Ontario Human Rights Commission v. McKinnon, 2005 HRTO 15

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Michael McKinnon

Complainant

-and-

Her Majesty the Queen in Right of Ontario

(Ministry of Correctional Services), and Frank Geswaldo,

George Simpson, Phil James and Jim Hume.

Respondents

INTERIM DECISIONS AND RULINGS

On the Clarification of the Implementation Orders

and Related Matters

Adjudicator: H. Albert Hubbard

Date: May 19, 2005

Citation: 2005 HRTO 15

Human Rights Tribunal of Ontario

400 University Avenue, 7^th Floor

Toronto ON M7A 1T7

Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946

TTY (416) 314-2379 / 1-800-424-1168

E-mail hrto.registrar@jus.gov.on.ca

Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Jennifer Scott, Counsel

Michael McKinnon, Complainant ) Kate Hughes,, Counsel

Her Majesty the Queen in Right of Ontario, )

Ministry of Correctional Services, Frank ) Kate Stephenson, Counsel

Geswaldo, George Simpson, Phil James and )

Jim Hume, Respondents )

Ontario Public Service Employees Union, ) Timothy G.M. Hadwen,

Intervenor ) Counsel

INTRODUCTION

1A hearing was held on April 11, 2005, in response to the parties’ request for clarification of the orders set out in the Tribunal’s 2002 Decision on Implementation. The parties were particularly concerned with matters pertaining to the scope of the mandate of the “third party” appointed in accordance with Order 14, which reads as follows:

14. That within two weeks of this decision a third party, competent to develop and oversee the delivery of the various training programmes referred to in these orders, be appointed to carry out these duties at the expense of the Ministry [of Community Safety and Correctional Services, as it is now called]. The [Ontario Human Rights] Commission, which, but for want of resources, would have been ordered to undertake these tasks, shall nominate the said third party, and that third party shall monitor progress and report to this Board at intervals no shorter than six months.

2It is useful as well to set out the final paragraph of that decision, parts of which have been emphasised for reasons that will become apparent. That paragraph is as follows:

313I shall remain seized of these matters until such time as this entire series of orders has been implemented and the complainant's remedial right to full compliance with the Code in respect of future practices has been satisfied in substantial conformity with the orders as read in the context of the findings, conclusions and reasons found in this decision and in the April 1998 decision of this Board. If the parties are unable to agree with respect to any of the matters regarding which their common approval is required, or if there are any other matters relating to implementation of these orders that are in dispute or appear to require clarification, I am to be contacted without delay so that I may hear and decide such matters. [Emphasis added.]

3On January 8, 2003, the Commission nominated “Charles C. Smith Consulting” as the third party referred to in that order. Duly informed of this nomination, and in receipt of the relevant documentation, the other parties raised no objection to it. Counsel for the parties subsequently exchanged a number of letters regarding their concerns about several matters, including “timelines”, “ongoing conduct of continued harassment and discrimination” and “compliance with Order #9". (In this regard, see Ms. Hughes’ letter of January 26, 2005 addressed to Ms. Corbold of the Ministry’s Legal Services Branch.) On February 3, 2005, following a lengthy delay occasioned by the Ministry’s unsuccessful appeals to the Divisional Court and the Court of Appeal, the consultants (Charles Smith and his associate, Tina Lopes) submitted a substantial outline of the Ministry-wide training they proposed to carry out. It is the Ministry’s position that what is proposed in that document (the “first semi-annual” report pursuant to Order 14) exceeds the consultants’ proper mandate. A conference call held on March 8, 2005 in relation to these various concerns led to the scheduling of the April 11, 2005 hearing, in preparation for which the consultants were to provide a more complete rationale for their proposal, and written submissions from the parties regarding the consultants’ mandate were to be exchanged.

4In the meantime, the Ministry engaged Raj Anand as its new counsel. Mr. Anand served notice of his intention to move for leave to call Professor Joanne St. Lewis as an expert witness to provide evidence concerning the consultants’ proposals. The other parties indicated that they would object to such evidence being received. Counsel for the Complainant made a formal motion seeking to disqualify Mr. Anand owing to an alleged conflict of interest, and a conference call was arranged for April 8, 2005 in order to deal with that motion. Although he denied such conflict, in deference to the complainant, Mr. Anand withdrew as counsel shortly before that conference call was convened. He was replaced as counsel to the Ministry by Kate Stephenson. In the meantime, a notice of motion made by Timothy Hadwen on behalf of the Ontario Public Service Employees Union (the “Union”) for limited intervenor status was received on April 7, 2005 along with the request that it be heard on April 11. During the conference call on April 8, 2005 it was agreed that such matters as those referred to in Ms. Hughes’ letter of January 26, 2005 would have to be dealt with at a later time, and that the matters to be dealt with at the hearing on April 11, 2005 were these: the nature of the consultants’ relationship with the other parties; the Union’s motion for intervenor standing; the Ministry’s motion for leave to call expert evidence; the scope of the mandate of the consultants.

The Independence of the Consultants

5In paragraph 12 of its submission of March 31, 2005 the Ministry reveals that it has misconstrued the relationship between the consultants and the parties to this proceeding. That paragraph, with my interpolations in square brackets, is as follows:

12. It is notable that the consultants are appointed in lieu of the Commission, due to the lack of resources. The consultants are entirely wrong when they state that they were hired because of the appropriate “competencies not being available ... sufficiently within the Commission.” [If there are no resources, how is it wrong to say that the “competencies” are not available?] On the contrary, the consultants’ role must be understood as akin to the role that the Commission might normally play in implementing a decision. [The words “on the contrary” suggest that what comes after belies what went before. Assuming that the consultants’ role was akin to that of the Commission, in what sense does that contradict the assertion that the competencies are not available within the Commission? What role does the Commission “normally play in implementing a decision” such as this? Apparently, the Commission has had no resources since on or before 2002 enabling it to devise, deliver or monitor such programmes, or even to examine them for approval purposes. Thus, doing so can hardly be regarded as a role it “normally plays”.] Obviously, the Commission would not run the Ministry’s anti-racism initiatives, yet this is what the consultants propose to do. [Unless the Ministry has a separate agenda, the “anti-racism initiatives” in question would appear to be those of the consultants.]

6Since the 2002 orders are to be read in the total context of both decisions, considerable light is shone on the relationship between the consultants and the parties by contrasting Order 12 of the 1998 decision with Order 14 of the decision on implementation. That 1998 order is as follows:

12. That the respondent Ministry establish at its own expense a human rights training program that meets with the approval of the Ontario Human Rights Commission, which may be called upon for assistance in that regard, such program to be conducted within six months of the date of this award.

7According to the Court of Appeal, the evidence supports my finding that for want of good faith the Ministry failed to provide a proper and timely programme in accordance with that order. For its part, the Commission (through want of diligence) failed in its responsibility to make sure that the order was complied with. Given these failures, it would have been folly to entrust these parties with the same responsibilities. Thus, the Ministry has no authority “to establish” (or to develop and deliver) the programmes required by the present Order 14, nor is the approval of the Commission required. The programmes are to be devised and implemented by a third party, the Commission’s only role in that regard being to nominate that party—a role entrusted to it because the Tribunal is in no position to undertake it and the Commission (the good faith of which has never been in issue) has the resources to at least identify and select a competent third party.

8Having regard to the findings and reasons in both decisions, the observation in Order 14 that “but for want of resources” the Commission “would have been ordered to undertake these tasks” cannot be taken to mean that the third party is in some way to be identified with the Commission. Contrary to the view of the Ministry, the consultants are not to be seen as akin to the Commission, much less as its agent. One cannot be a “third party” if one is merely the surrogate of some other party. The Commission was ordered to nominate that third party, not to hire and direct personnel answerable to it who would carry out my orders on its behalf.

9In the course of my oral decision denying the motion for leave to call an expert witness, I misspoke by referring to the third party consultants as being “neutral” when what I meant was “unattached” to any party. This invited the subsequent observation by the Ministry (when dealing with the clarification of the orders) that, since the text of the consultants’ submission of March 21, 2005 contained comments critical of it and was adversarial in nature, the consultants were not comporting themselves in a neutral fashion and could not carry out a proper monitoring role. What I ought to have said, of course, is that the consultants are “independent”. They are to “report to this Board at intervals no shorter than six months”, and to no one else.

10The consultants’ submission of March 21, 2005 was required by the Tribunal in response to the Ministry’s assertions that they were acting outside the scope of their authority, and that their proposal was flawed. They were entitled to point out what they believed to be the Ministry’s motivation in attempting to curb their mandate as they perceive it. While the Ministry might feel to some extent beleaguered, what has to be borne in mind is the assumption that, pending the fulfilment of my orders, its workplaces remain infected with racism, a condition for which it is responsible. Moreover, as was observed by Justice Lane in the Divisional Court decision of March 13, 2003: “... there has been a ten year history of resistance by this Ministry to the change of mind-set necessary to free the workplace from racism. ... [The 1998 and 2002 decisions] indicate the existence of a shameful situation that is totally unacceptable in a civilized country.” In this context, the following observation made by Dr. Agard (found in paragraph 271 of the decision) would seem to capture the thrust of the consultants’ concern:

271... You know while I was working as an administrator I used to talk about circling the wagons. That was the corporate behaviour and mentality. By that I mean that when the time comes and difficulties arise, what we do as a corporate directing mind operation is that we see how best we can get out of this; and therefore we miss the opportunity. So, when you ask me about the “will”, I think I have to bring it back to my understanding of organizational behaviour, and what is happening as a Ministry is that, each time, we circle the wagons ... [Emphasis just added.]

