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HomeMy WebLinkAbout2002-2375.Ranger.10-01-18 Decision en.n EiJJpIo)II!es Grievance Settlement Board Commission de riglement des griefs des~dela eor.ome smte mo 180 IJlndas 5t WesI TCJRJrm. QBiD IofiG 1ZB Tel (4-16) 326-1388 Fax (4-16) 326-1396 Ibeau mo 100. rue IJlndas Ouest TCJRJrm (0nIari0) M5G 1ZB Tel: (4-16)326-1388 T~ : (4-16) 326-1396 ~ ontario GSB#2002-2375 UNION#2002-04II-0038 IN THE MATIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COlLECTIVE BARGAINING ACT Before BETWEEN THE GRIEVANCE SETILEMENT BOARD Ontario Public Service Employees Union (Ranger) limon - aad - The Crown in Right of Ontario (Minis1Iy of Comrmmity Safety and Correctional Services) BEFORE Deborah Jll_ Leighton FOR THE UNION Gavin Leeb Counsel c/o Green & Chermver [2003 to January 2008] FOR THE EMPLOYER FerinaMmji Counsel Minisky ofGovemment Services [2003 to January 2006] Employer Vtre-Chair Donald Eady Counsel Paliare Roland Rosenberg Ro1bstein LLP [March 2008 to July 2008] Paul Meier Counsel Minis1Iy of Government Services [Aug 2006 to July 2008] lIEAKINGS: December 17, 2003; June 17, 2004, July 27, 28; 2004; 8qJtember 16, 17, 2004; October 15, 2004, January 26, 2005; May 13, 2005; 8qJtember 13, 14, 27,2005; October 6,26,27,2005; November 29, 30, 2005; December I, 14,15,2005; January 11, 12, 2006; August 16, 17, 2006; September 14, 20; 2006, October 18, 19,2006; November 2, 14, 15,2006; December 5,6,2006; January 16, 17, 18,24,25,2007; February 7,8,2007; March 20, 2007; April 11, 12, 17, 18,2007; May 16,2007; hme 20, 21,22,2007; August 13, 14, 15,21,22, 2007; September 5, 2007; October 18,2007; November 26, 27,2007; December 3,4,2007; January 17, 31,2008; April 30, 2008; May 7,8,2008; July 17,18,2008. DECISION [I] On December 19~ 2002~ Robert Ranger~ then a Correctional 0JIicer (CO)~ grieved 1bat 1he employer breached 1he collective agreement by cmdoning discrimination by fellow employees and ~~ which created a poisoned work environment :fm- him at Ottawa- Carletoo. Detention Centre (OCDC)- He alleged :fm1her 1bat 1he harassment and discrimination based on his sexual orientation made him ill A second grievance dated June 18~ 2004~ alleged that the employer failed to accommodate him when he was able to return to work. [2] The hearing into this ma:tter was probacted There were sixty six hearing days over 1he comse of:four and a half years_ This does not include the days that went forwanl for media1i0ll. I heard fiom many witnesses~ incbxline medical experts_ There is also coosidemble documentary evidence before me_ Five interim decisioos were issued between 2004 and 2008_ This decision addresses 1he merits of the two grievaIlirS_ The parties asked 1bat I remain seized :fm-1he remedy~ if any_ Given 1he extent of 1he evidence I will not att~II..11 to smnmarize all of it [3] I have reviewed all of it most carefully and will refer to what is relevant to my reasnnine for the decision.. -3- SUMMARY OF UNION'S POSITION [4] It is the unioo.'s positioo. 1bat Mr_ Ranger suffered harassment and discrimina1i00. based 00. his sexual orientation, which was condoned by 1he employer in con1Iavmtion of Article 3_1 of1he collective agreement and 1he provisions of the 01Itari0 Human Rights Code, R..S.O_ 1990.cH. 19_ Further, the union states 1hat 1bis created a poisoo.ed wotkplace for Mr_ Ranger and that 1he employer did almost nodring to change 1he environment The unioo. claims 1bat even when Mr_ Ranger made a complaint after an incident on February 11, 2002, which led to 1he grievor going off 00. sick leave, 1he employer failed to investigate until eighteen DHJDtbs a.fter 1he event. When the IqMJrt of 1he investiga1i00. substan:tiated some of 1he allegations made by 1he grievor, the employer did nothing to acIcIwss the wmlplace environment 1he unioo. submits 1bat ber.all!i:P. of the harassment and discrimination the grievor became ill and was away :from wmk fium February 2002 until March 2005_ [5] WIth regard to 1he second grievance, alleging a failme to accommodate, it is 1he union's position that Mr. Ranger was able to return to wmk by 1he spring of2003. However, 1he employer did nodring significant to retmn him to wmk during that year_ It is also 1he unioo.'s positioo. 1bat 1he employer confused the duty to accommodate under 1he collective agreement and 1he Code wi1h the grievance process: counsel :fm-1he minisUy took the positioo. in April 2004 and in hme 2004 that although positions were being offered to 1he grievOl", the employer did not recognize a duty to accommodate Mr_ Ranger_ In smn, it is 1he unioo.'s position 1bat the employer has not accommodated 1he -4- grievor, and 1here is insufficient evidence of undue hardship to justify 1he lack of accommodation. [6] The unioo. relied on the following authorities: Janzen v_ Platy EnteqJrises Ltd (1988) 1 S.C..R.. 1252; OPSEU (Simon) v_ Ontario (MinisUy of the Solicitor General and Correctioo.al Services) GSB No. 1996-2568 (Dissanayake); Ontario v_ McKinnon (2003) O.J. No 893 (Divisional Court); Hadwen, Marvy, Stnmg and Eady, Ontario Public Service Employment and Labom Law (2005: hwin Law), lIP. 345-355 at 348; Robichaud v_ Canada (1987) 2 S_C..R.. 84; Goodyear Canada Inc_ v_ U_S.W A, Local 189 (2002) 107 LAC_ (4-,289 (Goodfellow); Ontario Liquor Board's Employees' Unioo. v_ Ontario (Liquor Control Board of Ontario) (Sanfilippo grievance) (2005) O.P.G_S..BA No_ 36, GSB No_ 2003-1194, February 23, 2005 (Watters); Ontario Hllman Rights Commissioo. v_ Simpsons--Sears (1985) 2 S_C..R.. 536; Ontario Liquor Board Employees' Unioo. v_ Ontario (LiquoI" Control Board of Ontario) (Di c.o grievance) (2005) O.P_G.S.BA No_ 60 (Dissanayake)- [7] Thus 1he unioo. is !i:P.P.1rine that the board order the following: 1) A declamtioo. that 1he employer has violated article 3_1 of the collective agreement; 2) A declamtioo. that 1he WDIIP policy was applied in a discriminatory fashion as against Mr_ Ranger in that 1he employer failed to pruutptly investigate his cmnplaint and that 1hey refused to pennit him to speak willi 1he Investigator to provide :fm1her particulars ofhis complaint; -5- 3) A decIamtion that the employer has violated s. 5 of the Ontario Human Right:r Code by fai1ine to provide for equal ~ ofML Ranger, 4) A decIamtion that 1he employer has violated article 3_1 of the collective agreement by failine to accommodate Mr_ Ranger; 5) A decIamtion that the employer violated article 32 of the collective agreement and the Labour Relatio1ls Act. 1995 by discriminatine against Mr_ Ranger in the accommodation process because Mr_ Ranger filed grievances against 1he employer; 6) A decIamtion that 1he employer has violated 1he Ontario Human Rights Code by fai1ine to accommodate Mr_ Ranger_ SUMMARY OF THE EMPLOYER'S POSITION [8] The employer takes the position1bat it took all reasonable steps to provide the grievor wi1h a haras.omJeJJt :free workplace and that it did nothing inappropriate that would lead to liability. The employer promulgated a policy known as the <Workplace Discrimination and Harassment Prevention Policy' (WDHP policy) that sets 1he danflaTCl for maintainine a haras.Q1IP.Of :free workplace_ Fm1her~ 1he employer takes 1he position 1bat it ednr.a1P.d and 1Iained its workforce on1he WDHP policy_ [9] It is the employers view that 1he grievor never complained 1bat he was experiencing harassment or discrimination at OCDC during 1he relevant periods_ Fmther~ 1he griev(J("~s claims of harassment are embellished and exaggerated Allegations ofharas.Q1IP.Of -6- relating to the grievor's time in the youth offender unit and 1he first period of employment in admitting and discharge (A & D) are not to be believed in the employers view_ This is also true of evidence ofharassment during Mr_ Ranger's tempmaIy as.~PJUllent as an opem:ting ~ (OM)- 1be employer states 1bat when 1he grievOl" made a complaint to management that he was harassed because ofhis sexnaI orientation on February II, 2002, 1he employer's response was pl-umpl, serioos and sensitive. [10] WIth regard to 1he accommodation grievance, it is the employers position that it took: all reasonable steps to provide the grievm" with employment in accordance with his medical gui~. The employer followed its established ~ in diligently searching:for a suitable position in compliance with its duty to accommodate. Thus it is 1he employer's position that both grievances must fail [11] Counsel for the employer relied on the following cases: Ontario Human Rights Commission and Beata Laskowska and MarinelaruJ afCanada Inc.. (2005) IIRTO 30 (August 15, 20(5) 1IR-0734-04; Calni Automotive Inc. v_ Canadian Auto Worken, Local 88 (JM. Grievance) (1994) OL.AA No_7; Ontario Public Service Employees Union (Balog) and The Crown in Right of Ontario (Ministry ofComnnmity, Family and Children's Services) (April 21, 20(4) GSB # 1998-1972 etc_; Ontario Public Service Employees Union (Kerna) and The Crown in Right of Ontario (01Itario Human Rights Commission) (February 10, 2005) GSB #2002-0944 etc_ -7- THE EVIDENCE [12] Much of the evidence before me is oontested However an outline of what is not ~ will assist as a road map to 1he submissions of the parties and my reasons for 1he decision.. ML Ranger 1Iansfened to OCDC on November 16, 1998 as a result of a MemonuuIm:n of Settlement of grievances filed while he was at L'Orignal Jail In an intaint decision on 1he scope of 1he evidence, I decided 1bat it wooId not be fair to 1he employer to allow evidence in 1he present proceeding of matters that occurred during Mr. Ranger's work at L'Orignal This was primarily because the grievances had been settled wi1hout any admission by 1he employer of wrongdoing or liability_ [13] After his 1Iansfer to OCDC, Mr. Ranger initially woded in 1he youth o:Jlender part of1he facility. Then he transferred to A&D on the adult side of 1he institution in February 2001_ He was an acting OM tium May 2001 until he stepped down in December 2001 and retmned to A&D in January 2002_ An incident occurred on February 11,2002 (the Classroom Incident) which 1he grievor testified was 1he last shaw for him.. He left OCDC 1bat day and never returned InitiaUy he was on short tenD. sick leave and 1hen he qualified for long tenD. disability_ He eventually retmned to a temporary position in probation and parole. He was offered a permanent position with 1he MinisUy of Finance, which he accqJted under protest The parties agreed 1bat the assienment to the MOF wooId be acIcIwssed in a hearing into remedy, if necessary. -8- [14] After leaving OCDC in February 2001 Mr_ Ranger :filed a WDIIP complaint 00. May 9, 2002. Three complaints were subsequent1y investigated by 1he Independent Investigations Unit (llU) and dmft reports were issued 00. IJecember 12, 2003_ Two of 1he complaints were not foond to be substantiated The complaint against Mark GIady, a co, was substan:tiated in part. Mr. GIady was 1he unioo. president, when Mr_ Ranger woded at OCDC. [15] The inVlSigator eyarnined 1bree complaints against Mr_ GIady of alleged discrimination, haras.omJeJJt and poisoned wOIk: environment on 1he grounds of sexual orientatiOlL Specific allegations included 1bat 1he respondent I) simnlated sex acts to taunt the grievor 2) repeated 1he WOld "C(){".ksnr.1-er" in a manner 1hat was not part of a coo.vasation but in 1he presence of the grievor, and 3) made sexual joUs during a training sessioo. on February 11,2002 at the expense of 1he grievor. [16] The investigator fomul as follows with regard to the :first allegation 1bat Mr. GIady simulated sex acts to taunt Mr_ Ranger: It is 1he coo.clusioo. of the investigator, based 00.1he evidence providecL and in particular the credible evidence of witness U 1bat sIhe had seen respondent I (Mr- GIady) engage in this behaviom with officer I, 1bat respondent I's assertion 1bat he has never behaved in this III3IIIteI" is not believable_ However, in 1he absence of any particulars such as dates and times tium 1he complainant and any conobora:tioo. tium ~ 1bat respondent 2 had engaged in such behaviom, it is not posst"ble to substantiate 1he complainant's specific aUega:tioo. 1bat respondent I enWlero in this kind ofbehaviom with respondent 2, specifically in the presence of the complainant -9- The investigator also concluded on the basis of credible evidence~ 1bat a certain group of cmrec1ional officers enWlero in 1he woIkplace in the kind of behaviour described by 1he cmnplainant. It was :fm1her concluded 1bat this behaviour contnwenes the WDIIP operating policy as it has 1he potential to poison the wotk environment of staff; in addition, such behaviour con1Iavenes the Ontario Human Rights Code as it has the poten1iaI to poison the institutiooal environment fO(" lnmafP.!;; who wi~ it. However~ it was not possI"ble to establish which individuals in this group behaved in this way 1:)f"r.al1~ 1hose wifnP.!i>..~ who confumed 1he existence of 1be behaviour could not be specific as to 1be identity of the participants and because some witnesses chose not to teIl1he investigatDI" for fear of implicating respondent I~ respondent 2, or themselves. [17] The investigator fomul1bat the allegation 1bat Mr_ GIady had repeated 1he wonl "cocksucIrer' in the grievors presence was subshmtiated He concluded as follows: Based on 1be direct evidence and 1be similar act evidence the inVlSigator concluded that 1be allegation that respondent I on IIlIIIleIUUS occasions walked past 1he cmnplainant and. used 1he term "cocksucIrer' in a manneI" 1bat was intended to belittle or harass 1be cmnplainant on 1he basis of sexual orientation is substantiated. [18] FinaIly~ with regard to 1he allegations made during 1he classroom incident, the investigatDI" concluded 1bat 1here were JH) cmrobond:ing witnesses to support the allegations made by 1he cmnplainant in this instance.. The investigator wmt on to say in his analysis and conclusion section: In the view of 1be investigator~ the affP.n~ of1he computer 1Iaining comse were not being 1mtb:ful in 1heir evidence and were reluctant to provide evidence against respondent I. The fact that four witnesses could recall with clarity the one joke made by the instructor~ one and a half years Iater~ and. could not recall a single comment made by respondent I (Mr. Grady) who had admitted maIrine a cc11111 Ilr.llt. does not appear credible to 1he investigatDI"_ Respondent I also admitted makine a comment to witness O~ which was -10- laughed at by fellow participants, as well as apologizing to 1he complainant for any comment 1hat might have been misintaJllded Given 1hese admissions, it is clear 1bat at least one comment was made 1bat was cause for IaneJrlP.r in 1he class aI1hougb. no one in attendance can recall having heard it If the evidence of 1hese officers was placed in 1he context of a cultme that :frowns on <<ratting" and it is recognized 1hat 1he instmctoI:" was a m~ staff, 1his may explain why no wi~ cooId recall any connnen1s made by Respondent 1_ Other witnesses have described Respondent 1 as having a sbaJ:p or acerbic sense ofhmnour and being vay vocal It further s1Iains credulity that he manaeed to go tbrougb.1his half day without makine comments_ In spite of this, 1here is IHJ conolxmding evidence to :find 1bat the allega1ioos occmred as described by 1he complainant [19] In concbxline his report, 1he investigatm" commented as follows: Based on the weight of the evidence, the investigator concluded 1bat Respondent 1 's categorical denial1bat he woold ever male offensive comments about an individual's sexual orientation is IHJt believable. The evidence of WItness L, which the investigator found credible, 0111 filii IS that Respondent: 1 in conversation willi WItness L referred to the complainant specifically as a Kfilr.1rine :flamer." In addition, WtfnP.!;;..U"S M and W recalled Respondent 1 makine derogatory references about homosexuals generally such as "faggot," "queer' and <<fIamine :faggof' and "fudge packer_" On 1he basis of WItness D's credible evidence, 1he investigatm" concluded 1bat Respondent 1 had voiced strong opinioos about homosexuaIi.ty genernUy and 1bat he was not reticent in expressing 1hem. 1hese connnen1s are clearly discriminatOIy under the HU1IU11I Rights Code and 1he WDHP Opemting Policy in that 1hey coIdribute to 1he creation of a poisoned work euvlllllllllent for 1he complainant on 1he basis ofhis sexual mientatiOIL They also have the potential for similarly poisoning the institutional environment for any s1aff or inmates, Iq;ar.d1ess of their sexual orientation, who may be subjected to them. [20] 1hese conclusions are important to the case before me because on April 1, 2004 Deputy Minister John Rabeau sent a letter to Mr_ Ranger stating 1bat he had reviewed 1he investigatm"'s IqMJds and agreed willi his conc1usions_ The Deputy Minister noted 1bat -11- he had directed a ilPSienee to meet with 1he respondent and take app1U}J1-iate corrective action. He stated fur1her 1bat "I regret 1bat you had to experience this unfortunate behaviour.