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HomeMy WebLinkAbout2005-1443.Tardiel et al.11-05-24 Decision 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 *URXS³$´ ³%´ UNION#2005-0530-0022 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 (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Christopher J. Albertyn FOR THE UNION David Wright, Ryder Wright Blair & Holmes LLP, Barristers & Solicitors Eric del Junco, Barrister and Solicitor Donald McLeod, The McLeod Group, Barristers and Solicitors Jim Paul Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Lisa Compagnone, Cathy Phan & Melissa Nixon Ministry of Government Services Labour Practice Group Counsel HEARINGApril 6, 2010 and August 24, 2010. - 2 - Decision What this case is about [1]Many grievances arose from the Toronto Jail during the period from 2005 to 2008 concerning allegations of a poisoned work environment. A process with different strands was adopted by the parties for resolving the grievances. One strand entailed an organizational review that has resulted in a number of systemic remedies. [2]A second strand involved the mediation-arbitration of individual damages claims. The parties divided the claims into two categories: those involving allegations of harm suffered beyond working in a poisoned work environment; and those restricted to the allegation of harm suffered on account of working in a poisoned work environment. Although all of these claims involved individual grievances (and a union policy grievance), for the purposes of easy identification, I refer to the former category as³LQGLYLGXDOJULHYDQFHV´DQGWKHODWWHUDV³WKH XQLRQSROLF\JULHYDQFH´HYHQWKRXJKWKHODWWHUcategory involves many individual grievances. [3]Virtually all of the individual grievances were resolved in Minutes of Settlement. One was resolved by decision (Ontario Public Service Employees Union (Tardiel) v. Ontario (Community Safety and Correctional Services)&DQ/,, - 3 - the individual grievances were resolved or determined and the relief granted in this decision does not apply to those with claims in the individual grievances. The scope of this decision was defined in the decision of November 4, 2009, Tardiel v. Ontario (Community Safety and Correctional Services), 2009 CanLII 66846 (ON G.S.B.), as follows: [I] There are several grievances in these matters that have the following similarity. They all allege that the individual grievor concerned suffered harm and damages as a result of working in a poisoned work environment, without reference to some other specific triggering incident or event. I refer generically to these grievances as "the poisoned work environment grievances". [2] The only issue to be addressed in the poisoned work environment grievances is the amount of money, if any, [that] will be paid to each of the Grievors. Other systemic remedies will be addressed in the Union's policy grievance being addressed through the organizational process described in previous decisions. [5] The union policy grievance (the poisoned work environment grievances) was dealt with in two separate hearings. The Union advanced the claim in one hearing of those referred to as "Group A"; and for those in "Group B" in the other hearing!. Group A and Group B were represented by separate counsel. The parties requested separate decisions for the two groups. Given, though, that most of the facts giving rise to the union policy grievance are common as between Groups A and B, with differing perspectives on those facts, I think it more efficient to issue one decision in which I address the claims for redress of both groups. [6] The Union claims breaches of the Employer's statutory and contractual obligations to provide a workplace that is safe and free from harassment and discrimination. The Union says that the Employer failed to take the steps reasonably necessary to prevent the wrongful conduct that brought about the poisoned work environment and that the Employer failed to provide a safe, harassment-free and discrimination-free workplace. ! These groups are described in the Cox decision at ~22. - 4 - [7] The Union proposes that I award $10,000 to each affected employee in Group A, with certain ancillary relief; and that I award $5,000 to each affected employee in Group B, with ancillary relief. The Employer proposes that I award no more than $500 to each affected employee. [8] For its claim on quantum for Group A, the Union relies chiefly on Re Ontario and Charlton (2007), 162 L.AC. (4th) 71 (Carter), 2007 CanLII 24192 (ON P.S.G.B.), as the measure of appropriate damages. [9] Union counsel for Group B refers to the following: Adga Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.); Baylis-Flannery v. DeWilde (Tri Community Physiotherapy), 2003 HRTO 28 (CanLII); Charlton v. Ontario (Community Safety and Correctional Services), above; Mckinney v. University of Guelph, [1990] 3 S.C.R. 229; McNeil v. Brewers Retail Inc., 2008 ONCA 405 (CanLII); Morrison v Ontario (Human Rights Commission), 1997 CanLII 10282 (ON P.S.G.B.); 0 'Malley - Ontario Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536; Payne v. Otsuka Pharmaceutical Company, 2002 CanLII 46516 (ON H.R.T.); Quereshi v. Toronto (Board of Education), 2006 CanLII 63704 (ON S.C.D.C.); and Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824 (CanLII). [10] F or the assessment of the appropriate damages, the Employer relies on OP SEU (Taylor- Baptiste) and the Crown in Right of Ontario (Ministry of Correctional Services), April 15, 1992 (Dissanayake); OPSEU (Press) and the Crown in Right of Ontario (Ministry of Health and Long- Term Care), [2007] O.G.S.B.A No. 208 (Mikus); OPSEU (Sager, Shelley et al) and the Crown in Right of Ontario (Ministry of Transportation), October 6, 2004 (Mikus); OPSEU (Howe / - 5 - Dalton / Loach) and the Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services), November 5, 1997 (Dissanayake); Fleet Industries v. I.A.MA. W, Loc. 171 (H. Grievance), [1997] O.L.AA No. 791 (M. Picher); B.L. v. Marineland of Canada Inc., [2005] O.H.R.T.D. No. 791 (Garfield); and Worthington Cylinders v. US.WA, Loc. 9143 (Gamba Grievance), [2001] O.L.AA No. 649 (Tacon). [II] Much of the background to the union policy grievance was set out in the Cox decision. I will not repeat it. It will be treated as incorporated within this decision. As in the Cox decision, the hearings for the union policy grievance were conducted under Article 22.16 of the parties' collective agreement. The Employer's liability [12] The Union's claim is that the Employer, through its management of the Toronto Jail in the period 2005 to 2008, could have done much more to nurture a workplace environment that was free from harassment and discrimination, and that the failure to do so resulted in a poisoned work environment. The impact on the employees was significant. They became much less trusting of their fellow employees. This had consequences for their safety because trust between correctional officers (COs) is essential to their safety. They must be able to rely on each other when they deal with inmates. [13] As will be seen below, much of the foment in the Toronto Jail in the period 2005 to 2008 was the result of vicious anonymous hate mail received in the jail, chiefly addressed to racialized COs employed there. - 6 - [14] As explained in the Cox decision, the Employer has assumed some liability towards those affected by the union policy grievance: The Employer's assumption of liability and dama2:es [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. [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 jail. 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 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 - 7 - 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. [15] The criticism by the Union of the Employer's role in the relevant period is that the Employer responded too slowly to the problems it faced, it did too little in response, and often, when it acted, the employees were not told what action had been taken. There was a lack of transparency in its remedial actions to combat the ghastly effect of the threatened letters received at the jail. This gave the impression to employees that little or nothing was being done. [16] There is substance to the Union's claim. Management is clearly not to blame for the hate mail in the workplace. It had no involvement in producing the letters. However, while management acted in good faith and with good intentions to address the troubled situation that developed as a result of the letters, it did so inadequately and incomprehensively. In coming to this conclusion, I recognize that the standard required of management is reasonableness, not perfection2. In my view, the Employer should have recognized that it had a serious problem at the jail in the period from 2005 to 2008 that could not be sufficiently addressed piecemeal. It required a concerted response, best accomplished by working in conjunction with the Union. When particular members of management committed acts of racism (described to an extent in the Cox decision, and in some of the individual grievors' willsay statements), the Employer reprimanded the individuals concerned, but, in my view, they did not take sufficiently severe disciplinary steps to stamp out racist acts, and more importantly, management did not convey sufficiently to the racialized staff directly affected by the racist acts that discipline had occurred. 