COURT FILE NO.: 763/02
DATE: 20031314
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Her Majesty the Queen in right of Ontario, Frank Geswaldo, George Simpson, P. James and Jim Hume, Appellants (Respondents on the motions)
and
Michael McKinnon and Ontario Human Rights Commission Respondents (Moving Parties on the motions)
HEARD: March 11, 2003
BEFORE: Lane, J.
COUNSEL: Kate Hughes and Veena Verma, for Michael McKinnon, moving; Jennifer Scott, for the Respondent O.H.R.C., moving; Dennis W. Brown Q.C. and John Zarudny for the Appellants, responding.
REASONS FOR DECISION
LANE, J.:
[1] This motion is another phase in an ongoing human rights case brought by Mr. McKinnon, an Aboriginal man and an employee of the Ontario Ministry of Correctional Services (Ministry) at the Toronto East Detention Centre (TEDC), in which he alleges that he has been the victim of a racially poisoned workplace environment. His complaint was heard by a Board of Inquiry and an initial decision was released on April 28, 1998. The Board was severely critical of the workplace environment and found that the Ministry was liable for the serious human rights violations experienced by Mr. McKinnon. It said in the report:
…that the workplace environment of the Centre was poisoned by workplace harassment and discrimination, and that such sporadic efforts as were undertaken to address it were inadequate and often begrudged. The complainant’s requests for action were viewed with suspicion and either ignored, mishandled or met with undue delay, as were the complaints of several others.
[2] As a result of its findings, the Board made a number of orders directed to the Ministry designed to remedy the workplace environment and to compensate Mr. McKinnon. The Board expressly reserved jurisdiction over the implementation of its orders.
[3] Order No. 12 in the April 28, 1998 decision required the Ministry to establish a human rights program to be approved by the O.H.R.C. to be conducted in the workplace within six months. The Ministry prepared a program and delivered it to its employees in 1999.
[4] Meanwhile, Mr. McKinnon returned to work. He found the environment as bad as ever. He wrote to the Board on March 2, 1999 and asked it to consider his complaints when it reconvened on implementation issues. The Ministry challenged the Board’s jurisdiction to do so on the basis that these were fresh complaints unrelated to the implementation of Order 12, the only outstanding order. Therefore these complaints required fresh investigation by the O.H.R.C. By a decision of May 7, 1999, the Board ruled that it had jurisdiction to hear allegations of continued discrimination and reprisals related to the implementation of the April 28, 1998 order.
[5] The Ministry sought judicial review of the May 7, 1999, order. Its application was heard in December, 2000 and was dismissed on March 21, 2001. The court held that the Board was not precluded by the doctrine of ‘functus officio’ from determining the relevance of the March complaints to the issue of the implementation of the remedy imposed in the April 28, 1998 order. A Board of Inquiry has a remedial authority of a supervisory nature to remain seized with respect to remedial issues in order to facilitate the implementation of its order.
[6] The Board then reconvened and held extensive hearings over 34 days ending in July 2002. Much evidence was put in relating to workplace events affecting Mr. McKinnon directly or indirectly in the four years since the original decision. The objection of the Ministry that there was no jurisdiction to admit this evidence, at least without submissions on the relevance of such evidence to the implementation of the original order, was not allowed.
[7] The Board issued its second report on November 29, 2002. It found that the Ministry had failed to comply fully with the 1998 orders and that, as a result, the atmosphere in the workplace remained racially poisoned. It said that the root of this problem remained the ineptitude, indifference and bad faith of management at the Centre in dealing with race issues. The Board made a series of further orders requiring extensive additional training within the Centre and Ministry-wide, publication and explanation of the decision in the workplace and specific relief to Mr. McKinnon in the form of a paid leave of absence pending rectification of the workplace environment.