>> Counsel for the union argued that having accepted 1he conclusions in 1he report, 1he employer could not wsile tim:n that position and claim that Mr. Ranger had not been harassed by Mr_ GIady_ The employer counsel did not disagree with this argument 11ms, the starting point for my analysis on the :first issue of whe1her Mr_ Ranger was harassed during his tenure at OCDC is 1he employer's recognition of the ~Q1IPJIf and discrimination and 1he apology :for Mr_ GIady's behaviour. [21] The Deputy Ministers adoption of1he investigators conclusions is enoogh for me to conclude that 1he union has met its onus to prove that Mr. Ranger was harassed and suffered discrimination because ofhis sexual orientation. Mr_ Ranger's evidence and 1bat of other wifn~~ who appeared in 1he lengthy hearing into this matter lend further support to 1he finiline 1bat 1he grievDI" was harassed and discriminated against on the basis ofhis sexual orientation by Mr. GIady and o1hels.. EVIDENCE ON THE CENTRAL ALLEGATIONS OF BARASSMENI [22] Mr_ Ranger testified 1bat during both of 1he periods 1bat he wmked in A&D when Mr_ GIady passed through the area the Ia:tter wooId repeat 1he wonl uococksucker' over and over again in an angry mannel'"_ Although initially Mr_ Ranger did not reaIize 1bat the comments were being directed at him. at some point he did He noted that 1he connnen1s -12- were made in the presence of o1her COs~ 1he police and ltnmltes_ He also testified that his supervising ~ OM Douglas Baird heanl1hese comments. The grievOl" fomul1he comments embanassing and frus1Iat:ing, and he testified that he was fearful for his own security bPr.aIl~ imna~ had overheard the commen1s. Mr. Ranger Wstified 1bat he used varioos 1actics to cope wi1h 1hese commentsJ initiaUy ignoring them. EVP.JI1nal1y he showed his anger and fius1Iation, but Mr_ GIady did not stop_ [23] Mr_ Ranger testified 1bat in his secmd tenn in A&D Mr. GIady resumed his "cocksucIrer' commen1s as he went through A&D_ By 1his point in his tenure at OCDC~ 1he grievDl" 1hougb.t that Mr. GIady was deh"bemtely tIying to aggravate him and he said 1bat it did irritate him a lot He also felt shunned by o1heIs in A&D_ The grievor testified 1bat he became increasingly fiusmded with his woIk: conditions_ On one occasion during 1bat period he spoke to CO Fnmk Nolet and said 1bat he wished "they' would just leave him a1one_ 1he response fium Mr_ Nolet was "If you think 1his is bad, you shooId hear what they say when you aren~t hereon There was no evidence to contradict 1his sta1ement. Mr_ Nolet was not called by the employer_ [24] On one occasion Mr_ Ranger got fiusmded with OM Baird and raised his voice_ Mr_ Baird told him to "settle downn wi1h a raised voice. At 1bat point Mr. Ranger told his supervisor that no one was helping him and he was sick and tired of wOIking a1one_ Mr_ Baird~s ted1mnny supports the grievors evidence here. He testified 1bat after Mr_ Ranger retmned :from 1he acting OM position he became increasingly withdmwn.. Mr_ Baird~s -13 - evidence, which is summarized Iater in the decision, makes it clear 1bat he knew Mr_ GIady used the tenD "C()(".h.nr.ker" in Mr_ Rangers presence and 1bat the grievor had cmnplained about it. [25] After stqJping down from the acting OM position, Mr. Ranger Wstified 1bat he felt 1bat he was being treated di:fferent:ly by his supervising manager, OM Baird He was asked to do 1he job of "'red baWne" by himself. Red bagging is the process of makine an inventory of an inmate's peISODBI1bings_ According to the grievor nonnally 1bis is done by two COs so 1bat an inmate cannot claim that some1bing has been stolen or is missing. After 1he inventory is done the bag is sealed Mr_ Ranger was given 1bis job to do alone and when he complained to OM Baird1he OM said it was a joke.. OM Baird testified 1bat 1he job was done by one CO_ The grievor 1hought that OM Baird was treating him difflaadly and badly in Older to make himself look: good in the eyes of other COs. [26] There was also evidence of harassment and discrimina1ion while Mr_ Ranger was in 1he acting OM position from May 2001 to December 2001_ During 1bis 1imefiame he testified that he received nmnerous emails :from anonymous sendeIs meant to harass and discriminate against him for his sexual orientation. He spoke to OM Linda Doucet, and to Deputy Supa;lIlt':l.dent~ Jean Guy Bourguignon about these emails at 1he time and to his knowledge the manaeeno did nothing to stop them. He said 1bat Ms. Doucet's reaction was to say 1bat 1hey were idiots.. Ms. Doucet testified that Mr. Ranger did not show her 1hese emails.Mr_ Bomguignon aclnowledged 1bat Mr_ Ranger had complained about these emaiIs aI1hough he did not remember seeing one.. It was Mr_ Bomguignon's -14- view 1bat bareainine unit membeIs were harassing membeIs of manaeement The grievor's view of the emails was 1bat they were intendP.d to make him quit and he was detf'fl1l1ned not to do so. The unioo. tendered documentary evidence of inappropriate emails sent to Mr_ Ranger, including severnl sent after his return to A & D in January 2002. Many were bn~ and childish in tone. pmporting to miss the grievor_ One was gmphicaUy offensive.. [27] The employer's submissioo. on this evidence was 1bat all the manageIS were receiving offensive emailsinthe:fallof2001.This was a tense time in the institutioo. as the minisUy prepared for a possible strike in early 2002. The employer also argued 1hat 1he harassment was the union's fault The union members used whatever personal chamcteristics they could to attack mana.gas. because they were m~_ In response to this 1he union argued 1bat when an employee sine1es out and harasses an individual ber.all!i:P. ofhis or sexual orientation or any oftJ.er protected ground of1he Code, it is:never an excuse to blame 1he uniOll. It is 1he responsibility of 1he employer to take action. I have to agree_ The employer has a duty of due diligence here. The duty under the Code is to provide a workplace :lire of discrimination and hara!i;.!~ment. By not taking any action. the employer condones the behaviour and 1herefore brP.aches 1he Code.. I will address 1he employer's duty of due diligence in more de1aiI Iater in the decision. [28] The grievor also testified that on one occasion Mr_ Grady pretended to sodomize CO Ra!mlll!i>..~ while looking at Mr_ Ranger with a big smile on his face. This occmred as 1he grievor walked up to the maximmn security area to escort an inmate. He said that 1he -15 - COs saw him coming and 1hen acted it oot CO Eleanor Hodges, IHJW retired, testified 1bat she witnessed 1bis incident It was also Ms.. Hodge's evidence 1hat not everybody in 1he institution was anti-gay and 1bat ML Ranger was genernlly respected by o1her CDs.. The small group 1bat were anti-gay included Mr. GIady, who had sbung feelings against homosexuals_ She often wifn~..ftI Mr. GIady mak1ne rude comments behind the grievor's back. She said that CO Roger KiIly, CO Doug Rasmussen, and CO Peter Ploofe, were all present 1he day 1hat Mr_ GIady simulatP.d anal sex in :front of Mr. Ranger. Ms. Hodges said that the grievor had cmne to 1he maximum security area to get an imna1e. She said 1bat Mr_ GIady and Mr_ KiIly were 1he first to mimic anal sex and 1hen Mr_ lb!ml1I!;;.!;;P.I1. joined in. She does not [P.lJlP:lllher any o1her occasion where she wi1nessed 1bis lind ofbehaviom. She said 1bat 1bis was 1he first time she had seen the harassment be SO blatant. Nei1her Mr_ GIady nor the individuals named by Ms.. Hodges were called to testify in 1bis proceeding. [29] The employer argued 1bat I should not find Ms. Hodge's evidence credible because she had had issues with 1he union while she worlred at OCDC_ I am not per-;;naflPJi by 1bis arglDoent Ms. Hodges chose to follow her conscience during 1he 1996 strike and she did not participate in the job action. She was criticized openly by some union members for doing so_ This does not peISUade me 1bat she would peIjure heIselfbefore 1bis board to retaliate against 1he union or Mr_ GIady_ Moreover, she has left OCDC and woold have no1bing to gain by fabricating her evidence.. Her evidence was candid and clear_ It also accords with Mr. Rangers memmy of the incident -16- THE CLASSROOM INCIDENT [30] Mr_ Ranger testified 1hat 1he classroom incident OIl February 11, 2002 was 1he last stIaw fO(" him.. He was attf'Ddine OTIS tIaining with o1her CDs that day_ OM Shane LamP.!i;..~ was doing 1he tIaining_ According to 1he grievor's evidence what ensued was a series of jokes at his expense made mostly by Mr_ Grady_ One eraR1ple was that Mr_ Grady grabbed ano1her CO's leg, looked at the grievOI", and said to the person he had grabbed "pass it OIL D The whole class burst out IaneJrine Another individual could not log on to his computer and so moved to a vacant seat to log OIL The grievOI" observed 1hat he was having difficulty and helped him log in. Mr_ Grady made the comment that the individual just wanted to sit beside 1he grievor_ Again 1he class burst out Jauet-me_ Ano1her CO said that he was having trouble getting into the system.. Mr_ Grady's cmnment 1hen was that the grievor could help him "get it in. n There was more IaneJrlP.r and one individual Jauet-ed so hard 1bat he aImost choked [31] At 1he hmch break the grievor approached Mr_ ~~ and told him that he was going home_ He testified 1hat Mr_ LaInesse was panicky and tried to get him to go back into class.. He also said that he would send CO GIady out to speak to him.. Mr_ Ranger did speak to Mr_ GIady who apologized fO(" his behaviour and asked him to go back to the class.. Mr_ GIady told him 1bat ifhe went back, he would speak to 1he class and set evaydUng s1Iaight It was the grievors view that Mr_ Grady was the cause of 1he haras.omJeJJt and discrimination in the class and he went home.. He testified 1hat 1he -17 - apologies were not enough and 1bat he just could not take it anymore.. He had fdt belittled by the whole classroom, including 1he instructm". He was of1he view that a manaeer was a wi1ness to the innuendo and 1he jokes and 1hat he did nothing about it. In fact, Mr_ Lamesse had a smirk on his face. The grievO(" left 1he woIkplace and never retmned to OCDC_ [32] Shortly after he left the wolkplace he had calls fiom both OM Lamesse and OM Baird AccoIding to Mr. Rangers evidence Mr_ Baird apologized fO(" what had happened and told 1he grievor 1hat he knew what he had to do now, since this was not 1he first time 1bis had happened to him. The grievO(" uncbstood that to mean 1bat 1here was no place fO(" a homosexual CO in the institution and 1hat he had better look: for work elsewhere_ He said 1bat at 1he time he felt donned by 1bis conversatiOIL There was no1hing in Mr_ Baird's evidence to cmdmdict the grievm"'s testimony on 1bis_ OM LamPSSe also called to see if he was alright and apologized fO(" 1he incident. [33] Mr_ Lamesse was called by 1he employer to give evidence of the classromn incident on February 11,2002. He testified 1bat at 1he bet;nnine of the class 1he mood in the classroom was loud and boisterous and it took him some time to get 1he attention of1he gnHIp_ The 1Iaining occmred in a Iargish boardroom and the table was set up in a hmseshoe shape_ Each peISOR had a desktop computer in tiunt of1hem 1bat was networked to the server_ Mr_ LamPS.'ie testified that the COs were training on a beta vasion of1he system and there were some problems wi1h it, including connecting to the -18 - server. He Wstified 1bat the group was 131-rJUne loodly, particularly when he was initially prepping his materials and getting ready to start 1he class.. There was also IaneJrlP.r when he was discussing the materials. He stated that he would stop and let 1hem settle down before moving on wi1h his s1ides_ He Wstified 1bat he did not hear the comments made by individuals during 1he tIaining and he dlrs not remember any inappropriate jokes.. [34] Nei1her Mr_ GIady nor any other participants in 1he classroom were called to give evidence as to what occmred during 1bis incident. Thus 1here is no evidence to contradict Mr_ Ranger's testimony as to what happened during the tIaining session in the moming. 1here is nothing in Mr_ Lamesse's evidence that contmdicts Mr. Rangers recitation of 1he event. Mr_ r ~~'s evidence that 1here was langhter- and 1bat 1he group was difficult to control is consistent with Mr. Rangers evidence. Mr. Lamesse stated 1bat he did not hear any of 1he comments of 1he individnals. This is difficult to believe. especially given 1he size of1he classroom, which was a boardroom set up in a hmseshoe shape, and in light ofMr_ Lamesse's apologies to 1he grievor_ I am also per-maded that Mr_ Lamesse must have heard some of the jokes because when he filled out the ~ fonn. a report used to ra;w.d WDHP incidents, he named himself as a respondent. Finally, Mr. Boorguignon testified that he spoke to Mr. Lam~~ shortly after 1he classroom incident. He said that Mr. r ~~ told him that uare computer lingo was being used by 1he participants in the class in a sexual way, targeted at the grievor_n Mr_ Lamesse also told him 1bat it was Mr. Grady <<and his en1uumgen. Given all 1hese cir~hwces it seems more probable that Mr. Lam~'ie heard the jokes and did no1bing to stop them. as the grievor testified -19- [35] Counsel for the employer's chief argnment to me on the grievors evidence oflJar,KomIPJIt and discrimination at OCDC was 1bat ML Ranger had exaggemted it He argued 1bat fO(" most of1he grievO("'s time at OCDC, he was not harassed The grievor testified to only one incident early in his time at OCDC in the young offendeIs unit While 00. a smoke break, a CO had suggested to 1he grievor with innuendo, that he should <<suck: a little hardeI" 0(" words to that effect OM Macdonald witnpj;.