Ontario Human Rights Commission v. Her Majesty the Queen in Right of Ontario, 2005 HRTO 23

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 RULING AND ORDER

Regarding the External Investigation of

Workplace Discrimination and Harassment Complaints

Adjudicator: H. Albert Hubbard

Date: July 13, 2005

Citation: 2005 HRTO 23

Human Rights Tribunal of Ontario 400 University Avenue, 7th 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 )

INTRODUCTION

1Following the Tribunal’s Interim Decisions and Rulings of May 19, 2005, a hearing was commenced on June 6 to deal with issues raised by the complainant’s counsel in her letter of January 26, 2005, addressed to the Legal Services Branch of the Ministry of Correctional Services (Exhibit 43). One of the matters dealt with pertains to Order 8 of the 2002 Decision on Implementation, to wit: “That investigations and mediation of all WDHP [Workplace Discrimination and Harassment Program] complaints arising at the Centre be conducted by persons external to the Ministry”. Because the hearing into these matters, which continued on June 10, 13, and 28, 2005, cannot be resumed until September 14, 2005, counsel for the complainant sought interim orders (which she suggested might ultimately be made final orders) regarding the handling of WDHP complaints at the Toronto East Detention Centre (the “TEDC” or “the Centre”). Counsel summed up the matters she wanted the Tribunal to address as follows:

So what we are seeking from you is really four points in summary, the first one being that you clarify what you've already indicated to us in this proceeding: that all WDHP matters at Toronto East Detention Centre be dealt with externally, and what you mean by that; secondly, that the third party consultants set up selection criteria, including the contract portion of it, the reporting structure of the investigators and the principles that they're guided by; thirdly, that the third party consultants provide a list, an actual list of the names of people, with respect to both 2 and 3, that they get quick input from the parties who can make submissions, if necessary, and that submissions, of course, would be shared with all the other parties. And I say "if necessary". It may be that the parties won't need to. And fourthly, specifically an order that all matters presently under review need to be redone.

2The complainant’s first point, which is dealt with under the heading “Clarification of Order 8", does not require the making of an order. However, his second and third points, dealt with under the heading “Selection of External Investigators”, would require the making of an order, as would his fourth point, dealt with under the heading “Disposition of Previous Complaints”.

3Whereas the Ministry was adamantly opposed to the recommencement of investigations, the parties were in substantial agreement with much of the rest of the complainant’s requests, the major difference between them having to do with the respective roles of the third party consultants and the Compliance Committee in developing a process of external investigation. Because the resolution of that issue seriously affects the scope of the third party’s responsibilities, the “consultants”, who have been attending the hearing, forwarded to the Tribunal and the parties their comments on the subject matter of the complainant’s motion. That report, dated June 29, 2005, and inadvertently labelled “submissions”, outlines their endeavours to date in the matter of developing the process in question, and it sets out time frames for establishing both interim and long-term measures in that regard.

4For the most part, the consultants’ report appears to have adequately addressed the legitimate concerns of all the parties, but in a manner that elicited a response from the Ministry on July 4. This was followed on July 5 by the complainant’s comments on both documents. These supplementary submissions will be referred to in the course of dealing with the complainant’s motion, beginning with the following three objections of the Ministry to “the nature” of the consultants’ report:

a) They go out of their way in the Report to suggest that the position of the Ministry is somehow based on "a pattern of the Ministry objecting to mechanisms that would permit the consultants to hold the Ministry staff accountable", when in fact the Ministry fully accepted the fact that the Consultants' expertise is a necessary ingredient in the search for external investigators;

5In their report, the consultants referred to several passages in the Interim Decisions and Rulings that suggest “a pattern” of Ministerial opposition to their attempts to carry out their mandate as they had perceived it. It is clearly the consultants’ view that they should take the lead in the matters here in question, and apparently they see as a continuation of that unacceptable pattern the fact that the Ministry “accepts” the need merely for their involvement “as an ingredient in the search for external investigators”, as it now describes their role. Raising that concern is not gratuitous, and it should not be taken to be abrasive.

b) They make no critical comments about the position of the Commission, when the fact is that the positions of the Ministry and the Commission were substantively similar, and based on the same underlying rationale: that healthy collaboration through the Compliance Committee ("CC") is beneficial to the overall change process.

6Whereas its position regarding the respective responsibilities of the consultants and the Compliance Committee was indeed substantially the same as that of the Commission, since the criticism in question had to do with a “pattern” of conduct that did not involve the Commission, the Ministry was not thereby unfairly singled out for criticism.

c) They mischaracterize the Ministry's position as being that the CC is the "only way" to achieve "objectivity" in the selection of external investigators, when in fact the Ministry was simply concerned about the requirement for openness that underlies the OPS procurement policies.

7At the hearing, the Ministry’s position on the issue of responsibility was undoubtedly that the “only way” to develop an “objective” external investigation process is to place the Compliance Committee firmly in charge of it, with the consultants relegated to a subservient role as the anti-racist “ingredient” in the endeavour. Obviously, the Ministry is concerned about the underlying basis of government procurement policies—a legitimate concern explicitly shared by the consultants in their report, by the way. However, not only do the consultants appear to have got it right, but the reference to that concern, proffered as evidence that its position has been mis-characterized, is simply a non sequitur.

CLARIFICATION OF ORDER 8

8During the course of the resumed hearing it became evident that the Ministry considered that whether an allegation is to be dealt with as a WDHP complaint requiring external investigation is for the Ministry to determine. I intervened to explain that such was not the intent of Order 8, and that all complaints made at the Centre must be scrutinized by external investigators.