11Although raised at the end of the hearing, the matter of “contractual difficulties” is best dealt with in the context of the relationship between the consultants and the parties. I am gravely concerned by the difficulties the consultants say they have encountered in this context (see item 3 at page 6 of their Report of February 3, 2005). Particularly alarming is their impression that “The Ministry has made two recent efforts to gain control over the process, timeframes and content of the consultants’ work ...” That is, of course, the crux of these directives and will be thoroughly addressed herein. The consultants go on as follows:

At the same time, through the mechanism of a legal contract, the Ministry is attempting to hold the consultants accountable to itself. Specific clauses and the language contract have been drafted to require the consultants to deliver products “acceptable” to the Ministry representative. Further, the contract seeks to take control of all intellectual property developed by the consultants and has included clauses whereby the Ministry may terminate the contract with or without cause. These are major concerns to the consultants who have been appointed [i.e., “nominated”] by the Ontario Human Rights Commission and, as such, had been informed that they are accountable only to the Board [i.e., the Tribunal].

12While the consultants’ Report of March 21, 2005 indicates that some progress has been made to resolve these issues, the very attempt to constrain and control the consultants by the terms of the contract by which they are to be remunerated is disturbing. Although questioning the scope and content of the consultants’ proposal is legitimate at this stage of the process of implementation, the contractual manipulation of the consultants as described by them amounts to a blatant attempt to seize control of that process. It will not be tolerated.

13Because the Ministry must bear the expenses involved in the consultants’ work, it is not unreasonable for it to seek a contractual basis upon which to determine its financial responsibilities. However, according to their written submissions, contractual matters between them are at an impasse. As it happens, one of the Ministry’s suggestions for resolving the problem flows from its misunderstanding of the relationship between the Commission and the consultants. In paragraph 27 of its submission the Ministry states that:

27. The consultants continue to complain about the fact that the Ministry requires a contract with the consultants. It is a sine qua non of doing work for the government – being paid by public funds – that a contract is required. Such a contract must include some element of accountability to the Ministry, because the Ministry is responsible to the taxpayers for the proper use of public funds. A contract could have been made between the Commission and the consultants, with the Ministry being responsible to reimburse the Commission, but the Commission took the position that the issues such as ownership of work product were between the consultants and the Ministry, and not the Commission. The Ministry has paid for legal advice for the consultants and is working toward finalizing a contract that is acceptable to both parties. The consultants’ unwillingness to recognize the importance of public accountability is entirely unwarranted and unfair.

14What strikes me as unwarranted and unfair is the suggestion that to reject an inappropriate contract with the Ministry is to dismiss the importance of public accountability. The consultants and the Ministry must be at arms length, and any contract between them must reflect that relationship. The legal requirement that it must pay them cannot be taken to confer upon the Ministry control of some sort over the consultants’ work or ownership of the product of that work. They do not work for the Ministry, and they cannot be fired by the Ministry. Whereas it seems obvious that their invoices and accounts must be submitted to and verified by someone, any contract entered into by them regarding their services must reflect those basic premises. If there were some independent government agency (such as the Shared Services Bureau) that could enter into such a contract, the problem might be readily resolved. Be that as it may, since they are entirely independent of each other, it would be inappropriate for the consultants to enter into a contract with the Commission in respect of their work—unless all the parties were in complete agreement with such an arrangement. If that were so, I would not object to it. Apart from insisting upon the above conditions, it seems to me that I have nothing to contribute to the resolution of this contractual matter, although I can be spoken to in that regard if the parties think that might be useful. It is to be hoped that the legal advice that the Ministry and the consultants indicate they are receiving will resolve this issue.

15Before leaving this matter, it must be noted that the consultants cannot continue without some assurance of timely remuneration, and I am disturbed by the possibility that their work might be seriously impaired by payment issues. That the implementation of the orders might be thus put in jeopardy is unacceptable; for that reason, I expect the consultants to contact me promptly if their difficulties in securing remuneration appear to them to require the intervention of the Tribunal.

The Motion for Intervenor Standing

16After considering the submissions of counsel for the Union and for the parties, the applicant’s motion was granted for reasons delivered at the hearing. However, since the Union’s interest relates directly to the mandate of the consultants, it is useful to confirm and expand on those reasons in these directions to the parties.

17The Union, as it requested, was granted limited intervenor standing “for the purpose of representing the interests of bargaining unit members as they are affected by and benefit from the systemic remedies” through making suggestions about the design and implementation thereof. However, such intervenor status is not to be read as clothing the Union with any responsibility for, or authority over, the implementation process. In the course of representing the interests of its members, the intervenor may make submissions to the Tribunal that do not unduly delay the proceedings or prejudice the parties, but it may not call evidence or participate in the examination or cross-examination of witnesses. In so deciding, I gave particular regard to Jeppesen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1, in which the considerations that may assist a Tribunal in deciding whether intervention should be granted are dealt with.

18The Ministry was opposed to the granting of intervenor status to the Union on the grounds that it has no “special contribution to make” to the work of the Tribunal, and that such standing is unnecessary in any event. Two decisions were referred to in support of that submission: Locke v. Ontario (Ministry of Community and Social Services) (2004), CHRR Doc. 04-246, 2004 HRTO 12; Forrester v. Peel (Regional Municipality) Police Service Board (2005), CHRR Doc. 05-015, 2005 HRTO 3.

19Counsel for the Ministry suggested that the only useful contribution the Union might make to the process of implementing the Tribunal’s orders would be by cooperating with the consultants. According to her, such cooperation is already taking place, and intervenor status is not a necessary condition for it to continue. As to the lack of anything special to contribute to the implementation process, counsel referred to the statement in the schedule attached to the Union’s motion that its “understanding is that the main issue to be dealt with at the upcoming hearings is the appropriate mandate for the consultants ... [and we] ... do not expect to have anything further to add on this point …”. However, it is to be noted that the Union’s statement continues as follows: “... unless it was proposed to narrow the scope of the consultants’ work to the point that there was a risk of lack of recognition of the unionized nature of the workplace.” And, of course, what is at issue is the Ministry’s much narrower view of their mandate than the one taken by the consultants and the other parties.

20The Ministry also expressed its apprehension that matters might be complicated by a “blurring of the issues between labour relations and what the consultants are to do.” I do not share that misgiving. Whereas the implementation of systemic remedies intended to affect how an employer and its employees conduct themselves in the workplace is (surely) an aspect of “labour relations”, it seems readily distinguishable from all other labour relations matters. More important, however, since its members are bound to be significantly affected thereby, it seems obvious that the Union has a major interest in the systemic remedies ordered by the Tribunal. Moreover, in order to be as effective as possible, those remedies must be coordinated with other programmes within the Correctional Services Division of the Ministry, such as the Systemic Change Programme. It is to be noted that, although the remedies are Ministry-wide, the other parties lack full access on an ongoing basis to the entire range of Ministry operations, whereas the Union has such access. Thus, contrary to the view of the Ministry, I think the formal recognition accorded by granting the Union intervenor standing is likely to be of assistance to the consultants and, hence, to the Tribunal as well.

Leave to Call an Expert Witness

21In support of its motion for leave to call expert evidence, counsel for the Ministry referred to the required “Summary of Proposed Evidence” to be given by its expert witness; she pointed out that the section “regarding the topics to be addressed by Professor St. Lewis” consisted of the following questions the Ministry intended to ask her regarding the “appropriateness” of certain aspects of the consultants’ proposal:

1. Is the scope of work proposed in the reports appropriate for consultants hired to develop and monitor anti-racism training and education programming?

2. Are the proposed timelines in the Reports necessary or appropriate?

3. Have the consultants proposed an appropriate scope of fact finding and needs assessment?

4. Is an advisory committee necessary to the development of training and education programmes by consultants?

5. What should the Tribunal expect to receive from the consultants?

6. What is involved in monitoring training and education programmes?

22Clearly, those questions have to do with both the scope of the consultants’ mandate and the content of their proposal, and the purpose of calling Professor St. Lewis would appear to be to elicit testimony to the effect that the latter exceeds the former. The “content” of their proposal consists of the consultants’ outline of what needs to be done to accomplish their mission. To ask in the present context whether the “scope of that work” is appropriate is to suggest that it is not; it is to suggest that it falls outside the scope of my orders. And so it is with the other questions, as well.

23Thus, to elicit the responses it favours, the Ministry wants to call an expert to explain to me what it is I intended by my orders (the mandate), and to show how the range and kinds of work now proposed by the consultants (the content) deviates from those orders. One would think a philologist better suited to that task than an expert in race relations; whereas the former could speak to the meaning of what I wrote, the latter can only suggest that I should not have written it.

