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HomeMy WebLinkAbout1992-0905A.McKinnon.95-09-12 [~ 'l -, " :".;:> ,,' : '~y -'.:;:" ONTARIO EMPLOYES DE LA COURONNE ~ ,-:, ,"/:: ,;, :;::'J~",: CROWN EMPLOYEES DEL 'ONTARIO :,..",,: ~.. < C:I.'~. '~. -' '" 1111- GRIEVANCE COMMISSION DE ~ SETTLEMENT REGlEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G 1Z8 TELEPHONE/TELEPHONE (416},326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G 1Z8 FACSIMILE/tELI~COPJE (416) 326-1396 GSB # 905A/92 OPSEU # 92E289 IN THE MATTER OF AN ARBITRATION Und~r THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before ~ THE- GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McKinnon) Grievor - and - The Crown in; Right of Ontario (Ministry of Correctional Services) Employer BEFORE o. Gray Vice-Chairperson I / E Seymour Member J Miles Member FORHTHE K Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE R Little EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart & storie Barristers & Solicitors HEARING June. 28, 1993 August 25, 26, 1993 June 14, 1994 July 15, 1994 September 12, 1994 ) -' - ~"" - .- " () ( '\ ~~., ~ DECISION The grievor is a correctional officer ("CO") employed at the Metro Toronto East Detention Centre ("MTEDC") He filed the grievance now before us on March 11, 1992 In it, he alleged that me~bers of management had VIolated Ar- ticle A of the parties' collective agreement. Article A provides that A 1.1 There shall be no discrimination practised by reason of race,ancestry, place of origin, colour, ethnic ongin, citizenshIp, creed, sex, sexual orientation, age, manta! status, family status, or handicap, as defined in section 10(1) of the Ontario Human RIghts Code (OHRC) _ Although the grievance also mentions article 18 1, counsel for the union advised us at the outset that it did not rely on that proVIsion. The grievance arose out of two matters: the appearance on the MImstry's OMS computer system in January 1992 of an anonymous "message" concernmg the gnevor and his wIfe, and management's subsequent investigation into the ) origins of that message. The union's position on behalf of the grievor IS that the message amounted to hate literature and that the employer was aware as early as the spring of 1990 that the OMS system being used to disseminate racist, sexist and hpmophobic messages. When the grievance first came on for heanng, the union took the pOSItIon that the employer had VIolated Article A by \ . failing to take steps to prevent publication of such messages on its computer system pnor to January 1992, . falling to take steps to prevent future mIsuse, of ItS computer message system after the grievor became the VIctim of such mIsuse and com- \ plained about it; and, . respondmg to the gnevor's complaint about the message in a way which was desi~ned to send him the message that this was the sort of communication he should have to endure as a result of lus having ear- lier filed complamts about dIscrimination with the Ontario Human Rights Commission. / (c-:- (', r ,- -,2- '- ';J DUnng final argument the union also submitted that the employer bore strict liability for the occurrence of the message in question and, on that basIs, should be found to have breached Article A.) Preliminary Issues On the first day of hearing, June 28, 1993, the partIes addressed two pre- liminary Issues. One was whether, as the employer argued, we should adjourn ( the hearing of this grievance until thecompletlon of certain proceedings before a I Board of Inquiry wmch had been appointed under the Ontano Human R~ghts I Code ("the Code") to deal with one or more complaints which the grievor had filed. The other was whether, as the union argued, we should receIVe mto evi- dence the written complaints the grievor had filed with Ontario Human Rights CommIssion ("the OHRC"), as well as the officer's report on wmch the deCIsion to request appointment of a board in mqUIry was based. In our decision of July 14, 1993 we noted that Counsel for the union demed. that it would be seeking to prove in these proceedings any allegation of mIsconduct whIch has been the subject of any of the grievor's three compla~ts to the CommISsion. He SaId the umon wished to introduce copies of the three complaints and of the officers report into eVIdence, not as eVIdence of the truth of their contents but only to show what allegations had been made by the grievor and the CommISSIon prior ~o the January 1992 inCIdent. The nature of the allegations has relevence apart from their truth, he saId, because the mere existence of them forms part of the context against which the conduct of management m relatIOn to the January 1992 inCIdent must be Judged. He SaId that the umon would make no attempt to prove the truth of those allegations in thIS proceedmg. Apart from thes~ four documents, which would be introduced for the limited purpose described, counsel for the union said that the only evidence which It would mtroduce concernmg events pnor to January 1992 would be eVIdence to prove ItS allegatIo~ that the employer was aware as ea:t:ly as the sprmg of 1990 that its computer message system Was bemg used to dISsemmate racist, sexist and homophobic messages. The events In questIOn In this grievance were not themselves the subject of a complaint by Mr McKinnon to the OHRC In the CIrcumstances, we ruled that the gnevance would proceed and that We will receive the documents in question into evidence on the basis that they will in no event receive weight as evidence of the truth of their contents. We will determine whether their contents have the significance contended for by the union once we have heard all of the parties' eVIdence and argument on the merits of the grievance before us. :c ~ 1 "' .,1 ) I) r- ! I \. ' -3- 'e~ ~ Background I The grievor is a Native CanadIan who has been employed by the (MIlliStry as a corrections officer smce December 1977 In February 1990 he was elected "- Vice-President of the union local wmch represents employees at the Metro To- ronto East Detention Centre ("MTEDC") In November 1988 the grIevor filed a complamt WIth the OHRC alleging that members of management and others at MTEDC had subjected hIm to dis- criminatory conduct by reason of his ancestry, race ,and ethnic origin. In March 1989 he complained to the OHRC that he had suffered adverse treatment in re- prisal for hIs first complaint. He filed a complamt about further alleged repnsal treatment in September 1990 Some time before October 1992, one of the OHRC's Human Rights officers issued a report concerning the November 1988 complaint. As a result of that report, the OHRC sought appointment of a Board of Inquiry, the MIllister appointed a Board of Inquiry and hearings were sched- uled. We do not know the result of those hearings. As we have already noted, there was no attempt in the proceedings before us to prove any of the allegations made by the grievor in his complaints to the OHRC The Offender Management System ("OMS") is ,a computer database sys- ) tem used to store and maintam mformation about inmates in provincial institu- tions. It is accessible from termmals in all 55 jails, 26 parole Offices, 5 regIOnal offices and t~e Ministry's head office m North Bay, by about 3000 potential us- ers. It was implemented for Young Offenders in 1990, and brought into full op- eration for all inmates in June 1991. A user of the system can specify search cn- teria and then see a list of offender names that satisfy those cntena. Selectmg a name from the list leads to a series of screens whIch dIsplay detailed personal information about the offender whose name was selected. In addItion to the workmg database contaIlling current information about actual inmates, the system also had a "training region." The training regIon was a sample database WIth the same structure as the working one, m whIch MIlliS- try employees could learn to use the system by entering, edItmg and deletmg en- tries and information about fictitious mmates of their own invention, without af- fecting the current data in the working database A user could only get access to the workmgdatabase by usmg an mdIVIdually assIgned unique user code or "USERID " Initially, however, whIle systems personnel went through the process '. :'\ ,- J -4- ~- ~ of creating and maintaimng the roughly 3000 individual user codes and associ- ated user accounts needed In the new system, there were one or more common or "general" USERID's which any employee with access to a terminal could use to gain access to the training region when it was available, which wa~ in the eve- nings and on weekends. '\ In early May 1991, employees at MTEDC USIng the OMS traimng region found in It an entry under the actual name of one of the supervIsors at MTEDC The content of the screens of detailed personal information attached to that en- try was crude, derogatory and dIsrespectfuL He was described as haVing such ahases as "Hung, So Short", "Anal, Fucker", "Virgin, Always" and "Dickless, Wonder" The entry showed his address as "6969, Homoway, Queersville" and his employer as "Homo Escorts." Management was concerned to identify and punish the person or persons responsible for making those entries. It learned from the Ministry's systems staff, however, that because (among other reasons) users were using a general USERID to access the traImng region, it was not possible for the computer system to Identify umquely the source of any entry The superintendent, DIane Doherty, met WIth union officials, who agreed that making the entries was inappropriate conduct: She inVited them to sign a JOInt memo to staff whICh expressed "dIsmay and revulSIon" to the person re- \ sponsible, stated that both the union and management would pursue every ave- nue to bring the person or persons responsible "to open dIscovery and prosecu- tIon", sohcIted in confidence any Information that mIght assist In that regard and concluded with the observation that "We all must cooperate to nd the employ- ment roles [sic] of persons having little or no respect for the good name of oth- ers." The umon was not prepared to SIgn thIS, In part because it mIght later be called upon to defend the indiVidual responsible. On May 9, 1991, Ms Doherty issued the memo (with references to the umon deleted) as a memo to staff from, management. The union later issued ItS own memo stating that "O.P.S.E U will not tolerate behaViOur that undermines the self-esteem of brothers or SIsters or behaViOur that creates an IntimidatIng, hostile or offensIve environment for work or study," without refemng speCIfically to the indIVidual or individuals respon- sible for the May 1991 entries. Shortly thereafter, MTEDC began processing requests for aSSIgnment of the individual USERIDs which we!:e needed to access the workIng system and --------- .., () ,..