GSB#2005-1443
UNION#2005-0530-0022
Additional Files listed in Group “A” & “B”
BETWEEN
IN THE MATTER OF AN ARBITRATION Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before
THE GRIEVANCE SETTLEMENT BOARD
Ontario Public Service Employees Union
(Tardiel et al) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE
FOR THE UNION
Christopher J. Albertyn
Richard Blair
Vice-Chair
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
Eric del Junco, Barrister and Solicitor
Jim Paul
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER
Lisa Compagnone & Cathy Phan
Ministry of Government Services
Labour Practice Group
Counsel
HEARING
December 10, 2012.
Decision
1This is an ongoing matter. Several previous decisions have been issued granting systemic remedies to restore the workplace at the Toronto Jail. This decision addresses a further request by the union for a systemic remedy.
2The union’s request is for an order that an independent investigator be appointed at the Ministry’s expense to investigate the racist hate mail that has been the subject of earlier consideration.
In a decision issued on September 5, 2012, the following was written:
2Since 2007 the Ministry has had an ongoing investigation under s. 22 of the Ministry of Correctional Services Act, RSO 1990, c M.22 into the provenance of the anonymous racist letters that have so augmented the poisoned work environment at the Toronto Jail described in earlier decisions. Among the systemic remedies ordered in this matter was the appointment of an investigator to review the Ministry’s investigation.
3The appointed investigator, Michael A. Davis, provided a written report of his review (“the Davis report”). In it he has made 12 recommendations as to how the procedures associated with the racist letters can be improved and as to how the Ministry’s investigation can be advanced.
4The Union has, throughout the proceedings in this matter, requested a full, independent investigation into the provenance of the racist letters in order to identify the author(s). It has asked for this comprehensive investigation as a remedy to make whole the Union and its members for the breaches by the Employer of the collective agreement and of the Human Rights Code, RSO 1990, c H.19, for failing to respond effectively to these letters, so as to prevent them creating a poisoned work environment.
5The Union is not satisfied that the Davis report sufficiently addresses the situation. The Union has in writing reiterated its request for a full, independent investigation. The Employer has responded in writing opposing the request. The matter will be argued before me. This decision deals with the steps preparatory to that argument.
6As with other aspects of this case, the hearing into the Union’s request for the appointment of an independent investigation will be held in accordance with Article 22.16 of the parties’ collective agreement, their expedited procedure. Pursuant to Article 22.16.2, I hereby order that there will be no oral evidence and that evidence will instead be received in the following manner.
7By a date to be determined by the parties (failing which, set by me) Employer counsel will write to Union counsel:
a. to confirm that, besides the reports already provided to Union counsel, there are no other forensic behavioural profiles created of the letter writer(s) by the Employer or anyone retained by the Employer between 2005 and the present; or to provide such further profiles;
b. to provide a complete and detailed written summary of the steps the Employer took to investigate the provenance of the hand-written letter found on April 1, 2010 in the Central Regional Office (referred to at pp. 8-9 of the Davis report), including a summary of persons interviewed, handwriting analysis conducted and fingerprinting and/or DNA analysis of the letter/note and also including a full explanation of why the Employer did not take certain possible steps referenced in the Davis report, such as obtaining handwriting samples from the two persons present on that day who did not work in that office.
8The evidentiary basis for the argument will be the documents produced in accordance with paragraph 7 above, the forensic behaviour reports already provided to the Union, and the Davis report. The parties will endeavour to create a common book of the relevant documents. In addition the Employer will provide an updated book of the hate mail letters sent to date.
9The Union has given notice that it will argue than an appropriate adverse inference should be drawn from any incompleteness or other defect in the summary provided by the Employer pursuant to paragraph 7(b) above.
3The parties produced a joint bundle of documents, as requested. It contained Forensic Behavioural Science Reports; the Ministry’s letter of October 31, 2012 in response to the above order; the Davis report; the union’s request for a full fresh investigation; and the employer’s response.