24The list of questions intended to be asked by the Ministry does not go to allegations of fact with which it takes issue, but with whether the consultants’ opinion should be replaced by that of its expert, who presumably would offer the opinion that they are not doing things the right way—that is to say, in the way she would do them. What is suggested is at bottom an exercise in second guessing the consultants as to their view of their mandate and the manner in which they propose to discharge it.

25It was the Ministry’s contention that the consultants’ proposal regarding these matters is based on “factual assertions” that were not part of the evidence given at the hearing, that the validity of those assertions should be reviewed by the Tribunal, and that the Ministry is entitled to “test and contest” those assertions through the presentation of expert evidence. Of particular concern to the Ministry were the projected time lines for the delivery of the various training programmes, the conducting of “pilot projects” in a number of locations around the province, the assumption of authority to direct managers and staff in the creation of various projects, and the extent of monitoring to be undertaken. Since these matters are more pertinent to the issue concerning the conclusions to which I should come in clarifying my orders, the Ministry’s submissions thereon were incorporated by reference as an integral part of its position regarding the matter of clarification. Consequently, a more detailed response to those aspects of its submissions is called for than was required for the disposition of this particular motion at the hearing.

26As to the time lines, counsel submitted that, whereas the “factual evidence” that was before the Tribunal was that it could be done within six months, the “factual assertion now being made by the consultants is that it requires five years”. In counsel’s view, the “factual evidence” on which the various “training orders” were based consisted of the testimony of Dr. Agard, the expert witness called by the Commission. Although a considerable part of that testimony (as transcribed by me) is set out in the Decision on Implementation, counsel took me to the following excerpts from the official transcript of the proceedings prepared in relation to the Ministry’s appeal of that decision (at p. 4636, lines 7-22, and p. 4637, lines 14-15):

... And my sense is that there would have to be some, what I would call some “quick fixes” specific to Metro East Detention Centre. I think that what we have talked about in terms of organizational change is also good practice, is good managerial practice. And so the people at the Metro East Detention Centre, within a very short period of time, should have some anti-racism training. This Systemic Change Training Programme is broad. It’s wide. But I think its like laser therapy. Let’s make sure that that mould gets fixed. We know that the rest of the body needs some healing too, and if we don’t fix the rest of the body, it is going to get reinfected. But I think that you need to have some immediate – and it will have a multiplying effect ... [at p. 4637] ... I think that anti-racism training could easily be done within 60 days.

27After submitting that those excerpts constitute “the evidence upon which [the Tribunal] made the orders with respect to timing at Toronto East”, counsel continued to read from Dr. Agard’s testimony (at p. 4691, lines 6-16) as follows:

Q. And if I could understand the timing, I think you had some comments with respect to a delay; that there would be no reason to delay this training, is that correct?

A. That’s correct.

Q. And you set that out in your report. And that would have been your report in April of 2001; is that correct?

A. Mm-hm.

Q. And you set out a timeline of how many months it should be within?

A. Six, I believe.

[Then, at page 4692, lines 6-16]

Q. So in both of your reports you recommend - -

A. Correct.

Q. - - managers have further training?

A. Yes, with a sense of urgency.

Q. Yes. And there’s a sense of urgency?

A. That’s the six-month - - -

Q. Right?

A. - - indication.

Q. And that’s six months from when you made that recommendation in 2001; is that correct?

A. Correct. ...

28According to counsel, the preceding excerpts from Dr. Agard’s evidence relate to the urgency of the situation as then perceived by the other parties, her point being that the time lines proposed by the consultants and now endorsed by those parties are inconsistent with their earlier perception.

29Given the distinction between starting and completing a programme, I have emphasized certain phrases in the next excerpt from Dr. Agard’s evidence that was read by counsel for the Ministry (p. 4693, line 16 to p. 4694, line 3):

Q. Now, in terms of the training, there may be some issues about how, if there’s an order with respect to training managers, how long it would take to get it up and running. Now, Professor Hubbard’s original decisions asked for training within six months.

A. Mm-hm.

Q. It was not complied with. The training was much longer before it got implemented.

A. Mm-hm.

Q. And given what they’ve gone through that you’re aware of, in terms of the training program do you believe that it could be up and running within six months?

A. Yeah. I believe that it can be.

30It was submitted that all of the preceding extracts from the transcript of evidence (most of which are not set out in the decision) were “the facts” before me at the time I made the decision, and that “other facts” that were never the subject of evidence are now being put to me through the consultants. The Ministry’s position, it was said, is simply that, in order to make another decision (“a decision which changes the initial decision”), I need to have all “the facts”—particularly, of course, those that would be garnered through the evidence of an expert witness.

31It is useful to contrast with the testimony to which we were taken by the Ministry some of the passages in the decision that indicate: first, a newfound sense of urgency on the part of the Ministry; second, that only the complainant (and, I think, understandably so at the time) pressed for the six-month time frame; third, that the time line in the orders assumed that implementation of the Devlin recommendations would have been well underway by the time the decision was handed down; fourth, that I stand ready to change the time lines should the need arise. The relevant paragraphs (as reported in (2002), 2002 CanLII 46519 (ON HRT), 45 C.H.R.R. D/61), with interpolations and emphases added, are as follows:

288The Ministry is of the view that the Devlin recommendations cannot be implemented in a period of six months. Counsel made that point as follows (Tape 1, Side A, July 5, 2002):

... in the Ministry’s view six months [as per the Complainant’s submission] is not at all realistic. We have heard evidence from Deborah Newman and Ernie Harris about what is required to implement the kinds of recommendations made by Devlin. A number of the recommendations made by Devlin, including those that the Ministry accepted, entail restructuring some administrative functions within the Ministry. Just to be realistic and fair I would say it is not something that can occur within six months. So if, Professor Hubbard, you are considering an order of this nature I just ask that you turn your mind to the evidence that you have heard about what is required. Even in the delivery of a training programme, as we heard in the evidence, the Systemic Change Training Programme, it took some time to get that implemented because it was a huge undertaking, as we heard from Ernie Harris. So six months, I would submit, is not at all realistic or possible, and it wouldn’t be reasonable to set a deadline that’s just not something that’s capable of being met. ... Something in the range of two years [would be reasonable]. That doesn’t necessarily mean that it would take two years for all of those recommendations to happen. Some of them are simpler and some of them -- for example, I just indicated in my response to the other orders sought, that the training for managers at the Toronto East Detention Centre -- no one is suggesting that that needs to take two years, but things do that require administrative reorganizing.

289I accept the reasonableness of that position, and I note that counsel for the Commission is also of the view that six months is too short a period of time in which to expect Ministry-wide orders to be fully complied with. The Commission requested a period of eighteen months to two years for the implementation of the recommendations because (Tape 2, Side A, July 4. 2002):

... there are going to be things that are going to take some time; and, although I certainly agree with Ms. Hughes’ submissions that it has to be quick because it has already taken too much time, you also want to give it enough time that it’s actually going to be meaningful. So two years may be too long, six months, quite frankly, may be too short. One of the things they [the Ministry] said they would do is set up a conflict resolution unit so all of the conflict is in fact located in one unit. That may take some time. ...

290Whereas eighteen months might be an appropriate period of time in which to complete the Devlin recommendations, it must be observed that all but two of them have been “accepted” and the process of implementing them was said to have been commenced even before the hearing of evidence ended on May 29, 2002. [What steps, if any, have ever been taken to implement them, and when, I do not know.] In my view, time should begin to run from that date rather than from the date of this decision. Thus, assuming that the Ministry was sincere in what it said regarding these recommendations, there should be no problem in meeting a January 1, 2004, deadline for their full implementation. It is obvious that the two unaccepted recommendations can be readily implemented, and there is no reason to exclude them from that deadline. Since I shall remain seized of these matters, I can be spoken to (but not ex parte, of course) regarding any extension of time that circumstances might warrant.

32I am not going to belabour the above extracts, the emphasised parts of which speak for themselves. However, the stipulation at the end of paragraph 290 indicates that, subject to an application to vary them, the time lines are to be observed. Whereas the consultants may legitimately posit the need to extend them in order to complete their mandate, in face of that stipulation, any extension of the time lines requires the Tribunal’s approval. After all, the Ministry was found to have failed to comply with the 1998 decision in three respects: the training programme approved by the Commission was not the one contemplated by Order 12; the training programme actually delivered was not the one approved by the Commission; and that programme was not conducted within the required sixth-month period. If the time lines as they stand are not respected, any party could subsequently claim that the orders were not complied with. Thus, there are two questions relating to the time lines: What are they, and should the Tribunal exercise its retained jurisdiction (as per paragraph 290) to extend them? Having regard to the substance of the submissions, both matters are before me.