~ the ~J spoke to the CO who made it and told him not to do it aga.ia ML MacDonald also let the grievor know what he had done and 1he individual never made ano1her suggestive comment. This evidence was used by the union to argue 1bat when a m~ took action, it could make a difference.. It was also used to support the unioo.'s submissioo. 1bat manaeas were aware of 'Ibis kind oflJaral;;..QJlent. [36] The grievor also said during 'Ibis period that he had received many inappropriate emailsJ but he was vague 00. content, times and dates.. This is not smprising given 1he pu.-<i:aer- of time_ ML Ranger testified 1bat he showed some of1hese emails to OM MacDonald ML Macdonald was not called, although Mr_ Ranger was warned under the rule in Browne and Dunn 1bat there woold be cmdmd.ictOIy evidence tium Mr_ MacDonald Thus, I accept 1he grievor's evidence on 'Ibis even though it is not very specific_ The evidence is much more specific and clear in 1he period of wotk 00. 1he adult side_ The evidence also suggests 1bat the harassment because ofhis sexual orientation increased when 1he grievor 1nmsfem:d to the adult side of 1he institutiOlL Finally, 1he fact that 1he evidence of what occurred in the young offender- unit is not detailed does not diminish the allega1ioo.s for -20- which there is clear evidence, or lead me to conclude that he exaggerated what occmred to him throughout his time at 1he institution.. [37] 1he other centnd argument made by 1he employer counsel on the grievor's evidence was 1bat Mr_ Ranger fabricated evidence and thacli...e lied to this 1xmd at times and is 1hns not a credible witness_ To support 1his submission counsel argued for erample, 1bat there was an inconsistency between Mr_ Lamesse's evidence and 1he grievDl"'S Iq;mtbg 1he classroom incident as to which one of them suggested 1he grievOl" speak to Mr_ GIady at 1he lunch break I am not peISUBded 1bat this inconsistency, or any of1he o1heIs of a similar nature, is the resuIt of anything but 1he passage of time_ 1be classromn incident happened in FebrnaIy 2002_ The evidence on this issue did not come in until much after 1he event. Mr. Ranger did not begin his evidence until 2004. In any case, I prefer 1he grievor's evidence here.. Mr_ Ranger testified 1hat Mr_ LaInesse made 1he suggestion1bat grievor speak to Mr. GIady. Mr. Lampj;.~ says that it was Mr. Ranger who suggested 1bat he meet willi Mr_ GIady about the latter's behaviour in the classromn 1bat IIlOIIling. Given Mr. LaInesse took credit willi senior manaeas for mediatine a solution between 1he two, and was mging Mr_ Ranger to return to class, I suspect 1bat it is Mr_ Lamesse who is misremembering here. But it really does not matter. It is not material to the decisiOlL To be absolutely clear, 1hese sods of minor inconsistencies are certainly not eoougb. to :find 1bat 1he grievm" was not telling the 1:ndh. [38] Counsel argued o1her such discrepancies in the evidence_ InitiaUy Mr_ Ranger Wstified 1bat OM Baird wi1nessed Mr_ GIady going 1hrougb. A & D saying "cocksucker" -21- repeatedly_ On cross 1he grievor was not so sure whether OM Baird was in his office when 1his occmred or would have overheard 1he cnmments_ He said 1bat he must have_ But the grievor was always clear 1bat he had told OM Baird about Mr. GIady's behaviour. In fact as will be seen Iater in the decision, Mr_ Baird admitted that he had heard Mr_ GIady swearing as he passed 1brough A&D, but maintained that he did not know it was directed at 1he grievOl". He also maintained 1bat when 1he grievOl" cmnplained about Mr_ GIady's behaviour, he did not mow, Mr_ Ranger was alleging that 1he cnmment was being directed at him peISOII3Ily_ Taking all of1his into account any inconsistency in Mr_ Ranger's evidence does not peISIl8de me that he is lying 01" fabricating evidence_ Again the passage of1ime fades memories on details. Mr_ Baird ac1nowledged that he had a pool" IIleIIKHY- And I am of the view 1bat 1his detail does not ma:tter_ What does matter is that Mr. RangeI"'s allegation, 1bat Mr_ GIady used the word "cocksucker' over and over again, while walling 1brough A&D, was conobomted by Mr_ Baird.. [39] Counsel for the employer also submitted that 1he grievor's allegations against a III8II.geI" for an incident during a minisUy sponsored golftoumament, which was investigated by 1he nu and found not to be substantiated, is more evidence 1bat Mr_ Ranger is not only not a credible witness, he is a liar_ The allegation came forward after Mr. Ranger filed his grievance and 1he employer decided to have the nu investigate. The allegation was 1bat the m~, Mr_ Michar.l Maguire, said he was not going to play golf with a "faggot." This commr.nt was alleged to have been said to Superintendent Michael Cote_ Mr_ Maguire testified 1bat he did not say 1his and 1he word is not in his vocabulary_ Mr. -22- Cote testified 1bat he did not hear the shdP.mPnt Ms_ Doucet, who was present, has no IIleIIKHY ofML Ranger commentine at 1he time of 1he incident about the alleged slur. [40] In reply evidence 1he grievOI" stated 1bat he must have .rn!;;affTibuted the ~ Counsel for the employer argued that retmcting such an allegation, which has provm to be :false, is an outIageous tactic, an abuse of process and :further proof of Mr. Rangers fabrication and exaggem:tion of evidence_ I am not permaded 1bat this retIac1ion should lead me to conclude that the grievOI" was lying or to :find an abuse of process_ On the CUIltUIl1, 1he fact 1bat 1he grievor was willing to state in reply that he must have misattributed it to Mr_ Maguire shows his honesty. Having made the accusa:tion, he could have continued to maintain its truth, and I would have had to decide if 1he evidence supported 1he aIlegatiOIL Instead he admitted he got it wrong.. Even Mr_ Maguire said he had no reason to 1hink Mr. Ranger wooId lie deliberately. It would be truly outIageous to maintain a false aIlega1ion un:tiI almost 1he end of the hearing; however 1bat has not been provm in 1bis case.. [41] Counsel for the employer said 1hat I should :find 1he aIlega1ion and subsequent retraction to be an abuse of the process, but he made no argument to support 1bis position. I am satisfied that 1here has been no abuse of process here_ [42] Counsel for the employer began to argue that because the main harasser was 1he union president at 1he time of~ evmts, the union was at fault Counsel:fm-1he union objected, arguing 1bat there was no evidence before me 1bat Mr_ Grady was acting as a -23- ;mon president' He argued fur1her 1bat it is 1he employer's responsibility to intervene and take avpt.upt.iate steps to deal with harassment. no ma:tter who the alleged harasser is_ Counsel for the employer conceded the point during closing argument EVIDENCE OF A POISONED WORKPLACE [43] One of 1he conclusions of 1he IIU inves1:igatOI", adopted by Deputy Minister Rabea:u in his letter to Mr. Ranger, was 1bat Mr_ GIady's derogatory references to homosexuals contributed to the creation of a poisoned wotk environment in 1he institution. [44] A IIIIJIIber of wi1npj;.~ both barrJlinine unit members and m~. testified about 1he poisoned wmk environment :for gays and lesbians at OCDC at the time Mr_ Ranger woded 1here_ Ms. Hodges testified 1bat she had heard CDs refer to homosexuals as "queer," "tDckine queer," "fag, " "fIamine :fag. .. and "fIamine homosexual" It was her evidence 1bat connnen1s were made behind Mr. Rangers back: when he was escorting inrnaiPs such as "There goes 1he queer-look at the mince on him." It was her view 1bat some people did not like him and used his homosexuality to attack him. She 1hougbt 1he reason 1his was happening was because he was a hard worker_ [45] Ms. Hodges also testified 1bat she understood 1bat the employer said it had a zero tolernnce of any sort of discrimination against o1heIs.. She stated that 1his was "good on paper," but not in pmctice and 1bat the policy was considered a joke by some in the institution. It was her view that Mr. Grady and o1heIs in his groop took: advantage of 1he -24- lack of cufUl.cement of the WDIIP~ knowing 1bat there wooId be no JPmishment :for harassing someone like the grievor_ She did not IqMJrt the incident ofMr_ GIady mimicking anal sex because she knew it would not be addressed by senior management. She noted that o1her potential witnpj;.~ wooId have been atiaid of retribution if 1hey came forward to managenad wi1h the infonnation about what happened She testified about the "code of silence"" which means 1hat a CO always defends a fellow officer no ma:tter what occms_ The code of silence was acknowledged to exist by employer wi1nesses, including Mr_ Bany Scanlon. [46] OM Jeanette Carisse testified under smnmoos in a similar vein to Ms.. H~ She was nervous about testifying and about repercussions. She said Mr_ GIady was her supeDOI" o:8icer at 1he time she was giving evidence_ He was promoted to a deputy superintendent in 2005_ She desaibed the climate on 1he floor when 1he grievOl" was an acting OM. She o:ften heard comments about Mr. Rangers ~131ity and the comments were o:ften "rude_"" When 1he grievol" was in A&D people woold .auark that he should not be doing strip searches because he was gay_ People made jokes about homosexnaIs on a continuoos basis. She testified of one specific comment made by Mr. Grady when he stmmed into her office one day and said 1hat Mr_ Ranger was a "fuckine tlameI" and shooId not be an acting OM She also told 1he nu investigation about this incident. She testified 1bat the antigay connnen1s made by CDs were so frequent 1bat they seemed almost accep1able to people.. For the most part it was a big joke to most. Other 1han identifying Mr_ GIady~s remark. she was unable to identify o1her CDs who made inappropriate jokes 01" comment about homosexuality. In contrast to Ms. Carisse, OM Doucet, who also wmked with Mr. -25- Ranger when he was an acting OM, testified that she heard no harassing comments_ She explained in cross eJ[3IIIination that o1heIs minded 1heir "p~s and q~sD aromuI her_ DECISION ON EVIDENCE OF HARASSMENT AND DISCRIMINATION [47] Having carefully considered the evidence of harassment and discrimina1ion proffered by 1he union on severnlley incidents 01" examples ofhaP!i>..QJlent, 1he falln~ gesture of mimicking anal sex, 1he uococksuckel" commen1sJ and the jokes at ML Ranger~s expense in the classroom incident, I :find 1here is ample evidence to support the allegations. The allegation 1bat Mr_ Grady used the wont uococksuckel" to taunt and irritate 1he grievOl" whilst going through A&D was cmro1xmded by Mr_ Baird The allegation of mimicking anal sex with another CO was cmro1xmded by Ms.. Hodges_ The employer provided JH) evidence to cmdmdict the grievm"~s testimony of what occurred in the classromn incident, 1bat is, that he was taunted and ridiculed in a series of jokes made by the participants of 1he class at his expense in fiont of a manager. Mr_ Bourguignon said in his evidence 1bat 1he grievOl" had spoken to him aboot an inappropriate email sent during his tenn as an acting OM Ms_ Carisse testified that she heard harassing comments and jokes aboot homosexuals on a regular basis_ All of this leads me to the conclusion 1bat 1here can be JH) doubt that 1he grievor was harassed and discriminated against because ofhis sexual orientation by o1heIs at OCDC and particularly by Mr_ GIady, and that he was wodring in a poisoned workplace. -26- [48] The unioo. argued that 1here was no doubt in law 1bat what Mr_ Ranger endured at OCDC amounted to harassment 00. the basis ofhis sexual orientation, cuuh_ Y to 1he Code, 1he WDIIP~ and the collective agreement Article 3.1 of1he collective agreement provides: There shaU be IH) discrimination pnacticed by reason of race, ancestIy~ place of origin, colour~ edmic origin, citizenship~ creed, sex, sexual orientation, age~ marital status, family status~ or handi(".ap~ as defined in section 10(1) of the Ontario Human Rights Code. [49] Counsel for the union cited pertinent definitions:from the employers policy_ Harassment is defined in 1he WDIIP as: A comse of vexatious CClllllllr.llt or conduct (based on one or more of the prohibited grounds under 1he Code)~ 1bat is known (J(" ooght reasonably to be known to be lDlWdcome_ Where a single such evmt appears to create a poisoned work euVlllJlllllent. it is also considered to be a violation of 1his policy and the Code_ The WDIIP provides 1hat discrimination: Includes~ but is not limited to~ unequal1Fafment based on oo.e or more of1he prohibited gromuIs~ except where conduct is P'=lIl1illt".() under the Code_ Discrimination also includes failure to provide av....up.iate employment accommodation in 8CCOIdance with 1his policy and 1he Code_ Discrimination can be intentional or unintentional, direct or indirect (but where the wsult is advase impact on prohibited grounds)_ The policy defines poisoned wotkplace as: An infiingement of eveIY peISOll~s right to eqnal1FafmP.nt with respect to employment which refers to comments~ behaviour or wod:. euVlllJlllllent 1bat ridicules, belittles, or degrades people or groups identified by oo.e (J(" more of -27- the prohibited gromuIs of 1bis policy. A poisoned wad environment cooId result fiom a serious and single evmt, remark or action and need not be directed at a particular individual [50] There is no question that the comments and gestures by Mr_ GIady~ 1he emaiIs and the jokes at Mr. Rangers expense constitute IJar,KQJlent and discrimination because of sexual orientation. 1be behaviour was vexatious and unwelcome_ Mr_ Ranger testified 1bat he suspected in January 2002 that Mr_ GIady used the uococbuckel" comment deliberately to irritate him. The jokes made during the classroom incident belittled and hurt the gDevor_ All of 1bis created a poisoned wolkplace :for him. [51] Mr_ Ranger~s evidence was 1bat the classromn incident was the last stIaw_ He had 1ried to put up with 1he inappropriate behaviour~ but 1bis incident fOIred him out of1he institution. 