Ontario Human Rights Commission v. McKinnon, 2005 HRTO 35

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 On a Motion For standing Brought on behalf of Jim Duncan and Sharee Cybulski

Adjudicator: H. Albert Hubbard Date: September 28, 2005 Citation: 2005 HRTO 35

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

Jim Duncan and Sharee Cybulski, applicants ) Neena Gupta, 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

1When the hearing into the matters raised by counsel for the complainant in her January 26, 2005 letter to the Ministry of Correctional Services (Exhibit 42) resumed on September 14, 2005, a motion was brought by Ms. Neena Gupta on behalf of Ms. Sheree Cybulski and Mr. Jim Duncan, whose conduct had been the subject of evidence adduced by the complainant. Ms. Gupta sought an order adjourning these proceedings until a motion for standing on behalf of her clients might be heard or, alternatively, for an order that “no [further] evidence be called with respect to allegations that [these persons] made improper, negative and/or derogatory remarks about the complainant” until that motion is dealt with. Ms. Gupta also sought a declaration that the Tribunal lacks jurisdiction either to make negative or adverse findings of fact against her clients or to make an order negatively impacting upon their employment.

2After hearing the submissions of the parties, and on the assurance that the September 2005 agreed-upon hearing dates could be used to hear evidence unrelated to Ms. Gupta’s clients, the Tribunal reserved its decision on this motion until some time prior to the scheduled resumption of the hearing on October 6, 2005.

FACTUAL BACKGROUND

3One of the matters raised by counsel for the complainant in Exhibit 42 was that she and her client “are greatly disturbed to have to report that the conduct of harassment, discrimination and a poisoned environment for Mr. McKinnon appears to be continuing unabated.” Counsel went on to describe two examples of such conduct, the first of which is an allegation that an unnamed manager responsible for training new employees at the Toronto East Detention Centre (since revealed to be Mr. Duncan) had said or implied that the complainant was “dangerous”, apparently in the sense of keeping notes about others for litigious purposes. The second incident alleges that “the supervisor, Ms. Cybulski, made negative comments to an employee, one Mr. Gordon”, to the effect that the complainant “was nothing but trouble”.

4The allegations per se regarding Mr. Duncan and Ms. Cybulski are to be distinguished from their subsequent handling both by the Ministry and by the persons engaged to investigate them. Whether the allegations are true is one issue; whether the Ministry ought to have had them investigated as Workplace Discrimination Harassment Policy (WDHP) complaints in the circumstances is a separate and second issue; and whether, having nevertheless been submitted to that process, the investigation of these allegations that followed was flawed, is a third issue. Whereas all three issues arise out of these incidents, the alleged subsequent mishandling of the January 26 allegations does not appear to involve either Mr. Duncan or Ms. Cybulski.

5The circumstances giving rise to the motion are found in “Exhibit B” attached to the affidavit of Ms. Michelle MacGillivray, filed as documentary evidence in support thereof. It consists of the following exchange of electronic mail between counsel for the Ministry and counsel for the complainant:

1. From Ms. Stephenson: “Could one of you [i.e., either Ms. Hughes or Ms. Stewart] clarify for me what orders you are seeking with respect to the Jim Duncan and Sheree Cybulski investigations? I am starting to think about lining up the Ministry’s witnesses for September. The evidence required depends on whether you are seeking (1) a finding that the alleged statement[s] actually occurred, and/or (2) an order that the investigations were flawed and must be redone. Alternatively, if the intention was to use these illustrations, leading to a new investigation process, then it seems this purpose has already been achieved and I would not need to defend these two situations.”

2. From Ms. Stewart: “Mr. McKinnon will be asking the Tribunal to make a finding that the statements he claims Mr. Duncan and Ms. Cybulski made in fact occurred and he will be asking for remedies in that regard, specific to those situations, with the goals of ensuring that the right message is getting across and that similar remarks are not made again, which may include removing those individuals from their positions. Since the issue is whether or not the comments were made, we would expect that you will call both individuals to testify.”

3. From Ms. Stephenson: “Given the remedies that you are now seeking against Jim Duncan and Sharee Cybulski personally, they will have to be given notice under the SPPA. We will do so.”

ANALYSIS

6In asking about the intended use of the evidence regarding the Duncan/Cybulski incidents, counsel for the Ministry referred to three possibilities, the first of which is whether the complainant is “seeking a finding that the alleged statements actually occurred”. The answer, of course, is “yes”; after all, the introduction of such evidence would seem pointless unless it was intended to prove that the substance of the statements attributed to these persons was true, and the real question as to purpose is, one supposes, So what?