2 B.I. v. Marine/and of Canada Inc., [2005] O.H.R.T.D. No. 30 (Garfield), at ~60; Worthington Cylinders v. u.s. WA., Loc. 9143 (Gamba Grievance), [2001] O.LAA. No. 649 (Tacon). - 8 - This would have demonstrated that the Employer took seriously its avowed standard that racism would not be tolerated in the workplace. The situation required a substantial, coordinated effort that the Employer did not undertake until 2008 when, in conjunction with the Union, it took radical steps to address the situation. Prior thereto, the Employer's actions were not all of the steps reasonably necessary to address the poisoned work environment that had been created as a resul t of the perni ci ous acti ons of the letter wri ter( S)3 . [17] The Union argues that the less than urgent response of the Employer to racist and other offensive incidents in the jail created the environment in which someone felt sufficiently at liberty to write the vile hate mail received in the jail that massively aggravated the unpleasant working environment. The workforce had become factionalized; the trust that had existed between COs had broken down; there was no clear guiding force within the jail, and individuals were either isolated or they were associated with one or other faction of the workforce. The divisions were not initially on racial lines. They reflected rather the rapid turnover that occurred in the jail in the period leading to 2005. However, later, once the hate mail began to appear the divisions took on a racial character that needed astute attention from management. [18] In the chronology below, I describe the circumstances on which these conclusions are reached. Eyidentiary rulin2 [19] During the course of argument of the Group B claim, the Employer objected to certain 3 See, in this regard, the instructive analysis at ~52 of Fleet Industries v. lAMA W, Loc. 171 (H. Grievance), cited above. - 9 - allegations made in the Group B will say. I ruled on the matter as follows: The poisoned work environment cases (for Group A and Group B) are all about perceptions and impressions, and rum ours and innuendo; considerably more so than about actual events. The Employer is correct that certain of the facts relied on in the Union's Group B will say have informed the individual grievance settlements of the Grievors concerned. Clearly, the Union could not rely upon those facts to achieve a further settlement with respect to those individual grievances. However, the facts as described had a separate impact in the workplace besides their relation to the most affected grievor. That impact had as much to do with perception, embellishment and impression as it did with the reality of the incident concerned. The impact was necessarily part of the work environment that prevailed at the time and it informed actions and reactions then. It is therefore properly part of the poisoned work environment gnevances. This does not mean that the facts relating to disputes already settled form part of the remedy in the poisoned work environment grievance. It means only that the impression created by those facts are relevant to the grievances of the individuals whose grievances make up the poisoned work environment grievances. Consequently, I will not strike the offending paragraphs from the Group B willsay. I do recognize, of course, that significant damages have already been paid to individual grievors with respect to the facts described therein and that will, of course, be taken into account in the determination of the poisoned work environment grievances. I reserve the right to provide further reasons in the final decision in this matter, should I choose to do so. [20] The comment concerning impression, perception, innuendo is important. What follows in the chronology is an agglomeration of the varied perceptions of what was happening at the time, with some facts. This case was not done on the basis of tested evidence. It was done on the basis of what the Employer and the different factions within Toronto Jail perceived to be the situation. The aim was to restore the workplace. Part of the restoration was to hear those affected, to rehabilitate them to the workplace, and to address their concerns. Hearing their accounts of how they felt, what they thought they went through, and how they dealt with different challenges they faced, were part of the process of healing necessary to restore a workplace free from harassment and discrimination. Therefore, the narrative that follows contains the largely untested accounts of those from Group A and Group B, and the explanations given by the Employer for its actions and responses. - 10 - Chronolo2Y and obseryations [21] I do not record each and every incident that occurred. I try to highlight key events. I also do not describe key events for some of the individual grievors whose claims were resolved between the parties. Rather, my focus is on those events that had a general impact on relationships within the Toronto Jail. I make some observations and I draw some conclusions as to what contributed to the poisoned work environment that is the subject of the union policy gnevance. [22] The Toronto Jail or Don Jail has a long history, older than Canada, pre-dating Confederation by two years. It is a maximum security detention centre. At any given time, the majority of the inmates are in pre-trial detention, charged with a violent crime. The jail's official capacity is 562 inmates. There are typically 550 to 625 at any particular time. The Don is an inherently dangerous place to work and inherently stressful. [23] There are five floors at the Toronto Jail with 3 units (A, B and C) on each floor. Inmates are grouped into units based on their previous experience in the institution, the history of charges, and additional information management takes into account. Inmates with mental health issues, or who have problems associating with the other inmates, are placed in the Special Needs unit on the 5th floor. An inmate may be separated from the rest if unable to get along with other inmates. [24] There are 36 cells in each unit. Generally two inmates share each cell, but there can be - 11 - three when the institution is full. Each cell has two beds. If a third inmate is placed in a cell, an extra mattress is brought in. Usually there are 70 to 80 inmates in each unit. [25] Each unit has a day room located outside the cells, though barred in, with steel picnic tables for the inmates' use. Inmates spend most of the day in the day rooms. They are locked in their cells at night. [26] Staff at the Toronto Jail consist of the following: a Superintendent, 4 Deputy Superintendents, 20 Operational Managers ("OMI6s"), 144 classified Corrections Officers ("COs"), 20 unclassified COs; approximately 100 non-COs (in the BusinessIFinance office, Records, the Social Programs office, Nursing, Maintenance, and Food Services). [27] The Don had a reputation as a tough place to work, but it has been known for its dedicated, tight-knit staff. Hard work, loyalty and reliability were prized traits. Those that chose to make the Don Jail their place of employment took pride in their working within a very challenging work environment. [28] Since at least the 1990s, the workforce at the Don Jail has been very diverse in gender, race and ethnicity. Until the circumstances described herein, this diversity was not a source of conflict within the workplace. [29] The social interactions in the Toronto Jail can be periodized into three phases: the period before 2005, the period between 2005 and 2008, and the period since 2008. - 12 - [30] The first period, until January 2005, was the lead-up to the poisoned work environment that characterized the middle period - 2005 to 2008. There were acts of racism and some racist graffiti written onto the walls of the jail4. There were the rudiments of racial division, but the other bonds between staff were stronger. Consequently, the environment was one of varied loyalties and friendships, across racial lines. There were a variety of different groups making up the social cohesion of the jail. [31] In the late 1990s, many of the older, senior staff were given options to move out of the Toronto Jail, as part of a cost-cutting effort within the OPS. Several senior officers exercised their seniority and moved elsewhere. As a consequence, in the period described in this narrative many employees were relatively new to the Toronto Jail. They came chiefly from the TY AC (Toronto Youth Assessment Centre), which was closed in 2004, shortly before the incidents described here, and other institutions. The new employees had their own culture and esprit de corps which were different from those which prevailed in the jail at the time. There were tensions between the newcomers and those who had been there before. [32] The large inflow of new staff from TY AC had a clear impact on social relations within the jail. Many of those from TY AC experienced the Don as a hostile and closed environment. The newcomers did not feel welcome. 