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HomeMy WebLinkAbout2015-0618.Grievor.22-02-23 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB#2015-0618; 2016-0497 UNION#2015-0234-0074; 2016-0234-0112 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Daniel A. Harris Arbitrator FOR THE UNION Ian McKellar Dewart Gleason LLP Counsel FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Counsel HEARING February 21, 2021 (final submission) - 2 - Decision The Proceedings [1] This decision deals with the implementation of my decision on the merits of the grievances in GSB file No. 2015-0618 et. al. given September 22, 2020. Paragraph 1 of the decision on the merits sets out the matters therein determined as follows: These proceedings encompass two grievances. In the first grievance the Union (OPSEU) alleges that the Grievor was subjected to harassment and subsequent bullying by a co-trainer and his supporters as a result of an incident, which had racial and sexual aspects, that occurred at a staff training session, held in 2014, and that grievance also raised an issue of unjust discipline contrary to article 21.1. That latter aspect of that grievance was settled before the hearing. This first grievance is dated April 21, 2015. The second grievance alleges that the Employer failed to follow agreed-upon protocols. As part of this second grievance the Grievor alleges that she had been told that she would not be scheduled to work with the co-trainer. The Union grieves that this agreement was not honoured and that as a result the Employer failed to take adequate steps to provide the Grievor with a workplace free of discrimination and harassment. Further, the Operational Manager who was said to have inappropriately assigned her, OM Cayton, was also said to have berated the Grievor thereby violating her right to be treated with dignity and respect and causing her humiliation. This second grievance is dated May 10, 2016. [2] In the result, the grievances were allowed. The parties were unable to agree upon the appropriate remedy. They filed written submissions as to their views of the remedies to be awarded. - 3 - The Submission of the Parties [3] The Union submitted at paragraph 1 of its written submission that the highest possible monetary award should be made in favour of the grievor given the finding that the grievor had been “discriminated against on the basis of sex and race when the employer failed to investigate a campaign of hatred against her by a cohort of her colleagues, exposing her to harassment and a poisoned work environment”. It said that damages flow from this Board’s statutory mandate to provide final and binding resolution of employment disputes as well as from its remedial jurisdiction to enforce the Ontario Human Rights Code (“the Code”). [4] The Union submitted that I am to engage in an objective assessment of the impact on the grievor of the breaches found to have occurred in my decision on the merits. It said that the harm caused to the grievor was significant, and the quantum of damages should also be significant. It said that the systemic nature of the harassment experienced by the grievor and the Employer’s decision to ignore the turmoil and failure to investigate it also support a significant award. [5] The Union reviewed the Board’s jurisprudence as well as that of the Human Rights Tribunal of Ontario cited below. It submitted that I should be guided by the HRTO jurisprudence. The Union also reviewed the evidence on the merits with respect to the severe impact on the grievor of the harassment and discrimination she suffered because of the Employer’s failure to act. - 4 - [6] The Union relied upon the following authorities: OPSEU v Ontario (Solicitor General), 2020 CanLII 74251; Charlton v Ontario (MCSCS), 2007 CarswellOnt 4099; OPSEU (Ranger) v Ontario (Ministry of Community Safety and Correctional Services) 2013; CanLII 50479; A.B. v Joe Singer Shoes Ltd., 2018 HRTO 107; O.P.T. v Presteve Foods Ltd., 2015 HRTO 675; British Columbia (Workers' Compensation Board) v Figliola, 2011 SCC 52; Parry Sound (District) Welfare Administration Board v OPSEU, Local 324, 2003 SCC 42; Newfoundland Association of Public Employees v Newfoundland (Green Bay Health Care Centre), 1996 CanLII 190 (SCC); Sanford v Koop, 2005 HRTO 53 (CanLII); Human Rights Code, R.S.O. 1990, H.19. [7] The Employer did not dispute that I have the jurisdiction to enforce the Code, but it disagreed that the facts here attract damages “at the highest scale” or any amount “beyond the amounts awarded” in the decisions relied upon by the Union. The Employer submitted that the GSB has no jurisdiction to award mental distress damages to the grievor. Its position in this regard is captured in paragraph 4 of its written submission, which reads as follows: The Employer submits that the GSB has no jurisdiction to award damages to the Grievor for mental distress, and other WSIA- compensable injuries, as a result of the Employer’s actions or inaction in this case. This follows from the consistent line of jurisprudence that found the Board cannot award a Grievor damages if the “accident or disease is or was compensable under the Workers Compensation Act or Workplace Safety and Insurance Act (“WSIA”), whichever applies.” The GSB decision that grounded this finding was upheld by the Ontario Court of Appeal. - 5 - [8] The Employer thoroughly canvassed this position, including a review of the jurisprudence said to have led to this result as well as the cases that it said had subsequently followed it. [9] The Employer also submitted, in the