Cox v. Ontario (Community Safety and Correctional Services), 2014 HRTO 286

Human Rights Tribunal of Ontario

B E T W E E N:

Leroy Cox
Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services
Respondent

-and-

Ontario Public Service Employees Union
Intervenor

INTERIM DECISION

Adjudicator: Leslie Reaume
Date: March 4, 2014
Citation: 2014 HRTO 286
Indexed as: Cox v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Leroy Cox, Applicant
Asha James, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Respondent
Lisa Compagnone and Cathy Phan, Counsel

Ontario Public Service Employees Union, Intervenor
David Wright, Counsel

Introduction

1This Interim Decision addresses the applicant’s Request for production of documents and a Request by the Ontario Public Service Employees Union (“Union”) for intervenor status.

2The applicant did not oppose the Union’s request for intervenor status but did argue that the intervention should be limited to systemic and public interest remedies which could affect the collective bargaining process. The union’s request is granted with the scope of their participation to be defined at a later date, once the parties have had an opportunity to consider this Interim Decision on the production issues raised by the applicant.

3As stated by this Tribunal in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 at para. 13:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

4Accordingly, the Union is hereby granted non-party intervenor status, with the right to address matters of broad application to the workplace as it may affect the Union and its members and the remedies sought as they may affect the collective agreement and its members.

5The applicant alleges discrimination with respect to his employment on the basis of race and colour. There is a significant history to these allegations which involves the past and present involvement of the Grievance Settlement Board (“GSB”). That history is set out in the Tribunal’s Interim Decision of August 22, 2012: Cox v. Ontario (Community and Correctional Services), 2012 HRTO 1607 (“Cox”).

6In Cox, the Tribunal dealt with a request by the respondent to dismiss this Application pursuant to s. 45.1 of the Code on the basis that the substance of the Application was appropriately dealt with by the GSB. The request was dismissed.

7I have set out paragraphs 22 to 28 from the decision in Cox which summarize the positions of the parties and the reasons for dismissing the respondent’s request:

The respondent submitted that the GSB has appropriately dealt with the substance of the Application. Specifically, the respondent stated that the GSB has already addressed the substance of the Application, namely, the allegation that the respondent has behaved negligently by failing to provide the applicant with a workplace free of racial harassment and discrimination. The respondent stated that the GSB found the respondent liable, awarded the applicant monetary damages, and remains seized to address the adequacy of the respondent’s investigation of racist hate mail, including the new letters mentioned in the Application.

The respondent also stated that there are compelling policy reasons for dismissing the Application, including the avoidance of duplication of adjudication in multiple forums, the potential for inconsistent results, and the need to avoid squandering the Tribunal’s resources. The respondent stated the applicant should bring his new allegations back to the GSB, which has extensive knowledge and expertise with respect to the racial harassment and discrimination issues at the Jail, and is in the best position to address the applicant’s situation.

The applicant submitted that the GSB has not appropriately dealt with the substance of the Application. Specifically, he stated that the GSB only dealt with the allegations in his 2005 grievance and 2010 will-say statement, which cover the period from 2005-2009; that the GSB is not seized with respect to his new allegations; and no grievance has been filed with respect to his new allegations. The applicant also stated that the GSB process has failed to provide him with a work environment free of harassment and discrimination because he continues to be subjected to racist letters which threaten him by name. He stated that he should not be held captive to an internal process that has failed to root out the perpetrators of the racism and bring an end to his victimization.

The applicant further stated that there are compelling policy reasons for allowing him to bring his new allegations to this Tribunal, including the openness of the process (the media and public will be able to attend), the ability to call and cross-examine witnesses, and the right to use privately-retained counsel, none of which was or is available at the GSB. He also stated that, although the GSB has jurisdiction to interpret and apply the Code, it does not have the specialized expertise in racial harassment and discrimination issues that this Tribunal does. For the aforementioned reasons, the applicant stated that he believes that the process before this Tribunal is more likely to bring an end to his victimization than the process before the GSB.

I find that the GSB has not appropriately dealt with the substance of the Application. The proceeding before the GSB dealt with the allegations in applicant’s 2005 grievance and 2010 will-say statement (and his 2009 human rights Application), which cover the period from 2005-2009, not the allegations in his 2010 Application before this Tribunal, which cover the period from April 1, 2010, to the present. The applicant does not have, and has never had, a grievance before the GSB which is similar in substance to his current Application before this Tribunal. In addition, although the GSB remains actively seized with respect to the adequacy of the respondent’s investigation of racist hate mail, including the new letters mentioned in the current Application, the GSB is seized only with respect to systemic issues, not the applicant’s individual issues. Furthermore, the applicant’s Union supports his decision to bring his new allegations before this Tribunal, rather than returning to the grievance process.

That said, if the Tribunal finds that the respondent discriminated against the applicant, there is still a live issue as to whether the Tribunal can or should make any order for public interest remedies, given that the GSB remains seized with respect to the implementation of systemic remedies. In my view, this issue should be decided after a hearing of the merits of the Application where full evidence and legal arguments will be heard.

Accordingly, the respondent’s request to dismiss the Application on a preliminary basis pursuant to s. 45.1 of the Code is dismissed.

