Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 7: Round Up

In this meeting, we discuss freedom of speech,  family status, racial discrimination,  religious accommodation and sexual harassment Investigation

Freedom of Expression

What happened when a University disciplines students for criticizing their prof on Facebook? (Prigden)

Family Status

What happens when an employer refuses to accommodate an employee with childcare issues? (Johnstone)

Can an Arbitration board hear the complaint of a probationary employee dismissed after her maternity leave? (Parry Sound)

What happens when you fire an employee after she announces that her child-care arrangements have changed? (Cavanaugh)

Racial Discrimination

Does a Human Rights tribunal have the power to remove a university dean and order the instatement of another candidate who was denied the position due to racism? (Seneca)

Can a complainant use employer attrition data to support an individual complaint of racial discrimination? (Carasco)

Can an employer offer benefits to non-aboriginal employees and not to aboriginal employees? (Malec)

What happens when a service provider singles out racialized minorities for identity checks? (Tahmourpour)

What happens when a deputy minister, to whom specific Tribunal orders to produce documentation have been directed, fails to comply with those orders? (Pieters)

Religious Accommodation

What happens when an insubordinate employee's religious beliefs are not accommodated? (Communications)

What happens when a religious accommodation policy violates provisions of the Collective Agreement? (Seneca)

Sexual Harassment Investigations

What happens when an employer fails to investigate when a male employee claims he is being harassed by his female subordinate? (Frolov)

At what point has a university fulfilled its substantial and procedural duties to investigate the sexual harassment? (Ford)

?

Cases

Prigden v. University of Calgary

Facts

The two applicants, Stephen and Keith Prigden, are twin brothers who were charged with non-academic misconduct and placed on probation for having caused injury to one of their professors by posting derogatory comments about her on a Facebook page designed to criticize her teaching. On the page, which was called "I no longer fear Hell, I took a course with Aruna Mitra", the brothers each posted a negative comment. 

  • Steven wrote: Somehow I think she just got lazy and gave everybody a 65.... that's what I got. Does anybody know how to apply to have it remarked?
  • Keith wrote: "Hey fellow LWSO homes...So I am quite sure Mitra is no longer teaching any courses with the U of C! Remember when she told us she was a long-term professor? Well actually she was only sessional and picked up our class at the last moment because another prof wasn't able to do it... lucky us.  Well, anyways, I think we should all congratulate ourselves for leaving a Mitra-free legacy for future LSWO students!"

After an investigation run by the Interim Dean of the Faculty of Communication and Culture (along with a team of professors from the faculty, including professor Mitra's spouse), the brothers each received a letter advising them that their conduct constituted non-academic misconduct. Only Keith was placed on probation. Both were required to write letters of apology to the professor and to refrain from posting or circulating defamatory materials about the professor; moreover they were advised that these sanctions could be taken into account in any future cases of misconduct and that failure to comply with the sanctions and conditions could result in further discipline, up to and including expulsion.

The brother appealed the decision to a Reviews Committee, which found that the Prigdens had both participated in non-academic misconduct. Keith was placed on probation for 4 months and Keith, for 6. Their application to appeal to the Board of Governors was rejected.

Issues

  1. Does the Charter apply to the disciplinary proceedings taken by the Respondent University?
  2. Were the Applicant's Charter rights infringed?
  3. Were the Applicant's Charter rights justifiably infringed?
  4. Did the Board of Governors err in refusing to hear the Applicants' appeals?
  5. Were the Applicants denied a fair hearing?
  6. Did the Review Committee provide adequate reasons for its decisions
  7. Did the Review Committee err in concluding that the activities of the Applicants constituted non-academic misconduct?

Decisions

  1. Yes
  2. Yes
  3. No
  4. Yes
  5. No
  6. No
  7. Yes

Reasons

  1. The judge likened the situation described in this case to the one described in Elridge, where the issue was the failure of the hospital to provide interpreters in its provision of a service legislated by the government. So too is a University legislated by government to provide educational services to students.  "The University is the vehicle through which the government offers individuals the opportunity to participate in the post-secondary educational system. When a university committee renders decisions which may impact, curtail or prevent participation in the post-secondary system or which would prevent the opportunity to participate in learning opportunities, it directly impacts the stated policy of providing an accessible education system as entrusted to it under the PSL act. The nature of these activities attracts Charter scrutiny.
  2. The Judge used the Irwin test to determine that the applicant's Charter rights had indeed been infringed: "The effect of the Review Committee was to sanction the Applicants and prohibit them from publicly espousing their critical views regarding Professor Mitra while studying at the University of Calgary. The purpose of the order is to restrict the Applicants' freedom of expression. The second step of the Irwin test is also satisfied. The order has a direct effect on the Applicant's freedom of expression and violates section 2(b) of the Charter. "75
  3. The Court used the Oakes test to determine that the infringement was unjustifiable under section 1 of the Charter. Part 1:  "I accept that the objectives of maintaining a learning environment where there is respect and dignity for all and in protecting its reputation as an institution are meritorious and accord with the values of a free and democratic society" (81). Part 2: "However, I am satisfied that the measures adopted by the Review Committee of disciplining the Applicants for making critical comments regarding Professor Mitra on the Facebook wall were excessive. I cannot accept that expression in the form of criticism of one's professor must be restricted in order to accomplish the objective of maintaining an appropriate learning environments. I do not regard this particular kind of expression as being of little value. Students should not be prevented from expressing critical opinions regarding the subject matter or quality of the teaching they are receiving. As an educational institution, the University should expect and encourage frank and critical discussion regarding the teaching ability of professors amongst students, even in instances where the comments exchanged are unfavourable. While certain of the comments made about Professor Mitra were not particularly gracious and might have reflected lack of maturity, the Facebook Wall does have utility as a forum of discussion. The commentary may assist future students in course selection as well as provide feedback to to existing students and perhaps reassurance that one is not alone in finding that they are having difficulty appreciating instruction in a particular course. If Professor Mitra was concerned that she was being defamed, then she could have brought a civil action. The circumstances of this case are very different from those in Ross where racist comments were being made by a teacher to young children in an educational context. The University has not shown that the Review Committee's application of the Policy can be justified using a section 1 analysis. I am satisfied that the applicants' section 2(b) Charter Rights to free expression were infringed by the Review Committee's decisions, that such infringement cannot be justified under section 1 of the Charter, and that these decisions must be set aside.  (81-82).
  4. According to Section 31 (1) (a) of the PSL:Act, all disciplined meted out by the general faculties counsel are subject to appeal to the board. 
  5. The only procedural defect identified by the court was the presence of professor Mitra's spouse on the committee that originally disciplined the brothers. However,  that committee was not the subject of the present hearing, although it could be subject to a subsequent hearing.
  6. "The reasons given by the Review Committee are inadequate as they do not disclose the rationale for the decision but simply state a conclusion. There is no explanation provided to the Applicants to enable them to understand how their actions constituted non-academic misconduct or any guidance as to how they should govern themselves in the future. Moreover, it would be impossible for other students at the University to utilize the Review committee's response as a benchmark for their own behaviour on camps. The lack of any explanation as to how the Review Committee determined that the Applicants' actions constituted non-academic misconduct makes meaningful review of its decision difficult." (107)
  7. "The issue on this application is whether the Applicants engaged in non-academic misconduct. For the purposes of the Policy, the issue is whether the statements caused "injury" to Professor Mitra, within the meaning of the Policy. As Professor Mitra was not called as a witness at the hearing, there is no direct evidence from her that she was injured as a result of the statements. The only evidence before the Review Committee that addresses whether any injury was caused is hearsay and second hand hearsay provided by Dr. Tettey that he received a complaint from Professor Mitra, who indicated that she had been told by unidentified colleagues and associates of that website which in their and her estimation seemed to bring her into disrepute and placed her professional stature in some unspecified manner.  While damage may be presumed in some circumstances as part of the law of defamation, there is no basis to presume injury or damage in this context where the very issue to be determined in respect of the Policy is whether Professor Mitra suffered injury as a result of the comments posted by the Applicants". (112) 

Order

The Review Committee's decision is quashed.

Canada Border Services (Johnstone)

Fiona Ann Johnstone and Canadian Human Rights Commission and Canada Border Services [2010] CHRT 20.