9On its face, Order 8 requires only WDHP complaints to be investigated externally, and it does not purport to indicate who is to make the initial characterization as to whether a complaint is one of workplace discrimination or harassment. Thus, the Ministry cannot be found to have acted in bad faith by continuing its practice of taking it upon itself to make such determinations. However, that order (as with all the orders) is to be interpreted in light of the circumstances that gave rise to it, one of which was the erroneous classification of complaints at that initial stage, an example of which was the mis-classification of an incident involving the complainant in which he had inquired as to why the wife of the manager chairing a particular meeting was often chosen for special assignments while others were overlooked. The woman in question went to the Deputy Superintendent and filed a WDHP complaint against Mr. McKinnon “under the prohibited ground of 'marital status' [because] he asked ... how 'your wife' was selected for a special assignment". The Ministry’s expert on WDHP matters considered the allegation to be a WDHP complaint, and she suggested that Mr. McKinnon be censured for his inappropriate behaviour. As pointed out in the decision (paragraphs 203-204):

... To express the suspicion that the one gave the other a particular assignment because of their marital relationship is not to harass or to discriminate against either on the basis of "marital status". Nepotism is wrongful; to inquire about it is not. The inquiry may be unwelcome, it may be impolitic, but it is not a human rights matter even if it turns out to be groundless. ... That anyone would think this occurrence involved a violation of the WDHP policy is simply incredible. That the Ministry's resident consultant on workplace discrimination and harassment should leap to that conclusion is disturbing. That, even though there had been no investigation of any kind, nor had the complainant been advised of the complaint against him, and despite the absence of the least semblance of a prima facie case, the Ministry's WDHP policy expert should conclude that the complainant's conduct was "inappropriate" and recommend that he be given a scolding is appalling.

10Since the Ministry’s mishandling of WDHP matters was seen to begin with the erroneous classification of complaints, the intent of Order 8, read in light of the decision as a whole, is that all complaints be referred to external investigators. In so stating, I am merely repeating the gist of what I have already said in the course of this hearing. However, what remains to be dealt with is the manner in which external investigators are to be selected and their investigations carried out. Since such matters are not expressly addressed in the 2002 Decision (except to exclude the Ministry’s Internal Investigations Unit from involvement with WDHP complaints), it is to be observed that, while the process might not have been appropriate, the Ministry cannot be said to have acted in bad faith simply by following its existing procedures and practice in that regard.

THE SELECTION OF EXTERNAL INVESTIGATORS

11The complainant wants the third party consultants to determine the criteria to govern both the selection of external investigators and the scope of their mandate (e.g., “the reporting structure” and “the principles that they're guided by”). He is opposed to the Compliance Committee being involved in the process. The Commission is of the view that this task should be the responsibility of the Compliance Committee which (as its minutes show) has already embarked on that task with input and assistance from the consultants who attend its meetings by invitation—an arrangement counsel for the Commission assumes would continue. The Ministry is also of the view that this task should be entrusted to the Compliance Committee to be carried out in conjunction with the consultants. Curiously, whereas the complainant has led evidence intended to show that the external investigations undertaken in purported compliance with the order are flawed, the Ministry, whose evidence in that regard has yet to be heard, appears to accept the need for the development of new criteria for the selection and guidance of external investigators.

12The mandate of the third party appointed pursuant to Order 14 is to be found in the Interim Decisions and Rulings of May 18, 2005, and it is obviously one that has been both clarified and expanded in order to enable that party to cope with the changed circumstances occasioned by the delayed implementation of the orders pending the outcome of the appeals of the 2002 Decision. A narrow aspect of the mandate of the Compliance Committee was also dealt with in that May 18 document, paragraph 80 of which points out that the Ministry:

... asserts that the consultants [i.e., the “third party”] are not authorised 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. ...

13It is to be noted that, while the Compliance Committee does not report to the Tribunal, its members are to “report to the parties any failure to appropriately implement the orders in a timely way”. Apart from the matter of that Committee’s reporting function, the question of its mandate was not raised in the April 11 hearing, nor was it dealt with in the decisions and rulings that followed. However, I had occasion during the present hearing to state that its role as envisaged in the 2002 Decision was simply and solely to monitor progress in the Centre, and that it had not been empowered to take affirmative action in furtherance of its members’ views of the Tribunal’s orders. In responding to the complainant’s motion for interim orders, Counsel for the Commission, with the utmost courtesy to the Tribunal, suggested that I am mistaken in that regard, and she submitted that the Compliance Committee has an active role to play in the implementation process at the Centre. In the course of that submission she made a number of remarks that require response:

(1) “If there's a process that has been in place and a framework developed by [the Tribunal], then we have to allow that process to continue.”

14In fact, while the process and framework counsel seems to have in mind may to some extent be in place, it has most assuredly not been developed by the Tribunal. Rather, there has been an unauthorized de facto process undertaken by that committee with which, apparently for want of clear directions, the consultants have simply gone along. Whereas I had thought the Interim Decisions and Rulings would have clarified the consultant’s mandate sufficiently, there remains a considerable degree of confusion, as the emphasized parts of the following extract from their June 29 report indicate—confusion no doubt induced in part by the June 28 submissions of the parties:

The Functioning of the Compliance Committee

a) As the minutes of the April 21, 2005 Compliance Committee meeting demonstrate, the consultants recommended “that an understanding of racism must be included in the requirements and in the way the [Request for Proposals] are assessed.” The same minutes indicate that one of the two Ministry representatives concurred with this and raised concerns about the lack of expertise within the Ministry to “deal with race.”

On May 26, the Compliance Committee again discussed the need for criteria to select external investigators that include anti-racism competencies. The committee agreed that the consultants would review the current selection process and roster in order to provide comments on “including anti-racism criteria in the RFP and selection process.”

b) As indicated in 1a) above, the Compliance Committee has acknowledged expertise doesn’t exist within the Ministry to develop anti-racism selection criteria for external investigators, nor to establish an appropriate RFP process.

During the Tribunal hearing on June 28, 2005, Mr. McKinnon’s counsel stated that his representatives also do not have the necessary expertise. Given four out of the five Committee members do not have the expertise, it is unclear why this Committee would be charged with this responsibility.

