HomeMy WebLinkAbout2005-3884.Cox.10-12-16 Decision-2
Commission de
Crown Employees
Grievance Settlement
UqJOHPHQWGHVJULHIV
Board
GHVHPSOR\pVGHOD
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 7pO
Fax (416) 326-1396 7pOpF
GSB#2005-1443, 2005-3884
UNION#2005-0530-0022, 2005-0530-0077
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Tardiel et al)
Union
- and -
The Crown in Right of Ontario
Employer
(Ministry of Community Safety and Correctional Services)
BEFOREChristopher J. Albertyn Vice-Chair
FOR THE UNIONDavid Wright, Ryder Wright Blair &
Holmes LLP, Barristers & Solicitors
Jim Paul
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER
Melissa Nixon & Cathy Phan
Ministry of Government Services
Labour Practice Group
Counsel
HEARINGFebruary 19 and May 27, 2010.
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Decision
[1]This decision concerns an individual grievance. It is heard pursuant to the agreement of
the parties that it be done under the procedures of Article 22.16 of the collective agreement.
[2]This is a relatively long decision. It is organized under the following headings:
-The nature of the grievance
-The relevant provisions of the collective agreement
-Background to the grievance
-The procedures adopted to address this and the other grievances arising from the
circumstances that prevailed in the Toronto Jail in the relevant period (2005 to 2008)
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-The merits of the grievance
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-The quantum of damages
-The result
The nature of the grievance
[3]The grievance, of October 20, 2005, claims the following:
I grieve that since January 2005 Management of the Toronto Jail and the Ministry have violated
Article 3 of the collective agreement by not providing the Grievor with a workplace free from
discrimination and hostility based on race. I further grieve that the Management of the Toronto
Jail and the Ministry have violated Article 9 of the collective agreement by not taking all
reasonable steps to ensure my health and safety by taking effective action to prevent racialized
employees from being exposed to consistent racist graffiti or correspondence of a racist and
threatening nature. The environment I am now forced to work in is racially toxic.
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[4]The relief sought by the Grievor was:
-The Racial and Discriminatory acts to stop.
-Effective and relevant Anti-Racism Education for Managers that includes managing a Diverse
workplace and responding to acts of Racism or Discrimination in the workplace
-Anti-Racism education for all Staff
-$100,000 for actual trauma, pain and suffering.
[5]At the hearing the relief sought for the Grievor was amended to include the following:
-An Order that the Crown locate for me a suitable alternative position in the OPS, outside of a
correctional institution, that is acceptable to me and is commensurate in salary and status to that
of a Correctional Officer and that the Crown provide me with the necessary training and
orientation for such position;
-Alternatively, if no such position can be located, an Order that the Crown maintain my salary for
a period of five years to allow me to obtain the necessary education and qualification to obtain a
suitable alternative career outside the OPS, and that the Crown pay all costs associated with such
education and training;
-Special damages in the amount of $10,650 as follows:
$3,000 to repaint car
$2,000 for consultation with a human rights lawyer
$4,500 in parking tickets
$650 on car security system
$500 for gas and parking to attend proceedings in this case
-An Order compensating for all lost wages and benefits, with interest, and including loss of
overtime opportunities, for the period of absence in 2006 and absence since October 11, 2009;
-An Order for the payment of $1,000,000 in general damages for the distress suffered, for the loss
of job opportunities suffered and for the ongoing violation of my human rights.
[6]The Employer responded to this request for relief as follows:
1. Mr. Cox is not entitled to a remedy which would order the Crown to find him alternative
employment outside of a correctional institution;
2. Mr. Cox is not entitled to an order maintaining his salary for five year as an alternative
remedy to the one specified in paragraph 1 above;
3. Mr. Cox is not entitled to the special damages he seeks, as they are all too remote;
4. Mr. Cox is not entitled to an order compensating him for all lost wages in 2006 and for the
period since October 11, 2009. Mr. Cox choose not to work for those periods of time; and
5. It is the Employer's view that $10,000 is a proper and just amount for damages; and
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6. In the interest of getting Mr. Cox to return to work, the Employer would again be prepared to
allow Mr. Cox to tour any of the correctional institutions in the Central Region and choose a
facility that he would be prepared to return to as a Correctional Officer. The Employer would
request that the Vice-Chair order that this tour and Mr. Cox's subsequent decision be made
within four weeks following the date of the decision.
The relevant provisions of the collective agreement
[7]Article 3 reads:
ARTICLE 3 - NO DISCRIMINATION / EMPLOYMENT EQUITY
(FXT, SE, ST, FPT, RPT, GO)
3.1 There shall be no discrimination practised by reason of race, ancestry, place of
origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital
status, family status, or handicap, as defined in section 10(1) of the Ontario
Human Rights Code (OHRC).
3.2 There shall be no discrimination or harassment practised by reason of an
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3.3 It is recognized that in accordance with section 14 of the Ontario Human Rights
CodeWKH(PSOR\HU¶VHPSOR\PHQWHTXLW\SURJUDPVKDOOQRWEHFRQVLGHUHGD
contravention of this article.
[8]Article 9.1 reads:
ARTICLE 9 - HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS
(FXT, SE)
9.1 The Employer shall continue to make reasonable provisions for the safety and
health of its employees during the hours of their employment. It is agreed that both
the Employer and the Union shall co-operate to the fullest extent possible in the
prevention of accidents and in the reasonable promotion of safety and health of all
employees.
«
[9]Article 22.16 reads:
22.16 MEDIATION/ARBITRATION PROCEDURE
22.16.1 Except for grievances concerning dismissal, sexual harassment, and/or human
rights, and Union grievances with corporate policy implications, all grievances
shall proceed through the GSB to a single mediator/arbitrator for the purpose of
resolving the grievance in an expeditious and informal manner.
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22.16.2 The mediator/arbitrator shall endeavour to assist the parties to settle the
grievance by mediation. If the parties are unable to settle the grievance by
mediation, the mediator/arbitrator shall determine the grievance by arbitration.
When determining the grievance by arbitration, the mediator/arbitrator may limit
the nature and extent of the evidence and may impose such conditions as he or
she considers appropriate. The mediator/arbitrator shall give a succinct decision
within five (5) days after completing proceedings, unless the parties agree
otherwise.
22.16.3 The mediator/arbitrator shall begin proceedings within six (6) months of the date
of the referral to the GSB unless a later date is agreed to by the parties.
22.16.4 The GSB will adopt such procedures as are necessary to ensure the resolution of
disputes within the procedures and time frames set out above.
22.16.5 The parties will make every effort to schedule grievances for hearing, that have
been referred to the GSB, within six (6) months of the referral.
22.16.6 Grievances concerning dismissal, sexual harassment, and/or human rights, and
Union grievances with corporate policy implications shall proceed through the
regular arbitration procedure and shall not utilize this mediation/arbitration
procedure except with the mutual agreement of the parties.
22.16.17 Decisions reached through the mediation/arbitration process shall have no
precedential value unless the parties agree otherwise.
Background to the grievance
[10]The Toronto Jail is a maximum security correctional institution. It has an official
capacity of 562 inmates, although there are typically more, up to 625 at any particular time. The
inmates are on remand from trial or are serving sentences of 30 days or less. The Toronto Jail has
five floors of three units (A, B and C) on each floor. Inmates are grouped into units based on
their previous experience in the institution. Those with special needs or mental health issues are
placed in a special needs unit. There are 36 cells in each unit, generally with two or three inmates
per cell. Each cell has two beds. An extra mattress is placed in the cell if there is a third inmate.
Each unit has a day room located outside the cells of each unit. The inmates spend most of the
day in the day rooms.
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[11]The staff complement of the jail is a superintendent, four deputy superintendents, about
20 operational managers (OM16s), about 145 corrections officers (COs) (among them the
Grievor) and about 20 unclassified CO positions. There are approximately 100 non-correctional
officers in business/finance, records, food services, maintenance, and in social programs.
[12]January 2005 saw the start of a long series of vile, racist and threatening anonymous
letters addressed to particular racialized individuals working at the Toronto Jail. The first of
these letters was placed in the internal mailbox of the addressee, leading to the obvious
conclusion that someone working in the jail, a fellow correctional officer, was the author.
Thereafter the letters were mailed to racialized correctional officers working at the Toronto Jail.
In most cases the letters were addressed to the Toronto Jail. They arrived sporadically and, on
each occasion, the letters generated mixed emotions of fear, anger and frustration. Other than the
author and any accomplice, no-one knew who was writing the letters. All were suspicious and
the mood of suspicion pervaded the jail. Speculation was rife as to who might be the author.
Some individuals were named as possible suspects. Each letter was passed to the police, who
investigated. The police have not effected an arrest and the overall case of the letter writing
remains an ongoing, unsolved investigation. In all, between the first letter received on January
15, 2005 until mid-2009, there have been 39 letters. Of them, all but one appear to have been
written by the same author.
[13]I will not describe the letters, beyond those in which Mr. Cox is directly cited, but they
display a disturbing level of depravity. Those to whom the letters were addressed would be
understandably concerned for their safety and well-being. They would also likely be troubled,
with more or less avidity, by fears that the threats of harm to them and their families might be
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carried out. For some, the fear became all consuming for some period of their lives.
[14]The effect of the letters was destructive of relationships within the jail. Thinly drawn
divisions between individuals and groups became severe rents; former friends became suspicious
of one another; rumour assumed the ring of truth; widespread doubt, fear and recrimination
became rampant. The management of the jail had little experience of dealing with so divisive
and destructive an intrusion into workplace relationships. The superintendent, who also received
a threatening letter, tried to assuage the strong feelings within the jail. She sent memoranda to
staff deploring the letter writing DQGDVVHUWLQJWKH0LQLVWU\¶VFRmmitment to a harassment free
ZRUNSODFH%XWWKHVXSHULQWHQGHQW¶VHIIRUWs, and those of her successors until 2008, were
insufficient to meet the needs of the situation. Those receiving the hate mail, and those living in
anticipation of possibly receiving a threatening letter, were QRWFRPIRUWHGE\PDQDJHPHQW¶V
efforts. Many of them felt neglected and abandoned.
[15]Suspicion and mistrust among correctional officers is particularly corrosive of work
relationships because they must rely upon each other for their safety whenever they are at work.
The work of correctional officers is inherently dangerous. They are faced with the possibility of
physical attack from inmates and they must be able to trust implicitly in the officer they are
assigned to work with. If they cannot, their work becomes especially risky and dangerous. If they
have in mind that the person with whom they are assigned might be the letter writer, the person
threatening harm and destruction to them, then they cannot entrust their wellbeing to their
partner. They then live in doubt of whether, if attacked, their partner will immediately come to
their aid and sound the alarm for backup assistance. This was the state of affairs in which the
Grievor worked during the period 2005 to 2008.
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[16]Numerous grievances were filed by employees in the jail, by racialized and non-
racialized staff. The Union filed a policy grievance claiming that a poisoned work environment
prevailed in the Toronto Jail.
[17]The parties decided to consolidate all the grievances. The procedure agreed by them to
deal with the many grievances is described below.
[18]In May 2007, an investigation was initiated by the Ministry under s. 22 of the
Correctional Services Act. It was conducted with the assistance of a seconded Toronto Police
Service Detective Sergeant. The investigation did not determine the identify of the anonymous
letter writer.
[19]The anonymous letters continue, although, as part of the restorative process in the
workplace undertaken by the Ministry and the Union, a protocol for the handling of suspicious
mail has now been jointly developed. It is contained in a decision issued on July 15, 2009, which
reads as follows:
I issued a decision on June 29, 2009 setting RXWWKHSDUWLHV¶DJUHHGRUGLUHFWHG
objectives and the actions required to achieve those objectives. One issue remains
outstanding from those objectives, the Suspicious Mail Handling Protocol.
This decision provides the Suspicious Mail Handling Protocol at the Toronto Jail,
on the basis of the submissions made by the parties.
The parties are directed to comply with its terms.
The Employer is directed to provide each employee with a copy of this Protocol,
for which each employee is directed to sign, acknowledging receipt.
I remain seized with respect to the implementation of this Protocol.
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Suspicious Mail Handling Protocol
Preamble
Adult Institutional Services and the senior administration of the Toronto Jail are committed to
ensuring a safe and respectful workplace that is free from discrimination and harassment,
hostility, violence, and bullying. Unfortunately, past situations have occurred at the Toronto Jail
where employees have received anonymous mail containing racially motivated threats. In order
to appropriately respond to and manage anonymous mail containing similar threats in the
future, the development, implementation, and periodic review of this protocol has been
undertaken. This Protocol focuses on criminal evidence handling, appropriate threat
assessment, the implementation of reasonable security precautions, timely accurate
communication to those impacted, appropriate individual attention to those most affected, and
recognition of the particular circumstances of each affected employee.
This Protocol seeks to encroach upon individual employee privacy rights as little as reasonably
possible, while protecting the interests of the Employer and of all employees in maintaining a
workplace that is free from harm, harassment and discrimination.