7Counsel for the Ministry then asks whether a declaration that these two investigations were flawed might be sought, along with an order requiring them to be redone. Of course, while that could not have been why the allegations in Exhibit 42 were made, evidence regarding the fact and manner of their subsequent investigation might be used for that purpose. In that regard, it may be noted that, although made in the course of a letter outlining matters that counsel intended to request the Tribunal and not the Ministry to deal with, and despite the absence of any WDHP complaint having been made by Mr. McKinnon in respect of them, the Ministry took it upon itself to have these allegations externally investigated, and did so in accordance with a process found by the Tribunal to be inappropriate. What is more, it was the complainant’s submission that these two investigations were so flawed that the investigations of all other complaints at the Centre were suspect, and an order was sought by him requiring all but the two in question to be redone or restarted, as the case might be. However, in the Tribunal’s Interim Ruling and Order of July 13, 2005, it is pointed out (at p. 21) that:

... the complainant’s argument made in justification for “redoing” investigations involving complaints that had nothing to do with him [unlike the two that have been the subject of evidence] 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 reversible error to draw the proposed conclusion prematurely. Thus, I have no hesitation in denying the complainant’s motion for such an order at this time.

8I went on to indicate that, even if the allegations regarding these two matters were in due course made out, the making of such an order in respect of the other investigations would appear to be counterproductive. However, I have indicated as well that, depending on the findings of fact made after all the evidence has been heard, it might be open to the complainant to ask either that the two allegedly flawed investigations be done over or that they be expunged from the record. While the purpose of such a request would not be to impugn either Mr. Duncan or Ms. Cybulski, the prospect that reports exonerating them might be set aside and the matters reinvestigated would appear to be of some concern to them, and it is Ms. Gupta’s understanding that such is the complainant’s intention.

9In her reply submission in relation to these reports and investigations, Ms. Gupta said that she had obtained “an excerpt of the June 28, 2005 transcript, just a portion of it, in which it is clear that Mr. McKinnon will be seeking” a remedy regarding the reports. She then quoted from that transcript the following remarks made by counsel for the complainant:

... we have a report in an exhibit from an external investigator that attacks the credibility of Mr. Gordon. That report is out there. Part of my remedy I'll be seeking is not just future-oriented, but with respect to what do we do with that report. ... And I haven't heard the Ministry say, 'Oh yes. Sorry. We agree it was a flawed report. Let's destroy it and we'll apologize to Mr. Gordon.' I haven't heard them say that, and unless I hear them say that, I have to call Mr. Gordon because I think he's seeking a specific remedy with respect to that report.

10Ms. Gupta then made the following observations regarding part of what counsel for the Ministry is reported to have said in that transcript:

... then Ms. Stephenson talks about the fact that she thought that the evidence was really to be focussed on how things needed to be handled differently in the future, but concedes that if there's going to be a specific remedy relating to the report, then obviously all of the evidence about the report has to be heard. And the Ministry also advises through Ms. Stephenson that they're not going to simply redo it. So it's not just simply what are we going to do for future, how are we going to structure systemic remedies, how are we going to conduct future external investigation; my anticipation is that Ms. Hughes will be asking for the Duncan and Cybulski report to be redone or, alternatively, that very specific findings be made as against Mr. Duncan and Ms. Cybulski that these incidents occurred.

11In responding to Ms. Gupta’s comments, I begin by noting that the Ministry cannot preempt the Tribunal’s jurisdiction to deal with relevant matters formally raised by the complainant by the simple device of ordering an investigation of its own. It seems clear from Exhibit 42 that the complainant’s intent from the start was to have the Tribunal deal thoroughly with these two matters through the hearing of evidence and the making of findings of fact with respect thereto. If these investigations ought not to have been conducted in the first place, the reports thereof cannot displace the need for the Tribunal to deal with the complainant’s prior request that it examine the same issues: a fortiorari, if the investigations were, in fact, flawed. It is to be noted as well that, whereas (depending on the ultimate findings) circumstances might warrant the making of an order regarding these investigations and reports, that outcome could not be at the behest of Mr. Gordon, who has no more standing in these proceedings than do Mr. Duncan and Ms. Cybulski. While he might seek a remedy elsewhere, it would not be open to him to come before this Tribunal “seeking a specific remedy with respect to that report”. Finally, lest there be some confusion in that regard, I would observe that it is not open to the Ministry to decide that “they're not going to simply redo” an investigation. Indeed, (and I am open to submissions on this point), it seems to me that the facts as found by the Tribunal must stand in the place of the findings of the investigators employed by the Ministry. If that is so, then not only must their reports be expunged, but the ordering of another investigation into these incidents would appear to be pointless. Moreover, in my view, a submission that these reports should not be struck down simply because of the expectations of Mr. Duncan and Ms. Cybulski arising therefrom would be untenable.

