Ontario Human Rights Commission v. Michael McKinnon, 2006 HRTO 20

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 James Hume.

Respondents

INTERIM Rulings

Regarding the First Quarterly Report of 2006 Of the Third Party Consultants to the Ontario Human Rights Tribunal

Adjudicator: H. Albert Hubbard

Date: July 27, 2006

Citation: 2006 HRTO 20

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Jennifer Scott, Counsel

Michael McKinnon, Complainant ) Kate Hughes, Counsel

Her Majesty the Queen in Right of Ontario, ) Ministry of Correctional Services, Frank ) Kate Stephenson, Counsel Geswaldo, George Simpson, Phil James and ) Jim Hume, Respondents )

Ontario Public Service Employees Union, ) Roman Stoykewych, Intervenor ) Counsel

INTRODUCTION

1In their Quarterly Report of June 26, 2006, Tina Lopes and Charles Smith (the third party consultants appointed in accordance with Order 14 of the November 29, 2002 Decision on Implementation) set out three recommendations designed to address “difficulties in implementing the Tribunal’s orders on external investigators for all WDHP [Workplace Discrimination and Harassment Prevention] matters at TEDC [the Toronto East Detention Centre]”. Those recommendations were contained in an earlier draft report that the parties were invited to comment upon, and the matter was spoken to by counsel in the course of their final submissions regarding the remedies sought by the complainant in the hearings that concluded on June 30, 2006. The replies received in response to the Tribunal’s invitation to provide further written comments by July 12, 2006 regarding these recommendations are referred to hereafter where relevant. Although the Commission did not provide further comment, in her June 29 submissions on its behalf Ms. Scott said that: “ … the recommendations that have been put forward in this latest report of the consultants should be accepted.”

THE FIRST RECOMMENDATION

2The first of the consultants’ recommended “modifications” of the Tribunal’s rulings in respect of the selection of external investigators has three distinct parts, which I have identified (by use of square brackets) for ease of reference. It reads as follows:

[a] Managers should be permitted to take action on any WDHP matter they witness directly. [b] Once such action has been taken, we recommend that managers be required to report their actions to the WDHP Advisor and to us and, [c] if we have concerns, we will assign the matter to an external investigator. We think this keeps to the spirit of the Tribunal Chair’s rulings while, at the same time, enabling managers to demonstrate leadership on those matters they know of directly.

3The difficulty alluded to in the consultants’ first recommendation has to do with Order 8 of the Decision on Implementation and the Tribunal’s Interim Ruling and Order of July 13, 2005. Order 8 provides that investigations and mediation of all WDHP complaints arising at the Centre be conducted by persons external to the Ministry. The July 13, 2005 ruling states simply that “all complaints made at the Toronto East Detention Centre are to be subject to external investigation” (paragraph 55, emphasis added). However, the intent of that ruling is explained (in paragraphs 8 to 10, with emphasis added) as follows:

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

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

10Since the Ministry’s mishandling of WDHP matters was seen to begin with the erroneous classification of complaints, the intent of Order 8, read in light of the decision as a whole, is that all complaints be referred to external investigators. In so stating, I am merely repeating the gist of what I have already said in the course of this hearing. …

4Whereas the proposition that managers “be permitted to take action on any WDHP matter they witness directly” is not opposed by the parties, the recommendation that the Tribunal modify its orders in that regard assumes that the Tribunal’s ruling of July 13, 2005 prevents them from doing so; that is an assumption counsel for the complainant rightly finds unfounded. At the hearing on June 30, 2006, Ms. Hughes (for whom the point is important in other connections yet to be dealt with) said that it was the complainant’s position that:

… managers' responsibility to take action on any matter they witness has never been usurped by your orders. They have a responsibility as managers to take action; for example, Mr. Laforest walking out of a mandatory meeting: they have responsibility to take swift and immediate managerial action to say, 'That is inappropriate.' That is their management responsibility. In no way did you ever usurp any of that by any order with respect to the WDHP process. And if that is a matter that also may give rise to a WDHP concern, that does not hijack or suspend management's rights.