Background

  • The CBSA was created in 2003. Its predecessors were the CCRA (Canada Customs and Revenue Agency), created in 1994  (up to 2003) and the National Revenue (Customs and Excise).  
  • In 1993, the CHRT ruled that National Revenue (Customs and Excise) had discriminated against an employee (Brown) when it refused to accommodate her request to work day shifts so that she could arrange childcare. In this case, Brown v. National Revenue (Customs and Excise), the tribunal ordered the employer to apologize to the employee (which it did) and to amend its policies to include accommodation for family status (which it announced in the letter of apology but never implemented).  The Tribunal ordered that in its policy, Family status was to be interpreted as "a parent's right and duty to strike a balance between work obligations and child rearing coupled with a clear duty on any employer to facilitate and accommodate that balance".  The employer applied for judicial review of the decision, which was ultimately dismissed by Federal Court in 1998.  
  • In 2000, the Labour Relations Division of the CCRA hosted an employment equity strategic session in which they exhibited a draft policy which included the recognition of the burden placed on women by their having to care  for children, elders and home maintenance and by a corporate culture which does not recognized this.
  • In 2003, the CBSA completed an Equity Compliance Review in which it recognized their duty to "accommodate women in balancing their work and personal life through supportive policies and management."
  • Neither the policy ordered by the Tribunal in 1993, nor the draft policy proposed in 2000, nor the measures put forth in the Equity Compliance review have been implemented.
  • A Commission Investigator recommended in 2004 that the Commission consider another employee's complaint of discrimination on the basis of family status.  Notwithstanding this recommendation, the Commission declined to take the case in 2007. The complainant, Ms. Johnstone,  appealed the commission's decision to Federal Court, which remitted the case back to the commission for reconsideration. Thereafter, the commission referred the complaint to the Tribunal. The following facts pertain to her complaint and to her case, heard in 2010.

Facts

Ms. Johnstone and her husband Jason Noble both work full-time for Canada Border Services; she is a Canada Border Services Officer (BSO) whereas he is a supervisor.  Like all full-time employees of Canada Border Services, they work on a schedule of 5 days on, three days off on rotating shifts which are irregular and unpredictable.

When they had kids, the schedule made it impossible for Ms. Johnstone and Mr. Noble to find third-party childcare services, which typically operate five days a week on a static schedule.   They were able to find three separate family members willing to help on three set days.  Therefore,  Ms. Johnstone requested  that she be permitted to work three set days a week,13 hours a day (with start time to be determined by employer). This arrangement would allow her to keep her full-time status and related benefits.    

On both occasions, the employer refused to accommodate Ms. Johnstone, citing the employer's unwritten policy that full-time employees seeking accommodation because of childcare responsibilities would have to switch to part-time status.  Also mentioned were health and safety concerns (such a long shift would cause the employee to be fatigued and incapable to performing at an optimum level).   No efforts were made to assess Ms. Johnstone's case on its individual merits. 

This unwritten policy, however,  was not applied universally; some employees with young children were accommodated without having to drop to half-time status. Moreover, employees who requested accommodation for religious or medical reasons were afforded accommodation without having to drop to half-time status. Finally, there were employees in the same position as Ms. Johnstone and in other areas, who had 13-hour shifts and to whom health and safety concerns did not seem to apply.

The Tribunal found that the senior managers who testified had not been sufficiently educated or trained in human rights matters and that their knowledge was therefore insufficient.

Arguments

The employer argued that family status meant "being related to someone", not "having childcare responsibilities".  It maintained that having children was a choice whereas being related to someone was not. Employees who chose to have children were not covered by the act, in its opinion. Even if family status was a human right, then it would be undue hardship to accommodate Ms. Johnstone because this would open the floodgates for massive numbers of employees requesting similar accommodation, which would put the employer's schedule into a state of chaos. Finally, it is unsafe for anyone to work 13-hour shifts; an officer's fatigue would negatively affect her ability to perform her job duties.  

Issues

  • Was there a prima facie case of discrimination on the basis of family status?
  • Did the Employer justify its discrimination against the employee as being a bona fide occupational requirement?

Decisions

  • Yes
  • No

Reasoning

  • The Tribunal used the definition of family status given in Brown (2003) according to which childcare responsibilities are a human right and employees exercising that right should not have to face discrimination at work.  It ruled that in this case, the Employer had imposed half time status upon a full-time employee, with resulting loss of pension and benefits and missed opportunities (training, promotions, special team participation, lower pay for overtime) for reasons of family status.
  • The employer failed to assess Ms Johnstone's case individually on its merits. Rather, it applied an unwritten and arbitrarily applied policy dealing with employees with childcare responsibilities that conflicted with the work schedule.  It accommodated some, but not all,  women with childcare responsibilities. Furthermore, it had a policy for accommodating employees with medical disabilities or religious obligations which prevented them from attending work.  Moreover, the Health and Safety concerns raised as a undue hardship argument were not persuasive, as many part-time employees in similar positions as Ms. Johnstone worked 13-hour shifts. 

Order

The Tribunal made three orders

Systemic remedy: Wages and benefits

Ms. Johnstone is to be compensated for her lost wages and benefits, including overtime pay at the full-time rate, and that she be able to contribute to her pension from January 2004 to present (not including the time she took off to do this case)

General Damages for pain and suffering

She is to be paid $15,000 for injury to her person, her confidence, her professional reputation for the arbitrary and insensitive way in which her case was handled by the employer 

Special Compensation

She is to be paid $20,000 in special compensation for willful and reckless conduct. This remedy addresses the fact that the employer, by "ignoring so many efforts both externally and internally to bring about change with respect to its family status policies of accommodation, has deliberately denied protection to those in need of it"

Parry Sound v OPSEU

Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local

324 (O.P.S.E.U.) [2003] 2 S.C.R. 157

Facts

Parry Sound v OPSEU is about a probationary employee fired shortly after taking maternity leave. She filed a grievance, and the issue was one of jurisdiction. The employer argued that she could not grieve the dismissal due to the collective agreement which held that probationary employees “may be discharged at the sole discretion of and for any reason satisfactory to the Employer and such action by the Employer is not subject to the grievance and arbitration procedures and does not constitute a difference between the parties.”

The Board of Arbitration ruled that it had jurisdiction to hear the case. The Court reversed the ruling of the Board, stating that the board can hear human rights complaints only if it had jurisdiction to hear a grievance, which in this case it did not.  The Court of Appeal reversed the ruling of the Court. Rather than stating that the Court was incorrect, it referred to the Employment Standards Act (ESA) which forbids employers from dismissing employees for pregnancy leave and states that the ESA is enforceable as if it were part of the collective agreement  

The SCC supported the ruling of the Court of Appeal but was split.

Issue

  • Does a Board of Arbitration have the jurisdiction to hear a discrimination complaint from a probationary employee who is otherwise unentitled to grieve termination?

Decision

  • Yes

Reasons

  • The majority ruled that the human rights code and other relevant statutes are written into every collective agreement and that Arbitrators have the jurisdiction to arbitrate claims arising from these statutes. The minority disagreed; it said that the Human Rights Code is NOT implicitly incorporated into all collective agreements, that  employers and unions have the right to define which employees and disputes are covered by a collective agreement and that this employee and her dispute were excluded from the grievance process explicitly by the collective agreement.  It said “absent legislative action, courts should not on their own initiative interfere with the terms of a collective agreement.”   
  • The majority ruled that the Court of Appeal properly raised the ESA argument; the minority said that this was improper because the Union/the complainant chose not to raise the issue.
  • The majority ruled that the complainant could grieve her human rights complaint through the grievance process.  The minority ruled that she could not - however, she was entitled to file a complaint with the Human Rights Commission.
Cavanaugh v. Sea to Sky Hotel

Cavanaugh v. Sea to Sky Hotel (No. 2) [2010] B.C.H.R.T.D. No. 209

Facts

Christan Cavanaugh was hired for the position of Banquet Manager at Sea to Sky Hotel in late November 2008, a job requiring long and unpredictable hours. At the job interview, she told her boss (the General Manager) that she had a one-year old child but that she had child care arrangements (third-party and family help) during the week and that the father took the baby on weekends.  

For the first three months, she was on probation. The employer had a number of concerns with her performance during this time, including dress code, demeanour, timeliness, all of which were raised with Cavanaugh informally. The General Manager asked the manager of the Beer and Wine store to provide Cavanaugh with informal training without letting her know that he had requested this intervention. After three months, management decided to continue to employ Cavanaugh despite her performance issues which, they hoped,  would likely improve over time.  