1be law is well settled here and fur1her analysis is not necessaIY- Counsel for 1he employer~ correct:ly in my view~ made no objection to the argument 1bat if I foond the alleged evmts to have occurred, 1hey would constitute haP~QJlent and discrimination, CUldull Y to 1he Code, 1he WDHP~ and Article 3 of the collective agreement between 1he parties.. DECISION ON WHETHER THE EMPLOYER WAS AWARE OF THE HARASSMENT AND DISCKIMINATION AND THE POISONED WORK. PLACE [52] 1he next issue to be considered is whe1her or not the employer was aware of the harassment and discrimination against 1he grievor. The employer argues that the grievor never complained ofharassment and discrimination and that it did not know that it was -28- occurring until he cmnplained after the classromn incident. The union argues 1hat 1here is ample evidence to conclude 1hat the employer knew of 1he haP!i>..QJlent and discrimina1ion and did nothing. [53] At Ieast 1bree manaeers testified 1hat 1hey were aware of 1he discrimina1ion and harassment against Mr_ Ranger and :for varioos reasoos no1bing was done_ [54] OM Carisse testified 1bat she heard derogatory cnmmen1s about Mr_ Ranger fu:quentIy and 1hat it got WOISe over 1he time that Mr. Ranger worked at OCDC. OM Carisse testified 1bat she did not report Mr_ Grady's commen1s to seniOl" management because it was so commonplace. Further, she said 1bat 1here was no support in upper management when such issues were raised so she gave up after a while. She said that she did raise the issue ofhow Mr_ Ranger was being treated at a pre-strike meeting of OMs. There was some evidence tendered by the employer 1bat Ms.. Carisse was n:fl:uiug to a meeting 1bat occurred after CIuis1mas_ Ms.. Carisse remembered it as before the holiday_ It is not smprising given 1he passage of time that she does not .e..Ir.I..her 1he precise date_ Moreover, she might be misremembering in which meeting she raised 1he issue. However, she testified that she had a clear ~ of raising 1he issue of Mr. Rangers treahnent at a meeting. She testified 1bat she also raised 1hese issues with Deputy Superintendent Bourguignon during the time Mr_ Ranger was an acting OM. She was certain 1bat oftrer m~ had overhP.ail1he homophobic commen1s because 1hey were present or at 1iIIrs in close proximity. -29- [55] Mr Bomguignon has no memory ofMs_ Carisse sp-.al-ine to him about the haPKQJlent of Mr_ Ranger, when he was an acting OM However, as noted earlier, Mr_ Bourguignon testified that Mr. Ranger had brought an offensive emaiI to his attention at some point after August, 2001. He did not see the email, but the grievOI" told him 1bat he had received an email with sexnally explicit:, offensive content He testified 1bat no1bing was done to :find oot who sent it 0(" put a stop to sendine of such emails.. There were not many computer terminals in the institution and 1hey were often left open so 1bat any CO coold access 1hem and send an anonymous email Moreover.Mr. Boorguignon testified that when a considerable Il1IIIIher of employees complained about Mr_ Ranger's perfonnance as an acting OM, he suspected the complaints were fabricated because of the homophobic attitude in 1he institutiOlL He stated 1bat he suspected fabrication because he had seen no1bing himself to confinn 1he basis fO(" 1hese complaints.. His view of the grievor was 1bat he was an excellent employee, hanlwodring and professional in his manner_ [56] OM Douglas Baird, 1he grievor's supervisor while in A&D, acknowledged 1bat because of medical issues his memmy was not good However, he .e..Ir.I..hered that he heard inappropriate comments about the sexual orientation of staff and inmates regularly. AI1hough in chiefhe denied hearing comments directed at individuals.. OM Baird stated in driefthat he had heard Mr_ Grady use 1he word ucocbuckeI", but not to Mr_ Ranger. He acknowledged 1bat he heard Mr. Grady using the word "cocksucker" when he walked 1brough A&D_ He admitted in cross eJaUJrination that Mr. Ranger had complained about it to him. He testified that the grievor said 1bat he was "tired of GIady cmning 1brough A&D saying 1he wont ~cocksucker." But OM Baird testified 1bat Mr_ Ranger never told -30- him 1bat Mr_ Grady was calling 1he grievOl" a acock:suclrer'." When questioned ifhe did anything after he observed Mr_ GIady repeating 1bis word, Mr. Baird said that he spoke to him about it After that he does not recall Mr. GIady saying the word [57] OM Baird also testified he raised the issue of Mr. Rangers sexual orientation wi1h him 00. his :first day in A&D because he was concerned 1hat 1he grievor could be 1he subject of derogatory comments because ofhis sexual orientatiOll. Again 00. cross-examination, OM Baird agreed 1bat Mr_ Ranger spoke to him on a couple of occasions about inappropriate comments being made by oftrer staff and that Mr. Ranger was upset OM Baird said 1hey were comments about Mr_ Rangers "lifestyle"~ as he .efD.lul to 1he grievor~s sexua.I orientatiOll. OM Baird told 1he IIU investigatDI" 1bat he was aware of staff DIanne comments about Mr_ Ranger_ Mr_ Baird also admittP.d in cross-examinatioo.1bat he had heard fium another CO 1bat Mr_ GIady did not like gays.. He acknowledged 1hat Mr_ GIady was known to pick 00. people. He also testified that in January 2002 he sensed something was wrong with Mr. Ranger~ who was withdmwing fium the workplace and calling in sick. [58] Counsel for the employer argued 1hat I shooId :find 1bat Mr_ Baird was not aware ofMr_ GIady~s harassment ofMr_ Ranger~ because Mr_ Baird did not know the statP.rnent was directed at Mr_ Ranger_ I cannot accept this, given Mr_ Baird acknowledged 1bat he knew Mr_ GIady repeated the wOIk: acock:suclrer' as he went 1hrougb. A & D and 1hat Mr_ Ranger specifically cmnplained about it. As union counsel argued Mr. Baird~s initial meeting wi1h the grievor makes it clear 1bat he was aware 1hat Mr_ Ranger is gay and he -31- had concerns aboot whe1her he wooId be 1reated properly by others, given his sexual orientation.. Hence he said his doOI" was open, ifML Ranger had any problems_ Well it was clear in the evidence that Mr. Ranger did have problems and 1bat he did cmnplain. 1he only actioo. 1bat Mr_ Baird took was to tell Mr. Grady to stop saying "C()(".h.nr.1-er" _ It was Mr_ Baird's evidence 1bat he never heard it again. It was 1he grievDl"'S evidence 1hat it never stopped while he wmked at A& D. Even if it is true 1bat Mr_ Baird did not know 1bat Mr_ Grady's taunts were directed peISOD3IIy to Mr_ Ranger, it would still be inappropriate_ And given Mr_ Baird knew Mr. Ranger was gay, he ought to have reported 'Ibis to senior management for appUIIlliate actioo... [59] Given the evidence of OM Baird primarily, but also the evidence ofMr_ Bomguignoo. and Ms_ Carisse, it is clear that ~ were aware of the lJaral;;..omIP.JIt and discrimination that 1he grievor experienced at OCDC, particularly in his work 00. 1he adult side in A&D and as an acting OM, but no actioo. was taken to eliminate 1he harassment Ms.. Doucet, Ms. Hodges, and otheIs testified to the openly hostile attitude by some COs to gays_ Mr_ Bomguignoo.'s evidence c0n01xmdes'lbis findJne- it was his view that complaints aboot Mr. Rangers work came out of a homophobic attitnde in 1he institution at 1he time_ The only expIanation given :fm-1he lack of response was that it wooId do JH) good or that it was impossible to change 1he environment. There was no support tium senior m~ -32- [60] There was no evidence tendered by the employer that it took: any stqJs to address what was clearly a poisoned wmlplace fDI" gays at the time_ It is not enough to say 1bat 1here is a policy against haPKQJlent and discrimina1ion, unless it is enforred It is not enough to argue that management had an open door and Mr_ Ranger should have cmnplained but did not In fitct he did complain and nothing was done.. He cmnplained to Mr. Baird 1bat he was sick: and tired ofbeing treated badly by Mr_ GIady and others_ He complained specifically about Mr. Grady calling him a "cocksucker"_ Mr_ Ranger sboold not have had to file a fonnal WDHP cmnplaint to get some protection fium Mr_ GIady and others_ [61] After 1he classroom incident, which wsulted in Mr_ Ranger leaving OCDC~ he did file a fonnal WDHP cmnplaint. However~ n1titnately nothing was done to address the poisoned wotkplace at OCDC~ even after 1he Deputy Minister adopted 1he conclusions of 1he IIU investigatoI" 1bat Mr_ GIady~s Cllllllllr.llls and actions created a poisoned wmlplace.. MANAGEMENPS INVESTIGATION AFTER MR.. RANGER'S WDHP COMPLAINT [62] The union argues 1bat the Minis1Iy failed to investigate Mr. Rangers WDHP complaint wi1bin a reasonable time_ An investigation by 1he IIU began in August 2003. The employer 1:aRs 1he position 1bat when Mr. Ranger did make a :fonnal complaint 1he employer acted pro1l..lpf.ly in a serious and sensitive manneI". [63] As noted earlier~ OM Lamesse testified 1bat after Mr_ Ranger complained to him at the hmch break and told him 1bat he was going home, he encomaged Mr. Ranger to retmn to -33 - 1he class_ Mr_ LamPSSe sent Mr_ Grady to meet with the grievor and to apologize to him. Mr_ GIady apologized and told Mr_ Ranger that he would speak to 1he class regarding the WDIIP policy and 1bat harassment and discrimination was not tolerated in 1he wotkplace_ Mr_ Lamesse was not present :for Mr_ GIady~s cnmmen1s to the class_ Mr_ Ranger could not accqJ1: apologies at that point and he left the institution. [64] OM r .311If"j;.<i;P. testified 1bat when Mr_ Ranger did not return to the institutioo. and on 1he secmd day oftrainine, he contacted various senior ~ to advise 1hem. He also contacted Silva MinM.!i.ian, at 1he time the WDIIP Program. AdvisoI:" for the employer_ Mr_ Lamesse advised Ms_ MinM.!i.ian that this was an isolated incident, 1bat 1he person who had been 1he object of the complaint had apologized He also told her 1bat he had offered his services to mediate a sett1enaJt between the two individuaIs_ Ms.. Minassian recmnrnenflPJi that he fill out a ~ fOllll, and givm the circumstances she 1hought 1bat there was no1bing that needed to be done at 1bat point [65] Micnar.1 Cote was the superintendent of OCDC during 1he grievor's time at the ~~Hehad~1he~~thetimehe~hisrn~inthis~_He testified that he was briefed on 1he incident by Mr_ r .311If"j;.<i;P.,. who had also advised 1bat 1here had been a resolution between 1he grievm and Mr_ Grady shortly after 1he grievor's cmnpIaint. Mr_ Cote testified 1bat Mr_ Grady also came to his office_ Mr_ Cote stated 1bat Mr_ GIady was angry and somewhat oot of control. Mr_ Grady told him that he 1hought Mr_ Ranger was going to "milk the situation as he had done in the past at L'Orignal>> He -34- also said "that faggot better be vay carefuL_ D and went on to make a 1breat 1bat he cooId accuse ML Ranger of inappropriate behaviour. Mr. Cote twified 1bat he cautioned Mr_ GIady that he was not helping matters_ Mr. GIady also told Mr. Cote 1bat he did not 1bink the mediation had been successful [66] Mr_ Cote said 1bat the day after 1he incident, when 1he grievor called in sick, he Irnew 1bat something was wrong and so he telephoned the grievor_ He had been told Mr_ Ranger was dismmght because everybody in 1he class had been lanet-me at him.. He recognized 1bat this would certainly create embarrassment and hnmiliation.. Mr_ Cote asked to meet him off-site so 1bat he could hear his side of the story_ They arranged to meet at a local coffee shop. When he asked how Mr_ Ranger was feeling, whe1her he was <<ok, n Mr_ Ranger said absolutely not. He stated that Mr. Ranger wmt on to te1I him 1bat the mediation was not enough because 1he harassment had been going on :for a long time_ He told Mr_ Cote that he was fed up and tired and he could not take it anymore.. Mr. Ranger's evidence on this meeting acconIs with Mr. Cote's.. [61] Mr_ Cote twified 1hat he told 1he grievOl" 1bat he undeIstood and asked him to put his cmnplaint in writing, including all the priOl" incidents fiom the past Mr_ Cote explained 1bat Mr_ Ranger appeared hesitant and untrusting ofhim.. Mr. Ranger 1hen said to him: "you know you don't IUD. 1he institution; Mr. Grady does.D Mr_ Cote understood what the grievor meant by this and twified that at the time he 1hought to himself1hat Mr_ Ranger was 70% right in his cnmment However, he did not respond to 1he grievOl"'S .aumk. He -35 - also said 1bat the memory of1he cnmment still causes him paiIL Instead ML Cote told Mr_ Ranger 1hat it was important for him to get 1he grievOl"'S aIlega1ioos if the minisky was going to do an inVlSigation.. He also advised ML Ranger ofhis rights under 1he WDIIP and advised him to cm1act Ms_ Minassian :fm- a list of employee advisoIs_ ML Cote testified 1bat shodIy after 1he meeting with Mr_ Ranger he contacted Ms_ Minassian to get advice and to in:fonn her that 1he grievor was claimine more 1ban just the classromn incident. He also spoke to the director of the nu at the time.. [68] Mr_ Cote told the bmnI that as time went on and nothing was done, he became more concerned He said 1bat if an investigation is not done as soon as possI"ble in 1hese cases, 1he facts get lost and the perpetrator continues with 1he behaviour_ Moreover, 1he perpetrator 1binks management has no con1rol 01" is not willing to deal with the issues_ Mr_ Cote testified 1bat he wanted a thorough investigation of the wmting conditions in 1he institution, incbxline Mr. Rangers cmnpIaints.. However, he did not have Regional mana.gement's support :fm-1bis. Mr_ Cote testified that he had had discussioos with the regional cIirectm", the head ofnu, and Ms. Minassian about an investigation, but 1hey all wanted a written cmnpIaint and particulars before starting one.. [69] Counsel for the employer argued that Mr. Cote's evidence was not dependable and that I should not rely on it. He argued 1bat labour reIatioos strife during and after the strike in 2002 lead to very bad relatioos between Mr_ GIady, who was 1he union president, and Mr_ Cote_ Mr_ Cote ultima1P.1y left 1he OPS and took: a job in the federal correctional -36- service. Counsel suggested that the experience wooId necessarily colour ML Cote's evidence. I cannot agree wi1h this submissiOIL I am persuaded that Mr_ Cote was entirely candid and honest in his evidence. He testified about some1bing 1bat still pains him to recall------tba is, Mr. Rangers comment at the off- site meeting. just after 1he classroom incident. 