4 The Employer's practice for dealing with graffiti was to photograph the evidence and then remove it. If at the time of reporting the graffiti was fresh, a local fact-finding was initiated. This included reviewing the duty roster to determine who was on shift. Virtually always there was insufficient evidence to identify the individual responsible for the graffiti. Between September 2006 and February 2008, at least ten separate occurrences of graffiti/poster defacement were reported. In six cases management recorded direct actions taken to address the incident (such as taking photos, removal of the graffiti, offering EAP, or some combination of these efforts). After one incident, the Superintendent sent out a memorandum on graffiti, vandalism, and other inappropriate behaviour which was read at muster for 10 days. - 13 - [33] In contrast, many incumbents of the Don felt that the newcomers had no respect for the culture and practices they cherished. The new staff seemed to them to be resentful at being involuntarily transferred to the Don Jail, refusing to blend into what the incumbents saw as the Don "family". The incumbents felt the TY AC newcomers were contemptuous of the senior officers at the jail. [34] There does not appear to have been any coordinated effort by management to facilitate the integration of the new staff with the Don Jail. The social relations between the new and the old staff were left to the vagaries of their interactions. Both groups appear to have turned for support to those they were familiar with. The incumbents were later to be identified as Group B. The newcomers were later to be the nucleus of those who became known as Group A [35] The perception of the incumbents who were to form Group B was that some from TY AC, later of Group A, began to make race an issue in the workplace that it had not been. Certain white officers were accused of and were then perceived to be racists. The perception within Group B was that some from TY AC were requiring racialized guards to ally on racial grounds. The impression of those within Group B was that some racialized guards were requested to shun certain white officers because they were alleged racists and that, if this demand were resisted, the racialized officer was themself shunned. [36] The lack of leadership and direction from management meant that the tussle for cultural influence and control within the jail was played out between the different factions of COSo This was the divided, somewhat rudderless, context in which the hate mail began to appear. It was then that divisions along racial lines became manifest. Racialized employees were targeted in - 14 - the hate mail and they naturally gravitated towards each other because they were apparently under threat because of their race. Race became a unifying and dividing factor within the workforce. [37] Those in Group A felt that management ought to have recognized their exclusion and ill- treatment on account of their being racialized; they felt management's failure to identify racism as being at the root of the difficulties in the jail was a major factor contributing to the tensions within the workplace. Those in Group B felt exactly the opposite. They thought management were giving too much leeway to talk and expressions of race, racialization, and racial division. They felt management ought to have asserted the non-racial basis of employment and that diversity was to be celebrated through the de-emphasis, rather than the emphasis, of race. When, for example, a racialized officer spoke to the press criticizing the Employer for failing to deal with widespread racism within the jail, those in Group B felt management should have acted against the officer for besmirching their reputations. [38] Instead of grasping the nettle and facing these conflicting views, the Employer appears to have sought to avoid the conflict by not addressing it head-on, probably hoping it would subside. [39] This was not to occur. On the contrary, tensions were to mount and resentments and antagonisms were to grow, in large measure because of the anonymous hate mail writing that was beyond the Employer's control. [40] The precipitating event for the transition to what would become the poisoned working environment - characterized by division with fixed loyalties and antagonisms - was a work - 15 - refusal on January II, 2005. The background to the work refusal was as follows. A racialized CO (ex-TYAC) testified in the criminal court against another (also racialized) CO (ex-Toronto Jail), claiming that he had assaulted an inmate. The evidence was disbelieved by the court. The CO charged was terminated from his employment pending the outcome of the criminal trial. At the trial he was acquitted, in large measure because the evidence of the CO who testified was found to contradict earlier statements he made, and to be unreliable. Following the filing of a grievance the charged and terminated CO was reinstated at another institution under confidential Minutes of Settlement between the parties. As a result of all of this, there was much opprobrium among the long-standing COs of the Don Jail towards the CO who testified. [41] The CO who testified against his colleague was shunned. He was bullied and tormented over an extended period of time. Offensive graffiti was written on his locker on December 20, 1994, reading, "Dead Rat Boy Goof'. Further offensive graffiti was written onto his locker on January 10, 2005, "I know your mother sucks cocks in hell", followed by a swastika sign. The culprit for this offensive behaviour was not determined and no-one was disciplined for it. [42] On January II, 2005, a group of COs were assigned to conduct a search in a cell. One CO in the group, a leader in the Toronto Jail, later to be the principal spokesperson for Group B, refused to undertake the search if the CO who had testified was to be part of the search team. The reason claimed was that his safety could not be guaranteed because the CO who testified could not be trusted or relied upon because he had made false allegations. Others on the assigned team supported the refusal, save for one CO (also racialized, also ex-TYAC), who said he had no difficulty being assigned with the CO who had testified. - 16 - [43] The Superintendent responded to the work refusal on January 13, 2005 by issuing a memorandum to each employee reiterating the obligations of employees under the WDHP (Workplace Discrimination and Harassment Policy). The Superintendent stated that harassing and discriminatory behaviour would not be tolerated. The memorandum was read at muster for 10 days. All staff were provided previously issued memoranda in their pay stubs that addressed graffiti at work and rum our and gossip in the workplace. [44] Very soon after the work refusal, on January 13, 2005 (the same date as the Superintendent's memorandum), the first hate letter was received, by the CO who had said he had no objection to working with the CO who had testified. The letter contained a death threat. It had been slipped into the CO's locker, most likely by a fellow CO. [45] This first anonymous letter started a long line of anonymous hate letters (now over 40 have been received). [46] The first hate letter is different from the later hate mail. It has a death threat, like the later hate letters, but it calls for solidarity among COso The recipient is characterized as a "rat", one who is