HomeMy WebLinkAbout2005-1443.Tardiel et al.13-04-19 DecisionCrown Employees
Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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Commission de
règlement des griefs
des employés de la
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GSB#2005-1443
UNION#2005-0530-0022
Additional Files listed in Group “A” & “B”
BETWEEN
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Ontario Public Service Employees Union
(Tardiel et al) Union
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE
FOR THE UNION
Christopher J. Albertyn
Richard Blair
Vice-Chair
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
Eric del Junco, Barrister and Solicitor
Jim Paul
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER
Lisa Compagnone & Cathy Phan
Ministry of Government Services
Labour Practice Group
Counsel
HEARING December 10, 2012.
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Decision
[1] This is an ongoing matter. Several previous decisions have been issued granting
systemic remedies to restore the workplace at the Toronto Jail. This decision addresses
a further request by the union for a systemic remedy.
[2] The union’s request is for an order that an independent investigator be appointed at the
Ministry’s expense to investigate the racist hate mail that has been the subject of earlier
consideration.
In a decision issued on September 5, 2012, the following was written:
[2] Since 2007 the Ministry has had an ongoing investigation under s. 22 of
the Ministry of Correctional Services Act, RSO 1990, c M.22 into the
provenance of the anonymous racist letters that have so augmented the
poisoned work environment at the Toronto Jail described in earlier decisions.
Among the systemic remedies ordered in this matter was the appointment of an
investigator to review the Ministry’s investigation.
[3] The appointed investigator, Michael A. Davis, provided a written report
of his review (“the Davis report”). In it he has made 12 recommendations as to
how the procedures associated with the racist letters can be improved and as to
how the Ministry’s investigation can be advanced.
[4] The Union has, throughout the proceedings in this matter, requested a
full, independent investigation into the provenance of the racist letters in
order to identify the author(s). It has asked for this comprehensive
investigation as a remedy to make whole the Union and its members for the
breaches by the Employer of the collective agreement and of the Human Rights
Code, RSO 1990, c H.19, for failing to respond effectively to these letters, so
as to prevent them creating a poisoned work environment.
[5] The Union is not satisfied that the Davis report sufficiently addresses
the situation. The Union has in writing reiterated its request for a full,
independent investigation. The Employer has responded in writing opposing
the request. The matter will be argued before me. This decision deals with
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the steps preparatory to that argument.
[6] As with other aspects of this case, the hearing into the Union’s request
for the appointment of an independent investigation will be held in accordance
with Article 22.16 of the parties’ collective agreement, their expedited
procedure. Pursuant to Article 22.16.2, I hereby order that there will be no
oral evidence and that evidence will instead be received in the following
manner.
[7] By a date to be determined by the parties (failing which, set by me)
Employer counsel will write to Union counsel:
a. to confirm that, besides the reports already provided to Union
counsel, there are no other forensic behavioural profiles created of
the letter writer(s) by the Employer or anyone retained by the
Employer between 2005 and the present; or to provide such
further profiles;
b. to provide a complete and detailed written summary of the
steps the Employer took to investigate the provenance of the
hand-written letter found on April 1, 2010 in the Central
Regional Office (referred to at pp. 8-9 of the Davis report),
including a summary of persons interviewed, handwriting analysis
conducted and fingerprinting and/or DNA analysis of the
letter/note and also including a full explanation of why the
Employer did not take certain possible steps referenced in the
Davis report, such as obtaining handwriting samples from the two
persons present on that day who did not work in that office.
[8] The evidentiary basis for the argument will be the documents
produced in accordance with paragraph 7 above, the forensic behaviour
reports already provided to the Union, and the Davis report. The parties will
endeavour to create a common book of the relevant documents. In addition the
Employer will provide an updated book of the hate mail letters sent to date.
[9] The Union has given notice that it will argue than an appropriate
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adverse inference should be drawn from any incompleteness or other defect in
the summary provided by the Employer pursuant to paragraph 7(b) above.
[3] The parties produced a joint bundle of documents, as requested. It contained Forensic
Behavioural Science Reports; the Ministry’s letter of October 31, 2012 in response to
the above order; the Davis report; the union’s request for a full fresh investigation; and
the employer’s response.