4As explained in earlier decisions (among them, OPSEU v. Ontario (Ministry of Community Safety and Correctional Services) (Tardiel Grievance), [2010] OGSBA No. 276, at ¶¶12-15), the racist hate mail produced in the period since 2005 had a most deleterious effect on the Toronto Jail workplace. It was the most significant catalyst for the poisoned work environment that prevailed in the jail for a period of about three years between 2005 and 2008. Staunching the flow of hate mail is obviously a very important objective for the employer, the union and the employees of the Toronto Jail. The most effective method of doing so is for the perpetrator to be identified and dealt with under the criminal justice system. This explains the union’s reasonable and commendable desire to have the investigation into the letter writing campaign conducted as efficiently and effectively as possible.
5Since the first hate letter was received on January 13, 2005 the letters continued sporadically until January 2012. The Toronto Police Service has been charged with conducting the criminal investigation into the letters, with the aim of apprehending the writer. As was explained in OPSEU v. Ontario (Ministry of Community Safety and Correctional Services) (Tardiel Grievance), [2011] OGSBA No. 80, at ¶97, the employer commenced its own investigation into the hate mail on March 9, 2007, under wide investigative powers contained in s. 22 of the Ministry of Correctional Services Act, RSO 1990, c M.22 (the Act). The investigation has continued since then and is ongoing. With the Toronto Police Service as primarily responsible for the investigation – holding all the exhibits, conducting the forensic tests, trying to determine the identity of the letter writer – the Ministry’s investigation is parallel and supplementary.
6At the union’s request, I made an order that the employer’s investigation be reviewed and analyzed. Mr. Davis was chosen for the task of the review because of his long experience as a police detective. He spent some time conducting his review; he perused all of the Ministry’s Correctional Investigation and Security Unit (CISU) files: 5 bankers’ boxes with over 400 file folders, in excess of 4,000 pages of documents. The Davis report resulted from that review. The review was not a meagre effort, but its conclusions did not meet the union’s expectations. The report made recommendations to aid CISU’s investigation. Those recommendations have not yet been implemented. They are to be the subject of further consideration by the parties.
7As part of the employees’ constitutional entitlement to a racism free workplace (Ontario v. McKinnon, [2003] OJ No. 893, at ¶12), the union submits that, because of the ongoing nature of the letter writing campaign, the Ministry should take a lead role in the investigation to identify the perpetrator, irrespective of what the Toronto Police Service are doing with their investigation.
8The union is not satisfied with the scope of the Davis review, with the approach he adopted, or with the conclusions he reached. The union argues Mr. Davis inappropriately deferred to the interests of the employer.
9The union thinks the Ministry could have done much more in its investigation, that it has bungled some of what it has done, and that a fresh investigation is essential if progress is to be made in apprehending the perpetrator.
10The union’s request for a full fresh investigation is based on the following. Relying on the Davis report, the union maintains that the employer’s investigation has failed to take the following necessary steps: obtaining a full set of fingerprints from employees working in the Toronto Jail during the relevant period; conducting a full review of the letters to identify common spelling and grammatical mistakes and other patterns for the purpose of comparison with documents in the Ministry’s possession written by those identified as persons of interest; and failing to conduct a meaningful investigation into the handwritten note found on April 1, 2010, including proper handwriting analysis and interviews.
11The Ministry’s response of October 31, 2012 to 7(b) of the September 5, 2012 decision, above, describes what was done with the hand-written letter found on April 1, 2010. All who were present at the time at the Central Regional Office (CRO), where the letter was found, were interviewed. Handwriting samples were obtained from the CRO employees interviewed. Those samples were analysed by a handwriting expert. The two visitors to the CRO at the time did not have handwriting samples taken from them.
12Relying on the Davis report, the union points to the inadequacy of the CISU investigation regarding the letter found on April 1, 2010. There has been no comprehensive, forensic handwriting analysis. No handwriting samples have been taken from the two individuals who visited the CRO on April 1, 2010, for analysis by a handwriting expert. In the union’s submission, particularly in light of CISU’s investigative powers under s. 22 of the Act, the interviews of those potentially involved were likely inadequate and insufficient.
13The union’s critique of CISU’s investigation comes substantially from the Davis report and from the Davis report recommendations that have not yet been implemented.