On March 1st, Cavanaugh organized a banquet at the hotel but left work to pick up her daughter in the middle of "take-down" and without first informing her superiors.  She had, however,  arranged for the Chef to do the take-down (clearing away tables etc...). After picking up her daughter and doing some grocery shopping, Cavanaugh returned to work to check on the take-down process. The General Manager found her in the kitchen, talking to the Chef and ordered her to do her job.  She complied.

On March 3rd, the General Manager had a meeting with Ms. Cavanaugh. He shared his concerns about leaving work without authorization and bringing a baby to work. He asked her why the child's father hadn't been taking take of the child that day (since it was a weekend night).  When she told him that her personal circumstances had changed, he demanded to know why she had not informed him.

On March 4th, Ms. Cavanaugh met with the General Manager again. This time, he questioned her ability to fulfill her job duties, which required 20-hour a day availability. Ms. Cavanaugh responded that her daughter was a priority for her, that she could not commit to 20-hour days, but that she had fulfilled her duties thus far and would continue to fulfill them in the future (in person or not).   After this meeting, the General Manager met with other managers to discuss the situation; everyone agreed that Cavanaugh was better suited to a part-time job with specified hours.

On March 8th,  Ms. Cavanaugh was terminated when she refused to accept "more suitable and specified part-time work" at the hotel.

Issues

  1. Did Ms. Cavanaugh's termination amount to prima facie discrimination?
  2. Did the employer establish a BFOR?

Decisions

  1. Yes
  2. No

Reasons

  1. The Tribunal used the following traditional three-part test for prima facie discrimination.  It found that Cavanaugh 1) established that she was a member of a group protected under the enumerated ground of family status; 2) that she experienced some adverse effect in her employment, in the form of termination and 3) that family status was a factor in the adverse treatment. Three facts made the third point clear 1) the Hotel continued to employ Cavanaugh after her probationary period (despite performance issues) which shows that the March 1st incident was key 2) the General Manager showed great concern about the change in child-care arrangements 3) requiring Cavanaugh to accept an alternative position with "more structured hours" and "less demanding work is consistent with the interpretation that the employer was concerned the single mother's childcare commitments required her to take on a less challenging role at work.
  2. The Respondent did not try to justify the discrimination; it simply denied that family status had anything to do with its decision to terminate Cavanaugh. Had it tried to justify the termination based on family status, it would have failed, ruled the tribunal, to meet the BFOR test because it had no proof that Cavanaugh could not fulfil her requirements and it made no attempt to accommodate her in the workplace.    
Communications

Communications, Energy and Paperworkers Union of Canada Local 722-M v. Global Communications Limited (Global Television News).

Facts

The applicant, Vicki Anderson, was an editor for Global Television News and a member of the Rocky Mountain Mystery School (RRMS), a religious organization. She had already arranged her summer holidays with Global when she was chosen by RMMS to participate in an important religious initiation ceremony which would bring her closer to God and elevate her status within the organization (allowing her to teach for money). The pilgrimage, as she called it, was set to take place in Japan outside Anderson's vacation time. The Third Step Ritual Master Initiation was, apparently, a once-in-a-life-time opportunity and it was therefore extremely important for to her to go to Japan at that time.   

Vicki approached her manager and told her that she had the opportunity to partake in a religious pilgrimage in Japan.  Rather than give specific information about her religion, her beliefs and the singular importance of this initiation, she tried to explain her religious requirements in terms she might understand, using an analogy to pilgrimages made by Muslims to the Mecca or the calling of catholic bishops to become cardinals.  She requested six additional days off work . Her request was denied because she had failed to request the time-off within the time limits set forth in the Collective Agreement and because all the other editors were taking pre-approved vacation at the same time she needed to go to Japan.   In frustration, Anderson told her manager that if Global forced her to chose between her job and her religion; she was going to have to quit her job.

Rather than filing a grievance, Vicki asked the Union to intervene formally on her behalf, which it did. In the meantime, she prayed for a miracle, which came (according to her) in the form of a sports injury to her wrist.  With her dominant hand in a cast, Anderson was unable to perform her editorial duties.  The modified duties proposed by her employer (answering phones) caused her intolerable levels of pain, and Anderson received a note from her family doctor advising the employer that she would not be returning to work until August 7th.

The end date of this medical leave coincided with the end date of the vacation time she had been denied. The employer was dissatisfied with the family doctor's note and required that Anderson to receive an independent medical assessment. The latter revealed that she would be able to perform limited physical tasks and unlimited mental tasks.  Therefore, the employer met with the union to set forth an accommodation package in which Anderson would return to work immediately to act as a coordinator ("traffic cop")  in the editing room, a job requiring no "hands-on" work.   The employer relayed these modified duties to the Union, who relayed them to the employee, who claimed not to understand them. The employer then instructed the employee to return to work and encouraged her to seek clarification on the modified job duties as required.  The employee, instead, wrote her manager to advise that she had elected to return to work on the date prescribed by her family doctor (i.e. Aug 7th). After asking a coworker to clean out her locker, as she foresaw that she was going to be fired, Anderson bought a ticket to Japan, travelled to Mount Fiji, and participated in the religious initiation. When she returned, she was terminated for three reasons: 1) she quit 2) she failed to return from medical leave without a valid excuse 2) she was insubordinate. In Arbitration, it claimed that the employer is not responsible for subsidizing the vocational training of religious leaders.

Issues

  1. Were the employer's reasons for termination valid?
  2. Did the employer accommodate the employee's disability?
  3. Did the employer accommodate the employee's religious requirements?
  4. Did the employee cooperate fully with the employer when asking for religious accommodation?

Decisions

  1. No
  2. Yes
  3. Yes
  4. Yes

Reasons

  1. Anderson clearly indicated to the employer, in writing, that she intended to return to work on the seventh. She was not given medical leave, so she could not have failed to return from it.  She was, however, insubordinate "from a disability perspective and in the absence of special circumstances" when she failed to return to work as ordered. (33) For example, she pretended not to understand her new traffic cop duties (even though they were well explained), she failed to come to work to assess whether she could or could not tolerate those duties and she failed to go back to her family doctor for a reassessment, relying instead on a letter written about the first set of modified duties (not the second).
  2. The employer made an individual assessment of her situation, took steps to gather independent medical advice, suggested modified duties that complied to the physical limitations set forth in that assessment and clearly explained those duties to the Union, who in turn explained them to the employee. 
  3. The arbitrator used a two-part test, gleaned from case-law, and composed of the following questions 1) Has religious freedom been triggered? (See note #1)  2) Was the employer's interference with the employee's religious freedom enough ("in a manner that is more than trivial or insubstantial") to constitute an infringement under the Charter?  The arbitrator found that the answer to both questions was yes. Moreover, the arbitrator found that if Anderson  had attended work as ordered, she would have missed out on a singular opportunity to practice her religion. The opportunity to become a Master would not present itself again in the future.  The work obligation was therefore a substantial infringement of her religious freedom (39)
  4. She was insubordinate "from a disability perspective and in the absence of special circumstances" (33) when she failed to return to work as ordered. For example, she pretended not to understand her new traffic cop duties (even though they were well explained), she failed to come to work to assess whether she could or could not tolerate those duties and she failed to go back to her family doctor for a reassessment, relying instead on a letter written about the first set of modified duties (not the second).The employee's refusal to cooperate in the accommodation process does not show that the employer failed to accommodate her disability.

Order

Given the employee’s failure to inform the employer about her religious belief or practice, including her failure to grieve its denial of her religious leave, and given her insubordinate manipulation of the disability issue in order to achieve her religious ends, the Arbitrator refused to order compensation. However, the Arbitrator ordered that Anderson’s termination be reversed.