alternative, that the date of filing the grievances truncates the period of time for which damages may be claimed. It said that although the Union may lead evidence of events stretching back roughly three years (see Lunan, infra) to prove harassment or discrimination, monetary redress is capped at 30 days prior to the filing of the grievance. The Employer submitted that the grievor here had numerous opportunities to file a grievance in the period after the dildo-event on June 3, 2014. It said that ten months had elapsed from the time of the dildo incident to the filing of the grievance. The Employer’s written submission at paragraph 19 reads, in part, as follows: The precipitating incident, which led directly to a finding of discrimination on the basis of race and sex occurred nearly ten (10) months prior to the Grievor’s filing of a grievance. While the Grievor chose to make a complaint a month later, she elected not to file a grievance at the time, or in the months following, when the Grievor was being impacted by strife that had arisen directly out of the incident. [10] Accordingly, the Employer submitted that there could be no remedy for the dildo- event itself, nor afterwards up to 30 days prior to the filing of the grievance. [11] In the further alternative, the Employer submitted that the Union’s submissions on the quantum of damages far exceed what would be reasonable in this matter. It reviewed the facts of the cases relied upon by the Union. It said that the more - 6 - egregious behaviour, its impact on the grievors in those matters, and the quality of the medical evidence led to establish the impact, sets those cases far apart from this matter and calls for a dramatically reduced quantum of damages here than that requested by the Union. [12] The Employer also submitted that the GSB jurisprudence upon which it relies is far more applicable to establishing an appropriate quantum of damages. [13] The Employer relied upon the following authorities: OPSEU (Monk et al) v. Ontario (Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Services), GSB 1995-1694, April29, 2010 (Gray); OPSEU v. Ontario (Community Safety and Correctional Services), 2013 ONCA 406 (CanLII); Decision No. 2157 09, 2014 ONWSIAT 938, dated April 29, 2014; Decision No. 1945 10, 2015 ONWSIAT 223 dated January 27, 2015; Wilson v. Ontario (Ministry of Natural Resources and Forestry), GSB 2016-1556, September 21, 2017 (2017) (Dissanayake); Rosati v. Ontario (Ministry of Community Safety and Correctional Services), GSB 2015-0468, 2015-1818, January 23, 2018 (2018) (Anderson); Ontario Public Service Employees Union v. The Crown in Right of Ontario 2019 ONSC 1077; WSIAT Decision No. 2678 17 2017 ONWSIAT 2826; Foley et al v. Ontario (Ministry of Community Safety and Correctional Services), GSB 2015-3339. November 19, 2018 (2018) (Williamson; WSIAT Decision No. 2157 09I (Merits) 2010 ONWSIAT 2729; OPSEU (Patterson) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2017 CanLII 25459 (ON GSB) GSB 2015- 1660, March - 7 - 21, 2017 (2017) (Briggs); OPSEU (Lunan) v. The Crown in Right of Ontario (Ministry of Labour), GSB 2013-0513, May 15, 2015 (Leighton); OPSEU (Van Schouwen, et al) v. The Crown in Right of Ontario (Ministry of the Attorney- General), GSB 2007-3000, August 6, 2010, (2010) (Briggs); OPSEU (Carson) v. Ontario (Ministry of Community Safety and Correctional Services), GSB 2005- 1545, July 19, 2011 (2011) (Herlich); Charlton v. Ontario (Ministry of Community Safety and Correctional Services), PSGB 2006-0291, June 27, 2007 (2007) (Carter); Ranger v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB 2002-2375, July 24, 2013 (Leighton); Ranger v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB 2002-2375, January 18, 2010, (2010) (Leighton); A.B v. Joe Singer Shoes Ltd.., 2018 HRTO 107; O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675; Groves v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB 2008-3971, October 14, 2014, (2014) (Mikus); Press v. The Crown in Right of Ontario (Ministry of Health), GSB 2003-1461, October 9, 2007, (Mikus); OPSEU (Sager, Shelley et al) and The Crown in Right of Ontario (Ministry of Transportation), GSB# 2000-0377, October 6, 2004 (Mikus); Tardiel et. al v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB 2005-1443, December 16, 2010 (Albertyn). [14] The Union submitted in reply that “the Board already has heard arguments from the parties on the application of the WSIA to this case in closing submissions and decided in the Union’s favour that section 26 of the WSIA does not constitute a bar to these proceedings”. The Union submitted that it was “an abuse of - 8 - process” for the Employer to seek to relitigate this issue. The Union’s submission that this has already been dealt with at the hearing on the merits, is set out in paragraphs 7, 8 and 9 of the Union’s submissions in reply here, which read as follows: 7. In reply, the union argued that the case was not one of a WSIB- compensable injury. Rather, the grievances concerned alleged harassment and discrimination contrary to the Ontario Human Rights Code and the related provisions of the collective agreement. An alleged breach of human rights legislation and the collective agreement protections against discrimination and harassment represents a different right of action than an action in relation to an accident happening to the worker in the course of employment. The union asserted that the Board did have jurisdiction to hear and determine the grievances. 