-- -5- f would eventually be reqwred for access to the training regIon. MTEDC took the position that it would not cause an individual U8.ERID to be Issued to an em- ployee unless he or she signed a request form which said I, , as an OMS user, accept full responsibility for any action performed under my assigned USERID I understand that any abuse of computer facilities under my assIgned USE RID will result in revocation of same, In 1991 and 1992 Derek Miller was the PresIdent of Local 582, the local which represents CDs at MTEDC When he testified in August 1993 he was still PresIdent, on leave, while away from MTEDC semng as a workplace discrimi- ~ nation and harassment prevention trainer in the Ministry's Eastern Region. Mr Miller testified that he had refused to sIgn this request form. Mr MIller saId he had concerns about the request form. He felt manage- ment was "trying to capture everybody" because of problems with a few people. He thought signing for a code was all right, but objected to the portIon of the form dealing with responsibilIty for abuse. He had been issued an ID for the - previous system WIthout haVing to sign such a form, he saId, and felt that re- sponsibility for abuse was already covered by standing orders and the Criminal Code. While a majority of employees signed the form, he said, he would not. He said he "didn't think everybody should be painted with the same brush for the acts of one or two individuals." He gave these reasons to the Deputy Supermten- dent of MTEDC when asked why he would not sign. The Deputy Supenntendent dId not accept those reasons. He was not Issued an MTEDC USERID He testi- fied that he was not required to SIgn a form like this in Windsor or Sault Ste. Marie, that It was not a standard Ministry form. He saId he could gain access to the system at MTEDC by using a termmal some other employee had logged onto with lus or her USERID, if that other employee did not log off before leaving the termmal to Mr MIller Although the person responsible for the entries discovered m May 1991 was not subsequently identified or punished, there were no further reports of m- appropriate entries m the training region database m the months followmg management's memo to staff of May 9, 1991. Management then expected that any remaining potential for abuse would end when the use of the training region ended or when accessibility by general USE RID was elIminated. At that time it L , r ) (r' ! -6- ./ .~~ '~ r was anticipated that the training region would only be in use for another few months, and that accessibility by general USERID would eliminated in Novem- ber 1991 As matters developped, the training region remained m use untIl well into 1992, and elimination of access by general USERID was delayed beyond No- vember so that other steps m the development of the system couId first be com- pleted. In the meantime, some employees working midmght and weekend slufts when the traImng region was avaIlable had begun using the traIning region as means of exchanging messages, both within particular Institutions and between instItutions. Those engaged in this messaging did so under codes or ahases of theIr own choosing, such as "Apostle", "Kitty Kat", "Jokester" or "Romeo." A mes- sage sender would enter the alias of the intended recipIent of the message as the last name of an inmate entry, with his/her own alias as the fictional inmate's first name. The body of the message would be entered in the related information screen in wluch informatIon about the inmate's "Marks and Scars" would ordi- narily be placed. Messages intended for general readmg were entered under the last name "SFOOPB" One of the employees who used this system testified that these letters stood for "Secret Fraternal Order Of PrOVincial Buckets" The Ministry's systems branch staff in North Bay were aware m the fall of 1991 that the OMS traImng region was bemg used by some employees to ex- change messages. They had no mdication, however, and received no complamts (before the gnevor's) that abUSIve or racially motivated messages were bemg placed in the system. Management's mam concern m the fall of 1991 was that the time employees spent composing and readmg messages was time they ought to have been spendmg doing their jobs. As a result, in late October 1991 senior management directed that general USERIDs would no longer be Issued and that staff be required to use their personal USERIDs to gain access to the traImng region. A direction to that effect was issued to MTEDC staff on October 30, 1991. Systems staff dId not immedIately make the traIning region Inaccessible to the preViously issued general USERIDs, however Staff who ignored the directive and tried a preViously Issued general USERID found that they could still access the training region in that anonymous manner -. - l '. r~ , } -7- ~~ The Message Lisa Renme is an unclassified CO! who used the traI~ng region to com- municate with other users in the manner described earlier She learned how to do tlus In conversations with other officers. She testified that she used tlus "message" system when she was not busy at work, to converse with others about various subjects: what partIes were going on, what questions were asked at job competitIOns and who other users knew that she might know, for example She and others used "code names" to describe themselves in their messages. On January 5, 1992, .Ms. Rennie told others that she had seen a message in the traimng region' concermng Mr. McKinnon. She was later asked to provide a written report about what had happened. This is the report she wrote the fol- lowing day' \ On Sunday, January 5, 1992, I was assigned to work the 3A unit wIth CO2 A Williams for the #2 shift (1500-2300). At approximately 1830 hrs I accessed the computer program CICSMCSD When the system came up I did a search for surname "SFOOPB" When thIS screen came up one line read "SFOOPB, .. AAA GOT YOU" I pulled this line up and accessed the "Marks and Scars" s~reen, which read, "HI Mr McKinnon -.. SEE YOU IN COURT HOW ~E THINGS AT THE EAST ... IS YOUR WIFE STILL SEEING A BLACK MAN DEAL WITH YOUR OWN PROBLEMS AT THE EAST OR FACE THE BEAST" At approximately 1835 I erased both the message and the line SFOOPB, AAA -GOT YOU to avoid any further slander She testified that she could not remember seeing anything on the screen other than what she described in tlus report. Asked whether anyone else saw the mes- sage, she answered that she told Audrey Williams about it but dId not remember whether she showed the message to Ms. WillIams. Hers IS the only direct evi- dence before us about the content of the message. The employer accepts that she saw such a message. Mr Miller testified before Ms. Rennie did. He stated that another CO, Debbie Snqw, told him that night that there was a "nasty" Ipessage about Mr McKinnon. He said he then contacted Mr McKinnon and told lum about the message. He was not asked to say what Ms. Snow told lum abqut the content of the message, nor what he told Mr McKinnon about it. Ms. Snow was not called to testify ~ ) I - -8- ~ Mr McKinnon testified that he first learned of the message ~hen he-came upon Mr Miller and Ms. Snow, who were conversing in the staff lounge. He saId It was Ms. Snow who then told lum that rude tlungs were beIng saId about lus wife in the computer He testified that he asked why she thought the message was about hini, and that she replied that the code word "COLDFIRE" had been used. He said that when he then asked why she thought that would mean lum, she replied that she thought so because of lus native ancestry He saId she told him that the message saId that someone would see him on court, made reference to "the beast from the east" and asked whether his WIfe was still "fuckIng a black man." Mr McKinnon testified that he was hurt and disgusted by this news. HIS wife, who was also a CO at MTEDC, was then off work recovering from two mis- carriages and associated hfe-threatening complications. HIS reaction was that he wanted to know who had information that could lead lum to whoever entered tlus message. He saId Ms. Snow referred him to Ms. Renme, and that he went to Ms. Rennie and asked whether what he had heard was true. Mr McKinnon testified that Ms. Rennie told him "the same thIng" that the entry was about his WIfe, that the code words COLD FIRE and COCKMEIS- TER were used, that there was reference to lus wife "fucking a black man," that the statement said that someone would see lum In court and that he had better watch the beast from the east, and something about "I've got you now, I know who you are." Counsel for the employer imtIally objected to this testimony In so far as It contradicted Ms. Renme's testimony about the actual content of the message, since the contradIctions had not been put to her In lus response, coun- sel for the union noted that he had not asked Ms. Rennie any q~estlOns about this conversation WIth Mr McKinnon, and that In any event he was not pre- cluded from leading from one WItness' eVidence Inconsistent WIth that of another I of lus, witnesses. When unlon counsel further indicated that he was not seeking to discredit Ms. Renme's testimony, counsel for the employer withdrew lus ob- jection. During his cross-examination, Mr McKinnon's attention was drawn to the fact that while references to "Coldfire" and "Cockmelster" appear In Ms. Snow's report there were none in Ms. Renme's, and that Ms. Renme had testified that she had seen nothing beyond what was in her report. MrMcKinnon acknowl- " I 1 - 1 ,,; -9- '\. 'f ] edged that he was upset when he spoke to Ms. Rennie, but denied that he might have been confused about who mentIOned "Coldfire" to him. He insisted that Ms. Rennie had expressly confirmed the details of Ms. Snow's account. . Reaction To The Message After Mr McKinnon had his conversation with Ms. Rennie, he and Mr Miller met with two supervisors, Mr Hill and Mr Melville, to complam about the message. It appears that this meeting took place on January 6, 1992 Mr Miller testified that Mr Hill seemed concerned when the matter was brought to his at- ( tention. Mr McKInnon testified that Messrs. Hill and Melville uappeared genu- ine," but added that uknowmg the individuals, they would just go through the motIons." Counsel for the employer objected to tlus, on the baSIS that he had asked for particulars of any past conduct relIed upon by the umon, and had re- ceIved none. Umon counsel indicated that he dId not propose to lead any eVI- dence as to the baSIS of the belief that the grievor had expressed. Mter exploring with the board the issues raised by the obJectIOn, counsel agreed WIth one an- other that the gnevor's subjectIve belief at the outset about what the supervIsors might or mIght not do was not relevant to the questIon of what they actually dId or did not do. On that basis, the objectIon was withdrawn. After heanng Mr McKInnon's complaint, Mr H1l1 had Ms. Rennie demon- strate for lum how tlus messaging system worked. He asked Ms. Renme and Ms. Snow to provide reports, and told Mr McKinnon he would iook into it fur- ther Ms. Renme's report of January 6, 1992 IS quoted abqve. Ms Snow's report of that date said this: I was working the #2 shill (14.45-23'15) WIth officer Rennie. It was brought to my attention at approx 14:20 hrs that the computer program under CENT05 was used the other day approx Saturday Jan. 4th/91 The SFOOPB name "COCKMEISTER" had wntten "COLDFIRE" a message statmg that "COLDFIRE" was Mr Mike McKmnon. The message supposedly had asked u his wife was fuckmg a black man and he would see him in court. Myself, I never saw the message, but, I did bring It to Mr Mike McKinnon's attention. Ms. Snow dId not testIfy We do not know who (if anyone) told her that there was a message of the (sort described in her report. At the hearing in this matter, both parties accepted that the actual content of the message was as Ms Rennie's re- ( r -\ .