untrustworthy, a turncoat, but it does not have any explicit racism to it. While the later letters were vilely racist, this first letter was not. [47] The Union Local President and the Superintendent jointly issued a memorandum to staff on January 14, 2005. The memorandum called on all staff to treat each other fairly and with mutual respect. Both affirmed the need for a workplace free from discrimination and harassment and reiterated that such behaviour would not be tolerated. The joint memorandum was read at - 17 - muster for 10 days. [48] On January 20 2005, the Superintendent held a meeting with the OMl6s and some deputy superintendents. She stressed to the OMl6s that they were to diligently document all incidents. She reminded them of the staff's obligations under the WDHP. [49] The second anonymous hate letter was sent to the Superintendent, on January 21, 2005. The first insulting homophobic comment appears in this letter. The first racist comments appear. The letter contained a threat, that the Superintendent rid the jail of the "rats" or it will be done for her. [50] On January 25, 2005 the third hate letter was pinned to the apartment door of the CO who did not engage in the work refusal on January II. It was more hateful and more threatening. It contains racist and homophobic references. It threatens serious harm if the CO concerned does not leave the jail. A further hate letter was sent to another address of the CO, again abusive, racist and threatening. A fourth letter was sent to him at his other address, again threatening violence. [51] This set the pattern of the many later letters, one in April 2005, then two in September 2005 to two different COs, and from then on at infrequent intervals to various racialized COs at the Toronto Jail. [52] The letters express hatred towards racialized staff at the Toronto Jail and they threaten serious harm to any racialized officers who continue to work there. While racism is the manifest - 18 - characteristic of the letters, they are also replete with sexist and homophobic insults and allusions to sexual assault and extreme violence. [53] All would be well served if the letter writer were apprehended and severely punished. Much harm has been caused by the letters. [54] The Employer conducted an initial internal investigation into the offensive anonymous letters, with the Union's cooperation, but the result was inconclusive. [55] There was naturally much speculation as to the provenance of the letters. Much suggests the writer is a CO working in the jail. Many in Group A have speculated that one or other member of Group B is the perpetrator. Some within Group B speculate that someone associated with Group A is the writer as a fraudulent means of extracting damages from the Employer. These speculations amplified the rifts in the workplace, as some in Group A concluded, on no evidence, that one or other individual from Group B is the culprit, and as some in Group B concluded, contrary to the evidence, that the suffering of the letter recipients in Group A is not genume. [56] I conclude that the first incident, the work refusal, had little to do with race and racial discrimination. The work refusal was characterized as being because the CO gave false evidence (the court found his evidence was not reliable) and so could not be trusted to perform his workplace responsibilities. It was manifestly a retaliation against the CO for testifying against a fellow officer. - 19 - [57] As stated in the Cox decision, the biggest contribution to the poisoned work environment was the campaign of hate mail sent to particular racialized officers at the jail. The letters came intermittently from January 2005 onwards. A large batch, sent to various individuals, appeared during December 2007. There was also, in January 2008, one letter addressed to the white officers, the non-racialized staff, threatening harm to them if any harm were to come to a racialized officer. This one letter appears to have been written by someone other than the regular hate mail letter writer. The letter was shared with the local Union President at the time, but was not made available to the non-racialized staff at Toronto Jail for some time. The Employer held the letter back because the Employer concluded the letter would have caused some anxiety to the non-racialized staff at the jail, as the myriad letters to particular racialized officers had caused ongoing anxiety to the racialized staff. [58] As Employer counsel argues, the Employer is not responsible for the letter writing. I made this point in the Cox decision. Employer counsel says the letters are appalling, horrific, but at the end of the day, the question is what steps the Employer took to address the situation. [59] There had been examples of racist language and of racist graffiti on the walls in the Toronto Jail in the period leading to January 2005. Racism was present, but at a low level of intensity. The hate mail started in January 2005. The letters were to become steadily more menacing and disgusting and their impact on workplace relationships was to grow hugely. It altered a somewhat dysfunctional, though not particularly troubled, situation into something very different. It aggravated all of the tensions within the institution and it amplified small differences into large antagonisms. The strands of unity within the jail were severed and the loose, complex cohesion and interactions gave way to simplified social loyalties, principally on - 20- racial lines. The hate mail rigidified social relations in the jail. [60] The racialized staff were scared by the hate mail; it threatened their presence in the jail. The range of recipients and those mentioned in the letters increased. There were instances of vandalism: some employees' cars parked in the parking lot used by the jail were deliberately damaged. Speculation mounted as to who might be the letter writer. The non-racialized staff came under suspicion, the question asked was, which of them was the racist, sexist, homophobic letter writer? The circumstantial evidence suggested the letters were coming from a CO from within the j ail. All of the non-racialized staff were under suspicion. The mix of fear, suspicion, false accusation and speculation as to the wrongdoer created a most unpleasant work environment. The racialized staff were fearful of what harm they may suffer; the non-racialized staff were resentful of the aura of suspicion that they might be the culprit. [61] To address the fear among the racialized staff, following the hate mail received in September 2005, a leading group of racialized COs arranged to have a meeting of the racialized employees of the Toronto Jail so that they could discuss the situation and the fear generated by the threatening letters. The meeting took place at the Real Jerk restaurant in early September 2005. [62] Many within Group B were critical of what became known as the Real Jerk meeting. Non-racialized staff were excluded from the meeting; only racialized staff were invited. The invitations were to both unionized staff and to OMI6s, members of management. This offended those excluded. They did not like divisions being made on racial grounds, and they did not like the combination of union and managerial staff meeting together to address employment issues - 21 - outside of the established collective bargaining structures. [63] The Real Jerk meeting was an opportunity for racialized officers to share the impact on them of the hate mail. Those who spoke told of the indifference of management to those who had taken leaves of absence as a result of the stress and anxiety they had experienced following receipt of the letters. Those present spoke of the need for an investigation into the origin of the hate mail so that the culprit could be apprehended. The meeting was restorative for those who attended; it gave them some comfort when, before, they had each been handling the stress of the situation alone. [64] A decision was made at the Real Jerk meeting to form a sub-committee to coordinate the efforts to remedy the situation. The sub-committee became the nucleus of what was to be Group A Those present decided to file grievances, claiming the existence of a poisoned work environment and requesting appropriate relief. [65] There is a factual dispute as to whether accusations were made at the Real Jerk meeting against particular white COs as part of the speculation on who might be responsible for the letters. The will say of Group A, which sets out the Union's allegations for Group A, says that an attempt was made to speculate who might be the letter writer, but that the