12Counsel for the Ministry concluded her inquiry into the purposes to which the evidence in question might be put with this observation: “if the intention was to use these [incidents as] illustrations, leading to a new investigation process, then it seems this purpose has already been achieved and [the Ministry] would not need to defend these two situations.” Indeed, that issue was preempted by the Tribunal’s clarifying orders indicating that the mandate of the third party (the consultants) includes preparing a roster of external investigators, as well as the criteria for their selection and the process to be followed by them—not only at the Toronto East Detention Centre, but Ministry wide, in accordance with Order 1 of the 2002 decision herein. That conclusion was reached independently of the Duncan/Cybulski allegations and the manner of their investigation. It did not have to await the Ministry’s evidence regarding those matters, nor is that conclusion of any concern to Mr. Duncan and Ms. Cybulski.

13Although nothing prior to the exchange of electronic mail set out above suggested any intention that remedies were being sought against Mr. Duncan and Ms. Cybulski personally, the allegations made in Exhibit 42 refer to “conduct of harassment, discrimination and a poisoned environment”. That language seems to anticipate consequences of which they are entitled to be wary—consequences that appear to begin to take form in the complainant’s response to the Ministry’s request for clarification. The complainant, the Ministry was told, “will be seeking remedies in that regard, specific to those situations ... which may include removing those individuals from their positions”. Thus, it is hardly surprising that Mr. Duncan and Ms. Cybulski would feel threatened and would seek counsel to protect their interests.

14Be that as it may, in speaking to this motion counsel for the complainant made it clear that the complainant has no intention of seeking personal remedies in respect of these individuals, nor to ask for their “removal from their positions”—an unfortunate turn of phrase, as it turns out. The complainant is, of course, at liberty to file fresh complaints with the Human Rights Commission against whomever he will; but this Tribunal’s only present concern is the implementation of its orders, including the personal remedies already accorded the Complainant. Thus, during the course of argument on this motion I made it clear that the Tribunal would not entertain any submission for remedies against persons who had not been named as respondents in these matters, and that the time for doing that is long past.

15As to the purposes he seeks to have served by evidence regarding the Duncan/Cybulski incidents, on more than one occasion the Complainant has indicated his frustration that, whereas he is anxious to play an active role as “part of the solution” to the racist problem that has plagued his workplace, he continues to be regarded by some as “the problem”. The evidence in question, his counsel says, is intended to establish that such is how he is viewed; and it is her intention to formulate a systemic remedy to be submitted in due course for the purpose not only of eradicating that negative and hurtful reputation, but of according him an active role in the implementation of the existing orders. Whereas such a remedy would not appear to have any impact at all on Ms. Cybulski’s employment, since one of Mr. Duncan’s assignments was to provide orientation training for new recruits, his continuing to discharge that particular function (assuming it was even contemplated asking him to do so) might be collaterally affected thereby.

16In support of her motion that Mr. Duncan and Ms. Cybulski be granted standing in these proceedings, Ms. Gupta said that if the Tribunal intends to entertain submissions to the effect that her clients have “in fact violated the rights of Mr. McKinnon”, then “they have a right to be a party to these proceedings”. In so submitting, she said she was “primarily relying on the Code itself”. According to s.39(2)(d) of the Human Rights Code, R.S.O. 1990, c. H.19, the parties to a proceeding before the Tribunal include “any person appearing to the Tribunal to have infringed the right”.

17In my view, nothing in the evidence or allegations suggests that either Mr. Duncan or Ms. Cybulski has violated the Complainant’s human rights. They acted independently, and there is no evidence of (1) a “course” of conduct or comment by either of them amounting to harassment under the Code, or (2) discrimination by them on a prohibited ground, or (3) their having targeted the Complainant as a reprisal. Nor are they responsible for the racially poisoned atmosphere already found by the Tribunal. Rather, if the allegations are made out, the situation would be as counsel for the Complainant described it: “What we have here are two examples where ... managers ... appear not to have got the message that Mr. McKinnon is not the problem, and they have made certain comments which indicate that that mind set is not changed.” Such an attitude might have to be addressed at some point as part of the change process not yet specifically provided for. However, since neither Mr. Duncan nor Ms. Cybulski appears to the Tribunal to have infringed any of the Complainant’s human rights, s.39(2)(d) is inapplicable.