Notes

  1. Thus, at this first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that 1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual's spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and 2) he or she is sincere in his or her belief. Only then will freedom of religion be triggered.
  2.  Having reviewed the evidence, I find it proved that Ms. Anderson sincerely believed in the practice that she undertook in Japan, namely the Third Step Ritual Master Initiation. This Initiation had a nexus with her religion, namely the RRMS. In May, when Ms. Anderson was informed that it was time to take the next step as a Third Step Ritual Master, she considered that offer to do this service for God as his representative on earth to be a great honour and privilege. This was something that she had been hoping for in making her commitment to God more devout. In her e-mail to Ms. Clark of May 29, Ms. Anderson wrote, in part, that: “This is a deeply profound pilgrimage that I must take.” Additionally, the actual Third Step Ritual Master Initiation that she undertook was consistent with what she wrote in her email. In its argument, the Employer referred to the information on the RMMS website that a Third Step Ritual Master never works for free, that one is prohibited to work for free and that Jesus took pay for his services in food, water, clothes and shelter. From the evidence, it was evident that there was a spiritual essence and sincerity in Ms Anderson’s undertaking of the Initiation, with its nexus to her religion. In that regard, there was no suggestion that she was motivated by any vocational or pecuniary consideration. Moreover, the possibility that Ms. Anderson may receive an undefined payment for potentially “working” as a Third Step Ritual Master does not otherwise transform the spiritual essence and sincerity of Ms. Anderson’s Initiation into something that is essentially vocational. In that regard, she was not engaged in the performance of a vocational duty on behalf of the RMMS at any material time.
Seneca College

In the matter of an arbitration between OPSEU and Seneca College (Grievance #2009-0561-0014) 2011.

Facts

OPSEU contends that Seneca College's Religious Accommodation Policy breaches the college's obligations under the Collective Agreement:

2.3 Ontario Human Rights

The parties agree that in accordance with the provisions of the Ontario Human Rights Code there shall be no discrimination against any employee by the Union or the College because of [...] creed [...]. Accommodation, if it is required by the employee and it is determined to be required, is the duty of the College, the Union and the employee.

12.2 Personal Leave with Pay

Recognizing the over-riding responsibility to the students, leave of absence will be scheduled where possible to ensure a minimum disruption to the educational programs and services of the College. Reasonable notice shall be given to the Supervisors concerned.

Leave of absence for personal reasons, religious leave and special leave in extenuating personal circumstances may be granted at the discretion of the College without loss of pay and such requests shall not be unreasonably denied.

At issue were the two following paragraphs from the Religious Accommodation Policy:

Paragraph 4:

Requests for leave of absence for religious observance will not be unreasonably denied. An employee will be provided with the following options in order to ensure that the employee has the opportunity to participate in religious observances and to avoid loss of pay.

  • make-up the time at a later date when the employee would not normally be scheduled to work and be paid at the employee's regular rate for the substituted shift/hours
  • subject to Collective Agreements and operational requirements, an employee could be scheduled to work on a Saturday or Sunday where these are not days when the employee is normally scheduled to work and the employee would be paid the regular rate for hours worked.
  • where operationally feasible, switch shifts/hours of work with another employee in the work unit.
  • Where possible, the employee's shift schedule could be modified and/or adjusted (e.g. compressed work week)
  • Use outstanding vacation day(s) or lieu time (where accrued) to be paid for the day(s) off for religious observance
  • Take a leave of absence without pay

The above options are general guidelines and other options may be considered on a case-by-case basis.

Paragraph 5

Where all options have been considered and reviewed by the College and the employee, and there is no reasonable alternative identified as operationally feasible, the College may approve a leave of absence of up to two paid scheduled days for religious observance to full-time and partial-load academic, and full-time support staff and administrative employees on an annual basis. Approvals for such leaves will take into account the College's commitment to its students and where there is a minimum of disruption to the educational programs, services and/or operational requirements of the College. For the purposes of this policy, the annual period is from September 1 to August 31.

Issues

  1. The Union contends that the Policy makes paid leave the last resort option to be considered by the College. Is this a legitimate concern?
  2. The Union contends that paragraph four violates Articles 2.3 and 12.2 as well as the Union's representational rights as bargaining agents. Is this true?
  3. What does "extenuating personal circumstances" mean in the context of Article 12.2?

Decisions

  1. Yes
  2. Yes
  3. See below

Reasoning

  1. Paid leave is not included in the list of potential accommodations provided in paragraph 4. This exclusion, coupled with the first sentence of paragraph 5 (supra), clearly makes paid religious leave contingent upon the exhaustion of the options listed in paragraph 4.  This constitutes "undue fettering of the College's qualified discretion under Article 12.2.".  
  2. While scheduling changes have been cited by recent decisions as providing "the fairest and most reasonable form of accommodation", those proposed in options 1 through 4 of paragraph 4 would involve waiving pay premiums and other requirements of the agreement. The Union is entitled to be present at all accommodation discussions involving the waiving of pay premiums and other agreement requirements. Option 5 is problematic because employers do not have the right to require employees to divert their vacation time/in lieu time to accommodate their own religious needs (they can, however, volunteer to do so). Finally, option 6 is problematic because, in contravention of the Code, it requires employees to accept adverse employment consequence in order to observe their religion.
  3. Article 12.2 contains the phrase "extenuating personal circumstances".  The Arbitrator ruled that this phrase applied to all terms, including religious leave. He ruled that "although the precise meaning of Extenuating personal circumstances" in the context of requests for religious leave under Article 12.2 will have to be determined for the most part on a case by case basis, we find it appropriate to indicate for the guidance of the parties that we are of the view that it includes considerations such as the employee's work schedule and whether it can be varied so as to permit the employee to make up earnings which would otherwise be lost due to time away from work for religious observance. If, for example,as in the circumstances of Commission scolaria regional de Chambly v. Bergebin, supra, the nature of the work performed by the employee does not permit such variances and the employee is denied religious leave without loss of pay, the College may well be found to have violated Article 12.2 of the Agreement by unreasonably denying that leave" (page 27).

Order

Amend the Policy...

1) To provide for Union involvement whenever the possibility of waiving a premium or other requirement of the Agreement is being considered in relation to a possible form of accommodation;

2) to add as an option paid religious leave, which will be available when all of the requirements of Article 12.2 (as described above) have been satisfied; and

3) to make it clear that taking an unpaid leave of absence without the opportunity to make up the lost earnings is the option of last resort, which is only to be used if none of the other options can be made available without imposing undue hardship on the College.

Emily Carasco and University of Windsor

Emily Carasco and University of Windsor, faculty of law, and Richard Moon Respondents Interim Decision 2010-06245-l  

The University submits, and I agree, that the appointment of a new Dean does not preclude the option of a remedial order instating the applicant to the position of Dean should the applicant succeed in her Application.

Facts

Emily Carasco is a law professor, and a woman of colour, who was one of two finalists for the position of dean at the Faculty of Law, University of Windsor in February 2010.  However, just before the committee made a decision, one of her colleagues came forth with allegations that the professor had engaged in plagiarism.  On April 14th, the Faculty was advised that the search committee had decided to hire neither of the two finalists.

On April 28th, the day of a Faculty meeting, Carasco's legal counsel advised the university legal counsel of Carasco's position: that the University not fill the position of dean until her claim of racial and gender discrimination had been settled and that a new search committee not be struck. At the meeting of April 28th, an interim dean was appointed and a new search committee was struck. On May 12, the university legal counsel advised Carasco's legal counsel that it was not prepared to postpone proceedings and that it welcomed it to file an application for interim remedy.

On July 14, the applicant applied for an interim order and on September 10th requested an interim order. Her request consists of the following points:

  • that she be appointed Interim Dean for a term of five years
  • that the University be ordered to suspend its search for a new dean

Her arguments were that allowing the University to hire a new dean at this point would..

  • prevent her from applying for the position when it next became available in another five to ten years because she would be too old
  • prevent the tribunal from being able to remedy the situation in an appropriate way (by making her dean) because there would already be another dean in place
  • allow the University to drag out its handling of her case

The University's arguments were that:

  • granting the applicant's request would bring undue prejudice to the Faculty of Law, impairing its ability to carry out its mission. By stopping the search for a new dean, the Faculty would be forced to hire a series of interim deans whose mandates would be only one year in length and whose duties would be greatly diminished, compared to those of a full-time dean.  This diminution of the dean's duties would impair the Faculty from  carrying out its academic mission, discourage donors and would rob students, staff and faculty members of a leader.
  • while it maintained that putting the applicant in the position of dean was an inappropriate measure, even if her application was acceptable, the University argued that the Tribunal did have the power to do so, even if the University had placed another person in the position of dean.
  • The applicant waited for months before filing her application. In that time, the University had spent considerable time, energy and money into searching for new dean candidates.  Granting the applicants interim request would seriously harm the University's reputation.

Issues

Should the Tribunal grant the request?