14The union argues the employer has breached its obligation to take all steps reasonably necessary to provide a safe workplace. It says the defects in the CISU investigation are such as to put the safety of workers in the Toronto Jail at risk. The union submits that, notwithstanding the Toronto Police Service investigation, the Ministry has the resources, the authority and the obligation to conduct its own thorough investigation into the origin of the letters.
15The union submits the failure to conduct a comprehensive investigation should be seen in the context of the employer’s obligation to investigate claims of discrimination. Tolerating the hate mail would be akin to condoning discrimination on a prohibited ground. The duty to investigate is the means for the employer to ensure a discrimination-free workplace: Laskowska and Marineland of Canada Inc., 2005 HRTO 30, at ¶53; Nelson and Lakehead University, 2008 HRTO 41. The employer must investigate with reasonable diligence and it can attract liability for a failure to investigate: Sutton and Jarvis Ryan Associates Inc., 2010 HRTO 2421, at ¶134.
16The union argues the Ministry must be judged on its performance in various circumstances across Ontario, as described in the McKinnon case (Ontario v. McKinnon, [2003] OJ No. 893 and [2003] OJ No.491), the Ranger case (OPSEU v. Ontario (Ministry of Community Safety and Correctional Services) (Ranger Grievance), [2010] OGSBA No. 18) and the Tardiel case. The union suggests the Ministry has shown itself to have failed to adequately investigate racism and other discrimination; a pattern of conduct that explains the deficiencies in its CISU investigation into the letter writing.
17The relief sought by the union is an order that the employer be required to appoint a person identified as independent counsel to conduct or supervise all aspects of the new investigation; that the person appointed be a very senior and respected member of the bar or the judiciary with a background in criminal matters and no history of professional association with the employer; that the appointment be on a full-time basis for an initial term of 12 months, subject to renewal for a further 12 months if necessary; that the appointee have powers pursuant to s. 22 of the Act; that the appointee have full authority to hire staff to conduct and support the investigation within a prescribed budget; that the employer be required to cooperate fully with the investigation; and that the investigator provide quarterly reports.
18The employer opposes the union’s request. It says the Davis review of the Ministry’s investigation was comprehensive. The report confirmed the overwhelming effort the Ministry has made through CISU in trying to determine the perpetrator of the racist hate mail. The Ministry has not tolerated the hate mail. There is an ongoing investigation by CISU under s. 22 of the Act, and an ongoing Toronto Police Services criminal investigation. In these circumstances, the Ministry submits that a fresh investigation will serve no useful purpose, but will unnecessarily duplicate ongoing investigative efforts. A new investigation will likely revive the animosity, suspicion and hostility that prevailed among employees at the Toronto Jail some years ago when many of them were subjected to probing interviews. The Ministry suggests instead that the Davis report recommendations be implemented. It asks for that to be ordered.
19The hearing did not address adequately the Ministry’s request that the Davis recommendations be implemented. The only issue addressed was whether the union’s request for the appointment of a fresh investigator should be granted. The recommendations of the Davis report are therefore left over for later consideration.
20The Ministry says, in my view correctly, that the union cannot rely on the evidence in the McKinnon and Ranger cases to advance its argument here. No generalized taint applies to the Ministry such that anything it touches, like the CISU letter writing investigation, is presumptively insufficient and ineffective. To apply such a presumptive taint would give no credit to the remedial steps the Ministry has taken (described in the Tardiel decisions). It would unfairly draw the conclusion that the Ministry is not capable of acting effectively to prevent discrimination and harassment.
21The Ministry argues that it has more than satisfied the legal requirement to investigate complaints of discrimination and harassment. The Ministry has acted reasonably by diligently reporting every letter to the Toronto Police Service, and cooperated fully in their investigations: B.L. v. Marineland, 2005 HRTO 30, [2005] OHRTD No. 30; Yukon v. P.S.A.C. (Hardie Grievance), [2002] YLAA No.1 (Taylor); Canada Post Corp. v. CUPW (Racky Grievance), [2003] CLAD No. 624 (P. Picher), at ¶¶188-190. The investigators within CISU are training in investigations, they have the tools to do so, and they have done some since the s. 22 investigation commenced, cf. Etienne v. Westinghouse of Canada Ltd., [1997] OHRBID No. 14, at ¶72.
