Board of Inquiry Found Ministry of the Solicitor General and Correctional Services Guilty of Racial Discrimination Contrary to the Ontario Human Rights Code
by David Wright, B.A., LL. B.
edited by Selwyn Pieters, B.A.
(published in Your Ideas, Newsletter of OPSEU Region 5 Human Rights Committee, Volume 6, Issue 2, August 1998, pages 4 - 6)
Ontario v. McKinnon December 14, 2004.
Ministry on racism rap Toronto Star (December 06, 2002)
Ruling slams Corrections ministry for not cleaning up "racially poisoned" workplace OPSEU (December 04, 2002)
Michael McKinnon’s human rights complaint against the Ministry of Correctional Services took fourteen years and hundred of thousands of dollars before it was determined by an independent Board of Inquiry to be well-founded. Well the Government has fought that decision and lost everytime including today at the Court of Appeal. The Ministy's appeal was dismissed, in an unanymous four-page decision, with costs to the Mr. McKinnon fixed at $20,000 and to the Commission at $10,000, inclusive of GST and disbursements. The Court stated: "In terms of the scope of jurisdiction, again we affirm the reasons of the Divisional Court and note particularly its comments at para. 21 'We are confronted in this appeal with a unique situation in which outrageous discrimination continued unabated for a period of approximately fifteen years and in which the Tribunal’s original remedies appear to have been at least in part, subverted'." A real David vs. Goliath situation. As Mr. McKinnon stated "Time for Kwinter to clean house at the senior levels of this ministry. It will not happen but what a breath of fresh air, it would be for all peoples."
The Complainant Michael McKinnon, a person of native Canadian ancestry, has been employed as a Correctional Officer with the Respondent Ministry at the Metropolitan Toronto East Detention Centre (the "Centre") since December 1977.
He first filed a complaint on November 29, 1988 alleging that he had been the subject of discrimination and harassment in the workplace, because of race, ancestry and and ethnic origin, [in contavention of s. 5(1) and(2) and s.9 of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19]. A second complaint was filed on June 28, 1990 alleging further incidents of discrimination and harassment and also alleging that the complainant had suffered reprisals and retaliation as a result of the filing the first complaint.
The Complainant brought his complaints against the Ministry of Corrections and against four individual respondents [Messrs Frank Geswaldo, George Simpson, Phil James and Jim Hume], each of whom was a manager at the Centre.
The Board of Inquiry in McKinnon v. Ontario (Min. Of Correctional Services) (No.3) (1998), 32 C.H.R.R. D/1 concluded that "the facts... clearly establish that the Complainant suffered harassment, reprisal and discrimination at the hands of the Respondents" (p. 149).
The Board of Inquiry found that the Complainant is a "very good" to "excellent" Correctional Officer who is "dedicated, conscientious and meticulous in his work" (p. 3) and who has throughout his employment been subjected to racial name calling "that persisted in a climate that was redolent with racist behavior, particularly towards black employees and inmates" (p. 149).
Among the racial slurs faced by the Complainant was "Chief", "Wagon Burner", "Tomahawk", "Running Bear", "Crazy Horse", and "Big Canoe". The Complainant experienced co-workers wearing headbands with feathers (which had been distributed by the Respondent Geswaldo) greeting him with "war whoops, dancing and laughter" (p. 24). He found himself being compared to an intoxicated elderly native inmate being checked into the institution by the Respondent James (pp. 48-52). It was suggested behind his back that he would "be out to scalp co-workers" (p. 138. Unflattering cartoons depicting the complainant were posted in the institution. (p. 9).
The Board found that other employees faced similar racist behavior and name calling. Officers were called names such as "Chink", Nigger", "Paki", "Wop", "Filipino Dog Eater". A disabled officer was told by a co-worker that "we may still invite you to join the Aryan Brotherhood despite your obvious disability" (p. 147). A black officer on his first day of work was greeted with the observation "you mean another fuckin' nigger" (p. 143). Another black officer found his locker covered in toothpaste and the words "nigger", "goof" and "rat" writtenon it. The same office, at the time of the June 1992 Yonge Street riot was told "they should shoot more niggers, maybe they'll learn" (p. 145).
At first the Complainant did not voice objection to these names and events because he "felt he had to go with the flow" and try to mix in" (p. 21). Finally when his supervisor, the Respondent Geswaldo, asked the Complainant in a demeaning way if he was having "a pow wow" the complainant objected and was met with the response, "are you a fucking Indian" and laughter (pp. 24-25).
This led the Complainant to bring his concerns to senior managers. From this point forward, the Board found that the Complainant was subjected to "acts of direct and indirect reprisal for having complained about" racist activity (p. 150) and management failed to "take appropriate and timely measures to deal with the conduct complained of by the Complainant" (p. 150).