meeting organizers immediately shut off this line of discussion. The willsay of Group B, which sets out the Union's allegations for Group B, claims that this speculation took place. After the meeting, reports were made to some white officers, later to be part of Group B, that they were named as the letter writer at the Real Jerk meeting. They were embittered by the false accusations against them and by being excluded from the meeting and so unable to answer the false accusations. - 22- [66] The day after the Real Jerk meeting, the principal suspect supposedly identified at the Real Jerk (without any evidence of him being the culprit), was suspended and then criminally charged on assault allegations, widely believed by Group B to be false. The accusation against him was supported primarily by the evidence of a racialized manager who had attended the meeting at the Real Jerk the previous evening. This impugned officer was off work for some months as a result of these allegations and was discharged a few days before Christmas 2005. He was eventually reinstated in February 2006, but he continued to face criminal charges until they were withdrawn in May 2007. The suspension, termination and charges were perceived by those in Group B to have originated from the accusations made at the Real Jerk meeting, further polarizing the workplace along racial lines. Those who supported the accused officer were perceived by some in Group A as sympathizing with the letter writer. [67] Following the Real Jerk meeting, on September 13, 2005, graffiti appeared listing five COs associated with Group B as "racists". Management covered the graffiti immediately and offered those named in the graffiti assistance through the EAP and time off on WSIB. [68] Those in Group B were justified to feel excluded from the Real Jerk meeting and to be troubled that the traditional regulation of work relationships through structured union- management interactions was being undermined. Something new was afoot and, understandably, it worried them. It is also understandable that those in Group A did what they did: they combined on racial lines to combat the threats of violence that appeared to be directed at them because of their racial identity. The threats were being made against them because they were racialized. The management had not shown them the leadership they felt was needed to combat the threats contained in the hate mail; nor had the traditional collective bargaining structures - 23 - within the jail. They felt they needed to address the issues as racialized employees in the first instance. That was the context in which they raised their concerns and their grievances within the Union. [69] So, in short, the reaction of both groups A and B to the Real Jerk meeting was understandable. Group A needed it to address their concerns as racialized workers; Group B naturally disliked the separation of workers on racial grounds. Though the reactions of the two groups were understandable, the effect on the workplace was severe. [70] The division between Group A and Group B was to emphasize racial division more explicitly and more divisively than had been the case previously. Easy interactions became more complicated; suspicions grew; offence was more readily assumed with small slights seen as insults; mean-spiritedness, the absence of generosity and hostility became common. The workplace was characterized by a generalized reciprocal disrespect. There were numerous complaints of harassment and discrimination. Being present at work became more stressful for all concerned. The racialized employees feared they may be the target of a threatening letter or that they or their family might be physically harmed by the perpetrator; the non-racialized employees wondered if they might be accused of racism or believed to be the justifiably despised letter writer; confidences and old friendships were broken. Virtually all felt some level of suspicion for their fellow employees, and the trust essential among COs in a dangerous workplace, such as the Toronto Jail, a maximum security institution, was significantly impaired. These are the hallmarks of a poisoned work environment. [71] The Employer convened a town hall meeting on September 25, 2005, after the Real Jerk - 24- meeting. The aim was to address the divisions m the workplace. The Toronto Police investigation officer into the hate mail was present. He reported that the letters were the subject of an ongoing investigation. According to counsel for Group A, the message conveyed by management was that the Real Jerk meeting had been divisive, a view that was not appreciated by those in Group A, who had found the meeting cathartic after the tension they had experienced as a result of the hate mail. Also, while the employees were hoping for solutions from the Employer, how the letter writing menace could be contained, the Employer apparently had no plan of action. Instead employees were invited to submit suggestions as to what could be done. From the employees' perspective, Groups A and B, the lack of a plan of action by management suggested lack of leadership, which undermined managerial authority in a situation that called out for clear direction. [72] From the Employer's perspective, little was forthcoming from the Union and the employees at what became known as the Town Hall Meeting, as to how to address the situation. Two suggestions were made that the Superintendent acted on. One was that she show a greater presence in the jail, walking around. She acted on this. The second was that she revive the Anti- Discrimination Committee that had been disbanded many years before. She did so in October 2005. The joint employer-union committee chose to rename itself the Workplace Restoration Committee. The mandate of the WRC was to take action to heal and restore the workplace. [73] It was at this point that the union grievance, the subject of this decision, was filed. The Union seeks recompense for those that lived and worked in this situation for a relatively long period until the divisions began to be seriously addressed. The workplace was a poisoned work environment and the employees who worked in it during that period are entitled to some - 25 - recompense as recognition for the discomfort and unpleasantness of working in the Toronto Jail during that time. [74] I think it fair to say that management of the j ail was resistant to the notion that there was racism within the jail. A discussion between the Superintendent and a prominent member of Group A, following receipt by her of a hate letter, revealed this. Management did not sufficiently recognize that racism was present within the workforce and that to root it out required more than memoranda and occasional training and reinforcement of decent values respecting diversity. [75] The WRC had the commendable aims of investigating racism in the jail, educating the staff on issues of racism, and trying to address the fractured situation. The WRC made recommendations for action to be taken in the jail, which the Superintendent accepted. In hindsight, the Union claims that the work of the Committee was undermined because its educational meetings were not mandatory for staff and there was no attendance by management, suggesting an indifference to the concerns by racialized staff of racism within the j ail. However, the Superintendent says that she took seriously the WRC's recommendations and implemented them. [76] In the ongoing McKinnon matter before the Human Rights Tribunal of Ontario (HRTO) an order was made for third party consultants to assist the Ministry to address issues of racism and sexism in the jails. The consultants apparently did not approve of the work of the WRC. As a result, the WRC ceased to operate once the third party consultants were appointed to work in the Toronto Jail, during January 2006. - 26- [77] From the perspective of those in Group B, the third party consultants appointed by HRTO exacerbated racial tensions within the workplace by being confrontational in their dealings with non-racialized staff and by encouraging racialized staff to make allegations of racism against non-racialized staff. For those in Group B, the presence of the consultants added to the poisoned work environment. [78] The role of the consultants was terminated at the joint request of the Employer and the Union in November 2007, nearly two years after their appointment. [79] In April 2006, a press conference was organized by certain racialized COs and a senior manager with the Ministry. This press conference was widely covered in the local news media. At this press conference