The Committee’s decision to delegate this task to the consultants is indicative of the collaborative working relationship that has already been established, and this should continue.

15The consultants are not called upon to make recommendations to the Compliance Committee, nor is that committee’s “concurrence” with anything an essential part of the implementation process. That committee’s “agreement” is not a precondition for the exercise of the consultants’ mandate to “review the current selection process and roster”; and the purpose of that review is not to provide the Compliance Committee with comments, but to provide the Tribunal with recommendations. Finally, the already taxing workload of the consultants is not to be exacerbated by tasks being “delegated”, or otherwise assigned, to them by that committee or anyone else.

(2) “And we should have representatives or nominees on that committee with expertise to assist them in ensuring compliance. And if they don’t, then it seems to me those representatives can change.” [Emphasis added.]

16The order does not prescribe qualifications for Compliance Committee membership, nor does it suggest that its members are to “ensure” compliance with the orders, other than indirectly through the Ministry’s discomfort in having its compliance competently monitored. In fact, four of its current members appear to lack the expertise to do more than that, and what qualifications would have to be written into Order 8 to make certain that its members could play a more active role is unclear. I am sure it is not being suggested that they should possess the “expertise” required of the third party consultants by Order 14—nor the expertise which, fortuitously, happens to be possessed by the Commission’s nominee, Dr. Agard. After all, it is not as though it were being suggested that the Compliance Committee ought to share joint responsibility with the consultants for the carrying out of the third party mandate at the Centre as delineated in the recent Interim Decisions and Rulings, is it?

(3) “I actually believe that it's going to be a terrible precedent, if this is the precedent that we set with respect to every time there's a disagreement - - everything stops, and we come back into a litigation adversarial process; because I think what you will see, when you see the most recent committee meetings, is the litigation is now affecting the Compliance Committee's ability to get on with it.”

17It is not clear to me what it is that I am on the brink of doing that might constitute “a terrible precedent”. The present hearing concerns a number of matters, including the alleged financial mistreatment of the complainant and his wife. The interim orders I am being asked to make at this juncture have to do with the implementation of Order 8—a matter of no small importance because of its impact on Ministry-wide matters. Presumably, it is not suggested that it would set a bad precedent to hold that it is the consultants who are charged with that responsibility simply because that is contrary to the view of the Commission. Rather, the gist of the submission seems to be that allowing the parties recourse to the Tribunal to settle their differences sets a harmful precedent, because it invites them to come before me “every time there is a disagreement”. What, however, would counsel have me do? Clearly, I cannot wash my hands of the matters now before me simply to avoid that outcome, nor can I forbid the parties all future recourse to the Tribunal regarding the matters with which it is seized. Indeed, although they concur with the Commission “that the goal of this process should be to encourage collaboration among members of the Compliance Committee and to increase their capacity to resolve conflicts”, in their June 29 report the consultants caution that “given the current impasse, and history of adversarial relations, this may not be achievable at this juncture”. Moreover, regardless of who is assigned the task of preparing them, both the Ministry and the complainant want the opportunity to comment on the recommendations to be made to the Tribunal (by whomever) regarding external investigations, and the Commission would be unlikely to refrain from adding comments of its own. Is that exercise, at bottom, simply pointless? What is to be done should it result in irreconcilable objections or concerns? Submissions would no doubt be made, and such submissions are inherently adversarial. Surely, they would have to be dealt with by the Tribunal in one way or another.

18While one would expect reliance on the Tribunal’s intervention to diminish to the vanishing point as the implementation process gathers momentum, the occurrence of disagreements cannot be prevented (as witness the fresh flurry of submissions referred to earlier). If issues of implementation of the orders arise and the parties are unable to work out their differences on their own, as they are certainly encouraged to do, it seems to me that they must be allowed access to the Tribunal as the designated forum for their resolution.

19Counsel concluded this lament by suggesting that “the litigation is affecting the Compliance Committee's ability to get on with it”, and I am driven to ask, Get on with what? Since this hearing cannot possibly affect that committee’s assigned task of monitoring progress, presumably it is seen by its members to be hampering their ability to get on with the unassigned task of deciding what the Ministry must do to comply with the order concerning external investigations. One is left to wonder what other decision-implementing measures the Compliance Committee might take it upon itself to pursue once that matter has been settled, and regarding which it would not want litigation to get in the way of. Perhaps we have come full circle. Is the real point not that the Compliance Committee should be allowed to “get on with it”? Is it, then, the suggestion that a terrible precedent will be set if the Tribunal does not accord them full authority so to do?

(4) “I also want to respect the framework and the process that's in place and allow that to continue with the direction that [the Tribunal] will give.”

20As already made plain, the decision-sanctioned “framework” and “process” that are presently in place involve monitoring progress, and nothing more.

(5) “Mr. Smith and Ms. Lopes are integral parts of the Compliance Committee because, if you look through the minutes, whenever there is an issue that needs to be resolved, who do they turn to but the third party consultants?”

21While, at the invitation of the Compliance Committee, the consultants have attended some of its meetings as “guests”, and have participated in some of its deliberations, they are not members thereof as of right. Indeed, their June 29 report suggests that they have been used by that committee as resource personnel. Prior to the recent clarification of their own mandate, the consultants were in no position to point out to the Compliance Committee that the formulation of directives to the Ministry regarding the implementation of any of the Tribunal’s orders, including Order 8, is beyond that committee’s jurisdiction. Rather, without asserting the primacy of their own authority (of which, in the circumstances, they have obviously been unsure), they have apparently made some progress in this matter, but ostensibly on behalf of a committee whose members require no qualifications to carry out the very task they mistakenly assume has been entrusted to them.