22What has the employer actually done to investigate the anonymous hate mail? The employer began its s. 22 investigation in 2007. The investigation has continued since then. The Ministry initially appointed a senior officer of CISU and a senior police detective from the Toronto Police Service to conduct the investigation. They appear to have made substantial effort to identify a suspect, the details of which are in the Davis report. Their interviewing of certain correctional officers at the Toronto Jail caused some turmoil there, with claims of harassment and discrimination by some of those identified as persons of interest. Ultimately the two officers failed to identify a perpetrator.
23Since that initial spurt to the investigation, a CISU officer has been charged with the investigation and has taken the necessary steps to ensure that the forensic information that can be obtained has been secured for the Toronto Police Service investigators. There is no lack of commitment, motivation or interest by the Ministry to solve the case and identify the culprit. In this context it is a mistake to conclude that the investigation has been inadequate merely because the letter writer has not yet been identified and apprehended. Identifying with certainty the perpetrator of an anonymous letter writing campaign is not an easy task. Nevertheless, there do appear to have been some omissions in the investigation, such as around the note of April 1, 2010, as pointed out in the Davis report. But, on the current evidence, I cannot conclude that the Ministry’s investigation, parallel to the Toronto Police Service investigation, is so inadequate that the Ministry should be put to the cost of appointing a fresh, external investigator in the manner the union wants.
24The union’s request is premature. The lessons the union draws of the defects in CISU’s investigation come principally from the Davis report. Mr. Davis’s review was designed to identify shortcomings in CISU’s investigation. His report does so. He made recommendations to address the shortcomings. The implementation of some or all of his recommendations can improve CISU’s investigation. That needs still to be done. The first step – before there is any thought of ordering a fresh investigation – is for the parties to accomplish the improvements to the investigation that might result from implementation of some or more of the Davis report recommendations. To that end, the parties should first address the issue of what Davis recommendations should be implemented. If they are able to agree, their agreement can be implemented and the effects of doing so can be examined. If they are not able to agree, the matter needs to be addressed as part of the med-arb process before me.
25Accordingly I deny the union’s request at this stage. Instead, failing resolution by the parties themselves on the Davis report recommendations, a further date should be arranged for mediation-arbitration of the remaining issues. That process would look also at monitoring the implementation of the recommendations.
26I remain seized.
Dated at Toronto this 19th day of April 2013.
Group A
Grievor
GSB#
Union File#
Tardiel, Charlene et al
2005-1443
2005-0530-0022
Henry, Herman
2005-3859
2005-0530-0052
Jauha, Kulwinder
2005-3860
2005-0530-0053
Miller, Frank
2005-3861
2005-0530-0054
Joseph, Manoj
2005-3867
2005-0530-0060
Lindo, Karen
2005-3869
2005-0530-0062
Cataline, Johnson