5The reference to the Laforest incident was made in the context of the complainant’s view that the Ministry has used the Tribunal’s ruling to avoid taking action against persons who, having disparaged him in some way, allege a violation of their own rights under the WDHP policy. Mr. Laforest was directed by the Acting Superintendent of the TEDC to participate in an “Anti-Racism Management Focus Group” meeting organized by the consultants in accordance with this Tribunal’s orders. Because he did not like what he heard, he simply walked out, claiming that his rights had been violated thereby. That conduct was witnessed by senior managers who did nothing about it, later citing as their reason the Tribunal’s ruling that all complaints must be investigated externally. (See Exhibit 234.) The complainant’s position regarding what he maintains is a subterfuge is reiterated in counsel’s July 12 letter to the Tribunal:

We understand that managers need to take timely, corrective action on any WDHP matter directly witnessed and that this is well within their management obligations. Managers’ inherent responsibility to take disciplinary action has never been usurped by the Tribunal’s orders. Our position is that this not only demonstrates leadership, but is in keeping with existing management responsibilities.

6Read in the light of paragraphs 8 to 10 of the Interim Ruling and Order set out above, I think it clear that the Tribunal’s July 13 ruling was not intended to prevent managers from taking appropriate action on any matters (much less those “they witness directly”), nor was it meant to keep them from making such inquiries as may be necessary to that end. It was intended only to preclude them from characterizing allegations that might arise in relation to events or circumstances they have witnessed (or have otherwise been made aware of) as WDHP or non-WDHP complaints, lest they misdirect their manner of resolution. Whether or not events they witness or are called upon to deal with give rise to a complaint of any kind, managers retain the right to take such action as the circumstances require; indeed, surely they are duty-bound to do so. Moreover, post-identification handling and disposition of non-WDHP complaints has not been the subject of the Tribunal’s orders and rulings.

7I suspect that, because the consultants cannot impose on disagreeing parties a uniform view of the Tribunal’s rulings, the recommendation that managers be permitted to take action on matters they witness directly is, at bottom, a request for clarification. (It may be noted that Mr. Smith, in the course of his remarks at the hearing on June 30, said that: “we are glad to see the clarity around No. 1, for example, that managers should have already been doing this. We just want to make clear here that that is something they should, in fact, be doing”.) However, since they are not inconsistent, there is no need to modify the Tribunal’s ruling in order to take this first part of the recommendation into account.

8The second part of the recommendation regarding “actions on any WDHP matters they witness directly” is that, “once such action has been taken”, managers be required to report it to the full-time WDHP Coordinator housed in the Workplace Effectiveness Branch (as was clarified at the hearing), and to the consultants. I have considerable trouble understanding the scope and purpose of this part of the recommendation. To begin with, why managers should report to these people actions they are not constrained by the Tribunal’s orders from taking is left as a matter of inference. Presumably, it is a monitoring device so that, if they should cross the line between taking permissible action, on the one hand, and characterizing complaints and/or investigating those that are WDHP complaints, on the other, the situation can be addressed in accordance with the third part of the recommendation. The difficulty is that, whether or not a matter is WDHP-related depends upon how it is classified, and that entails an “initial fact-finding” function that is beyond their authority, if not (as all the parties seem to agree) beyond their competence. Indeed, according to the third recommendation, only certain yet-to-be-trained senior managers should be allowed to begin to engage in closely-monitored fact-finding initiatives for the purpose of classifying complaints. Thus, managers do not seem to be in a position to know what to report or when to report it in order to comply with the recommended ruling. And why is it that only actions on matters “directly witnessed” are to be reported? After all, as already indicated, managers are not presently prohibited from taking appropriate action on WDHP-related matters, whether witnessed by them or not, but only from classifying resultant complaints and investigating those that are WDHP-related. No basis for curbing that authority has been suggested; rather, on the assumption that managers have been deprived of their authority to take action on any WDHP-related matters, this recommendation seeks to restore at least the authority to act on such matters “directly witnessed” by them. Since that assumption is wrong, surely the supposed danger that actions taken by a manager may cross some permissible line cannot be simply a function of whether he or she personally witnessed the precipitating event.

9Having regard to the difficulties I have outlined, I am driven to speculate as to the purpose of this first recommendation. It seems to have been fashioned in response to the competing views of the parties regarding the Laforest incident to which reference has been made. The complainant insists that management could and ought to have taken action in that matter. The Ministry suggests that, while management ought to have been able to do so, it was prevented from taking action by the Tribunal’s rulings. The suggested modification seems intended to bridge these contentions by making sure that in such cases management action will be taken in the future. However, apart from allaying possible misgivings over the prospect of change implicit in the form of the recommendation, I can discern no particular purpose for the accompanying set of apparently unworkable circular safeguards: actions regarding only WDHP matters are to be reported by managers who are unable (or not permitted) to identify them as such, and resultant concerns are to be referred to external investigators without whose prior classification of such matters the managers (presumably) would not know that they are to be reported on. In any case, even though all the parties agree with these aspects of the recommendation, I cannot impose a blanket duty on managers to report to persons outside their chain of command managerial actions that are beyond the scope of the Tribunal’s orders and rulings. Of course, a narrower ruling with a clear purpose is possible. In my opinion, it would be useful to clothe the consultants with the discretion to require managers to provide reports of actions taken regarding matters subsequently determined to be WDHP-related with a view to filling in possible gaps in information.