This Protocol compliments individually signed protocols that are the result of grievance or
human rights settlements, employer and employee obligations under legislation, policy or local
standing orders and it should be read in conjunction with them, including:
Toronto Jail Standing Orders±6HFWLRQ6WDII3URKLELWLRQDJDLQVWXVLQJ
institutional address to receive personal mail;
Adult Institutions Policy & Procedures Manual±(PSOR\HH6HFWLRQ³7KUHDWV$JDLQVW
6WDII´
Occupational Health & Safety Act±'XWLHVRI(PSOR\HU6HFWLRQ
K³WDNHHYHU\
SUHFDXWLRQUHDVRQDEOHLQWKHFLUFXPVWDQFHVIRUWKHSURWHFWLRQRIDZRUNHU ´DQG
'XWLHVRI:RUNHU6HFWLRQ
G³UHSRUWWR his or her employer or supervisor any
contravention of this Act or the regulations or the existence of any hazard of which
KHRUVKHNQRZV´
Procedure
1. All incoming mail to the Toronto Jail is received by the receptionist. The receptionist
is to wear gloves prior to handling any of the incoming mail. The receptionist date
stamps the mail, then separates the inmate mail from the administrative mail (which
includes mail addressed to staff).
2. The receptionist delivers the mail to the security inbox.
3. Two security managers, working together, review the administrative mail. They
1
identify what, in their opinion, is any suspicious mail.
1
Determining what is suspicious mail involves the exercise of judgment by the security managers. Among the
indications of suspicious mail are the following: poorly written, incomplete or misspelled or typed addresses,
improper or no return address, incorrect titles, the title of an individual but no name, mail that has descriptive
PDUNLQJOLNH³FRQILGHQWLDO´VSHFLDOGHOLYHU\VWLFNHUVH[FHVVVWDPSV
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4. Once suspicious mail has been identified, the following process will apply.
5. Using gloves, the security officer will place the item of mail in a transparent police
2
property evidence bag. The Superintendent will be immediately notified.
3
6. If the suspicious mail is addressed to a particular employee, a security manager will
check to see if that individual is at work on duty. If so, the individual will
immediately be summoned. If the employee is not at work on duty, the
Superintendent will immediately take reasonable steps to contact the employee so as
to inform them of the suspicious mail.
7. If contact is made with the employee within a period of 24 hours from when the
Superintendent first attempts such contact, the Superintendent will inform the
employee of the suspicious mail and advise the employee of what will happen to the
mail. The Superintendent will tell the employee that they are entitled to accompany
the security manager when the mail is given to the police. When speaking to the
employee, the Superintendent will ascertain whether the employee intends to attend
the police station with the security manager, as described below, in which event the
Superintendent will inform the security manager of this intention.
8. If the employee not on duty cannot be readily contacted, the Superintendent will
leave a message for the employee to make contact, explaining that such contact is
urgent and concerns mail received at the Toronto Jail.
9. Unless there is reason to believe that the suspicious mail constitutes an immediate
threat to the institution or an individual, the following maximum period of 24 hours
will apply.
If, within the 24-hour period, the employee cannot be contacted, or if the employee
GRHVQRWUHVSRQGWRWKH6XSHULQWHQGHQW¶VDWWHPSWDWFRQWDFWRULIWKHHPSOR\HH
cannot attend to review the letter, or if the employee indicates they do not wish to be
present when the suspicious letter is handed to the police, the Employer may proceed
to take the suspicious letter to the police for processing, without further delay.
10 If the employee avails themself of the opportunity to meet with the Superintendent
and/or the security manager within the 24-hour period, the employee will be shown
the suspicious mail, though they may not touch it. If the employee is able to identify
WKHVXVSLFLRXVPDLODQGFRQYLQFHWKH6XSHULQWHQGHQWRULQWKH6XSHULQWHQGHQW¶V
absence, the security manager, that the mail is not suspicious, the mail will be handed
to the employee without being opened.
11. If the employee identifies the mail, but does not persuade the Superintendent or, in
WKH6XSHULQWHQGHQW¶VDEVHQFHWKHVHFXULW\PDnager, that the mail is not suspicious,
the mail will not be handed to the employee, and will be treated as suspicious.
12. Upon the Superintendent being notified of the suspicious mail, the Superintendent
will forthwith inform the following: the local Union President, a designated
individual of the Union corporately, the Employer corporately through an incident
2
Or her deputy, throughout this Protocol.
3
If the mail is addressed to more than one employee, then what follows applies to all of the named employees.
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4
person assigned to receive such communications by OED.
13. If the particular employee indicates within the 24-hour period that they wish to
accompany the security manager to the police station, the employee will be entitled
to do so. At the expiry of the 24-hour period (or earlier, if the employee indicates a
willingness to attend earlier, or to permit the letter to be delivered to the police
without them being present), the Superintendent will direct a security manager to take
the letter to 55 Division of the Toronto Police.
14. The security manager will wait for the police to take custody of the suspicious mail,
accompanied by the employee, if the employee is present.
15. If the police officer decides to give a copy of the suspicious mail to the security
manager at that time, the employee present will also be entitled to receive a copy. If it
turns out, upon opening the mail, that it is not suspicious, but is a letter addressed to
the employee by a person known to the employee, the letter will be placed back in the
envelope and given to the employee.
16. If the police officer does not immediately give a copy of the letter to the security
manager (and the employee), the security manager will arrange for a copy to be sent
to the Superintendent as soon as possible. The security manager will liaise with the
police until the copy is received to ensure the copy is delivered as soon as possible.
17. The security manager will hand the copy received from the police to the
Superintendent. Upon receipt by the Superintendent, the Superintendent will ensure
that a copy is handed in person to the recipient employee as well as to any other
employee named in the letter. This will be done as soon as reasonably possible, with
the employee being advised in advance that suspicious mail has been received
addressed to the employee and the employee may choose to be accompanied by a
person of their choice when they are handed the letter. If possible, the Superintendent
should personally hand the letter to the employee concerned.
18. Upon the Superintendent being provided a copy of the suspicious mail, the
Superintendent will forthwith provide a copy to the following: a designated
individual of the Union corporately, the Local Union President, the Employer
corporately, the Regional Director, and a person assigned to receive such mail by
5
OED.
19. The Superintendent, with the security manager, will conduct a preliminary
assessment of the contents of the mail with any employee identified therein to
determine if the mail contains specific or non-specific threats.
20. If the mail is in any way threatening or offensive, the employee given a copy will be
provided with appropriate support, including EAP referral, the opportunity to request
use of personal leave credits, an offer of having an available on-duty support person
of their choice or an opportunity to contact a support person or family member
privately. The Superintendent may consult with WED in order to determine what
other appropriate and reasonable supports can be provided to threat letter recipients.
4
The OED representative at present is Allyson Ayres.
5
The OED representative at present is Allyson Ayres.
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,IWKH6XSHULQWHQGHQW¶VDVVHVVPHQWLVWKDWWKHPDLOFRQWDLQVDQRQVSHFLILFWKUHDW D
threat that is likely to cause the recipient or a named individual to fear for their safety
and security or that of another person, with no indication of detailed planning), the
Superintendent will direct that a risk assessment be done. The risk assessment will
result in a report of the general vulnerabilities of the individual employee affected by
the threat. The report will recommend what reasonable mitigation or defensive
measures should be provided to address the identified vulnerabilities.
,IWKH6XSHULQWHQGHQW¶VDVVHVVPHnt is that the mail contains a specific threat (a threat
that is likely to cause the recipient or a named individual to fear for their safety and
security or that of another person, with information that indicates planning or
surveillance), the Superintendent will direct that a threat assessment be done. The
threat assessment will result in a report of the vulnerabilities of the individual
employee affected by the threat. The report will recommend what reasonable
mitigation or defensive measures should be provided to address the identified
vulnerabilities.
23. Either then, or at a later date, the employee at risk will be entitled to request a
specific protocol to fit their individual needs. The protocol may include specific
support for the individual, information of support services, and opportunities. The
Union should be consulted regarding the terms of individual protocols.
24. Upon receipt of the findings of a risk or threat assessment, the Superintendent will
communicate those findings to the affected employee and to the Union. The
provision of reasonable personal security will be based on the findings.
25. If an employee directly receives work-related suspicious threatening mail at work or
at home, and if the mail would create a reasonable apprehension of harm to a person
other than the recipient, the employee shall report this occurrence to the
Superintendent. If there is no reasonable apprehension of harm to anyone other than
the recipient, the recipient is not required to, but is encouraged to, report it to the
Superintendent. Upon reporting the occurrence, the employee is required to submit a
detailed occurrence report capturing all of the information concerning receipt of the
correspondence, including how the recipient physically handled the envelope and its
content. The employee will give the original of the threat letter to the Superintendent
for forwarding to the relevant Police Service.
26. If an employee directly receives work-related suspicious threatening mail at work or
at home that would not create a reasonable apprehension of harm to a person other
than the recipient, the employee is not required to report it to the Superintendent, but
if the employee fails to so report it, the employee will have no claim whatsoever
against the Employer or the Union with respect to that suspicious letter for special
treatment or any other relief.
27. After coming into possession of suspicious mail, within a reasonable period, the
Employer will notify the staff that a threatening letter has been received, with such
detail as the Superintendent reasonably considers to be appropriate as to the nature of
the threat.
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28. Information regarding any threat contained in suspicious mail and the actions taken
by the Superintendent with respect to that threat will be documented in a confidential
file maintained by the Superintendent, inDGGLWLRQWRHQWULHVXQGHUWKH0LQLVWU\¶V
normal incident report process.
29. The Employer will ensure that those identified in threatening or hate mail (mail that
expresses malice or hatred, and that may contain a threat)are treated with courtesy,
compassion and respect for their personal dignity and privacy, and they are given
access to information concerning services and remedies available to them. To the
extent the Employer is able to obtain the information, it will inform those identified
in threatening or hate mail of the progress of criminal investigations and
prosecutions.
30. Every 6 months, in collaboration with the Union and the affected employee, the
Superintendent will review each individual protocol, as to whether it continues to be
necessary, or as to adjustments and modifications that should be made to it.
[20]The protocol has enabled the parties to deal with the suspicious mail received in a manner
that is sensitive to the needs of the mail recipient while ensuring that the police are able to
investigate.
The procedures adopted to address this and the other grievances arising from the
Toronto Jail
[21]There have been a series of decisions that determined the process to be followed to
address the various policy, group and individual grievances that arose from the circumstances in
the Toronto Jail in the period from early 2005 until 2008. Each of these decisions followed a
process of careful review by the Union and the Employer of what procedure would best address
the many aspects of the problems faced by employees in the Toronto Jail. The parties considered
what would best achieve organizational improvement and systemic remedy for the employees
and what would optimally address the individual concerns, grievances and claims of each of the
affected employees. They agreed to a mediation-arbitration procedure under Article 22.16 of the
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FROOHFWLYHDJUHHPHQWDVDPSOLILHGLQWKH%RDUG¶s decisions. I set out certain of these decisions
(some by reference) to provide the context in which the procedure for thHKHDULQJRI0U&R[¶V
grievance was developed.
[22]On July 11, 2008 I issued a decision that described the process that would be applied, and
the reasons for doing so. It reads (omitting unnecessary detail), as follows:
7KLVGHFLVLRQFRQFHUQVJULHYDQFHVDULVLQJIURPFLUFXPVWDQFHVDWWKH7RURQWR-DLO ³WKH-DLO´
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decision sets out the orders I make for the hearing and resolution of these grievances, based on the
SDUWLHV¶VXEPLVVLRQV7RWKHH[WHQWWKDWWKHOLVWRIgrievances cited is not accurate, either party may
raise that issue with me.
I note the previous agreement of the parties to proceed by way of mediation-arbitration (also
UHIHUUHGWRDV³PHGDUE´
SXUVXDQWWR$UWLFOHRIWKHSDUWLHV¶collective agreement, in the full
knowledge that issues of human rights form a significant feature of the issues in the grievances.
The mediation-arbitration is directed to accomplishing the following objectives:
-To provide the grievors with an opportunity to tell what happened to them, and to feel, at
the end of the process, that they have had a fair opportunity to be heard;
-To provide management with an opportunity to provide its response;
-To reconcile all of the different constituencies in the workplace at the Toronto Jail by
agreeing upon systemic remedies;
-To provide a basis for effective ongoing reconciliation of differences between the various
constituencies within the Jail;
-To ensure that the systemic remedies agreed on are properly implemented by all of the
constituencies;
-To settle the grievances in a manner that is fair to each grievor, given their particular
individual circumstances, and generally reasonable;
-To achieve these objectives within the relatively near future.
To accomplish the above objectives I recognize the following:
a. an individual dimension (the opportunity for the individual grievors to be heard and, if
possible, ultimately to feel vindicated),
b. a collective and organizational dimension (the re-constituting of the relationships in the
workplace and developing systemic remedies), and
c. a legal dimension (the resolution of the grievances).