22As previously indicated, the Ministry agrees with the Commission that the Compliance Committee has “carriage of the matter” (if I may so put it), and that the consultants are simply to assist them in that regard. That cart-before-the-horse misconception is repeated in the Ministry’s supplementary submission of July 4 in which it lists three objections to specific issues in the consultants’ report. Those objections and my comments thereon are as follows:

1The Ministry has concerns about the Consultants' statement that they see this process as a means by which to "hold Ministry staff accountable". This is not an appropriate description of the Consultants' role. Ministry staff are accountable to their superiors, and to the Tribunal. The Consultants are assisting in the implementation of the Tribunal's orders, and may report to the Tribunal on issues that arise in the course of their work, but they are not a party to whom staff must account.

23The Ministry would be correct in stating that its staff are not “accountable” to the consultants if by that is meant being subject to orders; however, since its staff are admittedly accountable to the Tribunal in the sense of being answerable to it in respect of the matters within its jurisdiction, and since the consultants are the only interface between the two, they are certainly entitled to seek an accounting from the Ministry and its staff on behalf of the Tribunal. It would be meretricious to suggest that, although the Ministry’s staff are accountable to the Tribunal, there is no way in which the Tribunal can pursue or obtain that accounting.

2A similar concern relates to the Consultants' statement that the task of choosing external investigators had already been delegated (page 3) and assigned (page 4) to them by the CC. This is inaccurate. The Consultants were asked to provide their Anti-Racism expertise to the selection process, including creating an RFP, working with the CC. Like the Commission, the Ministry's position was that this collaborative process is beneficial. Any collaborative benefit is undermined by the suggestion that the members of the CC are "accountable" to the Consultants in some way.

24It is idle to query the accuracy of the assertion that the Compliance Committee had “already delegated” or “assigned” to the consultants the task of “choosing external investigators”, because that committee cannot delegate to the consultants a task with which it has not been charged, nor “ask them to provide expertise” or to otherwise “work with” its members in pursuing ends that are beyond that committee’s jurisdiction. It is to be hoped that the “collaborative benefit” of working together will not be “eroded” simply because the true lines of responsibility are pointed out. In my opinion, to hint that their collaboration would be withdrawn if committee members are found to be “accountable to the consultants in some way” does them a disservice. Moreover, that suggestion overlooks the “collaborative benefit” that accrued when the lines of accountability regarding the tasks purportedly delegated to the consultants by the Compliance Committee appeared to be the reverse. Whereas “accountability” cannot reasonably be seen as a negative factor, “pride of position” certainly is; and, unless the need for the former is being used in the present context as a euphemism for the loss of the latter, I doubt that the collaboration of committee members will be lost by the necessity of maintaining the overriding importance of the third party’s responsibility for overseeing the entire implementation process in accordance with their mandate as set out on May 18; but if it is, then so be it. Finally, in addition to what was said earlier regarding “accountability”, I would remind the Ministry that, contrary to its submission at the time, it was ruled that it is the “third party” that reports to the Tribunal regarding the affairs of the Compliance Committee.

3The fact that the Consultants were asked to provide their Anti-Racism expertise is significant. There is no suggestion that they have any special competencies beyond this sphere. The RFP, however, must encompass competencies related to all WDHP grounds.

25I am nonplussed by this objection. There has been no suggestion that anyone other than either the consultants or the Compliance Committee undertake the tasks in question. Thus, unless it were established that, apart from “anti-racism expertise”, the members of the Compliance Committee were endowed with all the rest of the “special competencies” related to the full range of grounds for WDHP complaints, the objection is quite pointless. Indeed, since (with one exception) committee members admittedly possess none of these competencies, to suggest that responsibility be shifted to them seems frivolous. In their June 29 report, the consultants maintained that “the Compliance Committee has acknowledged expertise doesn’t exist within the Ministry to develop anti-racism selection criteria for external investigators, nor to establish an appropriate RFP process”. That statement was not challenged in the Ministry’s July 4 response. In any case, as the July 5 submission from the complainant points out, the consultants have wide-ranging experience in human rights matters generally. To ignore that fact would be shortsighted; and to suggest that they are not to bring to bear on these issues the full range of their actual experience and expertise simply because they were appointed to deal specifically with racism in the Ministry’s facilities would be nonsensical.

26Having regard to the above comments, a detailed explanation of my view as to the mandate conferred upon the Compliance Committee by Order 9, which reads as follows, is called for:

9. (a) That within thirty days of this decision a committee to be called the "Compliance Committee", the membership of which is to be approved by the parties, be established at the Centre for the purpose of monitoring compliance with these orders in that facility; and (b) that the Superintendent of the Centre provide the said Compliance Committee with monthly progress reports until these orders are fully implemented. [Emphasis added.]

27That order was made at the request of the complainant, who favours a narrow interpretation of the Compliance Committee’s mandate. Ironically, the Ministry, which was opposed to the making of the order, and the Commission, which did not see fit to support it, now jointly advocate that a broad view of that committee’s authority be taken.

28Of course, as with all the orders, Order 9 is to be “read in the context of the findings, conclusions and reasons found in [the 2002] decision and in the April 1998 decision of this Board” (paragraph 313), the relevant parts of which are found in the more recent of those decisions as follows (with emphasis added):

294The sixth in this series of requests [by the complainant] calls for the "establishment of a 'Compliance Committee' at TEDC to ensure implementation of the decision", its membership to be approved by the parties "to ensure accountability and lack of bias". This Committee would receive monthly progress reports from management and, in turn, would report to the parties any failure to appropriately implement the orders in a timely way. In respect of this request, counsel for the Ministry said (tape 1, side A, July 5, 2002):

The Ministry is not in favour of the striking of some kind of additional committee. Certain individuals would be charged with anything that is required to further implementation, and I don't think it's necessary that there be another committee for that purpose. I have already given some comments on the proposal for training at Toronto East Detention Centre specifically, and again I would propose that, as in your order number twelve from 1998, the content be approved by the Commission.