[4] As explained in earlier decisions (among them, OPSEU v. Ontario (Ministry of
Community Safety and Correctional Services) (Tardiel Grievance), [2010] OGSBA No.
276, at ¶¶12-15), the racist hate mail produced in the period since 2005 had a most
deleterious effect on the Toronto Jail workplace. It was the most significant catalyst for
the poisoned work environment that prevailed in the jail for a period of about three
years between 2005 and 2008. Staunching the flow of hate mail is obviously a very
important objective for the employer, the union and the employees of the Toronto Jail.
The most effective method of doing so is for the perpetrator to be identified and dealt
with under the criminal justice system. This explains the union’s reasonable and
commendable desire to have the investigation into the letter writing campaign
conducted as efficiently and effectively as possible.
[5] Since the first hate letter was received on January 13, 2005 the letters continued
sporadically until January 2012. The Toronto Police Service has been charged with
conducting the criminal investigation into the letters, with the aim of apprehending the
writer. As was explained in OPSEU v. Ontario (Ministry of Community Safety and
Correctional Services) (Tardiel Grievance), [2011] OGSBA No. 80, at ¶97, the
employer commenced its own investigation into the hate mail on March 9, 2007, under
wide investigative powers contained in s. 22 of the Ministry of Correctional Services
Act, RSO 1990, c M.22 (the Act). The investigation has continued since then and is
ongoing. With the Toronto Police Service as primarily responsible for the investigation
– holding all the exhibits, conducting the forensic tests, trying to determine the identity
of the letter writer – the Ministry’s investigation is parallel and supplementary.
[6] At the union’s request, I made an order that the employer’s investigation be reviewed
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and analyzed. Mr. Davis was chosen for the task of the review because of his long
experience as a police detective. He spent some time conducting his review; he perused
all of the Ministry’s Correctional Investigation and Security Unit (CISU) files: 5
bankers’ boxes with over 400 file folders, in excess of 4,000 pages of documents. The
Davis report resulted from that review. The review was not a meagre effort, but its
conclusions did not meet the union’s expectations. The report made recommendations
to aid CISU’s investigation. Those recommendations have not yet been implemented.
They are to be the subject of further consideration by the parties.
[7] As part of the employees’ constitutional entitlement to a racism free workplace
(Ontario v. McKinnon, [2003] OJ No. 893, at ¶12), the union submits that, because of
the ongoing nature of the letter writing campaign, the Ministry should take a lead role
in the investigation to identify the perpetrator, irrespective of what the Toronto Police
Service are doing with their investigation.
[8] The union is not satisfied with the scope of the Davis review, with the approach he
adopted, or with the conclusions he reached. The union argues Mr. Davis
inappropriately deferred to the interests of the employer.
[9] The union thinks the Ministry could have done much more in its investigation, that it
has bungled some of what it has done, and that a fresh investigation is essential if
progress is to be made in apprehending the perpetrator.
[10] The union’s request for a full fresh investigation is based on the following. Relying on
the Davis report, the union maintains that the employer’s investigation has failed to
take the following necessary steps: obtaining a full set of fingerprints from employees
working in the Toronto Jail during the relevant period; conducting a full review of the
letters to identify common spelling and grammatical mistakes and other patterns for the
purpose of comparison with documents in the Ministry’s possession written by those
identified as persons of interest; and failing to conduct a meaningful investigation into
the handwritten note found on April 1, 2010, including proper handwriting analysis and
interviews.
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[11] The Ministry’s response of October 31, 2012 to 7(b) of the September 5, 2012 decision,
above, describes what was done with the hand-written letter found on April 1, 2010. All
who were present at the time at the Central Regional Office (CRO), where the letter
was found, were interviewed. Handwriting samples were obtained from the CRO
employees interviewed. Those samples were analysed by a handwriting expert. The two
visitors to the CRO at the time did not have handwriting samples taken from them.
[12] Relying on the Davis report, the union points to the inadequacy of the CISU
investigation regarding the letter found on April 1, 2010. There has been no
comprehensive, forensic handwriting analysis. No handwriting samples have been
taken from the two individuals who visited the CRO on April 1, 2010, for analysis by a
handwriting expert. In the union’s submission, particularly in light of CISU’s
investigative powers under s. 22 of the Act, the interviews of those potentially involved
were likely inadequate and insufficient.