[8] On December 20, 2002, the Ministry appealed to this court from the Board’s November 29 decision. This appeal triggered a statutory stay of the orders of the Board. The Ministry required Mr. McKinnon to return to work, the order for his paid leave being stayed. On January 23, 2003, Carnwath J. allowed Mr. McKinnon’s motion to lift the stay of the order directing the paid leave having regard to the exceptional circumstances of the case. Mr. McKinnon also asked for other parts of the order to be released from the stay and the O.H.R.C. indicated it would also seek a similar order as to still other parts of the November 29 order. These matters were all adjourned to a later date and have now come on before me.
[9] In order to lift the stay of any of these orders, I must be satisfied that there will be irreparable harm to Mr. McKinnon if it is not lifted and that the balance of convenience favours him rather than the appellants: RJR-Macdonald Inc. v. Canada (Attorney-General) (1994), 111 D.L.R. (4th) 385 (S.C.C.)
[10] Mr. McKinnon seeks a lifting of the stay of Orders # 1 and 10 of the November 29 decision. Order 10 requires the Ministry to publicize the decision of the Board by directing the preparation of a summary of both the 1998 and 2002 decisions for general circulation and a precis to be read at parade by senior officials. Counsel for Mr. McKinnon submitted that this was necessary to prepare the way for Mr. McKinnon to return to the workplace. There will likely be significant delay in hearing the appeal and there may be further appeals. The longer he is away, the more his skills will erode and the more he will come to be seen as the problem rather than as the victim. His experiences on his return to work demonstrated that his co-workers do not understand his position and how he has been vindicated twice. Their hostility to him may well have been fueled by a Ministry release referring to the decision and saying that it is regarded as wrong in fact and law and is being appealed.
[11] Mr. Brown for the appellants submitted that there was a contradiction in Mr. McKinnon’s position: he wanted a paid leave because the workplace was poisoned, but claims he suffers irreparable harm from being out of it. He drew my attention to the great cost to the Ministry of all the training programs. The public interest would not be served by this expenditure before the case was finally decided.
[12] Mr. McKinnon has had a 25 year career in this service and being deprived of the opportunity to continue it uninterrupted by an absence forced on him by an illegal racist atmosphere is not a light matter. True, he is receiving his pay, but that is not the end of it. His constitutional entitlement is not to a paid leave of absence, but to a racism-free workplace. It may be that if his co-workers are educated in the issues and realize that he has been vindicated, the atmosphere may become more bearable. The cost of the work to publicize the decisions as required by Order 10 is not in evidence, but in the great scheme of things it can scarcely be a deterrent. I think there is irreparable harm to Mr. McKinnon in being kept out of the workplace, just as there would be in requiring him to return to it in its present condition. The balance of convenience favours doing the publicizing and seeing if the result permits Mr. McKinnon to return to his employment. If not, he can resume his paid leave. I lift the stay of Order 10.
[13] Mr. McKinnon also seeks to have the stay of Order 1 lifted. This order requires the Ministry to implement 12 of the 13 recommendations in the Devlin Report. That report was put in evidence before the Board and there was extensive testimony from the Ministry to the general effect that, with only a couple of reservations, the Ministry intended to implement the Devlin recommendations as an initiative to combat discrimination and that further orders were therefore unnecessary. In its decision, the Board declined the invitation to leave the matter in the hands of the Ministry without an order. This is scarcely surprising in the light of the evidence of the Ministry's failures over the years to address these issues even though a series of reports revealed the racist poison in the workplace. These recommendations refer to organizational reforms within the Ministry, early and repeated training for staff in the skills of dispute resolution, cross-cultural communication, the use of external investigators in human rights complaints and many more. It was submitted that the Ministry was committed to most of these reforms by the evidence given before the Board and therefore the stay should be lifted to require them to be implemented. Counsel for the Ministry submitted that the Ministry’s intentions were not a basis for lifting the stay, particularly when there were some reservations expressed as to some recommendations. I agree with that submission. Unless lifting the stay can be justified on the principles referred to above, I should not do so just because the Ministry intends to implement some of them anyway. I point out that the stay in no way interferes with the Ministry carrying out its expressed intentions and its track record in this respect may be thought to cast some light on its overall bona fides in addressing this problem. Because Order 1 is similar to other Orders which the Commission wishes to have lifted, I will deal with it along with those orders.
