Special Report

Special Report

of the Ombudsman Ontario

following her investigation

into the

Ontario Human Rights Commission

The Complaint of Ms. R

The Complaint of Ms. M

July, 1993

Ombudsman Ontario

July 26, 1993

The Speaker

Legislative Assembly

Province of Ontario

Queen's Park

Toronto

Dear Speaker:

Pursuant to section 21(4) of the Ombudsman Act, I am submitting to you these three special reports on the cases of Ms. R., Ms. M. and the Ontario Human Rights Commission so that you might cause them to be laid before the Assembly for its consideration and action as it deems appropriate.

Roberta Jamieson

Ombudsman

Ombudsman Ontario - Complaint of Ms. R.

November 19, 1992

Mr. Alok Mukheriee

Acting Chief Commissioner

Ontario Human Rights Commission

400 University Avenue

12th Floor

Toronto, Ontario

M7A 2R9

Dear Mr. Mukherjee:

Re: OHRC File No

.Ms. R.

My investigation of the above-noted individual's complaint against the Ontario Human Rights Commission is now complete. The following is my final report, issued under section 21(3) of the Ombudsman Act, containing the results of this investigation. Also, as required, a copy of this report has been sent to the Honourable Elaine Ziemba, Minister of Citizenship.

OMBUDSMAN'S INVESTIGATION

Ms. R 's concerns arose between 1986 and 1990, during the Commission's investigation into allegations of discrimination against her former employer, Respondent . The outcome of this investigation was that a prima facie case could be made out, both with respect to discrimination in employment against Ms. R , but also systemic discrimination against non-white employees at the Respondent Company." The Commission attempted . to conciliate -the matter and entered into settlement negotiations. Protracted exchanges took place amongst all the parties, but the Respondent's final offer to resolve the matter was not accepted by Ms R. In. a letter dated February 8, 1989, the Commission advised Ms R. of its decision not to recommend the employment of a Board of Inquiry. Ms. R. 's request for reconsideration was granted but the Commission upheld its original decision.

The contentions of the complainant which we have investigated may be summarized as follows:

1) The Commission's original investigation was inadequate and one-sided, as Ms. R- 's witnesses were not interviewed.

2) Throughout the investigation, Ms R. was treated in an inappropriate manner by the Commission staff..

3) At the final consideration of the case by the Commissioners, Ms. R 's case Was dismissed unreasonably without either Mr. S. Director of Compliance, or M r. E Reconsideration Officer, being-present.

4) The Commission delayed in dealing with her complaint.

5) There was a conflict of interest with respect to the personal connection between the then Chief Commissioner, Ms. Catherine Frazee and the Royal Bank. (Shortly after the occurrence of the problem of which Ms. R complained the account which she had maintained at the Royal Bank for ten years, was, without incident, restricted.)

6) The then Chief Commissioner's impartiality was questionable, given her beliefs -expressed in a Toronto Star article of August 24, 1989, which suggested that Ms. Frazee opposed the process of Boards of Inquiry.

At the core of the concerns brought to this Office was Ms. R. 's belief that the major redress which she originally sought, i.e., reinstatement, was overlooked or deliberately ignored by the Commission. She felt that the Commission attempted to coerce her into accepting an inappropriate monetary settlement and, in doing so, subjected her to harsh and unfair treatment.

It was the Commission's position that the investigation was extensive, detailed and thorough. Seventeen witnesses had provided statements, volumes of documents had been reviewed and extensive correspondence was exchanged among the Commission, the complainant, the Respondent and various counsel. As well, there were meetings and telephone conversation with Ms. R .. and several senior members of the Commission staff. The case was also reviewed by the systemic and research units of the Commission and the Respondent agreed to the full settlement proposals with respect to the systemic aspect of the complaint. In the Commission's view, Ms R. had rejected the settlement proposals, indicating "that she would only settle for one million dollars" and the matter was placed before the Commission for deliberation. It was determined not to request the Minister to appoint a Board of Inquiry. At reconsideration, the Commission upheld its original decision, concluding that there was no evidence to indicate that Ms. R. has been treated in anything but a courteous manner; that any relations the Chief Commissioner had, or may have had, with the Royal Bank of Canada or any other statements made regarding the process of the Board of Inquiry never affected the impartiality of the final decision in the case. The Commission also held that there were no undue delays in the processing of the case and that the complainant's allegations against the Commission were without merit.

