McKinnon v. Ontario (Correctional Services), 2010 HRTO 1827

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael McKinnon

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Correctional Services, Frank Geswaldo, George Simpson, Phil James and James Hume

Respondents

-and-

Ontario Public Service Employees Union

Intervenor

INTERIM DECISION

Adjudicator: H. Albert Hubbard

Date: September 7, 2010

Citation: 2010 HRTO 1827

Indexed as: McKinnon v. Ontario (Correctional Services)

APPEARANCES

Ontario Human Rights Commission ) Anthony Griffin, Counsel

Michael McKinnon, Complainant ) Kate Hughes, Counsel

Ministry of Correctional Services, ) Leslie McIntosh and Frank Geswaldo, George Simpson, ) Christopher Thompson, Counsel Phil James and James Hume, Respondents )

Ontario Public Service Employees ) Joshua Phillips, Counsel Union, Intervenor )

1The Complainant’s June 2, 2010 Request for an Order during Proceedings asks the Tribunal to state a case for contempt to the Divisional Court pursuant to section 13 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, the issue being whether the respondent Ministry of Correctional Services (the “Ministry”) and/or its Deputy Minister are in contempt of the Tribunal’s orders regarding the disclosure of documents.

2The matter presently before the Tribunal is whether the Ontario Public Service Employees Union (“OPSEU”) may participate in the hearing of the Complainant’s “contempt motion”. Although the Ontario Human Rights Commission declined to make any submission in that regard, written submissions were exchanged and forwarded to the Tribunal on behalf of the Complainant (August 25 and September 2, 2010), the Ministry (August 30 and September 1, 2010), and OPSEU (August 30, 2010).

3At its hearing of May 11, 2005, the Tribunal granted OPSEU standing as an intervenor, and its oral reasons were confirmed and expanded upon in the Tribunal’s Interim Decisions and Rulings of May 19, 2005, paragraphs 17, 19 and 20 of which are as follows:

The Union, as it requested, was granted limited intervenor standing “for the purpose of representing the interests of bargaining unit members as they are affected by and benefit from the systemic remedies” through making suggestions about the design and implementation thereof. However, such intervenor status is not to be read as clothing the Union with any responsibility for, or authority over, the implementation process. In the course of representing the interests of its members, the intervenor may make submissions to the Tribunal that do not unduly delay the proceedings or prejudice the parties, but it may not call evidence or participate in the examination or cross-examination of witnesses.

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

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

4In her August 30 submission on behalf of the Ministry, Ms. McIntosh expressed the view that the limited intervenor standing provided OPSEU by the Tribunal’s ruling does not extend to the matters involved in the Complainant’s contempt motion. She points out that OPSEU was granted standing to represent “the interests of bargaining unit members as they are affected by and benefit from the systemic remedies”, that its participation in the Tribunal’s hearings in this litigation is limited to making submissions “about the design and implementation of systemic remedies”, about “remedial issues” generally and about matters affecting “the unionized nature of the workplace”. In the Ministry’s opinion, the contempt motion raises none of these matters and the submissions to be made in that regard “do not fall within the limited intervenor standing granted to OPSEU [which, therefore,] should not be permitted to participate in the argument on the contempt motion”.

5In his written submission on behalf of OPSEU, Mr. Phillips begins by suggesting that, since the union already has standing in this proceeding by order of the Tribunal, the Ministry’s request that the intervenor be barred from making submissions regarding the contempt motion “amounts to a motion to vary that Order”, and that it ought not to be dealt with because the Tribunal’s Rules regarding forms and notice were not followed. However, it seems to me that the Ministry is not seeking to vary the order but to have it clarified in advance of the contempt motion, to which end it has suggested a particular interpretation of that ruling that it submits to be correct.