However, the proposed committee would have nothing to do with "content", but would be concerned only with monitoring the progress of implementation at the Centre. Moreover, the Ministry's reason for objecting to the striking of such a committee fails to take into account the failure to hold any meetings or discussions at the Centre regarding the 1998 decision. If no one is assigned the task of making sure that this time senior management at the Centre actually discuss the decision, and that the orders are really carried out, there can be no assurance that these things will happen. Thus, in my view, the establishment of such a Committee is warranted.

29Plainly, the purpose of the Compliance Committee as originally contemplated was simply and solely to monitor compliance “with these orders in that facility” and report apparent failures to the parties who, in turn, would be expected to bring to the attention of the Tribunal those alleged failures that cannot otherwise be resolved to their satisfaction. While its mandate extends to putting in place the mechanisms necessary to carry out those functions, that committee cannot of its own motion take unto itself the active role of giving content to those orders. To do so would be to usurp the function of the third party consultants.

30In acceding to the request for the establishment of a Compliance Committee, the Tribunal assured the Ministry that “the proposed committee would have nothing to do with ‘content’, but would be concerned only with monitoring the progress of implementation at the Centre.” However, to develop and impose on the Ministry a roster of external investigators is to give content to an order, and I think it beyond question that it is not within the original terms of reference of the Compliance Committee to do so.

31The establishment in the Centre of a proper system of external investigation is one of the orders the Compliance Committee was required to monitor; however, while non-compliance with that order is a matter with which it must deal, the action to be taken by that committee is not to devise such a system, but to report the lack thereof to the parties. Notwithstanding its attempt to do the former, the latter happens also to have occurred. That is why the matter is now before me; and that is why a proper process for dealing with it is now being articulated.

32The immediate purpose of Order 8 was to remedy both the internal bungling of WDHP complaints by TEDC management and the failure to resort to external investigations of such complaints where clearly that process was required. That order was also intended to controvert the Ministry’s assertion that using in one of its facilities an investigator seconded from another constitutes an “external” investigation. Of course, the ultimate purpose of the order was to address one of the root causes of the Centre’s poisoned atmosphere. The genesis of Order 8, which seems to have been lost sight of, is found in paragraphs 261, 262, 281 and 303 of the 2002 Decision, which (with emphasis added) read in part as follows:

261In Dr. Agard's expert opinion, a non-functioning human rights complaints process is indicative of a poisoned work environment, whether at the Centre or Ministry-wide, and it was his evidence that the WDHP complaints process had broken down across the entire Ministry. ... While the Devlin WDHP Report is not as outspoken regarding this issue as Dr. Agard, that is the clear implication of its findings and recommendations as well: after all, one does not devise elaborate procedures to fix a system that is not broken. ...

262The failure of its complaints process is as much a contributing cause as it is a casualty of the poisoned atmosphere of the Ministry, and the first step towards redeeming an environment that is found to be poisoned is to ensure that a process for dealing with workplace discrimination and harassment complaints is in place and functioning properly. ...

281The Commission made no submissions as to remedies for the complainant specifically, but did request three systemic-remedy orders in respect of the Centre. The evidence reviewed in these reasons makes plain the need for such remedies, and they will be reflected in the orders to be made. However, the second order would be unnecessary if the requested Ministry-wide order to the same effect is made, and the third order requested assumes that no Ministry-wide order will be made regarding the IIU. The following statements in that regard made in counsel's written submissions (at pp. 16-17) are succinct and fully supported by that evidence, and I readily adopt them in principle:

(c) WDHP Complaints Dealt With Externally. Given management's failure to act when told of human rights violations at Metro East and the lack of confidence and trust in the IIU process, all human rights complaints at Metro East should be dealt with externally, including external investigations and mediations.

303The second of [the complainant’s] requested remedies is for the immediate establishment of an “interim mechanism using external investigators for WDHP and reprisal complaints raised by Michael McKinnon . . . until external investigation is set up in accordance with the Devlin recommendation”. Although not put forward as an interim measure, one of the remedies requested by the Commission and adopted by me in principle is to the same effect, and such an order will be made. However, having regard to the following statement of the Ministry's position, that order will apply to all WDHP complaints made at the Centre, not just those involving the complainant (tape 1, side A, July 5, 2002):

Consistent with what I said earlier in response to the recommendation for an external process for Toronto East Detention Centre, or external investigations, I would suggest it is something that is, practically speaking, possible to do. The Ministry has no objection to those kinds of external resources being used at the Toronto East, generally, but just would suggest that it shouldn't be confined to Mr. McKinnon specifically. But it won't serve any purpose, or be of any benefit to the complainant himself, if he alone at Toronto East Detention Centre has a separate process. What would make sense is that, if you are going to suggest to go external to some extent, it should be for the whole Toronto East Detention Centre. ...

33Clearly, in order to ensure that “a process for dealing with workplace discrimination and harassment complaints is in place and functioning properly”, someone must formulate appropriate criteria for the establishment of a roster of external investigators and for the delineation of the scope of their responsibilities, and someone must put that process into operation. The parties are in general agreement about this, and about the need for an opportunity to review and comment on the recommendations to be made to the Tribunal regarding such matters. Indeed, the Ministry’s position appears to have been one of goodwill and cooperation in this regard; it has not opposed replacing the external investigation process it is has used thus far; it is merely concerned as to who should bear the responsibility for that project, and it wants assurances that it will be done so far as possible in accordance with the public interest considerations on which all government requests for proposals are based. While it does not want investigations reopened, counsel said that the Ministry has no objection “to these things being put in place on a ‘go forward’ basis”.