8. In the event, Vice-Chair Harris held that there had been breaches of the collective agreement and of the Human Rights Code. In declaring that such breaches occurred, and in remitting the balance of remedy to the parties, Vice-Chair Harris dismissed the employer’s argument that the WSIA barred the grievances. 9. Put differently, Vice-Chair Harris could not have found a breach of the collective agreement and a breach of the Human Rights Code if the grievor’s right of action was barred by operation of section 26 of the WSIA. Vice-Chair Harris’s award on the merits was therefore necessarily dispositive of the employer’s WSIA argument. Analysis and Decision [15] I turn first to the issue seemingly joined between the parties relating to the application of the Monk decision as a bar to the grievor’s damages claims in this matter. The Employer’s submissions properly set out that mental stress is compensable under the WSIA. Accordingly damages for mental stress losses that are compensable pursuant to the WSIA are not available to a Crown Employee whose grievance for such a loss is before the GSB. As discussed in - 9 - Monk, and other cases, the workers' compensation framework, which is currently encompassed in the WSIA, traded-off the right to sue an employer for losses due to an accident arising out of and in the course of employment for compensation under the Act. [16] It is s. 26 (2) of the WSIA that currently formulates the historic “trade-off” by which worker’s receive benefits for workplace accidents and injuries on a no-fault basis; section 26(2) reads as follows: 26. … (2) Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependant has or may have against the worker’s employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer. [17] Turning to Monk, supra, Vice-Chair Gray’s analyses were upheld by the Divisional Court and the Court of Appeal as correct, while holding that the standard of review was that of reasonableness. The Court of Appeal understood the issue before Vice-Chair Gray to be that: The parties agreed that the Grievance Settlement Board should determine the preliminary issue of whether it was precluded from granting the grievors compensation for their alleged injuries or any other remedy. (emphasis added) [18] The Court of Appeal decided the matter at paragraph 5 of its Endorsement, which reads as follows: - 10 - [5] The Divisional Court concluded that whether the standard of review applied was reasonableness or correctness, the judicial review application should be dismissed. It found that the decision of the Vice-Chair was thorough and carefully considered, logical and intelligible, justifiable and transparent. We agree. In our view, it makes no difference whether the claim is framed in tort or in contract. It is the substance of the claim that matters. The Vice-Chair was correct in his conclusion that the Board could not award damages under the collective agreement for compensable injuries to which the WCA or the WSIA would have applied. (emphasis added) [19] I, of course, am bound by the Court of Appeal's formulation of the ratio decidendi in Monk. I do note however that the Court of Appeal's rationale for the decision in Monk, set out in the emphasized portion of the Court of Appeal’s Endorsement set out above, is very narrow. It does not say that the Board may not deal with other, legitimate claims that are not compensable through the operation of the Workers' Compensation Act (WCA) or the WSIA. Accordingly, an injured worker's other, legitimate claims against their employer, which are not, in substance, for an accident arising out of or in the course of their employment, are not statute-barred. [20] This brings me to the difference between the parties here as to the appropriate remedy. The Union is not saying that I should award damages to the grievor for injuries that are compensable under the WSIA. At paragraph 7 of its Reply Submissions on remedy, the Union reiterated its Reply Submissions, made on the merits, as follows: - 11 - In reply [on the merits], the union argued that the case was not one of a WSIB-compensable injury. Rather, the grievances concerned alleged harassment and discrimination contrary to the Ontario Human Rights Code and the related provisions of the collective agreement. An alleged breach of human rights legislation and the collective agreement protections against discrimination and harassment represents a different right of action than an action in relation to an accident happening to the worker in the course of employment. The union asserted that the Board did have jurisdiction to hear and determine the grievances. [21] As observed by the Court of Appeal, it is the substance of the claim that matters. Here, the substance of the claim is for damages resulting from the breaches of the Code and the collective agreement protections against discrimination, harassment and the obligation to provide a safe workplace. Throughout these proceedings the Union has consistently asserted that the Employer breached articles 3 and 9, the relevant portions of which read as follows: 3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability as defined in section 10(1) of the Human Rights Code (OHRC). … 3.3 The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, … Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome. 9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co- operate to the fullest extent possible … in the reasonable promotion of safety and health of all employees. - 12 - [22] These are weighty, joint obligations agreed to in the collective agreements between the Ontario Public Service Employees Union (the Union), and the Crown in Right of Ontario