ms. Lennox's letter of April 28, 1980, (p. 96, Exhibit #3) to Ms. Joseph in respect of the transfer asked her to report for duty on 7-North on. May 12. Ms. Joseph requested a leave due to illness, which was granted May 9 by Ms. Lennox (p. 99, Exhibit #3). Ms. Joseph later sought a further leave extension, which was also granted by Ms. Lennox (Vol. Ill, p. 154). Ms. Joseph then told Ms. Lennox in a telephone conversation on May 28 that she would not report on 7-North under any circumstances, and Ms. Lennox responded with a letter of June 4 (p. 102, Exhibit #3; Vol. Ill, pp. 156-158). Ms. Joseph had her solicitor write to Ms. Lennox June 10 (p. 103, Exhibit #3). Ms. Lennox sent a letter to Ms. Joseph dated June 11, (p. 104, Exhibit #3) which stipulated that Ms. Joseph must report to 7-North by June 18, or provide medical evidence, or be terminated. Ms. Joseph did not report, but had her solicitor write further, on June 17 (p. 105, Exhibit #3).

130The warning letter to Ms. Joseph (p. 104, Exhibit #3) as well as the letter of termination of employment sent by Ms. Lennox June 18, 1980 (p. 106, Exhibit #3) was sent on the instructions of Ms. Caron and the personnel director (Vol. XI, p. 17).

131Ms. Joseph testified that although a transfer to 7-North would mean that she would then be away from Ms. Ouellette, the unit administrator on 7-West, she viewed Ms. Lennox, the unit administrator for 7-North, as someone who had discriminated for racial reasons, as an administrator whose incompetence had led to patient suicides, and that "everything was covered up on that floor" because of Ms. Lennox's association with Dr. Armstrong" (Vol. IV, pp. 169-171). Ms. Joseph viewed Ms. Lennox as "teaching" Ms. Ouellette to discriminate against Ms. Joseph (Vol. IV, p. 171). There was no real support given in the evidence as a basis for these subjective opinions of Ms. Joseph.

132Ms. Joseph refused to report to Unit 7-North because she did not want to work for Ms. Lennox, unit administrator for 7-North (Vol. Ill, pp. 145, 150). Ms. Joseph also felt she had been the subject of negative comments by some of the staff on 7-North (Vol. Ill, pp. 147-148). Ms. Joseph felt two minority nurses, Claire Smith and Hago Menougian, had been disciplined unfairly by Ms. Lennox (Vol. Ill, p. 148). They were to testify, their evidence being considered infra.

133Ms. Ann Weylie, who worked at the Hospital under her maiden name, Anne Lennox from 1970 until 1984, testified. Her curriculum vitae was filed as Exhibit #25.

134Ms. Lennox certainly was aware of the problems Ms. Joseph was having on Unit 7-West, although she did not know Ms. Joseph personally (Vol. VIII, p. 249). Ms. Lennox testified that she only knows Ms. Joseph by name, to "say ”˜hello' to" (Vol. IX, p. 9) and had no contacts with her of a professional or social nature (Vol. IX, p. 10). Ms. Lennox stated as well that her relationship with Ms. Ouellette was basically of a professional nature, each being a unit administrator on parallel, similar units, whereby they "did a lot of problem solving together" (Vol. IX, p. 14).

135Ms. Lennox testified she was asked to attend a meeting with Ms. Caron, Ms. Evans and Ms. Ouellette to consider the topic of the transfer of Ms. Joseph. She was aware of "communication problems" between Ms. Joseph and Ms. Ouellette on 7-West and advised her staff that this was the reason for the transfer (Vol. IX, pp. 15, 30, 32).

136Ms. Lennox testified that upon being advised of the transfer, Ms. Joseph "requested medical leaves" for about a month and then indicated she was well but "not prepared to work on seven north," without giving a reason (Vol. IX, p. 16).