THE SECOND RECOMMENDATION

10The second “modification” of the Tribunal’s rulings regarding the selection of external investigators that the consultants recommend is set out and explained as follows:

Investigators should be allowed to handle more than one complaint at a time. We raise this because we are concerned with the limitations imposed by the Tribunal order which states “(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.” [See the Tribunal’s October 26, 2005 Interim Rulings Regarding the Third Party Report of September 12, 2005, at page 20, paragraph 44.] This order makes it impossible for an investigator to be assigned to more than one case in which there may be prima facie evidence of systemic barriers based on similar fact allegations raised by complainants. For example, there are some complaints on disability where the complainant has raised similar fact allegations against two staff. There are also a number of complaints which have been filed by respondents against the persons who have filed complaints against them. Furthermore, an investigator may be doing work in another Ministry facility and may have time to do work in TEDC but is not permitted to do so under the current ruling;

11The stumbling-block ruling identified by the consultants was made in response to conflict-of-interest concerns raised by the Ministry and the Commission. (Having found unacceptable the Ministry’s submission that anyone who had ever been involved in litigation for or against it be excluded from the list of external investigators, it seemed expedient to rule at least that those presently so engaged not be eligible until that engagement is ended.) In light of the consultants’ explanation for their recommendation, it is now clear that persons on the list of external investigators should be permitted to deal with more than one complaint at a time, with which proposition the parties are now in complete agreement. Accordingly, the ruling in question should be withdrawn, it being understood that general conflict-of-interest principles continue to apply.

THE THIRD RECOMMENDATION

12The final recommendation is that “Deputy Superintendents and the Acting Superintendent should be permitted to undertake initial fact-finding to determine if a complaint meets the requirements of the WDHP policy”. Clearly, that proposal, which does not meet with the approval of all parties, would require modification of the Tribunal’s ruling that all complaints made at the Toronto East Detention Centre be scrutinized by external investigators for classification purposes. The rationale for this recommendation is set out by the consultants as follows:

… As noted above, we are concerned about the potential for abuse of the process, particularly given the apparent questionable grounds for certain complaints and the filing of cross-allegations/complaints. To develop this group of senior managers’ ability to do this effectively, we propose to conduct a targeted intervention to increase their competence and skills in this area. We also propose that they be obligated to discuss these matters with the Ministry’s newly appointed WDHP advisor and/or Director of the Workplace Effectiveness Branch. We further suggest that if a complainant is not satisfied with the assessment, she or he can be advised to appeal the decision to us for review. Finally, we will also undertake to review these decisions on a quarterly basis with the newly appointed Director of the Workplace Effectiveness Branch and the WDHP Advisor [i.e., Coordinator].

13The consultants further explain that they are only recommending that the Deputy Superintendents and the Acting Superintendent be enabled to do initial fact-finding, and they go on to say that:

We agree with OPSEU on the need for education and training for those managers who will take on greater responsibility for handling WDHP complaints. We will undertake to develop and implement this as a key component to enable TEDC managers to take the steps recommended above. We also believe that the Ministry’s recently hired WEB Director and WDHP Coordinator have the knowledge, experience and skills required to support TEDC management in taking appropriate action. We will also be closely monitoring complaints as well to ensure they are dealt with adequately. Finally, we will be available for appeals of any management decision.

14The Ministry’s position regarding the third recommendation is summed up in counsel’s July 12 comments on its behalf. Ms. Stephenson advised the Tribunal that:

In respect of (i) and (iii) [the consultants’ first and third recommendations] the Ministry agrees with the submissions of Mr. Smith during the hearing, that while there remains a need for training, there is also an important competing interest in allowing managers to be able to perform the leadership role that is a requirement and responsibility of their positions. Mr. Smith indicated that supervision of the execution of that role will be a critical learning process in itself, and the Ministry agrees with this. The Ministry also notes that the Consultants' report indicates an intention to do some "targeted intervention" (which the Ministry presumes means some kind of training) on these matters before (iii) is implemented.

