Ruling Aimed at Fixing Racism in Corrections Upheld on Appeal: McKinnon v. MCS
The Court of Appeal, by a decision dated December 13, 2004, 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.
The Divisional Court upheld the decision in December 2003. The Ministry appealed again and the decision has now been upheld by the Court of Appeal, which ruled, in part as follows:
For the reasons that follow, we see no basis upon which to interfere with the decision of the Divisional Court and, accordingly, would dismiss the appeal…
The core of the problem here is that the Tribunal found that the Ministry did not act in good faith in attempting to comply with the order. The evidence supports that finding. The remedies devised by the Tribunal were responsive to the evidence. Given the findings of bad faith, the Tribunal could reasonably
conclude that these system-wide remedies were necessary to address the complaint by this complainant and ensure that the order was effective…
In terms of the scope of jurisdiction, again we affirm the reasons of the Divisional Court and note particularly its comments at para. 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 remedies appear to have been at least in part, subverted.”…
As found by the Tribunal, senior Ministry officials were made aware of Mr. McKinnon’s complaints and failed to respond in an appropriate manner.
The full decision is attached.
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