1bat Mr_ Cote did not nm the institution. Mr_ GIady did MOIWVeI", his evidence to the board was consistent and logical Finally 1here was no evidence to COIdmdict his comments, for example, about wanting an investigation started soon after 1he classroom incident. No one :from 1he regiooal office was called to counter his evidence_ [70] Even after Mr_ Ranger filed a fonnal WDHP complaint on May 9, 2002, 1here was delay a~lrn1e :for fur1her particulars. Mr_ Ranger had told Ms_ Minassian 00. hme 12 that he did have further particulars, but 1bat he did not trust the ~ ofOCDC and wanted to speak to someone else.. He specifically asked to speak to someone at llU_ The employer's evidence 00. this was that it would not have been procedmaIly proper :for 1he grievor to talk to llU before the particulars were provided So an investigatioo. was not begun. There was evidence that the employer tried to set up a meeting wi1h a senior manaeer :from 1he region. Mr. William Cooney and 1he grievol", but it did not occur_ [71] Mr_ Cote also testified that regional management were genernlly reluc1ant to address the issues wi1h Mr. Grady's behaviour_ He told the board that when he first began as superintf'Ddent at OCDC, he got along well wi1h Mr_ Grady, in his capacity as 1he unioo. -37- president. However, as he got to know him he began to observe that Mr. Grady used inappropriate 1anl?laee and bullied tellow COs to get his way_ Smne COs supported Mr_ GIady and others were atiaid ofhim. Mr. Cote began to counsel Mr. Grady 0Il1hese kinds of comments, aI1hough he used no fmmal discipline, and the relationship soured This had a significant impact on labour relations. According to Mr_ Barry Scanlon's evidence labour relations was Regiooal managemen1's chief concern after 1he strike ended in early May, 2002. [72] Ms. Hodges evidence cmrobmates the picture ofMr_ GIady as a bully_ She testified 1bat Mr_ GIady had an acerbic wit and used it on people_ Most COs tried to avoid him by not raising his ire_ Mr_ Bourguignon also testified to Mr_ Gladys power widrin 1he institutiOIL He said Mr_ GIady was like a general at OCDC wi1h his own anny_ He was witty and many ofhis acomebacks" were m.om1fi1le He said that some people tried to stand up to him. Ms_ Hodges testified 1bat 1he code of silence and fear pu:;vaddI most people :limn cmnp1ainine DECISION ON WHETHER THE EMPLOYER WAS Dn.IGENT IN INVESTIGATING COMPLAIN[ [73] A careful review of 1he evidence after the classroom incident of how 1he employer handled Mr. Rangers cmnplaint leads me to conclude 1bat 1he employer was not diligent in investigating it and there is no adequate reason :fm-1he delay. The evidence indicates 1bat Mr_ Lamesse viewed 1he classroom incident as settled to Mr. Rangers ~tidactiOll. -38 - Mr_ Lamesse passed this on to Ms. Mina!O...aan and her advice to do nothing was partly based on a view, which was clearly wrong.. Mr_ Cote knew after his offsite meeting with 1he grievOl" shortly after it happened 1bat Mr_ Ranger was comp1ainine not only aboot 1he classroom incident, but other harassment by Mr. GIady and he advised Ms. Mina!O...aan accordingly. Even in June 2002 after Mr. Ranger filed a fonnaI complaint, Ms.. Minassian seems confused as to what the complaint is about, and she refers to 1he "settIemenf' of 1he classroom incident in her letter adrir1e for more particuIaIs. However, Mr_ Ranger's WDHP complaint clearly makes 1bree allegations, specifically including 1he classroom incident, the taunting behaviour (1he sexual liOulIl11afion), and 1he "cocksuckeI" connnen1s, which were subsequently investigated [74] It was employer's position 1bat the reason 1bat an investigation did not begin until Angust 2003 was because of a lack of particuIaIs provided by Mr. Ranger. Mr_ Ranger was 1hns 1he cause of the delay_ The union sulHnitted 1hat 1he delay here was discriminatory and unreasonable and that 1here was nodring in 1he WDHP policy which specifies 1bat particulars must be provided before an investigation can be begmL I have to agree that 1he delay was UDrea.'UlruIhle and 1bat there is no1hing in 1he WDHP which requires fmmal particulars.. It appealS by all accounts to have been a way of stalling 1he investigatiOlL It is clear that the employer did not move to investigate until several mnn1bs after step 2 of 1he grievance pmcedure_ -39- [75] Mr_ Ranger :filed a grievance on December 19~ 2002. Particulars were provided in the stqJ 2 meeting pmsuant to 1he grievance procedure~ in March 2003. Mr_ Gary Hogarth, Deputy Regiooal Director fO(" the Eastern Region since 2002 said 1bat he first became aware ofMr_ Ranger~s complaint when Mr_ Teny Rioux called him and advised 1hat 1he grievor had raised WDHP issues in his grievance and during 1he stage 2 meeting wi1h him. Mr Rioox was the cleputTs designee in the stage two meeting. Mr_ Hogarth was Acting Regional Director at 1he time. He reviewed 1he matter with the nu and ordered an investigation, which began in August 2003~ some eighteen months a.fter 1he classroom incident. [76] When asked to review 1he May 9~ 2002, WDHP complaint by Mr_ Ranger~ Mr. Hogarth stated in his evidence 1bat it had more particuIaIs than many complaints and in his view wooId have been enough to begin an investiga:tion. Mr_ Hogarth also agreed in cross- eJ[3IIIination that Mr_ Ranger~s complaint <<should have been dealt wi1h much more expeditiously_ D He Wstified 1bat if tenDs such as queer and faggot were used by staff to refer to other staff that would coostitute a "serioos problemD 1hat needed to be addressed Mr_ Hogarth had no direct involvement at OCDC at the time 1he harassment and discrimination was taking place_ [77] As noted earlier 1he investigation substantiated one of Mr. Rangers cmnplaints and made conclusions 1bat were accepted by the Dqndy Ministel"~ which included fimlines that 1he institution was a poisoned workplace for gays_ Evm though these findinp;;: were accepted -40- by 1he Deputy Minister~ JH) evidence was tendered by 1he employer that it took any steps to address 1he poisoned wolkplace_ Mr_ Hogarth testified 1bat ML GIady was suspended for 1bree days and was required to take WDHP trainine, but nodring else was done by 1he employer to remedy 1he poisoned climate at OCDC_ This was also confinned by Ms. Susan McWilliamsJ a HlDnan Resources Specialist, who testified she was not aware of any steps taken by rnan~ to address 1he poisoned work environment identified by 1he nu investigator wi1bin OCDC_ Counsel:fm-1he employer argued that an investigation did not have to be perfect to be considered reasonable, citing Marinelan~ supra_ I agree wi1h the gmernJ. proposition in 1bis case, but 1he delay in getting to the investigation was not reasonable. DECISION ON THE DUE Dll..IGENCE DEFENCE [78] Counsel for the union argued that employees not only have a right uncIer 1he WDHP~ 1he collective agreement and 1he Code to a wotkplace fiee of discrimination and harassment, it is a constitutional right (McKinnon~ supraJ. The employer is obliged "to ensure 1bat 1he wotkplace euVllll..II.enf is :lire :limn discrimination, which includes investie;dine allegations of discrimination and taking remedial actionD (Hadwen, Marvy~ Stnmg and Eady~ supra, at 348)_ The board in Sinum. supra, held 1bat the obligation uncIer Article 3_1 of the collective agreement is not limited to reacting to complaints_ There is an ongoing obligation of1he employer to be diligmt. Vice-chair Dissanayake said: -41- While the grievor cooId and perhaps shooId have acted more fonnally and stated his exact concern more clearly, in my view 1hat did not in any way relieve 1he employer tim:n its responsibility to investigate 1he situation.. To say the least, the employer had a gICilha responsibility to eliminate discrimina1ion in the wotkplace 1ban 1he grievor did The employer had a respoDSI"bili:ty to take initiative to seek oot the necessary iufuuuation once the concern was raised by 1he grievO(". (p_ 16) [79] In Simon the grievor complained to a deputy superintendent about racist graffiti The deputy fOIgOt and 1herefore took: no action.. When 1he grievor spoke to the superintendent some days Iater in the lobby, there was stilllittIe done, and what was done was half hearted acconIing to 1he decision.. Vice-Chair Dissanayake concluded <<it is not enough to hope fO(" a discrimina:tioo. tree work environment, but do nothing to achieve it" I agree.. 1he employer must implement effective mpr.hanisms to monitor and detect discriminatory conduct, and to investigate and remedy incidents of discrimina:ti0ll. [SO] Counsel for the unioo. argued 1hat there is some authority 1bat an employer is strictly liable :fm-1he discriminatory acts of its employtrS whe1her 1hey are <<employtrS" or manaeas and cited Robichaud and Janzen, supra, and mged me to find the employer strictly liable here.. Counsel:fm-1he employer submitted 1bat the GSB has considered and decided 1bis issue and I should follow 1hose decisions. 1he issue was addressed by Vice- Chair Dissanayake in ~ supra. The board quoted C1um, (1990/90) which held: There is no strict liability on 1he employer, in that merely bpr.al1~ an employee racially harassed 0(" put another employee at a heahh or safety risk, the employer is to 1hereby exposed to liability. The emnlover's liabilitv depends on its knowl.ecke of 1he o:ffmsive conduct and its response to it However. in considerinp- the emnlover's lnowled2e the test is not ourelv subiec1ive. If the emnlover lacked lnowledee lJpr.all!i:P. it showed a lack of -42- .iuhaC!l.t or did not have a reasonable svstem fDI" detectinp- and monitorinp- of offensive conduct. this does not exonerate it To hold otherwise would be to make 1he ob1WdiOll imposed on 1he employer by 1he collective a,.reement provisioos mP.aTJiop'less_ The employer would be able to cilcurn:vent 1bat ob1WdiOll by mere1v c1osinp- its ews and ears. 1he oarties could not have intended 1ba:t (F.mphasis added by 1he Board in Simon) (p_ 14) [81] 1he board would be obliged to follow 1he Supreme Court if1he law was clear 1bat an employer should be held strictly liable for all discriminatory acts of its employtrS. Howevel"~ 1bat is not 1he case. The facts in Sinum~ :rupra~ are not unlike 1he facts in 1he case before me and I see no reason to disagree with 1he board~s shdP.mPnt of 1he law on this issue as qooted fiom Chan. Thus, I agree with 1he employer~s SllhmissiOll1hat 1here is no strict liability on 1he employer merely because an employee is harassed on 1he basis of a prohibited ground in 1he Code.. However~ 1he employer may still be liable.. [82] There are two important qnestioos to ask in 1hese cases.. Did 1he employer know about 1he alleged haras-Q1IP.Of 01" discrimination and if so what was done to address it? H 1he employer did not know ~ had it taken all reasonable steps to establish a system to protect its employees fiom discrimination and harassment? FOI" bo1h questions evidence of due diligence is necessary for 1he employer to avoid Iiability_ [83] Having carefully reviewed 1he evidence before me, I must conclude that 1here is little or no evidence 1hat satisfies 1he defence of due diligence in this case. As indicated in some detail in 1he :factnal finilines above~ it is clear that 1he managenad of OCDC were aware of a problem ofhomophobia. at least amongst a vocal few~ n:flo:ucd to by some as Mr_ -43- GIady and his "entourage_" They were aware that Mr. Ranger is gay. At least 1hree manaeas were aware or suspected that Mr_ Ranger was being harassed Mr. GIady and oftrer COs joined in the harassment~ as was shown in 1he simnla1P.d sodomy taunt Other employees witnessed 1he harassment, but said or did no1hing. The general attitude for some reason was that 1here was no point in IqMJding it It would do no good because no1bing would be done to stop it It is also clear 1bat people were afiaid to report and 1he culture of the code of silence protected some of 1he worst offenders_ [84] The employer tried to rely on 1he WDHP policy and the evidence that ~s had open door policies, but Mr. Ranger did not complain.. Given 1he clear evidence 1bat 1he policy was not being en:fonx:d, and 1bat some regarded that 1he zero tolerance principle was JI)P.aIIinel~, 1he existence of 1he policy is of little assistance to support cine diligence. And:further as 1he board in Simon7 ~ held the complaint does not have to be fOllll8.l to trigger the employers duty under- Article 3. The evidence is clear 1hat Mr_ Ranger did complain to his supervisor, but little was done. [85] Even after the grievor filed a fonnal WDHP cmnpJ.aint, it took: DHJDtbs before the investigation began in August 2003 The classroom incident ofFebmary 2002, certainly did not require particulaIs if1he matter had been addressed promptly. The only reason givm fO(" 1he delay here is to blame the grievor fO(" a lack of particulars_ As noted earlier, even after the Deputy Minister accqJted 1he conclusions 1bat OCDC was a poisoned -44- wotkplace for gays~ 1here was no evidence tendered by 1he ministry that it took any steps to remedy 1he problem in a systemic approaclL [86] Thus I must conclude 1bat 1he employer has not proven a dr-fence of due diligence and must 1herefore be held liable for 1he actions of its employees in 1bis case :fm-1he discrimination and haras,.QJlr.nt on 1he basis of sexual orientation ofMr_ RangeL Further 1he ministry has breached its dnty under Article 3 of1he collective agreement, 1he WDIIP and s. 5 of1he Code to provide a wotkplace fire ofharassmr.nt and discriminatioo. during Mr_ Ranger~s tenure at OCDC. THE EFFECT OF THE HARASSMENI AND DISCRIMINATION ON MR.. RANGER [87] Mr_ Ranger alleges 1bat as a result of 1he harassment and discrimination that he SlIffi:..u1 at OCDC 1bat he beaune ill Mr_ Ranger~s family doctor~ Dr_ Diane Lemay~ twified that she had been ~ 1he grievor since avpt.UJIOUnately May 2()()()~ but it was not mdil his visit of February 12, 2002 that he presented with any mr.n1al health problems.. She twified that Mr. Ranger got worse over 1he following months and by May 22~ 2002 she diagnosed majOl" dqJressioo. as 1he result of wotkplace lJapKomIMIt She testified 1bat in October of2002 Mr_ Ranger was suicidal and at that point she consuIted with a psychiatrist, Dr_ Marioo. Koch. Dr_ Koch was qualified as an expert and gave her opinion -45- 1bat Mr_ Ranger suffered :from Post Traumatic Stress DisOIder (PTSD) and majOl" dqJressioo. resulting fium being harassed at wotk because ofhis sexual orientation. [88] The board also had 1he benefit of an independent medical examination pelfmmed by a psychiatrist at 1he request of 1he employer and wi1h the agreement of the union and 1he grievOL DL Addnmie Ahutecrs IqXJrt was entered into evidence by agreement of1he parties.. Dr Ahmed did not testifY- One of 1he questions asked of Dr_ Ahmed was: Based 00. 1he medical docmnen1a1ioo. available to you, along wi1h your as!i:pj;.!~ment of1he employee, have you detennined wh.e1her 1he employee suffers :from PTSD andfOl" a secondary major depressive disordeI? From the infmmation available to me there is evidence 1bat Mr_ Ranger suffered :from clinically significant depressive and anxiety symptom!"- There is also a history 1bat may be suggestive of Post Traumatic Stress Disorder_ Unfortunate1y~ I am not able to say definitively whe1her CJI" not this incIividnaL at the time of ~tion to the previous assessms~ had symptoms 1bat were consistent with 1he ~ At the present time~ howevel"~ he presents with sienifi(".an1: occupational problems as indi(".a.ted under opinioo. and :recommendations above. [89] In Dr_ Ahmed~s opinion, Mr_ Ranger would be able to return to wotk but not to the same work envimmnent. He wrote in his report: Cmrent anxiety symptoms are likely to impact his ability to return to wOIk: in the same environment 1hese anxiety symptoms however~ may be ~hle in ano1her work envimmnent wi1h gmduaI return and support during this process of graduated return to wod.. He concluded further: -46- Retnllnne Mr_ Ranger to a cmrectional environment may only aggUlvate his medical conditiOlL 1herefore, any vocational wljushnent shooId serioosly take into considem:tion1his significant:factOl". This individual con1ml1PS to experience anxiety symptoms when merely 1hink1ne aboot going to wod.. He reports 1bat he cnndantly relives 1he fear and 1he Immiliation in 1he fonn of nield..lines which makes. 