I note that there are various interest groups in the individual and legal dimensions, and there are various
constituencies in the collective and organizational dimension. The details of these groups and
constituencies will be identified further as the process proceeds. The parties will start with the following:
a. Individual groups
L*URXS$JULHYRUV±WKRVHFODLPLQJWKH\KDYHEHHQGLVFULPLQDWHGDJDLQVWEHFDXVHWKH\DUH
racialized:
1. Recipients of the letters
2. Those named in the letters
3. Those who claim to have experienced racist incidents
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4. The remaining grievors who believe themselves to be at risk of racist acts at work
because they are racialized
ii. Group B grievors
1. Those who claim to be wrongfully accused of writing / sending the anonymous mail.
2. Those who claim to have suffered by association with or support of those who claim
to be wrongfully accused.
3. Those who claim to have been wrongfully implied to be responsible for the
anonymous mail.
4. Those who claim to have been wrongfully targeted by co-workers, management or
any third party during the course of any investigation/process relating to the anonymous
mail or any racist conduct, including those claiming to:
a. Be wrongfully identified as a suspect or person of interest.
b. Be defamed, threatened, coerced or ostracized in any fashion.
c. Have suffered property damage or other costs in association with the poisoned
environment.
d. Be wrongfully disciplined.
5. Those who claim they have suffered a poisoned work environment as a result of
wrongful accusations of racism against themselves or co-workers.
6. Those who claim to have experienced racist incidents in relation to the anonymous
hate mail.
7. Those who claim to have had to attend at the poisoned workplace where they claim
to be potentially targets of racist acts on any given day.
iii. Group C grievors
Those assigned by the Union to Group A or B who feel uncomfortable with that
assignment.
b. Organizational constituencies:
i. Management
1. Senior management within the Ministry (Operations and Human Rights &
Organizational Change)
2. The Superintendent and the senior management staff at the Jail
3. Operational management at the Jail, OM16s
4. Other influential constituencies
ii. Union
WKH8QLRQSURYLQFLDOO\±0(5&UHSUHVHQWDWLYHV
2. the Union local executive
3. Group A grievors
4. Group B grievors
5. Other influential constituencies.
I stipulate the following concerning the media. The media are excluded from the process. If there are media
inquiries, the parties will provide a joint statement, DVIROORZV ³WKHSDUWLHVDUHFXUUHQWO\ZRUNLQJRQDQ
agreed process to resolve individual and workplace issues, and are not in a positiRQWRJLYHPRUHGHWDLO´
There will be no discussion of details of the mediation-arbitration process until the process is resolved.
However, if there is an unanticipated development not associated with this process at the jail, no media
statement will be made that could harm the mediation-arbitration process.
There will be four broad parts to the mediation-arbitration process, intended to address the issues and
achieve the above objectives. The first will involve private hearings, with small attendance, for some of the
LQGLYLGXDO*ULHYRUV ³WKHILUVWSDUW´
7KHVHFRQGZLOOLQvolve hearings attended by representatives of all of
the relevant constituencies in the Jail at which the Grievors and the Employer will have a representative
opportunity to inform all present of the grievances, and the circumstances giving rise to them, and of
DFWLRQVWDNHQWRUHPHG\WKHVLWXDWLRQ ³WKHVHFRQGSDUW´
7KHWKLUGSDUWZLOOLQYROYHWKHRUJDQL]DWLRQDO
constituencies in an organizational initiative designed to agree upon values and to re-constitute
relationships within the Jail and to address systemic rePHGLHVVRXJKWE\WKHSDUWLHV ³WKHWKLUGSDUW´
7KH
- 16 -
fourth part will be an expedited meGLDWLRQDUELWUDWLRQRIWKHFODLPVRIHDFKRIWKH*ULHYRUV ³WKHIRXUWK
SDUW´
The parties will provide a will-say statement for each person selected to testify, the selection being subject
to my overall direction. The will-say statement will give an account of thHLQGLYLGXDO¶VH[SHULHQFHVWREH
followed at the hearing by the individual telling their experience based on the will-say. This might be
supplemented with other documents (e.g. copies of the letters, doctors reports, etc.). All of these documents
will to be produced at least 7 days in advance.
Attendance at the first part will consist of those representatives of the parties in the coordinating group
³WKHFRRUGLQDWLQJJURXS´
,KDYHFRQVXOWHGRQWKLVSURFHVVWRGDWHZLWKWKHDIIHFWHG*ULHYRUDQGZLWKD
VHQLRUUHSUHVHQWDWLYHRIWKH0LQLVWU\¶VRSHUDWLRQDOPDQDJHPHQW7RWKHH[WHQWD*ULHYRUZLVKHVWRKDYHDQ
individual or individuals present in support, within reason, hat will be permitted.
If possible, the parties should produce an agreed common bundle of documents, preferably electronically.
$WWKHFORVHRID*ULHYRU¶VQDUUDWLYHRIZKDWRFFXUUHd, some preliminary discussion of settlement of the
*ULHYRU¶VFODLPZLOORFFXU)Rr this, as with all other parts of the process, I reserve the right to exclude any
person, and I will likely meet only with the parties directly affected once discussion of the parameters of
settlement of individual claims occurs.
There will be no cross-examination. There may be some questioning, for the purpose of clarification, from
counsel for the parties (management, group A, group B) and by me.
The timing of the first part of the process is as follows:
[here a timetable for particular grievors is set out, including on May 29, 2008, a time for Mr. Cox to
describe what had happened to him in his work in the Toronto Jail]
The October dates may be used, if necessary, for continuation of the first part. Otherwise, those dates will
be used for the fourth part, the mediation-arbitration of individual grievances.
The purposes of the second part of the process will include: to enable the different constituencies in the Jail
to hear each other in a respectful, tolerant manner; to allow individuals who have suffered some harm from
past occurrences to speak of these occurrences and of the harm, without interference; to build
understanding of the actions taken by various affected individuals; to facilitate reconciliation between the
various organizational constituencies in the Jail. Management may wish to explain the efforts it made to
address the problems identified in the grievances, and to address such other matters as it thinks appropriate.
Attendance in the second part will consist of those in the first part and representatives of each of the
different constituencies described above. Those who will participate in the organizational initiative (the
third part) will be present to hear what is said in the second part. I will issue a further decision in due course
listing those entitled to attend the second and the third parts. No persons other than those so listed will be
admitted to the hearing. Name tags will be issued to the participants and returned at the end of each day.
Lists of those who the Union and the Employer propose will attend the second and third parts will be
submitted to me by the parties by June 27, 2008.
The sequence of the second part hearings will be as follows:
[Here is set out the timetable giving each of for Group A Grievors, Group B Grievors, members of
management and representatives of the Ministry opportunities to present their statements.]
There will be no cross-examination. There may be some questioning, for the purpose of clarification, from
counsel for the parties (management, group A, group B) and by me and by the facilitators engaged by the
parties, Brian McLean and Dana Randall, who will be present in the second part and who will assist me in
the third part of the process.
- 17 -
At the conclusion of the second part, I may prepare a very brief summary of my observations, to be shared
with the coordinating group, and subsequently introduced into the third part.
The third part is a concentrated process, representative of the different constituencies, intended to address
systemic remedies and to develop shared values. It will take place in the period July 28to August 1, 2008
enable the following:
- Each group will identify the problems it believes have led to a polarized, poisoned work environment.
- Each group will be urged and engaged to suggest what each group / employee /member of management /
union representative can do to ensure, on an on going basis, that the work environment is fair, respectful,
efficient, and free from discrimination and harassment.
- The third part will result in the development of a common set of agreed objectives from the lists proposed
by the various constituencies. This will be done through a process of facilitated discussion.
- The parties will jointly identify (by re-constituted sub-committees drawn from the different constituent
groups) the actions needed to be taken to achieve the objectives.
- Suitable structures will be established to supervise the ongoing realization of the objectives with an
agreed timetable.
- Procedures for review of the process will be agreed upon to review the implementation of the agreements
reached.
The rules described above for the second part will apply to the third part.
The expectations of the participants should be that their attendance will be required from 9ameach day until
5pm each day from Monday, July 28, 2008 to Friday, August 1, 2008, and such later time each day as I
may require.
The terms of Article 22.16 will apply to all parts of the mediation-arbitration process.
The fourth part will commence in October 2008 and continue until all of the grievances are determined. At
the conclusion of the process, for those grievances not resolved by agreement, I will issue a brief decision
determining each grievance.
[23]The Grievor participated, like others in Groups A and B, in the first process, the private
hearings. Counsel for Group A assisted the Grievor to prepare his will-say statement. At the
private session he was able to amplify what was contained in the will-say. Mr. Cox was not
subjected to cross-examination and, pursuant to WKHSDUWLHV¶FRPPLWPHQWWRWKHSURFHVVRI
reconciliation and revivification of reasonable and respectful relationships within the Toronto
Jail, his will-say statement was accepted as being truthful, and was unchallenged. As with the
other grievors, some brief consultation took place with the Grievor and his counsel to explore the
parameters of the kind of settlement he wished to accomplish, although, as with other grievors,
there was no detailed mediation immediately following his presenting his statement in the private
- 18 -
hearing. Some accommodation arrangements were reached with the Grievor to try to ameliorate
his situation, pending the resolution of his individual grievance.
[24]The second and third parts of the mediation-arbitration process described in the July 11,
2008 decision took place as described. Several decisions followed the organizational process
described in the third part. Those decisions provided systemic remedies to which each of the
constituencies that made up the Toronto Jail (as described above) committed themselves. Those
decisions are: August 11, 2008 - 2008 CanLII 70513 (ON G.S.B.);November 17, 2008
(unreported); March 27, 2009 (unreported); April 2, 2009 (unreported); June 30, 2009
(unreported); July 15, 2009 (unreported);August 11, 2009 - 2009 CanLII 59134 (ON G.S.B.);
October 20, 2009 - 2009 CanLII 66563 (ON G.S.B.);April 15, 2010 - 2010 CanLII 28606 (ON
G.S.B.); and June 11, 2010 - 2010 CanLII 42113 (ON G.S.B.). The original organizational
decision, to provide systemic remedies, contained 128 objectives to which the parties committed
themselves. These objectives then formed the basis for a series of action plans the parties agreed
upon in order to bring about systemic improvements at the Toronto Jail.
[25]The parties resolved the procedure to be followed for those individual grievances (part
four of the mediation-arbitration process) that could not be resolved during the mediation phase
contemplated by Article 22.16 of the collective agreement. As it turned out, all of 88 individual
grievances were resolved by mediation, save that of Mr. Cox and those that were to form part of
the consolidated grievances of those respectively in Group A and Group B whose claims were
restricted to the impact of working in a poisoned work environment during the relevant period
(2005 to 2008). The agreed procedure was set out in a decision issued on October 29, 2009. It is
to be found at 2009 CanLII 66564 (ON G.S.B.) and reads as follows:
- 19 -
Decision
[1] The Board has been engaged in a process of mediation-arbitration pursuant to Article
22.16 to resolve the individual dimension of the grievances before it in these matters.
Many of the individual grievances have been resolved by agreement between the parties,
but some remain unresolved.
[2] The mediation-arbitration process has been conducted in an expedited manner so as to
obtain an early, effective result. To date there has not been litigation of any of the
disputes. However, the remaining grievances will need to be arbitrated.
>@3XUVXDQWWR$UWLFOH³ZKHQGHWHUPLQLQJWKHJULHYDQFHE\DUELWUDWLRQWKH
mediator/arbitrator may limit the nature and extent of the evidence and will impose such
FRQGLWLRQVDVKHRUVKHFRQVLGHUVDSSURSULDWH´
>@,QWKH%RDUG¶VGHFLVLRQRI-XO\DQREMHFWLYHRIWKHPHGLDWLRQDUELWUDWLRQSURFHVV
ZDVGHVFULEHGDVEHLQJ³WRVHWWOHWKHJULHYDQFHV in a manner that is fair to each grievor,
JLYHQWKHLUSDUWLFXODULQGLYLGXDOFLUFXPVWDQFHVDQGJHQHUDOO\UHDVRQDEOH´7KH
contemplation in that decision was that a brief decision would issue in each case
determining the grievance.
[5] The procedure set out below will apply to those individual grievors who are identified by
the Union as having a claim more substantial than that they were obliged to work in a
poisoned work environment, and whose grievance has not been settled by agreement.
[6] In light of the process already ordered, and having considered the submissions of the
SDUWLHVLWLVWKH%RDUG¶VGHWHUPLQDWLRQWKDWWKHIROORZLQJOLPLWDWLRQVRQHYLGHQFHZLOOEH
imposed and that the following conditions are appropriate for the arbitration of these
grievances:
1) Solely for the purposes of this case, to avoid lengthy litigation, and entirely without
prejudice to any other proceedings, the Employer will accept liability for negligence
resulting in the harm suffered by the individual grievors as described in their
grievances and amplified in their will-say statement. As a result, the Employer will
save the parties from lengthy litigation exploring whether or not the Employer was in
fact negligent, and is in fact liable, and if so, to what extent. It is understood that the
(PSOR\HU¶VDFFHSWDQFHRIVXFKOLDELOLW\DSSOLHVVROHO\IRUWKHSXUSRVHVRIWKH
grievances to be addressed under this procedure.