[13] The union’s critique of CISU’s investigation comes substantially from the Davis report
and from the Davis report recommendations that have not yet been implemented.
[14] The union argues the employer has breached its obligation to take all steps reasonably
necessary to provide a safe workplace. It says the defects in the CISU investigation are
such as to put the safety of workers in the Toronto Jail at risk. The union submits that,
notwithstanding the Toronto Police Service investigation, the Ministry has the
resources, the authority and the obligation to conduct its own thorough investigation
into the origin of the letters.
[15] The union submits the failure to conduct a comprehensive investigation should be seen
in the context of the employer’s obligation to investigate claims of discrimination.
Tolerating the hate mail would be akin to condoning discrimination on a prohibited
ground. The duty to investigate is the means for the employer to ensure a
discrimination-free workplace: Laskowska and Marineland of Canada Inc., 2005
HRTO 30 (CanLII), at ¶53; Nelson and Lakehead University, 2008 HRTO 41 (CanLII).
The employer must investigate with reasonable diligence and it can attract liability for a
failure to investigate: Sutton and Jarvis Ryan Associates Inc., 2010 HRTO 2421
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(CanLII), at ¶134.
[16] The union argues the Ministry must be judged on its performance in various
circumstances across Ontario, as described in the McKinnon case (Ontario v.
McKinnon, [2003] OJ No. 893 and [2003] OJ No.491), the Ranger case (OPSEU v.
Ontario (Ministry of Community Safety and Correctional Services) (Ranger
Grievance), [2010] OGSBA No. 18) and the Tardiel case. The union suggests the
Ministry has shown itself to have failed to adequately investigate racism and other
discrimination; a pattern of conduct that explains the deficiencies in its CISU
investigation into the letter writing.
[17] The relief sought by the union is an order that the employer be required to appoint a
person identified as independent counsel to conduct or supervise all aspects of the new
investigation; that the person appointed be a very senior and respected member of the
bar or the judiciary with a background in criminal matters and no history of
professional association with the employer; that the appointment be on a full-time basis
for an initial term of 12 months, subject to renewal for a further 12 months if necessary;
that the appointee have powers pursuant to s. 22 of the Act; that the appointee have full
authority to hire staff to conduct and support the investigation within a prescribed
budget; that the employer be required to cooperate fully with the investigation; and that
the investigator provide quarterly reports.
[18] The employer opposes the union’s request. It says the Davis review of the Ministry’s
investigation was comprehensive. The report confirmed the overwhelming effort the
Ministry has made through CISU in trying to determine the perpetrator of the racist
hate mail. The Ministry has not tolerated the hate mail. There is an ongoing
investigation by CISU under s. 22 of the Act, and an ongoing Toronto Police Services
criminal investigation. In these circumstances, the Ministry submits that a fresh
investigation will serve no useful purpose, but will unnecessarily duplicate ongoing
investigative efforts. A new investigation will likely revive the animosity, suspicion and
hostility that prevailed among employees at the Toronto Jail some years ago when
many of them were subjected to probing interviews. The Ministry suggests instead that
the Davis report recommendations be implemented. It asks for that to be ordered.
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[19] The hearing did not address adequately the Ministry’s request that the Davis
recommendations be implemented. The only issue addressed was whether the union’s
request for the appointment of a fresh investigator should be granted. The
recommendations of the Davis report are therefore left over for later consideration.
[20] The Ministry says, in my view correctly, that the union cannot rely on the evidence in
the McKinnon and Ranger cases to advance its argument here. No generalized taint
applies to the Ministry such that anything it touches, like the CISU letter writing
investigation, is presumptively insufficient and ineffective. To apply such a
presumptive taint would give no credit to the remedial steps the Ministry has taken
(described in the Tardiel decisions). It would unfairly draw the conclusion that the
Ministry is not capable of acting effectively to prevent discrimination and harassment.
[21] The Ministry argues that it has more than satisfied the legal requirement to investigate
complaints of discrimination and harassment. The Ministry has acted reasonably by
diligently reporting every letter to the Toronto Police Service, and cooperated fully in
their investigations: B.L. v. Marineland, [2005] OHRTD No. 30; Yukon v. P.S.A.C.