1he prospect of reintegmting him into a cmrection envimmnent at 1his stage clinically cmdIaindicated Consequently, it is my opinion1bat any job 1bat would be designed fO(" 1his individual should include very minimal contact with 1he correctional centre_ Seconclly, a position 1bat is based in a cmrectiooal facility wilL in my opinion, be contIaindicated [90] The union argued 1bat both 1he medical evidence provided by 1he union and 1he independent medical report provided by Dr_ Ahmed clearly supported 1he conclusion1bat 1he harassment and discrimination 1bat Mr. Ranger suffered at OCDC led to his illness and 1bat any contact with the facility should be minimal The expeds agreed 1bat Mr. Ranger should not retmn to a position within OCDC. The union noted 1bat the employer had not led any medical evidence to contradict 1he medical evidence provided by the grievor's medical team or the IME psychiatrist [91] The employer took: issue with 1he diaenosis ofPTSD and whether or not it was appropIiate for Mr. Rangers psychiatrist to make 1bat diaennsis after ~ him for one session and based on his description of what had occmred to him. FO(" 1he ~ of 1his decision it dlrs not matter whe1her 1he label ofPTSD was cmrect 0(" not. Although Dr Ahmed stated 1bat there was history 1bat may be suggestive ofPTSD, he could not be certain.. However, it is clear fiom the independent medical examination, and fiom Mr. Ranger's family doctor, 1bat he had stdIaul tium a majO(" dqJressive episode which began right after the events of the classroom incident on February II, 2002. -47- [92] Counsel for the employer suggested 1bat Dr. Ahmed's opinion did not :find 1bat Mr_ Ranger had suffered a major depressiOll. I find this position to be inconsistent with Ik. Ahmed's report. Dr_ Ahmed said specifically, as quoted more fully above, "there is evidence 1bat Mr_ Ranger suffered fiom clinicaUy significant depressive and anxiety symptoms_>> By 1he time Ik. Ahmed assessed Mr_ Ranger, his own doctors were of 1he view 1bat he could return to work. but not to a COIredional facility_ Dr_ Ahmed's eJ[3IIIination of 1he grievor and his report was to assess 1he grievor and provide expedise on whe1her Mr_ Ranger could return to wod.. The employer asked Dr_ Ahmed specifically ifMr_ Ranger could return to wotk at a cmrectional facility_ In his report Dr_ Ahmed opined in part in the diaennsis section: Mr. Ranger presents with features suggestive of occupa1iooal problems (V622) at the present time_ AI1hougb. there is a history suggestive of anxiety and depressive symptoms, which may be an indic.ation of a Post Traumatic Stress Disorder, this appears to be under con1rol in 1he present circumstances. This may be as a result ofhis Guu:..t medication and the fact 1hat he is not exposed to 1he triggering envimmnent (Correctional Centre envimmnent)_ He went OIl to rec.mnmend continuation of the antidqJressant 1bat had been prescribed by Mr_ Ranger's own doctms, as well as psychiatric follow up. Ik. Ahmed also said 1bat he believed 1bat Mr_ Ranger was able to return to wod, but not in a correctional facility, which acconIs with the other medical evidence before me_ -48- [93] Counsel for the employer argued 1hat IH) weight shoold be given to 1he evidence provided by Dr_ Koch and ML Robert Doucet, a counsellor who was part of Mr. Rangers treahnent team. Even if! were to agree with 1bis, Dr_ Ahmed's opinioo. and the grievor's evidence support a :finding 1hat he became depressed and disabled as a result of the harassment he suffered at OCDC_ [94] Mr_ Ranger's evidence was clear 1bat the classroom incident was the last s1Iaw :fm- him. He testified 1bat 1he day a.fter 1he incident he was sick to his stomach and felt devastated He sooght medical atten:tioo.1hat day, which was confumed by Dr. Lemay in her evidence. Shortly a.fter 1bat Dr_ Lemay diagnosed depressioo. and when Mr_ Ranger became suicidal she coosulted a psychia1rist [95] As 1he board in Simon, supra, held 1here is no reason not to accqd: the grievor's evidence 1bat he became ill and suffered mentally and physically because of1he harassment In Simon, 1he grievOl", a CO at 1he Toronto Jail, alleged 1bat he became ill when "KKK" signs were posted in the institutioo. and the employer failed to act appropriately regarding his concerns_ 1he board held in asses.m.e the evidence that the grievor became ill as a result of1he mciallmassment- Quite apart :from 1he medical report of Dr. Cooper, 1here is no reason not to accept the grievor's own assertion 1hat he su.ffered mentally and emotioo.aUy when 1he employer failed to act with rq;a1d to racist activity_mThe board does not require scientific expert evidence as a cmulition :fm- makine such a findine (p.25) -49- [96] In contrast to Dr_ Ahmed~s report, 1he medical opinion in Simon did not specifically cite 1he "KKK.D signs as 1he cause of the grievors illness. Ik. Ahmed specifically refas to 1he griev(J("~s anxiety symptoms being 1riggaul by even 1binkine about returning to OCDC_ 1he board in Simon also considered the timing of1he grievor's onset of ilIness_ 1he board said: When seen in the light of 1he timing of 1he griev(J("~s illness and the situation 1hat he faced at the woIkplace, 1he reasonable conclusion is 1hat the woIkplace situation was the immediate cause (J(" 1rigger:fOl" 1he grievor's illness_ That cause. according to the grievoI"~ had more to do wi1h the employers failme to act on his concerns, 1ban 1he existence of 1he racist signs itself. Based on all the evidence, the Board has no difficulty concluding 1hat 1he employer's failure to act in compliance willi article 3_1 was the immediate cause of 1he griev(J("~s ilIness_ (p25) [97] Thus I am peISWHIed 1bat 1he timing of 1he grievor's illnpss, his own ted1mnny as to its effect and Ik. Ahmed~s expert opinion all provide ample evidence 1bat Mr_ Ranger's dqJression was a result of the IJar,KQJlent 1bat he endured at OCDC and the failure of 1he employer to provide a wotkplace :free of discrimina:tioo cuutUIl y to Article 3_1 of 1he collective agreement and s. 5 of 1he Code.. EVIDENCE REGARDING THE ACCOMMODATION GRIEVANCE [98] Mr_ Ranger aIl~ in his second grievance before the board :filed on June 18, 2004, that 1he employer failed to accommodate him in his retmn to work. The union submits that 1he employer failed to accommodate Mr. Ranger over two distinct time periods: 1he first -50- is after February 2003; the second COIJIlTIPflr.P.!iO in April of 2004. Further the union argues 1bat there has been no evidence tendered to show anything close to undue hardship. The employer sulmri.ts 1hat it took all reasonable stqJs to accommodate Mr_ Ranger 1broughout bo1h ~ periods. Moreover, the employer strongly objects to 1he union's submission that the grievor was able to return to wotk in and aroond April 2003 and submits that the union took 1he position before 1bis board in July 2004, in its interim relief motion, 1bat 1he grievO(" was able to return to wotk aroond September 2003_ [99] Again, as I did with Mr_ Rangers :first grievance I will summarize the relevant evidence and refer to it as necessary in 1he reasons fO(" my decision. Although 1he oral evidence for Mr_ Ranger's accommodation grievance was not as extensive as 1bat in his grievance alleging harassment and discrimination on 1he basis of sexual orientation, 1he documents tendered by the parties were volmninous_ I have reviewed it all most carefully in coosidering my decision. [100] The union took 1he position in arguing 1he interim relief motion in July 2004, 1bat 1he grievor was able to return to wOIk: in September 2003. However,1here is ceI1ainly evidence 1bat 1he grievor was ready to retum to an accommoda1.ed position in and aroond April 2003. On January 23, 2003 Man1l1ife, who had approved Mr_ Ranger's long-tenD. disability benefits on October 10_ 2002, wrote to Ik. Lemay, Mr. Rangers family physician, askine fO(" an update on Mr. Rangers cmdition and possible return to wOIk: dates_ Dr_ Lemay responded on February 3, 2003 that the major medical cmulition fO(" -51- Mr_ Ranger's retmn to wotk was "that a reinsertion in his present wotkplace would be deleterioos since he has been subjected to repeated sexual harassment regarding his sexual orientation..>> She was of 1he view 1bat he should be 1Iansfem:d to another job unrelated to 1he prison systenL Dr_ Lemay also testified 1bat by early 2003 ML Ranger had recovered and could be returned to wmk but not at the institution. [101] By April 2003, Mamtlife was 1Jeejnnine to work with Mr_ Ranger on a retmn to work prognun. Sylvie MarteL a Disability Management Consultant wmting for Manulife, met with ML Ranger on April 14 and ApriIJO, 2003_ In Ms_ Martel's letter of May I, 2003 to ML Doucet, who also attP.ndP.d 1bat meeting. she smnmarizes 1he content of1he discussions and notes that 1he pmpose of the meeting was am develop s1Iategies to best assist Robert in his retmn to wmk endeavours.>> She also notes 1bat she will cmmnunicate with the minis1Iy and specifically, Mr_ Rioux. about a transfer to another minis1Iy- [102] A little before Ms_ Martel began wmting with 1he grievOl" on a retmn to WoD: plan, Mr. Doucet. who was a part ofMr_ Ranger's trP.ahnPnt team. under Dr_ Lemay's guidance, told 1he employer that Mr. Ranger cooId retmn to wmk but not at OCDC_ Mr_ Doucet testified that he aftended the s1age 2 meeting for the grievor's harassment grievance with Mr_ Ranger on March 31,2003_ As noted earlier in 1he decision. Mr_ Rioux was the designee :fm-1he minis1Iy_ Mr_ Doucet testified 1bat he indicated to Mr. Rioox at 1he time 1bat Mr_ Ranger was able to retmn to wod, but not to OCDC. In her report to Manulife -52- Ms. Martel refers to 1he MardI 31 meeting since she was advised by the grievor and Mr_ Doucet of what occmred at it She notes on May I, 20031bat 1he parties were still waiting for an answer tium 1he employer regarding its decision to accommodate the grievOI" in ano1her minisky_ Mr_ Ranger's evidence acconIs with 1he above_ Mr. Rioox was not called by 1he employer_ [103] The employer did not argue 1bat 1hey did not know 1bat Mr_ Ranger wanted to return to wotk in an accommodated position by MardI 31, 2003. Ra1her its submission was 1bat 1he union took the position at the interim relief motion 1bat the grievOI" was medically cleared to wotk in September 2003_ I depended on1bat medical for the purposes of the intairn. relief order made October 6, 2004_ However, at the time I did not have the benefit ofMr_ Doucet's or Ms_ Martel's evidence, which was not put before me until 2005. So I am satisfied 1hat 1he employer had actua1 notice 1hat Mr_ Ranger was seeking to return to wmk by March 31,2003. [104] I should note here 1bat the employer challenged the veracity and dependability of Mr. Doucet's evidence on several grounds -1hat he was not a medical doctOI" and 1herefore was not reliable in desClibing his counselling sessions with Mr. Ranger and 1bat he acted as an advocate for the grievor_ As I found earlier I had ample evidence without Mr. Doucet's testimony to find that 1he haP~QJlent effected Mr. Ranger and lead to his il~..." so I did not need to rely on it But I must note 1bat I have no reason to believe 1bat he would mislead 1his board He never hdd himself out to be a doctOI" (J(" PhD in psychology_ The second prong of counsel's argument was that Mr. Doucet appeared at -53- 1he stage 2 meeting as an advocate for 1he grievor_ Therefore any evidence he gave was likely biased or not true_ It was also clear 1bat ML Doucet was calling 1he minis1Iy at times to see if1he employer had taken any steps to find 1he grievor alternate work. As to his role as an advocate at 1he stage 2, according to Mr_ Doucet's evidence he was 1here ber.all!i:P.1he grievor trusted him to assist in a process 1hat Mr_ Ranger said he had lost faith in.. I am not persuaded 1hat Mr_ Doucet would lie to 1bis board to help Mr_ RangeL [105] Ms. Martel testified 1bat Mr_ Ranger was coopemtive, motivated and eager to return to wotk in 1he spring and SlIlJ1l1lel'" of 2003. She stated further that 1bis was 1he :first time in almost twenty years of experience in 1bis kind of wOIk: 1bat she had seen a situation where an employee was motivated to return to wotk but 1he employer seemed unable or unwilling to retmn 1he person. The employer argued 1bat I should not be persuaded by Ms. Martel's evidence that Mr. Ranger was eager to retmn to wmk, b-r.aIl~ Mr_ Ranger really wanted to stay home and wotk on a home renovation. I am not peISlRlded by 1bis_ The grievor did testify 1hat in 1he spring of2003 he applied and got a loan :from a bank to do a home renovation. He testified 1bat he needed to do somedUng with his time and to keep his mind off1he events which had occmred at OCDC. This is not in 1he least incompa1I"ble with being back to work. The medical evidence shows that he was ready as long as it was not at OCDC. 1herefore, I am satisfied that Ms_ Martel, who had twenty years of experience in assisting employees with return to wotk plans was correct in her assessment 1bat Mr_ Ranger wanted to go back to work. -54- [106] 1he second key part of Ms. Martel's evidence was 1bat she had never seen a case where 1he employer seemed so reticent about rP.ftrrnine an employee to work. Ms. Martel telephoned Mr_ Rioux to de1enrrine whe1her 1be MinistIy was considering any positioos fO(" Mr. Ranger_ Her call was directed to Deputy Superintendent Peter Lambert, who told her 1bat 1he employer was not willing to accommodate Mr. Ranger un:til1be employer received a list of grievance issues and suggested solutions tium Mr_ Ranger_ Ms. Martel docmnented 1bis conversation in an email to Manulife dated June 13, 2003_ Mr. Lambert was not called to give evidence. [107] Ms. Martel testified 1bat she was smprised 1hat 1be employer was taking the position 1bat 1here would be no accommoda1ion un:til1be grievance issues were resolved, particularly when in her view 1here was a medical confirmation of the peISOll'S ability to return to work. She contacted Mannlife to see how she was supposed to handle the situation.. [108] By July 2003, Mr_ Ranger was getting fiusmded about not having heard anything about his return to work. Mr_ Doucet contacted Mr_ Cooney, on Mr_ Rangers behalf. Mr_ Cooney refared him to Mr_ Hogarth. Mr_ Doucet testified 1bat he told Mr_ Hogar1h 1bat Ms. Martel had reached a dead end wi1h regards to Mr_ Ranger's return to wotk and accommodation.. Mr. Doucet also testified 1bat he had explained the circumstances of Mr_ Ranger's case to Mr. HogartlL Mr_ Hogar1h confumed 1bat he had received a call fium Mr_ Doucet about Mr_ Ranger's retum to work. He