33It is to be noted that the evidence as a whole suggests that a minimum of three years would be required to complete the change process; for instance, Devlin’s recommendation 13 requires a monitoring mechanism “for the first three years of the new process”. Counsel for the Ministry pointed out at the hearing that the three years had to do with monitoring, the “delivery” process as then contemplated being much shorter. Of course, since the consultants (as will be seen) are to do the monitoring, they must remain involved for that length of time in any case. Be that as it may, for reasons I find compelling, the consultants, whose work only really got underway in late 2004, estimate that it will take considerably longer to complete it, and they conclude their “first semi-annual report” with this observation: “Timeframes: Periodic evaluations will be done every year as part of reports to the Tribunal. Final evaluation report will be in December, 2009". Accordingly, I am extending the time for the completion of all aspects of the change process to the end of 2009.

34Both the complainant and the Commission are legitimately chagrined at the length of time it has taken to commence this process—through no fault of theirs; and, while the Ministry may genuinely share their concern about the length of time projected for its completion, its primary concern has to be the complete eradication of the “the existence of a shameful situation that is totally unacceptable in a civilized country”. Time after time, despite the clearest evidence of serious problems, the Ministry has thrown up roadblocks to reform. What remedial actions it could not curtail or shelve in the past, it sought to delay; now, it seeks to hasten a process that is at last underway, apparently in order to curtail it. The party with the greatest interest in completing the process as quickly as possible is the complainant, not the Ministry; and here is what counsel for the complainant has to say in that regard (at page 7 of her April 7, 2005 submission on his behalf):

... Mr. McKinnon is of the view that first and foremost, the remedies, and in particular, any training and education remedies must be done properly and effectively in whatever amount of time it takes to do so. On the other hand, Mr. McKinnon has a keen interest in returning to his workplace and in the remedies being effected as soon as possible. ... Accordingly, Mr. McKinnon is consenting to the extension of time lines but would urge implementation be done as soon as reasonably possible.

35Counsel for the Ministry went on to say that what is true regarding the time lines “is true with respect to what the programming needs to include”(or, more precisely, from the Ministry’s perspective one supposes, “needs to exclude”). This clearly alludes to the content of the proposal. She submitted that Dr. Agard’s evidence was that implementation of the thirteen Devlin Report recommendations and the eight recommendations in the Evaluation Report would (without more) constitute a systemic change programme. “And”, she said, “that’s what you ordered, that by implementing these things you will effect systemic change. And what the consultants are saying is ‘that’s not true, in order to implement systemic change you need to do more than those two things’. And that is contrary to the facts that were before you.” In support of this, counsel read the following passage from Dr. Agard’s testimony (at p. 4617, lines 7-23), placing particular emphasis on the last sentence:

... And I think where the Devlin reports make a distinctive contribution is that the Devlin reports set in motion a sort of change agenda, if you know what I mean. It sets in motion a kind of a plan. I may disagree. You may bring about 15 different consultants here. They may disagree about whether it should be called a CRU or whether the points with respect to management training, you know, should include an approach that says it’s diversity training as opposed to something else, et cetera, but I think what the Devlin reports do and, in a sense, I think we were privileged to do two pieces of work concurrently because they are pieces that dovetail. And what the Devlin reports do is the Devlin reports kind of lay out quite emphatically what are the pieces of a contemporary plan if, in fact, the Ministry is going to bring about change.

36Before turning to a detailed examination of the Ministry’s position, it is salutary to point out a major difference between the Devlin Report and recommendations, on the one hand, and the object of the exercise the consultants must undertake, on the other: the Devlin endeavour did not have as its primary focus the matter of racism. That difference is pointed out by the consultants in the context of the time line involved in Devlin recommendation 2. In their March 21, 2005 Report (at page 6) they say that:

... Devlin and Associates Canada were asked to conduct a review of issues related to the Implementation of the Ministry’s Workplace Discrimination and Harassment Prevention (WDHP) Operating Policy. Neither the Report, nor the Recommendations, address the specific area of racism, or the types of systemic remedies that would be required to create a racism-free workplace. It focuses specifically on the skills required by managers to implement the WDHP policy, hence the recommendation for “a mandatory training program needs to be designed and delivered to every manager, including acting managers, within a six-month timeframe.” [Emphasis added.]

37The Ministry’s submissions are founded on the fallacy that Dr. Agard’s testimony regarding time lines and content are the “facts” on which the orders regarding programmes are based. The assertion is that the consultants have rewritten the orders on the basis of other alleged “facts”, the validity of which the Ministry is entitled to contest. It is claimed that the Ministry’s expert has other “facts” that should be before me as well, in order that I have “all the facts” on which to make “another decision—a decision which changes the initial decision”.

38Of course, the principal purpose of this resumed hearing was the clarification of the present orders, not the making of a new decision or the crafting of new or different orders. What the parties want to know is what I intended when I wrote the orders set out in the decision, not whether I think I am permitted to change my mind, or can be persuaded to do so. However, before turning to the “fallacy” to which I referred, it may be noted that, just as circumstances following the 1998 decision led to the making of new orders, it is possible that circumstances following the 2002 decision may warrant the making of new orders as well.

39Dr. Agard’s testimony dealt extensively with a number of different issues. He gave “factual” evidence based on personal observation and interviews with Ministry personnel from which inferences were drawn regarding the atmosphere in its workplaces. He gave “opinion” evidence as to whether (if true) the factual evidence of others regarding various incidents was indicative of racial discrimination, harassment or reprisal, and as to whether hypothetical situations put to him were indicative of a racist atmosphere. He provided his expert opinion as to the meaning, scope and content of the Devlin reports and their efficacy. He offered his expert opinion as to what was needed to be done to cleanse the atmosphere both at the Toronto East Detention Centre and, as a necessary corollary seen by him, Ministry-wide as well.

40What Dr. Agard did not do was to design a detailed change plan—a blueprint of which he is the architect, and from which others, such as the consultants (as mere builders) must not deviate, lest the structure be unsound. He did not purport to offer an exhaustive, sure-fire prescription to cure what ails the Ministry. He only said that in his opinion a “change plan” was needed, and he thought the Devlin recommendation and the Evaluation Report recommendations constitute “the pieces of such a plan”. However, I do not take the word “the” to mean that he believed nothing else was required, that in his opinion there can be no other pieces in such a change plan. And, even if he did, the Tribunal is not bound by his opinion; the decision and orders are mine, not his.

41The decision on implementation is replete with references to a necessary “change plan” (or “process” or “agenda”) and the need “to fix the problem” both in the Complainant’s workplace and throughout the Ministry, and the flexibility to be able to do that is made clear as well. In that regard, the following passages quoted from that decision (with emphasis and interpolations added as necessary) should be borne in mind:

233Given the flagrant character of the Ministry's noncompliance, the additional harm to the complainant occasioned thereby, and the hardship and waste of time and resources involved in restarting the process to deal with matters that this Board was appointed to hear, in my opinion the broad and liberal view to be taken of a Board's authority under s. 41(1)(a) of the Code must be seen to run to "the crafting of new orders" so as to achieve an otherwise unattainable compliance with the Act and fulfilment of the underlying purpose of the original order itself; namely, in this case, to "fix the problem at Metro East".

237... Given the complexities of the matters before me and the need to minimize the possibility of having to reconvene the hearing to clarify a more generally-worded order, I think I can say to the Ministry: “I left it to you to mount a suitable programme with the approval and assistance of the Commission. You failed to do so. Now I am telling you in considerable detail what are the parameters and requirements of the programme I am ordering you to devise and deliver.” [In the final analysis, of course, the consultants were charged with that responsibility. Unfortunately, although far less generally-worded than the old Order 12, the hearing has had to reconvene just the same to clarify the new set of orders.] I think, as well, that I can make such ancillary orders as may be needed to facilitate the implementation of that re-issued order in light of changed circumstances [whether as to time lines, which is the example given, or as to content.] For instance, if a six month period in which to carry out the orders that are being sought is unrealistic, as both the Commission and the Ministry submit, then a supplementary order providing a different time limit for its implementation might be required. ...

247The pivotal part of Dr. Agard’s direct evidence regarding these recommendations, given on March 8, 2002 (Tape 2, Side B) is as follows: (emphasis added):

... you need to set in motion some standards. And that is part of one of the problems with the systemic change piece. Set in motion some standards by which I will be held accountable and by which you can evaluate me, if we want to bring about that change. And in there I think Devlin does some of that. [These final sentences of a very long extract appear just before paragraph 248, and they show that Dr. Agard did not regard either the Devlin reports or his own testimony as constituting a complete and sufficient change plan.]

263She [counsel for the Commission] went on to make the following statement, which I find entirely supported by the evidence (Tape 2, Side B, July 4, 2002):

... In my submission the evidence that you have heard establishes that there is an urgent need for the Ministry to engage in an immediate and rigorous change process. Part of that is the corporate culture ... It has to move away from the “circling of the wagons” approach, and it has to move to a culture of, Dr. Agard would say, transparency, managerial accountability, critical thinking and actually re-tooled managerial skills, so that it can deal with diversity in its work force. In my submission the orders requested by both the complainant and the Commission go some way to effecting a change process that can accomplish some of those goals’.

