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HomeMy WebLinkAbout2005-1443.Tardiel et al.13-04-19 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 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 - and - 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. - 2 - 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 - 3 - 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 - 4 - 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 - 5 - 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. - 6 - [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 - 7 - (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. - 8 - [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. - 9 - [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. - 10 - [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 - 11 - 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 - 12 - 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