137The letters of November 13, 1979 (Exhibit #3, p. 73A) and December 5, 1979 (p. 79, Exhibit #3) from Ms. Joseph's solicitor suggesting a transfer as a solution, did not specify another unit (Vol. IV, pp. 166, 167). It was only after the transfer was made to Unit 7-North, that Ms. Joseph's solicitor took the position that 7-North was unacceptable. However, Ms. Joseph had mentioned (p. 46, Exhibit #3) to Ms. Evans a request for a possible transfer to the eighth floor in a letter of September 19, 1979 (Vol. VIII, p. 246).

138Ms. Ouellette testified that it was not until April 23, 1980, when Ms. Joseph was told of the intended transfer to 7-North, that Ms. Ouellette learned Ms. Joseph would not accept a transfer to that particular unit (Vol. VII, pp. 164-166). Ms. Ouellette saw the logical way to meet Ms. Joseph's request for a transfer, through a transfer to 7-North, the only other psychiatric unit and a parallel unit to 7-West (Vol. VII, pp. 166-167).

139A further letter of May 7, 1980, was sent by Ms. Joseph's solicitor to the Hospital (Vol. Ill, pp. 101, 151; p. 97, Exhibit #3). Ms. Joseph testified that she wanted to be transferred to 8-North or alternatively, she was now prepared to stay on 7-West (Vol. III, p. 153). She thought the situation on 7-West had improved and that Ms. Ouellette would be leaving shortly because of a pregnancy. Ms. Joseph discussed her objection to the intended transfer to Unit 7-North with the Ontario Nurses Association and commenced a grievance (still pending) through her union (p. 98, Exhibit #3; Vol. Ill, pp. 153, 154).

140Ms. Lennox's letter of June 18 to Ms. Joseph terminating her employment for refusing to report for work on 7-North (p. 106, Exhibit #3), included a reference to reporting Ms. Joseph to the College of Nurses. Ms. Joseph regarded this as "the dirtiest trick" on the part of the Hospital (Vol. Ill, pp. 161, 162). The preliminary report to the College was made July 8, 1980 by Ms. Caron (p. 107, Exhibit #3), with a detailed letter August 8, 1980 (p. 108, Exhibit #3).

141Ms. Caron's letter to the College of Nurses August 8, 1980, set forth a lengthy list of incidents and problems in respect of Ms. Joseph on the unit, being for the most part those referred to in the September 5, 1979 evaluation (Vol. VIII, p. 252). Moreover, Ms. Ouellette met with a representative of the College to review Ms. Ouellette's anecdotal notes pertaining to Ms. Joseph (Vol. VIII, p. 255). Thus, while the Hospital had been prepared to keep Ms. Joseph as a nurse, but on 7-North rather than 7-West, upon her termination for not accepting the transfer the Hospital was reporting to the College about her performance (Vol. VIII, p. 254). This apparent contradiction is, however, easily answered. It is clear that Ms. Caron, Ms. Evans and Ms. Ouellette were all concerned and skeptical about Ms. Joseph's mental stability and how it was, and might in the future, affect her nursing. However, Ms. Joseph refused to obtain medical help, and the hospital could not force her to, but the Hospital did not have sufficient grounds to terminate her employment. Thus, a transfer was seen as the only ameliorative solution to the problem.

142Ms. Caron testified as to why she wrote to the College of Nurses about Ms. Joseph's termination of employment:

. . . (I)t is our professional responsibility (under the Health Disciplines Act) to report the terminations of staff, if the terminations are somehow connected with inadequate professional behaviour. And because I had never felt satisfied that I knew that she was a person who was mentally able to perform her duties, because we really had not had the opportunity to see her perform them, I felt that she had to be reported to the College, and they could come to their own conclusions as to whether there were difficulties or not. And this is in keeping with other letters I have sent for the similar reason (Vol. XI, p. 19).

