Ontario Human Rights Commission v. McKinnon, 2005 HRTO 44

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 RULINGS

Regarding the Third Party Report of September 12, 2005

Adjudicator: H. Albert Hubbard

Date: October 26, 2005

Citation: 2005 HRTO 44

Human Rights Tribunal of Ontario

400 University Avenue, 7^th^ Floor

Toronto ON M7A 1T7

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

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

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

Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Jennifer Scott, Counsel

Michael McKinnon, Complainant ) Kate Hughes, Counsel

Her Majesty the Queen in Right of Ontario, )

Ministry of Correctional Services, Frank ) Kate Stephenson, Counsel

Geswaldo, George Simpson, Phil James and )

Jim Hume, Respondents )

INTRODUCTION

1The matters with which the rulings herein are concerned arise out of the Tribunal’s Interim Ruling and Order of July 13, 2005, which is as follows:

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.

2On September 16, 2005, the Tribunal heard oral submissions from the parties regarding the September 12, 2005 report submitted for approval in accordance with the above order by “the consultants” Charles C. Smith and his associate Tina Lopes, who are the “third party” appointed pursuant to the 2002 Decision on Implementation. The genesis of their report, entitled “Interim Criteria and Standards for Selection of External Investigators, re WDHP [Workplace Discrimination and Harassment Prevention] Complaints at the Toronto East Detention Centre [TEDC]”, is described by them (at page 19) as follows:

Pursuant to the Tribunal Chair’s order, the Consultants drafted a report for consideration and comment by counsel for all parties. This report was sent out for comment on August 15, 2004 and responses were received on August 30, 2005 from counsel for the Ontario Human Rights Commission, from the Ministry and Mr. McKinnon on August 31, 2005, and from OPSEU on September 9, 2005. The Consultants have acknowledged through footnote the changes made in the draft report and have incorporated numerous suggestions made by these counsel.

3The September 12 report is a comprehensive, tightly reasoned document, much of which was found acceptable by all the parties whose appreciation for the extent to which the consultants accommodated their suggestions is evident from the following observations made at the hearing:

Counsel for the Commission: The August 15th report which was provided in draft was a very thorough report. And the consultants then basically got four sets of submissions on the draft report and I think did a remarkable job. When I looked again at the submissions last night and how they were incorporated, they did a remarkable job of really listening and trying to incorporate as best they could everybody's comments.

Counsel for the complainant: They have listened to the parties, they incorporated good suggestions the parties made where appropriate. It doesn't mean that they incorporated everything. They considered them, and some of the changes were made that I suggested, some that the Ministry suggested, some that Ms. Scott suggested; not everything everybody suggested. And so it appears that they had a very even-handed approach.

4Since the parties do not agree amongst themselves on various matters, it was inevitable that “not everything everybody suggested” would be adopted by the consultants. Their explanation regarding those aspects of their draft report that remain unchanged begins as follows (at page 19):

There are, however, a number of issues raised by counsel with which the Consultants do not agree or have concerns about. These relate to:

1. the selection of external investigators;

2. the investigators’ role;

3. the role of the Consultants;

4. the relevance of Section 22.(1) of the Ministry of Correctional Services Act, R.S.O. 1990 [sic];

5. unminuted comments ascribed to the Consultants and referenced by the Ministry; and

6. the Ministry’s comments regarding delays in the implementation of the third-party Consultants’ anti-racism organizational change plan.

5Having indicated my intention of taking into consideration the comments of the parties when ruling on the consultants’ report and recommendations in these matters, it is only necessary to deal with submissions relating to the “unresolved” issues listed by them. However, before turning to those submissions, I have some general observations to make in order to place my rulings in a context that helps explain them, and to clarify the extent to which the Tribunal may in future be called upon to resolve differences of opinion between the consultants and the parties.

6In her September 9, 2005 e-mail to the consultants, counsel for the Ministry of Correctional Services began by stating that she was “writing to provide a response to the proposal that you described in our meeting on August 9, 2005, concerning your reporting function. The Ministry understands that your proposed process would involve the following steps”. (Emphasis added.) Those “steps” include providing the parties with a draft report and incorporating their views thereon in a final report to the Tribunal that “would identify any matters that remain unresolved and state how [the consultants] would resolve” them. The parties would then make submissions “in a forum that is more like a meeting than a hearing”, and the Tribunal “would ultimately rule on those issues that [the consultants] believe need resolution”. The following comments made by Mr. Smith in reply to questions put by counsel for the Ministry are also significant regarding the consultants’ reporting function:

In pointing out how we would like to report to the Tribunal, by issuing drafts and so on, I think the answer we gave in our report at this time to the Tribunal is we want to anticipate things in advance as much as possible, so that we can cut down on the need for further orders. And that requires a high level of cooperation which we anticipate receiving. And then the need -- I mean, we do have a monitoring role and our hope would be that we're coming to the Tribunal saying, “Things are moving well. Here's the progress well on the way.” If there are differences -- and there will be differences from time to time, and they may be substantive differences -- we feel it is our role to come into the Tribunal and say, “Here is a substantive difference. We can't agree on this one, so we may need a ruling.”

7Whereas the steps described in the Ministry’s e-mail letter are in accordance with the July 13 order, that process is not to be predicated of the consultants’ “reporting function” per se. That order was issued in the context of submissions made regarding the specific matter of external investigations. It was not intended to impose similar obligations in respect of the quarterly reports the consultants are required to make. I point this out because the Ministry’s letter goes on to say that:

... it is not helpful for the Tribunal to be involved in day-to-day decisions concerning implementation of the decision. Nor is this proper, in the Ministry’s view. The Ministry considers that the adversarial context is not likely to be attenuated by any process that continues to have all decisions subject to review by the Tribunal. Rather, the Tribunal should be involved where it is alleged that its order has been violated.

8On the one hand, if the “decisions” that it claims ought not to be “subject to review by the Tribunal” are those of the Ministry, then I would agree that “the Tribunal should be involved [only] where it is alleged that its order has been violated” by such decisions—or, it must be added, jeopardized by them. After all, since systemic orders cannot be properly implemented without the cooperation of the employer, the consultants may certainly approach the Tribunal should the want of such cooperation become a problem.

9On the other hand, if the “decisions” referred to in its September 9 letter are not those of the Ministry, but are “day-to-day decisions concerning implementation of the decision”, the basis for the suggestion that the Tribunal should not be “involved” would appear to be that the making of such decisions is the business of the parties and the consultants. What now needs to be stressed is that the parties to this proceeding are not the overseers, jointly with the consultants, of the implementation process, nor may they come before the Tribunal every time they take exception to the way in which the consultants are carrying out, or propose to carry out, their mandate as the third party. As pointed out in the July 13 decision (at paragraph [42]): “the responsibility for formulating recommendations to the Tribunal regarding the external investigation process is that of the third party consultants ... [who] cannot be fettered by the parties as to how they carry out that responsibility.” That observation is applicable to the entire spectrum of the third party mandate.