Following a review of the Commissions' file, my staff interviewed Ms. R and discussed specifics of the case with her on several occasions. In chronological order, my staff also interviewed the following individuals:

1) Mr. M. , Investigating Officer;

2) Mr. W. , Acting Director of Compliance (former OHRC employee);

3) Mr. E. , Reconsideration Officer

4) Mr. F. , Counsel

5) Ms. F ,. Chief Commissioner;

6) Mr. S. , Director of Compliance;

7) Ms P. , Human Rights Officer;

8) Mr. C ,Manager,

We gathered the following information:

Ms. R. 's complaint was filed with the Commission on June 23, 1986, and was served on the Respondent on June 27, 1986. In brief, Ms. R a black woman of West Indian origin, alleged discrimination in employment because of race, colour, ancestry, place of origin, and handicap. She had commenced employment with the- Respondent,

Limited, in 1976 and was terminated May 16, 1986. For three years prior to termination, ,Ms. R. was employed as an Automatic Remittance Processing Operator. On April 20, 1985, while at home, she suffered a cut to her right thumb. When she returned to -work on May 1, 1985, physically unable to operate the automated machine because of her injury, she was assigned the position of Review Remittance Clerk. On July 18, 1985 Ms R 's regular position of Automatic Remittance Processing Operator was posted and was subsequently filled by someone else. After being displaced from her regular position, Ms. R. applied for various positions for which she was qualified but was not awarded any of them. As well, it appeared that she could have been placed in at least five of more than two hundred positions created within Respondent in Toronto, but was not given the opportunity to apply for those positions.

In September 1986, the Respondent's counsel replied to Ms. R -'s allegations by requesting the Commission not to proceed in the case, pursuant to section 33 of the Code, on the basis that her complaint was trivial, frivolous, and vexatious. In November 1986, the Commission advised the Respondent that it would proceed with the investigation and on January 20, 1987, requested from the Respondent documents relevant to the investigation. On February 23, 1987, a Fact-Finding Conference was held at which Ms. R requested in settlement of her complaint:.

reinstatement;

compensation for lost wages and benefits from date of termination to date of resolution; and

an amount of $15,000 for general damages.

To this request, the Respondent's solicitor expressed concern about Ms. R working under the same manager who she alleged had discriminated against her. It was pointed out that Respondent is a large employer and that the complainant was experienced-to work in-other areas. The Company, however, put-forward a counter-proposal:

relocation counseling;

letter of reference from a specific person in the Respondent's Company,

letters of explanation to the complainant with respect to problems in her bank account subsequent to her termination; and

six-months' salary.

Ms. R did not accept the Respondent's proposal.

FINDINGS OF THE OMBUDSMAN AND

ASSESSMENT OF THE COMMISSION'S RESPONSE

As regards each of the issues raised with my Office by Ms R.

1) I find no evidence which would indicate that the Commission's investigation was inadequate.

The Investigating Officer stated that, although in keeping with Commission policy, he reserved the right to decide how many and which. witnesses to be interviewed, in this case, all witnesses were interviewed and their statements were documented on the file.

During the course of our investigation, Ms. R. was not able to identify any witnesses who were excluded. However, she believed that Human Rights Officer, Ms. P , upon re-investigation, ought to have re-interviewed witnesses. My understanding is that Ms. P. a trainee officer, was directed to review the Company's documentation under the supervision of the Investigating Officer, Mr. M. . Ms.. P. 's review revealed systemic discrimination at Respondent Company which was made known to the Company. The Company then instituted corrective measures, as suggested by the Commission, and Ms. P. was sent back to check that these measures were actually in place. I accept that there was no re-investigation as understood by Ms. R. and in my view was that Ms. R. may have misunderstood the purpose of Ms. P. 's second visit. I, therefore, do not support this contention.

2) I find that Ms. R. was at times, subjected to less than professional conduct by Commission staff.

The Commission referred to meetings, correspondence, telephone conversations, etc. with several staff members and stated that their file review revealed no evidence that Ms. R. has been treated in anything but a courteous manner.

During our investigation, Ms. R. provided illustrations of what she considered to be unprofessional conduct and techniques employed by Commission staff in their attempts to get her to sign the Minutes of Agreement. For example, on one occasion she attended at the Commission's office at the scheduled time for a meeting with the Investigating Officer and waited several hours. The officer was not at the office, had not left word, and never showed up. On another occasion, the Acting Director of Compliance had kept her waiting.