Represented by Management Board of Cabinet (the Employer). I have found that the Employer breached these provisions. The Union in its reply submissions relied on paragraph 84 of my Decision in that regard, which reads as follows: [84] As set out above, mediation was first raised with the Institution on July 31, 2014 as an option to settle the differences arising from the DT Course [Defensive Tactics Course] of June 3, 2014. It took the better part of two years to actualize that request. I agree with the submission of the Union that the Institution’s management failed to “connect the dots” of the numerous ORs, which clearly arose out of the issues raised from the DT Course on June 3, 2014. Management at the institution turned a blind eye to the bifurcation and turmoil in the institution, which resulted from those issues. The central fact that fueled this turmoil was that the CT [co-trainer] produced a black dildo named “Leon” at the DT Course. There can be no doubt as to the Fact Finder/Investigator’s conclusion that that incident was discrimination on the basis of sex. She found that it was discrimination on the basis of sex on the strength of one witness who “was offended by the presence of the dildo and was uncomfortable that the dildo was shown. A dildo is commonly recognized as a sexual item and, similar to pornography, it is inappropriate to have such an item in the workplace.” She said that there was “no evidence to support that the dildo being black held racial connotations”, that latter finding seems to be because none of the witnesses interviewed made that connection. I disagree with that finding. I am not bound by the findings of the Fact Finder/Investigator. I find that a white man producing a black dildo in the presence of a racialized woman at a training course in a Women’s Correctional Institution is discrimination on the basis of sex and race or colour. The colour of the dildo is a material fact, which evidences discrimination on the basis of race or colour as well as sex. (emphasis added) As set out in my reasons, the grievor was a co-trainer at the course; she is a black woman. - 13 - [23] Part of the Employer’s submissions in Monk are set out at paragraphs 16 and 17 as follows: [16] The employer submits that this Board’s remedial jurisdiction under Article 18.1/9.1 is limited to the awarding of declarations and directions. This is in part because the article is essentially an incorporation of the employer’s obligation under the Occupational Health and Safety Act to “take every precaution reasonable for the protection of a worker.” Since that statute that makes no provision for the awarding of damages for its breach and the parties have not expressly provided for the awarding of damages in Article 18.1/9.1, the employer submits that this Board has no power to award such damages. (emphasis added) [17] The employer says that by virtue of the WCA/WSIA, and particularly section 16 of the WCA and subsection 26(2) of the WSIA, this Board has no jurisdiction to consider claims and allegations that pertain to injuries that are compensable under that legislation and, therefore, cannot award any compensation in respect of a compensable injury that results from breach of Article 18.1/9.1. It also argues that if an employee grievance alleges that a breach of Article 18.1/9.1 has resulted in an injury, and that injury was or could have been the subject of a claim for benefits under the WCA/WSIA, then this Board also cannot grant the injured employee a declaration that the article was breached or directions as to the steps that the employer must take thereafter to make provision for the future safety and health of the injured employee, or any other remedy. [24] In essence, the Employer’s submission in Monk was, in part, that the Board could not award damages for a breach of article 18.1/9.1 because the Occupational Health and Safety Act in a similar provision does not provide for damages and neither does the collective agreement language. That is, only a declaration and/or directions may be awarded. As set out above, the Court of Appeal’s Endorsement is much narrower than that. Indeed, Vice Chair Gray’s conclusion, - 14 - set out in paragraph 94, is that narrow as well. Further, his distillation of the Board’s jurisdiction led him to conclude, after a very thorough analysis, that the Board is not limited to the remedies of declarations and directions; in his view, at paragraph 83, that jurisdiction includes the award of damages as a remedy: [83] The Board has previously concluded that it is not limited to granting declaratory or directory remedies for breaches of Article 18.1/9.1. Subject to the impact that the WCA/WSIA may have on it, the Board has consistently said that it has jurisdiction to award damages for a breach of Article 18.1/9.1 in an appropriate case. [fn. 58] In my view, that conclusion is correct. Express collective agreement language is not needed to support that jurisdiction. As the Courts confirmed in Polymer, [fn. 59] an arbitrator’s jurisdiction to award damages for breach of a provision of the collective agreement flows from the statutory [fn. 60] and, thence, collective agreement requirement that differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement be settled by arbitration. (Emphasis added) [25] Vice-Chair Gray relied on the following authorities and provided the following comments for the footnotes in paragraph 83: Footnote 58 - In addition to the decisions referred to earlier, see OPSEU (Gonneau) and Ministry of the Attorney-General, GSB File No. 227/81 (Teplitsky), and OPSEU (Kelly) and Ministry of Correctional Services, GSB File No. 371/84 (Saltman), where compendation [sic] was awarded for the damage to employees’ personal property that resulted from the employer’s failure to make reasonable provisions for the employees’ safety and health, and OPSEU (McLean, More & Union) and Ministry of Community & Social Services, GSB File No. 1134/88 etc., where employees put at risk by the release of their personal information were awarded compensation for costs incurred in mitigating the risk. Footnote 59 - Polymer Corporation v. Oil, Chemical and Atomic Workers International Union, Local 16-14 (1962), 26 D.L.R. (2d) 609 - 15 - (Ont. H.C.J.), affd 28 D.L.R. (2d) 81 (C.A.), affd [1962] S.C.R. 338 sub nom. Imbleau v. Laskin.] Footnote 60 - Subsection 7(3), Crown Employees Collective Bargaining Act, 1993, S. O. 1993, c.35; subsection 19(1), Crown Employees Collective Bargaining Act, R.S.O. 1990, c. 50. 2010 CanLII 28621 (ON GSB. [26] Vice-Chair Gray also commented, in apparent response to the Employer's partial submission set out above, that the health and safety provision of article 9.1, which mirrors the OHSA, need not provide for damages before an arbitrator may award them, by virtue of Polymer, as well. He said the following at paragraph 84: 84 The fact that the opening words of Article 18.1/9.1 seem similar to an obligation in the Occupational Health and Safety Act, a statute that provides for directory but not compensatory remedies, does not affect the applicability of Polymer in this regard. I do not need to decide here whether in the absence of an express employer obligation to make reasonable provisions for the safety and health of employees, an arbitrator could award damages for breach of the Occupational Health and Safety Act on the basis that subsection 48(12)(j) of the LRA and the decision in Parry Sound warrant treating it as though incorporated into the collective agreement. [27] Polymer is a foundational case in labour relations which these parties must have had knowledge of when they negotiated the provisions of the collective agreement at issue here. [28] The caselaw relied upon includes consideration of whether compensation for mental distress is exclusively the purview of the WSIB. As discussed in Monk, such compensation was unavailable there until the WSIA was amended. In Rosati, supra, Vice-Chair Anderson considered the relevant history of the - 16 - legislation. Although that case is short on factual detail, the legislative history is helpful. Up until January 1, 2018, the WSIA provided that mental distress damages were not compensable under the WSIA, those provisions, being section 13, were held to be unconstitutional in decisions of the Workers Safety and Insurance Board. Section 13 was amended effective January 1, 2018, and those portions of section 13 are set out by Vice-Chair Anderson at his paragraph 4 as follows: (4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment. (4.1) The worker is entitled to benefits under the insurance plan as if the mental stress were a personal injury by accident. (5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. [29] Accordingly, disabilities caused by mental stress are compensable under section 13(4) unless they are the type of employer actions described in section 13(5). Here the parties did not amplify what employer actions would or would not fall under s.13(5). For the purposes of the matters before me, it does not really matter whether it falls within s.13(5) or not. I am not required to consider whether or not the treatment of the grievor would be compensable under the WSIA, because no claim for such compensation is before me. Here the Union seeks general damages for breaches of the collective agreement and the Code. Its - 17 - pleading is for damages that flow from the Employer's failure to maintain a culture in the workplace that did not contravene the obligations it agreed to with the Union in articles 3 and 9 of the collective agreement and that were contrary to its obligations under the Code. Those breaches caused the grievor harm, a harm that cannot be compensated for by the WSIB. In my view, the substance of the claims before me is very different than what might be claimed at the WSIB. [30] In Joe Singer Shoes Limited, supra, the Human Rights Tribunal of Ontario reviewed the basis upon which it determines the quantum of damages for human rights violations at paragraphs 163, as follows: [163] The Tribunal can award monetary compensation pursuant to section 45.2(1)1. of the Code as follows: 45.2(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application: 1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect. [164] The guiding principles governing an award of compensation for injury to dignity, feelings and self-respect were set out in Arunachalam v. Best Buy Canada, 2010 HRTO 1880. The Tribunal stated that in evaluating the appropriate damages for injury to dignity, feelings and self- respect, the Tribunal should consider both the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16. - 18 - [165] Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the events, and when his or her particular circumstances make the effects particularly serious. The 2018 HRTO 107 (CanLII) The Tribunal discussed some of the relevant considerations in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38 which include: See also: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605, Humiliation and hurt feelings experienced by the complainant A complainant’s loss of self-respect, dignity, self-esteem and confidence The experience