WIDE RANGING RULING AIMED AT FIXING RACISM IN CORRECTIONS UPHELD ON APPEAL: McKinnon v. MCS
The Divisional Court, by a decision dated December 23, 2003, has upheld a Human Rights Adjudicator decision aimed at addressing racism in the Ministry of Correctional Services.
The Human Rights Commission Adjudicator had ruled that the Ministry of Correctional Services has failed to comply with a 1998 order requiring training of managers. The training was needed to clean up the discriminatory workplace of an aboriginal employee of the Ministry, Michael McKinnon. The adjudicator found that, since 1998, there
has been a series of incidents which demonstrate "the atmosphere of the Metro East Detention Centre remains racially poisoned", and ordered wide ranging training, external investigators, and ongoing monitoring of how the Ministry deals with discrimination complaints. That 2002 decision is more fully summarized and the full text is available as Legal Update 27 on the
OPSEU website.
On appeal, the Divisional Court addressed the Ministry’s claim that the adjudicator had exceeded his jurisdiction and rejected it, by holding, in part, as follows:
[19] The finding of a poisoned workplace in which the complainant was continuously and repetitively harassed by his co-workers, made by the Tribunal at its original hearing in 1998, was found in the November 29, 2002 decision to have continued unabated. The Tribunal attributed the cause in part to the failure of the ministry to comply
with Order #12. To determine whether there had been compliance, it was necessary for the Tribunal to hear evidence….
[20] This does not appear to us to be embarking upon a fresh inquiry. Rather, it is the exercise of the Tribunal’s supervisory role to ensure delivery of an effective remedy. We are of the opinion that it was open to the Tribunal as part of its ongoing obligation to oversee implementation to recast its original orders to meet what it
found to be a continuing problem.
[21] …We are confronted in this appeal with a unique situation in which outrageous discrimination continued unabated for a period of approximately fifteen years and in which the Tribunal’s original remedial orders appear to have been at least in part, subverted.
Accordingly, the adjudicator’s decision, including the wide ranging remedial orders, was upheld.
The Ministry has been granted Leave to Appeal to the Court of Appeal.
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