Decision

No

Reasons

The Tribunal applied rule 23.2 of the Tribunal's Rules of Procedure, relating to requests for interim remedies. This rule states:  

Rule 23.2

The Tribunal may grant an interim remedy where it is satisfied that:

  1. the Application appears to have merit;
  2. the balance of harm or convenience favours granting the interim remedy requested;
  3. it is just and appropriate in the circumstances to do so.

It answered each the of following question as follows:

a. Does the Application appear to have merit?

Yes.

The Tribunal assumed, without deciding,  that the application had merit.

b. Does the balance of harm or convenience favour granting the interim remedy requested?

No.

The Tribunal said that the university had much more to lose than the applicant. On the one hand, it acknowledged that granting the applicant's request would harm the University, stating "I accept that the detriment extends to the law school community as a whole, including its students, and that the interim orders sought will affect its ability to accomplish both short-term and long-term objectives, with potentially lasting impacts." On the other hand, it pointed out that while the applicant would suffer some degree of harm if the Tribunal failed to grant her request,  it is untrue that "she [would] be deprived of the opportunity to receive the remedy she [sought]". This is because the Tribunal does have the power to remove an incumbent from the position of dean and to place the applicant into that position following a finding of discrimination.  The Tribunal added that this remedy, while possible, is not necessarily the most appropriate choice. That would have to be determined.    

c. Is it just and appropriate in the circumstances to grant the interim remedy

No.

 For the same reasons stated above.  

Order

Request denied

Malec

Malec v. Conseil des Montagnais de Natashquan [2010] C.H.R.D. No. 2

Facts

A group of Innu teachers filed a complaint of discrimination against the Conseil des Montagnais de Natashquan claiming that non-Innu teachers were receiving benefits that were being denied to Innu teachers on the basis of race. These benefits included isolated post allowance, annual outing allowance and housing allowance. The benefits were outlined in a policy that was changed in 2007. 

Isolated Post Allowance

In the first policy, isolated post allowance was allocated to teachers with a certain level of educational attainment no matter where they lived in relation to the school.  No specification between resident and non-resident teachers was made in the policy, which did not specify that the benefit was meant to recruit teachers from outside the region.  In practice only non-Innu teachers received this benefit (there was only one exception; a non-Innu teacher who attained aboriginal status through mariage). In the 2007 policy, the language specifies that the isolate post allowance is meant only for non-resident teachers.

Annual Outing allowance

In both policies, annual outing allowance was allocated to teachers based on the distance they lived from Natashquan: only those living outside a 50 kilometer radius of Natashquan were eligible. The purpose is to help non-resident teachers, Innu or non-Innu,  return to their permanent residence three times a year.  The 2007 policy did not change the substance of the former policy.   

Housing allowance

In the former policy, a housing allowance of $450 was given to all its teachers. The 2007 policy restricts allocation of the housing allowance to non-residents; those living outside the 50-kilometer radius.  The purpose of this allowance is to help teachers from outside Natashquan for whom it is difficult to get adequate housing at a reasonable price. Almost all the complainants received some housing allowance, notwithstanding that they lived within the radius and did not have rents as high as $450.

Issues

  1. Did the complainants establish prima facie discrimination?
  2. Did the respondent provide a reasonable explanation for any discriminatory restriction?

Decisions

  1. Yes and No
  2. No

Reasons

  1. The Tribunal ruled that the complainants made out a prima facie case of racial discrimination only in the case of the isolated post allowance. The other two benefits were based on residency, not race. In fact Innu teachers were receiving those benefits (the Tribunal did not make a ruling on the legitimacy of resident teachers receiving housing allowance geared towards non-resident teachers).  However, in the case of the isolated post allowance, the Tribunal determined that the pre-2007 policy was discriminatory on its face whereas the 2007 policy was not. The former did not specify the eligibility criteria and, in practice, only non-Innu teachers received the allowance. The 2007 policy corrected the problem by specifying that non-residency (i.e. not race) was the criterion.   
  2. The respondent did not present any evidence to explain the criteria used to allocate isolated post allowance to non-Innu teachers exclusively.  Moreover, it stated that giving all teachers an isolated post allowance would cause the school board to sink into further financial crisis. It provided no facts to prove this; and the evidence was deemed to be "impressionistic".

Order

All complainants are to receive compensation for the years, up until 2007, that they should have received the allowance based on the wording of the old policy.

Tahmourpour vs. Attorney General of Canada

Tahmourpour vs. Attorney General of Canada 2010 FCA 192

Facts

The facts of this case in which the Tribunal found the RCMP responsible for discriminating against Ali Tahmourpour on the basis of race and religion are outlined HERE.

The Attorney General of Canada appealed the Tribunal's Case to Federal Court, where a judge found several errors in law in the Tribunal's reasoning and set the case back to the Tribunal for another hearing by a different member.  This is the appeal of the Federal Court's decision.

Issues

  1. Did the Tribunal err when it found that the RCMP had adversely discriminated against Tahmourpour when one of its training officers announced that that Tahmourmour was being allowed to wear religious jewellery contrary to RCMP policy?
  2. Did the Tribunal err when it accepted a report based on RCMP data that not been properly accepted into evidence?
  3. Did the Tribunal err when it relied a report based on other data that had been properly accepted into evidence?
  4. Did the Tribunal err when it concluded that Tahmourpour's poor performance was due, in part, to discriminatory treatment which impaired his ability to perform and to improve?
  5. Was it reasonable for the Tribunal not to cap the top-up compensatory damages for the complainant?

Decisions

  1. No
  2. No
  3. No
  4. No
  5. No

Reasons

  1. The Court of Appeal determined that the evidence supported a finding of adverse discrimination because the announcement resulted in Tahmourpour being treated differently by his troop mates that day and for several days following the incident. It ruled that the Federal Court was wrong to have found that the Tribunal erred in this respect. 
  2. The data in question here was compiled by the RCMP and analyzed in a RCMP report on attrition rates. Tahmourpour had the raw data (contained in the report) analyzed by his own team of experts. The Tribunal did not accept the RCMP report into evidence but did accept the complainant's expert report.  The Federal Court ruled that the Tribunal had erred.   The Court of Appeal determined that the "Tribunal is entitled to receive and accept any evidence as it sees fit, whether or not that evidence is or would be admissible in a court of law subject only to two exceptions that have no application in this case" (29)
  3. The data in question here were attrition rates of all racialized and non-racialized students from the year Tahmourpour was expelled permanently from the training program. The Federal Court agreed with the Attorney General that the data should have been limited to students in Tahmourpour's position, i.e. only those who had been expelled by the RCMP from the program and should have excluded those who had left for other reasons.  The Court of Appeal disagreed; it ruled that it was reasonable for the Tribunal to include the more inclusive data and to infer that this evidence provided some support for the complainant's claim of discrimination" given the statistical evidence and other evidence in the record [...]". (33)
  4. The Court of appeal ruled that three facts supported the Tribunal's ruling: 1) the fact that Tahmourpour had approached one of his evaluators to complain that the latter's abusive treatment was adversely affecting his performance, 2) the fact that Tahmourpour testified that he felt isolated, uncomfortable and vulnerable amongst his fellow cadets who made racist remarks that went uncorrected and 3) the fact that an instructor at the Dept testified that Boyer's abusive treatment of cadets targeted mostly, and most severely,  racialized cadets, which adversely affected their ability to perform. 
  5. The Tribunal's order was double. The first part ordered compensation for Tahmourpour for lost wages in the period from the termination to the conclusion of the hearing. The second part ordered a top-up compensation for Tahmourpour from the conclusion to the hearing until such time that he accepted or rejected an offer of readmittance.  The Federal Court agreed with the Federal Court that the second part of the order was not reasonable
Pieters v. Peel Law Association

Pieters v. Peel Law Association [2010] HRTO 2411.

Facts

The Peel Law Association runs the A. Grenville and William Davis courthouse in Brampton, Ontario.  The Association has a policy restricting access to certain areas of the courthouse, including its lounge and library. In these areas, only lawyers are permitted access; members of the public and paralegals are a not allowed in. To enforce this policy, copies of which are posted on the doors to the lounge/library, a certain number of librarians are authorized to ask unknown persons for identification. These librarians regularly screen persons in the library and lounge who are unknown to them.