of victimization Vulnerability of the complainant The seriousness, frequency and duration of the offensive treatment. See also ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605. [166] In assessing the monetary remedy for injury to dignity, feelings and self-respect, I have also kept in mind that the Tribunal’s remedial powers are not meant to be punitive. See McCreary v. 407994 Ontario, 2010 HRTO 2369. [31] The decision in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, referred to in paragraph 164 of Joe Singer Shoes describes the considerations in assessing damages under the Code beginning at paragraph 44 as follows: Damages For Injury to Dignity, Feelings and Self-Respect [44] The approach to awards for damages for the intrinsic harm of discrimination has evolved in Code jurisprudence. Prior to the significant amendments that took effect in June 2008, the Code established a limit of $10,000 on damages for "mental anguish" which required a finding of wilfulness or recklessness on the part of the respondent (see s. 41(1)(b) of the Code as it read prior to June 30, 2008). Tribunal decisions, however, routinely awarded greater damages for intangible losses, awarding separate amounts for mental anguish as a result of findings of discrimination on different grounds and by different respondents. After the - 19 - Divisional Court's decision in Ontario (Human Rights Comm.) v. Shelter Corporation, 2001 CanLII 28414 (ON SCDC) [2001] O.J. No. 297 (QL) [39 C.H.R.R. D/111] confirmed that this was permitted under the Code, amounts were awarded for "general damages", which were considered as separate from amounts awarded for mental anguish. [45] The amendments to the damages provisions in the Code remove the need for the Tribunal to divide damages awards into amounts for mental anguish and for other intangible losses. They require the Tribunal to make a general evaluation of the circumstances of the Code violation and its effects to determine the appropriate monetary compensation for injury to dignity, feelings and self-respect. [46] Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. The harm, for example, of being discriminatorily denied a service, an employment opportunity, or housing is not just the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects. As noted by the Supreme Court of Canada in considering damages for breaches of the Canadian Charter of Rights of and Freedoms in Vancouver (City) v. Ward, 2020 SCC 27 (CanLII) at § 27: . . . Compensation focuses on the claimant's personal loss: physical, psychological and pecuniary. To these types of loss must be added harm to the claimant's intangible interests. In the public law damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and anxiety: Dunlea; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Taunoa v. Attorney-General, [2007] NZSC 70, [2008] 1 N.Z.L.R. 429. Often the harm to intangible interests effected by a breach of rights will merge with psychological harm. But a resilient claimant whose intangible interests are harmed should not be precluded from recovering damages simply because she cannot prove a substantial psychological injury. [47] The principle that intangible losses are compensated with monetary awards is not unique to statutory human rights law. For example, negligence law provides for damages for pain and suffering, "fixed at a fairly modest conventional rate, subject to variation for the degree of suffering in a particular case": Ward, supra, at § 50; Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229. In the law of defamation, damages take into account injury to the plaintiff's feelings in - 20 - light of the nature of the conduct of the defendant, see McCarey v. Associated Newspapers Ltd. (No. 2),[1965] 2 Q.B. 86 at pp. 104 - 05 (C.A.), cited with approval in Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701 at § 105. [48] While principles from other areas of law may be useful analogies, the Tribunal's approach to the exercise of its remedial discretion must be centered in the values of and statutory language in the Code. Code damages are meant to compensate, not punish, and Code violations, unlike some other areas of law, arise in a variety of very different social and legal contexts. [49] Damages for Code violations, as in other areas of law, must be fair to both the applicant and respondent(s), given the violations of the Code found: see Ward, supra, at § 53. Damages under the Code must not be so low as to trivialize the social importance of the Code by effectively creating a licence fee to discriminate (see Lane, supra at § 152). At the same time, Code damages for intangible losses should not be "unduly high": see Ward, supra,at § 54, referring to the approach of courts in other jurisdictions to damages for violations of constitutional rights. The Tribunal should be attentive to the possibility of ongoing inflation of damage awards for non-pecuniary losses that was recognized in the tort context in Andrews, supra, in the 1970s. I do not agree with the applicant that an assumption that damage awards are "increasing" should affect the determination of awards. [50] In a system in which many decisions on the merits are made each year, there is a particular importance that damage awards for intangible losses be consistent and principled. As the Supreme Court stated in Andrews, supra, at p. 263, in relation to the assessment of damages for intangible losses in negligence law: . . . [T]here is a great need in this area for assessability, uniformity and predictability. In my opinion, this does not mean that the courts