referred 1be issue to Human Resources, who then contacted Mannlife.. Mr. Doucet never heard back fium Human -55- Resomces or Mr_ HogartIL This is 1he first evidence that the employer was beefflnine to respond to 1he grievor's request to retmn to an accommodated positiOlL [109] By the end of July 20031he docmnents indic.ate that Debra Hemine. a Case Management CoordinatoI" for the minis1Iy, was wmling 0ll1he case. In an email to ano1her employee she says 1bat she has been in tooch with Manulife, who have advised 1bat Mr_ Ranger should not return to work at "correctioosrmstitutions." She comments that she is smprised 1bat all of corrections would be inappropriate_ She concludes in August 2003 1bat "medical doclIlTIr...I,ation :limn the psychologist ontlinine restrictioos and limitations" is needed [110] Ms. Fleroine was also comrmmicating with Ms. Martel by August 2003. She advised Ms. Martel1bat the minis1Iy was willing to accommodate Mr_ Ranger with a position within or ootside the minis1Iy_ In Ms_ Martel's email oll.fi.I..ine 'Ibis conversatioo. to Mamllife, Ms. Martel noted 1bat 1he employer required clear medical iufuuuation so as to accommodate Mr_ Ranger_ The employer needed to know whe1her Mr_ Ranger was able to wOIk: for the Minis1Iy at all [Ill] A review of the documents tendered by the employer indicate that in September 20031he employer sought clarification on 1he grievor's medical status :from Mr. Doucet, who they undeIstood to be a psychologist An email to Ms_ Heming :from Mr_ Hogarth ~ 1bat he has <n:-. Doucette's (sic) phone number, ifwe need it" Ms. Martel also referred to -56- Mr_ Doucet as the grievors psycho1herapist Ms.. Fleming sent a letter to Mr_ Ranger on September 5~ 2003 askine him to get a "Request for Employee HeaI1h Infonnation fonn>> filled oot by }rom treating psychologist D Mr. Ranger took the :form to Mr_ Doucet.. Before Mr. Doucet sent his report he had convasa1ions with Ms_ Fleming lq;a1diug Mr. Ranger~s Iimitations_ Ms. Fleroine asked fO(" him to put his connnen1s in the report, which was received in November_ There is no evidence after November 20031bat the employer asked for more medical infmmation until June 2004. Nothing was done by the employer to follow up on the infmmation received :from Mr. Doucet.. Rhea Akey~ a Rehab Accommodations Specialist for the employer~ took over Mr_ Ranger~s file in April 2004_ She testified that when she reviewed the :file she concluded 1bat 1he medical iufuuuation was lDlClear_ But it was not until hme 2004 that additional medicals were sought Mr. Ranger was asked to take a "Request for InfODDa:tion Fonn>> to his doctOI". At 1he union~s request, Ik Koch provided an opinion and an a5Sf5.-QIIent on a position in July 2004~ but 1he employer 1hougbt it was not clear~ so it decided an independent medical P.YanUnation (IME) shooId be done. [112] Mr_ Ranger was also required to :fill oot an employee portfolio which detailed his slills~ experience and P.dnr.atinn in Older to begin a job search. The grievO(" received 1he portfolio :form in November 3~ 2003. AI1hough there was some suggestion 1bat Mr_ Ranger was supposed to have been given the portfolio in SqJtember~ 1he evidence here is not clear_ The grievor testified that when he did not get it, he followed up. It was cmnpleted and retmned to 1he minisUy in mid-December_ A memo to Ms_ Fleming fuJm Sandy Want, aftachP.d to Mr_ Ranger~s portfolio~ asked Ms.. F1emmine to cm1act Ms_ -57- McWilliams in January 2004 and WM with her 00. findine a suitable position. The note says awe should be starting to actioo. 1his fO(" alternative wodIaccommoda1iOll.>> There is clear docmnentary and ond evidence 1bat human resotIRX:S were of the view when 1hey received Mr_ Ranger's employee portfolio that it was not accumte and likely inflated the grievor's sliIIs and abilities, but here was JH) follow up with the grievOI" until hme 2004, when Ms_ AIrey met with him and helped him :fill it out [113] The first time 1hat a job was identified as potentially suitable was in January 2004. Ms_ McWilliams iden:tified 1he TAPlRehabilita1ioo. Officer position at OCDC as a possible temporary as.orienment There was also a suggestioo. 1bat a youth Wader positioo. might be suitable. Ms.. McWilliams confinned 1bat the employer did not seek medical clearance to place Mr_ Ranger in 1he TAP position until June of2004. EVf'Dtnally, the youth Woder and TAP positioos were coosidered not suitable because of the location within OCDC ofbodJ. positions.. [114] Discussions began in April 2004 between 1he parties regarding 1he ESRO 0(" Eledmnic Surveillance Resource 0JIicer position (also refened to as the EMO positioo. in some docmnents)_ Both 1he unioo. and the grievOI" were interested in the posst"bility of 1his position. Ms_ AIrey made inquires aboot it in May 2004. She:found out 1hat it was a temporary position and 1bat incumbents in 1he position wooId remain until a program review was completed In response to employer counsel's letter requesting further medical iufuuuation on June 23, 2004, 1he unioo. had sooght and received an opinion -58 - fium Mr_ Ranger's psychiatrist, Dr_ Koch, which included a ~ for the doctor to review 1he ESRO position (and 1he TAP position). In Dr_ Koch's letter, dated July 20, 2004, she advised that Mr. Ranger coold do 1he ESRO position provided 1bat it was not located on the grounds of 1he correctional :facility, which it was not.. However, the employer did not accept Dr_ Koch's opiniOlL As indicated earlier 1he employer had by 1bis time decided to go forward with an IME.. [115] Ms. AIrey did make inquiries as to the amount of time 1hat an ESRO o:Jlicer would spend at 1he institution and was advised that it would be about 30%. The ESRO job specification was forwanled to Dr. Ahmed for his considem:tion during 1he IME, but nowhere in 1he infonnation provided to him was 1here an indication 1hat 1he position wooId require 30% of1he time at the institutiOlL There was no evidence provided that the minisUy considered whether it coold modify 1he ESRO job or suggested whe1her 1bis as a possibility to Dr_ AhmPJi [116] In 1he spring of2004 1he union suggested an ESRO job in Comwall and that 1he hours might be modified to accommodate the grievors travelling to and tim:n his home to Cornwall The employer decided that it was not opendionally feasible.. However, in April of2005 the employer did modify the dnties of 1he ESRO position based in 1he Ottawa area to accommodate a :female CO who required similar accommoda1ion ootside OCDC_ -59- [117] Other positions considered included: Offender- Transport 0JIicer (n:fau:d to as 1he bailiff position), Probation and Parole Secretary and a Fire Services Investigator_ Ms_ AIrey testified 1bat she also ta1ked to o1her minis1:ries to see if 1here was anything available.. She gave no :further specifics as to her inquiries_ [118] The bailiff positioo. was suggested as a possibility by the employer during mediation on October 15, 2004_ Mr_ Ranger testified at the hearing that he was veIY interested in 1bis position. The OPP had indicated to the minis1Iy 1bat they wooId be interested in taking Mr_ Ranger on a temponIy as.~PJUllent provided that the minis1Iy paid his wages. Successful completion of certain 1Iaining was also necessary before 1he position cooId be confinned [119] Mr_ Ranger testified 1bat he was smprised to learn, a.fter 1he mediation session, that the position was lDlClassi:fied Ms. McWilliams said 1hat 1he minis1Iy Irnew in advance of 1he mediatioo. 1bat 1he positioo. was unclassified She was unable to say why 1he employer did not advise the union or the grievor of such at 1he mediation. The position was offered to Mr_ Ranger in Older to sett1e his grievances. The union wooId not accept 1he lDlClassi:fied positioo. as a full and final settlement of 1he grievances. [120] AI1hough the bailiff position was unclassi:fied, the OPP m~ had indic.a1P.d 1bat he was I~ptive to assigning Mr_ Ranger to a classified positioo. if fimdine was received 1here was some question in the employers mind as to whether or not 1he job would be suitable givm contact with 1he institution. However, 1he position was not put forwanl for -60- IlL Ahmed to consider in 1he IME.. Ms. AIrey testified 1bat 1he employer seemed to be having problems getting past 1he fimdine issue.. Ms_ McWilliams testified that since 1he job was lDlClassified and it was lDlClear that 1here would be fimdine to make it classi:fied, in Older :fm-1bis to wotk there woold have to be high level discussions between yay senior manaeers tium both ministries - Minis1Iy of Cmrectional ServilrS and 1he Solicitor General She was aware 1bat some people within 1he Solicitor Geneml had issues or problems with how 1he bailiff positioo. had been identified for Mr. Ranger and 1bat some "fea1heIs may have been mflIed in 1he process_>> There was no evidence 1bat 1he employer considered 1bis position as a possible temporary accommodation. [121] The unioo. sooght interim relief shortly a:fter 1he second grievance alleging a failure to accommodate was filed onltme 18~ 2004. On October 6~ 2004 I gnm1ed 1he interim relief motion and ordered 1he employer to <<make its best efforts to accommodate 1he grievor in a suitable position, consistent with 1he medical opinioo.s provided, within 30 days of1bis order_>> If1he employer was unable to comply~ I directed 1bat Mr_ Ranger be put back on 1he payroll [122] Mr_ Ranger was even1naIly offered a tempmaIy position in late January 2005_ He was assigned to a secretarial positioo. in a Probation and Parole office and began wotk in MardI 2005_ Ultimately he was placed permanently in a position at MOF as a Service Rqn~ve 00. October ll~ 2005_ 1be parties :filed an agreed da1emP.nt of facts pedainine to Mr. Rangers as.ori~t to 1he MOF position. Since 1hey also agreed not -61- to make submissions on these evmts until a:fter the decision was rendered on1he merits of1he grievances, and wserve argument fO(" 1he remedial part of the ~ I have not included the shdP.mPnt here_ DECISION ON THE ACCOMMODATION GRIEVANCE [123] The last issue before me is whe1her-1he employer satisfied its duty to accommodate Mr_ RangeL In 1hese cases 1he employer has a right to be satisfied that an employee is tmly disabled It is thct.efuu:; fully within its rights to require medical opinions to prove 1he employee is disabled This was not an issue in Mr. Rangers case as 1he evidence shows_ Mr_ Ranger went on short term sick leave in February 2002_ Mao1l1ife appluved his LID on October 10, 2002. The employer did not question his medical status :from 1he time he went on short tenn sick leave to when he asked to retmn to work but outside the minis1Iy. When he indicated a desire to retmn to wad, but not at OCDC, 1he employer did not question whether he was disabled In the:fall of2004, at the minis1Iy's request, Mr_ Ranger underwent an independent medical eJ[3IIIination in Older to provide guidance to 1he employer on the grievors accommoda1ion needs. Dr. Ahmed's opinion, as noted above in more detail, oonfinns 1bat Mr_ Ranger was disabled [124] Thus 1he evidence is clear 1bat Mr_ Ranger was disabled and even, if I had found that it was not as a wsult of the harassment 1bat he endured at OCDC, the employer still had an obligation to accommodate him.. Further, in 1bis case the duty to accommodate 1he -62- grievor Bows tim:n both the discrimina:tioo. and harassment based on sexual orientatioo. and tim:n 1he fact that he is a disabled peISOD. wi1bin 1he 11IP.aoine of the collective agreement and the Code_ 1he law is well settled that an employer is obliWltM to accommodate a disabled employee, unless to do so wooId resuIt in muJne hardship_ 1he oo.us is on the employer to prove muJne hardship_ [125] GSB decisions accord with 1hese well established principles.. In Smifilippo, supra, 1he Vice-dJair Wattas held: ___1he Employer is obli~ uncIer section 17 of the Hllman Rights Code to accommodate a disabled employee, such as 1he grievor, to the point of muJne hardship_ An oo.us exists in a proceeding such as 1his fO(" 1he Employer to show that it has met 1his statutory threshold Bodl1he grievor and 1he Unioo. are responsible to coopemte wi1h, and not impede, 1he Employer's efforts to accommodate_ (para 73) [126] 1he board in Sanfilippo went 00. to comment 1bat the duty to accommodate con:tin~ to evolve, partly because 1he accommodation will necessarily vary with each individual Thus each aase must be considered individuaIly_ Ideally 1he parties shooId cooperate in J"P.'IChine an accommodatiOll. However, the primary responst"bili:ty lies with the employer. [127] In Sanfilippo, Vice-chair Wattas quoted a passage tim:n ProfessOl" Lyn1:'s oft cited article 00. 1he duty to accommodate_ It acIcIwsses the process that an employer must undertake to satisfy the duty to accommodate a disabled employee: -63- the duty requires more fuJm 1he employer than simply investigating whether any existing job might be suitable :fm-the disabled employee_ Rather, 1he law obliges an employer to delMlllline whe1her existing positioos can be adjusted, adapted 0(" modified, and whether 1here are other positioos in the wolkplace 1hat might be appIUpl-iate_ This responsibility entails an assessment of all reasnnahle aItema:tives.. To prove 1hat its accommoda1ioo. efforts were serious and conscientious, an employer is required to enw-w in a fom-step process, which involves (1) detf'flTllnine if 1he employee can pafUUII his or her existing job as it is; (2) if not, detenninine ifhe or she can pafUUII his or her existing job in a modified 0(" 're-bundIedll fonn; (3) if not, delMllllinine if he or she can pclfUJ.1Il ano1her job in its existing fonn; and (4) if not, detennining ifhe or she can pafUUII ano1her job in a modified or re-bundled fonn..(para.. 81) [128] The board in Di Caro~ :ruprt1. adopted 1he reasoning in Sargilippo and said: co; ___the duty to accommodate has evolved and expanded to such an extent 1bat today the law requires an employer to look far beyond 1he employee's own position as a means of accommodation" (para.. 44)_ Vice-dmir Dissanayake stated 1bat in wmling 1brough 1he search fO(" a suitable accommodation the employer's duty is to "incrementa1ly broaden 1he scope of its search for accommodation" (para.. 58)_ If 1he individual cannot do his 0(" her own job, both cases indicate 1bat an employer must consider modifying another job_ There must be evidence 1bat the employer tmned its mind to modifying 0(" adjusting wotk duties to accommodate 1he individual but cooId not because it would cause undue hardship_ H1he employer has taken these steps, 1he evidence will be clear_ As Vice-dJair Dissanayake said in Di Caro. "the duty to accommodate persists as loo.g as the employer is able to achieve it short of undue hardship" (para.. 60))_ Vice-chair Wattas noted 1bat the Code requires three factoIs be considered in asses.m.e undue hardship: cost, ootside sotIRXS of fimdine and heaI1h and safety requirements_ Sectioo. 