[14] The Commission wishes to have the stay lifted with respect to all the Orders requiring training to be implemented. It submits that it is because of the failure of the Ministry to implement the training ordered by the 1998 Board decision that the situation remains critical at this time. Training will inevitably be required to remedy the problem, whether the appeal succeeds in overturning this particular decision or not. The Ministry appeal does not challenge the existence of the racist atmosphere. There is a substantial public interest component in this motion. It is in the public interest to have effective enforcement of the Code and there has been a ten year history of resistance by this Ministry to the change of mind-set necessary to free the workplace from racism.
[15] In his submissions, counsel for the Ministry stated that the Ministry did not say that the problems revealed by the two Board reports did not exist or could go unaddressed. The point was that the authority of the Board to order the further remedies was at issue. The Ministry position was that it had complied with the 1998 Order and the Court was being asked to accept the impugned orders and require the Ministry to spend another large sum on top of the $1.6 million spent to comply with the 1998 order, all while the 2002 order is under appeal. There was no irreparable harm established in the delay to have the appeal heard. Further, he said, it was the Ministry position that the O.H.R.C. itself had approved the training plan carried out after the 1998 Order. The Ministry had acted in good faith and the issue was not whether the training had been effective but whether the Ministry had complied with the 1998 Order. As to the public interest in enforcing the Code, the legislation provided for rights of appeal and they are as much part of the Code as any other provision.
[16] Co-counsel for the Ministry made submissions that the court should not lift the stays because to do so was the equivalent of a mandatory injunction against the Crown. He said that the case law showed that such an order could not be made. In my view the analogy is wrong. In a mandatory injunction, the court exercises its own authority to require the defendant to act. In the present case, if the court lifts the stay, it is the Board’s authority that comes into play. Counsel for the Ministry made it clear that no point is taken that the Board cannot make orders that bind the Ministry.
[17] It is clearly desirable that the racist atmosphere of the workplace should be attacked as soon as possible. The two reports indicate the existence of a shameful situation that is totally unacceptable in a civilized country. The continued exposure within the Ministry of other minorities to the harassment and discrimination experienced by Mr. McKinnon must stop. There is a potential for harm to such other persons but the evidence to which my attention was directed falls short of showing actual harm beyond Mr. McKinnon. It is likely that the cleansing of this workplace will not be a short-term matter. Is it sufficiently urgent to begin the process at once that the court should lift the stay of an order that will require the Crown to expend substantial public funds to comply, when that order is under appeal? The appeal does not appear to be frivolous, indeed the serious issue component of RJR Macdonald supra, was conceded. While there was evidence that Dr. Agard felt that anti-racism training could take place within 60 days, the requirements of these orders are much more demanding than that. There is a public interest in the principle that the expenditure of public funds is for the Crown, by and large. I am also concerned about the usefulness of the training in the situation that exists here. The management of the Ministry has challenged the decision of November 29 and publicly declared to its employees that it is wrong in fact and law. So long as that is their Ministry’s official position, one wonders how open the employees are going to be and how effective such training can be. Learning requires a different mind-set, one likely to be achieved only after the appeal process has worked itself out.
[18] I am conscious that delay in the implementation of remedial human rights orders affects the whole of society adversely as well as other employees of the Ministry. These adverse impacts can be reduced by limiting the delay by pro-active steps. In the present case, the bulk of anticipated delay arises from the need to transcribe a very large number of tapes taken by the Board recording the evidence. As a condition of the order I am about to make, I direct that the appellant forthwith make arrangements to employ additional forces to effect this transcribing with a view to completion by June 1, 2003 so that the appeal can be perfected in June and heard in the fall. The appeal will be expedited. Balancing the impacts of this remaining amount of delay against the other factors, I conclude that the balance of convenience favours leaving the remaining stays in place until the appeal is decided
[19] For all these reasons, I decline to lift the remaining stays. In my view any issues of costs should be reserved to the panel hearing the appeal, but submissions for a different costs order may be made in writing within twenty days and reply in a further ten days.
Lane J.
DATE: March 14, 2003.