Ontario Divisional Court

CHRR Doc. 03-340

Her Majesty the Queen in Right of Ontario, Frank Geswaldo, George Simpson, P. James and Jim Hume

Appellants

v.

Michael McKinnon and Ontario Human Rights Commission

Respondents

Date of Decision:

December 23, 2003

Before:

Ontario Superior Court of Justice, Divisional Court, Dunnet, Jennings and Campbell JJ.)

Appeal from:

(2002), 2002 46519 (ON HRT), 45 C.H.R.R. D/61 (Ont. Bd.Inq.)

File No.:

763/02

Appearances by:

Dennis W. Brown and John P. Zarudny, Counsel for the Appellants

Kate Hughes and Veena Verma, Counsel for the Respondent Michael McKinnon

Jennifer A. Scott, Counsel for the Respondent Human Rights Commission

APPEALS AND JUDICIAL REVIEW — appeal of remedy — REMEDIES — monitoring of human rights training program — review respondent's compliance with order — failure to comply with order — time to comply with order

JURISDICTION — retained jurisdiction — BOARDS OF INQUIRY / TRIBUNALS — reconvening hearing — enforcement of order — functus officio — ADMINISTRATIVE TRIBUNALS — COURTS — standard of review of court over administrative tribunals

Summary: The Ontario Divisional Court dismissed an appeal by the Ministry of Correctional Services from a decision of the Human Rights Board of Inquiry (now the Human Rights Tribunal of Ontario) dealing with remedial orders issued to remedy a complaint from Michael McKinnon regarding a racially poisoned work environment.

Mr. McKinnon's complaint has a long history. In April 1998, the Ontario Board of Inquiry found that the Ministry of Correctional Services and certain individual employees harassed, discriminated against, and took reprisals against Mr. McKinnon, who is a Canadian of Aboriginal descent. The Board made an extensive remedial order that included payment of damages and compensation, promotion of the complainant, relocation of certain offending co-workers, editing of personnel files, publication of the Board's order, and the establishment of a human rights training program. The Board retained jurisdiction to deal with any disputes that might arise in the implementation of the orders.

In March 1999 the complainant notified the Ontario Human Rights Commission that the Ministry had failed to implement the orders, and that he was being subjected to harassing conduct by co-workers that was specifically related to his complaint and the remedy. He also alleged that discrimination against him with respect to promotion opportunities continued.

The Board of Inquiry reconvened in May 1999, and decided that it had jurisdiction to hear the allegation of continued or repeated discrimination and reprisals related to the implementation of its 1998 order.

The Ministry of Correctional Services appealed this ruling, and in 2001 the Ontario Divisional Court dismissed the appeal, indicating that the Board of Inquiry could deal "with acts in the context of facilitating the remedy it imposed".

In 2002, the Board of Inquiry reconvened and held extensive hearings regarding workplace events affecting Mr. McKinnon in the four years since the original decision. The Board of Inquiry issued a decision in November 2002 finding that the atmosphere remained racially poisoned