~ ! -10- " ~ port stated. We have reproduced Ms. Snow's report only because It formed part of the context in which Mr Hill's investlgation proceeded. I Diane Doherty was the Superintendent of MTEDC at the time of our hearings In this matter She had taken over that position in 1991, subsequent to - the period covered by Mr McKinnon's complaints to the OHRC Some time after the meetlJlg of January 6, Mr Hill spoke to Ms. Doherty to inform her of Mr McKinnon's complaint and get her directions. She directed him to investi- gate the matter, to see if he could identify the source of the message. On Janu- ary 9, 1992 he provided her with the following written report: On Monday, January 6, 1992 at approx. 17.20 hours, C.O 2 McKInnon indicated to me that he wished to complain about some comments about himself and his wne on the O.M.S. computer system. Mr McKinnon, Mr D Miller, C.O 1 Renme, Sgt. Melville and I convened m the boardroom shortly after and the followmg took place. C.O 1 Rennie had reported to Mr McKinnon that she had observed some comments on the O.M.S. computer training system accessed by CICSMCSD, CENT05, CENTOS under the name of SFOOPB on January 5, 1992 at approx. 18:30 hours. These comments were about Mr McKinnon and a reference to Mr McKinnon's wne. Please see attached report from C 0 1 Rennie. Since C 0 1 Renme admIts to erasmg the comments from the computer screen, when asked who else had seen these entnes, C 0 1 Renme named COl Snow and C 0.2 Williams, An occurrence report was submitted by C 0 1 Snow C 0 1 Renme went to explam how a system of communicatIon eXIsted between institutions and also withm the mstitution, i.e. terminal to terminal. I concluded the meeting with Mr McKinnon by assuring him I would look into the matter and adVISe hrm of any [mdIngs. The followmg notes have been made to date on informatIon gathered. NOTES FROM INVESTIGATION 1 By accessing the O.MB system through the staff training code CICSMCSD, CENTOS, CENT05. Search for SPOOPB call-up lme numbers reqUIred and press ENTER and then select PF3 twice to menu and select 2 AdmIt. & Discharge. Then select 17 "Marks and Scars" and VIew message. SFOOPB IS the client's name and stands for "Secret Fraternity Order Of ProvmcIal Buckets." 2. Nom de Plumes (ahases) are used by all persons accessing the trammg system. See page 2 for list of some user codes at the MTEDC / 3. Deletions are made by users substituting numbers or letters from the I keyboard over SFOOBP entnes. " n ' , ;1 -11- '1 4. Access IS limited to the traming regIon and use of common user codes. Also hours ,of access are hmited,to Monday to Friday, 18:00 hours to 06:00 hours and all day Saturday and up to midnight on Sundays. I 5. Ms Lee Banka, Record's Supervisor IS contacting North Bay to see If deleted information reports can be run off after the fact. 6. During conversation with Mr McKinnon, he mformed me that he had assurances from Mr ,P Mulhern that deleted mformatIon can be accessed. 7 By use of common user codes, it cannot be established who gained entry, where, nor how Only the date and time of any entries can sometimes be determmed. r- 8. In conclusion to the complamt, although I cannot venfy the comments on the computer, nor can I determine direct responsibility to anyone person(s) with the present system in place. The two reports submitted by C 0 1 Renme and C.O 1 Snow indIcate that they dId exist. 9. Through their own admISsions, C.O 1 Rennie and CO 1 Snow, indicate knowledge of thIS commumcatmg process. / 10. A large number of CO's at the MTEDC and the Ministry are accessing this system for commumcating back and forth or using It as a toy 11 I recommend that individual assigned access codes be implimented [sic] as soon as possible to this traming program. Also that the institutions post and/or take the necessary steps to adVIse employee users of the mIsuse of the O.M.S. computer system. If not already advised. 12. It has 'been determined that while flies were changed by renaming the file with corresponding number of keyboard characters, I.e. ZZZ. These were substituted for the aliases to the computer and then deleted, are retnevable up to any time, providing the program is not cleaned out to enable more input to be entered whIch according to North Bay, may be as often as weekly However, if entries are over-wrote, in the "Marks and Scars" menu, by a new message or sunply any keyboard character, then only the change is accessible and the original input is not retrievable. LIST OF USER CODES I Apostle Bluezones Bubbles Cornmeister Cockmeister Coldfrre Deepwaters Dreamwaitmg Goats Jokester Kitty Kat Lilac Romeo Sugar Still Striptease The Posse At this time, only 'Bubbles' is clearly known to me to be CO 1 Snow However, WIth the attached computer pnntouts and comparing shIft schedules, more associations may be determined, with further investigation, if authorized. , '\ j -12- ,- ~ It IS also believed by me that a more extensiveinvestlgatlOn is bemg conducted in North Bay mto the mISuses of this training program. Attachments 1 Sunday, Jan. 5, 1992 Shift Roster Schedule 2. Occurrence Report, C.O 1 Renme 3. Occurrence Report, C.O 1 Snow 4. Computer Printouts - 13. Access being made under the training program can indicate any ins~itution i.e. Barrie Jail, Toronto Jail, Maplehurst, etc. and not necessarily the instltution at the point of mput being made, simply by slgnmg on as that mstltution. 14. Reviewing C 0 1 Rennie's report the quoted statement "How are thmgs at the EAST' leads me to beheve that the message orIgmated somewhere other than M.T.E.n C The computer printouts attached to the menu were examples of "messages" pres- ent in the traIning region database at the time. After receiving 'Mr HIll's imtIal report, Ms. Doherty contacted the head of the systems branch of the Mimstry and asked hIm to have hIs staff determIne what could be done to Identify the author of the message. She also asked the rec- ords clerk at MTEDC, Lee Banka, to speak about thIs wIth people she knew In that branch. She spoke WIth someone at the MIniStry'S legal branch. In addItIOn, she met with Doug Kelly, the OHRC Human RIghts officer responsible for com- plaInts by staff in certaIn provinCIal faCIlIties includIng MTEDC, to advIse hIm of this event concerning Mr McKInnon and SOlICIt any aSSIstance he could prOVIde. Ms. Doherty was imtlally hopeful that the systems branch could supply some InformatIon whIch would help IdentIfy the author of the message UltI- mately, however, they her told that whether the text of the deleted message could be recovered or not (and it seems it could not in this case, because entry had been overwntten and not merely deleted), the system could not prOVIde In- formation about who entered the message or' even about when or where it was entered. Mr Burns, an employee in the systems branch, testified to the same ef- fect In these proceedings, and hIs eVIdence is uncontradIcted. In addItion to efforts to Identify the author of the message, Ms. Doherty addressed the possibility of a recurrence - --,... \ J -13- / .-' 'j " On January 9 Ms. Doherty wrote to a Mr Guillemette in the systems branch. She expressed her concern about the problem of staff using the training regIon for inappropnate messaging and the effect it had on staff in her institu- tion. She asked to be informed of the so~utions or recommendations his branch had for dealing wjth tl11s. On Ms. Doherty's instructions, in approximately the third week of Janu- ary shift supervisors informed staff at parade that this type of behaVIour had / / come to management's attention and was not acceptable, and reminded them I that they were only to use the training region for the purposes intended. On January 23, 1992, Ms. Doherty w~ote to David Parker, who was both the Regional DIrector to whom she reported and the chair of a committee con- cerned with the OMS. She expressed to him her concern about the z;nisuse of the training region to send messages of a derogatory nature. She wrote that her 10- stitution had been unable to identify the user responsible for remarks which she described as "quite disturb 109 " She confirmed that she had by then been told that the plan to discontinue access by general USERIDs, ongmally scheduled for implementation in November 1991, would soon be implemented. She noted that tl11s would enable the MImstry to trace remarks to theIr source. She wrote that she was actively "seeking a remedy" with those responsible for the OMS - ( In her testimony, Ms. Doherty noted that the MTEDC had had an active race relations committee, with union participation, during the period 10 question. She also testified generally that its managers had been tramed in matters of harassment and discrimination in the workplace. Each staff member had been , given a copy of the Ministry's Harassment Policy, and instructions on how to file a complaint. Management and bargaining unit staff had been sent on traimng on human nghts matters, and there had been various forms of m-house traImng. She acknowledged 10 cross-examination t~t some of these training activities had taken place since the events in question. ( \ On January 12, 1992, Mr Hill wrote the following memo to Ms. Doherty' On the matter of C02 McKinnon's complaint of "unwelcome" comments on the O.M.S. computer system. I have reason to believe that Mr McKInnon along with another person usmg the nom-de-plume of COLD FIRE put a message on the SFOOPB system (see attachment #1) on 3rd Jan 1992. And the contents of CO Rennie C 0 Snow . ~ \ ; ) ./ -, - 14 - ~j ~' I occurrence reports showed up on Sunday 5th Jan 1992 from BIGBUBBA whom I 'believe IS C02 Moreau at Barrie Jail. The purpose of this is to kmdle hiS case of estabhshmg a pOIsoned environment at the M.T.E.D C. Attached to this memo was a printout of an entry for inmate "MMMMMMMM, - A-COLDFIRE" with a "DO.B" (date of birth) of "03 JAN 0 I." The stnng of M's might be the result of deletion by over-writing, and IS the same length as the name "BIGBUBBA." The text in the "Marks and Scars" fields for this record'sald. HEY BIGBUBBA. .DROP ME A LINE AND HELP TO KEEP THE FIRE GOING .IN TILL 2300. FIRE OUT 1923 Mr Hill testified that the Mr Moreau referred to m his memo had formerly been employed at MTEDC He said he remembered Mr Moreau's haVing said, refer- ring to himself, "never fear, big bubba's here." Mr McKinnon testified that he had not used the traIning region to ex- / change messages WIth other staff. He demed haVing any mvolvement m the en- tering of the message about which he had complained. He was greatly offended by the suggestion m Mr Hill's memo of Japuary 12 (about whIch he apparently first learned as a result of productIOn of documents by management m connec- tion WIth these proceedings) that he mIght have been responsible for a message of this nature concernmg his wIfe Ms. Doherty acknowledged having received the memo of January 12 from Mr Hill. She testified that Mr Hill's hypothesis did not affect her response to Mr McKinnon's complamt. She wanted mformatIon which would prove the Iden- tity of the source of the message. Her concern was whether Mr HIll could prove who was responsible for It. He dId not have proof of this hypothesis, she saId, nor of any other ongm for the message. She remamed hopeful that the mvestIgatIOn could be advanced by mformatIon from the systems branch. She noted that many of the steps she took, including the meeting WIth Mr Kelly, were taken after she receIved the memo of January 12 Ms. Doherty met with the gnevor about his