10The consultants obviously welcomed the suggestions of the parties regarding their August 15 “external investigations” draft report, and they are likely to welcome future suggestions regarding the complex tasks that lie ahead, readily adopting those they find helpful. As was the case with their September 12 report, some suggestions might not be adopted by them for one reason or another—and that would hardly be surprising, given the inescapably partisan nature of the comments made by parties who are at odds with each other. Whether issues thus raised by the parties ought to be referred to the Tribunal is problematic. If such an issue has to do with the terms of the third party mandate, then it is appropriate to refer it to the Tribunal for resolution; but if that issue has to do merely with the consultants’ modus operandi (if I may so put it), then I think it ought not to be referred to the Tribunal. The consultants are the experts. They must be allowed to do their job, and the Tribunal is not to be called upon to settle squabbles over how they are to do it.

11As to the September 12 report, the complainant alone was content with both the process followed and its outcome, the oral submissions made on his behalf being intended only to counter the further changes to the consultants’ recommendations advocated by the other parties. In my opinion, the issues with which the Commission and the Ministry remain concerned are for the most part narrow matters of opinion as to the detailed manner in which the consultants intend to carry out the July 13 order. Counsel for each of them made submissions intended to persuade the Tribunal to substitute that party’s opinion for that of the consultants. What is in danger of being overlooked is that there is only one expert opinion before the Tribunal regarding most of these matters, and it is neither mine nor that of the parties.

12Counsel for the complainant pointed out in her submission that I had stated in the Tribunal’s May 18 Interim Decisions and Rulings that “I am in no position to micro-manage [the change] process (even if I had the necessary expertise)”, and I think she got it right when she went on as follows:

... Nobody took issue with the expertise of the third parties, and they have embarked on their work. And so I think we have to remind ourselves of that when we look at what we are doing here today, and what you [the Tribunal] should be doing, because these people were picked because of their expertise and no one has disputed that. ... And I think their reports to date, and particularly the last report, indicate that the proof is in the pudding. This is an extremely sophisticated report, clearly indicating that the third party has an outstanding grasp of the issues here, and of human rights, and in particular, racism. And the report speaks that on every single page. ... And [in the May 18 Rulings] you used that word, 'We are not here to micro-manage them.' And I think the same principles apply here. I think every time we look at one of the issues, we should think: Is this a situation where we are actually now stepping into micro-managing them or should we let the consultants, the experts do their thing? ... And I think in most, if not all of the issues raised today, it probably falls under that category.

13I would only qualify those remarks by pointing out that, if meant to include the parties, the use of the word “we” is inappropriate. The Tribunal alone is responsible for such external “management” of the third party mandate as might be required.

14With these general observations in mind, I now turn to the specific issues raised.

THE SELECTION OF EXTERNAL INVESTIGATORS

15The consultants set out in their report the criteria for the selection of persons who may act as external investigators of complaints arising at the TEDC, and they identify a number of such persons whose curricula vitae they have examined. Whereas the complainant accepts the criteria and the proposed roster, the Ministry and the Commission take issue with aspects of both.

16The roster proposed in the report is an open-ended “Interim List of Investigators”. Although the parties had been requested to participate in the preparation of that list by suggesting candidates, only the Commission took advantage of that opportunity. As it happens, although being a member of the Bar is not a requirement, the list that appears in the report consists only of lawyers, and both the Commission and the Ministry object to what they perceive to be an unbalanced list, most of those on it being characterized by them as mainly “complainant-side” lawyers. Counsel for the Ministry also objects to the inclusion of some of the persons whose names appear in that list because of alleged conflicts of interest, and counsel for the Commission expressed some general concern in that regard as well.

As to the Need for a “Balanced” Roster

17Having a roster of external investigators that is evenly balanced between complainant-side and respondent-side lawyers is seen by the Commission and the Ministry as the cornerstone of confidence in the process—a proposition that, on its face, seems compelling. Indeed, on first hearing the submissions of counsel for the Commission in that regard, it seemed to me that a vigorous effort to achieve that balance ought to be made, and this led me to make this remark to counsel for the Ministry when she dealt with the matter:

I'm rather taken at the moment with Ms. Scott's view that the list itself has to be seen to be fair. The consequence of it may well be that, in a specific investigation, one or the other or all parties may not be particularly happy with the investigator who is drawn from the list, but the list is fair and you take it as it comes. That, I think, is good. But how do we get an adequate number of persons, because they have to meet the criteria set by the consultants?

18Having now had an opportunity to examine the September 12 report closely, to review a draft transcript of oral submissions and to carefully consider the implications of what counsel propose, I have come to the conclusion that an attempt at “balancing the list” cannot be allowed to stand in the way of establishing a roster of truly competent investigators whose ability and integrity it would be improper to challenge on stereotypical grounds. If the number of candidates who meet the consultants’ criteria were sufficiently large, and if it were possible to devise, legitimately and fairly, a “balanced” roster, that would seem desirable. However, not only do I have grave concerns about the appropriateness of classifying investigators in the manner suggested by counsel for the Commission and for the Ministry, but they can give no assurance that the pool of candidates who meet the consultants’ criteria is sufficiently large for the purpose. The following exchange with Commission counsel in that regard is indicative of the difficulty:

Professor Hubbard: I assume that the pool of potential investigators is large enough that such a conflict could be avoided and we could still have an acceptable number of people?

Ms. Scott: I think there are a whole ton of people who do this work.

Professor Hubbard: Who meet all the criteria of –

Ms. Scott: No. I think that's a second question.

Professor Hubbard: Well, that's a very important question.

Ms. Scott: Absolutely. That's right.

Professor Hubbard: Because you cannot pursue the laudable end of making sure that there are not people who have a conflict involved in it if the end result is there can be no external investigators, or not enough of them to do the job. So we have to watch for that.

Ms. Scott: No. I completely agree with that, and that's my –

Professor Hubbard: So it may require going back to the drawing board in terms of identifying people who are available.

Ms. Scott: And I don't know. ...

19The consultants have set the criteria to be met by investigators competent to deal with a wide range of human rights complaints, and with racism in particular. They are the experts, and they are familiar with the quality of investigations that have been conducted in their field. We must be guided by what they have to say concerning the extent of potential candidates. After lamenting the number of complaints of racism that in her experience have been badly investigated, Ms. Lopes, whose views were echoed by Mr. Smith, went on to say that:

... to have a pool of people that meets these criteria is challenging. I don't think it's such a huge pool, and perhaps that's one of the unfortunate results of being in this business too long, but I put it to you that if you were to look at the quality of investigations done, particularly in the area of racism, but also, I would argue, heterosexism and homophobia, there are real challenges [in finding properly qualified investigators].