On the date in question, the personal respondent (an employee authorized to enforce the access policy) was walking through the lounge on her way to the robing room to investigate a report of an unknown person. She deviated from this task when she saw three black men sitting in the lounge. She approached the men and asked them, one at a time, to state and then prove their professional status.  A heated argument ensued, in which Mr. Pieters, who had been in the middle of a phone call, announced to his caller that he was being subjected to an act of racial profiling. When asked by the complainants why she was asking them for ID, she stated that paralegals were not allowed in the lounge; when asked why she was targeting only black people, she falsely responded that she knew that everyone else in the lounge were lawyers.  Four persons who were unknown to the personal respondent and who had witnessed the interaction with the complainants all produced ID in anticipation that they, too, might be asked for it. The respondent was so shaken by the angry confrontation with the respondents that she did not confirm that their ID was credible. The Tribunal found that her approach was “aggressive”, “blunt”, “demanding”, “abrupt”, “offensive” and “demanding” and that the overall experience of the respondents was “demeaning”.

Following this conversation, the librarian accompanied Mr. Pieters to the courtroom in order to retrieve one of his business cards. Later that day, following a meeting in which the personal respondent made an incident report to the PLA Board of Directors, additional signage was posted in the areas around the lounge and library alerting persons to the admissibility policy.

The Respondents (PLA) argued that the librarian did not discriminate against the applicants because:

  1. She did not address Mr. Pieters, who was on the phone
  2. She was concerned that the applicants were the persons who had wrongfully re-arranged furniture earlier that day
  3. She routinely and legitimately questioned unknown persons in the lounge

 Issues

  1. “Based on the evidentiary findings set out above, is there a sufficient basis to conclude the applicants’ race and colour was a factor in the personal respondent’s decision to approach and question the applicants in the manner she did”?  [81]
  2. Were the applicants’ race and colour a factor in any of the respondents’ subsequent actions?” [81]

Decisions

  1. Yes
  2. No

Reasoning

  1.  The Tribunal used the following standards, taken from the Phipps v. Toronto Police Services Board [2009] to make its determination of racial discrimination:
  • The prohibited ground or grounds of discrimination need not be the sole or major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
  • There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent’s actions on the complainant;
  • The prohibited ground or grounds need not be the cause of the respondent’s discriminatory conduct; it is sufficient if they are a factor or operative element;
  • There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
  • Racial stereotyping will usually be the result of the subtle unconscious beliefs, biases and prejudices.

It also referred to the following words from the Nassiah v. Peel [2007] case:

 I find the racial profiling social science evidence is relevant because it speaks to, not just the initial decision to stop, detain, pursue an investigation, but also supports the general phenomenon that the scrutiny applied to the subsequent investigation is different, more heightened, more suspicious, if the suspect is Black. The stereotyping phenomenon is the same, whether it manifests itself in the discretion to stop/arrest/detain a person in part because they are Black, or whether it manifests itself in the form of greater suspicion, scrutiny, investigation in whole or part because a suspect is Black.

Lack of a persuasive non-discriminatory reason

The Tribunal found that the applicants had made a prima facie case of discrimination: the personal respondent singled out and aggressively questioned three black men and not other unknown persons. The PLA's arguments in defense of the personal respondent were either incorrect (the respondent did speak to Mr. Pieters), or unsupported (the librarian never testified that she linked the respondents with the persons who had re-arranged furniture) or untenable (if the librarian was on the way to a different room to investigate another unknown persons report then why did she stop to speak to the three respondents)?  Furthermore, the explanation provided by the personal respondent (she knew everyone else in the room to be lawyers) was shown to be false (there were at least three other unknown persons in the lounge). The Tribunal stated that it was "the lack of a persuasive non-discriminatory reason for the questioning of the applicants provided either at the time of the incident or at the hearing leads me to conclude that the personal respondent's decision to question the applicants was indeed tainted by considerations of their race and colour". (90).

Manner in which the questioning took place

The Tribunal found that "the way in which the personal applicant approached the applicants and the blunt and demanding manner in which she asked her questions was not how she would approach and question persons that she imagined were lawyers and had a right to be in the lounge, and [it] was prepared to draw the inference that the way in which she interacted with the applicants was tainted by consideration of their race and colour". (91)

2. The subsequent actions (following Mr. Pieters to the courtroom in order to get his business card and posting additional signage re. the admissions policy) were ruled to be non-discriminatory because the respondents provided persuasive non-discriminatory reasons for each one.  In the first case, the librarian was eager to determine Mr. Pieters' identification because she was worried about the incident that had just happened, especially about the accusations of racial profiling, and knew she would have to report what had happened to the Board of Directors, which would want to know Pieters' professional status. Secondly, the PLA argued that it posted additional signage after the incident in order to alert more people to the admissions policy so they would be aware they might be questioned and asked for ID.

Order

Both the personal respondent (the librarian) and the corporate respondent (PLA)  were ordered to pay $2000 to each of the applicants "for violation of their inherent right to be free from discrimination and for injury to their dignity, feelings and self-respect".

McKinnon v Ontario

McKinnon v Ontario (Ministry of Correctional Services) OHRT, 2011

Procedural History

In 1979, the Respondent, the Ministry of Correctional Services, hired the complainant, an Aboriginal man named 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. One of the orders was to create a division within Corrections to deal with harassment and racism within the organization. Another made the Deputy minister ultimately responsible for the implementation of the orders and for the disclosure of relevant information/documentation about the Division to the parties.

When the Ministry allegedly failed to implement various orders by 2009, the complainant returned to the Tribunal in 2009.  The Tribunal made two express orders, in April and July 2009, requiring the Ministry to produce all relevant information/documentation.  In June 2010, upon discovering that the Ministry had been allegedly misleading the Tribunal and withholding a key document, McKinnon requested that the Tribunal file a prima facie case of contempt against the Ministry and Deputy Minister Hope. While the Tribunal acknowledged that it was impossible to find the crown or the ministry in contempt of court, it did proceed with a prima facie case against Deputy Minister Hope.

Facts

Over a period of five days, the ADM of the Ministry's Operational Effectiveness Division testified on behalf of the Ministry, giving glowing reviews of the OED, which had been created in accordance with the 2007 Orders in the goal of eradiacting racism and harassment in the Ministry of Corrections. After two days of cross-examination, however, it became clear that the Tribunal had been mislead;  there were, in fact, serious issues of racism, bullying and mismanagement within the OED.  The Tribunal learned that an investigation had been conducted following a series of anonymous emails from staff members within the OED; that the ADM who had been testifying so positively about the OED had, in fact,  been recently stripped of his powers (and was subsequently terminated after the second day of cross-examination); and replaced by a team of police officers charged with straightening out the dysfunctional OED.  It also came to light that an internal report (Operational Review) had been submitted to the Deputy Minister who had failed to disclose the document to the complainant, the Tribunal or its own counsel. 

The Deputy Minister, who was ordered to appear before the Tribunal, admitted that he was aware of the 2007 orders - which were clear and unambiguous - and that he was aware that those orders gave him personal responsibility for the implementation of the orders and for keeping McKinnon informed about the operations of the OED.   He admitted that the Operational Review was a highly relevant document.  The Deputy Minister defended his non-disclosure of the document, arguing saying that he would have disclosed, in good faith,  the document to McKinnon had McKinnon asked him for a copy and, that he had, in fact, disclosed the document as soon as the Tribunal ordered him to. 

Issues

  • Can the Tribunal state a prima facie case of contempt of court against Deputy Minister Hope for failing to disclose the Operational Review in a timely manner?

Ruling

  •  Yes  

Reasoning

In order to find a person in contempt of court, the tribunal determined that it needed to meet three tests. The first was to determine whether the evidence showed that a person breached section 13 of the Statutory Powers Procedures Act (SPPA). Then, it had to determine whether the orders that the person breached were clear and unambiguous. Finally, it had to show that the person purposefully breached those orders. Section 13 of the SPPA reads as follows:

Where any person without lawful excuse,

(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or

(b) being in attendance as a witness at an oral hearing or otherwise participating as a witness at an electronic hearing, refuses to take an oath or to make an affirmation legally required by the tribunal to be taken or made, or to produce any document or thing in his or her power or control legally required by the tribunal to be produced by him or her or to answer any question to which the tribunal may legally require an answer; or

(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,

 the tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court. R.S.O. 1990, c. S.22, s. 13; 1994, c. 27, s. 56 (27).