complaint on two occasions pnor to his filing the grievance now before us. The first was a brief meeting in January with Mr McKinnon and Mr Miller Ms. Doherty testified that It took place before she received Mr Hill's wntten report of January 9 During that meeting, Ms. Doherty told Mr McKmnon that management was attemptmg to ~ '-, .J /,h -15- J -,- \! find out who entered the message, and that she would get back to him when they had more informatiQn. Mr McKinnon testified that during .tlus meeting she tned to mInimise the seriousness of the incident, and suggested to him that the mes- sage might have been a "prank." She testified that that was not her recollection, that she had thought it was a lot more than a "prank" and that she had taken and still took the matter very seriously Prior to the second meetIng WIth the grievor, on February 7 the systems branch finally made the traIning region Inaccessible to those USIng general US- ERIDs. Thereafter, users could only access the traIning region by entering a valid individual USERID Between his first and second meetings with Ms. Doherty, on January 23, 1992 Mr McKinnon wrote to the Deputy Minister to complain that he was con- tinmng to suffer harassment as a result of his earlier complaInts to the OHRC After referring to several other incidents to which no reference was made in tes- timony before us, he said this about the event in question here. -.. On Jan. 6 1992 I was informed by a fellow staff member that she had seen my name displayed on the government computer system. When I questioned her as to the nature of it's [sic] use, I was told that comments were there for all to see (province wide I might add), statmg someone "would be seeing me in court", asking if my wile was "still seemg a Black manr', Further to this a report was submitted by yet another staff member mdicating it also had printed in the screen that my wife was "fuckmg a Black man" After describing lus meetIng WIth Messrs. Melville and Hill, lus letter asserted -J that Since that time I have been adVIsed that Sgt. Melville, when talking to staff / indicated that they "shouldn't worry because nothmg will be found" What, il anythmg, does that mdicate? This quite serious allegation was not pursued before us. There was no evidence , and no suggestion that eIther Mr Melville or any other member of management offered anyone assurances of the sort alleged In Mr McKinnon's letter On or about February 18, 1992, Ms. Doherty met again WIth Mr McKin- non and Mr MIller She told them that neIther they nor the systems branch had been able to Identify the Individual responsible for the message. She described the steps taken up to that point, including ~he correspondence with the systems branch and her contact WIth the OHRC Her recollection is that at that pOInt she had still not received a definitive response from the systems branch, and that she '" --- i '-- ---.. ) ) ) -16- 'i,. ~ was still hopeful that m future they might learn something on winch they could take action. She told them that head office and the systems branch were still looking at the matter She testified that she asked Messrs. Miller and McKInnon whether they had any suggestions as to other strategies management might pur- sue. They offered none, she said. Messrs. Miller and McKinnon both testified that at this second meeting , Ms. Doherty told them that the investigation had narrowed it down to some in- dividuals. When this' was put to her in cross-examination, Ms. Doherty saId the code names BIGBUBBA and COLDFIRE had been Identified, and that the per" ,/ sons who used those code names, whoever they were, were the individuals m question. She acknowledged that she had not given that explanation at the meetmg. It was also put to her that she told them she had "handed over" the m- vestigation to Mr Kelly at the OHRC Ms. Doherty testified that she told them ( that she had contacted Mr Kelly, notified him about the mCldent and asked for his aSSIstance. She saId It was Mr Miller who had suggested that involVing the OHRC amounted to deflectmg her own responsibihty to pursue the matter She saId that she responded to that suggestion by reVIewmg what she had done, m- VIted them to suggest other things she could do and got no response. Mr Miller testified that at this meetmg Ms. Doherty said Mr. Hill had conducted an investigation and had gone as far as he could go, that neIther they nor the systems branch had been able to determme who had entered the mes- sage, although they had, m Mr Miller's words, "nailed it down to a few culprits," and that they had turned over documents to Doug Kelly "so that he could inves- tigate the matter also." Ms. Doherty also gave them copies of vanous correspon- dence, mcludmg the memos to Messrs. Gwllemette and Parker Mr Miller saId that one of his concerns was why the investigation had been "turned over" to the OHRC "WIthout telling me." He also questioned why management could not find exactly who had done it smce, he said, they knew the time when the entries were made and the location where the entries were seen. He stated that he did not beheve that a spectacular mvestigation was required. "We had the area cordoned off," he saId, and they "just had to ask questions and get answers." He testified that he put that to Ms Doherty at the meeting, but does not remember her response. ,..' -- f ~ , i .- "- \ f } 1 ~ -17- \ -, I I- At one point in his testimony Mr Miller said that what he was told at the meeting of February 18 made him think that management was washing its hands of the matter At a later point, however, he said that tpe sense he had at the end of the meeting was that the person responsible would be Identified and "they would let us know" He acknowledged that there was no request for a fur- ther meeting before the grievance of March 11, 1992 was filed. Mr McKinnon testified that at this second meeting with Ms. Doherty "they shovelled a few papers at me," saId what the MInistry was domg, con- fir-med that they had retrieved information from North Bay and then said the investigation had been handed over to the OHRC He mterpreted tlus to mean that Ms. Doherty was deflecting her responsibility to the OHRC He denied that she said the Institution could not tell who had made the entry He demed that \ she saId that the people in North Bay could not tell eIther He could not explain why Mr Miller would have testified that she had saId both these things at tlus meetmg He acknowledged that he was quite emotional about the subject matter of the meeting. Unlike Mr Miller, the sense Mr McKinnon had at the end of the meeting was that "they were going to bury it," He was disgusted. He saId he be- lieved that Ms. Doherty knew who had put the entry in, and was covenng up In cross-examination he asserted WIth some vigour that Ms. Doherty "hates me " Ms. Doherty was cross-examined extensIvely about Mr Hill's mvestIga- tion. It was put to her that she ought to have known from his memo of January 12 that Mr Hill could not conduct an impartial investigatIon. It was also put to her that Mr Hill could have interviewed employees other than those referred to in his reports, and that lus failure to do so should have mdicated to her that he I was not InvestIgatmg thoroughly Ms. Doherty said It was her ImpreSSIOn that the memo of January 12 did not reflect Mr Hill's personal feelings, but SImply provided info~atIon he had obtained. From her conversations with lum, she saId, she thought he remained objective and open to other possiblbtles. She ac- knowledged that Mr Hill had the authonty to interview anyone he wished 10 connection WIth his investigation. She testified that she dId not tlunk It hkely 10 her Institution that someone would come forward WIth Information agaInst an- other She assumed that Mr Hill thought It would not do much good to intervIew further WIthout the benefit of more Information about when and where the entry was made, so that It was sensible (she thought) to wait to see whether the sys- \ ," r') -.. ) -18- , tems branch could supply such information. She observed that mtemewing wit- nesses takes time and energy, and may be counter-productive if people take the wrong message from it. She thought it would be inappropriate to be intemewing people if there was no apparent reason to suppose that they had any useful in- formation. She did not dunk it appropriate to bring in the Mimstry's mdepend- ent investigation unit when there was no information for investigators to follow up Mr Hill was cross-exammed extensively He demed that lus memo of January 12 reflected a "concluslOn" on his part. He said it w~s a possiblhty, not a conclusion. He resisted the suggestion that lus memo was meant to identify the most hkely possibility He said he thought there had been two occasions on which he had heard Mr Morrow refer to lumself as "Big Bubba." He thought these oc- casions might have been in 1987 It was put to lum that he mvented tlus hy- pothesis in order to create an obstacle to Mr McKinnon's pursUlng his como, plamts against management under the Human Rights Act. Mr Hill demed tlus, saying he did not understand how It could be an obstacle. He said the purpose of his memo was to bnng the possibility described in it to the attentlOn of the Su- perintendent. Dunng cross-exammation of Mr. Hlll1t was put to him that Mr Moreau would deny his claim that he had described lumself as "Big Bubba." The form of the question suggested that Mr Moreau had been told what Mr Hill had said in lus testimony" and had then been asked whether It was true. Counsel confirmed that Mr Moreau had beenquestlOned in that manner We observed that If the umon intended to call Mr Moreau, then this appeared to be a breach of the order excluding Witnesses which the board had made at the outset. That order, as ex- pressed by the chair, reqUlred not only that (with certam exceptions) potential witnesses were to remain outside the hearing room and make no attempt to de- termine what testimony was given in it, but also that those who remained m the hearing room were to have no communicatlOn with excluded Witnesses concern- ing the testimony given by others. After considering the matter, union counsel acknowledged that die act of informing a potential Witness of the specific content of the testimony of another witness had been a "techmcal" breach of the order There then ensued a debate about whether, as employer counsel arg~ed, ,the union was or should be pre- 1 -- I i -19- " cluded from calling Mr Moreau in reply, as union counsel said he intended to do. We dealt with that question on the basis of wntten argument between hearings. The parties' written submissions referred to a number of authorities, in- I cluding Re United Brotherhood of Carpenters & Jomers of America, Local 1525 and Norfab Homes Ltd. (1975), 62 D.L.R. (3d) 516 (Alta. S. C), Re Toronto Star Newspapers Ltd. and Southern Ontano Newspaper Guild, Local 87 (1992), 28 L.A.C (4th) 444 (Springate), Sermce Employees' Internatl,Onal Umon, Local No 333 v Nipawm D1,Stnct Staff Nurses Assocmtl,On of Nipawin et al. (1973), 41 D.L.R. (3d) 6 (S C C), Syndl,cat Des Employes Professl,Onal de l 'UnwerSl,te du Ouebec a Tro1,S-Rwl,eres v Unwersl,te du Ouebec a Tro1,S-Rwf,eres, Larocque et al., m1,S en cause (1993), 101 D.L.R. (4th) 494 (S.C C), OPSEU (Tlnbert et al.) and The Crown m Rl,ght of Ontano (Mimstry of Correctl,Onsal Servl,ces), unreported decision of the Ontario