20The matter of trust is at the centre of the “balanced roster” issue, and it is referred to by the consultants (at page 20 of their report) as follows:

In her response, Counsel for the Commission states correctly that “it is critical that all parties have confidence in the external investigation process. There is no point in having an external investigation if the parties don’t trust the investigator’s competence, neutrality and fairness.” In an effort to establish this trust, the Consultants undertook to develop criteria for the selection of external investigators, as well as standard investigation procedures that would be agreed to by all parties.

21The Commission and the Ministry submit that an evenly balanced list must be established and agreed upon so that the list per se is seen to be fair “by the parties”, a matter they were insistent upon even though it is inevitable that either the complainant or the respondent in specific cases will be faced with an investigator who is presumably seen by one of them to be an “other-side” lawyer. Having admitted that “people may well complain about the investigator that has been chosen, on both sides of the fence, and that is unavoidable”, Counsel for the Commission went on to suggest that: “… it's very important with respect to this change process to have the Ministry and Mr. McKinnon buy into the list, but also so that, when people complain, the regional director is in a position to say, ‘This is the list. This list has integrity. This is the list that all parties signed off on’.”

22While it goes without saying that one must in fact be fair, and while one hopes that one will be seen to be fair as well, it is essential to clearly identify not only the matter about which one is being asked to be fair, but also the persons whose perception of fairness is pertinent. Thus, I think it important to distinguish the perception of the parties to this proceeding from the perception of those for whose benefit the external investigation process is being established—the persons whose complaints are to be investigated and the persons against whom those complaints are made.

23If the external investigators are seen to have been selected in accordance with appropriate criteria accepted by the Tribunal, then it seems to me that fairness, both in fact and in appearance, is assured from the legitimate perspective of the parties to this proceeding. Surely it is not meant to suggest that, in the eyes of the parties before this Tribunal, both complainant-side and employer-side lawyers are tainted by the appearance of bias, thus requiring a balancing of the roster so that grumblers may be told: “Oh well, that’s the luck of the draw. Stop whining. The list is fair.” Everyone who meets the consultants’ criteria is thoroughly competent, and each of them must be presumed to be unbiased. The parties before me know, or ought to know, that such is the case. It seems to me obvious, then, that the list of external investigators does not have to be “balanced” for their sake in order either to be fair or to be seen by them to be fair. Neither does the list have to be “balanced” for the sake of the Deputy Minister, Assistant Deputy Ministers and Regional Directors, each of whom, if asked, ought to be able to justify the “integrity” of the list in terms other than its apparent “balance”—unless they happen to harbour the view (as I am sure they do not) that anything devised by the third party and approved by the Tribunal is suspect. Thus, assuming that “there is no point in having an external investigation if the parties don’t trust the investigator’s competence, neutrality and fairness”, the parties whose trust in the process is in question are the parties to the complaint to be investigated, not the parties to the proceeding before this Tribunal, nor the upper echelons of the Ministry’s administration.

24In any case, the need for an evenly balanced roster of this-side and the-other-side lawyers finds no real support in the suggestion that an investigation of a complaint is “pointless” if (for whatever reason) either party lacks trust in the investigator. A party to a specific complaint may in fact not trust the appointed investigator for any number of reasons (including paranoia), and a system that allows the parties to veto investigators until one is found upon whom they can agree is quite impractical. Clearly, the investigation of a complaint cannot be called off simply because the respondent mistrusts the investigator, and it would be mischievous to tell the complainant that, although the investigation will go forward, it is pointless—whatever “pointless” is supposed to mean in the circumstances.

25Assuming it to be of “critical” importance that the parties have confidence in the process, surely what is required is their actual “trust in the investigator’s competence, neutrality and fairness”, and to suggest that a party’s actual mistrust will be offset simply by being told, “Oh well, that’s the luck of the draw”, seems naive. While it is difficult to resist an unquestioning acceptance of the proposition that “it is critical that all parties have confidence in the external investigation process” (after all, it does seem so very right at first blush), what is critical is simply that objective observers have confidence in that process. While the trust of all the parties is desirable, it is neither necessary nor even possible in every instance; indeed, as counsel said, the fact “that people may well complain … is unavoidable”.

26An issue of perhaps greater significance is the very feasibility of a “balanced” roster. It is not readily apparent to me how a bifurcated list of investigators could be fairly and legitimately established. Fairness requires a process that is transparent, and persons under consideration for the roster are not to be secretly branded (whether by the parties or by the consultants is not made clear) as having at least the appearance of being prejudiced to an appreciable degree either for or against respondents, employers, or complainants. Legitimacy requires a proper basis of classification. Whereas none was expressly provided, the two that might possibly be inferred from counsels’ submissions are, in my opinion, unacceptable: one is inadequate; the other lacks objectivity.

27When submitting that some lawyers are strongly identified as advocates for one side or the other in human rights matters, counsel for the Commission said that “if any respondent decided to do a Quicklaw search to see the kind of work that these lawyers did, it would only be on one side of the fence”. Having the list-keepers scour the internet to search out the number of times candidates have represented complainants, respondents, or employers would reveal nothing qualitative about them, and a purely mechanical system of classification is simply not satisfactory. Of course, such a pseudo-scientific approach was not even indirectly recommended by counsel; it was simply a possibility suggested to me by her reference to Quicklaw.

28It seems to me that a second method of classifying investigators might be drawn from the submissions made regarding conflicts of interest. Whereas counsel for the Commission said at one point that she was “not here to make any submissions on individual lawyers and conflict of interest, but [did] want to talk about conflict” in principle, at another point she said that, if “you had at one time represented the Ministry as a lawyer in practice, in active litigation, I think that would be a conflict of interest, and so you wouldn't act [as an investigator]. And it's those kinds of situations that I point to with respect to Mr. Pinto, Ms. Sanson, Mr. Hart.” Counsel for the Ministry was quite panoptic in her comments as to the unsuitability of these persons to serve as external investigators. At the very least, such observations were meant to suggest a profile to be used to identify persons to be excluded from the roster, and such considerations might be used to classify candidates, rather than debar them.

29Comments regarding the careers and leanings of named persons, and the way they are viewed by others, are matters of impression conveyed by anecdote. They may be perfectly genuine (as those of counsel undoubtedly were); they may be widely held; they may even be entirely accurate; but, unless hearsay (provided by the parties, presumably) is an accepted method of classifying candidates, it is difficult to see how such “profiles” can be of any service: I have no intention of allowing witnesses to be called and evidence adduced as proof that candidates, present or future, meet a particular profile just so that we can balance the list.