The Tribunal ruled that the Deputy Minister had breached part c of section 13 of the SPPA when it failed to disclose information about the OED to McKinnon in a timely manner.   The Tribunal determined that the deputy minister was not personally responsible for the disclosure orders given in 2009; those were addressed to the Ministry (which is immune from contempt charges). Furthermore, the Tribunal ruled that it would be inappropriate to find the deputy minister in contempt for failure to comply with past orders of 2002 and 2007. However, the Deputy Minister could not just "wash his hands" of the matter.   The 2007 orders made the deputy minister personally responsible for implementing the orders and for keeping McKinnon informed about the situation of the OED. This last direct order was clear and unambiguous.  Deputy Minister Hope testified that he was aware of its existence and how it placed ultimate responsibility upon his shoulders. It is this order that the Deputy Minister breached in a deliberate and willful way; his claim that he would have disclosed the information to McKinnon had the complainant asked for it was, in the words of Hubbard, "devious", because it was impossible for McKinnon to ask for something of which he had no knowledge.   The argument that the Deputy Minister did, in fact, disclose all relevant information was dismissed; it is the timely disclosure of relevant information which is required.

Frolov

Frolov v. Mosregion Investment Corp [2010] O.H.R.T.D. No 1808

Mr. Bakouchev's responses demonstrate a complete lack of understanding of the seriousness of sexual harassment complaints and the legal obligations placed on the employer that receives such a complaint to proceed promptly with an investigation before drawing any conclusions about the validity of the complaint.

The perception of neutrality and lack of bias to both a complainant an an alleged harasser are key components in an investigation 98

Facts

The applicant, Mr. Frolov, is a employee who worked for small company based in Ontario.  Within 18 working days, Frolov submitted three written complaints of sexual harassment and solicitation to his boss Mr. Bakouchev.  Each requested an investigation as per company policy and demanded accommodation in the workplace (i.e. the termination of the supervisory relationship and the separation of the parties).  Bakouchev's response to the first two complaints was one of disbelief; he simply could not believe that a young woman would/could sexually harass her male superior. He claimed that he researched case law and found no recorded cases of such harassment, but provided no evidence of this research.  Rather than conduct an investigation, he responded to the complaints by telling the Frolov to enjoy the attention and to quit complaining/exaggerating. Upon receiving the third complaint, which contained an email sent to the male complainant from the female coworker, the employer finally commenced an investigation.  However, his investigation concentrated, at least initially, on allegations of sexual harassment made by the coworker in her email to her superior (the complainant).  For example, his letter to the alleged harasser, and his subsequent questioning of other employees,  inquired (directly or indirectly)  whether the alleged perpetrator of sexual harassment had been the victim of sexual harassment.  After two months, Bakouchev came to the conclusion that Frolov had been telling the truth.  He did not, however, communicate this finding to Frolov, who filed an application with the Tribunal.

Issue

  1.  Can a tribunal make a ruling on an employer's duty to investigate an allegation of sexual harassment when there is no ruling on the sexual harassment.
  2. Did the employer fail to follow its own anti-harassment policy?
  3. Did the employer fail to take the applicant's concerns seriously?
  4. Did the employer fail to commence the investigation in a timely manner?
  5. Did the investigation initially suggest that the coworker was the victim rather than the perpetrator of sexual harassment?
  6. Did the employer communicate the findings of the investigation to the complainant ?
  7. Did the investigation constitute discrimination on the basis of sex?

Decisions

  1. Yes
  2. No
  3. No
  4. No
  5. Yes
  6. No
  7. Yes

Reasons

  1. There is no need to determine whether or not sexual harassment has occurred in order to determine whether the employer has fulfilled its duty to investigate an allegation of sexual harassment.  The Tribunal relied on Nelson. v. Lakehead, 2008 HRTO 41 (CanLII).
  2. Yes; contrary to its own policy, the employee did not forward copies of the complainant's letters to the respondent; it filed to appoint a mediator and it did not take steps to ensure that the complainant and respondent worked in separate offices.
  3. Yes; an employer has an obligation to act promptly on all complaints of sexual harassment, even if it does not believe the complainant.  Mr. Bakouchev thought the complaints were some kind of a joke and his response was to tempt to persuade the complainant to be serious, not to exaggerate, to stop complaining, to be reasonable, to enjoy the attention, to be nice to the respondent.  Ignorance of his duty to investigate does not excuse him from failing to take the complaints seriously.
  4. Even though the employer started an investigation within 18 working days, in this case the delay was deemed to be unreasonable, given the smallness of the office space, the proximity of the complainant and the respondent within the working space, the relationship of subordination between the parties, the repeated written requests for an investigation, and the failure to respond before the third complaint. 
  5. When the employer finally took action, his response was inappropriate; he sent a letter to the alleged harasser asking if she had been the victim of sexual harassment. His questions to his employees did not mention the allegations made by the complainant, but sometimes alluded to those made by the respondent. This shows that the employer was not neutral in his investigation.
  6. While the employer concluded that the complaint was valid by the end of September or beginning of October, it did not communicate that conclusion to Frolov. The only way in which in which this information was communicated was in the context of the Tribunal hearing, in which Bakouchev did not dispute the fact that Frolov had been sexually harassment. This is insufficient.
  7. The employer's approach was based on the sexist belief that older men sexually harass younger women and not vice versa. This discriminated against the complainant on the basis of sex.

The tribunal relied on the three-part test for determining the duty to investigate as it is outlined in Laskowska

  1. Awareness of issues of discrimination/harassment. Policy Complaint mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;  
  2. Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act?; and  
  3. Resolution of the Complaint including the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide him/her with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?
  4. Flexibility: While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness not correctness or perfection. There may have been several options - all reasonable -  open to the employer. The employer need not satisfy each elements in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgement on whether the employer acted reasonably.

Order

The Tribunal relied on the following considerations outlined in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.):

The Divisional court... recently confirmed that an award to compensate for the experience of victimization is predicated upon a number of considerations, including: the impact of the infringement, the duration, frequency and intensity of the offensive conduct; the vulnerability of the complainant; the objections to the offensive conduct; and knowledge that the conduct was unwelcome. (104)

It decided that the victim, who strenuously objected to the offensive conduct with no satisfactory response from the employer, should receive $7500. It  also ordered the employer to have its sexual harassment policy reviewed by an expert and to take the Commission's training module "Human Rights 101". 

Ford v. Nipissing University

Ford v. Nipissing University. Ontario Human Rights Tribunal, January 2011.

The respondent University met its duty to provide a safe work environment, The respondent acted promptly to the incident of sexual harassment, but failed to remain diligent in pursuit of the matter. There were serious breakdowns in communication linkages within the University. Policies and Procedures were inadequate to deal with the offensive and threatening email. I find that, in responding to the harassment, the University met its substantive obligations under the Cope. However, because after its initial response, the University failed to remain diligent in pursuing the matter and because of the failure to sustain communications with the applicant, I find that the University did not meet its procedural obligations under the Code."72-73

Facts

On Friday, March 31, 2006, an Assistant professor at Nipissing received an email sent from an account named dianneslover@hotmail.com whose subject was "Hey Babe". The author of the email identified himself as Dr. Ford's "stalker". The contents of the email were threatening and so offensive that the Tribunal chose not to quote them in its decision. The professors, who was seven months pregnant, was angry, embarrassed and afraid. 

Notification of the harassment

Dr. Ford's husband sent a copy of the email to several members of senior administration on Friday and Dr. Ford wrote a follow-up email stating that she suspected one of her students wrote the email because she had previously received an email from a student who had used the expression "hey babe".   She stated that she did not believe that the suspected stalker was in her first class on Monday. Dr. Chase, Vice President Academics and Research, responded to Dr. Ford's message on Saturday, acknowledging the seriousness of the offence ( "this incident is extremely serious and needs to be treated as such"), offering to attend her first class on Monday and asking her to identify any further safety measures she might require. Dr. Ford's husband responded to Dr. Chase's email, suggesting that campus security accompany Dr. Ford to her Monday class and asking that police be notified of the incident. Dr. Ford then emailed to thank Dr. Chase for his support, to reiterate the requests made by her husband and to request that Campus Security attend her upcoming classes on Tuesday and Thursday. Dr. Chase emailed colleagues to discuss the appropriateness of these requests.