15Extensive comments substantially in support of this recommendation were provided on behalf of OPSEU by its general counsel, Mr. Stoykewych, who wrote in part (on July 12) that:

… OPSEU recognizes that the building of the Ministry’s relevant skills and competencies is the very object of the Tribunal’s orders, and in that regard, the establishment of a process by which these senior managers may assume their responsibilities in respect of the WDHP policy is essential. Nevertheless, … in light of the evidence heard by the Tribunal, that can most charitably be described as a significant confusion in respect of the policy … we therefore request that the Tribunal set out as a condition of those managers’ assumption of such functions that they receive significant guidance from the Third Party Consultants as to what constitutes a legitimate complaint under the policy, and that actual assumption of the screening role take place only after the Third Party Consultants have satisfied themselves that an appropriate understanding has been achieved. Further, any screening performed by these managers should be reported to, and subject to a fulsome review by, the Third Party Consultants until such time as the WDHP Advisor and Workplace Effectiveness Branch have been effectively established and fully functioning. Thereafter, we agree with the suggestion that the screenings be the subject of review by the Third Party Consultants on a quarterly basis.

16The complainant disagrees in no uncertain terms with the third recommendation. In her June 30 submissions on this matter, Ms. Hughes said that:

… The people we're talking about are Dan Stevens, who is in an acting position, has been in it for years; Candice Mooney, who is in an acting position; Mr. Chance, who is an acting position. … We obviously, as you know, have concerns about Mr. Stevens because of the way that he handled the Mr. X [a witness whose name is not to be revealed] matter. We have concerns about Candice Mooney because of the comments that you have already put in your [2002 Decision on Implementation] where she said - and this is at Paragraph 206: “Mr. McKinnon complains about his work environment being poisoned when what, in fact, he does is poison everyone else's environment.” She said when he's at a meeting, she doesn't want to be there, so we have concerns about individuals like that doing WDHP fact-finding. … And with respect to Ms. Buhagiar [the Acting Superintendent], we would refer you to Paragraph 207 [of the 2002 decision] with respect to your criticism of her handling of an investigation and [the conclusion] that Ms. Buhagiar's fact-finding mission was further compromised by a further conflict of interest. So you specifically had concerns about Ms. Buhagiar in 2002, and her fact-finding ability with respect to WDHP complaints, and so why -- one would wonder why, you wouldn't have the ability now to, the accountability now, to be able to deal with it.

17The complainant’s position regarding the third recommendation was further explained in the July 12 letter sent to the Tribunal on his behalf, the relevant part of which is as follows:

We strongly oppose the suggestion that Acting Deputy Superintendents and the Acting Superintendent be permitted to undertake initial fact-finding to determine whether a complaint meets the requirements of the WDHP policy.

Firstly, we are concerned about the existing levels of competence and skills of the persons in these positions. Currently there is too much potential for abuse and misdiagnosis. Even with targeted intervention, there exists little trust and this cannot be remedied with more training. We note that many of the individuals who would be doing this fact-finding are well known to this Tribunal.

Secondly, we are concerned that complainants’ confidentiality would be seriously jeopardized were senior management to be involved in initial fact-finding.

We further disagree with the suggestion that appeals of the fact-finding assessments be directed to the Third Party Consultants. This would compromise the consultants’ neutral position in the process and their overall mandate. Many of these same concerns about the third party being directly involved in the process and thus losing the appearance of neutrality and becoming a target for hostility are articulated by the Commission in the Tribunal’s earlier interim decisions dealing with recommendations. We suggest instead that an external investigator be appointed on a case-to-case basis to make a second determination where the complainant is not satisfied with the initial assessment. We understand from Charles Smith’s intervention at the hearing that the consultants are amenable to this alternative.

18The complainant’s first concern regarding the third recommendation appears to be an ad hominem reaction to the fact that the current occupants of the senior positions at the TEDC are persons he has cited as sources of his victimization. Presumably, his objection would be removed if others happened to be in those positions because, at the end of the process―that is to say, when the atmosphere of his workplace is free of racism, and it is safe for him and his wife to return―there must be a Superintendent and Deputy Superintendents in place whose responsibilities necessarily include some involvement in the WDHP process. The Tribunal has charged the consultants with the task of training Ministry personnel to handle such responsibilities effectively, and those who are unable or unwilling to do so will not be permitted to remain in positions for which such competence is required.