34It is to be recalled that the Commission restricted its recommendation regarding external investigations to complaints arising at the TEDC. This was because it doubted the authority of the Tribunal to make Ministry-wide systemic orders, other than to require the fulfilment of a non-binding expression of intention regarding certain of the Devlin Report recommendations. The complainant, however, sought both an order requiring compliance with all of the Ministry-wide Devlin Report recommendations and an “interim mechanism using external investigators for WDHP and reprisal complaints raised by Michael McKinnon” pending the setting up of an external investigation process in accordance with the wider Devlin recommendation. Whereas Order 8, which was enlarged at the suggestion of the Ministry to include all TEDC complaints, embodies the interim mechanism sought by the complainant, Order 1 has Ministry-wide application and requires the implementation of all but one of the Devlin WDHP Report recommendations (the sixth). That first order is of considerable significance in the present context.

35Whereas nothing in the 2002 Decision suggests that it is the Compliance Committee that should undertake the tasks in question (for which its members were neither required to be, nor are in fact, with one exception, qualified to undertake), a proper reading of the orders shows clearly that it falls within the mandate of the consultants to carry out these tasks. They are responsible for overseeing the implementation of the Ministry-wide systemic orders, including the Devlin Report recommendation that “a roster of external investigators replace the WDHP investigation role of the IIU.” Since they are already charged with developing for Tribunal approval that Ministry-wide roster (and, by necessary intendment, with determining as well the scope of the process such investigations should entail), it would be folly to transfer that responsibility, or any aspect of it, to the Compliance Committee simply because (with the best of intentions) its members have presumed to take some initiative in that regard. The work of the consultants must not be hampered by throwing into confusion the lines of authority at the Centre regarding the implementation of the Tribunal’s orders. Moreover, since the obvious starting point for the Ministry-wide endeavour the consultants must undertake is at the TEDC, establishing the process in that facility might serve as a pilot project.

36That the responsibility for devising an external investigation process is theirs does not mean that the consultants will neither need, nor seek, the assistance, cooperation and resources of Ministry officials in respect of their broader task, or of the Compliance Committee in the narrower setting of the Centre. Indeed, it is the consultants’ clear intention to continue to work with that committee on this file in a cooperative way, regardless of who is found to have formal responsibility for it. In their report of June 29, they speak to the “Benefits of this Approach” as follows:

a) To address the current issue, a solution is needed that can be implemented very quickly. Individuals who have WDHP allegations should have, and must be seen to have, access to competent resources within a reasonable timeframe. Since the consultants’ expertise is not being disputed, it should be put to good use for an efficient solution. Given that there has already been agreement in the Compliance Committee to assign this to the consultants, it would be prudent to continue with this process.

b) The consultants believe that we can act promptly and in a consultative manner to address what we see as short- and long-term needs. To do this, we propose to draft criteria for the selection of investigators and to have these criteria and proposed investigators reviewed by all the parties and the Advisory Committee.

c) The consultants then propose to continue working with the Compliance Committee on the RFP process. We also propose to consult all parties and the Advisory Committee before bringing recommendations to the Tribunal. We have no intention of circumventing OPS procurement policy. We are, however, concerned that because this process is lengthy, an interim process is necessary. We would be continuing our collaborative approach while building the skills of the Compliance Committee in the process.

37While the Compliance Committee cannot of its own initiative enlarge its mandate, as was intimated at the hearing on June 28, it is open to the Tribunal to redefine that committee’s mandate in the interests of more readily attaining the fulfilment of its orders. I am strongly impressed by the submission made on behalf of the Commission that a more inclusive role than the one I have described be accorded that committee, and I look forward to counsel’s calling evidence and making submissions as to what that might usefully entail, as she indicated was her intention. I think it important to foster the goodwill that appears to be emerging from the Compliance Committee’s meetings and its interaction with the consultants, because that is an important step in diffusing an adversarial atmosphere.

38That the third party consultants should be ex officio members of the Compliance Committee seems implicit in the Commission’s submission, and I would be sympathetic to such a suggestion. However, what must be kept in mind is that they are not resource personnel available on call to the parties or to that committee. They are misleadingly (but conveniently) referred to as “consultants” only because (so far as I can tell) the “third party” appointed under Order 14 happens to be “Charles C. Smith Consulting”. As the heading preceding Order 14 stipulates, the third party is appointed to provide “professional assistance” to the Tribunal in assuring compliance with its orders, and not simply to serve in an advisory capacity to others. Thus, the extent of the relationship between the Compliance Committee and the third party, “Charles C. Smith Consulting”, must be left to the latter’s discretion, unless and until the Tribunal has cause to revisit the matter and decide otherwise.

39The respective roles of the consultants and the Compliance Committee was not the only matter of contention regarding the establishment of an external investigation process at the Centre. Counsel for the Ministry was of the view that normal governmental procedures and requirements must be respected to the fullest extent possible. In that regard she said that:

... ordinarily there is a policy, a procurement policy which every single organ of the Government of Ontario is required to follow ordinarily quite scrupulously in procuring the services of any outside organization. And the policy requires that an RFP of some kind be created, a request for proposals, that some -- that there be a communication to the relevant community of service providers that this work is available, and that the community of service providers all be given a fair opportunity to bid for the work or to put forward their qualifications. And these kinds of requests for proposals generally have very, very detailed indications of what the qualifications are, what the underlying skills are that are needed, the underlying experience and all those kind of things. And you can probably appreciate that the idea behind this is that a government needs to, needs to be seen to be as open and fair as possible and that people can't be chosen just because they're friends of somebody who happens to be involved in whatever happens to be going on. ... whoever is charged with this process should make a list, should do an RFP; that kind of thing. And my submission is it would be better to be the Compliance Committee and not simply the consultants on their own.

40Counsel for the complainant appears reticent (to say the least) about any reliance on existing Ontario Public Service requirements regarding “request for proposal” forms and procedures. She said:

It is our submission that it's not appropriate to leave it simply to the normal process, the OPS process. You, of course, have the jurisdiction to order a specific process and so it is our position that this process would replace it rather than the third party consultants be hampered and be restricted to the list of the normal government investigators.