42As to that last passage, what I found fully supported by the evidence was that the orders requested would go some way towards accomplishing the goals described and that there was an urgent need to begin that process. It was never suggested that the orders requested, and those ultimately made, would be entirely sufficient to eradicate racism from the Ministry’s workplaces within a firmly fixed time frame.

43Whereas all that precedes Part X of the decision establishes the need for a “change plan”, that final three-page section could not have been left essentially devoid of orders, as though it consisted only of a drastically abbreviated paragraph 312 made to read as follows:

312For all the above reasons this Board finds that the respondent Ministry failed to comply fully with the orders made in its 1998 decision and that, in consequence, the atmosphere of the Toronto East Detention Centre remains racially poisoned. It is therefore ordered that a change plan be put into effect to fix the problem.”

44Although what I intended was indeed “to fix the problem” of racism in the Ministry by appointing an independent third party with the authority to devise and implement a “change plan”, I could not say, simply, “fix the problem; implement a change plan”. Specific orders were obviously required, and undoubtedly Dr. Agard’s expert opinion played a major part in informing both the recommendations of the parties and the orders ultimately made by me. Neither they nor I had (or have) the expertise and experience needed to design an effective programme the exact details of which could be described in a set of orders which, if followed to the letter, would guarantee that the problem would be fixed. And such was not the intention with which the orders were articulated.

45While the submissions on behalf of the Ministry made in support of its motion for leave to call expert evidence are more pertinent to the question as to the mandate of the consultants and the scope of their proposal, I must express a conclusion regarding those submissions in the context of that motion as well. In that regard, it may be noted that at one point counsel said that, in seeking leave to depose its expert, the Ministry was not concerned with the “content” of the consultants’ proposal, but with the scope of their mandate. Of course, to focus on purpose rather than method is to suggest that the Ministry’s expert would be called upon to speak to my intention. Expert evidence, however, cannot possibly assist me to determine what I intended. Clearly, no one is qualified to undertake such a task. In any case, even if it were possible for one person to testify as to what another person intended (or for a witness to tell a Tribunal just what it meant by its order), the “ultimate issue” raised by the parties in seeking clarification of my orders is precisely this: “What is it that the Tribunal intended?” And the cases to which I was referred in that regard make it clear that an expert’s opinion is neither necessary nor apt. (See R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, and Turnbull v. Famous Players Inc., [2003] O.H.R.T. 10.) As pointed out in Turnbull (at p. 11):

... In The Law of Evidence in Canada (J. Sopinka, S.N. Lederman and A.W. Bryant, 2^nd ed. 1999 Butterworths), the authors write at para.12.70 [under the heading “Opinion on the Ultimate Issue”]:

The question arises whether a witness may testify on the very point or issue the court has to decide. There is no longer an absolute rule barring such testimony but the closer the testimony gets to the ultimate issue the fact finder has to decide, the more inclined the court is to reject it.

46However, the Ministry’s arguments in favour of interpreting the scope of the consultants’ mandate in a relatively narrow way suggests that the real purpose in its seeking to have an expert testify would be to impugn the content of their proposal. Indeed, this was made clear by counsel in rebuttal, when she said the experts’ evidence “goes to what is needed in order to carry out the intent - - whether various aspects that have been stated by the consultants as being needed are in fact needed”. Curiously, not long after that, in a statement picked up in my oral reasons, she appeared to revert to the notion that the expert’s evidence would go to intention: “The Ministry’s concern is with mandate. It’s not with content.” And, of course, one cannot be prepared to testify as “to what is needed to carry out an intent” without purporting to know what that intent is. The Ministry knows the substance of the opinion it seeks to have its expert provide, the purpose of which is spelled out in its conclusion (at para. 28 of the Ministry’s March 31 submissions) that: “Given the wholesale misunderstanding of [the consultants’] mandate it is not possible to remedy their proposal by simply excising certain portions … a new proposal is required.”

47In any case, in my view, it would be improper to receive partisan opinion evidence called on behalf of one of the parties to challenge the consultants’ opinion as to what should be done to fulfil my orders (or to “fix the problem” in the Ministry). If one party were permitted to call such opinion evidence, then all must be, and there would then loom the probability of a series of such interventions at every stage of the process, propelling me into the role of a referee in an unending duel of experts.

48The consultants are the experts appointed in accordance with my orders. They require—and they have—my confidence. This does not mean that they have carte blanche, or can fill in blank cheques. They are to report to me through the Tribunal office, with copies going to the parties (and, now, to the intervenor as well), and any problems that the parties have with their performance can be dealt with by submissions to me, and without the assistance of expert “witnesses”.

49Having regard to the view I take of this matter, and to the decision already rendered on April 11, it is not necessary to dwell on the submissions of the other parties regarding this motion that were made at the hearing. Suffice it to say that I agree with the thrust of those submissions. However, I do want to refer to one characterization of the Ministry’s position made by both counsel for the Commission and counsel for the complainant. The Ministry, they say, wants me to regard the set of fifteen orders in the 2002 decision in the very way in which it urged me to regard the twelve orders made at the conclusion of the 1998 decision, namely, that each order is distinct from the rest, and all that is required is compliance with each of them without regard to the actual attainment of the object of the exercise—the cleansing of the workplace atmosphere. Moreover, just as it was urged by the Ministry that meeting the “four corners” of the old Order 12 was all that was required, they suggest that I am being asked to determine the mandate of the consultants by having regard to the four corners of each of the training orders without reference to the others. Indeed, that piecemeal approach went so far as to suggest subdividing Order 1 into each of the thirteen Devlin recommendations referred to therein with a view to having me find that the consultants’ mandate did not extend to parts of those recommendations when read literally and in isolation.

50The warning given by the other parties was that, when the orders are isolated from each other, and from the entire context in which they were given, and when each of them is parsed into its various components, the conglomerate of orders can be interpreted narrowly or broadly, depending on what one wants to see in them. In their submission, with which I firmly agree, what is required is an integrated overview of the orders that keeps the object of the process firmly in mind.

The Scope of the Implementation Orders

51As seen in the previous section, the Ministry relied heavily on Dr. Agard’s evidence, citing some of his statements about time lines and change-plan components as the factual foundation of the 2002 decision and orders, and contending that those “facts” circumscribe the scope of the orders and the authority of the consultants. That being so, I begin this section with an analogy I think apposite in all but one respect, to which I will come presently.

52Dr. Agard’s evidence was like that of a forensic psychiatrist called upon to testify about a person who is not his patient. Having examined that person with a view to providing both a diagnosis and a prognosis, that psychiatrist might describe at length the symptoms he has observed and offer the opinion that the subject has a mental disorder for which involuntary detention and treatment with anti-psychotic medication is required. He might say that the person’s obdurate denial that he is ill, and/or his refusal to take medication (the consequences of which decision he fails to appreciate), leads to a finding of incapacity to consent to treatment. If called upon to suggest a treatment that might bring about stabilisation, he might recommend the administration of a specific medicine (such as olanzapine). He might be willing to provide an opinion as to approximately how long it is likely to take before decertification (perhaps two months, he might say). In consequence of that evidence, the person might be discharged to a psychiatric facility and put in the care of an attending physician who would of necessity re-examine him closely and regularly thereafter.

53The psychiatrist who testified in such a scenario would be the first to say that it is for the attending physician, whose patient the person becomes, to determine just what medications and other treatments are required (perhaps, resperidone, or haloperidol, or any one or combination of a number of other medications; perhaps, even, shock therapy), as well as how they are to be administered (for instance, orally or by injection) and for what period of time. And that expert witness would agree emphatically that the attending physician must be watchful for side-effect problems, for non-compliance, and for de-stabilisation.

54To draw the analogy home, Dr. Agard said on more than one occasion that other consultants might take a different view as to the details of a change plan; for example, he said that “you may bring about 15 different consultants here. They may disagree ...”. In all probability, the diagnosis of the person placed in charge (the attending physician; the appointed consultant) is going to be substantially the same as, or similar to, that of the expert witness (mental disorder; racially dysfunctional workplace); the general remedy will be unchanged (anti-psychotic medication; skills-based training, evaluation, and monitoring); but the specific treatment and time line is for the person in charge to determine, based on his or her personal knowledge, experience, skills and judgment brought to bear on the actual situation with which he or she is confronted. Just as an attending physician cannot rely on the notes of the expert medical witness or on a transcript of his evidence, but must examine the patient personally, so too the appointed consultants must ascertain the current situation in the Ministry for themselves and design the change programme accordingly.

55As said earlier, I find the preceding analogy apt in all but one respect, and it is this: whereas mental illness, though incurable, is controllable, racism, being eradicable, is not something simply to be controlled.

56With that analogy in mind, I turn to the March 31, 2005 submissions of the Ministry, the substance of which begins at paragraph 5 under the heading “The Consultants’ Misunderstanding of Their Mandate”. Although regard was had to the oral arguments made in support of these submissions, since they did not raise new points, it is unnecessary to repeat them.