DIVIsIonal Court dated February 6, 1984, Re Inland Natural Gas Co. Ltd. and Internatl,Onal Brotherhood of Electncal Workers, Local 213 (1985), 22 L.A.C (3d) 104 (Shier), Dobberthum v The Oueen (1974), 50 D.L.R. (3d) 304 (S.C C), Moore v Lambeth County Court Reg1,Strar, [1969] 1 W.L.R. 141 (C.A.), Rex v Carefoot, [1948] 2 D.L.R. 22 (Ont. H. C), Crawford and Crawford v Ferns, [1953] 0 W.N 713 (Ont. H. C), and Be Hospttal Employees' Umon, Local 180 and Peace Arch Dl,stnct Hospl,tal et al. (1989), 57 D.L.R. (4th) 386 (B C C.A.) Both parties acknowledged that the fact of an excluded witness's havmg become aware of the testimony of others before testifying him- or herself could and should be considered m assessing the weight his or her testimony should be given. Both parties also acknowledged the Supreme Court's statement in Dob- berthum, supra, that a court has a dIscretion whether to receIve the testimony of a witness who has remained in the courtroom and heard other witnesses testify despIte an order excludmg WItnesses. They each accepted that this board had a similar dIscretion with respect to a witness who learned of the testimony of oth- ers as a result of a breach of an order excluding witnesses. I The union argued that we should exerCIse that discretion in favour of hearing from the witness, and that the breach of the order should only be a con- sideration in assessing the weight to be given to that eVidence. Counsel for the employer argued that we should exercise our discretion against hearing from Mr Moreau. He noted that the CIrcumstances before us were different from those ad- ( . \ ,- \ , ; -20- W dressed in many of the decisions cit~d, because here it was not a witness who violated the order but a person acting on behalf of the party calhng the witness. Counsel argued that that was a relevant consIderation, as was the fact that the subject on which the witness had been "tainted" by the breach was the only sub- ject about which the union proposed to have him testify Counsel for the em- ployer submItted that we would never be able to determine the extent to winch ", the breach of the exclusion order had- affected what Mr Moreau might otherwise have said, and that since the order applied to both parties it would be "unfaIr to the Employer to allow the UnIon to breach the rule and then call Mr Moreau." Having consIdered all of the partIes' submissions, we were not prepared to say as a logIcal matter, WIthout having heard Mr Moreau's testimony, that his . haVIng learned what another WItness had testified about the subject he would be called to address would inevitably result m our aSSIgning his testimony no weight. There was then the question whether the fact that our order had been breached nevertheless warranted our refusmg to hear his testimony Although the majonty and dissenting Judgments m Dobberth~en both speak of a court's haVIng a discretIOn not to hear from a WItness who has re- mained in the courtroom in breach of an order excluding witnesses, neither con- sidered the basis on which such a discretion should be exercised. The issue they addressed was whether, having permitted such witnesses to testify in reply, a tnal judge had improperly failed to cOIisIder the effect the breach should have on the weight to be given to their testimony Dobberthum does not aSSIst WIth the question whether anything about the breach other than its effect on the value of the WItness's eVIdence is a proper consIderation m the exercise of the discretion. In Re Island Natural Gas, supra, the arbitrator's recital of one of the par- ties' arguments mcludes a passage from Winter v Mixer et al. (1852), 10 U C Q.B 110 at page 112 That passage suggests that if the person who diso- beyed the exclusion order is a party, and not Just a witness whom the calling party could not control, then that party's contumacy mIght be a consideration m exercismg the discretIOn against him or her This proposition does not appear to have been addressed directly by any of the more modern cases CIted. The diso- bedience in Crawford and Crawford v. Ferns, supra involved a party's having spoken to excluded WItnesses whom her counsel later called to testify on her be- half. It does not appear that this formed the basis of any objection to their giving () - ) I -21- i testimony, however, and the Court simply took the apparent effect of the party's conversation with them into account in assessing the weight to be gIven to their evidence. In Rex v Carefoot, supra, Lebel, Jobserved that "- if witnesses remain in Court after an order has been made for their wIthdrawal, a Court has no right to exclude their testunony however much a witness' disobedIence of the order may lessen the value of his evidence and render him liable for prosecution for contempt. Edmund Davies, L.J made an obtter observation to the same effect in Moore v Lambeth County Regestrar, supra, at page 142 The disobedience In Carefoot was that of a non-party WItness, however, and Justice Lebel's observation in that case appears to be inconsistent with the existence of the discretion later referred to by the Supreme Court in.Dobberlhum. In short, the cases cited dId not aSSIst us on tlus partIcular point. ..0 In disposing of the issue before us we assumed, WIthout deCIdIng, that there may be circumstances in which a party's haVing Violated an order exclud- I ing WItnesses by informing an excluded WItness about the testimony of others will justify a tribunal's refusal to hear from that witness, even though the tribu- nal cannot say with confidence that the nature of the violation has rendered the 'witness' testimony valueless. It was very clear to us that while the communica- tion which Violated the order here was not aCCIdental, the violation itself was in- advertent. There was no conscious intention to evade the' constraints of the order The inadvertence is not WIthout consequence. at very least, the most Innocent of violations puts the value of the witness' testimony in doubt, addIng an obstacle to its acceptance It seemed to us that for a violation to warrant a further pum- tive consequence, one which might in other circumstances amount to a denial of --- natural Justice, that Violation would have to be consIderably more egregious than the VIolatIo~ here. We ruled that we would not preclude the union from calling Mr Moreau, but would take the breach IOto account in assessing the weIght to be , given to his testimony Mr Moreau testified In reply that the only DJckname by which he was known when he worked at MTEDC was "Knuckles," which he said sprang from his difficulty WIth computers. He said he had never referred to lumself as "Big Bubba" and that he had "no knowledge" of OCcaSIOns in wluch he was alleged to have said "never fear, Big Bubba's here" in Mr Hill's presence ~, ~ .-- \: -22- ~ Argument In argument, union counsel submitted that there had been two separate acts of discrimination contrary to Article A for which the employer was respon- sible. The first act of discrimination was the existence of the message about Mr ) McKinnon and his wife, whIch counsel argued was an act of discrimmation for which the employer was strictly liable or, alternat~ly, liable as a result of Its failure to take appropriate steps to preclude such an act after it became aware of the potential for abuse of the training region in May 1991. A bad faith failure to conduct an adequate mvestIgation was employer's second act of dIscrImmatIon, he said. He invited us to conclude that there had never been aI;lY mtent to con- duct a thorough mvestigation. He submItted that the real object of manage- ment's response had been to send a message to Mr McKInnon that It dId not share hIs concern that he was bemg dIscrimmated against on the baSIS of race, I and that the message was the type of treatment he could expect to recei~e if he persisted m raIsmg these issues WIth the MImstry and the OHRC. Indeed, he inVited us to conclude that the mvestigation was seIzed upon by Mr Hill, with the taCIt approval of Ms. Doherty, as an opporttimty to sabotage the gnevor's complaints to the OHRC Counsel argued that while the text of the message made no reference to the grievor's race or ancestry, it was clear from the message's reference to court "- proceedmgs that there was a causal connection between the gnevor',s complaints to the OHRC and the message's threats and insults. He submitted that threats and insults a,re acts of discrimination if they are delivered as a reaction to the j victim's having complained about discrimination. He referred to Brooks v Can- ada Safeway Limtted [1989] 1 S C.R. 1219 at pages 1234-5 concerning the defi- nition of discnmmation. He cited Toth v Sassy Cuts Inc. (1987), 8 C.H.R.R. D/4376 (B C.H.R.C ) for the proposition that conduct whIch is neutral on ItS face may be found dIscnmmatory in context. He also referred to Dhtllon v F W Woolworth Company L~m~ted (1982), C.H.R.R. I;>1743 (Cummmg) and Re The Crwon In R~ght of Ontano (Mimstry of Government Sermces) and Ontano Publtc Sermce Employees Umon (Kimmel/Leaf) (1991), 21 L.A.C (4th) 129 (Kaplan) Counsel argued that the language of ArtIcle A, mterpreted purpOSIvely, was broad enough to prohibIt adverse treatment of an employee when It IS motIvated by the individual's having complained of dIscrimmatIon on one of the enumer- ated grounds. "\ ~-, "'~ ) \- -23- \ It" Umon counsel noted that Dhillon, supra, speaks of an employer's being responsible for an employee's being subjected to racial slurs by non-supemsory employees when It knew of the harassment and failed to take reasonable steps to end the abuse. While he submItted that the employer here was liable on that test, he saId the union's primary posItion was that the employer was strictly li- able on the baSIS of the decision of the Supreme Court of Canada in Rob~chaud v The Queen (1987),87 CLLC ~17,O25 ( Employer counsel's primary argument was that the employer had acted reasonably throughout, and that that was a complete answer to the gnevance. He noted that the offensive entries found in May 1991 did not appe~r to be moti- vated by race or any qf the other factors referred to in Article A. He argued tha~ the employer's response to the potential demonstrated by those May 1991 entnes was reasonable, beanng in mind the genuine need for the training field, the diffi- culties which stood 10 the way of implement10g individual user codes for the en- tire user base, the fact that the had been only one isolated act and the fact that the other imtiatives taken by the employer at the time Initially appeared to have discouraged any recurrence of such conduct. He also noted that the union dId not cnticize management's response at the time. Employer counsel argued further that reasonable steps were taken to de- termine who was responsible for the message discovered in January 1992. Other reasonable steps were also taken to prevent a recurrence: the parade warnings, the increased pressure to implement individual USERIDs as the only means of ,( access, Ms. Doherty's other representations to the systems branch and to her su- penors, and the meetmgs WIth Mr McKinnon and his advisor to mform him of the actions taken and SOliCIt his input as to other actions that might be taken. All this was 10 a context, he noted, in wluch the Institution had '10 place a harass- ment policy reinforced by postings 10 the workplace, a race relations commIttee, and race relations