18Ms. Gupta referred to s.8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which requires that: “Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.” (Emphasis added.) According to her understanding, that requirement had not been complied with “as of today’s date”. However, as counsel for the Complainant rightly pointed out, Ms. Gupta’s clients are not parties to this proceeding and, in any event both they and the Ministry have had all the relevant information all along. Mr. Duncan and Ms. Cybulski were each well aware of the investigation and the report thereof regarding his and her conduct.

19Ms. Gupta relied as well on the decision of the Supreme Court of Canada in Re Nicholson and Haldiman-Norfolk Regional Board of Commissioners of Police, 1978 CanLII 24 (SCC), 88 D.L.R. (3d) 671, which she said “stands simply for the proposition that where a person’s career/office/pension are at issue, there is a significant duty of fairness to be afforded to them”. She went on to quote the following passage from the judgment of Laskin C.J.C.:

The fundamental rule is that if a person may be subject to pains or penalties or be exposed to prosecutions or proceedings or deprived of remedies or redress or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure.

20As already indicated, no remedy is sought against either Mr. Duncan or Ms. Cybulski personally in this proceeding, nor in any event would such a remedy be granted regarding either of them. Moreover, there is nothing to suggest that the evidence in respect of which I will be asked to make findings of fact might expose either of them to prosecutions, proceedings or direct deprivation. However, it happens that the very nature and purpose of systemic orders in the context of this proceeding is to effect a change in the way in which the Ministry has dealt with racist behaviour. Obviously, the systemic orders already made, as well as those that may be sought, may have a collateral impact on some of its employees. For instance, the order that all WDHP complaints be investigated externally affects those theretofore engaged in carrying out internal investigations of such complaints. Similarly, if the evidence leads the Tribunal to conclude that the training of recruits be done differently in relation to racial matters, then that may impinge upon some (perhaps sporadic) aspect of Mr. Duncan’s duties. It may be noted that it was not suggested that his sole function is to train new employees; nor was it suggested that, if there is in fact an anti-racism component to that training programme, he would be discharged from employment at the Ministry were that aspect of it to be taken over by an expert on anti-racism—as would in any case (and without reference to these incidents) seem to be a necessary corollary of the April 11, 2005 interim decision setting out the mandate of the third party. As to Ms. Cybulski, nothing that might be ordered would appear to have any impact on her employment. Thus, Re Nicholson has no application to the circumstances of this motion—not that Ms. Gupta could have known that simply from reading “Exhibit B” of her motion material.

21In her submissions, counsel for the Complainant referred to the Court of Appeal decision in Hurd v. Hewitt, 1994 CanLII 874 (ON CA), 20 O.R. (3rd) 639, a decision that I think entirely apt in the circumstances before me. As to whether non-parties whose conduct is raised in evidence must be given an opportunity to respond before findings impugning that conduct may be made, Carthy J.A. had the following to say (at p. 7 of the copy of the report provided to me):

... If the facts established in evidence dictate a conclusion, the duty of the tribunal is to reach that conclusion if those facts are relevant to the decision. If evidence is not adduced the tribunal must assume the parties, or one of them, had good reason not to do so and then draw an inference from that failure, rather than interpose itself by insisting that evidence be called against the presumed best interest of that party. It would be a distortion of our system to have the tribunal determining what evidence is to be called and what persons are to be invited to intervene, notwithstanding the desires of the parties, or that intellectually honest reasons must be contorted because the parties failed to assure fairness to an outsider to the dispute.

The practical consequence of any other conclusion would be chaotic. The tribunal cannot know at the outset what evidence may be relevant to the ultimate reasons. Every time an aspersion is cast at any person, the tribunal would have to assure itself that the person is warned and given an opportunity to respond. The allegation might arise from the evidence of the last of a series of witnesses and be cast against earlier witnesses and others. This would mandate recalling those witnesses and calling the others, or imposing upon the tribunal the obligation to ignore what may be very cogent evidence. Taking it a step further, judgment might be reserved and, upon reflection, the tribunal might determine that a particular segment of evidence is essential in the reasoning. The hearing would have to be reconstituted if that evidence involved misconduct on someone’s part and the allegation had not been put to that person. Alternatively essential evidence would have to be ignored.