57In paragraph 5 the Ministry indicates two areas of concern: the consultants’ “belief” (1) that they are mandated to develop and implement programmes “other than training and education, including programming and services for offenders”, and (2) that “their monitoring function concerns all aspects of all orders made in the Decision”. In the Ministry’s opinion, of course, these “beliefs” are “incorrect”.

58After setting out the text of the relevant orders made in the decision (paras. 5 to 10), the Ministry began its fleshing out of these submissions by observing that it is not specified in the orders that “the consultants themselves must deliver the programmes” (para. 11), that their role is “akin to the role the Commission might normally play” (para. 12), and that there is no objection to “the aspects of their proposal concerning training and education” (para. 13). While the consultants are not required to deliver personally the programmes they develop, oversee and monitor, they are not precluded from doing so and there may be distinct advantages in such an approach. The attempt to put the consultants in the Commission’s “institutional shoes” (to use Commission counsel’s phrase) has already been dealt with. The extent of the Ministry’s objections remains to be seen.

59The thrust of the Ministry’s submission that the consultants have overstepped their authority by proposing programmes related to “offenders” (i.e., “inmates”) is found in paragraphs 14 and 15, the first of which is as follows:

14. However, the consultants appear to suggest that developing effective training and education programmes requires them also to develop and implement services and programmes for offenders, including culturally specific services for particular groups of offenders, and programmes related to an “inmate focussed” “decarceration”-based corrections model (Supplementary Report, pp. 26-27). The Ministry submits that this is outside the scope of Order #14, and in fact outside the scope of any of the Tribunal’s Orders.

60In the part of their report referred to, the consultants begin by pointing to a fundamental change in circumstances: since the decision was released, a new government has taken office and introduced important policy changes in the Ministry. “Principally, these changes are directed toward ensuring community safety and providing an ‘offender focus’ aimed at reintegrating offenders into the community.” It is clear to me that the work of the consultants must take into account the significant changes they go on to describe. What is truly remarkable, however, is the Ministry’s troubling explanation for its opposition to this particular initiative. That explanation is set out in paragraph 15 of its submission:

15. Racism toward offenders was not the subject of Mr. McKinnon’s complaint or the Tribunal’s findings. The Tribunal’s remedial orders, therefore, could not - and did not - pertain to offender programmes and services. Such issues therefore could not be part of the consultants’ mandate.

61That rationalisation is unfounded in fact and unacceptable in principle. It is unfounded because, while the specific complaints of 1988, 1990 and 1992 that were dealt with in the 1998 decision had to do with conduct towards the complainant, some of them arose in the context of mistreatment of inmates. More important, by the time the hearing resumed on June 20, 2001, “Mr. McKinnon’s complaints” had resolved themselves into one issue: the racially poisoned atmosphere of the workplace, the existence of which does not require proof of fresh complaints. The whole context of the reasons, conclusions and orders found in the 2002 decision was that single issue; the object of the hearing was to repair that atmosphere if found to be contaminated, not to compensate the complainant if specific allegations were made out. In that regard I would draw to the Ministry’s attention paragraph 28 of the 2002 decision, which reads in part as follows:

28... The complainant is not seeking specific remedies in respect of specific wrongs, but simply the formulation of an order that will remove racism from his workplace—and this in the context of reconvening the very hearing in which a finding of a racially poisoned atmosphere has already been made. The harm that would justify the systemic remedy he seeks is not incident-specific: it is simply the existence of a racially poisoned atmosphere—and, given the extant decision, its findings and orders, he cannot fairly be saddled with the burden of proof as to the current condition of his workplace environment. In my view, he is not required to prove that the conduct complained of in his post-decision allegations constitutes a series of infringements of his rights under the Code, nor that they are of the same kind or character as past wrongdoings; nor is he necessarily bereft of his remedy if the Ministry offers "a reasonable explanation" of such conduct. The complainant need only prove noncompliance with the order, at which point the burden shifts to the respondent Ministry to rebut the presumption that in consequence thereof the environment of his workplace remains poisoned. ...

62Clearly, to paraphrase the Ministry, “the Tribunal’s remedial orders could and did pertain” to anything that contributes to the racist atmosphere of the workplace, and “such issues therefore must be part of the consultants’ mandate.” More important, however, is the Ministry’s apparent failure to appreciate what is at stake—and that is a matter of principle. It is not clear whether the Ministry does not see the problem or is simply willing to let it fester rather than have the consultants be the ones to do something about it. The Ministry’s position must be either that racism towards offenders does not affect the workplace atmosphere or that, if it does, it is not the concern of the Tribunal, much less the consultants appointed to carry out the orders.

63As to the relevance of the racially improper treatment of inmates to the assessment of the workplace atmosphere, when writing the 2002 decision I had occasion (in para. 77) to refer to the 1998 decision’s depiction of “a scene in which during the process of his admission an old drunken aboriginal inmate is mocked and likened to the complainant who happens upon the scene and is unabashedly let in on the joke.” Would not that occurrence be abhorrent even if the complainant had not witnessed it? Is it racial abuse only because the staff member who stumbled upon it was a victim? Is not the inmate equally a victim? Are we to assume (for example) that as long as one staff member does not direct racial epithets at the other as they walk down a cell corridor, it should not be our concern if he directs them at inmates? Surely the interactions of staff and inmates contribute as much to the atmosphere of the workplace as do staff-to-staff relations. Clearly, if the inmates are racially abused, that would poison the atmosphere for everyone, staff members included. Thus, I draw attention to the following excerpts from the 2002 decision relating to the assaults of inmates regarding which considerable evidence was led:

142Counsel for the complainant summed up this aspect of Mr. Ewing's testimony, which she submitted amounted to evidence of the Centre's poisoned atmosphere, as follows (tape 3, side B, July 3, 2002):

... So, in conclusion, what we see through all of these three incidents of assault of black inmates is management's failure to look at race despite having a history of problems of racism with inmates in the institution. We see that when it is identified they failed to follow up. They do absolutely no investigation. You don't even find a note of it in the file . . . And so it's submitted that again the failure of doing the investigations around racially related incidents is evidence of a continuing poisoned work environment.

143None of the persons implicated in these various assaults was called upon to testify, and it cannot be found on the evidence adduced that they were racially motivated crimes, nor have I been asked to make such a finding. While that evidence does raise a strong suspicion that such was the case, I am not prepared to find in these assaults affirmative evidence of a racially poisoned work environment. However, I do find in the failure of the Ministry to direct that the clear possibility of racial motivation be investigated another sign of indifference that would not likely take root at the level of senior management in an organization in which racism is simply not tolerated.

64The finding in paragraph 143 was not to say that racially motivated assaults of inmates are irrelevant to the question as to whether the atmosphere was poisoned, but only to say that such motivation was not sufficiently established. However, if (as clearly implied) such indifference in investigating the conduct towards the inmates is in itself an indicium of a racist atmosphere, all the more so would be proof of their actual racial abuse at the hands of the prison staff.

65When thus confronted, one would expect the Ministry to acknowledge that racism towards inmates is not to be tolerated and that it does affect the atmosphere of the workplace. The Ministry might even hasten to add that it did not intend to imply otherwise. And, in fairness, counsel for the Ministry said as much at the hearing. Nevertheless, the purpose of its submission must be to suggest either that the Tribunal’s jurisdiction does not extend to staff-inmate relations in the context of racist behaviour or that the consultants ought to back off and let the Ministry take care of such matters. As to the former, the Tribunal’s authority unquestionably extends to all matters that affect the racial atmosphere of the Ministry’s workplaces because, until that atmosphere has been purged, the complainant's remedial right to full compliance with the Code in respect of future practices cannot be found to have been satisfied. As to the latter, I must decline to instruct the consultants to leave staff-inmate relationships entirely in the hands of the Ministry because I have no confidence that it has either the will or the expertise to rectify the situation. As Justice Lane observed in the Divisional Court regarding such reticence on my part: “This is scarcely surprising in the light of the evidence of the Ministry’s failures over the years to address these issues even though a series of reports revealed the racist poison in the workplace.” Before leaving this matter, however, it is to be noted that, while inmate-to-inmate racism also affects the workplace atmosphere, it is not clear that a programme designed to deal with it would fall within the consultants’ mandate. As it happens, my reading of their proposal does not suggest that such a programme is contemplated.

66The Ministry goes on in paragraph 16 to list evidence of the consultants’ intention to extend the scope of their work beyond their terms of reference, citing in that regard the following passage found in their report of February 3, 2005:

To implement the Tribunal’s Order #3 and consistent with the TEDC approved proposal, this will involve Ministry executive and senior staff in the development and implementation of projects related to: ...

2 Identifying and developing programs and services that recognize and respond to the racial and cultural differences of those receiving services.

67It seems to me that the executive training at the highest echelons required by Order 3 must relate to what it is these officers do; and what they do that sets them apart from lower level managers would appear to involve the identification and development of programmes and services. Thus, there would appear to be nothing untoward in proposing to have them learn to “recognize and respond to the racial and cultural differences of those receiving services”, i.e., the inmates.