should not have regard to the individual situation of the victim. On the contrary, they must do so to determine what has been lost. For example, the loss of a finger would be a greater loss of amenities for an amateur pianist than for a person not engaged in such an activity. Greater compensation would be required to provide things and activities which would function to make up for this loss. But there should be guidelines for the translation into monetary terms of what has been lost. There must be an exchange rate, albeit conventional. [51] Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is - 21 - unique. Uniform principles must be applied to determine which types of cases are more or less serious. Of course there will always be an element of subjective evaluation in translating circumstances to dollars, but the Tribunal has a responsibility to the community and parties appearing before it to ensure that the range of damages based on given facts is predictable and principled. [52] I turn now to the relevant factors in determining the damages in a particular case. The Tribunal's jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 (CanLII) [reported 69 C.H.R.R. D/325] at § 16. [53] The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect. [54] The second criterion recognizes the applicant's particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 (CanLII) [reported 55 C.H.R.R. D/102] at § 34-38. [55] These principles are not intended to comment on how the Tribunal would deal with a case where medical evidence shows an extreme degree of suffering in comparison to the nature of the event, a situation which I leave for another day. [32] Accordingly, general damages may be awarded for the contravention of the complainant's Human Rights. This is a jurisdiction unknown, and unknowable, to the WSIB. These are the heads of damages pleaded for in this matter. - 22 - [33] Finally, the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 125 D.L.R. (4th) 583, has given clear direction that a grievor has no recourse to the courts for matters that arise from a collective agreement either directly or inferentially; those issues are to be determined at arbitration. Further, where there is a right under a collective agreement there must be a remedy for a breach of that right. In my view, articles 3 and 9.1 are substantive provisions of the collective agreement, the breaches of which sound in damages; I found on the merits that the employer was in breach of those articles. [34] These matters proceeded on the merits by way of written will-say statements, with the right of opposing counsel to cross-examine the witnesses on those statements. The grievor's will-say statement, which was unshaken in cross- examination, included her description of the impact on her at paragraphs 84 through 88, which read as follows: 84. I have been made the victim of bureaucratic bullying. [Co-Trainer] and his associates continuously file unfounded complaints against me to management. The investigations take a toll on me and leave me feeling unsupported in the workplace. Management has done nothing to break this pattern. 85. I did not realize how negatively I had been affected by all of these events in the workplace until my children told me that I had become withdrawn and was “not fun anymore.” I did not want to bring the toxicity from work home with me, and it broke my heart to hear my children tell me that I had. We are now participating in family counselling. 86. I have been dealing with anxiety and depression that has been exacerbated by these incidents and the lack of employer response. I take medication for anxiety and depression. I went off work on stress leave in January 2017, as a result of the stress and anxiety caused by the toxic workplace. My doctor cleared me to return to work in the spring of 2017. One of the main triggers for my recent episode of acute anxiety and depression was my recently seeing [Co-Trainer] leading a tour of the - 23 - institution, and realizing that I would not be permitted to do so because of all the events described in my will-say statement. A copy of medical notes is marked as Tab “FF” of my will-say statement. 87. Working in corrections, it is important to have good rapport with your fellow Corrections Officers. This is not just a matter of creating a positive work environment, but a matter of safety. I fear that my colleagues do not have my back when dealing with inmates, and I do not know who I can trust. 88. More importantly, I do not feel management has taken steps to adequately protect me in the workplace. Superintendent Gulbinski and others have alternately sided with Mr. Andrews’ faction in the institution, or have ignored the problem altogether. As a result, I have suffered ever since I reported the June 3, 2014 incident, and I no longer feel safe in the workplace. [35] Unlike the situation in Tardiel, supra, described at paragraph 117 of that decision, the Employer here has not conceded liability; I have found it to be liable. Vice- Chair Albertyn formulated the purpose of damages at paragraph 134. I agree with that formulation, which reads as follows: 134. The Grievor is entitled to compensatory damages for the Employer’s contribution to the harm done to him, as described. The purpose is to meaningfully vindicate the rights of the Grievor that were breached. The damages must be sufficient also to deter the Employer and others from future negligence, and to denounce the past negligence. However, punitive damages are not justified because the general damages to which the Grievor is entitled are