22It is inevitable in lengthy and prolonged proceedings such as this that negative and/or adverse findings be made against persons who are neither parties to nor witnesses therein. If such findings are dictated by the evidence and are essential to the resolution of an issue, if they are not simply gratuitous, then most certainly the Tribunal has jurisdiction to make those findings; indeed, “the duty of the tribunal is to reach that conclusion if those facts are relevant to the decision”. Thus, in my view, it is not open to the Tribunal to declare that it lacks jurisdiction either to make negative or adverse findings of fact regarding non-parties or non-witnesses or to make orders that may have a negative impact on them in terms of employment or otherwise.

23Counsel for the Complainant also referred to Jeppesen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1, an Ontario Board of Inquiry decision in which it was said that the considerations that “inform the decision whether intervention [as a party with standing] should be granted” include whether it “will unduly delay or prejudice the determination of the rights of the parties to the proceeding”, whether “the applicant has a significant interest in the issue on which intervention is sought”, and “is likely to provide assistance to the Board that will not otherwise be provided.”

24I have no doubt that acceding to Ms. Gupta’s motion to grant standing to Mr. Duncan and Ms. Cybulski would result in undue delay in these proceedings. It has been alleged that they said certain things, evidence about which has been adduced by the Complainant, and it is Ms. Gupta’s intention to recall those witnesses in order to cross-examine them—at least to the extent that an opportunity to review the transcripts suggests to her is required. She would participate in the examination of her clients as well. Not only would additional hearing dates be called for, but the need to accommodate the schedule of yet another legal representative would add to the logistical problems that have begun to overrun this hearing. While the evidence of Mr. Duncan and Ms. Cybulski regarding the incidents in question might assist the Tribunal in determining whether a systemic remedy of the kind the Complainant intends to seek is called for, it is entirely unnecessary for them to be granted standing as parties in order to obtain that assistance. Finally, neither of them has any overriding interest in the issues before the Tribunal.

25In my opinion, to grant standing to anyone who asks for it on the basis that evidence has been given that might cast aspersions on them, or otherwise show them in an unflattering light, would be to invite chaos. It seems to me that the evidentiary issue that concerns Mr. Duncan and Ms. Cybulski is simply whether the allegations made in Exhibit 42 are substantially true. Whether they are called as witnesses is up to the parties; but, if they are called, each will have ample opportunity to testify fully regarding the issue of fact that concerns him or her.

26Since they are substantially the same as those of Ms. Gupta, I find it unnecessary to deal with the submissions made by counsel for the Ministry in support of the motion for granting standing to Mr. Duncan and Ms. Cybulski in this proceeding. However, I think I must address the Ministry’s suggestion in reference to s.11 of the Statutory Powers Procedure Act, which reads as follows: “A witness at an oral or electronic hearing is entitled to be advised by counsel or an agent as to his or her rights but such counsel or agent may take no other part in the hearing without leave of the tribunal.” It was suggested that:

... the Tribunal can give leave for a witness's representative to play whatever role the Tribunal wants to give to that representative. So my suggestion would be that even absent party status, you have the jurisdiction to give representation to a witness and for the purpose of conducting cross-examination; for example, to limit it only to the particular issues in relation to that particular witness or to certain witnesses or something like that. So I'm not sure that the distinction between party and representation of a witness is necessarily all that important. Our position is that they are entitled to representation which has the effect, through whatever designation, but representation which will have the effect of allowing them to defend their own interests in the most fulsome way possible.

27In my opinion, what has been said regarding the motion for standing made on behalf of Mr. Duncan and Ms. Cybulski applies equally to the scope of participation of their counsel under s.11 of the Statutory Powers Procedure Act. Thus, I have no intention of permitting witnesses to be recalled for cross-examination by such a representative, or to allow that representative to participate in the examination of other witnesses who might be called. Moreover, unless there is a conflict of interest between these witnesses and the Ministry, it is difficult to see why they would require the active participation of independent counsel in the giving of their evidence.

RULING

28For all the above reasons, the motion made on behalf of Mr. Jim Duncan and Ms. Sheree Cybulski for standing as parties (or as intervenors) in these proceedings is hereby denied, as is the request that this Tribunal declare its want of jurisdiction to make findings of fact and to issue orders that may have a “negative impact” upon them.