7KH(PSOR\HU¶VOLDELOLW\ZLOOEHGHHPHGWRKDYHGLPLQLVKHGRYHUWKHFRXUVHRI
and in 2009, given the steps it has taken to improve the work environment, pursuant
the mediation-arbitration process as a whole, over this recent period. To this end the
Employer may submit a will-say statement detailing these steps, not less than 16
working days before the date of hearing.
3) The individual grievors are entitled to update their will-say statements respecting the
personal impact of the letters and other events and in light of events occurring since
their last will-say. These updated will-says will be provided to the Board and to
Employer counsel at least 10 working days prior to the date of hearing. The
Employer will be entitled to respond to thHJULHYRUV¶XSGDWHGZLOOVD\VWDWHPHQWV
with its own will-say statement at least 5 working days prior to the date of the
hearing. There will be no oral evidence with respect to the updated will-say
statements, unless directed by the Vice-Chair.
4) The only evidence will be the will-say statement (as amplified in the private hearings
held already) and any updated will-say statement. There will be no other evidence at
- 20 -
the hearing, save that either party may seek written clarification of an allegation in
advance of the hearing or as directed by the Vice-Chair.
5) In assessing the appropriate remedies to be awarded to an individual grievor, the
Board will take into account steps the Employer has already taken, including any
accommodation of the grievor concerned.
6) At least 10 working days prior to the date of hearing of a individual grievance, the
Union will provide the Employer and the Board with written particulars setting out
the remedies the Union seeks with respect toWKHLQGLYLGXDOJULHYRU¶VJULHYDQFH7KH
particulars will contain an explanation for the remedies claimed, without argument.
7) At least 5 working days before the hearing, the Employer will respond with written
particulars setting out the remedies the Employer submits are appropriate, if any,
XQGHUHDFKRIWKHKHDGLQJVRIWKH8QLRQ¶VFODLP7KHSDUWLFXODUVZLOOFRQWDLQDQ
explanation for the remedies claimed, without argument. To the extent the Employer
relies upon the steps referred to in paragraph 5 above, it will provide details.
8) At the hearing, on the basis of the will-says, private statements, and any updated
will-says, the Union will justify in argument its claims for the individual grievor.
9) The Employer, on the basis of the will-says, private statements, and any updated
will-says, will have an opportunity to respond at the hearing, to justify in argument
LWVUHVSRQVHWRWKH8QLRQ¶VFODLPVIRUWKHLQGLYLGXDOJULHYRU
10) The Union will have a brief opportunity to reply.
11) Following the hearing, pursuant to Article 22.16, the Board will issue a succinct
decision.
[26]Pursuant to this process, the Union provided an updated version of0U&R[¶VRULJLQDO
will-say, amplifying it, and addressed issues that had arisen for him since the first will-say was
provided for his private hearing session. This updated will-say formed the factual basis for the
SDUWLHV¶VXEPLVVLRQVRQWKHPHULWVRIKLVJULHYDnce. The facts were to be understood in the
context of the Employer assuming liability, as described below.
7KH*ULHYRU¶V:LOOVD\6WDWHPHQWV
[27]7KH*ULHYRU¶VZLOOVD\VWDWHPHQWRI-DQXDU\22, 2010 provides the basis of his claim. (It
XSGDWHGWKH*ULHYRU¶VHDUO\ZLOO say statement of May 16, 2008, which I refer to below).The
Grievor describes his employment by the Ministry from November 2001. Prior thereto he
- 21 -
DWWHQGHGWKH0LQLVWU\¶VWUDLQLQJFHQWUHWKHQNQRwn as the Bell Cairn Staff Development Centre,
where in 2001 he received an Outstanding Student award. He completed the Correctional Worker
program and COSTART test at Loyalist College in Belleville. He started with the Ministry as an
unclassified Correctional Officer. He first worked at the Toronto Youth Assessment Centre
(TYAC). He became a classified Correctional Officer in March 2006.
[28]7KH*ULHYRU¶VH[SHULHQFHDW7<$&ZDVSOHDVDQt. He describes a nurturing environment
in which management had a pro-active, open door policy that encouraged staff to freely express
concerns and ask questions. Policies and procedures were firmly enforced. Mr. Cox appreciated
his experience at TYAC.
[29]TYAC closed and with other staff Mr. Cox was transferred to the Toronto Jail in July
2004. Mr. Cox describes his initial experience of the Toronto Jail as hostile and chaotic. He
perceives there to have been preferential treatment for the Toronto Jail incumbents because
unclassified employees from TYAC achieved classified status after those from the Toronto Jail
with lesser seniority. He describes that existing officers at the Toronto Jail saw the former TYAC
officers as stealing their overtime and smuggling drugs into the jail. A General Duty Manager
UHIHUUHGWRWKHIRUPHU7<$&RIILFHUVDV³FUDFNKHDGV´7KDW0DQDJHUDSologized to the TYAC
officers, but did not make a public apology at muster, as requested by the TYAC officers.
[30]Mr. Cox says he witnesses 3 or 4 incidents of racist graffiti in 2004 in the Toronto Jail, in
areas to which inmates did not have access. He says there were several other instances, but he
did not see them because management had them removed and painted over. He recalls one
JUDIILWLVD\LQJ³1LJJHU´DQGDQRWKHU³%ODFN%LWFK´6HYHUDOPHPRUDQGDZHUHVHQWE\
- 22 -
management to staff reminding them that that the workplace had a zero tolerance policy towards
discrimination.
[31]Mr. Cox felt that management was not very proactive regarding what he saw as the
blatant racism of the graffiti. He felt the investigations being conducted by management were
not transparent. He thought the Ministry was painting over the graffiti to clean up the evidence
of what he refers to as racial discrimination.
[32]In November or December 2004, an OM16, summoned the Grievor into his office and
warned the Grievor to stop bringing drugs into the jail. (It bears noting that I do not have the
20¶VUHVSRQVHWRWKLVDOOHJDWLRQ*LYHQWKHPDQQHr in which this case has been conducted, the
*ULHYRU¶VDFFRXQWKDVEHHQDFFHSWHGDVWUXHDQGDccurate). Mr. Cox denied the accusation, but he
found it unnerving because it was devoid of any truth. It was later discovered that two other
correctional officers were the real culprits. They resembled the Grievor inEHLQJPDOH%ODFN¶
´WDOOPHGLXPEXLOGDQGVKRUWKDLUFXW7KHGrievor interpreted the misunderstanding as being
the result of rumour and some hostility within the jail. The Grievor was understandably insulted
E\WKH20¶VPLVWDNHQDQGXQMXVWDVVXPSWLRQWKDWhe was the culprit. He had no prior record
of poor performance and nothing suggested he might be involved in illegal activity. The Grievor
was particular hurt because the OM16 concerned had been helpful, welcoming and encouraging
when the Grievor had first been transferred to the jail.
[33]On May 24, 2005 the Grievor had an encounter with the then General Duty Manager
*'0
$VDERYH,GRQRWKDYHWKH*'0¶VUHVponse to this allegation. Given the manner in
which this case has been conducted, the GrieYRU¶VDFFRXQWKDVEHHQDFFHSWHGDVWUXHDQG
- 23 -
accurate). A clock device was used to assist in the timely completion of checks of the units. The
FORFNUHFRUGVDUHVHQWWRWKH*'0¶VRIILFH7Kat morning the GDM accused the Grievor of not
completing his unit checks. He directed the Grievor towards a back corridor. There the GDM
spoke to the Grievor in a way that made the Grievor feel humiliated, by using a loud and
aggressive tone and shoving a printout of thHFORFNUHFRUGVGRZQWKH*ULHYRU¶VVKLUW7KH
Grievor felt violated and abused. The Grievor spoke of the matter to an OM16 who advised him
not to pursue it. The Grievor followed this advice, though later regretted it. As a result,
management never learned of the inFLGHQWXQWLOWKH*ULHYRU¶VZLOOVD\
[34]By this time, May 2005, the threatening letterVKDGVWDUWHG2QH&2¶VYHKLFOHKDGEHHQ
vandalized. Although the Grievor was not a recipient at this point, he records he felt threatened
and distrustful of his colleagues, his superiors and the institution. The Grievor describes a toxic
milieu within the workplace. He considered pursuing an alternate career to become a teacher, and
began taking part-time courses at York University. It was in these circumstances that the
Grievor filed the grievance, on October 20, 2005.
[35]In 2006 the Grievor noticed scratches on his car when he returned at the end of his shift,
likely from a key. The Grievor told the Security Manager of this. He says the Security Manager
was indifferent. According to the Grievor, the Security Manager told him not to file an
occurrence report because others were experiencing similar vandalism to their cars. The Grievor
did not file an occurrence report.
[36]The Grievor felt he was being targeted. He had spoken openly of his passion for his car
and he saw its vandalization as deliberately intended to hurt him.
- 24 -
[37]On April 8, 2006, after completing his shift and going to his car, which was the only one
in the lot, the Grievor found it covered in scraps of food and garbage, from hood to trunk. The
adjacent garbage bin was empty. It appeared as if someone had dumped the garbage over the car.
Animals, attracted to the garbage, had left paw prints and scratches on the car.
[38]The Grievor reported the vandalism the next day. He provided three photographs of the
damage. The Grievor says that the Deputy Superintendents disputed it was vandalism. They
suggested animals might have dragged the garbage onto the car. The Grievor inquired why there
was no video surveillance of the parking lot, or other protective measures, like fencing. A
Deputy Superintendent explained that the lot did not belong to the Ministry. The Grievor filed an
occurrence report. The Grievor became vigilant at checking his car each time he left work. This
incident, he says, elevated his paranoia.
[39])URPDERXWWKLVWLPHWKH*ULHYRU¶VZHLJKWEHgan to fluctuate and he began to experience
problems sleeping. He had feelings of paranoia. He was concerned for his safety.
[40]On June 5, 2006, the Grievor found a vehicle had hit, dented and scratched the front right
bumper of his car. There appeared to be red paint on the dent. Although the lot was full (so the
damage might have been the result of a bad manoeuvre), the Grievor was convinced the damage
was deliberate and motivated by racial hatred. The Grievor reported it to the Deputy
Superintendent. He was sceptical and inquired if it could have occurred elsewhere. The Grievor
checked his car whenever he used it and was certain the damage was done in the jail parking lot.
The Grievor filed an occurrence report. Nothing came of it.
- 25 -
[41]What the Grievor saw as repeated vandalism to his car caused him great stress and
anxiety. He installed a security system which cost him $650. He claims this amount as part of his
damages.
[42]$IWHU-XQHWKH*ULHYRU¶VVLFNWLPHXVDJHFRQWLQXHGWRULVH
[43]An incident occurred on August 11, 2006. A call was made from a unit in the jail to the
20LQWKH*'0¶VRIILFH7KH*ULHYRUZDVZLWKKLP7KHFDOOHUZKRPWKH*ULHYRULGHQWLILHG
(the Grievor had previously had an altercation with him and they were not on speaking terms),
VDLG³EODFNFRFNVZKLWHVHPHQ´UHIHUULQJGLsparagingly to the Grievor and a former CO,
Zemen. The OM phoned back and requested a report.
[44]The Grievor felt the call was a direct racial attack on him. The incident left him feeling
shaken and distraught. He left work early that day. He called in sick on the two remaining days
of his shift.
[45]The Grievor reported for work on August 17, 2006 and filed an incident report. The
report was treated as a complaint (CIN-2007-OT-12) under the MiQLVWU\¶V:RUNSODFH
Discrimination and Harassment Prevention (WDHP) policy. The outside investigator made a
ILQGLQJRQ$XJXVW
- 26-
said she would have her designee hold a meeting with the respondent so that "appropriate action
could be taken". To the Grievor's knowledge that did not occur.
[46] As an aside, I note a concern I have had with the Ministry's disciplinary processes in
addressing the systemic issues in the Toronto Jail. Out of respect for the privacy of individuals
being disciplined, the Ministry has had the policy of not advising the complainant of the outcome
of the complaint when, in fact, some disciplinary action was taken. This had the effect ofleaving
the complainant feeling that nothing had been done when, in fact, something had been done. The
Grievor's experience of the outcome of the investigation is consistent with this. The individual
was in fact disciplined, unbeknownst to the Grievor. In my view, transparency in the
administration of discipline, when an employee complainant is interested in the outcome, would
be a preferable policy. Informing the complainant of the outcome should, in my view, trump any
concern for the privacy of the employee who caused the offence warranting discipline. The
impact of justice being seen to be done justifies overriding the concern for the sensibility of the
individual who received the discipline.
[47] The Grievor was suspicious of the timing of the Deputy Minister's letter to him. It
followed a much publicized protest outside of the Toronto Jail by racialized officers against
racism with the jail.
[48] On August 22, 2006, soon after the August 17 incident, the Grievor saw his family
physician. His anxiety and paranoia were compounded by other physical symptoms like loss of
appetite, extreme weight fluctuation and difficulty sleeping. The doctor found the Grievor's
blood pressure had increased to a dangerous level. The Grievor was prescribed medication to
- 27 -
reduce his blood pressure, to relieve his anxiety, to help him sleep and to better cope with his
workplace environment. The doctor recommended he take a 6-month leave of absence and that
he seek counselling to cope with the stress.