17 provides as follows: -64- 17 (1) A right of a person under 1his Act is not infiinged for the reason only 1hat 1he peISOIl is incapable of perfonning or flllfinine the essential duties or requirements ~ the exercise of the right because of disability_ 17 (2) No tribunal or court shaU find a peISOIl incapable unless it is satisfied 1hat 1he needs of 1he peISOIl cannot be accommodated without undue hardship on1he peISOIl responsible for accommodating 1hose needs, considering 1he cost, ootside soorces of fimdine. if any, and heaI1h and safety requirements. [129] As 1he Supreme Court of Canada held in O'Malley, supra, 1he employer must tender evidence of undue hardship to be successful in its defence 1bat it could not accommodate 1he employee. [130] By April 2003, 1he employer knew that Mr_ Ranger wanted to return to wOIk, but could not return to OCDC_ Mr_ Doucet asked for 1he employer to find 1he grievor a job in ano1her minisky_ However, no1bing was done to advance the seaIclt for an accommodation until August 2003_ As noted above 1he docmnents show 1bat in August 2003 Ms_ Heming is Jx:ejnnine the process_ She acknowledges that 1he employer has a duty to accommodate Mr_ Ranger, in her emaiI to Ms_ Martel She te1Is Ms. Martel1hat 1he minisky is willing to find Mr. Ranger a position ei1her within corrections or in ano1her minisky_ Ms_ Heming does not question whe1her Mr_ Ranger is disabled, but she decides she needs more infmmation as to how to achieve 1he appUIIlliate accommodation.. She is not convinced 1bat the grievor cannot be accommodated somewhere within the minisky, so she seeks clarification on Mr. Rangers restrictions_ -65- [131] The employer has a right to ask for clarifi.cation and fm1her medical infonnatioo. in order to achieve accommoda:tioo, but it must do so keeping 1he duty to accommodate in mind It must do so in a clear and timely way_ It would be D.up..upc1 to use 1he request to delay accommodatiOll. In this case aIthough 1he employer knew that Mr. Ranger wanted to return to wOIk: in April 2003, nothing was done un:tiI early September 2003 to get infonnatioo. in order to wOIk: 00. an appropriate accommodation, which was received in November_ Then as 1he snmmmy of the evidence above indicates no1bing was done to clarify Mr. Rangers restrictions, un:tiI counsel for 1he employer infooned 1he unioo. counsel at media1i00. in early April 2004 that 1he medical iufuuuatioo. was not adequate. 1here is no explanation for why it took: tium November 2003, when the employer received Mr_ Doucet's out1ine of 1he grievor's needs and restrictions to April 2004 to decide it was not adequate. [132] The grievor was given a request for infonnatioo. fonn to be taken to his doctor in hme 2004. After this point 1he delay in getting medical clarifi.cation is partly a product of waiting for doctors appointments and evmtuaUy the IME report The unioo. provided Dr_ Koch's opinioo. and the first letter of July 20, 2004 indicated 1bat while he could do 1he ESRO position, he was actua1Iy incapable of wOIking. A follow up letter alJlf'Dded her opinion to say 1bat Mr_ Ranger was able to return to woIk:, provided he was accommodated This inconsistency in 1he opinioo. was part of the employers rationale for askine for the grievor to participate in an IME in late July 2004_ -66- [133] So there was evidence tim:n August 2003 to December 2003 that some wmk was being done towards achieving an accommodation for ML RangeL Then there was almost no1bing until April 2004, when discussions began regarding some positions. At its best 1he evidence shows sporadic attf'DlJlfs to forward the process tim:n August 2003 to April 2004. Union counsel argued that 1bis delay coupled with almost IHJ movenaJt to search for jobs prows a prima. facie breach of1he employer's duty to accommodate, fium April 2003 to April 2004. Employer counsel argued that 1bmughout 1bis period the employer was wodring diligent1y and taking all reasonable steps to find an accommodation :fm-1he gDevOL Having carefully coosidered the evidence here I agree with 1he union1bat 1here is IHJ1bing persuasive in 1he employer's evidence to show why almost nothing was done to :find a suitable accommodation between April 2003 and 2004_ There is IHJ1bing to explain why 1he process did not even begin until August 2003 and why it petered out between January and April 2004. [134] Counsel for the union also argued that lq;a1diug severnl positions that were considered beefflnine in April20041here was no evidence 1bat the employer tmned is mind to modifying the jobs to make them wOIk. I have to agree_ There was IHJ evidence tendered to show that the ESRO job could not be modified because it would cause muIne hardship_ AI1hougb. it was evf'Dtllally an ESRO position1bat was modified :fm- a female CO in almost identical cinmnstances as Mr_ Ranger_ The same is true fO(" the bailiff position. In 1he end 1he only evidence before me is that some "featheIs had been rnmecr because 1he job was offered to Mr. Ranger_ Fm1her, there was IHJ evidence 1bat 1he employer coosidered the positions on a tempmaIy basis.. It was offered as part of a :full and :final -67- settlement to Mr_ Ranger's grievances, even 1hougb. it wooId have meant 1hat Mr_ Ranger wooId go to an unclassified position1bat might not be continued in 1he service.. [135] In considering 1he evidence and the submissions of the parties, I must find 1hat 1he employer did aImost nothing to effect an accommoda1ion for Mr_ Ranger between April 2004 and January 2005_ Fm1her, I cannot agree with 1he employer 1bat it took all reasonable steps to accommodate Mr_ Ranger until he was placed in 1he P&P positiOlL The s1andard is to take reasonable steps untiI1he point, where to go fiIrther, would cause muIne hardship_ As Vice-chair Dissanayake noted inDi Caro. ~ if the employer takes the steps, 1he evidence of muIne hardship will be clear_ However, as noted earlier I heard no evidence 1bat it wooId have c.all!Oft1the employer muIne hardship to place 1he grievor in 1he bailiff position (J(" to modify the ESRO positiOlL There is IHJ evidence before me re1atine to 1he factors in s_ 17(2) of the Code to prove muIne hardship_ The employer cannot ever merely assmne 1hat a job willlHJt wotk as it did here_ [136] While it is clear tium decisions of 1his board 1bat the grievor has no right to pick and choose wOIk: accommoda1ioos, 1his is not the case here (see Balog and Kerna. supra)_ That Mr_ Ranger liked 1he possibility ofboth of these jobs is secondary to whe1her 1hey wooId be good accommodations. However, had the employer woded 1bmugh 1he process of allMlIIJltiug to modify the duties of these jobs, Mr_ Ranger might have still been employed by 1he minisUy_ And in 1he case of 1he ESRO he might have been able to return to wOIk: mnch sooner_ He may not have su:IIered a relapse in his hpalth Dr_ Lemay -68- indicated 1bat ifhe had returned to wOIk: before April2004~ he wooId not likely have had a relapse_ But since 1he employer did not 1Iy to modifY 1hese positions we will never know_ [137] The unioo. also submits 1bat the employer wrongly linh:d the grievance process to the duty to accommodate Mr. Ranger~ in violation of1he duty and 1he grievOl"~S right to:file a grievance under the collective agreement and the Ontario Labour Relations Act. Counsel argued 1bat 1he employer~s behaviour amounted to bad:fai1h. He relied on Ms.. Marters lmchallenged evidence 1bat Mr_ Lambert told her 1hat 1he employer was not willing to accommodate Mr_ Ranger~ until it received a list of grievance issues and suggested solutions_ AI1hougb. Ms.. Martel was being employed by Maoll1ife to assist in 1he grievor~s return to wod, she was unable to get 1he employer to make job offers through 1he spring and snmmer of2003_ He also argued 1bat the employer counsel denied 1bat 1here was any duty to accommodate 1he grievOl" in April 2004 and as late as June 2004 and 1hat most of1he job offers to Mr. Ranger were made to sett1e his IJap!i>..QJlent gnevance- [138] The letters :from 1he employer~s counsel to union counsel (which the parties put in evidence by agreement) support 1bis argnment In her April 12, 2004 letter counsel said: To clarifY 1he Grievors status, he is C1.Iuadly in receipt ofL TIP benefits and has been since app1U1L ima1P.1y 2002. The Grievor is entitled to receive L TIP benefits until August 2004 under- 1he "own occupa1ionD test of entitlement... To be clear~ the Minisky is under no obligation to place the GrievOl" in a position at 1bis 1ime~ nor is it under any obligation wba:t:soever to place the -69- Grievor in a position ofhis choosing. The discussions about potentially placing the Griever in a non-Conectional Officer position, which began in late January 2004, occmred in the context of attempting to settle the grievance 1bat is u'llu:utIy before 1he Grievance Settlement Bmnl Furthennore, the discussions that we had in January arose as a result of your advising that although 1he Grievor was willing to retmn to wod, he was medically restricted :from returning to a Correctional <>JIicer positiOll. [139] In her letter of June 14, 2004, counsel :fm-1he employer responded to a ~ for disclosme of docmnen:ts as to what stqJs had been taken by the employer to :find Mr. Ranger a suitable position. In 1bat letter she said "_._please be advised that the Ministry will not provide such iuflAmation as the Ministry's efforts in 1his regard have been in 1he context of media1i0ll.>> The position taken by counsel seems to be that 1here is no ongoing duty to accommodate Mr. Ranger_ This is in contrast to Ms. Fleming's ac1nowledgement in August 2003 that the minisky was pt.qJiIlOO to accommodate Mr. Ranger, outside cmrections, if neassaIY- It was shodly after counseI's hme letter that 1he union filed a failure to accommodate grievance on Mr. Rangers bebaIf. [140] Counsel for the union argued 1bat the employer took no real stqJs to accommodate the grievor mdilthe SlIlJll1lel'" of 2004, after 1he interim relief motion was argued Even as late as October 2004, the employer was still trying to settle the grievances, at 1his point both grievaIllrS, by makine the offer of the lDlClassified baili:ff's positiOll. [141] I have 1hought long and bani on 1his issue. I am not prepared to :find 1hat 1he employer deliberately and in bad :fai1b. [p.fil!Oft1 to accommodate 1he grievor_ However, I am -70- convinced 1bat the employer allowed the process of the har:assment and discrimination grievance to intafae with 1he employer's duty to accommodate Mr_ Ranger. I have to conclude that the shdP.mP:nt made by Mr_ Lambert in early June 2003 was 1e1line, at least to the attitude of some in the institutiOlL I am of1he view that his comment to Ms. Martel, 1bat 1he employer was not willing to accommodate the grievor until his grievance was settled is a clear violation of 1he duty to accommodate under the Code.. [142] Further, counsel fO(" 1he employer seemed to 1hink 1bat as long as Mr_ Ranger had LID benefits, there was JH) obligation in law :fm-1he employer to wmk towards an accommodation. But 'Ibis cannot be so_ 1he grievor's doctor told Mao1l1ife that he could return to wmk in February 2003, if accmnmodated and Maonlife hired Ms_ Martel to help in the process_ 1be process in 'Ibis case was not just a return to the grievor's old job. He was disabled and needed accommoda1iOlL Since he cooId not retmn to OCDC, the grievor needed to go somewhere else_ However,1he coosultant got nowhere_ She said 1bat in 19 years in the bnsi'(lP.!i;.<i;, she had never seen a case where an employer was so reluctant to bring an employee back to wOIk. CounseI's view 1bat the only reason the employer was offering jobs to Mr. Ranger was to settle his grievaIllrS shows that the employer did not recognize its duty to accmnmodate_ This petbaps to a large extent explains why it took so long to :find Mr_ Ranger an accommoda:tiOlL [143] 1he attitude 1hat began with Mr_ Lambert's cnmment seems to have contimm 1broughout 1he aImost two years 1hat it took to get Mr_ Ranger back to wOIk. 1be union ~ 'Ibis -71- attitude shows 1bat the employer failed in its duty to accommodate Mr. Ranger and 1bat it was not mdil after the interim relief order of 1bis board on October 6, 2004, 1bat the employer began to take adequate steps to find a suitable positiOll. The evidence does seem to suggest 1hat 1he interim relief order of1bis board had some effect on encomaging 1he accommodation process after October 2004. [144] I must note here 1bat at times the union asked :fm-1he mediation process to be used to discuss possI"b1e accommodations for Mr_ Ranger. The letters and emails between counsel make 1bis clear. Counsel:fm-1he employer cited 1hese requests and seemed to suggest 1bat 1bis evidence 1herefore justified 1he employer's position as stated in bo1h the April and hme 2004letteIs. I 1bink not There is a difference between using 1he opportunity of a mediation session to achieve an accommodation. as one part of a settlement and denying 1bat 1here is any duty to accommodate outside 1he pmposes of settlement. as 1he employer did in 1bis case_ [145] I am not prepared to find the actions of the employer as bad:faith. However, looking at 1he pattern of evidence as a whole and wi1hout any evidence of muIne hardship to justify 1he Ieng1h of time 1bat it took to accommodate Mr_ Ranger, I am convinced that the link between the duty to accommodate and 1he grievance procedme interfered and delayed the search for a suitable accommodation. Ultirnatdy, the question is whe1her 1he employer has proven on a balance of probabilities 1bat it has fidfilled its obligations under the Code and the collective agreement in its duty to accommodate the grievOl". As noted above the -72- onus is on the employer to prove muIne hardship~ as a reason fO(" not being able to accommodate an employee. For all 1he reasons noted above, I :find 1bat 1hey have not satisfied the onus in this case and that 1hey failed to accommodate Mr_ Ranger tium April 2003 until shortly before he was offered a temponIy position in January 2005 in con1Ia.vmtion of the Code, and 1he collective agreement. DECISION [146] Having carefully considered the evidence and 1he sllhmissioos of1he parties and for the reasons noted above, I hereby grant bodJ. grievances and make 1he following decIamtions: I) 1he employer has vioIated article 3_1 of the collective agreenad: because 1he grievor was harassed, suffered discrimination and a poisoned wolkplace on 1he basis ofhis sexual orientation: and 2) 1he employer vioIated the WDHP policy by fai1ine to punuptly investigate Mr_ Ranger~s WDHP complaint; 3) 1he employer has vioIated s. 5 of the Ontario Human Rights Code by fai1ine to provide :fm- equal trea1ment of Mr. Ranger; 4) 1he employer has vioIated article 3_1 of the collective agreenad: by fai1ine to accommodate Mr_ Ranger until shortly before he was offered a temponIy position in January 2005_ 5) As requested by the parties, I remain seized of any and all outstanding matteIs.. Dated at Toronto this Igfh~ day of Jannary~ 2010_ I' - D.J.D_ Leighton, Vice-clmir