30Putting those (perhaps insurmountable) difficulties aside, assuming it is made known to the parties to all complaints on which side of the list the investigator assigned to their case may be found, all that such a “balanced” roster could achieve is the statistical certainty that in every instance one of them will actually lack confidence in the process—unless whether the investigator is seen to be a complainant-side or a respondent/employer-side lawyer is of no real significance after all! If the purpose of a “balanced” list is simply to provide the parties to complaints with “luck-of-the-draw” fairness, then all such parties must be given the relevant information. A simple list of names would not do; to be useful to the interested parties, the list must disclose the alleged predispositions of the investigators. Of course, not only would the publication of such a list occasion the actual mistrust of parties in specific cases (however objectively unwarranted), but it would likely precipitate an angry and perhaps litigious response from the investigators.

31While a party to a complaint who would otherwise mistrust an other-side lawyer is hardly apt to be filled with confidence simply upon being assured that the roster from which that investigator was drawn is balanced, unless the Ministry made it a practice to share with the parties (or one of them) its view (and it is only a view) that the particular investigator assigned to the case was a complainant-side lawyer tainted with the appearance of bias, it is extremely unlikely that they would even suspect that such might be the case. In this regard, counsel for the complainant said the following (emphasis added):

... I'm interested in what people [the other counsel] say: “Well, okay. We don't really have a conflict, but there's this appearance of bias”. And my submission is, Mr. McKinnon didn't know the people on this list—you know, he asked me. I do know them, as Ms. Stephenson and Ms. Scott also indicated they know them, because we are members of that community. But, you know, do Candice Mooney, or Sheree Fic, or Roy Rusaw, or Michael McKinnon? Quite frankly, what they need to know is that the third parties who are experts, the third parties who are providing professional assistance to you, the Tribunal, have vetted these people and have faith that they have the experience to work in discrimination, particularly racism, and particularly how to do an investigation, which is a special art or skill that you don't necessarily have just because you're either a lawyer or you work in that area. So that's what they need to know. I doubt they're going to say: “Oh, you know, Mr. Hart or Ms. Sanson or Mr. Pinto or - -” They're not going to know these individuals. It's the appearance of neutrality through the fact that it has gone through the third parties who are clearly neutral [that counts]. They're not a puppet to any party; they are providing assistance to you.

32The Ministry did not respond to the invitation to suggest candidates for inclusion on the roster of external investigators, and it was not explained whether this was for want of trying or because no one suitable was found. In any case, having set the criteria and found a sufficient number of candidates for a viable initial list, it was not incumbent on the consultants to do more; nor could they withhold from their report the roster of investigators required by the Tribunal until the list might be balanced to the satisfaction of the Commission and of a Ministry that either made no effort to assist in that regard or else, despite being in the best position to identify such people, failed to find candidates who are both qualified and acceptable to it. I do note, however, that in her oral presentation counsel said that the Ministry is now “prepared to assist in whatever process might be useful to coming up with names”.

33Since the consultants had no reason to believe that a “balanced” list was a necessity (indeed, I question its very feasibility), an accusation of neglect in this regard would have been uncalled for: after all, there is no failure in not doing what one need not do (let alone what cannot be done). However, to attribute the imbalance which the Ministry complains of to a “blatant exclusion” of employer-side lawyers is an unacceptable accusation, not of simple neglect, but of misfeasance. Thus, I think the following passages from the consultants’ report (found at page 20) warrant repetition:

The consultants anticipate that application of the selection criteria to potential investigators will ensure the identification of competent investigators who will follow the procedures set out, thereby ensuring a fair process. However, the Commission and the Ministry appear to suggest that all parties must also agree with the list that is produced by the selection process. The Commission indicates that the investigators proposed by the Consultants are “complainant-side” lawyers and that the “list should be more balanced. The Ministry agrees with this position, and while it does not suggest specific names, is “troubled by the “blatant exclusion of any person from the respondent/employee-side human rights bar, or from organizations without any such affiliation.”

First, it should be noted that the Consultants have indicated throughout that they expected all parties to participate in suggesting names of investigators who meet the selection criteria. The draft report stated that the Consultants expected that all parties would augment the list through recommendations, and that “such recommendations will be forwarded along with the curriculum vitae of these other investigators. The final list will be determined using the selection criteria.” Therefore, it is unclear why the Commission and the Ministry considered the list “under-inclusive” and “troubling”.

It is misleading to have the people named by the Consultants summarily categorized as “complainant-side” versus “respondent/employee side” since human rights investigators are contracted by complainants, respondents or employers, and their practices are not restricted to serving only on one side of a complaint. A review of the curriculum vitae of the investigators named by the Consultants will demonstrate that they have served both complainants and employers at various times. The suggestions of the Commission and the Ministry are, at best, inaccurate.

As to the Conflict of Interest Issue

34The Ministry was of the view that certain persons named to the roster should be removed for conflict of interest reasons. The Ministry seemed prepared to find a conflict of interest to exist not merely because the investigator in question had acted for or against one of the parties to the complaint to be investigated, but because he or she, or even someone in a law firm of which he or she is a member, had acted in any proceeding for or against the Ministry. That view was expressed this way by counsel for the Ministry:

... as a general matter, there should be some kind of criteria put in to the effect that the question of whether the person has been an active advocate on behalf of the Ministry, or including the Ministry -- I'm not saying -- I agree that if someone has acted for the Ministry, they can't be on that either. And I'm also saying if they have acted for complainants in relation to matters at the Ministry, people who have brought complaints against the Ministry, then that should be one of the questions that's asked in terms of assessing whether they're appropriate people to be doing this. And so it's a matter of those specific individuals based on what we know -- a more general criterion.

35In light of the preceding comment, it is necessary to stress the distinction between the corporate person called “the Ministry” and its employees, including its entire managerial staff. It seems to me that the Ministry as such must rarely (if ever) be a respondent in WDHP complaints; rather, the respondents are real people accused of specific acts of wrongdoing—for which, of course, the Ministry may ultimately be vicariously liable, depending on the circumstances. But, even if the Ministry were biased ab initio against complainant-side lawyers because of its potential financial responsibility in a few such cases, the matter of vicarious liability is an irrelevant consideration in establishing an objective and proper “external investigation” process.

36Although its own procedures were not always followed, the way such matters were supposed to have been dealt with in the past was that the Ministry would determine the nature of complaints, assign an investigator to those it found to be WDHP complaints, receive the reports of investigators, and decide what action should be taken, all the while keeping the parties appropriately informed. Since it would be flagrantly wrong for it to undertake these tasks if, as a corporate person, it were considered to be the respondent in these cases, one assumes that such cannot be the case and that, if the Ministry itself were under investigation, it would recuse itself from these tasks. Surely, then, the Ministry must be seen as standing above the fray regarding the vast majority of complaints (if not them all). Surely, in the context of complaints made by one of its employees against another, the Ministry can have no institutional preference for respondent/employer lawyers as complaints investigators, nor can it harbour corporate antipathy towards complainant-side lawyers being assigned that task. The Ministry has thousands of employees spread across the province, and complaints of one kind or another are made with relative frequency. It would be unreasonable to disqualify a person from investigating any of these complaints simply because he or she had acted as counsel in some matter involving any one of these thousands of people, or had acted as counsel in some matter involving the Ministry as a corporate person.