[49] Following this advice, the Grievor filed a claim for WSIB benefits for stress leave. The
claim was denied. The Grievor says he was mentally unable to work so he took leave, using sick
day credits, vacation days and lieu time.
[50] Against his doctor's recommendation, and despite his own belief that he was not ready to
return to work, the Grievor went back to work in December 2006, after being off from August
22. He needed his salary. The choice the Grievor faced, as he saw it, was between taking a
financial loss or restoring his mental well-being. He discontinued his York University studies
because of his financial circumstances.
[51] On the Grievor's return to work, he indicated his preference to work exclusively in
Admitting and Discharge (A&D), an open workspace with 10 or more staff. He was granted an
accommodated position in A&D. The Grievor worked there, without particular incident, until
January 2008.
[52] On January 9, 2008 the Grievor was advised that another racist letter had been received.
The Grievor was shown the portion that had a reference to him. It read, "Watch it, Cox". The
Grievor saw the entire letter the next day. The Grievor discovered that management had had the
letter since December 27,2007. He is offended that 14 days passed before he was advised of the
letter, during which time he was, he believes, susceptible to potential threat when he would not
- 28 -
have been prepared to face any harm. The Grievor refers to the looming possibility of a new
threat as a direct impingement on his human rights.
[53] The Grievor returned to work on January 15,2008. He worked for less than two weeks.
His last day of work was January 29,2008, when he started a paid leave of absence. He did not
return to work again.
[54] The Grievor takes issue with the request by the Ministry that he provide medical
documentation to support his continued absence from work. His principal argument is that he is
"a victim of ongoing racist threatening acts which have left me with an unsafe poisoned work
environment, not because of medical reasons".
[55] The Grievor is scared not only for himself, as a result of the threatening letters, but also
for his mother, who shares his name.
The Emplover's efforts to restore the workplace
[56] The Employer responded in several ways to the deteriorating situation in the Toronto Jail
following the first appearance of the hate mail in early 2005.
[57] Employer counsel argues that, while the Employer's initial reaction in retrospect may not
seem sufficient, in the context it was reasonable. Over time, the Employer stepped up its efforts
to make the workplace a more suitable place within which to work.
- 29-
[58] The Employer's efforts are found in five areas: assistance to staff directly affected by the
hate mail; changes in mail procedure and security upgrades; communications with staff; actions
and improvements to the work environment; and police and CISU (the Ministry's internal
criminal investigation division) investigation of the hate crimes.
Assistance to staff directlv affected bv the hate mail
[59] When the first letters came in the recipient was offered the Employee Assistance Program
(EAP) and given assistance in filing a Workplace Discrimination and Harassment Prevention
(WDHP) complaint. The police were alerted from the first letter received, on January 13, 2005,
and they were contacted with each letter thereafter. Their ongoing investigation began after the
first letter.
[60] Since October 2006, the police have done a threat assessment after each letter has been
received. Safety plans were instituted for each recipient of the hate mail. As of November 2006,
the Ministry offered to provide and pay for the installation of a home security system, with
monthly coverage for 6 months, of each of the letter recipients. Cell phones were proved to the
recipients and to members of their families with special 911 priority features, at the Ministry's
expense.
[61] Letter recipients were issued with taxi chits for an extended period, paid by the Ministry,
so that they could travel to and from the institution without using public transport where they
might be vulnerable to attack.
- 30 -
[62] Considerable efforts have been made by the Ministry to assist the individual letter
recipients with a view to having them return to work. Settlements have been reached of their
individual claims. Many have had the opportunity to explore and obtain different positions
within the Ministry and to advance their careers. There have been various initiatives by the
Ministry to accommodate the letter recipients so that their transition back into the workplace has
been as successful as possible. In addition the Ministry, through the Board, has appointed a
Deputy Superintendent of the Toronto Jail whose function it is to ensure the implementation of
the systemic remedies the Board has directed and to liaise with those who have been victims of
the letter writing to address their concerns as they arise. The Return to Work agreements
reached between individual letter recipients, the Union and the Ministry are individualized,
designed to address the particular needs and concerns of the affected individuals.
[63] All of the above was offered to the Grievor after he received the hate mail described
herein.
Changes in mail procedure and security upgrades
[64] Improvements to mail reception at the jail have been ongoing. Initially, in early
September 2005, the mail procedures were changed. The Ministry ensured that all mail sent to
the jail would first be sent to the security office for review, to identify any suspicious letters.
[65] By November 2007 the mail protocol had changed so that no suspicious letter was
opened at the jail. It was immediately put in a sealed container and taken to the police where it
could be opened without prejudicing the forensic investigation.
- 31 -
[66] Since then the system has been steadily improved, culminating in the Suspicious
Mail Protocol developed by the parties, described above.
[67] A security review was done of the Toronto Jail on January 23, 2008. As a result of
that review and further investigation, the Ministry invested heavily in significant security
improvements to the jail. The quality and number of closed circuit security cameras were
improved in the facility. There were originally 8 cameras, there are now 60. The security
of the parking lot has been much improved. Fencing has been erected with an electric
gate, and security cameras. Nobody can walk into the lot without an access pass. Metal
detectors have been introduced at the institution, including two Boss Chairs, which are
particularly sensitive detectors. An x-ray machine and a narcotics detector have been
purchased and introduced at the Toronto Jail. Additional portable radios are available for
staff, changes have been made to the visiting area, the admitting and discharge area has
been renovated, and a new Keywatch or control system has been put in place.
Communications to staff
[68] Since the first hate mail was received, the Superintendent of the jail has issued memos to
staff letting them know what was expected of them, of zero tolerance for racism, and of support
for the victims of the hate mail. There is a steady stream of communications from the
Superintendent to the staff on these matters, asserting the need for tolerance, eschewing racism
and hate speech, and urging all to come forward with information that might lead to the arrest of
the perpetrator(s) of the hate mail.
- 32 -
[69] In September 2005 the Deputy Superintendent held a town hall meeting to try to address
the rifts that had developed in the jail as a result of the anonymous hate mail.
[70] In the period between September 2005 and March 2008 multiple memos were issued to
staff reiterating the need for mutual respect in the workplace, the rights of employees to work
free from discrimination and harassment, the obligations of staff towards their fellow employees
and many other topics aimed to restore respectful relationships within the workplace. The
Ministry facilitated the Toronto Jail Workplace Restoration Committee that aimed to combat
racism within the workplace. During 2006 focus groups were established to help accomplish a
workplace free from discrimination and harassment with outside facilitators to assist the process.
[71] On February 19,2007 the Superintendent issued a memorandum to all staff to advise that
they should cease all rum our, innuendo, speculation and gossip in the workplace. The
memorandum was read at muster until March 2, 2007.
[72] In the course of the Ministry's efforts, the Toronto Jail Local Systemic and Anti-Racism
Organizational Change Committee (LSAROCC) was established in June 2007. The members of
the committee were given a three-day intensive training course with the aim of developing a
values statement for the jail to bring about a workplace free from harassment and discrimination.
[73] On January 15,2008, the Superintendent issued ajoint statement with the Local Union
President which was read at muster for 10 days. It advised the staff of the anonymous letters that
had been received (including that in which the Grievor is mentioned). The joint statement called
- 33 -
on each employee at the Toronto Jail to continue to support the victims. It condemned the hateful
behaviour of the letter writing. It called on employees to report any information they had to those
investigating the hate crimes. The statement ended with the Local Union President and the
Superintendent condemning all acts of hate, discrimination and harassment in the workplace, and
reaffirming their support for all the victims and their commitment to a positive, productive and
inclusive workplace.
[74] Mr. Steve Small, now an Assistant Deputy Minister, was the Acting Superintendent of
the Toronto Jail from April 2008 until September 2008 when he was promoted. He saw his
mandate as restoring the workplace. He worked with staff, committees and the Organizational
Effectiveness Division of the Ministry to improve issues of race, workplace wellness, personal
safety and management responsiveness. He brought some stability to the Toronto Jail by
addressing operational concerns at the institution and by being an active, ever present manager of
the institution. He expanded contact with the staff, improved security and promoted discipline
and pride for the workplace. Many memos were issued to staff to guide their behaviour and to
promote racial tolerance and to eschew discrimination and harassment.
[75] When Mr. Small was promoted, the new Acting Superintendent, Pauline Jones, continued
and expanded the initiatives that had been undertaken. She too conducted very regular tours of
the jail, making her authority felt within the institution. She continued to supervise the
restoration process that the Employer and the Union had undertaken.
[76] The areas improved during Ms. Jones's tenure were the following: suspicious mail
handling; union-management collaboration; recruitment, orientation, promotion and training;
- 34 -
hospitable workplace improvements; conflicts, complaints, investigations and discipline; and
operations and safety.
[77] The efforts of the Regional Director, Mike Conry, have been similarly directed towards
improving the Toronto Jail workplace and accommodating those who have been the victims of
the letter writing campaign.
[78] Many of the efforts at improvement have involved the Union, either in the planning stage
or in the implementation.
Actions and imvrovements to the work environment
[79] From September 2006 to February 2008 the Acting Superintendent, Mark Parisotto, was
responsible for removing graffiti from the institution. He ensured that photographs were taken of
the graffiti before it was removed. A fact finding investigation was initiated. There was rarely
sufficient evidence to identify the individual responsible.
[80] Between September 26,2006 and February 21,2008 there were at least 10 separate
occurrences of graffiti / poster defacement reported. The graffiti was photographed and removed.
EAP support was offered. Mr. Parisotto issued a memorandum calling for an end to the graffiti
writing and defacement, threatening serious discipline.
[81] No new graffiti has been seen in the jail since April 2008.
- 35 -
[82] Improvements have been made to the female locker rooms. Greater social interaction has
been promoted by the Employer. Efforts have been made to clear the grievance backlog.
Managers have been trained in conflict resolution. A WDHP database has been created so that
management may monitor the complaints more effectively and ensure that complaints are
resolved in a more timely manner than has been the case hitherto.
[83] All of the lockers in the institution were replaced. (Previously some of the lockers had
graffiti, but it had been removed prior to the replacement of the lockers).
Ministrv CISU and volice investif!ations
[84] When the first letter came in, the police were immediately involved. Since then
suspicious letters have always been delivered to the police for investigation. The Toronto Police
Service has an ongoing investigation. The Ministry's CISU investigation was initiated on March
9,2007 under s.22 of the Correctional Services Act, in considerable measure because of
demands by the Union for an investigation. The Ministry has also offered to conduct an
independent review of the investigations to date.
[85] Thus, much has been done by the Ministry to try to improve the situation at the Toronto
Jail and to make it a more respectful place to work, free from racism, discrimination and
harassment.
Specific allegations bv the Grievor
- 36 -
[86] As regards the specific allegations made by the Grievor, the GDM apologized to the
former TY AC staff for his inappropriate comments about them.
[87] Preventive measures have been taken against graffiti in the workplace that appear to have
been successful.
[88] As regards the manhandling incident by the GDM against the Grievor, the Employer
correctly points out that the incident occurred approximately five years ago and the Grievor had
an opportunity to report the matter at the time, but chose not to. This meant that the Employer
had no opportunity to address the issue then.
[89] As regards the damage to the Grievor's car, Employer counsel argues there is no
evidence the damage was connected to a racist incident. Counsel contends that the jail parking
has limited capacity, staff members double park and there is a good chance that the dent and
scratches were purely accidental.
[90] The Ministry advises that the employee, who made the inappropriate comment regarding
the Grievor and was the subject of the WDHP investigation, has been disciplined. H was
suspended without pay for 3 days.
The merits of the 2rievance
[91] The facts on which the Grievor's claims damages against the Employer are the following.
[92] The Grievor relies on the early incidents described above, in the period between 2004 and
- 37 -
2007. In the Grievor's early will say, of May 16,2008, he explains the conceptual value of
Critical Race Theory. He describes the general principles of the theory, how overt discrimination
occurs in hiring decisions, in job opportunities and pay, in promotions and disqualification. The
points the Grievor makes are taken from the theory, rather than from any facts drawn directly
from the Grievor's experience in the Toronto Jail. The Grievor refers also to covert forms of
discrimination. His will say provides evidence of this form of discrimination in his personal
experience: derogatory or offensive jokes or teasing; insults, taunting or slurs; unwelcome
physical contact; and display of written material that is derogatory.
[93] The Grievor's first direct experience of these events was on December 27,2007, nearly
three years after the first anonymous racist letter was delivered. This was the 29th letter in the
sequence ofletters, starting from January 15,2005. The letter is in much the same vein as those
issued previously: racist, abusive, threatening and filled with insults and expletives. It reads as
follows:
~
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, ~
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~~WiiS
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:;:.~ z .
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" "'"'
- .
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..... .
'.:;'"
. -
~
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.,
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~
i'j
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'!r'"
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~
;-r:;"
--
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- 38 -
[94] The reference to the Grievor appears as a stamp on the letter, "watch it Cox".
