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Queen's University
 

McKinnon

What happens when an institution fails to comply with orders to clean up an environment poisoned by racism?

Case:

McKinnon v. Ontario (Ministry of Correctional Services). Regarding Systemic and Personal Remedies arising out of non-compliance issues [2007] O.H.R.T.D. No. 5 2007 HRTO 4, File No. BI-oo33-95.

Parties

Complainant: Michael McKinnon

Respondent: Ontario Ministry of Community Safety and Correctional Services

Judicial body: Ontario Human Rights Tribunal

Procedural History

In 1979, the Respondent, the Ministry of Correctional Services, hired the complainant, Michael McKinnon, to work as a correctional officer in its Metro Toronto East Detention Centre. McKinnon endured harassment on the basis of his Aboriginal ancestry for many years before filing the first of three internal complaints in 1988. Far from remedying the racially poisoned environment, his complaints led to workplace reprisals, including the unfair denial of promotions to McKinnon and his wife. In 1998, the Human Rights Board of Inquiry upheld McKinnon's complaint of racial harassment, discrimination and reprisals against the Ministry. When the Ministry failed to comply with the 1998 remedial orders, the Board issued a stronger set of remedies in 2002. The Ministry fought the 2002 ruling and was defeated by the Ontario Divisional in 2003 and the Ontario Court of Appeal in 2004. When, after the judicial battle, it failed to implement various orders by 2007, the complainant returned to the Human Rights Tribunal (as the Board of Inquiry is now called) requesting a third set of even stronger remedies.

Facts

Non-Compliance with 2002 Orders

The Tribunal found that "[the] implementation of various Tribunal orders [had] been delayed, evaded, incompetently executed and simply disregarded" (p. 95) For example, the Ministry had not set up a tracking system to monitor compliance with tribunal orders, it failed to implement a human rights office, it failed to outsource human rights complaints to external investigators, it gave unmerited positive compliance evaluations to non-compliant managers, it failed to educate or discipline those who did not comply with human rights initiatives; and it failed to provide regular progress reports of Tribunal remedies.

Failure to Act in Good Faith


The Tribunal also determined that the Ministry had "failed in its obligation of good faith and fair dealing towards the parties and the Tribunal, particularly in the following ways: by misleading the representations prior to the 2002 decision; by creating, after the fact, a false impression that the recommendations as set out in Order 1 were being implemented pending the outcome of its appeals; by its failure to be forthright and to keep the other parties fully and properly informed following the Court of Appeal decision; and by its undue insensitivity towards the complaint. (p.97)".

Reprisals Against Complainant

This culpable non-compliance with the 2002 remedial orders resulted in further incidents of harassment (for example, the Ministry did nothing to stop the belief that complainant was a trouble maker who was to blame for the complaint) and discrimination (for example, preferential treatment was given to those who had supported the respondent v. those who had been obliged, under oath, to give evidence against the respondent). The Tribunal determined that these and other post-2002 incidents of harassment and discrimination constituted reprisals against the complainant.

Adverse Effect on Complainant

The Tribunal found that this cruel and vindictive  resistance subjected the complainant to another five years of mental anguish and attacks against his dignity.

Role of the Deputy Minister

The Tribunal found that the deputy minister was ultimately responsible for the culpable non-compliance with the Tribunal's orders. It clarified the role of the most senior ministerial official as "one of cooperation with the Consultants, who are to be kept informed of all relevant matters, and it involves ensuring that all Ministry staff understand and comply with the Tribunal's orders. In carrying out that role the DM must set up a proper system of delegation with an appropriate tracking system made known to the parties, taking care that competent and committed personnel are assigned to act on her behalf regarding such matters" [38]

Rulings

  • Does the Tribunal have the jurisdiction to adapt the 2002 Ministry-wide systemic orders ?

Yes, it does. In 1998, the systemic orders were applicable only to McKinnon and the local detention centre. In 2002, the Ministry challenged the Tribunal's jurisdiction to award ministry-wide orders to remedy a local problem (racism in the detention centre) that had not been remedied because of the Ministry's culpable non-compliance with the orders. In 2007, the issue then became the Tribunal's jurisdiction to expand the 2002 ministry-wide remedies in order to eradicate racism at the detention centre, faced with culpable non-compliance of the Ministry. The Tribunal finds that the two issues are essentially the same; 1) the problem to be remedied remains "the eradication of racism in the detention centre and the "making whole" of a complainant diminished by racism; and 2) the remedial action for that problem remains the awarding of a stronger set of orders to ensure compliance. It therefore rules that the Tribunal has supervisory authority to ensure delivery of an effective remedy in accordance with the Divisional Courts 2003 ruling. It can do so by expanding the ministry-wide orders to meet the changing circumstances such as those brought about by the fact that four years after those orders were made they remain unfulfilled.

  • Does the Tribunal have the jurisdiction to award punitive declarations of culpable non-compliance?

The Tribunal does not have jurisdiction to look back upon a the respondents actions/inactions and make punitive statements about them. Its function is to heal the complainant through compensation and to remedy the situation that diminished him (in this case, a racially poisoned environment). However, it would be impossible for the Tribunal to make a finding of culpable non-compliance without reviewing the evidence and making a finding of facts. This is, in fact, the only way to determine whether new remedial orders should be made. "Such findings are essential precursors to remedial action" (p. 15). The three hundred page 2007 decision contained many findings of culpable non-compliance resulting in/amounting to workplace reprisals.

  • Does the Tribunal have the jurisdiction to impose financial punitive measures on the Ministry for non-compliance?

Both the Divisional Court of Ontario and the Ontario Court of Appeal affirmed that the Tribunal has the jurisdiction: a. to monitor the compliance with remedial orders by respondents that it finds responsible for discrimination and harassment. b. To expand orders with which the respondent has not complied.

It is not, however, within the jurisdiction of a Human Rights Tribunal to punish the respondent, through declarations of, or damages for, non-compliance. If the complainant so desires, he can apply to have a fine placed against the respondent in accordance with the Ontario Human Rights Act. Or, the complainant could go to civil court, where such damages could be sought under tort law.

  • Should the complainant be awarded damages for lost opportunities?

The complainant argued that but for the racism in the Centre, he would have been a senior manager in the Jail and that he should be awarded damages for lost opportunities. His evidence was based on the number of years of service he had given to the Ministry vs the number of years of service that senior management had given to the Ministry. The Tribunal ruled that this evidence was insufficient: years of service alone do not a senior manager make. It ruled, however, that the complainant could come back with better evidence for its consideration. He could, in the future, be awarded damages for lost opportunities if the evidence showed that there was a good possibility that, but for the racist environment, he would have become a senior manager.

  • Should other persons who were mistreated by the Ministry for supporting the complainant (and therefore presenting evidence against the Ministry) be awarded damages by the Tribunal?

Although the Tribunal can not award damages to employees other than the complainant, it holds the Ministry accountable for following through, in good faith, on firm commitments made during the hearing. One such commitment was to classify or transfer an unclassified employee exposed by management as "a rat" during the hearing. A second was to promote another employee to the position of "Crisis Negotiation Instructor" at another facility. The Tribunal expects the Ministry to keep its word about these commitments or be found in culpable non-compliance and held accountable by the Tribunal.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000