Among the reprisals faced by the Complainant were: being subjected to a series of harassing action by the respondents Geswaldo and James (who also directed harassment at the Complainant's spouse, a Correctional Officer at thge Centre); being removed from a preferred post in the admitting and discharge area as the result of a common error regularly committed by others by the Respondent Deputy Superintendent Hume (pp. 61-63); being subjected to a "flagrant abuse of authority" by the respondent Hume (p. 85) when cross-examined by Hume about matters relating to the human rights case to which Hume was naemed as a respondent; and being assigned as a punishment, by the respondent Superintent George Simpson (as he then was), to an unpopular post for a period of 3 or 4 months and thereby subjected to ridicule within the institution (pp. 92-95) accompanied by "grossly disparaging memorandum [from Simpson] suggesting that he [the Complainant] is mentally unstable and ought to consider seeking employment elsewhere" (p. 95), all because the Complainant had raised and reported a legitimate safety and security issue.
Perhaps the most serious reprisal was denying the Complainant and his spouse a promotion to the position of Sergeant in March of 1989. While the file for the competition had mysteriously disappeared after the investigation of the Human Rights Complaint began, the Board was still able to conclude that:
"the results of the competition were tampered with and that, there being no other credible explanation, it must have been done in order to deny the McKinnons promotions to that rank as reprisal against the Complainant for his agressive pursuit of various grievances, including his human rights complaints... While confident in my findings that the competition results were interfered with and that both Mr. Simpson and Mr. Hume harboured, and indeed expressed, the view that neither of the McKinnons would get anywhere in the institution as long as the Complainant pursued his human rights claims, the evidence does not point unequivovally at which of them was the person who carried out the tampering, or whether it was done by them (or at their behest) jointly" (p. 162)
The Board of Inquiry concluded that "the workplace environment of the centre was poisoned by racial harassment and discrimination, and that such sporadic efforts as were undertaken to address it were inadequate and often begrudged" and that request for action were "viewed with suspicion and either ignored, mishandled or met with undued delay" (p. 154).
As a result of these findings, the Board found that the individual respondents Geswaldo, James and Hume had harassed and discriminated against the Complainant and that the Respondent Geswaldo, Hume and Simpson had engaged in reprisals against the complainant. Since each of these respondents was a manager, the Board found the Ministry to be vicariously liable for the acts of the individual respondents.
The Board also found the Ministry to be directly liable for permitting a poisoned work environment to exist at the Centre and to be vicariously liable for whichever of its employees was responsible for the tampering with the competition file leading to the improper denial of promotions to the complainant and his spouse.
In remedy for these violations of the complainant's rights under the Ontario Human Rights Code the Board made the following orders:
1. Payments totalling $20 000.00 from the various respondents as damages from the mental anguish suffered by the Complainant;2. Compensation for the Complainant for loss of salary resulting from the Complainant being on sick leave for various periods of time as a result of the work related stress caused to the Complainant by the respondents actions;
3. Promotion to the rank of OM16 (Captain) for each of the Complainant and his spouse, if they wish to accept such promotion, and compensation for th difference in wages between what the Complainant and his spouse actually earned and what they would have earned had they been properly promoted in March 1989;
4. Relocation of the Respondent Geswaldo and ensuring that neither Geswaldo or James work in the same institution as the complainant at any future time;
5. A clearing of the personnel files of the Complainant and his spouse;
6. A reading of these orders at parade at the Centre for 5 consecutive days, the attachment of a copy of these orders to the pay stub of each employee of the Centre and the publishing of a copy of these orders in the Ministry's newsletter; and
7. That the Ministry, at its own expense, establish and conduct within six months a human rights training program at the centre acceptable to the Human Rights Commission.
David Wright is a founding member of the law firm Ryder Wright Blair and Doyle in Toronto, Ontario. He is a senior partner in the Firm. David is an experienced negotiator and counsel before the Crown Employees Grievance Settlement Board, Ontario Labour Relations Board, Board of Inquiry and arbitration panels. David is the author of Labour Relations Board Remedies in Canada.
|| Ontario v. McKinnon, ONSCDC 763-02 (2003-03-14)| McKinnon v. Ontario (Min. Of Correctional Services) (No.3) (1998), 32 C.H.R.R. D/1 (Ont. Bd. Inq.)| McKinnon v. Ontario (Min. Of Correctional Services) (No.4) (1999),35 C.H.R.R.(Ont. Bd. Inq.) | Divisional Court Dismissed Ministry of Correctional Services Application for Judicial Review March 20, 2001| Prison guard can take Ontario Correctional Services back to human rights adjudicator March 26, 2001| Divisional Court Dismissed Ministry of the Solicitor General and Correctional Services Appeal of the McKinnon Decision by Selwyn Pieters, February 02, 2000| Jail was `poisoned' by racism, panel says Toronto Star, May 07, 1998 | Ministry of the Solicitor General and Correctional Services is in a Rut | Ontario Human Rights Commission homepage | Sign Guestbook | Click here to return to main page homepage ||