[95] Union counsel points out the distinctive features of this letter. The death threats are
explicit. There is reference to locations outside of the workplace where the letter recipients
might be vulnerable to attack. The same letter was addressed to 10 racialized officers of the
Toronto Jail, Mr. Cox among them. Previously each letter had been addressed to one individual
only. Mr. Cox was told on January 9, 2008 of the jail receiving the letter.
[96] As a consequence of receiving this letter, the Grievor went briefly on sick leave, and then
on a paid authorized leave of absence. He was to continue to receive his full salary, plus the
average of his overtime as top-up, during the period of the leave without the need to establish a
medical basis for the leave. This was part of the Employer's accommodation of the Grievor to
assist him to deal with the impact of receiving the threatening hate mail. The Grievor has not
returned to the workplace. His last date of actual work was on January 15,2008. He was to
continue to receive his full salary and overtime top-up until October 8, 2009. I denied the
Union's request for continuation of his salary beyond this date. (See, in this regard: Ontario
Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2009
CanLII 59458 (ON G.S.B.)).
[97] In June 2008, the same group of 10 racialized officers received another letter, Mr. Cox
among them. This was hate mail No.35, addressed to the then Superintendent, Steve Small, now
Assistant Deputy Minister. Mr. Cox is mentioned specifically. He was among the racialized
officers who was on a paid leave of absence mentioned as being away from the workplace. The
letter reads as follows:
- 39 -
[98] This vile letter accuses the Grievor and others of being drug pushers in the jail. It
threatens to kill those racialized employees who are not subservient and compliant.
[99] In October 2008 the 36th letter was sent to a racialized female employee at the Toronto
Jail. The Grievor is referred to in this letter, among those told to leave the jail. The letter reads:
- 40-
[100] Other letters have had threats against racialized staff returning to the Toronto Jail. The
Grievor sees himself as being subject to these threats were he to return to the work in the jail.
The Grievor asks for a remedy that places him in a location other than the Ministry. Union
counsel argues this request is an understandable, reasonable, and justified response from
somebody who has been the target of the unbelievably vile, racist, threatening letters. Union
counsel contends that it is completely proper for someone to say, "I am not going to take the
chance, I shouldn't have to put in harm's way".
- 41 -
[101] Union counsel relies on Greater Toronto Airports Authority v. Public Service Alliance
Canada, Local 0004 (C.B. Grievance) (2010), 191 L.AC. (4th) 277 (Shime), [2010] C.L.AD.
No. 127, in which substantial general damages were awarded. Counsel argues that case and
Charlton, above, in which one letter was received, not several, as here, should guide the amount
of damages. As in the Greater Toronto Airports Authority case, where the grievor's experience
of the workplace was so tainted by the employer's conduct that she could not reasonably be
required to return, Union counsel argues that the Grievor should be entitled to remain away from
the Toronto Jailor another correctional institution and receive a salary until such time as the
Employer can provide suitable alternative work in the OPS, or, once a safe and healthy
workplace in the correctional institutions, free from racism, discrimination and harassment, is
fully restored.
[102] The police have not yet arrested anyone for being the letter writer. They continue to
investigate. The letter writer is therefore still at large, and has been for the past five years. The
threats are severe, though they are not necessarily realistic. Precautions have been taken. Almost
all of the employees who have received or been referred to in the hate mail have returned to the
workplace, either at the Toronto Jailor at another correctional institution. Barring a confused
event early in 2005, the provenance of which is uncertain and does not bear on this case, it seems
that no-one has been harmed. One cannot, of course, predict the risk, but it does not appear to be
real or imminent.
[103] Union counsel is correct in his contention that there is no guarantee that the letters will
not continue. However, important steps have been taken by the Employer over the past two and
a half years, at the prompting of the Union, in part through the processes described above, to
- 42-
reduce the effects of the poisoned work environment that prevailed in 2005 and to restore a safe
and respectful workplace at the Toronto Jail. The steps are described above and are more fully
described in the series of Board decisions on systemic remedies in the jail, referred to above. The
result is a workplace that is significantly more supportive of those receiving hate mail, and better
able to detect and respond to discriminatory or harassing behaviour.
[104] By the time Mr. Cox became the recipient of the racist hate mail the jail had in place a
protocol for handing the mail. It was a unilateral procedure established by the Ministry with
many of the features of what later became the suspicious mail protocol described above. In
summary, the suspicious mail was immediately taken to the Toronto Police Service. The police
investigated the mail. The addressee on the letter was notified of the letter by the jail
Superintendent and was given the opportunity to obtain assistance from the Ministry, including
paid time offwork. A security system at the employee's home was offered. Of those who chose
to return to work, some were given taxi chits so that they were not exposed to potential harm on
public transport. Those who returned to work had liberal opportunities to leave the workplace if
they felt stressed being there.
[105] In his will say the Grievor takes issue with the organizational process conducted between
the parties in July 2008. He suggests that no real effective organizational change resulted from
the meetings. The Grievor makes this observation despite not being back in the workplace at any
time to assess the situation first hand since the organizational process occurred and its action
plans have been implemented. The Grievor has this negative view of the workplace,
notwithstanding the substantial changes brought about since 2008 and implemented by the
Employer, described above.
- 43 -
[106] The Grievor's assumption is that he cannot return to the workplace because it would be
unsafe for him to do so. Not only this, he cannot return to any Ontario jail run by the Ministry
because it would be unsafe for him to do so. This assumption informs the relief he requests,
which is to remain on full pay with the Ministry until some uncertain moment in the future when
the workplace will again be safe for him to return. He bases this view on his experience in the
Toronto Jail until his last day of work in January 2008, and on what his friends have told him of
conditions within the jail. He was invited by the Ministry to visit the six other institutions in the
Ministry's Central Region. This was referred to in ~21 of the decision issued on September 25,
2009:
[21] In any event, the Employer has tendered to the Grievor, without prejudice to its rights
on the merits of the grievance, to accommodate the Grievor in his current position as
a C02 in any of the six other institutions in the Ministry's Central Region pending
the determination of the grievance. The Employer has said to the Grievor that, if he
feels unsafe returning to work at the Toronto Jail, he may work as a C02 at any of
the following institutions: Maplehurst Complex, Vanier Centre for Women, OCI,
Mimico Correctional Centre, Toronto West Detention Centre or Toronto East
Detention Centre. Furthermore, the Employer has given the Grievor until October 8,
2009 to tour these facilities to determine which he might choose to work in pending
the outcome of his grievance. The Employer has made clear, though, that if, by
October 8, 2009, the Union fails to notify it of the Grievor's intention to return to the
Toronto Jailor to one of the six alternative institutions offered to him, he will be
deemed to be on a leave of absence without pay pending disposition of his grievance
at arbitration.
[107] The Grievor chose not to avail himself of the opportunity to personally check the other
six institutions in order to formulate a personal opinion on the working conditions in those
facilities. Instead, the Grievor has steadfastly stuck to his opinion that it is unsafe for him to
work within any of the institutions of the Ministry's Central Region.
[108] Since July 2008, the parties have agreed upon, or have been ordered to implement, a large
- 44-
number of organizational initiatives and changes in order to ensure on an ongoing basis, that the
work environment is fair, respectful, efficient and free from discrimination and harassment. A
long series of decisions has been issued documenting the compliance requirements. These
decisions have recorded the progress made by the parties to implement the many objectives they
agreed upon, or were required to adopt, and the action plans they undertook in order to
accomplish those objectives. The Ministry has, in large measure, complied with the orders in a
timely fashion and, to the extent there was not timely compliance, further orders were issued that
ensured compliance.
[109] The result of the organizational processes the parties under took (and the decisions that
required implementation of the organizational improvements) has been a concerted advance by
the parties to achieve the aim of a work environment that is safe, fair, respectful, efficient and
free from discrimination and harassment. The Toronto Jail now is a different place from what it
was in January 2008, when the Grievor last worked there. He has no experience of these
changes, and appears to be unwilling to experience them to satisfy himself that he can work
safely again within the institution.
[110] The Grievor expresses the opinion in his later (January 22, 2010) will say that "the
Ministry has not taken any real action or shown any real commitment to actually addressing the
problems in the workplace." The Grievor draws the conclusion from this that, if he were to return
to work, he would be returning to a poisoned work environment in violation of his human rights.
[111] The Grievor's assumption is far from accurate. The Ministry has taken considerable steps
since 2008. It has spent significant public resources on restoring the workplace at the Toronto
- 45 -
Jail and turning it from a poisoned work environment to one that is safe and respectful of those
who work there. This is evidenced in the many decisions issued concerning the implementation
of the parties' organizational initiatives. It is also evident from the appointment of a new, full-
time, permanent Superintendent who is committed to workplace restoration.
[112] Recognizing that a CO's job is inherently more hazardous than most other jobs in the
Ontario Public Service, for the primary relief the Grievor seeks he must show that there is a real
or serious possibility of harm: OPSEU (Taylor-Baptiste) and The Crown in Right of Ontario
(Ministry of Correctional Services), GSB No. 469/88, August 17, 1992 (Dissanayake). Despite
the uncertainties surrounding the threats from the letter writer, the Grievor has not established
this.
[113] The Grievor's will say also makes clear that he has no further interest in working for the
Ministry. He has become demoralized and he has lost his faith and interest in the Ministry. As
he says, "I no longer want to be a part of the Corrections family and wish to discover an
alternative career path".
[114] In determining whether the Toronto Jail and the other workplaces of the Ministry within
the Central Ontario region are suitably safe for the Grievor to return, I must have regard to the
circumstances in those workplaces, particularly in the Toronto Jail, the Grievor's place of work.
The disillusionment by the Grievor with the Toronto Jail and the other Ministry workplaces - his
desire to leave Corrections - is not an appropriate consideration in deciding the question. What
matters is the state of those workplaces, not the Grievor's changed desire for his future career.
- 46-
[115] Union counsel explains that the Grievor does not seek an accommodation. This is not an
accommodation case. The Grievor seeks an order that he work elsewhere within the OPS, outside
of the scope of the Ministry, because he says the various correctional institutions are poisoned
work environments, characterized by racism and discrimination, and he cannot safely return to
any of them.
[116] In the decision issued on September 25,2009 concerning the Grievor, I was not
persuaded by the Union's argument that the Grievor could not work in any of the correctional
facilities in the Ministry's Central Ontario region. I am clearer now than then that the argument
is based on inaccurate and, with respect to the Toronto Jail, dated information. I am therefore
unwilling to grant the primary relief sought by the Grievor, that he be accommodated for a
different career path in another Ministry. The evidence confirms that the Grievor may safely
return to any of the Ministry's Central Ontario region institutions. He can work suitably within
any of them.
The Emplover's assumption of liability and dama2es
[117] The Employer has assumed liability, described in the decision of October 29,2009, as
follows:
Solely for the purposes of this case, to avoid lengthy litigation, and entirely without prejudice to any
other proceedings, the Employer will accept liability for negligence resulting in the harm suffered by
the individual grievors as described in their grievances and amplified in their will-say statement. As
a result, the Employer will save the parties from lengthy litigation exploring whether or not the
Employer was in fact negligent, and is in fact liable, and if so, to what extent. It is understood that
the Employer's acceptance of such liability applies solely for the purposes of the grievances to be
addressed under this procedure.
- 47 -
[118] As part of the process of restoring reasonable and respectful relationships in the jail, the
parties put aside a combative, litigious process of resolution. Their efforts were aimed at justice
for each individual and towards the resurrection of decent, professional work standards among
the correctional officers and other employees. To these ends, the Employer was willing to agree
that the Union did not have to prove the Ministry's liability for damages.
[119] However, the Employer's liability was not to be absolute. As Employer counsel quite
correctly point out, the Employer was not the letter writer. It did not create the havoc in social
relations in the jail. It may not have responded in the comprehensive manner it did from 2008
onwards, but the substantial cause of the harm within the jail in the relevant period - 2005 to
2008 - was the continued letter writing. The letter writing was not only the principal cause of the
disturbance in social relations at the jail, it was also an ongoing, unpredictable, though serious,
disruption of the relative calm periodically established within the j ail. The letters disturbed the
good-willed, though insufficient, efforts by the jail management to redress the situation. In
hindsight, the Employer could have handled the receipt of the hate letters better than it did; it
could have better prepared the staff for the troubling impact of the letters. The Ministry could
have been more sensitive to the needs of the recipients of the hate mail, recognizing the different
reactions they had to the letters, by responding individually and appropriately. It could have done
better, but, fundamentally, it was not the letter writer. It was not the main cause of the harm. It
does not bear the full or even the substantial load of the harm that applies in the situation. Its
liability is for its negligence in its handling of the disturbing situation, caused primarily by an
unknown perpetrator.
[120] The Employer's negligence liability has two aspects. The first is its responsibility for the
- 48 -
circumstances that prevailed in the Toronto Jail at the time the series of letters began. The Union
contends that the Employer's ad hoc responses to acts of racism and to bullying within the jail
were insufficient. The Union says the Employer's failure to act decisively to halt any harassment
or discrimination within the jail enabled the letter writer. The Union's argument is that the
Employer's inadequate response to the situation of division in the jail in early 2005 created the
environment in which someone felt sufficiently empowered to begin writing the appalling letters
that were to be received by some of the racialized staff in the jail.