143The College commenced its review by notice to Ms. Joseph of August 19, 1980 (p. 112, Exhibit #3), followed by letters of September 17 and October 21, 1980 (p. 115, Exhibit #3). Ultimately, the College dealt with the matter by asking Ms. Joseph to see a psychiatrist. Ms. Joseph testified that she inferred bias on the Committee of the College making this request of her, because one committee member, the Dean of Seneca's School of Nursing "is a friend of Ms. Ouellette's" and because she thought "it was Mrs. Evans' doing; she did exactly what she did to me at the hospital" (Vol. III, p. 168). Ms. Joseph could be suspicious of anyone with not even an apparent flimsy reason as a basis. Ms. Joseph refused to comply with the College's request, and her licence was suspended in April, 1981.

144In summary then, Ms. Joseph had requested a transfer to another position, with Unit 8-North, but in June, 1980, was transferred instead to Unit 7-North headed by Ms. Anne Lennox as unit administrator. Ms. Joseph refused to accept the transfer, which in turn ultimately resulted in the termination of her employment (p. 106, Exhibit #3). As well, the Hospital then reported Ms. Joseph to the College of Nurses (p. 107, Exhibit #3), and sent a lengthy list of criticisms based upon the incidents documented by Ms. Ouellette about Ms. Joseph to the College (p. 108, Exhibit #3).

145This resulted in an investigation by the College (p. 115, Exhibit #3) and a review of her registration as a nurse. The College requested that Ms. Joseph attend for a psychiatric examination, which Ms. Joseph refused to do, resulting in her licence as a registered nurse being suspended which situation prevailed as of the date of the hearing.

146So-called similar fact evidence was given as part of the Complainant's case,

147Ms. Carmel Ashmole worked as a psychiatric nurse on Unit 7-West from about 1970 to 1974, and then transferred to the "I.V. team" within North York General Hospital, where she still works. Ms. Ashmole, who is black, testified that she did not get along with Ms. Ouellette who was at that time another staff nurse on 7-West, and when it was made known that Ms. Ouellette was to become unit administrator, Ms. Ashmole applied for a transfer. She was dissatisfied by an evaluation of herself done by Ms. Ouellette, by then the unit administrator, before the transfer was completed (Vol. V, pp. 167-170).

148Ms. Ouellette testified that she regarded Ms. Ashmole as an "excellent nurse" and they got along well together until Ms. Ouellette found criticism with "her sick time" (Vol. VII, p. 176). Ms. Lennox also testified that a Ms. Carmen Clark, who is black, "an excellent nurse," worked for her for some ten years and was offered a team leader position.

149Ms. Claire Smith worked in Unit 7-North as a psychiatric nurse from 1969 until 1975 under Anne Lennox as unit administrator. In 1974 Ms. Smith made a medication error and was suspended for three days. On May 4, 1975, she was advised that she had failed to administer a medication (Vol. V, p. 193) and given a warning letter. On July 1, 1975, she made a further medication error. As a result, Ms. Smith involuntarily resigned in 1976 (Vol. V, p. 200). On cross-examination she was very cautious about alleging that her own treatment was due to racial discrimination (Vol. V, pp. 206, 207).

150Ms. Lennox testified that she obtained a "forced resignation" from Ms. Smith because she "had demonstrated that she was not competent to administer medications" (Vol. IX, p. 20). The problem was reported to the College, and Ms. Smith's licence was suspended (Vol. IX, p. 21).

151Ms. Saramma Thomas, born and raised in India, worked in Unit 8-West from 1969 to 1971, and was then transferred to unit 6-West. Until 1973 she got along well there, but in 1973 began to experience problems with her unit administrator, a Ms. Bremmer (see Exhibits #11 and #12). Ms. Bremmer reported to Ms. Caron, and Ms. Thomas felt that Ms. Caron was at the root of Ms. Thomas' problems (Vol. VI, p. 67). Ms. Thomas felt that the administration of the Hospital "didn't like me" (Vol. VI, p. 53). However, Ms. Bremmer later wrote a very favourable reference for Ms. Thomas (see Exhibit #17; Vol. VI, pp. 69, 70). Ms. Thomas' evidence was of no import whatsoever in respect of the issues of this inquiry.