traIning and seminars 10 human rights matters for manage- ment and staff. Employer counsel also argued that the appearance of the message could not fall witlun ArtIcle A, as there was no evidence that it was racially based. Even if we found It was raCIally based, he submItted, ItS appearance in the workplace could not amount to .discnmination, in the sense intended by Article A, which he argued was the same sense 10 whIch that term was used 10 the On- \ ,_. ~ \ i / - 24 -' " of tario- Human Rights Code ("the Code") He cited the decIsion of Professor Krever (as he then was) sitting as a Board of Inquiry in Sl,mmS v Ford of Canada (June 4; 1970) that the utterance of a racial epithet by a supervIsor on a smgle occasion did not amount to a violation by the employer of the Code's prohibItion against discrimination in employment. Counsel argued further that If the message was racially based and had been part of a course of conduct, rather than an isolated act, that course of conduct mig~t have amounted to harassment, rathe:r than dIS- cnmination, within the meaning of the Code. He argued that harassment dId not fall within ArtIcle A. I. I. Employer counsel submitted that the substance of the union's complaint about the employer's response to the message was that It amounted to a repnsal for his earlier complaints to the OHRC He noted that the Code dealt wIth repnsal m a prOVIsion distmct from the ones which prohibIted dIscnminatlon, and argued that repnsal conduct dId not offend ArtIcle A's pro- hibition of discrimination, however much It might offend the apphcable proVI- sions of the Code ,Decision Whatever may have motivated the person who placed the message in questlon in the Mimstry's computer, IDS or her conduct was indefensible. Indeed, if that person had any knowledge of Mr McKinnon's wIfe's circumstances, his or her conduct was reprehensible. We have no difficulty understandmg Mr McKinnon's wanting to find ,out who that person was, nor IDS frustratIOn when he found that he could not. The validity of Mr McKinnon's feelings IS not in issue here, however What is in issue IS the correctness of his claim that man- agement breached ArtIcle A. For the reasons which follow, we are not persuaded that it did. Employer Liability Under Article A For Employee Conduct As we noted earher, Article A of the parties' collective agreement prOVIdes, in part, that A 1.1 There shall be no discriminatlOn practIsed by reason of race, ancestry, place of origm, colour, ethnic ongm, citIzenship, creed, sex, sexual orientation, age, mantal status, family status, or hanchcap, as defmed m section 10(1) of the Ontano Human Rights Code (OHRC) - r' r ~ --- - , I j -25- .l This text comes from the parties' 1992-93 collective agreement. Except for a change In the section number referred to, It correspond~ with the text of Article A.l of the previoUs agreement. The 1992-93 agreement added Article A.1.2, I which provides that '\ I A1.2 There shall be no discrunination or harassment practised by reason of an employee's membership or activity in the Umon. By Article 86 1 of the 1992-93 agreement, the effective date of changes from the previo~ agreement IS February 4, 1992 Neither agreement defined lldiscrimination." The 1992-93 agreement did not define llharassment." The partIes negotiated these provisIons in a context in which the Ontano Human Rtghts Code, R.S.O 1990, c.H.19 (lithe Code") also addressed matters of lldiscrimination" and llharassment." Section 5 of the Code provides that 5. (1) Every person has the nght to equal treatment with respect to employment wIthout discnmmation because of race, ancestry, place of ongin, colour, ethnic origin, citizenship, creed, sex, sexual onentation, age, marital status, family status, or handIcap (2) Every person who is an employee has a rIght freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of because of race, ancestry, place of origm, colour, ethnic origin, citizenshIp, creed, sex, sexual orientation, age, marital status, family status, or handicap Subsection 10(1) of the Code proVides that "harassment" means engagmg in a course of vexatious comment or conduct that is krtownor ought reasonably to be known to be unwelcome. Section B of the Code expressly provides for the right to enforce rights and re- spect the rights of others without repnsal or threat of repnsal for so doing Sec- tion 9 prOVides that 9. No person shall infringe or do, directly or indirectly, anything that infringes a right under thIS part. Section 41 of the Code prOVides that 41. (1) Where the board of inquiry, after a hearing, fmds that a right\ of the complainant under Part I has been infringed and that the infnngement is a contravention of section 9 by a party to the proceedmg, the board may, by order, (a) drrect the party to do anything that, ill the opilllOn of the board, the party ought to do to achieve compliance with this Act, both m respect of the complaint and in respect of future practices; and '" -26- ~ (b) direct the 'party to make restItution, mcluding monetary compensation, for .loss ansmg but of the mfringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not excee~g $10,000, for mental anguish. (2) Where a board makes a finding under subsection (1) that a right is infrInged on the ground of harassment under subsection 2 (2) or subsection 5 (2) or conduct under section 7, and the board finds that a person who is a party to the proceedmg, (a) knew or was in possession of knowledge from whIch he ought to have known of the infringement; and (b) had the authority by reasonably available means to penahze or prevent the conduct and failed to use It, the board shall remain seized of the matter and upon complaint of a continuatIon or repetition, of the mfringement of the nght the Commission may investIgate the complaint and, subject to subsectIon 36 (2), request the, board to re-convene and if the board finds that a person who is a party to the proceeding, (c) knew or was in possession of knowledge from which he or she ought to have known of the repetition of infrmgement; and (d) had the atithonty by reasonably available means to penalize or prevent the continuatIon or repetItIon of the conduct and failed to use It, the board may make an order requrrmg the person to take whatever sanctions or steps are reasonably available to prevent any further cpntmuatIon or repetition of the infringement of the right. The decisIOns in S~mm v Ford of Canada, supra and Dhillon v F W Woolworth Company L~m~ted, supra, dealt WIth complamts whIch pre-dated the introduction into the Code of the proVisions which deal expressly WIth harass- ment. Those Ontario decisions consIdered whether an employee's bemg subJected to racial epithets by a supervisor or fellow employee constituted a contraventIOn by the employer of the then provisIOns 'of the Code. They concluded that an em- ployer would be liable with respect to employee misconduct only if It wa~s aware bf the misconduct and did not take reasonable steps to bring it to an end. In I . 1970, Professor Krever reasoned (at pp 15 and 16 of the deCISIon m S~mm v I Ford of Canada) that l an employer who, knowing that he may not, WIthout VIolating the Code, refuse to employ a qualified applicant for employment because of hIS colour or race, employs a pe:r:son and then stands by Idly in the knowledge that his supervisory personnel, or, mdeed, any employees, are making him uncomfortable in the plant by usmg insultmg terms with reference to hIS colour or race, VIolates the Code. In those circumstances., it may be said that the employer is discriminatmg agamst that person with regard to a condItIon . ~' -27- :~ of employment because of his race or colour Indeed there may even be an obligation on an employer to take positive steps to prevent the occurrence of such conduct; the mere announcement of a policy against conduct of that kInd may be insufficient. But where an employer has adopted a policy against discriminatory treatment, has admonished his supervisory personnel against abusive treatment of, or language agamst, any employee and IS unaware, and has no reason to believe, that those mstructlOns are bemg disobeyed, It is inconceivable to me that the employer automatically becomes guilty of a violation of section 4 of the Code when, on an isolated occasion, a supervisory employee uses racially abusive language against an employee, particularly as the use of that racIally abusive language is not by itself an offence on the part of the supervisory employee. It is quite otherwise, of course, if that abuse IS repeated and becomes a course of conduct. In 1982, shortly before the Code was amended to specifically address ((harassment," Professor Cumming (as he then was) reViewed the questIon at length In Dh~llon v F W Woolworth Company L~Tmted and (at paragraph num- bered 6724) concluded that verbal racial harassment, through name-calling, in itself, IS in my view prohibited conduct up.der the Code. The atmosphere of the workplace is a "term or condition of employment" just as much as more visible terms or conditions, such as hours of work or rate of pay The words "term or condition of employment" are broad enough to ,include the emotIonal and psychological circumstances in the workplace. There is a duty on an employer to take reasonable steps to eradicate this form of discrimination, and if the employer does not, he is liable under the Code. In Dhillon, Professor Cumming found that there was regular and signifi- cant raCIal harassment ofiemployees of East IndIan origin In the employer's warehouse, that management was aware of this and that management had done nothing to disciphne the employees responsible or to promote inter-racial com- mumcation and harmony Indeed, he found that management's "overall attitude was that verbal racial abuse was an inherent, if unsatisfactory, incident of the ~ warehouse work enVironment." He found against the employer WIth respect to that employee conduct, but not with respect to anonymous racial Insults wntten on washroom walls: 6680 There was much eVIdence about the racial insults on the washroom walls. It is not disputed that there was a considerable amount, although it seems there was a great deal of graffiti generally on the washroom walls. (Evidence, vol. 11, pp. 118. 