Meeting with Security Services

A meeting was set up for 8:00 Monday with Security Services. At this meeting, Dr. Ford (accompanied by her husband and several members of administration) was informed that Security Services did not have the resources to have an officer sit in on her classes. Furthermore, they did not think the matter was very serious; in their opinion, Dr. Ford probably did not require further assistance. Mr. Guy (a member Security Services) testified that it was his goal to console Dr. Ford when he said something to the effect of: "If it makes you feel any better, this isn't the worst case we've seen".  This statement did not reassure Dr. Ford; rather she felt belittled and offended by it.  The Tribunal found that Security Services failed to console the applicant, and added that this was probably due to the lack of training in how to deal sensitively with victims of sexual harassment.

The professor subsequently declined the offer to be escorted to her 8:30 class because her husband was with her and declined the Dr. Chase's offer to sit in on class because she felt it would be disruptive to the students. Following this meeting, Dr. Ford's husband complained to senior administration about his dissatisfaction with his wife's treatment by Security Services. In response, Dean Vanderlee, offered to sit in on Dr. Ford's classes and to escort her to class. The husband declined both offers on behalf of his wife.

Efforts to identify the Sender of the Email

On the same morning as the meeting with Security Services, Dr. Vanderlee sent a copy of the email to Technology Services (TS), asking them to conduct an investigation in order to identify the sender. By noon, TS had communicated its findings to the University and Dr. Ford. It had determined that the email had been sent from a public computer at the university library. No data could be retrieved from the computer as it was designed to shed all transient data at the end of every day. Furthermore, no computer logs were kept, no security cameras were in place and no librarians reported seeing any suspicious behaviour at the time. After contacting MSN Hotmail, TS advised the University that MSN Hotmail's Privacy Policy precluded them from revealing the identity of the user and it would probably not be able to shut down the user's account because the offensive email would probably not offend that company's User agreement. A subsequent email sent out by TS indicated that they might have stumbled upon the identity of the user. In response, Dr. Ford requested not to know the name of the person, but only to know if he/she was registered in one of her classes. If yes, she wanted someone to sit in on her classes (she suggested that Jack Jones, a person that often sat in on teachers' classes to provide feedback, would be appropriate). Finally, the professor refused to divulge the name of the student she suspected of sending the email. Security began interviewing students in her classes late that week.   

Invigilation of Examinations

Two weeks later, on April 13th 2006, Dr. Ford was required to invigilate, alone and in an isolated area, a final exam for the class in which she thought her suspected stalker was registered. She was terrified.  The night after the exam, she was hospitalized and gave birth to a premature son. She testified that both her obstetrician and midwife told her that the stress from having to invigilate the exam under the stress of the unresolved harassment case caused her to go into early labour. Neither testified at the hearing. Unfortunately, she had no direct evidence to prove this and the Tribunal could not accept her argument on the balance of probabilities. 

Resignation and Exit Interview

Shortly after the final exams, on April 24 2006, Dr. Ford resigned her employment at the University. In her letter of resignation, she thanked Dr. Vanderlee for his support and leadership, stating that he had gone "above and beyond the call of duty" to ensure her safety  and encouraged him to continue to investigate the email. In the exit interview questionnaire, Dr. Ford acknowledged that the harassing email, though not a "primary reason for leaving", was a factor in her decision to leave Nipissing for another University.   She noted, however, that had she not found another job, she would have probably quit over the incident. In conclusion she wrote that she was "Still considering legal and/or union action pending the outcome of the President's actions to ensure this doesn't happen to another faculty member".

Discussions with President 

 In June, after a meeting with Dr. Ford, the president of Nipissing offered to look into the investigation and to provide feedback to the applicant. He requested that senior administration create a report on steps taken thus far. He testified at the hearing that he was satisfied with that report. He failed, however, to get back to Dr. Ford.

Resolution

The University was unable to identify the sender of the email and initiate complaint procedures.  It closed its investigation.

Request for feedback on Women's safety initiatives

In October 2006, the applicant responded to a general call for suggestions for initiatives dealing with women's safety on campus. She indicated that she was dissatisfied with the University's response to the offensive email.  She went on to accuse the University of neglecting to ensure her safety, of belittling her experience (the Security Services response), of "turning a blind eye to the offender" and of failing to protect her safety to the point of causing her to give birth prematurely.

Complaint filed with the Commission  

The complainant provided medical documentation showing that she had been traumatized by the events arising from the offensive email (post traumatic stress disorder) and would require ongoing psychotherapy.

Issues

  1. Did the applicant experience discrimination and harassment in her employment on the basis of sex contrary to the Code?
  2. Did the University meet its substantive obligations under the Code by appropriately responding to the harassment?
  3. Did the University meet its procedural obligations under the Code by appropriately investigating and responding to the applicants complaint ?

Decisions

  1. Yes
  2. Yes
  3. No

Reasons

  1. Both parties agree that the email constituted harassment 
  2. To assess issues 2 and 3, the tribunal used the test outlined in Laskowska v Marineland (2005) HRTO 30 using the following questions:

Did the employer meet its obligation to provide a healthy work environment? YES

The standard is not the best solution or the solution most desired by the applicant, but a reasonable solution. The University met this standard, according to the Tribunal, when the dean offered to attend Dr. Ford's classes and when Security Services provided her with a security services business card, a personal alarm and a cell phone.  The University was not obligated to provide the applicant with her preferred solution, i.e. the presence of a plain-clothed officer in her classroom. A mitigating factor was the applicant's refusal to provide the name of the student she suspected of sending the email. Had she cooperated with Security Services, the University could have interviewed the student and determined if he/she was responsible.

 Did management communicate its actions to the applicant in a reasonable manner.  NO

The Tribunal found that although Technical Security transmitted its findings promptly and effectively, Security Services and Administration "should have maintained closer contact with the applicant, and [...] remained vigilant in close proximity to the applicant." (para 63).  In the first few days, communications were effective and prompt; after which they "slowed to the point where the applicant was not being adequately informed on the investigation and measures taken to respond to the harassment." (63).  The tribunal stated that the following facts proved that communications between the university and the applicant broke down: 1) "The University Administration often communicated with the applicant's husband rather than with the applicant directly. While the applicant's husband attended the initial meeting at Security Services with her and participated in group emails, there is no indication that she made him her representative. In considering whether the respondents adequately communicated their actions to the applicant, I cannot find that communicating information about the investigation to the applicant's husband was reasonable in the circumstances" (64) 2) The University Administration should have also updated the applicant as to their findings or whether the file was closed when she requested this in her exit interview submissions"  (65)

Was the respondent prompt in dealing with the harassment complaint? YES

Administration dealt promptly in the days following the notification: on Saturday (following the notification of the harassment), on Sunday (in response to emails from the applicant) and on  Monday (following the Security Services meeting). The tribunal decision mentioned several times that the immediate response of administration was both prompt and that it showed concern.

Was the issue dealt with seriously? YES and NO

Dr. Chase's comments immediately upon reception of the complaint show that he acknowledged the seriousness of the issue. However, neither Security Services nor Senior Administration failed to show much concern about the issue as communications broke down after the first few days of the investigation. Was there an awareness by the employer that sexual harassment is prohibited conduct?

Was there an awareness by the employer that sexual harassment is prohibited conduct? YES and NO

While the employer was aware that sexual harassment was prohibited conduct, it fell short of meeting this standard because "awareness and training of how to respond with empathy to the issue of on campus harassment and intimidation was lacking. As noted, Campus Security Services attempted to responded with sensitivity to the circumstances, but failed.  There had been no training given by the employer in how to respond to the potential emotional outcomes of sexual harassment and/or threats of sexual assault. There was also no indication of a comprehensive plan or protocol for investigation in such circumstances."69  

Did the employer demonstrate that there is a complaint mechanism in place? YES, however...

Yes, but it was inadequate because the complaint procedure could only be triggered once a respondent was identified. As the university could not identify the respondent in this case (the sender of the email), the "complaint procedure remained dormant". (71) The consequences were 1) this closed a potential investigation to the applicant and 2) it also precluded policy review that may have been able to precipitate changes that could have benefited men and women who may have encountered similarly vexatious comments in the future.

Remedy

Nipissing was required to

  1. pay to the applicant $8000.00 as monetary compensation for the loss arising out of the infringement of the Code;
  2. pay to the applicant $1950,000 for ongoing counselling and psychotherapy;
  3. pre-judgement interest and post-judgement interest
  4. review its policies and procedures related to sexual harassment and ensure that they are in full compliance with human rights principles and Code provisions.