allegations were made that white officers at the Don Jail were racists and guilty of racial abuse of both their racialized colleagues and racialized inmates. The claim was made that, "racist graffiti in the workplace, racial harassment, vile name-calling and death threats are part and parcel of daily life for black jail guards at the Don Jail and other Toronto jails" . [80] Those from Group B, through the Union, requested the Employer to discipline the manager involved in making these allegations. Those in Group B sought support from the Employer to disassociate itself from these statements or to publicly confirm its support for non- racialized staff at the Don Jail who had been attacked in a public forum. The Employer declined to do so. - 27 - [81] Those in Group B perceive the media coverage of the press conference as escalating tensions within the Don Jail because racialized inmates, who watched the press conference on television inside the jail, were incited to feel antagonistic towards the non-racialized officers. Those in Group B say they experienced an increased incidence of verbal and physical assaults by racialized inmates followed the press conference. [82] The statements made at the April 2006 press conference received secondary coverage from Share magazine, published in early October 2006. Again, despite repeated requests, the Employer refused to discipline this manager or distance itself from the published statements which those in Group B perceived to be libellous of them. [83] According to Group B, the Share article had a significant impact on staff relations with the racialized inmate population, because the magazine was freely distributed within the Don Jail. Verbal abuse and threats of physical assaults against non-racialized staff again escalated. [84] A walkout was organized by racialized staff at the Don Jail on January 16, 2008 to draw attention to racial issues in the workplace, including the hate mail. The walkout was the focus of media attention. Media outlets had been alerted and were on the scene as racialized officers walked off the job in the early hours. Non-racialized staff were kept unaware of what was to happen. The Union's Local Executive was kept in the dark as well, and only found out about it from the media coverage. [85] The media coverage of this walkout created the impression that racism remained rampant at the Don Jail and that many white officers were racists. - 28 - [86] The Union, representing Group B, alleges that the Employer failed to publicly affirm its support for non-racialized staff. [87] During the walkout, there was an institutional emergency, a Code Blue, that requires all staff to attend immediately. The officers who had walked out did not respond, leaving the institution short staffed. Non-racialized staff maintained the facility during the emergency. The perception of some within Group B was that that their racialized co-officers were more interested in publicizing the allegations of racism than they were in the safety of their co-workers and the security of the institution. This added to the antagonism with the jail. [88] During the Code Blue, an officer was seriously injured trying to stop a dangerous assault by one inmate of another. As a result, the officer was off work for over 18 months recovering from the injury. The injury was perceived by those in Group B to have been the direct result of the failure by racialized staff to respond to the Code Blue, as they were obliged to do. [89] The threatening letter addressed to all non-racialized staff at the Toronto Jail appears to have been prompted by the publicity of the January 2008 walkout. The letter was received in early February 2008, and included graphically detailed threats on white staff, their children and their families. Those in Group B are of the opinion that the Employer kept the letter secret for many months, concerned by its possible impact. This is not accurate because the Employer showed the letter to the Local Union President and to the Union when it was received. The Union is correct, though, that only much later was the letter copied and made available to the non-racialized officers. - 29- [90] Those in Group B were dismayed that agaIn the Employer failed to take steps to contradict the allegations of racism against the non-racialized officers made during the January 2008 walk-out. As a result, those within Group B were widely regarded as being racists. This harmed their working and their social relations. Those in Group B felt that they had been publicly identified as racists solely on the basis of their skin colour by members of Group A and that the Employer had failed to defend them from these allegations. They felt demeaned and, as a result of the slurs against them, they were subjected to increased levels of abuse from inmates, with a heightened risk of violence. [91] All of the employees affected by the Union policy grievance, those in Group A and those in Group B, suffered from increased stress, anxiety, and loss of self-esteem from working in an environment poisoned by racial suspicion and animosity. Efforts by the Employer to address the situation [92] Employer counsel argues that the Employer's response to the difficult circumstances in the jail was within the range of what was reasonably required. The reasonable precautions expected of the Employer are to be evaluated in the context of work in a correctional institution, which is inherently more hazardous than other work in the OPS (see OPSEU (Taylor-Baptiste) and the Crown in Right of Ontario (Ministry of Correctional Services), April 15, 1992 (Dissanayake), at pp.14-15). Optimum safety is not the standard to be provided by the Employer (p.24). As was said in Ontario Public Service Employees Union v. Ontario (Health and Long- Term Care), 2007 CanLII 46151 (ON G.S.B.) (Mikus), at ~110: - 30 - The obligation is not to protect against every possible risk, but to engage in reasonable precautions. What constitutes a reasonable precaution is to be determined by a fact- finding review of the circumstances, which will require a balancing of the safety interests of the individual and the operational interests ofthe Employer. [93] With increasing concern and intensity, the Employer tried to remedy the situation created primarily by receipt of the hate mail. The Employer points out its efforts under the following headings: communication to staff; improvements to the work environment; Ministry CISU and police investigation of the hate crimes; changes in mail procedures and security upgrades; and care and attention to those who received or were referred to in hate mail. Communication to staff [94] From 2004 onwards there have been many memoranda to staff regarding the Employer's professional and appropriate behaviour expectations. The inappropriateness and unacceptability of racism and racist behaviour were repeatedly asserted by the Employer in memoranda and at the muster meetings of the COSo There were also updates on developments at the j ail regarding the receipt of hate mail. The Superintendent convened the Town Hall meeting in September 2005 in the hope of addressing the deteriorating situation. From 2005 onwards, there was regular communication with the Union at the institution and at senior executive level confirming that racism would not be tolerated, reaffirming support for the victims of the hate mail, and committing the Ministry to a healthy and diverse workplace. There are many memoranda from the Deputy-Minister re-affirming human rights. The Employer was involved in June 2007 in establishing the Toronto Jail Local Systemic and Anti-Racism Organizational Change Committee (LSAROCC) within the institution. The Employer earnestly encouraged staff to - 31 - come forward and discuss the stressful situation5. From 2008 onwards there have been regular tours of the institution by the Superintendent and senior management designed to improve the overall communication between the Employer and the staff. Imvrovements to the work environment [95] The locker room and the lockers were cleaned of graffiti and repaired. New lockers were installed. Social events have been encouraged. As mentioned, the WRC was revived in an effort by the Employer to address the deteriorating work environment. Since 2008, as part of the workplace restoration required under this process, a number of systemic steps have been taken by the Employer to improve the workplace at the Toronto Jail. Management has encouraged social get-togethers among staff, as used to be common before 2005. Efforts have been made to clear the backlog of grievances and WDHP complaints