19Obviously, whether those in leadership positions at the TEDC have the competence to deal with WDHP matters in accordance with their terms of office is a matter that must be determined before the McKinnons may safely return to their workplace, and the closely-supervised transitional process that the consultants advocate is, in their expert opinion, conducive to that end. The consultants’ third recommendation strikes me as being both sound and practical and, apart from raising his personal history with the current Acting Superintendent and Deputy Superintendents, the complainant has not provided any reason suggesting the contrary. Moreover, since his position is based on his view of the evidence before the Tribunal regarding the past conduct of the actual incumbents, the only way to accommodate his objection would be to remove them from office; indeed, that might well be the gist of counsel’s comment that “one would wonder why [the Tribunal] wouldn't have the ability now … to be able to deal with it”. However, the taking of such action by the Tribunal would run counter to its oft-repeated position in the hearings just ended. That position (with which, incidentally, the declared intention of counsel for the complainant appears to accord) is set out in the following terms in the September 28, 2005 Ruling On a Motion For Standing Brought on behalf of Jim Duncan and Sharee Cybulski (at paragraph 14):

14… 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.

20While I find Mr. McKinnon’s apprehension regarding the third recommendation entirely understandable, it needs to be emphasized that he and his wife need not return to their workplace until it is safe for them to do so; and it will not be safe for them to do so if those who are in charge are unable or unwilling to handle their WDHP responsibilities. Thus, if the current acting incumbents are found wanting in that regard, the Ministry must replace them in order to comply with the Tribunal’s orders. After all, an atmosphere intolerant of racism cannot be maintained in a workplace led by such persons. However, there can be little prospect for progress if the complainant’s view of the matter is allowed to preclude the consultants from assessing in a practical way, over a reasonable period of time, the competence of incumbents whom the Tribunal cannot in the present context remove from office. Nevertheless, the cart cannot be allowed to be placed before the horse: the McKinnons are not to be kept out of their workplace for however long it takes the incumbents to demonstrate a capacity their past WDHP performance suggests they lack; rather, when the McKinnons are otherwise ready to return, those who are found to be unable to fulfill their WDHP responsibilities will not be permitted to remain in that workplace. I think the manner in which Mr. Smith addressed these matters on behalf of the consultants at the hearing on June 30 is most helpful. He observed that:

… One of the things that we're concerned about is … holding management accountable for management responsibilities and trying to bring a management regime to TEDC that understands WDHP. And the difficulty is, if you're unable to deal with the matter, then there's no way of holding them accountable in performance development. So in essence, they're absolved of the matter. One of the things that we've been working at with the Toronto East, which is in our annual report, is a new performance development format which holds at least the Acting Superintendent [responsible] at this point in time ― and we would suspect it would trickle down to the deputies, whether acting or not ― for how they implement the orders of this Tribunal, which include understanding and implementing WDHP. So we are concerned that if they aren't able to do work on WDHP, there's no way that we can hold them accountable for it. ... We now have new people within the Workplace Effectiveness Branch whom we do have confidence in, in terms of their understanding of WDHP matters; [and] we're also saying that before these Deputy Superintendents or Acting Superintendents do anything, they first consult with this Branch to make sure they're doing the right thing. But they would also receive education in advance, before they actually do this process that we are suggesting. So we can perhaps work with Mr. McKinnon and counsel on how this comes into play, but it is of concern to us that managers would not be held accountable on implementing WDHP matters consistent with the recommendation or the orders of the Tribunal. And that is a real major issue for us because then there's a vacuum in terms of leadership on this matter. We are at the stage now of implementing the … on-the-ground phase of the anti-racism organizational change in Toronto East. We have done the focus groups. We're about ready to meet with management and union around the implementation of the recommendations we made back in June 2004. WDHP is one of the key components of that. It helps us to understand who is capable of doing the work, so those individuals get rewarded, and who is not capable of doing the work, so those individuals get dealt with in a different way. So, without being able to do that, we are no further ahead, we think, in establishing what leadership should look like both in terms of substance and persons at Toronto East.

21The second concern raised by the complainant is that the confidentiality of complainants would be seriously jeopardized were senior management to be involved in initial fact-finding. Whether that is a systemic concern or one that has to do with the present incumbents is not clear. If the former, the consultants are in the best position to assess the risk and make appropriate recommendations regarding the protection of confidentiality; if the latter, then the risk is one that must be taken in the process of evaluating the competence of the incumbents.