While Commission staff acknowledged to my investigator that, on occasion, Ms. R. had been kept waiting, they did not feel that the period was excessive.

Ms. R. indicated that, on another occasion, she was informed by the Investigating Officer, Mr. M. that Ms. Q. Human Resources, Respondent, had requested a meeting with Ms. R. The tentative appointment was suggested- by Mr. M. who was supposed to confirm arrangements with Ms. Q. and Ms. R. Mr. M. never got back to Ms. R. until half an hour after the time of the proposed meeting. The following week, Mr. M. called regarding a settlement offer. Ms. R. attended at the Commission where she was shown one page of the offer. She insisted on seeing the entire document and was, eventually, shown it. The document, referred to the meeting which she had not attended because of Mr. M. 's failure to confirm, made disparaging comments about Ms. R. in this regard and indicated that this was further evidence that the Company was right to dismiss her.

We reviewed the document in question, which was a letter from Ms. Q. Vice-President, Human Resources, to Mr. M. . We confirmed that the tone of the letter was, indeed, quite harsh, portraying Ms. R. as hostile, rude, unreasonable, lacking in courtesy and inferring that she was unprincipled.

Mr. C. confirmed that he was aware of the problem with "the unconfirmed meeting" with the Company's Human Resources officer. He said he had questioned Mr. M. about it and was of the impression that Ms. R. knew about the meeting.

It was quite clear that this incident had a major impact on the Company's Vice-President of Human Resources, who expressed the view that it had "irrevocably deteriorated" the relationship between Ms. R and the Company to the point where there was a total absence of the confidence, trust and respect which were essential to a successful employer/employee relationship.

Ms. R. was adamant that the meeting had never been confirmed. There was no evidence from the Commission's careful review of the Company's records to indicate that Ms. R. had been unreliable or tardy or had failed to keep appointments, etc. In fact, the investigation suggested that the opposite was quite true. There was no evidence that Ms. R. had failed to keep any other appointments with the Commission. Rather, Ms. R. appeared to have been punctual, and as acknowledged by Commission staff, on occasion had been kept waiting. These factors, viewed together with Ms. R. 's credible presentation of evidence on the issue persuade me to give her the benefit of the doubt, especially since the evidence of the manager who investigated the incident was only that he had an "impression" that Ms. R. knew about the meeting

Ms. R. also stated that four members of the Commission staff attempted to persuade her to sign a release form without affording her an opportunity to read the Minutes of Settlement. Each of the four members of staff named was questioned on this issue, and each denied the allegation. In essence, each said that they had tried to explain to Ms. R. that the release was a necessary part of the settlement process and that the documents went together, but they denied that any attempt had been made to have her sign the release before agreeing to the terms of settlement as set out in the Minutes.

Ms. R. was re-interviewed on this issue and remained firm in her allegations. While I do not doubt the credibility of the Commission's witnesses on this issue, I remain concerned about the emphasis placed on the signing of the release, given the specific circumstances surrounding the case. In view of Ms. R. resistance to the various offers made by the Respondent, it would have been prudent on the part of the Commission to approach the situation with a greater degree of sensitivity. While it was certainly necessary to relate the two documents, i.e., Minutes of Settlement and release, the perception of coercion might have been reduced had less emphasis been placed on the signing of the release.

As another example of unprofessional conduct by the Commission, Ms. R. referred to the "late letter incident." On March 20, 1989, while in communication with the Commission with regard to reconsideration, Ms. R. received a letter by Priority Post dated February 20, 1989 from the Commission's counsel enclosing the final Minutes of Settlement and advising her that she had fifteen days from February 27, 1989 to execute these Minutes. Since Ms. R. received the Minutes after the fifteen-day expiry date, she protested and as a result was granted an extension to April 2,1989.

No clear reasons emerged as to why the letter was sent out one month late. The Commission's position was that Ms. R. was already quite familiar with the terms laid down in the Minutes of Settlement and was simply being given another chance to make up her mind.

From our investigation, it appeared that the problem might have arisen from a lack of communication between the Reconsideration Unit and the Legal Unit. However, because of the difficulties which arose between Ms. R. and the Commission in the course of the investigation, the incident might have reinforced Ms. R 's perception of pressure being brought to bear upon her.

3) I find that Ms. R. 's concerns respecting the absence of the Director of Compliance and the Reconsideration Officer, at Reconsideration were justified.