119, 148, 149) The evidence was that the walls were regularly washed, painted in the "normal rotation" (Evidence, vol. V pp, 80, 81), and that management would dismISS any employee caught writmg on the walls. (Emdence, vol, III, p 41). This despIcable practice of racial insults upon the washroom walls is difficult to control, but certainly not condoned by management. Moreover, I do not think there was sufficient evidence m the instant case to say that management did not take reasonable ! ,a -28..... ~ - steps to control the problem. These [sic] are practical limitations upon the controls it might impose. In Rob~chaud, supra, the Supreme Court of Canada consIdered whether a Review Tribunal constituted under the Canadian H UIilan Rights Act had cor- rectly concluded that the Department of Natioi:1al Defence was "stnctly lIable" under that Act for the actions of its supervisory personnel. The issue arose when one of that employer's supervisors engaged in sexual harassment of an employee placed under his SUpel'VlSlon. The Canadian Human Rights Act prohibIted dIS- cnmination "In the course of employment," but did not then specIfically address the question of an employer's liability for acts of its supervisors and other em- ployees (as the legIslation was later amended to do) The court saId the Issue was the meaning of the phrase "in the course of employment", which was to be inter- preted having regard to the provisions and objectives of the legislation. The court took particular note of remedial provisions of the Act which contemplated that a person found to be engaging in discrimination might be required, among other tlungs, to "take measures, including adoption of a special program, plan or ar- rangement , to prevent the same or a sImIlar practice occurring In the future," as well as those which contemplated the reInstatement of VIctims of dIscrimIna- tion. The court stated that these remedIal obJectIves would be stultified If a rem- edy could not be awarded against an employer WIth respect to the conduct of its supervisors. It quoted with,approval the observations of Marshall J, In Mentor Savmgs Bank, FSB v Vinson, 106 S. Ct. 2399 (1986), at pp 2410-11 concermng sexual dISCnmInatIon by supervisory personnel. An employer can act only through inmvIdual supervISors and employees, discrimination is rarely carried out pursuant to a formal vote of a corporation's board of drrectors. Although an employer may some tunes adopt company wide discriminatory policies VIolative of Title VII, acts that may constitute Title VII violations are generally effected through the actions of individuals, and often an individual may take such a step even in defiance of company pohcy Nonetheless, Title VII remedies, such as reinstatement and backpay, generally run against the employer as an entity A supervisor's responsibilities do not begm and end with the power to hIre, fire, and disciphne employees, or with the power to recommend such actIOns. Rather, a supervISor is charged with the day-to. day supervISIon of the work environment and with ensuring a safe, productive, workplace. There is no reason why abuse of the latter authority should have different consequences than abuse of the former In both cases it IS the authority vested in the supervISor by the employer that enables hun to commIt the wrong' It IS preCIsely because the supervisor is understood to be clothed WIth the " '" -29- v: employer's authority that he is able to impose unwelcome sexual conduct on subordinates. It concluded that the statute under consideration imposed habihty on employers "for all acts of theIr employees 'in the course of employment', mterpreted in the purposive fasmon outlined earlier as being in some way related or associated with the employment." One of the issues before us is whether the language of ArtIcle A makes the employer "strictly" or vicariously liable for the conduct of the individual who en- tered entry in question m the OMS traIIring regIon. Weare not persuaded that the Supreme Court's deciSIon in Rob~chaud supports the union's p~sition on this issue. The Court was concerned there WIth an employer's habihty for the conduct of a supervisory employee toward an employee over whom he exercIsed supervi- sory authonty, under a statute wmch had remedial and other provisions which suggested that an employer's vicarious responsibility thereunder must be broader than ItS responsibility for the cnminal or tortious conduct of supervisors. '- While we accept that the person who made the entry m question here was most likely an employee, there is no evidence that that person was a supervisor There are no remedial or other provisions in the collectIve agreement which suggest that the employer undertook broader vicarious responsibility for employee con- duct under Article A than It bore under other provisions of the, agreement. We are not persuaded that a single dlscnmmatory act by one employee toward an- other which the employer has neither authorized nor encouraged nor enabled by the conferral of supervisory authority amounts to a breach by the employer of Article A. That does not mean that Article A -imposes no responsibihty on the em- ployer WIth respect to discnminatory treatment of one of its employees by an- other Even though ArtIcle A does not address the matter as directly as the Code does, the employer does not dispute and in any event we are satisfied, for the reasons set out in S~mm and Dhillon, that the employer's obligation under ArtI- cle A not to discrimInate agaInst employees includes an obhgatIon to take rea- sonable steps to ensure that employees are free from discrimmatory treatment by others in the workplace. The employer argued, however, that Article A does not address reprisal conduct - that IS, treatment of an employee m an adverse, unwelcome manner because he or she is purswng or has pursued a gnevance under Article A or a complaint under the Code. It seems to us that the rights con- . ( -30- ~ ferred on employees by Article A would be largely illusory if the employer were free to subject, or to stand Idly by while other employees subJect, a grIevor or complainant to reprisal conduct. The employer's obligation to take reasonable steps to ensure that employees are free from dIscriminatory treatment surely includes an obligation to take reaso~ble steps to ensure that employees are free from reprisal when they properly assert their nght to be free from discnminatory treatment. Obviously, the employer's obligation in that regard IS not conditional on the affected employee's persuading either the employer or the appropriate tribunal that lus or her complaint or grievance IS or was mentorious One of the points in issue here was whether the entering of the offensIve I message into the OMS traImng region database actually amounted to either dis- criminatory or reprisal conduct, having regard to its content and the surrounding circumstances. We have found it unnecessary to resolve that issue. Assuming, without deciding, that the message was the sort of message that ArtIcle A re- quires the employer to take reasonable steps to prevent, we have found that there was no breach of the ArtIcle either before or after the message was seen. We do wish to observe, however, that the fact that the employer treated both the entenng of this message and the entering of the May 1991 message as unaccept- able conduct does not demonstrate that eIther message was of the sort of wmch Article A obhged the employer to take reasonable steps to prevent. An employer has a legitimate Interest in the physIcal and emotional welfare of its employees which goes beyond ItS legal obhgatIOns under the Code and other legIslation. In ( furtherance of that Interest, an employer may legItimately oppose and prohibit any form of dIsrespectful or abusive conduct by one employee toward another, even conduct which is not also unlawf-w or Insubordinate. Management's Conduct Before The Message In Question Was Discovered Whether or not the entry dIscovered in the OMS training region In May 1991 was the sort of commumcation wmch Article A or the Code requires an employer to take reasonable steps to prevent, it demonstrated, if any demon- stration were necessary, that the sample database Intended for legitimate traIning p~oses could serve as the medium for anonymous communications of an inapproprIate and abusIve nature The traImng regIOn shared tms adverse potentll:iJ with pens and paper, telephones and washroom walls, all legitimate and necessary features of the workplace wmch are nevertheless vulnetable to ~ I -31- ~ misuse as a medIum for anonymous communications of a racist, sexist, homo- J phobic or otherwIse discrimInatory nature. ArtIcle A does not require that the employer take every conceivable meas- ure to discourage and prevent potential discriminatory misconduct by employees, wIthout regard to the magnitude of any existing problem of that sort or to the cost or other negative impacts of such preventative measures, which at the ex- treme might conceivably include constant video and audio recording of all em- ployee activities everywhere in the workplace, including the washrooms, and prohibItion of any and every mter-employee commumcation not necessary for the performance of the employees' work. Article A requires that the employer take reasonable measures. What is reasonable at any time depends on the circum- ( stances at that time. At all material'tImes the employer had a published policy prohibItmg conduct which constitutes harassment contrary to the Code. It had procedures m place to receive and deal with complaints about conduct which contravened its policy When the ()ffensIve entry was dIscovered m May 1991, management made It quite clear to MTEDC staff that such use of the Offender Management System was completely unacceptable, and that anyone caught using it m that way would suffer serious consequences which might mclude dIscharge. The umon told staff it would not tolerate actions which create a hostile or offensive work environ- ment. For several months thereafter, there was no further complaint that the OMS traImng regIon had been used for anonymous commumcation of an offen- sive nature, despIte the fact that such use remained physically possible. On the eVldence before us, management could fairly conclude that the steps It and the \ union had taken were an adequate response to the problem presented by the I May 1991 entry The umon says that after the May 1991 entry was discovered, the em- ployer should have expended the addItional resources necessary to expedite the I Issuance of individual USERIDs and ehminatlOn of access usmg the general US- ERIDs and, presumably, the Implementation of such other measures as were necessary to ensure that any entry could be uniquely associated WIth the mdi- vidual USE RID used to log on for the session during wluch that entry was made. We accept that doing that would have tended to discourage messagmg actIVlty generally, and particularly messa~es like the one about Mr McKinnon, altHough ) . -32- ~ we cannot know what effect this mIght have had on the author of the message 10 question. In that respect we note Ms. Doherty's testimony that even after all these identification tools were in place, six then identifiable MTEDC employees (none of whom could be proven responsible for the message about Mr McKinnon, however) contmued to use the Offender Management System for messaging de- spite management's repeated instructions that the OMS was not to be used for other that the intended purposes. Viewing the matter in the context wInch eXIsted both before November 1991, when the elimInation of general USERID access was origInally scheduled to take place, or dunng November and December, when the elimmatIOn had been delayed, there was no apparent need for further discouragement. There had been a single incident, a very clear message that It was unacceptable, and no repeti- tion. While it was Mr McKinnon's position that he had been a victim of har- assment and 'reprisal before the message appeared, those allegatIOns 'were de- r" nied by the employer and there was no attempt to prove them 10 these proceed- lOgS. Without suggesting that such proof would have changed our conclusIOn on this issue, we emphasize that that conclusion had to be based on the eVIdence before us. On that evidence, and assuming that both the May 1991 entry and the January 1992 message were the sorts of messages that Article A requires the employer to take reasonable steps to prevent, we are satIsfied that the steps taken by the employerpnor to January 