[121] The second aspect of the Employer's liability, in the Union's submission, is the
inadequate response by the Employer to the hardships faced by those who received the hate mail.
[122] There is substance to both submissions. From the information provided, much of it the
historical impressions and memories of those who worked in the jail during early 2005 and
thereafter, it seems that the Employer could have been clearer in its denunciation of any acts of
racism or unprofessionalism by its correctional staff. It might have acted more firmly in
stamping out acts of aggression and abusiveness. Similarly, in the immediate period following
the first spate ofletters in 2005, it could have been more responsive, more individually attentive,
to those who had received the hate mail. Management's skill and sensitivity in handling the
incoming hate mail got better as time passed and as it became more familiar with what to expect,
but there were deficiencies and inadequacies in the early stages that rebounded on the individuals
receiving the letters. So, in both respects, I find there is some responsibility on the part of the
Ministry.
[123] However, in order to make a fair assessment of the extent of the Employer's liability, it is
- 49-
necessary for me to evaluate the harm suffered by the Grievor occasioned only by the
Employer's negligence - its failure to respond adequately to what happened to him in the
worsening situation in the jail in 2005 and thereafter until 2008 when clear steps were taken by
the Employer to confront what had become a poisoned work environment. This liability is to be
distinguished from the letter writer's provocation of fear and animosity among the employees at
the Toronto Jail. Whatever damages the Grievor is entitled to receive as a consequence of the
harm to him, the Employer is liable only for its negligence in relation to that harm.
[124] The letters to the Grievor were received a long time into the period of the letter writing.
Those who received the letters in 2005 suffered considerably - the Employer's support was not
in place, the letters were a horrible novelty, there was no clear expectation as to the likelihood of
harm, each individual recipient was much more on their own in handling the threat made to them
in the letter than was to be the case later. The situation had improved significantly by the time
the Grievor received his first letter in late December 2007. By then the Employer had in place a
procedure for accommodated paid leaves of absence, which the Grievor utilized. The Employer
provided a home security system, although the Grievor did not avail himself of it. The Employer
responded quickly to the Grievor's circumstances. The Employer's prompt efforts to ameliorate
the impact of the hate letters on the Grievor serve to limit the damages he is entitled to receive.
[125] Union counsel relies on Charlton v. Ontario (Community Safety and Correctional
Services), 2007 CanLII 24192 (ON P.S.G.B.). Union counsel argues that the circumstances in
this case are more egregious than in Charlton and that the damages for the Grievor should be
higher. That case arose also from one anonymous threatening letter received at the jail. Ms.
Charlton was the recipient of a vile, threatening anonymous letter, set out in that decision.
- 50 -
[126] In Charlton the Public Service Grievance Board found, as in this case, that an employee
has a right to be free from racial harassment in the workplace. This human rights guarantee is an
implicit term of the employment contract. In Charlton, the PSGB found that Ms. Charlton had
an entitlement to be made whole by the Employer for the damage to her dignitary interest as far
as can be done by a monetary award. It appears that this occurred because of what was part of the
Agreed Statement of Facts in that case: "The Employer agrees that it will compensate the
Grievor for the appropriate damages that arise from these agreed facts." Accordingly, what is
absent from the award is any analysis of the extent to which the Employer should be liable for
the whole amount. The various Board cases referred to below, which make clear the Employer is
not strictly liable for all harassment from any quarter while at the workplace, were not
referenced. The decision moves from determining that Ms. Charlton's dignity was seriously
violated by her receiving the letter to strict liability by the Employer. The PSGB relied upon
Fidler v. Sun Life Assurance Co. of Canada, [2006] S.C.J. No. 30, for guidance as to when it is
appropriate to compensate for mental distress damages that flow from a breach of contract. In the
circumstances, the Board made its award as follows:
In this case there has been a breach of the contractual guarantee of freedom from racial
harassment in the workplace. Such a term, in the Board's view, does create an expectation
of a "psychological benefit", since this provision in the employment contract is clearly
intended to protect the dignitary interests of the employee. It is this provision that has been
breached and, while the employer has been beyond reproach in attempting to deal with the
problem of workplace racial harassment after it arose, there is also no question that the
grievor has suffered very substantial mental distress as the result of a particularly nasty
form of workplace harassment. Given the very substantial disruption to the grievor's life
and peace of mind that was caused by the breach of the contractual guarantee of freedom
from racial harassment in the workplace, the Board considers that the amount of damages
for mental distress should be no less than what was considered appropriate in the Fidler
case. Accordingly, the Board directs the employer to pay the grievor forthwith the sum of
$20,000 for mental distress arising from the breach of the contractual guarantee of freedom
from racial harassment in the workplace.
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[127] I am not persuaded that what was done in Charlton applies in this case. Here, although
the Employer assumes liability as I have described, the Employer has not agreed, as it did in
Charlton, that it will compensate the Grievor for the damages arising from the letter writing.
Here the Employer has not assumed liability as the letter writer. It has not engaged in any
discrimination conduct under the Code and it is not vicariously liable for the hate mail. It is
liable only in negligence for its own deficiencies in the environment in which some malicious
individual chose to severely aggravate the situation.
[128] Union counsel refers to several decisions as support for substantial damages being
awarded to the Grievor. In Hughes v. 1308581 Ontario, 2009 HRTO 341 (CanLII), an employee
was sexually harassed and faced reprisals in her employment for refusing her employer's
advances. She was awarded $25,000.
[129] Union counsel refers also to Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824 (CanLII)
and Khan v. 820302 Ontario, 2010 HRTO 265 (CanLII). These are useful decisions for
identifying the range of damages that are appropriate for an individual who has suffered a serious
indignity. In each of these cases the full liability for the damages rested on the responding party
for the wrongful acts. They are to be distinguished from the situation in this case, which is
(barring the period before the Grievor received the hate mail) that the Employer's liability is for
the workplace environment in which the wrongful acts were perpetrated by someone not
representing the Employer and not acting on the Employer's authority.
[130] In contrast to the decisions referred to by the Union, Employer counsel points to the
approach adopted in Fleet Industries v. International Assn. of Machinists and Aerospace
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Workers, Local 171 (H. Grievance), [1977] O.L.AA No. 791 (M. Picher). The facts in that case
have resonance in this. There the employer was faced with a situation in which an employee had
been seriously sexually harassed despite the employer's efforts to prevent it. Here the Employer
is faced with a situation in which the Grievor has been racially harassed despite efforts by the
Employer to prevent it. The arbitrator in Fleet Industries said this, at ~52:
52 In the arbitrators view, a careful reading of the cases leads to the conclusion that the
courts and tribunals have, quite properly I think, stopped short of a standard which would
fasten strict liability, such as is known in criminal or regulatory law, from applying in
such cases. As a general rule it would appear that, notwithstanding that an employee has
been the victim of sexual harassment, if an employer can show that it has taken all
reasonable steps and precautions to prevent such conduct, and is not itself directly
involved in actions over which it has little or no real control, it should not be found liable
or responsible for all possible forms of misconduct which might occur. To pursue the
analogy of vicarious liability in tort, expressed by the Court in Robichaud [Canada
(Treasury Board) v. Robichaud, [1987] 2 S.c.R. 84], where an employee engages in
conduct so gross as to defy clearly the rules and standards stringently imposed and
enforced by the employer, the offending employee can fairly be said to have engaged in a
prohibited frolic of his or her own. In such a case it is neither equitable nor appropriate to
fasten unqualified or automatic liability upon the employer. Plainly, liability should
attach where the impugned conduct is such that the employer knew, or reasonably should
have known, that it was occurring or was likely to occur absent reasonable steps which
the employer could take by way of deterrence or prevention. However, it is difficult to
see upon what basis an employer which has followed an enlightened course in respect of
sexual discrimination and sexual harassment should be held responsible for the secretive
and cowardly acts of a harasser who acts under the cloak of anonymity, any more than an
employer which has made every reasonable effort to ensure a safe and secure workplace
could be made liable for an unpredictable workplace assault by an employee, or indeed a
trespasser. It might be open for a legislature to establish statutory provisions which
convert the employer into a virtual insurer of employees in the workplace, regardless of
fault. However, liability of that sort is to be found in neither in the present provisions of
the Human Rights Code, nor in the interpretations of the Code rendered to date by the
courts and tribunals responsible for its administration. In this case, as in the area of
occupational health and safety, due diligence is a legitimate defence. I am satisfied that a
board of arbitration charged with interpreting and applying articles 6.01 and 28.01(a) of
the instant collective agreement must be guided accordingly. Indeed, in the argument of
this case the Union does not deny that proof of laxity or indifference by the employer,
creating a poisoned atmosphere, is a condition precedent to a finding of liability against
the Company. In accordance with existing case law, if it could be shown, on the balance
of probabilities, that the Company has tolerated the existence of sexual discrimination
and acts of sexual harassment within the workplace, so as to give supervisors or
employees reason to believe that such conduct will be tacitly allowed, a violation of the
provisions of articles 6.01 and 28.01(a) of the collective agreement would be made out.
At a minimum, those provisions must be taken to imply that the employer, as well as the
Union, must take all reasonable steps to prevent acts of discrimination and sexual
harassment in the workplace.
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Similar considerations apply in this case.
[131] In Worthington Cylinders v. United Steelworkers of America, Local 9143 (Gamba
Grievance), [2001] O.L.AA No. 649 (Tacon), among many other incidents, offensive graffiti
was written in the workplace concerning the grievor. The grievor complained the company could
have done more. The arbitrator said this, at ~150:
150 The grievor complained that the company could have done more. I do not agree. Short of
installing a surveillance system inside each cubicle or posting a guard to inspect the
cubicles after each person used the washroom it is difficult to see what other action the
company could have taken. The company policy was clear, was posted and enforced
through discipline. [The employer] assured the grievor that discipline would be imposed
if those responsible for the graffiti in question were identified. Management promptly
addressed each instance where graffiti was reported. Educational initiatives were
instituted. With respect to the graffiti at issue, the company was sympathetic to the
grievor and understood his emotional reaction. He was given permission to leave early
without disciplinary penalty. What the grievor seeks is to be paid for the time lost. I do
not regard this as appropriate. The company has not, as alleged, "failed to protect" the
grievor from "harassment". The loss of monies for time not worked cannot be regarded as
disciplinary. The employer took its obligations seriously and did what reasonably could
be done in the circumstances. There is no justifiable basis to impose on the employer a
requirement that the grievor be compensated for the one and one-half hours lost wages
when he left work early on the day in question.
[132] These principles have also been asserted by the Board, and they have application in this
case. The Board does not hold the Employer strictly liable for any harassment that occurs in the
workplace. The Employer is liable only to the extent of its knowledge and its failure to respond
appropriately. See: OPSEU (Howe/Dalton/Loach) and The Crown in Right of Ontario (Ministry
of Solicitor General & Correctional Services), GSB No. 3155/92, November 5, 1997
(Dissanayake), particularly pp.55-57, and the quotes from Re McKinnon, 905 A/92 (Gray),Re
Chan, 1990/90 (Dissanayake) and Re C. UP.E. and o.P.E.I. U (1982),4 L.AC. (3d) 385
(Swinton), at ppA04-405); Ontario Public Service Employees Union v. Ontario (Ministry of
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Health and Long-Term Care) (Press Grievance) (2007),165 L.AC. (4th) 321 (Mikus), [2007]
O.G.S.B.A No. 208, at ~110.The standard is "one of reasonableness, not correctness or
perfection"(B.L. v. Marineland of Canada Inc., [2005] O.H.R.T.D. No.30, at ~60). See also the
comments at ~72 regarding the reasonable steps required to conduct an investigation.
[133] The Employer has acted in good faith and has been genuinely concerned to eliminate
discrimination and harassment from the workplace. It has particularly stepped up its efforts in
this regard since 2008.
[134] The Grievor is entitled to compensatory damages for the Employer's contribution to the
harm done to him, as described. The purpose is to meaningfully vindicate the rights of the
Grievor that were breached. The damages must be sufficient also to deter the Employer and
others from future negligence, and to denounce the past negligence. However, punitive damages
are not justified because the general damages to which the Grievor is entitled are sufficient to
deter the recurrence of the wrongful action by the Employer (Hill v. Church of Scientology of
Ontario, [1995] 2 S.C.R. 1195; Whiten v. Pilot Insurance Co., 2002 S.C.C. 18; Performance
Industries Ltd v. Sylvan Lake Golf & Tennis Club Ltd, 2002 S.C.C. 19; Honda Canada Inc. v.
Keays, 2008 S.C.C. 39).
[135] The calculation of appropriate damages is not an exact science. However, various
decisions provide guidelines. As was said in Khan, above, at ~1 00:
Monetary compensation is awarded as a way to make victims of discrimination whole. The
exercise of quantifying the impact of discriminatory treatment on a person is not a precise
science. It is important not to set the quantum of damages too low even in less egregious
cases, "since doing so would trivialize the social importance of the Code by effectively
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creating a 'license fee' to discriminate": Sanford v. Koop, 2005 HRTO 53 (CanLII), 2005
HRTO 53 (CanLII), at para. 34.