152Ms. Gloria McKenzie, who is from Jamaica, worked at North York General Hospital from about 1971 to 1980, working on Unit 7-West from 1971 to 1975. At first she worked with Ms. Ouellette as a staff nurse and they got "along quite well," Mrs. Ouellette sometimes giving her a ride home (Vol. VI, pp. 80, 81). However, Ms. McKenzie felt that when Ms. Ouellette became the unit administrator she changed, becoming "quite bossy" (Vol. VI, p. 81) after an incident involving a conflict betwen two nurses which Mrs. Ouellette thought Ms. McKenzie, as the "charge nurse," had mishandled (Vol. VI, pp. 86, 106). Ultimately, Ms. McKenzie applied for a transfer, and went to unit 2-North, however, she testified, "it was not long before people were picking again on 2-North" (Vol. VI, p. 114). Ms. McKenzie felt Ms. Ouellette "didn't like foreigners or blacks at all" (Vol. VI, p. 117). However, the evaluations of Ms. McKenzie by Ms. Ouellette of July 23, 1974 (Exhibit #18) and April 4, 1975 (Exhibit #19) were fairly positive.

153Ms. Ouellette testified that while at first Ms. McKenzie "was extremely disorganized" she improved, and this was reflected in an improved evaluation (Vol. VII, pp. 175, 177). Ms. Ouellette's criticism of Ms. McKenzie's performance, to which Ms. McKenzie objected, was made in respect of her 1974 evaluation. However, Ms. Ouellette testified that because Ms. McKenzie's performance improved over the next year, the 1975 evaluation was "good" (Vol. VIII, p. 259). Moreover, Ms. Ouellette testified that because Ms. McKenzie's "performance had improved . . . (she) would have given her a good reference" when she requested a transfer (Vol. VIII, p. 261).

154Ms. Ouellette testified that, apart from Ms. Joseph, she had hired two nurses of Chinese origin, and had hired another nurse who was black after Ms. Joseph left, but that the offer of employment was first made in January, 1978 (Vol. VII, pp. 181, 182). Ms. Ouellette testified that until the hearing, no employee (apart from Ms. Joseph through her Complaints) had ever suggested to Ms. Ouellette that she discriminated on a racial basis (Vol. Ill, pp. 177, 178).

155It is alleged that the evidence of Ms. Joseph, Ms. McKenzie, and Ms. Ashmole suggest a "pattern of racial discrimination" (Vol. VIII, p. 264). Although they are non-white, the only common thread to their situation at the Hospital is that at various points of time their unit administrator, Ms. Ouellette, criticized their poor performance and suggested they should improve, that this was resented by the three nurses. Ms. Ouellette was simply meeting her responsibility as unit administrator, and assessing these nurses' performances on the merits. In my view, and I so find, she did not racially discriminate against any of these nurses. The implication of racial discrimination, if indeed that is what Ms. Ashmole and Ms. McKenzie were making (as they were somewhat hesitant as to whether they in fact were making such an accusation), was unfounded and unfair.

DECISION

156Considering all the evidence, I have no doubt in finding that Ms. Ouellette did not discriminate against Ms. Joseph on a prohibited ground in respect of Ms. Joseph's employment. Nor did Ms. Caron, Ms. Evans, or Ms. Lennox, the other principal persons in management at the North York General Hospital who dealt with Ms. Joseph in this dispute, in any way unlawfully discriminate against Ms. Joseph. Moreover, in my view, there is no evidence suggesting discrimination against Ms. Joseph on a prohibited ground by anyone at all at North York General Hospital. Ms. Joseph named numerous team leaders, union representatives and others whom she saw as being part of a conspiracy at the Hospital to discriminate on prohibited grounds against her. Her perception was a clear reality to her, but it had no objective basis at all in the real world. On all the evidence, I have no doubt in dismissing the Complaints. Similarly, on the evidence given at this hearing, there was no basis in fact for any suggestion that the College of Nurses discriminated unlawfully against Ms. Joseph in suspending her licence. Finally, I find on the evidence that there was no reprisal by anyone against Ms. Joseph because she filed her Complaints.

