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Queen's University
 

Charlton

Why can damages be awarded to a complainant when an institution has done "everything right" following an incident of racism?

The  Case

In the matter of an arbitration under the Public Service Act before the Public Service Grievance Board between Cassandra Charlton and the crown in Right of Ontario (Ministry of Community Safety and Correctional Services) before Donald D Carter June 18 and 19, 2007.

Parties

Complainant: Cassandra Charlton

Respondent: Ontario Ministry of Community Safety and Correctional Services

Judicial body: Ontario Grievance Settlement Board

Facts

Employment history

Cassandra Charlton, a woman African Canadian descent began working at the Mimico Correctional Centre as a correctional officer in 1999. She was transferred to the Toronto East Detention Centre in 2003 where she was eventually promoted (June 13, 2005) to a position as Operation Manager.

Hate mail history

For an 18 month period starting in January 2005, racialized employees at the Toronto centre began receiving anonymous threatening racist letters at work. The employer contacted the police, who ordered the employer not to conduct its own investigation before the police investigation was complete. In early September, 2005, the Employer implemented a screening mechanism for mail within the Toronto facility to protect racialized employees.

The incident

One month later, Cassandra Charlton received an anonymous, racist, threatening letter at her home. She immediately contacted the employer and the police and has been off work since Oct. 12, 2005 suffering from medically documented post traumatic stress.

The employer's reaction to the incident

The employer provided Charlton, through the WSIB program, with 100% of her salary from Oct 8, 2005 to Feb. 17, 2006 and $853.18 per week since then. It also offered OPP seminars in personal safety and security as well as the purchase and installation of security systems in the homes of employees who had received racist letters.  In May 2007, the police informed the employer that it could commence its own investigation, which it did. At the same time, the grievor applied for a NEL (Non-economic Loss Award). A number of jobs have been discussed with the grievor as possible reintegration positions; a cleaner, a recruiter, an operational manager in another facility

The employer's show of good faith towards the Board

To show good-faith, the employer agreed in advance to comply with all orders set forth by the Board, and provided it with a statement of facts signed by both the employer and grievor.

Arguments

For the complainant

The complainant claimed three kinds of remedies: fair and safe reinstatement at work, compensation for loss income and compensation for mental anguish.

For the respondent

The Ministry was amenable to reinstating the grievor into a comparable position (in terms of remuneration and responsibility) in a racism-free environment.

It submitted, however, that since the grievor had been awarded WSIB benefits (in an amount equivalent to her salary) for stress leave related to the incident, the Ministry had already satisfied its duty to compensate for lost salary. The complainant argued that WSIB did not cover overtime pay, that the loss of overtime pay forced her to sell her house and give up dental insurance, resulting in high dental bills.

As for the question of damages for injured feelings or loss of dignity, the Ministry maintained that the Board should be guided by the Ontario Human Rights Code which "provides for awards not exceeding $10,000 for mental anguish where the infringement has been engaged in wilfully or recklessly". Given its good-faith efforts (which were anything but wilful or reckless infringements to her human rights) to assist the grievor after the incident of harassment, the Board should only have to pay minimal (if any) costs for mental anguish.

Rulings

1) The Board directed the Employer to follow through on its commitment to reinstate the grievor in a position comparable, in remuneration and responsibility, to the operational manager job she held at the time of the racist incident, and to ensure that the workplace was free from any threat of racial harassment. The Board remained seized of the matter to ensure that compliance is met.

2) The Board determined that it had remedial jurisdiction to deal with the issue of compensation for salary loss and that its mandate was not limited by the benefits granted to the grievor in the Workplace Safety and Insurance Act which only compensated for injury to health, not injury to dignity. It ordered that the employer had to compensate the grievor for injury to dignity caused by the racist incident by paying her the difference between what she would have earned had she stayed at work minus what she earned in the WSIB benefits. The grievor was invited to submit evidence that but for the racist incident, she would not have had to sell her house for future consideration.

3) The Board agreed that the employer reaction to the hate mail incident was "beyond reproach". However, it pointed out that this good faith attempt to stop racial harassment was not the issue. The issue, it determined, was that the grievor's contract (her contractual guarantee to a racial harassment free workplace) had been breached and that this breach, in and of itself, was the source of terrible mental anguish. For this reason, the Board ordered the employer to pay the grievor $20, 000 in damages for mental distress arising from the breach of the contractual guarantee of freedom from racial harassment in the workplace.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000