[136] Employer counsel refers to the following decisions as guidance for the assessment of
appropriate damages: OPSEU (Howe/Dalton/Loach), above; Ontario Liquor Boards Employees'
Union v. Ontario (Liquor Control Board ofOntario)(Fenech Grievance), 2002 CanLII 45765
(ON G.S.B.); Etienne v. Westinghouse of Canada Ltd, [1997] O.H.R.B.I.D. NO.14 (Sri-Skanda-
Rajah). Notably, these decisions were issued when the cap on human rights damages was
$10,000.
[137] The decision of the Supreme Court of Canada in Vancouver City v. Ward, 2010 SCC 27
(CanLII) is of much value in providing guidance as to the appropriate damages, albeit in the
context of a Charter violation. The Court reiterated the functional justification for damages:
compensation, vindication and deterrence. The Court said that the seriousness of the breach of
rights is a guide to the quantum, as follows, at ~53:
[53] Just as private law damages must be fair to both the plaintiff and the defendant, so s.
24(1) damages must be fair - or "appropriate and just" - to both the claimant and the
state. The court must arrive at a quantum that respects this. Large awards and the
consequent diversion of public funds may serve little functional purpose in terms of the
claimant's needs and may be inappropriate or unjust from the public perspective. In
considering what is fair to the claimant and the state, the court may take into account the
public interest in good governance, the danger of deterring governments from
undertaking beneficial new policies and programs, and the need to avoid diverting large
sums of funds from public programs to private interests.
[138] Compensatory damages are a non-taxable payment to an individual. They are designed to
put the aggrieved individual in a position they would have been in, had the wrong not been
committed. The amount of the damages should properly be assessed against several relevant
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factors, including how long it might take to earn the amount of damages, the enduring impact of
the wrong committed against the claimant, the sense of outrage engendered by the Employer's
wrongful conduct.
[139] Human dignity is of fundamental value in a democratic society. Harassment and
discrimination significantly impair an individual's dignity, as has manifestly occurred in this
case and explained in the Grievor's will say. He deserves that the impact of the harm to his
dignity be recognized in the damages awarded to him, albeit for the Employer's failure to take all
reasonably necessary steps to prevent that harm (Kafe et Commission des droits de la personne
du Quebec c. Commission scolaire Deux-Montagnes, [1993] IT.D.P.Q. no 4 (QL)).
The Quantum of dama2es
[140] Based on the approach described above, it is necessary to assess the Grievor's loss. He
has not provided any medical information to assist in the quantification of his damages. The
Grievor is sceptical of what he calls the Canadian medical model, based on what he refers to as
Eurocentric ideology. He suggests the medical model of assessing mental pain and suffering
lacks cultural sensitivity. He relies, in support, on an article by Shelly P. Harrell, A
Multidimensional Conceptualization of Racism-Related Stress: Implications for the Well-Being
of People of Color, American Journal of Orthopsychiatry, 70(1), January 2000, pp.42-57. The
article explains, among other insights, that the experience of prejudice and discrimination can
create "anxiety, a heightened sense of danger 1 vulnerability, anger, and sadness, among other
emotional and psychological reactions" (p.45). The Grievor explains that he does not believe in
seeing a doctor or a psychiatrist when he has mental or emotional problems. He says he channels
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his energy, frustrations, sadness and anger into prayer with family and friends, and into sports
activities. He refers to this as Africultural coping, "where people of African descent use coping
behaviours to deal with stressful situations". The Grievor relies, for this notion, on an apparently
unpublished article intended for the Journal of Black Psychology, entitled Black Canadians'
Coping Responses to Racial Discrimination.
[141] The Employer takes issue with the absence of any recent medical information to support
the Grievor's claim for damages. Employer counsel argues, with some justification in my view,
that medical evidence provides an objective confirmation of actual damages incurred by a
person. It helps establish a causation. In the absence of such information, it is difficult to know
what is the nature and extent of the harm suffered. Counsel refers to Ontario Public Service
Employees Union (Press Grievance), above, at ~110, in which the Board said:
Where an individual grievor is claiming harm, as in the instant case, he must establish
direct causation, supported by medical evidence, between the employee's symptoms and
employer's practices.
See also: Re OPSEU (Sager, Shelley et al) andMinistry of Transportation, GSB 2000-0377,
October 6, 2004 (Mikus).
[142] The Employer takes issue with the genuineness of the Grievor's rejection of Western
medicine. It points to the fact that he relied on medical reports to secure an accommodated
position within A&D at the jail, a preferred position above working in the inmate units. He
worked there for his last year of work at the institution.
[143] On the strength of the Grievor's statement and his reliance on the above and other articles
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as support for his position, I accept that he has suffered sustained stress as a result of his
experiences at the Toronto Jail and the references to him in the hate mail, and that, despite his
not seeking medical attention, he has endeavoured to cope with the stress in the manner he has
chosen. He was referred to, directly or indirectly, in various hate letters. In other words, I accept
that the Grievor's claim for damages is bona fide, and it is not diminished because he has not
sought and received medical attention. I note too, though, that his coping mechanisms have been
sufficient that he has not needed to seek medical attention.
[144] The Grievor describes some of the effects of the incidents he mentions in his will say.
They include weight fluctuations, disturbed sleep, trouble concentrating, irregular eating,
negative thoughts, increased stress, and feelings of anxiety, obsession, paranoia, fear, distrust,
resentment, guilt and disillusionment. The Grievor blames the Ministry for this.
[145] The Grievor experienced some ugly racist incidents in the period prior to his receiving a
hate letter, i.e. until December 2007. The Grievor had become demoralized during the period of
his employment at the Toronto Jail, starting in July 2004. He worked for two years before taking
a long period ofleave in August 2006. He was off until December 2006. He then worked until
January 2008, a period just over a year, and then he was off continuously with full pay, and
overtime top up, until August 2009, when as a result of not extending his interim relief his
income ceased. He has not been back working in the jail since January 2008.
[146] In my view the appropriate damages under the collective agreement and under the Code
attributable to the Employer for the period of the Grievor's employment between July 2004 and
December 2007 is the sum of $8,000, arrived at by adding the amounts described below. This is
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generous to the Grievor because some of the incidents for which I award him damages were
never reported to management, and the Employer had no means of addressing the problem at the
time because it was not informed. The damages assessment is arrived at as the addition of the
following amounts: for working in a poisoned work environment during the relevant period:
$1,500; for the false accusation by the OM16 in November or December 2004, a person in
authority and directly representative of the Employer: $1,500; for the manhandling and abuse by
the GDM: $3,000; for the impact on the Grievor of the various incidents involving his car:
$1,000; for the impact on the Grievor of the abusive phone call on August 11, 2006 - bearing in
mind the employee responsible for the offensive conduct was not a member of management and
was subsequently disciplined, and that the Employer's liability is accordingly diminished:
$1,000; making a total of$8,000.
[147] I turn to the period between December 2007 and the present - the period during which
the Grievor was the recipient of, or was referred to in, the hate mail.
[148] The Employer's liability in negligence for the letters was much reduced by December
2007 and thereafter. By then it had certain procedures in place and it was dealing more
responsively and sympathetically with those receiving the hate mail. There was still room for
improvement, though. The Employer's liability in this period is for its deficiencies (much less
than they were in the earlier period in 2005 and 2006), and for its contribution to the
environment that gave the letter writer their sense of entitlement, through neglect and inadequate
responses to racist incidents in the years before.
[149] Union counsel argues that the Grievor's life has been irretrievably altered by the receipt
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of the letters and the circumstances under which he worked at the jail until his leave in January
2008. The appropriate general damages should be sufficient to endeavour to compensate the
Grievor for that alteration and for his losses in self-esteem and dignity. Counsel argues that the
compensation should also send a message to the government that it should not again permit a
deterioration of the work environment as occurred in the Toronto Jail in the period between 2005
and 2008, hence the request for $1 million.
[150] In assessing the appropriate amount of damages under this heading I am guided by the
legal considerations referred to above.
[151] Taking account of all of the above facts in this case - including the Grievor's stress,
anxiety and suffering; the Employer's efforts overall to remedy the situation; the fear engendered
by the letters in the context of the Employer's support and assistance (or lack thereof); the
relatively late reference to the Grievor in the hate mail in the overall context of their impact on
the jail (the letters were not quite commonplace by then, though their impact was considerably
less immediate and menacing than when they first appeared); the fact that the Grievor earned a
full salary, including top-up, for the period from January 2008 until October 2009 when he was
not expected to work and did not - I am of the opinion that the Employer's liability to the
Grievor under the collective agreement and the Code for the references to him in the hate letters
is $15,000.
[152] I turn to the Grievor's request for special damages. No receipts were provided by the
Grievor for the items listed under this head of damages. The first claim, for $3,000 to repaint the
Grievor's car, is not particularized. It arises either from the incident on April 8, 2006 when there
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were paw prints and scratches on the car from food and garbage being thrown on the vehicle, or
from the incident on June 5, 2006 when the Grievor's car front right bumper was scratched.
[153] Employer counsel refers to the Board decision in Ontario Public Service Employees
Union v. Ontario (Ministry of Correctional Services)(Andersen Group Grievance), 2002 CanLII
45772 (ON G.S.B.) (R. Brown). There the Board held that the guarantee by the Employer in the
collective agreement to make reasonable provisions for the safety and health of its employees did
not include an obligation on the Employer to protect employees' belongings. Employer counsel
argues that, in the absence of proof of the Employer's carelessness for the loss to property, it
should not be liable.
[154] For the reasons given above, I find that there is a reasonable probability that the damage
to the Grievor's car arose in the context of the hostile environment in the jail at the time, for
which the Employer has some responsibility.
[155] In my opinion, in the absence of any supporting documentation, the maximum amount
for which the Grievor is entitled under this head of special damages is $500. I award that
amount.
[156] The Grievor's second head of special damages is $2,000 for consulting a human rights
lawyer. This is a claim for costs. Assuming, without finding, that the Board is empowered to
grant costs, this is not an appropriate case in which to do so.
[157] The Grievor's third head of damages is $4,500 in parking tickets. The Grievor declined
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the Ministry's offer of a security system at his home. Instead he wanted the Ministry to pay for a
parking spot near his home. The Ministry declined this proposal because it did not relate to the
Grievor's security. The Grievor's family has only one assigned parking space at the townhouse
where he lives. He parks his car in the visitor's parking, for safety reasons. As a result he has at
times been fined $30 each occasion for parking illegally there. However, his claim for
reimbursement of parking tickets is not supported by any proof of loss. Employer counsel argues,
in any event, that the parking tickets are too remote from the Employer's liability to warrant any
reimbursement. (See Ontario Public Service Employees Union (Sysiuk) v. Ontario (Ministry of
Natural Resources), No. 195/89, August 7, 1990 (Keller); Ontario Public Service Employees
Union (Tilden) v. Ontario (Ministry of Municipal Affairs and Housing), 2000 CanLII 20467 (ON
G.S.B.) (Dissanayake)). I agree. This claim is denied.
[158] The Grievor's fourth claim is for a security system for his car in the amount of $650. I
award this amount.
[159] The Grievor's fifth claim is for $500 for gas and parking to attend the proceedings. This
is in the nature of a costs claim. It is denied.
[160] The Grievor seeks payment of all lost wages and benefits, including lost overtime
opportunities, for the period of his absence in 2006. There is insufficient evidence to make a
determination of this loss. I refer this claim back to the parties. They are to investigate if the
Grievor's absences were unusually high during 2006, as compared to three previous years. If so,
I remain seized to address the matter if the parties are unable to reach agreement on the amount
due to the Grievor.
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[161] The Grievor claims lost wages and benefits for the period since October 11, 2009, when
the interim relief arrangements between the parties ended. This claim depends upon the Grievor
establishing that there is no institution where he can work because all are so poisoned by racism
and discrimination. As explained, I am not persuaded of this. In the circumstances, the Grievor's
claim for lost earnings since October 11, 2009 is denied.
The result
[162] I uphold the grievance for the reasons explained above. I award the following to the
Grievor:
a. The Employer is ordered to pay to the Grievor the sum of $8,000 in
general damages for wrongs done to the Grievor during the period July
2004 to December 2007;
b. The Employer is ordered to pay to the Grievor the sum of $15,000 in
general damages for its contribution to the harm suffered by the Grievor in
the period between December 2007 and the present;
c. The Employer is ordered to pay the Grievor the sum of $1,150 in special
damages;
d. The Employer and the Union are directed to investigate the Grievor's
claim for loss of earnings during 2006. If it is established that the
Grievor's absenteeism was unusually high during 2006, as explained
above and if the parties cannot agree on the appropriate compensation, I
remain seized to address the appropriate remedy.
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[163] In the interest of returning the Grievor to work, the Employer will allow Mr. Cox to tour
any of the correctional institutions in the Central Region and choose a facility that he would be
prepared to return to as a Correctional Officer. The Grievor will make his decision as to his
place of work within four weeks of the date of this decision.
[164] I remain seized of the implementation of this award.
Dated at Toronto this 16th day of December 2010.