22The complainant was also of the view that confidence in the consultants’ neutrality would be compromised should “appeals of the fact-finding assessments be directed to” them, and his suggestion “that an external investigator be appointed on a case-to-case basis to make a second determination where the complainant is not satisfied with the initial assessment” was well received by Mr. Smith, who said (at the hearing) that: “we really appreciate the final comments that were made in terms of our role as an [avenue of] appeal. So right off, we would say that the comments about having one of the external investigators [deal with appeals] would be quite a good one to look at”. While I agree that appeals of initial fact-finding assessments made by managers at the TEDC should be resolved by persons other than the consultants, I think that respondents should have the same right as complainants to seek such intervention; after all, as already noted, Mr. McKinnon was the respondent in the ill-defined complaint that led to the ruling in question.

23After expressing the Ministry’s agreement with the recommendations made by the consultants in her July 12 comments on its behalf, Ms. Stephenson says that “in addition to these changes the Ministry is urging” that:

(i) An opportunity for all persons involved in or witness to WDHP matters to provide written accounts of their “evidence” contemporaneously with the events in question, unless there is a concern about the complainant being “revictimized”.

(ii) An opportunity for managers (including Superintendent and Deputy Superintendents) to be advised of WDHP issues that are to be investigated, or are being investigated, in relation to the staff that they supervise.

(iii) An opportunity to advise staff (probably through communications about impending changes to the process) that at the present time they cannot ask for WDHP matters to be dealt with outside the WDHP process, eg through informal resolution mechanisms.

24It is not clear to me what it is that the Ministry is urging upon the Tribunal. Whereas the form of its requests implies that the opportunities in question are blocked by the Tribunal, the nature and scope of the supposed obstruction is not explained. As to the first of these requests, presumably the making and filing of occurrence reports continues unabated, and I find nothing in the orders and rulings of the Tribunal that prohibits “persons involved in or witness to WDHP matters” from making and distributing contemporaneous notes of events, nor are managers prevented thereby from pointing out the value of contemporaneous notes and encouraging such a practice. As to the second request, nothing is said as to the purpose of keeping managers at all levels advised of WDHP issues being (or to be) investigated in relation to the staff that they supervise, and I am in no position to assess the effect that doing so may have on issues of confidentiality and other matters. It is not clear whether the third request seeks an opportunity to issue a general advisory to all staff that “at the present time they cannot ask for WDHP matters to be dealt with outside the WDHP process”, or whether what is wanted is the freedom to so advise individual staff members on a case-to-case basis as inquiries are made; in either case, the matter strikes me as rather innocuous. In any event, however, I am not prepared to rule on any of these matters without first hearing the consultants’ views as to their possible impact on the overall process of change they are charged with administering.

RULINGS

25For the reasons set out above, and subject to the modifications set out hereafter, the recommendations made by the third party consultants in their First Quarterly Report of 2006, are adopted as follows:

1. The third party consultants may, at their discretion, require managers to provide to them and to the WDHP Coordinator oral and/or written reports on actions taken by them regarding matters subsequently determined to be WDHP-related. If the consultants have any concerns arising out of such reports, they may refer them to an external investigator.

2. The following ruling (made by the Tribunal in its Interim Rulings Regarding the Third Party Report of September 12, 2005) is hereby withdrawn:

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.

3. The Deputy Superintendents and the Acting Superintendent of the Toronto East Detention Centre (“senior officers”) shall be permitted to undertake initial fact-finding to determine if a complaint meets the requirements of the WDHP policy, provided:

(a) that the third party consultants conduct a “targeted” training intervention to increase the competence and skills of these senior officers in such matters, including significant guidance as to what constitutes a legitimate complaint under the policy;

(b) that these senior officers discuss all such activity with the Ministry’s WDHP Coordinator in accordance with a protocol to be established by the third party consultants;

(c) that parties to complaints be advised of their right to appeal a determination by any of these senior officers as to whether a complaint meets the requirements of the WDHP policy;

(d) that all such determinations made by these senior officers be reviewed by the consultants on a quarterly basis with the Ministry’s Director of the Workplace Effectiveness Branch and with the WDHP Coordinator.

CONCLUSION

{26} The First Quarterly Report of 2006 of the Third Party Consultants to the Ontario Human Rights Tribunal is a clear, comprehensive and very well-presented 28-page document, with accompanying appendices, that reviews the progress the consultants have made in carrying out their mandate and outlines many of the steps yet to be taken in implementing the Tribunal’s orders. Subject to the rulings set out above, which are to be read in the context of the preceding reasons, that report is received and approved with the Tribunal’s thanks.