8Following the interim decision and the filing of further materials, the applicant filed a Request for production of a number of documents. The respondent is opposed to the production of these documents on the basis that they relate to matters over which the GSB is seized and are therefore not arguably relevant to the issues in the dispute before me.

9This Application involves incidents which are alleged to have occurred after April 1, 2010. The applicant alleges that those incidents occurred as a result of the employer’s failure to prevent a recurrence of racist hate mail. He also alleges that the respondent has failed to facilitate his safe return to the workplace. The applicant alleges, for example, that he has refused an offer to transfer to another institution because of his concern that suspected letter writers have been transferred to other institutions.

10The Tribunal in Cox permitted the Application to proceed without circumscribing the allegations in any way. The Tribunal explicitly acknowledged that the GSB remains seized with respect to the implementation of systemic remedies arising from the context which forms the backdrop to this complaint. Despite that, the Tribunal directed that this hearing would proceed on the merits and that the hearing adjudicator would determine whether or not to make further orders related to public interest remedies after hearing full evidence and legal argument.

11Given the nature of the applicant’s allegations and the context within which they arise, some overlap between the Tribunal and GSB will be inevitable. I am not suggesting in any way that the parties should be re-litigating matters before this Tribunal which have been or are currently being dealt with by the GSB. However, the applicant’s allegations cannot be properly adjudicated without considering the historical context, including the respondent’s efforts to prevent the alleged recurrence which has given rise to this Application.

12Notwithstanding my comments about the scope of the hearing, I have concluded that some of the production requests should be deferred until I have heard the applicant’s evidence. I am not satisfied that all of these documents are arguably relevant, however, I leave open the possibility that the applicant may establish a basis for production through his testimony. For example, the applicant is seeking documents and information which relate to the receipt and handling of racist letters at other institutions. While the applicant has raised the issue of a transfer to another institution as part of the context and possible remedial order, this is insufficient to establish arguable relevance for the broad production request he has made. Once the applicant has testified about his willingness and interest in a transfer and what barriers he is concerned about encountering, among other things, the production request may be tailored accordingly.

13With those considerations in mind, I have set out the applicant’s requests followed by my findings on arguable relevance:

1. The report of Michael A. Davis regarding the adequacy of the Employers’ investigation under s.22 of the Ministry of Correctional Services Act, RSO 1990, M. 22;

This document is arguably relevant. The respondent explicitly references this document in the Amended Response in responding to the applicant’s allegations. It relates to an issue in dispute between the parties, namely, the applicant’s allegation that the respondent has failed to prevent a recurrence of racist mail.

2. Copies of any documents addressing racial systemic issues at other Ministry Correctional Institutions and the Ministry’s response to such issues;

I am not satisfied that the applicant has established arguable relevance for this broad request for documents. This request is deferred until the applicant has testified at which time the request may be granted or narrowed if arguable relevance is established.

3. Information pertaining to which other correctional institutions have received racist hate mail of the type that has been received by racialized correctional officers at the Toronto Jail and what procedures are in place at the other institutions following the receipt of such mail;

I am not satisfied that the applicant has established arguable relevance for this broad request for documents. This request is deferred until the applicant has testified at which time the request may be granted or narrowed if arguable relevance is established.

4. All correspondence between the Union and the Ministry regarding the Union’s request for a full independent investigation;

I am not satisfied that arguable relevance has been established for these documents at this time. They arise from the relationship between the respondent and union in the context of the GSB proceeding.

5. Reports provided by the Employer to the Union regarding the Ministry Investigation and any forensic behavioural profiles created of the letter writer(s) by the Employer or anyone retained by the Employer;

These documents are arguably relevant to the applicant’s allegation that the respondent has failed to prevent a recurrence of racist hate mail and to remedy, if the applicant is able to establish a violation of the Code.

6. A copy of the detailed written summary prepared by the Employer of the steps taken by the Ministry to investigate the provenance of the hand-written letter of April 1, 2010, which specifically references the applicant, Mr. Cox, as detailed in paragraph 7(b) of Vice Chair Albertyn’s decision dated April 29, 2013

This request relates to the letter of April 1, 2010 which specifically references the applicant by name and is therefore arguably relevant to the issues in dispute between the parties.

Order

14The Tribunal orders as follows:

1. The Union is granted non-party intervenor status, with the right to address matters of broad application to the workplace as it may affect the Union and its members and the remedies sought as they may affect the collective agreement and its members.

2. The respondents will produce the following documents to the applicant by March 21, 2014 and the balance of the applicant’s request is deferred:

a. The report of Michael A. Davis regarding the adequacy of the Employers’ investigation under s.22 of the Ministry of Correctional Services Act, RSO 1990, M. 22;

b. Reports provided by the Employer to the Union regarding the Ministry Investigation and any forensic behavioural profiles created of the letter writer(s) by the Employer or anyone retained by the Employer;

c. A copy of the detailed written summary prepared by the Employer of the steps taken by the Ministry to investigate the provenance of the hand-written letter of April 1, 2010, which specifically references the applicant, Mr. Cox, as detailed in paragraph 7(b) of Vice Chair Albertyn’s decision dated April 29, 2013