37It may be that I have misunderstood (or overstated) the Ministry’s position. Perhaps its view is that disqualification should only stem from involvement in litigation in which the Ministry as such is a named respondent—such as in this very proceeding. At one point, counsel for the Commission commented that, “If you are representing a complainant against a particular employer, you are bound to develop views of that particular employer and that just makes it difficult for you to then step into the shoes of an independent fact-finder.” (Perhaps it would have been more accurate to have said “may develop” such views.) However, while that comment might suggest a conflict of interest where the Ministry (as distinct from one of its thousands of employees) is the subject of the inquiry, that circumstance would not appear to give rise to a conflict of interest in the investigation of a complaint to which the Ministry per se is not a party—that is to say, in the vast majority (if not all) WDHP complaints. After all, it cannot fairly be said that the views which an investigator might have developed about a particular employer are bound (or even likely) to be projected upon either or both employees caught up in a dispute to which that employer is not a party.

38After setting out in their report the “Selection Criteria” and “Investigation Standards”, the consultants add that “it may also be of benefit if the investigator has: experience with the Ontario Public Service (OPS) on WDHP investigations; worked with or been recommended by other ministries; and experience working with unions, particularly the Ontario Union of Public Service Employees (OPSEU)”. Such additional experience would be of benefit because, “before beginning any investigation, the investigator must be familiar with the OPS WDHP Policy and the Collective Agreement.”

39Although counsel for the Ministry thought that “experience working in a unionized environment” (as distinct from working with a union) might be desirable, she was uncomfortable with the reference to OPSEU. Her unease was most apparent in her objections to the candidacy of Mr. Pinto, whose name appears on the consultants’ list and who she says regularly represents OPSEU in grievances against the Ministry. She went on to say that:

... He's a known OPSEU lawyer and, in my submission, the idea that the manager, for example, could have confidence in an OPSEU lawyer to be neutral in relation to an investigation - and I’m not saying that Mr. Pinto would not be neutral, not saying that he wouldn't do his very, very best to be neutral; simply that for all of the reasons that underlie our conflict of interest rules, I think it would be extremely problematic to put an OPSEU lawyer as an investigator of complaints within the Ministry, within this institution. [Emphasis added. How many managers, from the rank of OM16 on up, have heard of Mr. Pinto? Despite having acted as a local OPSEU representative at the TEDC, Mr. McKinnon had not.]

40Counsel for the complainant suggested that, even if excluding Mr. Pinto from the list would be justifiable were he presently acting regularly for OPSEU, surely there must be a time limit on ineligibility based on such a connection, just as there is in the case of counsel appearing before former colleagues appointed to the bench. She then added that it was her understanding that Mr. Pinto had not acted for that union in five years. By way of reply (and I found this rather confusing in light of her earlier statements), counsel for the Ministry said that: “we're not suggesting that people should be cut out because they've acted for complainants. We're not suggesting that they should be cut out because they've had anything to do with OPSEU. It's much more specific circumstances than that”. She returned to that point somewhat later and said (emphasis added):

Now, I hear the suggestion being made that the criteria might have some temporal component and I guess my concern about that is, in relation to Mr. Pinto even if he hasn't done it for five years, he's still considered by the Ministry to be an OPSEU lawyer because that was one of the first things that I heard. I knew that already. So the passage of time doesn't necessarily change the perception. And, I mean, he may be a particular instance, given the nature of labour relations in this particular environment. OPSEU and the Ministry have a very difficult relationship sometimes, and so it may be that - - I don't agree that you're bringing the list very, very, very far down by taking out anyone who has ever represented OPSEU, but my submission would be that in the context of labour relations and in this particular environment, putting someone in who has done a lot of work -- and at one point it was his practice, or largely his practice, and I know that because we were in the same firm at the same time -- I just don't think it's appropriate for someone with that kind of background.

41Of course, it cannot really be “the Ministry” that considers Mr. Pinto to be an OPSEU lawyer, and one must assume that it is those of its officers from whom counsel takes instruction who regard him in that light, and whose indelible perceptions appear to survive the passage of time. Quite frankly, such perceptions are not of compelling consequence in the establishment of an objectively sound roster of truly competent investigators. Unfortunately, although aware of the hearing dates, counsel for OPSEU (an intervenor in these proceedings) was not informed that the external investigations report of September 12 would be dealt with on September 16. Thus, its counsel not being in attendance, the Tribunal did not have the advantage of oral submissions in this regard from OPSEU.

42The Ministry expressed similar concerns regarding three other persons named to the consultants’ roster of investigators. As already indicated, the circumstances put forward as suggestive of a conflict of interest in all four cases were entirely anecdotal and, in the end, it was not clear to me whether what was wanted was the immediate removal of these people from the roster or simply the establishment of criteria that would (in the Ministry’s view) have that effect. While the latter is an appropriate request (but one that cannot be acceded to), decisions in respect of specific allegations require the hearing of evidence, and that is something I have no intention of doing in respect of present or future candidates whose eligibility is questioned on such grounds. Obviously, the Tribunal cannot embark upon some sort of confirmation hearings.

43Clearly, candidates for placement on the roster of external investigators must comply with the rules of professional conduct by which they are governed. Presumably, as counsel for the Commission said, lawyers who are aware of a conflict of interest that would preclude them from ever acting as investigators “don’t even put themselves on the list in the first place”. It is to be presumed, as well, that those with a conflict relating to a particular investigation would recuse themselves. However, it is not the function of this Tribunal to deal with allegations that a candidate is not in compliance with such rules; if someone wants to challenge an investigator on the basis of conflict of interest, some other forum in which to do it must be found.

Rulings with respect to the Selection of External Investigators

44In the final analysis, it must be left to the consultants to place candidates on the roster of external investigators and mediators in accordance with the criteria set out in their September 12 report—with which criteria the Tribunal concurs. However, since it is not made explicit in that report, for the sake of clarity it is to be noted that properly qualified persons may be placed on the roster with a view to serving only as investigators or only as mediators, and qualified persons other than lawyers may act as investigators and/or mediators. While “balancing” the roster in terms of complainant-side and respondent-side lawyers seems desirable, it may not be achievable; in any case, it is certainly not a matter of priority. Investigations are to be assigned to persons on the roster without further delay in a system of rotation that complies with the following conditions:

(1) No one engaged as counsel, as mediator, or as investigator in a complaint-matter involving the TEDC (or other institution or facility of the Ministry) may undertake an investigation or mediation of a complaint at the TEDC (or at such other institution or facility) until such specific engagement is ended.

(2) No one may undertake an investigation or mediation of a complaint involving either a complainant or a respondent for or against whom he or she has acted as legal counsel in the past.