My understanding is that the Executive Assistant of the Chief Commissioner was responsible for coordinating meetings of Commissioners with respects to dates, time, venue, etc., and also attended meetings. It is also my understanding that the Executive Director was responsible for coordinating staff. Normally in attendance were the Directors of the various units. They in turn decided which members of their staff should also be present. The Reconsideration Officer, a member of the Compliance Unit, would be instructed by the Director of the Compliance Unit to attend. It was the evidence of the Reconsideration Officer that he routinely attended these meetings. The Reconsideration Officer had recommended in this case that the Commission's original decision be overturned and a Board of Inquiry requested. Further evidence of both the Director of Compliance and Reconsideration Officer was that they expected to be present at the meeting of the Commissioners in question and they were surprised that the case was dealt with in their absence. My investigator was advised by the Reconsideration Officer that, as instructed, he attended at the scheduled time and found out that the case had already been heard. The Director of Compliance confirmed that he usually attended these meetings but had not attended the meeting in question. On that date, cases went more quickly than usual and Ms. R. 's case was considered earlier than expected. He was available in the office but was not called for a case which, in his view, was controversial enough to warrant his presence. Mr. S. told my investigator that it was the usual practice to delay meetings while relevant staff members were summoned.

Mr. F. , counsel, acknowledged that the Director of Compliance ought to have been present at the meeting. However, he also expressed the view that there was enough information before the Commissioners for them to arrive at a decision. Mr. F felt that, since reconsideration of Ms. R 's case was related only to the settlement issue and an analysis of what was likely to happen at a Board of Inquiry, legal input was all that was required, and he was present to provide it.

The two officers who were excluded from the Commissioners' meeting were both strongly in favour of recommending a Board of Inquiry. Indeed, the Reconsideration-Officer's report was very critical of the conciliation efforts. In his view, those efforts focused on money, and little or no energy was devoted to the reinstatement issue. Both officers were convinced that they could have made a valuable contribution to the process, and the facts indicate that Ms. R. had been led to believe that these two officers would be present to speak to her matter at the meeting in question. This would seem to be particularly critical given the deteriorating relationship between Ms. R. and the Commission.

4) I find I cannot support Ms. R. 's concerns about the length of time required by the Commission to conduct the investigation

Our investigation revealed that Ms .R......'s complaint was formally filed on June 23, 1986, and was served on the Respondent on June 27, 1986. The Respondent's counsel first attempted to persuade the Commission not to deal with the complaint under section 33, on -the basis that it was trivial, frivolous, vexatious and made in bad faith. There was some correspondence on this and on November 4, 1986, the Commission advised the Respondent that the investigation would proceed. A Fact-Finding Conference was conducted on February 23, 1987, and from that date onward, documentation on file indicated -an active investigation. On May 19, 1988, -the Case Summary was disclosed to the parties and, in June 1988, both parties made additional submissions to the Commission. Further efforts at conciliation continued until February 8, 1989 when the Commission advised Ms. R. of its decision not to request the appointment of a Board of Inquiry

While I sympathize with Ms. R. 's view that two and a half years appears to be a rather long time to require to complete an investigation, it is also apparent that the specifics of this case dictated an investigative process that was time-consuming. The chronology. of events did not suggest that the file lay dormant for any excessive period. I, therefore, do not support Ms. R. 's contention on this issue.

5) I find no evidence to support Ms. R. 's contention that there was a conflict of interest with respect to the then Chief Commissioner's personal connections with the Royal Bank of Canada.

There was no evidence available to support this contention

6) I find that the view expressed by the Chief Commissioner in the article published in the Toronto Star on August 24, 1989 illustrated a reasonable policy of the Commission which is dictated by the legislation.

Ms. Frazee confirmed that her comments were intended to convey a preference for the conciliatory approach. She emphasized that the Commission's mandate was to seek conciliation under the Human Rights Code which is a remedial piece of legislation and was not intended to be punitive. Ms. Frazee's position is that only in cases where there was failure at conciliation will the Commission be prepared to go to a Board of Inquiry.

Central Issue

The main issues behind Ms. R. 's complaints were that:

a) She had been pushed to accept a monetary settlement instead of the reinstatement she sought; and

b) Her individual case was abandoned by the Commission in favour of pursuing the systemic issues with the Respondent.