68The Ministry purports to provide in that paragraph further “evidence” of the allegedly overreaching intent of the consultants as follows:

In the Supplementary Report [i.e., the March 31, 2005 submission] the consultants state that they were nominated to “develop, deliver, oversee and evaluate programmes”, [thereby] revising the Tribunal’s Order #14 by leaving out the words “training and education” and inserting the words “deliver” and “evaluate” (p. 6). They further state that their proposal is “not dissimilar from” the Systemic Change Programme insofar as it “[goes] well beyond a training programme” (p. 10).

69In stating that “a third party, competent to develop and oversee the delivery of the various training programmes referred to in these orders, be appointed to carry out these duties”, Order 14 clearly places that third party in charge of the delivery of the “training” programmes. An overseer is not someone with a mere watching brief. To oversee is to actively supervise; nor does that function preclude personal performance of the work in question. As to whether the consultants are to “evaluate” the programmes they develop, oversee and deliver, since it is impossible to “monitor progress” without determining whether there has been any progress, the consultants must assess the effectiveness of the programmes—evaluate them, if you will. Moreover, the consultants did not omit the word “education” from Order 14; rather, since that word does not appear in that order, the Ministry seems to want to insert it between the words “training” and “programmes” in order to qualify that phrase and narrow its scope. Finally, whether there is anything amiss in a proposal that goes “well beyond a training programme” depends on the sense and context in which the phrase “training programme” is used. There is a wide range of possible “training programmes” and, having regard to the objective of “fixing the problem” in the Ministry, that phrase is to be interpreted as broadly as is necessary to provide an effective means to that end.

70Paragraph 16 of its submission ends with the observation that “Ministry representatives have welcomed” discussions with the consultants regarding the very matters its counsel claims are none of their business. The Ministry then offers this reproach:

Rather than seeing this as evidence of the positive attitude of staff to Ministry programming in these areas, the consultants presume that their “third party” involvement is the only way to make things happen.

71Since the Ministry obviously does not welcome the consultants’ proposal, whether the “senior staff” referred to in the consultants’ report are the “Ministry’s representatives” who may speak authoritatively on its behalf is problematic. In any case, the consultants’ report makes clear the fact that they view that development positively, and their unwillingness to leave it to the Ministry to “make things happen” on this front is not a sign to the contrary. The whole history of this file is that, left to its own devices, the Ministry does nothing.

72The substance of paragraphs 17 and 18 has been sufficiently addressed in the preceding section dealing with the motion for leave to call expert evidence. In paragraph 19, while admitting that some inquiries are necessary, the Ministry suggests that the “fact-finding and needs assessment aspects of the consultants’ proposal” are excessive. Obviously, this task is prerequisite to developing the programmes, and neither the Ministry nor the Tribunal is in a position to say whether it has reached the point of being too much of a good thing.

73The Ministry turns in paragraphs 20 and 21 to the consultants’ proposal to “set up an anti-racism Advisory Committee and an Implementation Committee”. The objections to the Advisory Committee are these: it is unnecessary in relation to a mandate that relates to training and education; its establishment is not specifically authorized by the orders; it is duplicative, in that the Ministry already has such a committee of its own. The mandate of the consultants is not the narrow one the Ministry seeks to have me confirm, and it has already been made clear that they may take whatever measures they consider necessary to carry out their function without the imprimatur of specific authorization spelled out in one or more of the orders. If the consultants were to disband their advisory committee simply to avoid duplicating the Ministry’s “community based Advisory Committee [that has] a mandate to deal with, inter alia, human rights issues”, they would thereby cede control to the Ministry of an aspect of their work they deem essential. Moreover, a committee that deals with the full range of human rights—amongst other things—is unlikely to fill the bill. In their March 21, 2005 report, after providing ample justification for setting up an advisory committee, the consultants conclude (at page 30) as follows:

In this context, the establishment of a specific advisory committee to focus directly on anti-racism is not unusual but standard practice for any organization committed to addressing anti-racism issues. While it is good to see that the Ministry’s Advisory Committee addresses human rights issues, it is unclear whether it has discussed, or provided advice to the Ministry on, the implementation of the Tribunal’s orders or any form of anti-racism work within the Ministry. Further, the Ministry’s Advisory Committee is its own creation and, one would suspect, the Ministry is not obligated to either divulge or follow the advice given.

74While the lack of any obligation to share with the consultants the advice it receives adds to the unsuitability of the Ministry’s committee, no one is obliged to follow “advice”. Indeed, while the consultants may be greatly assisted by the advice of their advisory committee, it would be most inappropriate for them to feel obligated to follow it.

75Although in paragraph 21 of its submission the Ministry promises to “describe in more detail” its concerns regarding the “Implementation Committee”, nowhere thereafter does it do so. Instead, its submission turns abruptly to the issue of monitoring. In any case, although counsel addressed the matter at the hearing, nothing was said to dissuade me from finding the need for a “joint management-union committee” (whether by that or any other name) to be amply demonstrated in the consultants’ reports of February 3, 2005 (page 12) and March 21, 2005 (page 10).

76The matter of the consultants monitoring function is taken up in the next several paragraphs of the Ministry’s submission, beginning (in para. 22) with its assertion that the consultants have no mandate for the implementation of performance appraisal measures under Order 5, which order stipulates:

That "performance appraisal" forms, or such other documents as may be used for the purpose of evaluating the performance of the Deputy Minister, Assistant Deputy Ministers, Regional Directors, Superintendents and Deputy Superintendents of the Ministry, be revised immediately to include their responsibility for compliance with this decision.

77The Ministry’s position is that, since no monitoring of those forms is specifically ordered, none can be undertaken. However, the requirement that the Tribunal be informed at some point that the revision has been made is implicit, as is the need for some objective means of assessing the adequacy of that revision. Moreover, the order would be pointless unless performance as measured by these revised forms is monitored and reported to the Tribunal, which must be informed as to how effectively (if at all) these officers have discharged their responsibility for assuring compliance with the decision. Since such monitoring must be objective, it cannot be entrusted to the Ministry. It must be done by the “third party” who must include it in the reports submitted to the Tribunal.

78The Ministry submits (in para. 23) that “the consultants’ monitoring role flows from Order #14 and thus relates to” training and education programmes only and does not extend to monitoring compliance with other orders. More specifically, the Ministry maintains (in para. 24) that, although Devlin’s Recommendation 13 requires an external monitor, Order 14 does not clothe the consultants with that authority. That is an idle assertion. Recommendation 13 was part of a report commissioned by the Ministry, and it was written in the expectation that the Ministry would adopt it and appoint an external monitor to report to it. Painful though the reminder may be, the Ministry (which, as seen in paragraph 246 of the decision, did not fully accept that recommendation in any case) is not to be trusted to monitor any part of the process. Inasmuch as Recommendation 13 falls within the ambit of the orders, the monitor referred to must be appointed by and report to the Tribunal. That being so, it would be absurd for the Tribunal to appoint someone other than the consultants to do so.

79The Ministry contends (in para. 25) that, “Beyond Recommendation 13, it is the Tribunal that is required to monitor compliance with its Orders.” Unless this is meant to suggest that I am to personally monitor the Ministry’s workplaces, I can only do so through the agency of another; and surely that other must be the third party appointed pursuant to Order 14 to provide “professional assistance”.

80The next paragraph in the Ministry’s submission runs to nearly two pages and contains five items. Item (i) asserts that the consultants are not authorized to report on the activities of the Toronto East Detention Centre’s Compliance Committee set up by Order 9, because that order is silent in that respect. Again, someone has to report to the Tribunal on that Committee’s activities, and, since neither the Ministry nor members of that Committee have been charged with that responsibility, it falls to the consultants to do so. Item (ii) is dissimilar from item (i) only in that the reference is to the “WDHP activities at TEDC.” Such activities are caught up in the Devlin recommendations and, to the extent that they relate to the overriding issue of workplace racism, they fall within the purview of the consultants’ mandate.

81In item (iii), the Ministry alleges that “the consultants’ monitoring role does not entitle it [sic] to become a repository for anonymous complaints” and have “set themselves up ... as a conduit for information that cannot be properly investigated”. As pointed out at the hearing, whereas anonymous complaints cannot be pursued and action taken in respect of them, the very fact that there are such complaints speaks to the atmosphere of the workplace and is not a circumstance that the consultants can ignore. Before dealing with item (iv), it is convenient to deal with item (v) out of order. It suggests that the consultants have become advocates for Mr. McKinnon. Nothing in the consultants’ report supports that allegation. Their concern in “returning Mr. McKinnon to work” is central to their mandate. After all, it is the ultimate object of the exercise.

82In item (iv) the Ministry takes the position that:

The consultants’ monitoring role does not include directing the Deputy Minister as to the involvement he is to have in implementation of the Decision. ... The Tribunal chose not to make any specific orders in this regard but rather, made a general order, #15, which states that the “The Deputy Minister of the Ministry of Correctional Services shall bear the ultimate responsibility for the implementation of these orders”. The consultants are not entitled to revise the Tribunal’s orders, or to direct the manner in which the Deputy Minister carries out his “ultimate responsibility”.