(3) No one may investigate a specific complaint in respect of which he or she has acted as a mediator.

THE INVESTIGATORS’ ROLE and THE ROLE OF THE CONSULTANTS

45The first concern raised by the parties regarding the roles assigned to the investigators and the consultants in the proposed investigation process has to do with whether the investigators are to prepare “draft reports” and, if so, to whom such reports are to be submitted and for what purpose. In their September 12 report (at page 12) the consultants explain that:

To address these issues, it would appear that what is needed is an interim process that will effectively handle relations with external investigators while, at the same time, build the capacity of Ministry and/or OPS staff to handle such relationships in the long-term.

It is therefore recommended that the recently appointed Regional Director responsible for TEDC deal directly with complaints coming out of TEDC and that the Regional Director actively inform and consult with the Manager of the Ministry’s Workplace Effectiveness Unit and the third-party Consultants. To affect this, individuals at TEDC with complaints may contact any manager within TEDC or the Regional Director. If complainants contact a TEDC manager, the manager will immediately inform the Regional Director. Once informed, the Regional Director will:

1. record the complaint, e.g., date, time and name of complainant;

2. transfer the complaint to one of the investigators identified by the Consultants;

3. inform the Ministry’s Manager, Workplace Effectiveness Unit, and the third-party Consultants of the receipt of the complaint and the retention of an external investigator;

4. keep track of the investigation process particularly to identify key points in the process, e.g., the need to relocate complainant and/or respondent, the completion of draft and final reports.

At the completion of the investigation, the investigator will submit a draft report for review by the Regional Director, the Manager Workplace Effectiveness Unit and the third-party Consultants. Following receipt of comments from these individuals, the investigator will prepare a final investigation report with recommendations. All management decisions will be discussed with the third party Consultants before any actions are taken.

46Counsel for the Ministry was of the opinion that there must be a draft report and that it must be submitted to the Ministry only. The Ministry’s position was put as follows in paragraph 9 of counsel’s written response to the consultants’ August 15 draft of their report to the Tribunal:

[T]he WDHP policy states that a Ministry official is required to review a draft report in order to ensure that it is credible and can withstand scrutiny (WDHP, p. 11). The purpose of this is not to question or direct the result of the investigation, but to ensure that all relevant issues are addressed before the report is finalized, including systemic issues that may arise as a basis of the complaint. This ensures that remedial action taken on the basis of the report cannot be challenged based on a flawed investigation. In order to comply with the WDHP policy this step must be included in the procedures for the external investigations.

47That stated purpose of draft investigation reports strikes me as rather ironic. It is almost as though the system anticipates investigatory incompetence necessitating the Ministry’s intervention. Apparently, owing to concerns about the quality of investigations it causes to be conducted by persons it selects to do the job, the Ministry feels it necessary to have some “Ministry official” review the relevance of the findings and identify systemic issues, following which the investigator is directed to address those matters before submitting a final report. We are to understand that without this intervention the result might well be “flawed investigations” imperilling appropriate remedial action. Of course, unlike investigators who meet the consultants’ criteria, there is no evidence that such “Ministry officials” have any particular expertise or training in human rights matters, or that they have some singular ability to identify systemic issues. In fact, instances of past performance brought to light in these proceedings would indicate that such is not the case. Indeed, the Tribunal has before it two recent investigations conducted by investigators chosen by the Ministry that have been challenged as flawed despite the role presumably played by a “Ministry official” in “ensuring that remedial action on the basis of the report cannot be challenged” on that ground.

48In her submissions at the hearing, counsel for the Ministry described at greater length the purposes that such draft reports were intended to serve, such as broadening the scope of the inquiry in light of Ministry comments and concerns. In response to a series of questions I put to her in that regard, she ended with the following statement (in which a comment of my own is interpolated):

… the scenario that I am worried about is that a party receives a report, call it final or not. (If it's not called draft, it will be received as final.) Then questions are asked about that report by the Ministry or by another party. [What other party? The reference cannot be to the complainant or the respondent, since they apparently do not receive that report.] More is done, and another report is done, and it comes out with a different conclusion, be it slightly different or entirely different. And then, let's say you have a grievance or you have some kind of process in which that is being questioned in some way. Then the ability to rely on the report for any purpose would be questionable. So for example, how could you discipline someone where the first report said they didn't do it? How is a person who is subject to discipline going to react when they get a report that says, 'You didn't do it,' and then a report saying, 'You did do it'?

49To begin with, unless the parties in that hypothetical scenario are denied access to it, they know that the first report says “guilty” or “innocent”, as the case may be. Assuming they receive both reports, they know that the second contradicts the first, and the Ministry’s “discipline dilemma” would persist. However, if the parties are denied access to the first report (as seems to have been the practice), then they cannot comment on it, and that would seem to run counter to principles of fairness. (Whether such denial is meant to spare the parties confusion or chagrin or to spare the Ministry from having to explain flip-flops, when the second report is received, was not addressed in the hypothetical situation.) In counsel’s scenario, the parties are entitled to the second (and presumably final) report, but whether they are permitted to comment on it is not disclosed. If they do not get the first report and cannot comment on the second, are they thus deprived of all opportunity to respond to the investigator’s findings before the matter is closed? On the other hand, if they are allowed to comment on the second report, is it not conceivable that this might lead to a third report? Or is the acceptance of their comments only for show? If the exercise is not strictly pro forma, could there not be a third report? And might it not contradict the second, thereby producing the confusion, chagrin and embarrassment initially sought to be avoided by denying them access to the first report?

50In any case, how can a competent investigator’s report resulting in findings of guilt or innocence be legitimately reversed as a result of the Ministry’s comments, or in consequence of its instructions to re-investigate, or to “broaden” the investigation, or to do something else with respect to the matter? One pictures this final scene in counsel’s scenario: “How could you find that the respondent didn’t do it? You should have looked at this, or considered that, or weighed this other thing. Go away and do so”, says the Ministry official. The investigator goes away, only to return with a final report that says: “he did it”. Little wonder the parties are not to get the draft report.

51While, as I indicated at the hearing, I found the use of draft reports rather alarming, the submission of counsel for the Commission went beyond unease. Her initial firm opposition to the making of draft reports was later clarified by her view that a draft report should be submitted to the complainant and the respondent for comment, but that it should have no wider distribution.