and a WDHP database has been created. Strategies have been developed to significantly increase the recruitment of staff from diverse backgrounds. A substantial number of training programs for managers and staff have been undertaken to improve the quality of management and performance in the workplace. As part of the training, managers have been coached in human rights legislation and workplace conflict resolution. The standing orders have been updated. Additional phones and computers have been made available for staff. Senior management at the jail have tried to promote greater cooperation and consultation with the Union, particularly since 2008. There has been increased recognition of staff achievements. [96] The Employer has cooperated in establishing and implementing the systemic remedies 5 In practice, though, the opportunity for staff to do this was not wholly forthcoming until about 2008. - 32 - that have been required of the Employer under this process since 2008. Ministrv CISU and volice investif!ation of the hate crimes [97] Both Groups A and B want the hate letters to be investigated. Initially the Employer took the position that the investigation was strictly a police matter. The Union appealed to the Employer to use its powers under s.22 of the Ministry of Correctional Services Act to investigate the hate letters6. The Employer did so on March 9, 2007. This was later than it should have been. An extensive 18-month investigation was conducted under s.22 with the assistance of a highly skilled external police detective. A detailed report was made to staff at the jail of the investigation and its progress. Although commendable, the investigation did not identify the letter writer(s). The investigation was not intended to, nor did it, address the poisoned work environment. [98] At the Union's request, the Employer has agreed to have its own internal investigation reviewed by an independent investigator. Changes in mail procedures and security upgrades [99] The Employer says it took reasonable steps to address the potential threat of harm. Initially on its own, later with input from the Union, the Employer changed the mail procedures to meet the situation of anonymous mail coming to the jail and it has come to adopt the 6 It was historically unprecedented for OPSEU to press the Employer to conduct a s.22 investigation, given how unpopular such investigations are amongst the membership. The invitation reflects how seriously the issue was taken by the Union. - 33 - suspicious mail procedure (described in the Cox decision). [100] The Ministry has conducted an independent security audit of the institution, which included review of the parking lots, lighting, fencing, proximity to the street, cameras, escorts, and the number of radios used by staff. As a result the Toronto Jail now has 60 cameras (55 of them new) in the institution, with five in the parking lot. It has upgraded the admitting and discharge area and introduced a new x-ray machine and two new metal and non-metal detector Boss Chairs. Every staff member on duty now has a Tait radio. The parking lot is now fenced with access only by access pass. A narcotics detector has been acquired and put into use. The total cost of the physical improvements to enhance the safety and security of the officers is in excess of half a million dollars. Care and attention to those who received or were referred to in the hate mail [101] The Employer has provided assistance to individuals who were directly affected by the hate mail, as recipients, or as persons named in them by offering EAP support. The Employer appointed Ms. Ayers as an acting deputy superintendent in the jail. Among her functions was to liaise with the recipients of the hate mail and to provide comfort and support to them. The Employer has improved the security for the affected employees by conducting threat assessments, providing security systems in the employees' homes, giving them cell phones, offering taxi chits for travel to and from work, giving leaves with pay, developing return to work plans, and paying for counselling to letter recipients where necessary. The Ministry has also resolved virtually all of the individual grievances of those who received or were mentioned in letters, or who suffered some tangible individual harm, in confidential minutes of settlement. - 34 - Conclusions [102] It is as well to reiterate the test that is at issue: the extent to which the Employer fell short of what could reasonably have been expected of it in all the circumstances. The Employer accepts, under its agreement to liability, that it fell short of this standard, but its submission is that it did a lot to ameliorate the situation and it did not fall far short of what was reasonably to have been expected of it. The Employer's actions cushioned the impact of the hate mail. The steps taken by the Employer were a bona fide effort to address a very difficult situation. [103] I am satisfied that since 2008, as detailed in the willsay statements the Employer covering the period since 2008 and in the earlier decisions issued on collective systemic remedies in the workplace, the Employer has taken substantial steps to eliminate the poisoned work environment. It did so under strong, committed leadership in the jail (Superintendents Small, Jones, Calverley and Buhagiar) and at the regional level (Conry), in consultation with the Union, whose commitment to restoration of the workplace has been persistent and unwavering. Numerous new procedures were implemented to improve the quality and performance of the workplace. Staff were informed of all new developments. Professional standards were substantially revived. Discipline became more transparent than it had been. Pride in the institution is returning. Accordingly, no liability obtains for the period from 2008 onwards. [104] In large measure, the Employer did what it could to address the situation. There were no easy solutions. There were few direct suggestions from employees and the Employer carried out those suggestions that were made. However, as I found in the Cox decision, and as described above, despite the many efforts management undertook in the period from January 2005 to 2008, - 35 - the Employer did not sufficiently address the poisoned work environment, until 2008. It was slow to realize the gravity of the situation and how badly the workplace relationships had deteriorated. Once it did, it did not respond coherently to address the problem. Although the task was to an extent taken from the Employer by the order of HRTO in the McKinnon matter, the Employer's efforts, although well intended, were insufficient to the challenge. Because the problem was not recognized to be the systemic state of the workplace, but was seen rather as a series of isolated incidents, the Employer's efforts were inadequate and insufficient to bring comfort to the workplace. Not until 2008 was there a serious endeavour to elicit the Union's assistance to address the situation. [105] Until 2008, the employees of Groups A and B, for different reasons, did not have a workplace free from harassment and discrimination. Each of the individuals in these groups, for different reasons and in different ways, was subjected to harassment and discrimination on account of their race. Their race was the factor that divided them and, with few exceptions, put them into one or other group. Those racialized employees who resisted being identified by race were harassed for apparent disloyalty to the racialized employees. [106] Group B's claim is that the Employer has done little to address the concerns of those in Group B, particularly to combat the public perception that the non-racialized officers of the Toronto Jail are racists. This issue has been addressed in the systemic remedies developed by the Employer and the Union and can, if necessary, be part of their ongoing discussion. [107] Group A's complaints are that the Employer did too little in the critical period, 2005- 2008, to provide support and understanding to those who were the letter recipients, and that the - 36 - Employer did not sufficiently condemn harassment and racism within the institution. These complaints have now been substantially addressed in the individual settlements and in the systemic remedies the parties have agreed upon. [108] Significantly, in a memorandum to all staff on January 18, 2008, the Deputy Minister apologized personally to all staff, as follows: As I have previously communicated, there is no room for racism and discrimination in our workplace. I want to specifically bring to your attention the issues which have