(Hardie Grievance), [2002] YLAA No.1 (Taylor); Canada Post Corp. v. CUPW (Racky
Grievance), [2003] CLAD No. 624 (P. Picher), at ¶¶188-190. The investigators within
CISU are training in investigations, they have the tools to do so, and they have done
some since the s. 22 investigation commenced, cf. Etienne v. Westinghouse of Canada
Ltd., [1997] OHRBID No. 14, at ¶72.
*****
[22] What has the employer actually done to investigate the anonymous hate mail? The
employer began its s. 22 investigation in 2007. The investigation has continued since
then. The Ministry initially appointed a senior officer of CISU and a senior police
detective from the Toronto Police Service to conduct the investigation. They appear to
have made substantial effort to identify a suspect, the details of which are in the Davis
report. Their interviewing of certain correctional officers at the Toronto Jail caused
some turmoil there, with claims of harassment and discrimination by some of those
identified as persons of interest. Ultimately the two officers failed to identify a
perpetrator.
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[23] Since that initial spurt to the investigation, a CISU officer has been charged with the
investigation and has taken the necessary steps to ensure that the forensic information
that can be obtained has been secured for the Toronto Police Service investigators.
There is no lack of commitment, motivation or interest by the Ministry to solve the case
and identify the culprit. In this context it is a mistake to conclude that the investigation
has been inadequate merely because the letter writer has not yet been identified and
apprehended. Identifying with certainty the perpetrator of an anonymous letter writing
campaign is not an easy task. Nevertheless, there do appear to have been some
omissions in the investigation, such as around the note of April 1, 2010, as pointed out
in the Davis report. But, on the current evidence, I cannot conclude that the Ministry’s
investigation, parallel to the Toronto Police Service investigation, is so inadequate that
the Ministry should be put to the cost of appointing a fresh, external investigator in the
manner the union wants.
[24] The union’s request is premature. The lessons the union draws of the defects in CISU’s
investigation come principally from the Davis report. Mr. Davis’s review was designed
to identify shortcomings in CISU’s investigation. His report does so. He made
recommendations to address the shortcomings. The implementation of some or all of
his recommendations can improve CISU’s investigation. That needs still to be done.
The first step – before there is any thought of ordering a fresh investigation – is for the
parties to accomplish the improvements to the investigation that might result from
implementation of some or more of the Davis report recommendations. To that end, the
parties should first address the issue of what Davis recommendations should be
implemented. If they are able to agree, their agreement can be implemented and the
effects of doing so can be examined. If they are not able to agree, the matter needs to be
addressed as part of the med-arb process before me.
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[25] Accordingly I deny the union’s request at this stage. Instead, failing resolution by the
parties themselves on the Davis report recommendations, a further date should be arranged
for mediation-arbitration of the remaining issues. That process would look also at monitoring
the implementation of the recommendations.
[26] I remain seized.
Dated at Toronto this 19th day of April 2013.
Christopher J. Albertyn, Vice-Chair
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Group A
Grievor GSB# Union File#