52The Ministry was insistent that because the WDHP policy requires a draft report, it is necessary that such reports be part of the investigation process at the TEDC as well. Counsel for the Commission pointed out that the process imposed by the Tribunal’s orders already requires considerable deviation from the WDHP policy, and she said that “although we want to be consistent with it, we have moved away from this policy … [and] I'm not sure we're bound to follow it in great detail because we're already away from it … So I don't know that we're required to have a draft report go to the Ministry.” She went on to explain the Commission’s opposition to draft reports as follows:

… The third party in their report says: We'll get the draft, so we can ensure the process is followed. But in my submission, when the process is articulated and you combine that with highly qualified individuals, one can be assured that the proper process will be followed. By submitting a draft report and meeting with the Ministry, I think there is an opportunity for influence, unintentional or intentional, and process concerns can often be masked, you know, can be a mask for substantive findings. … the approach I would like to see is the investigator is retained, the investigator does his or her job and submits a report. …

… it’s critical that complainants and respondents get their report, and that they have an opportunity to respond to their report, because they may be adversely affected, and out of a duty of fairness, that should happen. And I've seen it done in a number of ways. I don't think findings ever change, but typically in one of these reports, you're summarizing their evidence. And it may be that, as an investigator, you have emphasized something, or you have omitted something and they think it's relevant and they want you to add it. And you can either add their evidence or, I have also done it myself, [put it] in the form of an addendum. So when I said the draft reports shouldn't be submitted, for me it was to the decision-maker because at that point, you should -- you know, you should have your findings and your findings remain. And the decision-maker should get the report and the decision-maker may say, ‘We want you to do more. We want you to look at this issue,’ but that was my concern vis-à-vis influence. I don't actually have that concern with complainants and respondents, because I think from a fairness perspective they're entitled to see the report that they're going to be affected by.

53Having regard to the evidence leading to the 1998 and 2002 decisions herein, the Ministry’s handling of reports of investigations in the past, both external and internal, inspires no confidence that it alone should receive draft investigation reports and be allowed unilaterally to comment on them, or to instruct the investigators with respect to them, with a view to having something done that might in any way alter these reports. To suggest that the opportunity to do just that is not the purpose of draft reports would appear to be disingenuous. Why on earth would we call a report a “draft” if it may not be altered in one way or another (e.g., from “he didn’t do it” to “he did it”)? And why submit a draft report to the Ministry, and only to the Ministry, if the Ministry is not to comment on it, or to issue further directives, with a view to possible changes being made to it? The opportunity for undue influence is patent, and it is unacceptable in a fair and transparent process. Thus, I have a difficult time in grasping the value of draft reports in the context of human rights complaints, as does the Human Rights Commission of this province. If there is any administrative value in this anomalous practice, surely it is greatly outweighed by the requirements of fairness—particularly in the context of human rights.

54In the course of participating in the discussions of their report, it became evident that the consultants’ recommendations regarding the distribution of draft reports were based on a presumption that they were necessary, not on a finding that they were of compelling intrinsic value. It was in that context that Mr. Smith said that the consultants:

… are not supposed to be doing the Ministry's job, but I think we're supposed to be ensuring that the Ministry is doing its job as per the order. And there is no way we can do that unless we have some oversight that if there is a complaint, it goes with dispatch to the regional director; that the regional director in the timeframes outlined handles it correctly with the manager of the Workplace Effectiveness Unit, and the only way we can know that is if we're actively engaged in the monitoring. So as things go along, we should be informed. This doesn't take a lot of time, but it does make sure that we can say to the Tribunal at the end of the day, “Things happened appropriately within the timeframes, that there was no undue influence.” And we think this works for both parties. We heard Ms. Stephenson say very clearly around the draft report that management would not be attempting to unduly influence the investigator. We would love to be able to say that to the Tribunal -- to put it in writing -- that there was no undue influence, that the draft report is still being reviewed by management, rather than to have the Ministry come in by itself and say we didn't do that and then to have it challenged because there is no third party looking at the matter to say, “Yes. Not only was due process said to be done, but it was seen to be done.”

55The consultants’ recommendations, based on the assumption that they could not simply ignore the requirement that a draft report must go to the Ministry, seem entirely appropriate. They are mindful that at the end of the change process the Ministry must resume responsibility for these matters, which they assume must include dealing with draft reports. Since the consultants would have such draft reports submitted to the Manager of the Workplace Effectiveness Unit and the third-party consultants themselves, and not exclusively to the Regional Director, there would be as much assurance as possible that the process would be scrupulously administered. I agree with counsel for the Commission that draft reports must be provided to the parties to complaints for their comments and, although the September 12 report did not include the parties in the distribution of draft reports, that seems to have been a minor omission, as will be seen presently.

56The mere fact that the WDHP policy applies throughout the public service is not proof per se that its draft report requirement serves a purpose that is both necessary for the proper administration of the policy and perfectly compatible with human rights values. The WDHP policy is not written in stone; it is subject to review; and that aberrant requirement might yet be excised from that policy. The following comments made by Ms. Lopes in this connection are quite à propos:

In regards to the Commission's comment that it's absolutely necessary that the draft report go to complainant and respondent, we agree wholeheartedly. And I actually share some of her concerns about it going to the employer.

Just in terms of this influencing OPS policy, we were invited to meet with Gerry Stuart, who is the ADM on the corporate side, to have a discussion about how, in fact, there is going to be a review of the OPS process anyway, and it's possible that we could -- that some of what comes out of this process would -- influence the procedures and policies of the OPS in a positive way. So if that could be the case, then I think if we're arguing that the draft report shouldn't go to the employer, the fact that it's OPS practice currently shouldn't be a factor to make us not consider it. It actually is cause for considering it quite seriously, because it might influence the OPS review.

57The consultants propose that: “following receipt of the comments of all recipients of the draft report, the investigator will prepare a final investigation report with recommendations.” The Ministry does not think it appropriate for investigators to make recommendations. In paragraph 8 of its response to the consultants’ August 15 draft report, the Ministry explained that: “… the WDHP policy does not contemplate that investigators have a role with respect to the remedies flowing from their investigation. … The investigator does not make recommendations concerning actions that should be taken by management, and does not take part in decisions concerning these actions”. However, in their September 12 report, the consultants observe (in footnote 35) that:

… The WDHP policy does not explicitly prohibit investigators from making recommendations. Further, we have revised the proposed procedures so that the investigator is not involved in any decision-making. However, since the investigator will have a more in-depth perspective on the issues surrounding an investigation and, in particular, systemic issues that may be uncovered, her recommendations may be of use to management decision-making. In this regard, Ministry management is the decision-maker and can accept, modify or reject an investigator’s recommendations.

58A recommendation is not a decision; its receipt is not a surrendering of authority. Why the Ministry, whose track record in such matters has provoked the very issue, would not even want to hear what expert investigators with “more in-depth perspective on the issues surrounding an investigation and, in particular, systemic issues that may be uncovered” might have to say has not been adequately explained. Thus, the Ministry’s reasons for opposing this suggestion seem to me to be an overreaction that is rather symptomatic of a continuing resistance to change.