41In my view, the complainant’s rights as secured by this Tribunal’s decisions and orders do not require the public interest in a fair and open process for the selection of external investigators to be overridden. Clearly, eligibility for inclusion on the resultant roster cannot “be restricted to the list of the normal government investigators”; nor has anyone suggested anything to the contrary. Thus, I agree with counsel for the Ministry that “whoever is charged with this process should make a list, should do an RFP; that kind of thing ...”; but whether “it would be better [that it be done by] the Compliance Committee and not simply the consultants on their own” is another matter.

42The responsibility for formulating recommendations to the Tribunal regarding the external investigation process is that of the third party consultants, and counsel for the complainant is quite right in that regard. However, the consultants cannot be fettered by the parties as to how they carry out that responsibility, and it happens to be their commendable intention to develop a “request for proposal” in cooperation with the Compliance Committee. In their June 29 report, they advise that under their “proposed approach the following steps are required”:

1. Developing Interim Measures

a) Criteria for selection and list of external investigators to be used until RFP process is provided to all parties: July 15, 2005

b) Parties and Advisory Committee respond: July 29, 2005

c) Final recommendations to Tribunal: August 20, 2005

2. Establishing Long-term Measures

a) RFP review process continues with Compliance Committee Fall, 2005

b) Develop standard procedures for all WDHP investigations, based on review of best practices - Winter, 2005-2006

c) Review by all parties and Advisory Committee - Winter, 2005-2006

d) Final recommendations to Tribunal - Spring, 2006

43I would be greatly perplexed by any objection to that proposed approach. I have made clear the lines of responsibility, the suggested time frames within which these tasks are expected to be accomplished seem appropriate, and the interests of the parties are safeguarded by the opportunity to review and comment on the recommendations that will be made to the Tribunal. Because the development of “standard procedures for all WDHP investigations, based on review of best practices” is part of the projected long-term measures, a similar set of instructions to be followed by external investigators will have to be devised for the short-term. (In light of the oft-repeated minimum requirements for procedural fairness outlined by counsel for the complainant in her oral submission, the need for which was readily accepted by counsel for the Ministry, that task ought not to be difficult.) Finally, it is to be noted that, on the “long term”, Ministry-wide measures regarding the WDHP complaints-investigation process are to be established, and the role to be played by the Centre’s Compliance Committee in that regard is problematic.

DISPOSITION OF PREVIOUS COMPLAINTS

44The submission of counsel for the complainant that, with two exceptions, the investigations of all complaints at the Centre should be “redone” would appear to relate to the period following the Court of Appeal decision dismissing the Ministry’s appeal of the 2002 Decision. The exceptions referred to are the investigations of allegations made in her letter of January 26, 2005 (Exhibit 42), which alleged incidents were cited simply as examples of the “ongoing conduct of continued harassment and discrimination” the complainant wanted dealt with by the Tribunal; they were not filed with the Ministry as complaints to be referred by it to external investigators. Although counsel sought “an order that all matters presently under review need to be redone”, she went on to explain that:

... when I say “presently under review”, what I mean by that, Professor Hubbard, is the matters that are referred to in the Superintendent's reports. In some of those, when you look at the Superintendent's reports, you will find that they appear to have been dealt with in a number of ways. Some of them, for instance, you will remember, referred to as direct management action: “unsubstantiated”. [That reference is to a closed file.] And it is our submission that we would have to redo that process because we don't know what that direct management action is. But, in any case, we know that it was not intended that management take the action; i.e., do any of the assessment, whether or not it was assessment of whether it falls under the WDHP or assessment of the facts.

45In support of that submission, counsel for the complainant referred to the evidence led by her regarding his allegation that two of the external investigations conducted in purported compliance with Order 8 by persons selected from the OPS external investigations list were flawed, in terms of the process followed as well as the conclusions reached.

46In particular, it was alleged that in one case the investigator, who had been engaged in accordance with current protocol, had ignored and twisted witness-statements set out in her own interview notes for the suggested purpose of currying favour with the Ministry in respect of future contracts by submitting a report favourable to it. Counsel observed that: “It appears that the people who were doing the investigations at that time knew that they were going to have to bid under this RFP process.” Presumably, I will be invited to infer the Ministry’s complicity in the matter as well. Similarly, in the other case, the investigator is alleged to have twisted the issues so as to reach conclusions favourable to the Ministry. It was alleged, as well, that the external investigators in question were incompetent. In the course of her submission, counsel said:

We think that the flawed process that we see with respect to these two - it's not an isolated one, or an isolated problem with one investigator, but a problem with both of the ones that we have seen - is that there seems to be significant systemic problems and significant problems with respect to the individuals who are picked. And it is our submission that all of the other matters should be sent back after the third party consultants prepare an appropriate list and set out the criteria, that they should all be redone. Now, the reason we say that is that we don't think that it would be fair under this process to say that, because they've been started, that they then should not have the same protection as one that has been filed since you made your clarification.

47In a nutshell, the complainant’s argument made in justification for “redoing” investigations involving complaints that had nothing to do with him is this: if two such investigations were flawed, it ought to be inferred that all of them were (or probably were, or might have been) similarly flawed, and therefore they must be redone. Of course, the evidence of the Ministry has yet to be heard, and the Tribunal is in no position to reach conclusions of fact as to whether these allegations are true. The first premise of that argument has yet to be established, and it would be a reversible error to draw the proposed conclusion prematurely. Thus, I have no hesitation in denying the complainant’s motion for such an order; indeed, I cannot do otherwise at this time. However, lest the request resurface when the evidence regarding these incidents has been fully presented by the parties, given my view of the principles at issue, I think it useful to respond to the complainant’s request as though his allegations had been made out.