6Whether the Ministry is to be seen as seeking an amendment to the order or as requesting clarification of it, in Mr. Phillips’ opinion the submission that OPSEU be excluded from participating in the hearing of the contempt motion is untimely because “an objection anticipating that OPSEU will exceed the scope of its standing brought prior to the making of submissions is entirely speculative and therefore premature”.

7As to whether the objection to OPSEU’s participation is premature, Ms. McIntosh pointed out that the Ministry had indicated some time ago its intention to raise in advance the matter of OPSEU’s entitlement to make submissions in respect of the contempt motion, that the other parties did not object to that course of action, and that written submissions have been made in that regard. Thus, there is some basis for the observation in her reply to OPSEU that: “the Ministry understands that it was agreed that this issue must be decided in advance of the hearing of the motion.” However, the Ministry’s main response to the submission that its objection is premature is that:

... the suggestion that the objection should be made at the hearing of the argument [...] mistakes the nature of the objection. It is that any submission that OPSEU could make on the question of whether the Tribunal ought to make a case for contempt falls outside the limited standing granted to it.

8The difficulty with that opinion is that its acceptance requires the Tribunal to cede to the Ministry the determination of the relevance of submissions yet to be made. Even if the Ministry cannot conceive of any relevant submissions being made by OPSEU in this matter, no doubt the intervenor can, and the relevance of submissions is for the Tribunal to determine. In the normal course, the intervenor is entitled to participate in the proceedings precisely in order to make submissions it considers to be within the scope of the Order granting it status, and the other parties are entitled to object to such submissions as they are made on the ground that they are beyond the scope of the Order—but not on the ground that there is no standing to make them. Thus, unless the Ministry is able to prove the impossibility of anything relevant being contributed by OPSEU, it can but object to the intervenor’s submissions seriatim.

9As to the scope of OPSEU’s standing in relation to the contempt motion, Mr. Phillips writes that the Ministry’s position:

... fails to recognize the clear and obvious fact that the contempt motion is a direct result of the Ministry’s refusal to implement systemic remedies and its ongoing resistance to the legal process which seeks to enforce such implementation. Therefore, the issue of how the Tribunal should respond to this state of affairs is squarely within the scope of OPSEU’s standing.

10Although these hearings would not be in session if the Tribunal’s orders had been fully implemented, whether the Ministry has “refused” to do so and is “resistant” to the process being pursued to that end remains to be decided. However, if OPSEU’s characterization of the evidence to this point were found to be correct, the way in which the Tribunal ought to respond is of direct interest to OPSEU because the alleged refusals and resistance impacts upon its members. The contempt motion is seen by OPSEU as remedial in that it is a measure intended by the Complainant to assist in fostering compliance with the Tribunal’s systemic orders, the implementation of which is obviously in the interests of all members of the union. After all, as was said by Lane J. seven years ago (in Ontario v. McKinnon, [2003] O.J. 893, at paragraph 17):

It is clearly desirable that the racist atmosphere of the workplace should be attacked as soon as possible. ... The continued exposure within the Ministry of other minorities to the harassment and discrimination experienced by Mr. McKinnon must stop.

11For the reason just mentioned, it is my opinion that OPSEU has the right to make submissions in respect of the contempt motion. Although I find as well that the issues underlying the contempt motion are of fundamental concern to OPSEU for the reasons provided by the intervenor and the Complainant, I see no need to repeat or summarize their lengthy submissions.

12It is important to note as well that, should the evidence and submissions lead to a finding that a prima facie case of contempt has been made out, the Tribunal has the obligation of exercising its discretion as to whether or not to state that case to the Divisional Court. Unlike the complainant, the intervenor is in a position to address the Ministry-wide impact that the exercise of that discretion, one way or the other, might have both on the interests of its members and in the furtherance of the Tribunal’s orders. This falls within the parameters of the assistance the Tribunal sought to obtain when granting OPSEU intervenor status.

13For the above reasons, it is the Tribunal’s ruling that OPSEU may make submissions in the hearing of the contempt motion.