2005-3870
2005-0530-0063
LaRose, Colleen
2005-3871
2005-0530-0064
Harries-Jones, Sarah
2005-3874
2005-0530-0067
Gray, Veronica
2005-3875
2005-0530-0068
Grant, Caroline
2005-3876
2005-0530-0069
Ellis, Donovan
2005-3879
2005-0530-0072
Dawjee, Khalid
2005-3883
2005-0530-0076
Cox, Leroy
2005-3884
2005-0530-0077
Stewart-May, Patricia
2005-3889
2005-0530-0082
Persaud, Bibi
2005-3891
2005-0530-0084
Ortiz, Florencio
2005-3893
2005-0530-0086
Olivierre, John
2005-3894
2005-0530-0087
Mohamed, Mohamed
2005-3898
2005-0530-0091
Thompson, Denise
2005-3901
2005-0530-0094
Tuan-Kiet, Doan
2005-3910
2005-0530-0103
Glover, Jason
2005-3912
2005-0530-0105
Montague, Roderick
2005-3917
2005-0530-0110
Tan, Joey
2005-3920
2005-0530-0113
Majid, Mohammad
2005-3922
2005-0530-0115
Skeffington, John
2005-3923
2005-0530-0116
Jackman, Marva
2006-0128
2006-0551-0002
Walcott, Pauline
2006-0422
2005-0530-0121
Marshall-Wilkinson, Joan
2006-0423
2005-0530-0129
Walji, Nasim
2006-0424
2005-0530-0123
Joson, Nelson
2006-0425
2005-0530-0124
Manrique, Lolet
2006-0482
2005-0530-0125
Union
2006-1079
2006-0530-0022
Williams, Simone
2006-1130
2005-0530-0127
Tardiel, Charlene
2006-1816
2006-0521-0022
Thompson, Denise
2006-2892
2007-0530-0003
Rusteau, Harriet
2007-0328
2007-0530-0020
Wilson, Debby et al
2007-1459
2007-0530-0030
Singleton, Samantha
2007-1460
2007-0530-0031
Gray, Stewart
2007-1461
2007-0530-0032
Adesua, Olusola
2007-1462
2007-0530-0033
Garisto, Joe
2007-1463
2007-0530-0034
Mitchell, Ewen
2007-1464
2007-0530-0035
Ward, Vaughn
2007-1465
2007-0530-0036
Morgan, Gracelyn
2007-1466
2007-0530-0037
Etienne, Cavelle
2007-1467
2007-0530-0038
Ramlal, Sylvia
2007-1468
2007-0530-0039
Azeese, Ally
2007-1469
2007-0530-0040
Group B
Grievor
GSB#
Union File #
Adair, Allan et al
2005-3857
2005-0530-0050
Cooney, Guy
2005-3858
2005-0530-0051
Perunovic, Stefanka
2005-3862
2005-0530-0055
Tanel, Luciano
2005-3864
2005-0530-0057
MacKey, Nigel
2005-3868
2005-0530-0061
Jagpal, Sam
2005-3872
2005-0530-0065
Flanagan, James
2005-3877
2005-0530-0070
Fryginberg, Elina
2005-3878
2005-0530-0071
Durdle, Philip
2005-3881
2005-0530-0074
Brown, Sidney
2005-3885
2005-0530-0078
Bazger, Hamza
2005-3887
2005-0530-0080
Parna, Elmar
2005-3892
2005-0530-0085
Montgomery, Mavis
2005-3897
2005-0530-0090
McNeely, Elizabeth
2005-3899
2005-0530-0092
Valaitis, Laura
2005-3900
2005-0530-0093
Pacheco, John
2005-3902
2005-0530-0095
Agnello, Tania
2005-3903
2005-0530-0096
Lino, Angelucci
2005-3904
2005-0530-0097
Ardito, Santa
2005-3905
2005-0530-0098
Bartosiewicz, Agnes
2005-3906
2005-0530-0099
Bolton, Karen
2005-3907
2005-0530-0100
Brooks, Tim
2005-3908
2005-0530-0101
Fitzpatrick, Carrie
2005-3911
2005-0530-0104
Hauery, Mark
2005-3913
2005-0530-0106
Haars, Catherine
2005-3914
2005-0530-0107
Kotsovolos, George
2005-3915
2005-0530-0108
Miklasz, Stanley
2005-3916
2005-0530-0109
Robbescheuten, Crystal
2005-3918
2005-0530-0111
Phillips, Stana
2005-3919
2005-0530-0112
Leppan-Triolo, Barbara
2005-3921
2005-0530-0114
Jacklyn, Denise
2005-3924
2005-0530-0118
Pacheco, John
2006-0040
2006-0530-0005
Pacheco, John
2006-0041
2006-0530-0006
Pacheco, John
2006-0042
2006-0530-0007
Christensen, Robert
2006-0138
2005-0530-0119
Pacheco, John
2006-0620
2006-0530-0016
Phillips, Stana
2006-0624
2006-0530-0020
Pacheco, John
2006-2272
2006-0530-0086
Leppan-Triolo, Barbara
2006-3129
2007-0530-0013
Miklasz, Stanley
2006-3131
2007-0530-0015
Nesovic, Zeljko et al
2008-1029
2008-0530-0048