1992 were reasonable Management's Conduct After The Message In Question Was Discovered The person who ent~red the message about Mr McKinnon had phYSIcal access to a Mimstry terminal from which the OMS could be accessed, knew how to access the training region and was familiar with the conventions of the clan- destme messagmg system wInch some employees were operating 10 it. It IS rea- sonable to Infer, as we have already saId, that this person was one of the roughly 3000 employees of the MIniStry at one of the many institutIOns and offices WIth access to the OMS traimng regIon. The message was addressed to a Mr McKinnon who was "at the East." There IS no suggestion that this might refer to someone other than the grievor It is reasonable to infer that the person who entered the message either knew the - ) ! -33- ,~ .) gnevor or knew of huD.. There is no suggestion that this was a partIcularly small group, nor that it was confined to people employed at MTEDC at the time the message was discovered. Although Mr Miller seemed to think. otherwlse, management dId not know precisely when the offensive message had been entered, but only that it must have been entered some time before Ms. Rennie saw it. They did not know whether it had been entered during that shift or during some prkviousshift. Nor did they know where the message had been entered. While it might have been entered somewhere in the MTEDC, it might also have been entered at a terminal in some other institution. Although they had hoped otherwIse, they found that the computer system itself could not say when or where the message had been entered, or by whom. As a result, there was a very large number of possible cul- pnts. Management was trying to determine who entered the message so that It could take appropnate dISCIplinary action against mm or her To take such ac- tion, the employer needed proof that would satisfy the burden on It in any ensu- mg grievance and arbItration. In the absence of a confessIon, It needed some convincing eVidence of guilt. The umon did not challenge Ms. Doherty's assertion that members of staff were unlIkely to inform on one another When entenng the message, the culpnt would have been aware of the presence of anyone who could see the screen of the terminal as he or she did so. If there was such an eye WIt- ness, it would have been someone the culprit thought was unlikely to mform management. The fact that the computer system was unable to say who entered r - ) the message or even when or where that was done and that, accordingly, there were a great many people at MTEDC and elsewhere who could have entered the message, was a potent defence for anyone who might be accused of the act. During his cross-examinatIons and argument, counsel for the umon sug- gested various things that Mr Hill and Ms. Doherty could and should have done, argUIng ultimately that the failure to do so was dlscnminatory He suggested that Mr Hill could have questIOned Ms. Renme about the code names she was familiar with, or reviewed shift schedules for the time the entry was made or asked Mr McKinnon about who might have entered such a message. He argued that more effort should have been made to-recover the message from the Minis- try's computer, and that Ms. Doherty ought to have called in the Mimstry's mde- - ,. I -34- ~ /" pendent mvestIgation umt. On the evidence before us, it is not apparent how any of those steps could have substantially advanced the mvestigatIon, bearing in mind its purpose Ms. Rennie testified that at the time of the incident she knew the code names used by a few MTEDC employees, but has since forgotten them. She said some individuals had told her a particular code name they tended to use. She testified that she did not know, then or later, the identity of the person using the code name "u_ AAA -- GOT YOU" In any event, it IS apparent that someone could use any code name in a message, including a code name regularly used by someone else. Accordingly, It is not at all clear how knowledge of what others had volunteered to 'Ms. Rennie about their use of code words would have substan- tially advanced the investigation with respect to any particular message Without knowing when or where the message was entered, it IS not ap- parent how the investigation would have been substantially advanced by exam- imng shift schedules. If one did know that the message had been entered durmg a partIcular shift, then examination of sluft schedules (at MTEDC and else- ~ where) mIght have elimInated some mdIVIduals as possible culprits. There IS no suggestion, however, that there was ever a shift or tIme wIthm a sluft when only one person in the province, or only one person at MTEDC, who could have ac- cessed the traimng regIon and enterel;! the message. Beanng in mind the discI- plmary obJect of the investigatIon, it would not have been of much assistance to create a shorter list of persons who could have entered the message, if several - names would have remamed on the list in any event, as would have seemed (and still seems) likely here, I The suggestion that Mr Hill ought to have questioned Mr McKmnon came after Mr McKinnon had testified. McKinnon dId not testify that he had had mformation which was not shared wIth Mr Hill and which might have helped identify the person who entered the message. If he had gIven such testI~ mony, he might then have been asked why he did not volunteer the Information at the time, either to Mr Hill or to Ms. Doherty, particularly when Ms. Doherty asked him, at the meeting of February 18, whether there was any other approach he thought management ought to take. We are not persuaded that the investi- gation was obVIously deficient in this regard. , -35- ,I;.. ( It was also suggested that more effort mIght have been made to recover the offensIve message from the computer in North Bay, the suggestion being that even if it was not recoverable by ordInary means management should have con. sidered extraordinary measures. The employer's answer to this is reasonable. It had a report of what the message had contained. The faGt that there had been such a message was never in dIspute. The changes made to the message by Ms. Rennie apparently could not be undone and, in any event, the need for what- ever might otherwise remain of It was not so great as to warrant extraordinary "- measures. There was also the suggestion that Ms. Doherty ought to have called m the Ministry's mdependent mvestigatIon unit. Her explanation IS reasonable. There were no worthwhile leads to pursue, and it was unlikely t~t further m. vestigation by anyone would produce such leads. We do not accept that the employer nevertheless ought to caused everyone to be questioned who might either have entered the message or know who had, wIthout regard to the likelihood that such a process would unearth either a con- feSSIOn or an Informant. Apart from the cost of such an exercise, there is also the effect on the employees questioned. Without suggesting that it was justified, Mr Miller's resistance to the USERID request form that MTEDC began usmg after the May 1991 incident illustrates how an employees whose commitment to human nghts ObjectIves is undoubted may nevertheless react negatIvely to means which they feel unfairly target innocent employees as potentIal offenders. It wa~ legitimate for Ms. Doherty to consider that employees might take the wrong message from a mass mterrogatIon, and weight that and other more di. rect costs in the balance against the likelihood of achIeving the proper objectIve of the investigation. I Unencumbered by the baggage with whIch theIr past dealings with one another seem to have saddled the particIpants, we fmd it more than a bIt odd that Mr HIll would have constructed and reduced to writing the hypotheSIS set / out m his internal memo to Ms. Doherty of January 12, but thIs1seems no more odd than Mr McKinnon's Initial expectation that Mr Hill would just go through the motions or his behef that Ms. Doherty hated him. It was obviously awkward for these people to deal with each other on a matter in which, on the face of it, they had a common interest. Moreover, they clearly did not trust one another I - if~i ""f'f"~.~ '\ .i '} I -, -36- ~j ~... The memo of January 12 reflected Mr Hill's mIstrust of Mr McKinnon. We are not persuaded that Mr Hill was lying to Ms. Doherty when he saId in his memo that he believed that what he described may have taken place. Weare not persuaded that Mr Hill was lying to us when he said he had thought Mr Moreau might be "BIGBUBBA" because he remembered Mr Moreau haVIng used that name to describe himself once or twice in 1987, when he worked at MTEDC Real or Imagined, those events were of some antiquity, even in 1992 Mr Hill may have been mistaken in his rec911ect~on. Mr Moreau may have been mistaken in his. The questIon is whether the hypothesIs in his memo truly reflected a belief Mr Hill had at the tIme, not whether the hypothesis and the beliefs on which it was based were factually true Without suggestmg that we can see an objectIve ( basis for it, we are satisfied that he dId believe the hypothesis. , There was no eVIdence that Mr Hill's hypothesis was communicated to the OHRC or any other tlurd party in an attempt to dIscredIt Mr McKinnon or derail his complaints. The employer kept Mr Hill's mistrustful thoughts about Mr McKinnon to Itself. The questIon whether management violated Article A m Its reaction to the message must ultimately turn on what it actually did and said, and not on what it may secretly have thought. The steps management took m response to the message m question In- cluded not only its attempts to discover who entered the message but also the parade announcements and the completed ehminatIOn of access by general US- ERID Assuming that that message and, the May 1991 message were commum- - cations of the sort which Article A obhged the employer to take reasonable steps to prevent, we find that the steps that the employer took were reasonable in the CIrcumstances. We recognize the dIfficulty that Mr McKinnon or any other VIctIm of tlus sort of anonymous harassment would have in perceiVIng an InvestIgatIon which failed to bnng lus or her harasser to Justice to be adequate or reasonable. Con- sidered on an objectIve baSIS, however, that aspect of the employer's response was reasonable. While we do not doubt that Mr McKinnon has truthfully de- scribed his subJective perceptions of management's response to his complaint, those perceptIons were clouded by lus own emotional reactIOn to the message about lus wife, and by lus pre-existing behefs about management's attitude to- ward him. Where lus account of his meetmgs with Ms. Doherty dIffers from hers l ~ ,- -37 - "-.~ "'~ we find hers more reliable, particularly smce her account IS, -for the most part, ( corroborated by Mr Miller's. Accordingly, we are not persuaded that by its words or conduct management sent Mr McKmnon a message that it dId not care whether he was being discriminated agaInst on the basIs of race or that it thought that tills sort of anonymous abuse was the sort of treatment he should expect if he wished to pursue his complaints under the Code. Result \ For the foregoing reasons, this grievance is dIsmIssed. Dated at Toronto tlns 12th day of September, 1995 " / ~/ ~d ~ vi lza; , /Go.-//~, - --5' Owen V Gray, Vice-Ch3.lr c% ~--~~ - - ~ E Seymour, Member Q~~ J Miles, Member ~