Divisional Court Dismissed Ministry of the Solicitor General and Correctional Services Appeal of the McKinnon Decision
by Selwyn Pieters, B.A.
The complainant, a corrections officer of native Canadian ancestry, alleged that he had suffered discrimination and harassment in employment on the basis of race, ancestry, and place of origin, as well as reprisal.
The allegations included the use by officers of unacceptable racial epithets; the presence of pictorial caricatures of the complainant on the bulletin board of the officers’ lounge; management's singling out of the complainant for harsher treatment; the denial of a promotion, and the discriminatory treatment of the complainant's wife, who was also a corrections officer.
The Board of Inquiry found that the failure of senior management to take appropriate and timely measures to deal with the conduct complained of constituted an infringement of the complainant's rights.
The Ministry was also held to be vicariously liable for acts of its employees relating to harassment and reprisal under the "organic theory of corporate liability" for the wrongful conduct of its employees engaged in while acting in their capacity as part of the "directing mind" of the Ministry. Thus, the Ministry was found to be jointly and severally liable with the other respondents for their infringements of the Code.
The Board of Inquiry found the personal respondents, Mr. Geswaldo, and Mr. James, liable for racial discrimination and harassment for their use of racial slurs, and their involvement in several of the "targeting incidents". The Board found the personal respondents, Mr. Hume, and Mr. Simpson, both members of senior management, liable for their role in decisions such as the removal of the complainant from the Admitting and Discharge area, and the transfer of the complainant into the "punishment ward" for 4 months.
Finally, the Board found that the complainant and his wife had been discriminated against in employment on the basis of their race, ancestry and place of origin when they were denied the entry-level management positions that they had each applied for.
Among other things, the Board of Inquiry ordered the personal respondents to make individual payments to the complainant ranging from $2,000 to $6,000; ordered to Ministry to compensate the complainant for difference between his salary and actual remuneration received by him while on "sick leave" owing to work stress; ordered the Ministry was required to promote the complainant and his wife to the positions that they had been denied; and ordered the Ministry to relocate one of the individuals that had been harassing the complainant.
by MacFarland J.
Ontario Superior Court of Justice, Divisional Court
Decisio0n Rendered: February 02, 2000
There's no explanation offered whatsoever to account for the dealy between June 14, 1999 and December 1999 when this appliation to extend the time for appeal was brought.While the doctor's affidavit was only sworn in December 1999, it does not in any way differ from the opinion he give on June 14, 1999 taht at that time Mr. Geswaldo was capable of "handling the emotional stress of pursuing an appeal."
In all of the circumstances this is not an appropriate case to grant an extension of time to appeal the decision of the OHRC rendered October 28, 1998 is dismissed.
The Board of Inquiry does not seek cost, and none are awarded. Cost to the Respondents McKinnon and to the Respondent OHRC fixed in the sum of $500.00 to each.
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