83To begin with, for reasons made clear in the decision, the Deputy Minister is required by Order 3 to participate in “executive training” with respect to racial discrimination and WDHP Policy matters, one of the purposes of that training being to explain to him the nature of his involvement in the implementation process. As to Order 15, having regard to the “indifference, ineptitude and bad faith of management at all levels” (para. 215 of the 2002 decision), it was obviously not intended to bestow overarching authority on the Deputy Minister in respect of the implementation of the orders, as though it was being left to him to “fix the problem” in the Ministry’s workplaces. Rather, in the context of the entire decision, the phrase “to bear responsibility” used in that order means simply that the Deputy Minister must answer to the Tribunal for what goes wrong under his watch in relation to the implementation of the orders. And what he does to promote or impede the change process is to be monitored and reported. The Deputy Minister already has abundant authority to require the Ministry’s staff to cooperate fully with the consultants and to take a proactive role in the change process. Let us hope he will do that. As Dr. Agard said in relation to chief executive officers in the context of institutional reform: “the buck stops here”; change must come from the top.

84While the Ministry’s written submission did not address the matter of “pilot projects”, counsel referred to it in her oral presentation. Counsel was critical of a passage in the consultants’ February, 2005 Report in which they said that:

As part of the process, the consultants will work with managers and the union to identify four institutions, in addition to TEDC, that will function as pilots for organizational change at the local level. Similar to the TEDC project, a needs assessment and focus groups with staff in each of these pilot institutions will need to be conducted prior to developing an educational plan for each site.

85The Ministry’s objection to these “pilot projects” would appear to be that their scope and purpose is unclear and that there is a danger that the consultants might thereby usurp the role and authority of management. Counsel said that, because:

... it’s not really spelled out, it could be that you have one institution that has a programme directed at inmates, and that’s a pilot project, and you have another institution that has a new recruitment policy, and that might be another pilot project, and so on. And the concern is that we have management decisions being made by people who have been hired to train managers to make the right decisions.

86It must be pointed out that the consultants were not “hired to train managers to make the right decisions”. Rather, they were appointed to design and implement anti-racism programmes in conformity with orders to be interpreted in light of the 1998 and 2002 decisions in this matter. That managers will make the right decisions, from a race relations perspective at least, is a hoped-for consequence of their work. In any case, for the consultants to develop and implement pilot projects as one of the means needed to discharge their mandate is not for them to arrogate to themselves an institutional management role. As counsel for the Commission pointed out, the pilot projects are, as well, “one way of determining the effectiveness of what they are doing”.

87Counsel for the Ministry did not address the explanation for the pilot projects given by the consultants in their Report of March 21. Given the diversity of institutions with which they must deal, it seems clear to me that a “one-size-fits-all” approach to the development of effective programmes is not possible, and that what they propose is eminently sound: That explanation, set out under the heading “TEDC and Pilot Projects”, is as follows:

In August 2004, the Tribunal Chair approved the project proposal for TEDC. In addition to the scope of the Executive Education and Training and the ‘skills-based’ WDHP education and training for managers and senior staff, what is at issue is the current Consultants’ project proposal’s plan to develop anti-racist pilot projects and then deliver a train-the-trainer program for Ministry staff. The latter has already been discussed.

The proposal indicates that the pilot projects are a critical component of this process and are put forward to ensure that the Orders have impact across the Ministry. This is particularly important given that, as the Consultants have learned from numerous interviews and meetings, the Ministry’s facilities, services and programs differ across the province. Some facilities are within large urban centres that are racially diverse while others are not; some are very small and others are described as ‘mega-jails’. These regional and local differences must be taken into account so that anti-racism work for each is tailored to their circumstances and meets their business needs. The Consultants’ proposal takes this into consideration and recommends the pilot projects as a way of communicating across the Ministry about this matter and, more importantly, coordinating the implementation of anti-racism work in a process that will engage all aspects of the Ministry in a timely manner.

88I conclude this section with a comment on the following passage from the Decision on Implementation that I think particularly apt:

311... Counsel for the Ministry said that it has no objection to the Board’s remaining “seized for the purpose of facilitating implementation”. She submitted that “that should be regarded as implementation of the specific orders made, because at some point there needs to be some closure to the process; and so, in the Ministry’s view, the Board’s remaining seized in that regard to facilitate implementation with the actual orders made is not something that is inconsistent with the practices of the human rights tribunal and it is not something that the Ministry would object to.” Nothing need be added to what I have already said regarding these matters, except to note that this Board’s retained jurisdiction is not limited to an inquiry as to whether the Ministry has complied with the “four corners” of “the actual orders made”. [Emphasis just added.]

89The “point” at which this process is to end is not the implementation of each of the specific orders on a one-by-one basis until the last of them is impatiently checked off. The process will be complete when “the complainant's remedial right to full compliance with the Code in respect of future practices has been satisfied” by the elimination of racism from the Ministry’s workplaces. Despite protestations to the contrary, it seems to me that the Ministry is not truly focussed on that end as a positive institutional good to be desired by all affected thereby, from the top down, but views the orders as an unavoidable imposition that it wants both to limit and to have over with as soon as possible. Although it appears that the Ministry is still seeking “closure to the process”—an apparent expression of lament, rather than of hopeful anticipation, it seems reluctant to pass up any perceived opportunity to attempt to restrict the ambit of reform. As counsel for the Commission observed in the final paragraph of her submission of April 7:

35. The Ministry has advised all parties that it is not appealing this matter further. As such, the Ministry should proceed to implement the orders in good faith and should not continue in its historic pattern of attempting to limit remedial orders as much as possible.

Rulings on the Clarification of Orders

1. As to Time Lines

90As previously indicated, and for the reasons given in that regard, the time for the completion of all aspects of the change process is hereby extended to the end of the year 2009. Moreover, as I am in no position to micro-manage that process (even if I had the necessary expertise), the time within which the various components of the change process are to be completed must be left at the discretion of the consultants to be exercised in the light of events as they unfold.

91The stipulation made in paragraph 290 of the 2002 decision continues to obtain, namely, that I can be spoken to regarding any extension of time that circumstances might warrant.

2. As to the Content of the Proposal contained in the Consultants’ Reports

92In the course of my reasons for denying the Ministry’s request to call expert evidence I gave a general indication of the broad view to be taken of the consultants’ mandate. However, at the close of the hearing, I expressed my intention to prepare a number of questions to put to the consultants in order only that I fully understand the scope of their proposal (as distinct from their mandate), so as to be satisfied that those aspects of it to which the Ministry objects are a necessary part of the change process. Since I did not call upon the consultants to answer questions at the hearing, counsel for the parties had no opportunity to do so either. Thus, I indicated that a copy of the exchange between them and me would be sent to counsel who would be given an opportunity to address (through me) written related questions to the consultants.

93Having now had an opportunity to study in depth the reports of the consultants (the second of which, as the parties know, I was for technical reasons unable to read before the hearing), along with the written submissions of the parties, and having had the opportunity to listen attentively to the taped submissions of counsel, I find that I have but one question to put to the consultants after all. While loath to open the door to the making of new assertions by the Ministry to which the other parties would respond, regarding all of which yet another ruling of the Tribunal would be required, I will put that question to the consultants, and it is this: To what extent, if at all, is it proposed to develop and deliver anti-racism programmes directly to and for the inmates in the Ministry’s various facilities?

94For reasons I believe I have amply explained, and subject to their answer to the question I have posed, I find that the contents of the consultants’ proposals fall within the ambit of their mandate, and I so rule. For the sake of such additional clarity as I am able to provide at this time, but not so as to limit the scope of their proposals, by “contents” I mean the various programmes outlined therein, including pilot projects, together with the measures necessary to evaluate their effectiveness and to carry out such document reviews and needs assessments as the consultants consider necessary for the preparation of those programmes.

3. As to Monitoring and Reporting

95A proper interpretation of the orders read in light of the decisions of 1998 and 2002 reveals the intention that the third party appointed pursuant to Order 14 of the Decision on Implementation has the exclusive responsibility for the monitoring of the entire change process, and it is the ruling of this Tribunal that the Ministry has no monitoring function in respect of any aspect of that process.

96By reason of Order 14, the third party is to report to the Tribunal “at intervals no shorter than six months”, copies of which reports are to be provided to the parties (and, now, to the intervenor as well). However, in view of the difficulties already encountered, and because these reports serve as the best source of information to the parties (who are to be at arms length from the third party), I am of the view that the reporting interval should be shorter for the foreseeable future. Thus, it is this Tribunal’s ruling that the third party consultants report to the Tribunal on a quarterly basis. That ruling may be reviewed in one year’s time at the request of the consultants or the parties. Since it is not appropriate for the third party to approach the Tribunal through any of the parties, the consultants may contact me at any time through the office of the Tribunal’s Registrar, a copy of which communication will be provided to the parties.

97In conclusion, it is to be noted that the following stipulation in paragraph 313 of the Decision on Implementation remains in effect, namely that: “... if there are any other matters relating to implementation of [the 2002 orders] that are in dispute or appear to require clarification, I am to be contacted without delay so that I may hear and decide such matters” [emphasis added].