arisen at the Toronto Jail, involving the delivery of anonymous hate mail to some of our employees and managers. This has been the subject of recent media attention. Let me say that this type of behaviour is entirely unacceptable. These actions, whether by an employee or an outsider, are extremely hurtful to everyone and this organization as a whole. I personally apologize to all staff for the fact that this has happened and that despite the continuing efforts of the police and this Ministry, we have been unable to stop this reprehensible conduct. We continue to work actively with the bargaining agent to resolve these issues. I urge each of you to speak to your manager about any incidents of racism you may be aware of. Getting these matters into the open is the first step to effectively dealing with them and eliminating racism in our workplaces. Original signed by Deborah Newman Deputy Minister [109] It was only when the Employer began to seriously engage with the Union on remedies that the situation came to be addressed more rigorously. This was in 2008. That is also when Mr. Small took over as Superintendent. His initiatives substantially improved the situation. Com oensation [110] It IS important to note, In determining the quantum of damages, that none of the - 37 - individuals affected by the Union policy grievance can point to any specific damage or injury to themselves. None received any hate mail, none was personally referred to in any hate mail, and none was personally accused of being the author of the hate mail. Their claim is solely that they worked within a poisoned work environment for an extended period. [111] In light of the admission of liability by the Employer, as described, those affected by the Union's policy grievance are entitled to some compensation for the hardship of working within the poisoned work environment, as described above. [112] General damages are designed to compensate for, among other things, humiliation, hurt feelings, loss of self-respect, dignity, self esteem and confidence, and the experience of victimization7. As is contemplated in s.45.2(I) of the Human Rights Code8, RSO 1990, c H-19, the individual employees should be compensated for injury to their dignity, feelings and self- respect, to make up for the loss of the right to be free from discrimination. [113] I find that those in Group A likely suffered more than those in Group B because those in Group A had repeated letters threatening harm to them to contend with. The threats were that the racialized staff, who remained working in the jail, would be seriously harmed. Both groups had the other anxieties of being in the jail and having to deal with the divisions, suspicions, and breakdown of trust, but only Group A had to face the ongoing, frequently renewed, threat of serious harm because of the mere facts of their being racialized and continuing to work at the 7 See Pridham v. En-Plas Inc., 2007 HRTO 8 (CanLII) and the cases cited therein. 8 ... the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application: 1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self- respect. - 38 - jail. The Employer's liability, as I have said, is only for a portion of the damages incurred, only for its contribution to the major harm caused by the letter writer(s). The award recognizes this limited liability. The compensation awarded is considerably ameliorated by the steps the Employer took to remedy the situation, described above, and by the apology. [114] As I did in the Cox decision, I order the Employer to pay to each individual in Group A covered by the Union policy grievance the amount of $1,500. I order the Employer to pay to each individual in Group B covered by the Union policy grievance the amount of $1,000. [115] Now that this long sequence of cases (with scores of grievances) is drawing to a close, credit needs to be given to the Union for the dedicated manner in which it has pursued this and the other grievances for the various individuals and groups in the Toronto Jail. At an early stage the Union took the necessary step of arranging separate legal representation for Groups A and B. Counsel for both groups, under the Union's direction, have been steadfast in their efforts to restore the workplace and to obtain a just result for the grievors they have represented. The Union has invested heavily in the process for which it should be sincerely complimented. Equally, credit is due to the Employer and its counsel. Since the process began in 2008 of which this decision is a part, the Employer and its counsel have worked hard to accomplish the necessary tasks to restore healthy social relations within the workplace, to improve conditions of work there, and to see justice done to the individuals who have been harmed by what occurred. They too deserve to be sincerely complimented. - 39 - [116] I remain seized of the implementation of this decision. Dated at Toronto this 24th day of May 2011. - 40- Grievor GSB# Union File# Tardiel, Charlene et al 2005-1443 2005-0530-0022 Henry, Herman 2005-3859 2005-0530-0052 Jauha, Kulwinder 2005-3860 2005-0530-0053 Miller, Frank 2005-3861 2005-0530-0054 Joseph, Manoj 2005-3867 2005-0530-0060 Lindo, Karen 2005-3869 2005-0530-0062 Cataline, Johnson 2005-3870 2005-0530-0063 LaRose, Colleen 2005-3871 2005-0530-0064 Harries-Jones, Sarah 2005-3874 2005-0530-0067 Gray, Veronica 2005-3875 2005-0530-0068 Grant, Caroline 2005-3876 2005-0530-0069 Ellis, Donovan 2005-3879 2005-0530-0072 Dawjee, Khalid 2005-3883 2005-0530-0076 Stewart-May, Patricia 2005-3889 2005-0530-0082 Persaud, Bibi 2005-3891 2005-0530-0084 Ortiz, Florencio 2005-3893 2005-0530-0086 Olivierre, John 2005-3894 2005-0530-0087 Mohamed, Mohamed 2005-3898 2005-0530-0091 Thompson, Denise 2005-3901 2005-0530-0094 Tuan-Kiet, Doan 2005-3910 2005-0530-0103 Glover, Jason 2005-3912 2005-0530-0105 Montague, Roderick 2005-3917 2005-0530-0110 Tan, Joey 2005-3920 2005-0530-0113 Majid, Mohammad 2005-3922 2005-0530-0115 Skeffington, John 2005-3923 2005-0530-0116 Jackman, Marva 2006-0128 2006-0551-0002 Walcott, Pauline 2006-0422 2005-0530-0121 Marshall-Wilkinson, Joan 2006-0423 2005-0530-0129 Walji, Nasim 2006-0424 2005-0530-0123 Joson, Nelson 2006-0425 2005-0530-0124 Manrique, Lolet 2006-0482 2005-0530-0125 Union 2006-1079 2006-0530-0022 Williams, Simone 2006-1130 2005-0530-0127 Tardiel, Charlene 2006-1816 2006-0521-0022 Thompson, Denise 2006-2892 2007 -0530-0003 Rusteau, Harriet 2007-0328 2007 -0530-0020 Wilson, Debby et al 2007-1459 2007 -0530-0030 Singleton, Samantha 2007-1460 2007-0530-0031 Gray, Stewart 2007-1461 2007-0530-0032 Adesua, Olusola 2007-1462 2007 -0530-0033 Garisto, Joe 2007-1463 2007 -0530-0034 Mitchell, Ewen 2007-1464 2007 -0530-0035 Ward, Vaughn 2007-1465 2007-0530-0036 Morgan, Gracelyn 2007-1466 2007 -0530-0037 Etienne, Cavelle 2007-1467 2007 -0530-0038 Ramlal, Sylvia 2007-1468 2007 -0530-0039 Azeese, Ally 2007-1469 2007 -0530-0040 - 41 - Grievor Adair, Allan et al Cooney, Guy Perunovic, Stefanka Tanel, Luciano MacKey, Nigel Jagpal, Sam Flanagan, James Fryginberg, Elina Durdle, Philip Brown, Sidney Bazger, Hamza Parna, Elmar Montgomery, Mavis McNeely, Elizabeth Valaitis, Laura Pacheco, John Agnello, Tania Lino, Angelucci Ardito, Santa Bartosiewicz, Agnes Bolton, Karen Brooks, Tim Fitzpatrick, Carrie Hauery, Mark Haars, Catherine Kotsovolos, George Miklasz, Stanley Robbescheuten, Crystal Phillips, Stana Leppan- Triolo, Barbara Jacklyn, Denise Pacheco, John Pacheco, John Pacheco, John Christensen, Robert Pacheco, John Phillips, Stana Pacheco, John Leppan- Triolo, Barbara Miklasz, Stanley Nesovic, Zeljko et al GSB# 2005-3857 2005-3858 2005-3862 2005-3864 2005-3868 2005-3872 2005-3877 2005-3878 2005-3881 2005-3885 2005-3887 2005-3892 2005-3897 2005-3899 2005-3900 2005-3902 2005-3903 2005-3904 2005-3905 2005-3906 2005-3907 2005-3908 2005-3911 2005-3913 2005-3914 2005-3915 2005-3916 2005-3918 2005-3919 2005-3921 2005-3924 2006-0040 2006-0041 2006-0042 2006-0138 2006-0620 2006-0624 2006-2272 2006-3129 2006-3131 2008-1029 Union File # 2005-0530-0050 2005-0530-0051 2005-0530-0055 2005-0530-0057 2005-0530-0061 2005-0530-0065 2005-0530-0070 2005-0530-0071 2005-0530-0074 2005-0530-0078 2005-0530-0080 2005-0530-0085 2005-0530-0090 2005-0530-0092 2005-0530-0093 2005-0530-0095 2005-0530-0096 2005-0530-0097 2005-0530-0098 2005-0530-0099 2005-0530-0100 2005-0530-0101 2005-0530-0104 2005-0530-0106 2005-0530-0107 2005-0530-0108 2005-0530-0109 2005-0530-0111 2005-0530-0112 2005-0530-0114 2005-0530-0118 2006-0530-0005 2006-0530-0006 2006-0530-0007 2005-0530-0119 2006-0530-0016 2006-0530-0020 2006-0530-0086 2007-0530-0013 2007-0530-0015 2008-0530-0048