Tardiel, Charlene et al 2005-1443 2005-0530-0022
Henry, Herman 2005-3859 2005-0530-0052
Jauha, Kulwinder 2005-3860 2005-0530-0053
Miller, Frank 2005-3861 2005-0530-0054
Joseph, Manoj 2005-3867 2005-0530-0060
Lindo, Karen 2005-3869 2005-0530-0062
Cataline, Johnson 2005-3870 2005-0530-0063
LaRose, Colleen 2005-3871 2005-0530-0064
Harries-Jones, Sarah 2005-3874 2005-0530-0067
Gray, Veronica 2005-3875 2005-0530-0068
Grant, Caroline 2005-3876 2005-0530-0069
Ellis, Donovan 2005-3879 2005-0530-0072
Dawjee, Khalid 2005-3883 2005-0530-0076
Cox, Leroy 2005-3884 2005-0530-0077
Stewart-May, Patricia 2005-3889 2005-0530-0082
Persaud, Bibi 2005-3891 2005-0530-0084
Ortiz, Florencio 2005-3893 2005-0530-0086
Olivierre, John 2005-3894 2005-0530-0087
Mohamed, Mohamed 2005-3898 2005-0530-0091
Thompson, Denise 2005-3901 2005-0530-0094
Tuan-Kiet, Doan 2005-3910 2005-0530-0103
Glover, Jason 2005-3912 2005-0530-0105
Montague, Roderick 2005-3917 2005-0530-0110
Tan, Joey 2005-3920 2005-0530-0113
Majid, Mohammad 2005-3922 2005-0530-0115
Skeffington, John 2005-3923 2005-0530-0116
Jackman, Marva 2006-0128 2006-0551-0002
Walcott, Pauline 2006-0422 2005-0530-0121
Marshall-Wilkinson, Joan 2006-0423 2005-0530-0129
Walji, Nasim 2006-0424 2005-0530-0123
Joson, Nelson 2006-0425 2005-0530-0124
Manrique, Lolet 2006-0482 2005-0530-0125
Union 2006-1079 2006-0530-0022
Williams, Simone 2006-1130 2005-0530-0127
Tardiel, Charlene 2006-1816 2006-0521-0022
Thompson, Denise 2006-2892 2007-0530-0003
Rusteau, Harriet 2007-0328 2007-0530-0020
Wilson, Debby et al 2007-1459 2007-0530-0030
Singleton, Samantha 2007-1460 2007-0530-0031
Gray, Stewart 2007-1461 2007-0530-0032
Adesua, Olusola 2007-1462 2007-0530-0033
Garisto, Joe 2007-1463 2007-0530-0034
Mitchell, Ewen 2007-1464 2007-0530-0035
Ward, Vaughn 2007-1465 2007-0530-0036
Morgan, Gracelyn 2007-1466 2007-0530-0037
Etienne, Cavelle 2007-1467 2007-0530-0038
Ramlal, Sylvia 2007-1468 2007-0530-0039
Azeese, Ally 2007-1469 2007-0530-0040
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Group B
Grievor GSB# Union File #
Adair, Allan et al 2005-3857 2005-0530-0050
Cooney, Guy 2005-3858 2005-0530-0051
Perunovic, Stefanka 2005-3862 2005-0530-0055
Tanel, Luciano 2005-3864 2005-0530-0057
MacKey, Nigel 2005-3868 2005-0530-0061
Jagpal, Sam 2005-3872 2005-0530-0065
Flanagan, James 2005-3877 2005-0530-0070
Fryginberg, Elina 2005-3878 2005-0530-0071
Durdle, Philip 2005-3881 2005-0530-0074
Brown, Sidney 2005-3885 2005-0530-0078
Bazger, Hamza 2005-3887 2005-0530-0080
Parna, Elmar 2005-3892 2005-0530-0085
Montgomery, Mavis 2005-3897 2005-0530-0090
McNeely, Elizabeth 2005-3899 2005-0530-0092
Valaitis, Laura 2005-3900 2005-0530-0093
Pacheco, John 2005-3902 2005-0530-0095
Agnello, Tania 2005-3903 2005-0530-0096
Lino, Angelucci 2005-3904 2005-0530-0097
Ardito, Santa 2005-3905 2005-0530-0098
Bartosiewicz, Agnes 2005-3906 2005-0530-0099
Bolton, Karen 2005-3907 2005-0530-0100
Brooks, Tim 2005-3908 2005-0530-0101
Fitzpatrick, Carrie 2005-3911 2005-0530-0104
Hauery, Mark 2005-3913 2005-0530-0106
Haars, Catherine 2005-3914 2005-0530-0107
Kotsovolos, George 2005-3915 2005-0530-0108
Miklasz, Stanley 2005-3916 2005-0530-0109
Robbescheuten, Crystal 2005-3918 2005-0530-0111
Phillips, Stana 2005-3919 2005-0530-0112
Leppan-Triolo, Barbara 2005-3921 2005-0530-0114
Jacklyn, Denise 2005-3924 2005-0530-0118
Pacheco, John 2006-0040 2006-0530-0005
Pacheco, John 2006-0041 2006-0530-0006
Pacheco, John 2006-0042 2006-0530-0007
Christensen, Robert 2006-0138 2005-0530-0119
Pacheco, John 2006-0620 2006-0530-0016
Phillips, Stana 2006-0624 2006-0530-0020
Pacheco, John 2006-2272 2006-0530-0086
Leppan-Triolo, Barbara 2006-3129 2007-0530-0013
Miklasz, Stanley 2006-3131 2007-0530-0015
Nesovic, Zeljko et al 2008-1029 2008-0530-0048