sufficient to deter the recurrence of the wrongful action by the Employer. [36] The grievor is entitled to general damages because of the Employers' breaches of the collective agreement, the Code and OHSA. I have considered whether I should quantify the damages for each breach. In my view, in this case, the - 24 - appropriate approach is that taken by Vice-Chair Leighton in Ranger, supra. I also agree with the Union's characterization of the harm suffered by the grievor here set out in its written submission at paragraphs 10, 11, 12 and 13: 10. . . .the employer in the instant case chose to look the other way notwithstanding that the relevant managers knew, or should have known, the significant, intensifying conflict in the workplace and the bullying the grievor was being subjected to. Vice-Chair Harris found that the employer failed in its response to the grievor when it turned a blind eye to the racialized aspect of the sex toy situation, when it allowed the workplace to descend into further turmoil by ignoring offers from the grievor and her co- worker to mediate the matter, and when it dismissed the ORs that were filed against the grievor as frivolous. [Reasons ¶84]. The union urges the Board to take the employer’s lackluster response to the events at issue in the grievances into account when determining the quantum of damages. 11. . . . Similar to the case at hand, in Ranger, the employer knew about the poisoned workplace yet did nothing to address it. [Ranger ¶49] The Board held that awarding a monetary amount for every incident that the grievor was forced to endure in the workplace would be an “Herculean task”, so instead a global award was fashioned. [Ranger ¶48] 12. The union urges the Board to do the same in the present case. The grievor faced over a dozen complaints and ORs filed against her, and countless more accusations and instances of bullying that took place in the workplace over a period of nearly two years. The grievor was forced to endure ongoing formal and informal attacks from her colleagues, all while the employer knew of the conflict and chose to ignore it. The appropriate remedy should reflect the cumulative harm that results from such turmoil and abdication of responsibility by the employer. 13. The union also submits that the passage of time since Charlton and Ranger, and the development of case law before the HRTO on related matters, should be accounted for when one looks to Charlton and Ranger as guides to remedial monetary awards. Charlton was decided in 2007 and Ranger in 2013. The passage of some 13 years since Charlton, and the employer Ministry’s apparent failure to adequately address its shortcomings in respect of workplace discrimination during this period, underscores the need for a higher damages award in the present case. - 25 - [37] The Divisional Court in Shelter Corp has upheld the awarding of general damages for the type of losses that occurred here: [43] In my view, a Board of Inquiry is entitled to award non-pecuniary intangible damages arising out of the infringement of the Code. It is an award to compensate for the intrinsic value of the infringement of the complainants’ rights under the Code; it is compensation for the loss of the right to be free from discrimination and the experience of victimization. There is no ceiling on the amount of general damages. [38] Having regard to the factors set out in the jurisprudence referenced above, and considering both the objective seriousness of the conduct and its effect on the grievor, I find that general damages of $35,000 is appropriate. The Union submitted that the quantum of damages should be at the highest level. However, the behaviours to which the complainants in Joe Singer Shoes and Presteve were subjected, and which drew such damages, were particularly egregious. As serious as the conduct was here, objectively the conduct that occurred was not as serious as in those cases. The quantum of damages in those cases, and the authorities cited therein, relate generally to direct, illegal, action of an employer against the complainant. Here, what was largely involved was the systemic failure of this Employer to maintain a civil, respectful and safe workplace, and its failure to properly investigate the negation of such, that led directly to the discrimination, harassment and bullying to which the grievor was subjected. There were direct actions against her, including, but not limited to, OM Cayton's behaviour and that of Greg Ireland, the Provincial Co-ordinator of the Defensive Tactics Programs, who removed her from a class for which she was properly - 26 - registered, and in attendance with her Superintendent's approval. However, I do not agree that the quantum of damages should exceed the level awarded in the cases relied upon nor should it be at the same level. I have considered the quantum of damages in the decisions referred to as well as the passage of time since those decisions came down. [39] The grievor in this matter testified about the serious, negative impact of her experiences on her and on her children because of the Employer's failure to comply with its collective agreement and Code obligations. The purpose here is not to punish the Employer for its collective agreement and statutory breaches, but, rather, to provide a monetary remedy to the grievor that seeks to restore to her, as much as may be possible in these circumstances, what she has lost because of the disregard of her rights. Dated at Toronto, Ontario this 23rd day of February 2022. “Daniel A. Harris” ______________________ Daniel A. Harris, Arbitrator