The Latest Development in Almost Two Decades of Litigation: McKinnon v. Ontario (Ministry of Correctional Services)

By Janina Fogels and Kate Hughes

The Ontario Human Rights Tribunal has issued yet another scathing condemnation of resistant employers who do not address racism and poisoned work environments in McKinnon v. Ontario (Ministry of Correctional Services) 1. Previously, the Divisional Court and the Court of Appeal, in upholding earlier decisions of the Tribunal, described this as "a unique situation in which outrageous discrimination continued unabated.” 2 In this latest decision the Tribunal has issued a further 34 remedies. The new decision by adjudicator H. Albert Hubbard mandates compliance by the Ministry of Corrections with systemic remedial orders aimed at cleansing racism from correctional workplaces and re-issues individual remedies for the complainant. 3

While employed at the Toronto East Detention Centre, Mr. Michael McKinnon, a correctional officer of Aboriginal ancestry, complained to the Ontario Human Rights Commission that while at work, he was subjected to constant racial taunts and slurs. Co-workers and supervisors had targeted Mr. McKinnon and his wife, also a correctional officer, over a number of years. The original 1998 Tribunal ruling found that the Ministry had engaged in systemic racism with respect to the McKinnons. 4

Despite the finding, Mr. McKinnon had to return to the Tribunal as the Ministry failed to make changes ordered and resisted reform. Meanwhile, his tormentors kept their jobs, or enjoyed promotions and other perks. Substantial litigation took place to enforce the original orders and to deal with retaliatory harassment Mr. McKinnon faced for having challenged the behaviour in the first place. 5

Unprecedented Findings

This 2007 decision is important for its wide-ranging findings against the Ministry and its far-reaching remedies. The Tribunal found that the Ministry’s obligation of good faith and fair dealing in the context of compliance with the Tribunal’s orders was “at least as high as in the context of dismissing an employee” – i.e., the obligation as set out by the Supreme Court of Canada in Wallace v. United Grain Growers Ltd. (c.o.b. Public Press). 6 The Ministry acted in bad faith with respect to making misleading statements concerning the degree to which it was complying with the order to implement systemic change in the workplace. The deadline imposed by the previous orders was clearly not met. The finding of bad faith was also grounded in the fact that the Ministry suppressed and failed to disclose documents that were germane to the litigation, causing prejudice to Mr. McKinnon's conduct of the case.

This bad faith conduct supported a finding of retaliation/reprisal for the original and ongoing human rights complaints. The Ministry was also found to have failed in its obligations on many other counts: it failed to provide Mr. McKinnon with information relevant to his reinstatement and safe return to work, to comply with previous Tribunal orders that allegations of racial harassment and discrimination be handled by external investigators, to make compliance with the Tribunal's orders a part of managers' evaluations, and, to take action against managers mishandling the situation.

Further, the Ministry was found to have rewarded wrongdoers by providing these managers and employees with better treatment (lavish monetary payments, covering legal expenses, to which they had "no legal or moral entitlement") than it did to Mr. McKinnon or any employees or managers testifying on his behalf. Finally, the Deputy Minister was found to have failed to be accountable for the Tribunal orders, taking a damage-control approach rather than a true reform approach to the orders issued in 2002

Unprecedented Remedies

As a result of these findings, the Tribunal issued both systemic and individual remedies. Organizational change was identified as paramount. The Ministry must now establish a province-wide tracking system for human rights complaints, workplace discrimination and harassment grievances and policy matters. Third-party, anti-racism consultants have been given wide latitude to effect organizational change and to eradicate racism from the ranks of the Ministry. The Deputy Minister must now establish a transparent system of delegation to competent personnel in assisting in implementation responsibilities. Managers have been made responsible for taking timely and appropriate action in response to violations of the Ministry’s workplace discrimination and harassment policy and the Tribunal’s orders. Finally, the third-party consultants were ordered to consider the need for an Aboriginal Issues Coordinator for both staff and inmate issues.

With respect to individual relief, the Tribunal made directions to facilitate the successful re-integration of Mr. McKinnon and his wife, including job-shadowing and assignments to acting positions. Interestingly, the McKinnons have been offered the option to secure positions with the “Workplace Effectiveness Branch”, a new unit within the Ministry charged with managing conflicts within the institution. It also ordered $10,000 as damages for mental anguish caused by the reprisal and general damages and compensation for various losses to be assessed for both Mr. and Ms. McKinnon, as well as an independent assessment of the value of lost opportunities suffered by both since 2002.

It remains to be seen how much the McKinnons are able to recoup in terms of their careers, and how the Tribunal will evaluate the opportunities they lost over the last five years. For this, another submission to the Tribunal in the near future is required.

Conclusion

Under Bill 107, An Act to Amend the Human Rights Code, the Human Rights Tribunal has enhanced powers to award damages. In particular, the cap of $10,000 on damages for mental anguish that existed at the time this decision was made has been eliminated. In addition, a new Anti-Racism Secretariat now has the power to initial research and make recommendations to eliminate race-related discrimination. Workplaces rife with racist behaviour and managers who tolerate it will, it is hoped, no longer be able to evade institutional reform.

1. [2007] O.H.R.T.D. No. 5.
2. Her Majesty the Queen in Right of Ontario, et al. v. Michael McKinnon, et al. (unreported) December 16, 2003) at para. 21.
3. [2007] O.H.R.T.D. No. 5.
4. McKinnon v. Ontario (Ministry of Correctional Services) (No. 3) (1998), 32 C.H.R.R. D.
5. See McKinnon v. Ontario (Ministry of Correctional Services) (No.4) (1999), 35 C.H.R.R. D/191; (Ministry of Correctional Services) v. (Ontario) (Human Rights Comm.) (2001), 39 C.H.R.R. D/308. McKinnon v. Ontario (Ministry of Correctional Services)(No. 7) (2002), 45 C.H.R.R. D/61, Her Majesty the Queen in Right of Ontario, et al. v. Michael McKinnon, et al. (unreported) December 16, 2003, and Ontario v. McKinnon, [2004] O.J. No. 893.
6. [1997] 3 S.C.R. 701.