In this respect:

7) I find that reinstatement was legitimate objective and the Commission acted unreasonably in not vigorously pursuing Ms. R. 's request for reinstatement during its conciliation process. While I can appreciate the Commission's eagerness to ratify the systemic portion of the settlement offer, it is my view that this was not the only process indicated for addressing this situation. I find as well that coercion was demonstrated in the application of an otherwise reasonable policy, and produced a result which was oppressive to Ms. R. .

Our investigation revealed that this was not the first complaint the Commission received about Respondent. We were advise by the that four such complaints had been received through its Scarborough office, all of which had been settled prior to investigation for sums under $5,000. Ms. R. 's evidence was that before the Fact-Finding Conference, the investigating Officer suggested that she should settle for $4,0000. This was substantiated by other members of the Commission staff. Ms. R. disagreed with this suggestion and, at the Fact-Finding Conference on February 23, 1987, requested:

� reinstatement;

� compensation for lost wages and benefits from date of termination to date of resolution;

$15,000 for general damages.

Following the Fact-Finding Conference, the Respondent, on May 5, 1987, offered six-months' salary but refused reinstatement. On May 15, 1987, the Respondent offered an amount equivalent to nine-months' salary, which was approximately $13,200. Ms. R refused and conciliation efforts continued. On March 7, 1988, in the absence of Ms. R. the Commission met with the Respondent's solicitor to discuss the investigation findings and the possibility of a settlement. On March 8, 1988, the Respondent made another offer; Ms. R. 's February 1987 proposal was again placed before the Respondent.

The record of conciliation indicates that, at a meeting with the Commission on March 25, 1988, two years after she first filed the case with the Commission, Ms R. stated that the Respondent's settlement proposal of $45,000 was unacceptable. The document noted that Ms. R was asked to be specific with respect to monetary terms and 'she insists on a Board of Inquiry. She said she wants blood, she was going for the jugular, she would consider a million dollars."' Ms. R 's account of that meeting was somewhat different. She confirmed that the amount offered at that time was $45,000 and stated that the Human Rights staff, and in particular Mr. C , expressed frustration at her refusal to accept the offer. In exasperation, he asked "what do you want? Blood?", to which she responded "if they will not reinstate me then let them pay me a million dollars or let a Board decide."

The final offer to Ms. R. was a cash payment of $74,178.55, which she refused.

The reasonableness of Ms. R. 's million-dollar demand was addressed in written and oral evidence by Mr. M. , Mr. C. , Mr. W. and Mr. F. . Others -- Mr. E. - Mr. S. and Ms. P -expressed the opinion that Ms. R. 's statement was taken out of context and diverted attention from the real issue. In any case, I note that the "demand" was made two years after Ms. R had first approached the Commission and was made out at a time when the Commission was well into an emotional and stressful investigation. I am persuaded by Ms. R. 's account of the incident, which also is consistent with the view of senior Human Rights staff members who felt that her comments were taken out of context and were -given undue emphasis.

With respect to the issue of reinstatement, I note that the Commission's lawyer, took the position that once Ms. R. secured other employment, approximately fifteen months after her release from Respondent , reinstatement became a non-issue. The Investigating Officer also stated that, when Ms. R acquired another job, she told interested in working with the Respondent Ms. R. denied this, stressing that this was unrealistic since the benefits attached to her new job did not measure up to her benefits at Respondent.

In the course of the investigation, it was apparent that, right at the conclusion of the investigation, Commission staff members were divided on the handling of Ms. R. 's complaint. The Director of Compliance confirmed that at the time there was general internal conflict at the Commission and specific conflict regarding the direction of Ms. R. 's case. During our investigation, Commission staff also consistently commented on the challenging and unusual nature of this case. This view was reflected in the Minutes of the Commissioners meeting of October 17, 1989. The Commission felt that the case "presented difficult challenges which the Commission ought to consider in the context of identifying lessons to be learned from this experience."

The Respondent appeared anxious to increase the settlement offer and the evidence suggests that some members of the Commission staff found it incomprehensible that Ms. R. could turn away from the amounts offered at different times. Efforts to convince Ms. R. that the various offers by the Respondent were reasonable contributed to -a very stressful situation for her. The fact that Commission staff had indicated to Ms R. that offers ranging from $4,000 to $74,000- were reasonable might well have created confusion and insecurity in Ms. R . Furthermore, at each meeting between Ms. R. and the Commission, officers of increasing levels of authorities urged her to accept the particular offer which they deemed to be reasonable. In my opinion, this in itself might be deemed to be coercive, especially since it appears that Ms. R. 's request for reinstatement was not being adequately addressed. It is my view that reinstatement was a legitimate objective which the Commission ought to have pursued more vigorously.