48Counsel for the Ministry said that “the point on which the Ministry has the greatest difficulty is the request that all of the outstanding matters be redone”, and she pointed out that, by “all ongoing matters”, counsel for the complainant specified all “those matters that are in the Superintendent's reports”. After going through these reports (Tab 8, Exhibit 29), Counsel for the Ministry pointed out the considerable number of closed cases and the extent to which others had already been investigated. She said that “it's a significant thing to say that something that has been completed should be restarted from the beginning without any specific evidence that there's any need to do so in those cases”. She submitted that it would be unfair to the parties to those complaints to reopen them. That view, of course, is in sharp contrast with the apparently paternalistic view of the complainant that it would not “be fair under this process to say that, because they've been started, that they then should not have the same protection as one that has been filed since you made your clarification”—and this, even though the parties to those complaints have not invited, and may not want, such intervention. As counsel for the Ministry pointed out:

“It's a significant thing to tell a complainant, “It's all going to start all over again now. Whatever was found - -”. The same for a respondent: “Whatever was found, we are not going to live with that anymore. We're going to redo that”. And again - - here we have No. 5 on this page - - we have a substantiated event of gender discrimination where there would have been action taken in relation to the respondent. And now the complainant is being told - - would be told: “Sorry. Maybe it didn't happen, and we're going to do an investigation”, and the respondent is being told he might be subject to some other new finding against him.

49From the outset, the purposes of the orders and rulings made in this Tribunal’s various decisions have been, first, to give effect to the personal remedies accorded the complainant (damages and other personal benefits and protections) and, second, to give effect to the systemic remedies intended to rid his workplace of its racially poisoned atmosphere—a consequence that redounds to the good of all. To reopen complaints that do not involve him does not serve that first purpose; and, to force others, without regard to their needs or interests, to revisit matters they thought settled—matters that may not, in fact, be WDHP complaints—does not serve the second purpose. Indeed, the resentment and bitterness thus generated might well exacerbate the situation. It is truly ironic that, whereas the complainant sought only an “interim mechanism using external investigators for WDHP and reprisal complaints raised by Michael McKinnon”, had it not been for the adoption of the Ministry’s suggestion that any such mechanism ought to apply to everyone at the Centre, the present request would not be before me.

50I cannot conclude my consideration of this request without commenting on the Commission’s “middle-ground” suggestion:

... where complaints are substantiated, I wouldn't have thought that's an issue because discrimination has been found. Where complaints have not been substantiated, I'm wondering whether or not Mr. Smith and Ms. Lopes could then audit those investigation reports. You will recall that in the Compliance Committee meeting, they were going to audit two external race-based investigations as part of, as part of their work. And I would just put it to you for your consideration that for those externals that are unsubstantiated, that perhaps the consultants could actually review the report and if they have serious concerns with respect to methodology, process, whatever, then perhaps that's a way of saying, 'Okay, fine. Let's redo those,' as opposed to this blanket. And I suggest that because it is a middle ground and also it's consistent with some of the work that they were going to do in the auditing of external investigations.

51To begin with, I do not think intervention should depend on findings of guilt or innocence. There can be no presumption that investigations resulting in findings of innocence are more likely to be flawed than those resulting in findings of guilt, so as to justify revisiting the one but not the other. (Indeed, the complainant’s personal experience would seem to suggest the opposite.) While I have no objection to investigations being reviewed by the consultants in a secure and confidential manner in order to gather information to assist them in their work, there is no reason to exclude from that purpose those complaints in which respondents were found at fault. However, not only do I think the unsolicited intervention in the settled affairs of others meddlesome and inherently wrong, but it would place the consultants in an invidious position if they were required to “audit” investigations with a view to setting aside apparently accepted dispositions of matters in order to hold fresh inquiries into those regarding which “they have serious concerns with respect to methodology [and] process”. I trust that such was not the direction in which either they or the Compliance Committee were heading with “the work that they were going to do in the auditing of external investigations”.

52A final comment regarding the disposition of previous complaints is that, whereas in its July 4 submission the Ministry chided the consultants for failing to provide in their June 29 report “any guideline on what is to be done with the investigations that have already been started, or that are complete”, what is to be done with them—whether or not they are to be reopened or restarted—is for the Tribunal to decide, and it would have been most inappropriate for the consultants to have offered an opinion thereon. While counsel for the complainant suggested in her July 5 submission that this supposed failure on the part of the consultants was seized “as an opportunity to make written submissions in addition to those already made orally at the hearing”, I can assure the parties that my view of this matter was not affected by the Ministry’s supplemental submission.

DECISION

53While the complainant’s submission was couched in terms of a motion for an interim order, it entails three separate requests: (1) clarification of Order 8 of the 2002 Decision on Implementation; (2) an order regarding the investigation of complaints at the Toronto East Detention Centre made after June 28 (the date of the motion); (3) an order regarding previously commenced investigations at the Toronto East Detention Centre.

54For the reasons provided above, the complainant’s motion for an order requiring the reprocessing of complaints made at the Centre, the investigation of which commenced prior to June 28, 2005, is hereby denied. The complainant’s other requests are disposed of in accordance with the Ruling and Order set out hereafter.

Ruling

55By way of clarifying the scope of Order 8 of the 2002 Decision on Implementation, it is the Tribunal’s ruling that all complaints made at the Toronto East Detention Centre are to be subject to external investigation.

Order

56It is hereby ordered that, in accordance with the approach and time lines proposed by them in their report of June 29, 2005, the third party consultants appointed pursuant to Order 14 of its 2002 Decision on Implementation prepare recommendations for the Tribunal’s approval regarding the external investigation of complaints made at the Centre (in the short term), and elsewhere in the Ministry (in the long term). These recommendations are to include a roster of eligible investigators, the criteria governing their selection, and the procedures they are to follow, and a “request for proposal” in respect thereof is to be prepared in a manner that respects the underlying policy of the Government of Ontario regarding such matters.

57The parties are to be provided with copies of the said recommendations and their comments and submissions thereon are to be exchanged and provided to the Tribunal within one week thereafter. It is my intention to rule on those recommendations as soon as possible thereafter, taking into consideration the comments and submissions of the parties.