157This case involved a real and continuing tragedy. Ms. Joseph is obviously capable of being an excellent nurse and indeed, performed as such (as evaluated by her main protagonist, Ms. Ouellette) from 1975 to mid-1978. From about mid-1978 to the point of her dismissal, the relationship between Ms. Joseph and Ms. Ouellette progressively declined. The simple points that stand out clearly in the evidence are that from about mid-1978 onwards, Ms. Joseph simply refused to accept any constructive criticism from her unit administrator, was adamant and vocal in her own view that her judgment in nursing care situations was the one and only possible view, was insubordinate and rude toward Ouellette and other management and staff at the Hospital, and that her only response to the growing "communication" problem was that it must be that she was being discriminated against unlawfully.

158The Complainant is certain in her own mind that Ms. Ouellette, who hired her and gave her strong evaluations for three years, suddenly and unexplainably became a racist. The Complainant refused to accept the very sensible suggestion of both management and her union representatives to seek medical counselling for her very disturbed view of reality. The Complainant refused these constructively intended suggestions, in part because she was suspicious of the motivation that might underlie the medical advice she might receive. Whatever the unknown cause of this very unfortunate Complainant's misconceptions, two things are certain. First, she needed help very much, but refused to accept the advice received from her perceived enemies in this regard, and it would appear so far as the written record indicates, her legal counsel did not question her warped perspective that the Hospital was out to get her. When the Hospital offered her a transfer to another unit, her position was to refuse because she perceived that the unit administrator of that other particular unit was part of a broader plot to get her. The Complainant needed advice from someone who could help her to see herself as the possible problem, not advice that would only compound her distortion of reality.

159This matter has proceeded through this lengthy human rights inquiry, and as well has been the subject in court hearings. The Complainant continues to suffer grievously as is apparent from her testimony. Moreover, she is no longer able to practice her profession. As time has gone on her distorted view of reality has become increasingly entrenched. Ms. Joseph would seem to be someone who has been, and could again be, an excellent psychiatric nurse. My impression is that she is not only professionally capable, but is also a very nice and likeable person generally, however, her life has become a tragedy because of (what I in language as a layperson would refer to as) a very fixed delusion.

160Mr. Judge and Mr. Field who represented the Commission at this inquiry (but did not represent the Complainant in giving her advice on her dispute with the Hospital as it progressed), did an excellent job in thoroughly reviewing all the evidence and rigorously cross-examining witnesses. Likewise, Mr. Riggs' approach in representing the Hospital was to allow for a thorough review of all possibly relevant evidence, in pursuit of the objective truth in respect of the issues. The voluminous evidence has been gone over painstakingly, and the ultimate conclusion can only be that no one at the North York General Hospital has in any way discriminated against Ms. Joseph on a prohibited ground. To the contrary, Ms. Joseph was at all relevant times treated with dignity, respect and fairness by Ms. Ouellette, Ms. Caron, Ms. Evans, Ms. Lennox and the others at the Hospital who dealt with her.

161I have no doubt that Ms. Ouellette and others at the Hospital at different times showed some frustration with Ms. Joseph, and Ms. Ouellette became ”˜picky' and ”˜curt' at times in criticizing Ms. Joseph because of this frustration. No human being is perfect and the wear and tear of ordinary inter-personal relationships inevitably results in occasional departures from perfection. But there was a total absence of any racial motivation on Ms. Ouellette's part in her relationship with Ms. Joseph.

162Ms. Ouellette and the other management personnel on the whole showed remarkable restraint and consideration in dealing with Ms. Joseph. Undoubtedly, Ms. Ouellette in particular has suffered a good deal because of the unfounded accusation of racism brought against her. She too has been a victim of the very unfortunate tragedy that is seen in this matter. For the reasons given, the Complaints are dismissed.