59Counsel for the Commission was also opposed to having the investigators include recommendations with their final reports. However, she approached the issue quite differently, and in terms with which I agree. In her response to the August 15 document she said that:

6. … the role of an external investigator should be narrowly defined. The external investigator should perform a fact-finding function and determine whether, on a balance of probabilities, the allegations set out in the WDHP complaint have been made out. Upon making that determination, the investigator submits his/her report to the Ministry for decision-making. The role of the external investigator must end once the report has been submitted.

7. The Commission submits that the external investigator should not be involved in making recommendations to the Ministry based on the findings in his or her report. The independence of the investigator is jeopardized when the investigator wears two hats: independent fact-finder and decision-maker (or at least involved in the decision-making process). This is especially so where the investigator may be involved in several different investigations at the Centre. Keeping the fact-finding separate from the decision-making protects the integrity of the investigation in the event the Ministry’s remedial actions are subsequently challenged.

60In view of the post-report/pre-decision role to be played by the consultants, to which matter I turn next, the making of recommendations by investigators is of less importance than it might otherwise have been. In any event, I am persuaded by counsel for the Commission that any benefit from recommendations as to remedy offered by the investigators is greatly outweighed by the prospect that investigator-inspired remedial actions might be challenged and, if found wanting, render suspect not only such recommendations, but the investigations leading up to them. I agree with her that the integrity of the process would thereby be put at risk.

61The consultants propose that all decisions flowing from the investigation of WDHP complaints be discussed with them before action is taken. The Ministry is of the view that this is purely a management function and that the consultants should in no way be involved. That position requires qualification. Clearly, it is for management to make these decisions. In my opinion, however, it is necessary that TEDC decisions in relation to human rights matters (WDHP complaints) be discussed with the consultants in order for them to properly monitor progress in the implementation of the Tribunal’s orders. As can be seen in the Tribunal’s 1998 and 2002 decisions, even when the pre-decision process has been properly followed, the end result might be inconsistent with human rights objectives. Thus, I fully accept the consultants’ response to the Ministry’s objection as expressed at the hearing by Mr. Smith who said that:

… In terms of the concern of the Ministry regarding our involvement with management around decision-making, one of [the Tribunal’s] orders is that we actually educate managers around the WDHP. The individuals named on the discipline review committee are, in fact, the very managers you have named to be educated in this matter. We think this is a very active way of ensuring they get the import of the order and can look at issues of systemic remedies or individual remedies, et cetera, that comport with the rulings of the Tribunal, both in letter and in spirit. [Emphasis added.]

62The Commission is also of the view that the consultants have an important post-investigation role to play, and it is a role that makes less important the making of recommendations by the investigators. The position of the Commission in this respect is set out in its response as follows:

8. Upon receiving the report of the external investigator, the Commission believes that the Ministry should consult with Smith/Lopes (the “Third Party”) to get advice on an appropriate response to the findings in the report. The Third Party’s involvement at the resolution stage of the external investigation process can help build capacity within the Ministry to handle these complaints bearing in mind it is the Ministry that bears the ultimate responsibility for the workplace. This was recognized by the Third Party in its August 15, 2005 draft report:

….Ministry staff has an obligation to actively manage, respond to and build a workplace environment respectful of, OPS policy, including WDHP, and the Ontario Human Rights Code. It is not acceptable that management resign this responsibility to others; nor would it be prudent to have an intervention requiring management to do so over the long-term (page 12).

Rulings with respect to the Role of Investigators and the Role of the Consultants

63Except as modified by these Rulings, the September 12 report of the third party regarding the roles of the investigators and the roles of the consultants is fully accepted.

64I agree with the submission of counsel for the Commission that, other than to permit the complainant and the respondent to provide the investigator with their comments prior to the completion of her or his final report, the use of draft reports serves no proper purpose in the investigation process to be established pursuant to the Tribunal’s orders. That being so, it is the Tribunal’s ruling that draft reports be provided only to the parties to the complaint under investigation.

65It is the Tribunal’s ruling, as well, that the final report of an investigator ought not to contain recommendations, but that the Ministry’s decisions in these matters are to be discussed with the consultants who may make recommendations in that regard. That being so, I would recast as follows the final paragraph of the extract taken from page 12 of the September 12 report set out infra (in paragraph 45):

At the completion of the investigation, the investigator will submit a draft report for review by the complainant and the respondent. Following receipt of comments (if any) from these parties, the investigator will prepare a final investigation report. The final report will be distributed to the Regional Director, the Manager of the Workplace Effectiveness Unit, the third-party Consultants, and the parties. All management decisions in respect of such reports will be discussed with the third party consultants before any actions are taken.

THE LAST THREE CONCERNS IDENTIFIED BY THE CONSULTANTS

66In light of my caveat against a tendency to micro-manage the consultants, very little need be said regarding the last set of concerns the parties had with the September 12 report, nor is it necessary to set out express rulings in that regard. The first of these concerns has to do with the Ministry’s use of s.22 of the Public Service Act, R.S.O. 1990, c. P47, and it is explained by the consultants as follows:

In Mr. McKinnon’s response to the Consultants’ draft, he raises issues concerning “(t)he handling of WDHP Respondents” in the context of Section 22.(1) of the Ministry of Correctional Services Act, R.S.O. 1990 [sic]. Mr. McKinnon suggests that “(h)e is aware of a Ministry practice of suspending employees accused of violating WDHP, pending investigation, without providing them with further information.”

This is a very serious allegation which requires examination. The Consultants recommend that the Ministry provide us with information on this matter. We, in turn, will report to the Tribunal on this allegation, particularly to address whether or not any party in a complaint has been under a Section 22 investigation and, in addition, been suspended either shortly before, during or immediately after being involved in a WDHP investigation.

67Counsel for the Ministry submitted that “it is not appropriate for the consultants to be involved in assessing the behaviour of the Ministry in respect of the Public Service Act and then asking [the Tribunal] to adjudicate in some way on the use of the Public Service Act in a particular case or cases, as the case might be.” Counsel for the complainant explained that, although there had been some initial confusion as to the statute in question, the problem remains and “if it is going to be a pattern with the Ministry invoking this provision when they're looking into WDHP complaints, we think the consultants should be informed on that and can make recommendations, if necessary.”

68In my opinion, the Ministry’s use of s.22 of the Public Service Act should be examined by the consultants in a systemic context because it may affect the investigation process and the proper implementation of the Tribunal’s orders. However, it is not the function of the Tribunal to review or otherwise deal with “particular cases” relating to that Act, and I have no intention of doing so.

69The Ministry explained its use of “unminuted” comments attributed to the consultants and has indicated that this will not occur again. Nothing need be said by the Tribunal in that regard.

70Finally, in my opinion, the Ministry’s concern that the consultants’ proposed role in the investigation process will result in undue delay in putting into effect the “training initiatives” called for in the orders is unfounded.

CONCLUSION

71Subject to the Tribunal’s Rulings set out above in their relevant contexts, the third party consultants’ report of September 12 is approved by the Tribunal in its entirety, along with the recommendations made therein.