In view of the fact that Ms. R. felt herself to be caught between an oppressive employer on the one hand and a Commission which was either misunderstanding or ignoring her real concerns on the other hand, it was not surprising that she expressed her frustration with hostility. While I recognize that on occasion Ms. R. 's attitude might have seemed abrasive, I feel that this ought to have been taken within the context of the entire situation and not to have affected the perception of a settlement proposal. In my opinion, there was merit in her settlement proposal and, given the history of complaints against Respondent, there ought to have been reasonable consideration of Ms. R. 's request for reinstatement. A lack of effort by Commission staff in this direction was patent. It was particularly noteworthy -that, at reconsideration, the issue of reinstatement was not canvassed.

The Human Rights Code mandates the Commission to try to effect a settlement. The Commission's Investigative Procedures Manual expands on this and makes it clear that the Commission sets out to achieve settlements which are equitable and in the public interest. I have reviewed details of the Commission's policy on "reasonable settlements" and it is obvious that there is a basis upon which the policy may be justified as being reasonable. Furthermore, the court has stated on numerous occasions that it is not the purpose of the Human Rights Code to punish wrongdoers. In this sense, and light of the Commission's mandate where the Respondent is reasonable in making changes and compensation necessary to carry out the principles of the Code, the Commission ought to have a free hand to ensure the appropriate outcome. If its work were always tied to the wishes of the complainant, the Commission would. jeopardize its public interest role.

When it fails to effect a settlement and it appears to the Commission that the procedure is appropriate and that the evidence warrants an in inquiry, the Commission may request the appointment of a Board of Inquiry. Determinations as to whether or not the evidence warrants an inquiry depend on the particular circumstances of the case. One consideration will be whether or not the Respondent rectified the problems identified, or offered to provide proper redress for the alleged infringement of the individual's right(s). The Commission's policy is that, where the Respondent does these things, the Board procedure may not be appropriate. The Commission then advises the complaint of their option to sign the Minutes of Settlement or face dismissal of the case.

In my view, this policy regarding requests for Boards is a fair one and its application is justified in many instances. However, I do not think there can be any justification for the policy when elements of coercion are apparent, as there are in this case in the manner in which the Commission staff tried to convince Ms. R. to accept the Respondent's offer.

In my opinion, Ms. R. 's proposal for reinstatement was a legitimate objective, but it would appear that she was denied a Board of Inquiry because she refused to settle in keeping with the Respondent's objective. Ms. R. was asked to choose between the amount the Commission considered reasonable or nothing at all. In theory, it is always open to request the Commission to appoint a Board of Inquiry-after rejecting the settlement offer. It is clear from the Commission Policy and the correspondence to Ms. R. however, that a Board of Inquiry would not be appointed if this settlement was refused. In a sense, this left Ms. R. with no option at all and the effect was coercive. It is my view that in its application the policy can create opportunities for coercion and duress. When elements of coercion and duress are present, the application of the policy, although not the policy itself, may be oppressive. I am also of the view that , where a prima facie case of discrimination has been established, the Commission should be careful to consider whether the settlement terms truly rectify the problems identified in the individual case before deciding that a Board of lnquiry is not warranted.

On March 31, 1992, when my investigation was completed, the Commission was notified of my tentative findings and conclusions, pursuant to section 18(3) of the Ombudsman Act, so that it could exercise its right to make representations to me. I have given careful consideration to the representations made in its reply of June 15, 1992.

CONCLUSIONS OF THE-OMBUDSMAN

Having regard to all of the above, my conclusions are that:

1) The actions of Commission staff in, at times, subjecting Ms. R. to less than professional and courteous conduct, were oppressive.

2) The Commission's omission to fully consider and pursue reinstatement during conciliation of Ms. R. complaint was unreasonable.

3) The Commission's actions in pressuring Ms. R. to accept a settlement she considered inappropriate were coercive and, as such, oppressive.

[Ombudsman Act, R.S.O. 1990, c.0.6, s. 21(l)(b)]

I met with the Commission on August 4, 1992, to discuss my tentative findings and my tentative recommendation that Ms. R. be provided with compensation which appropriately redressed her losses. The Commission indicated this suggestion would be Considered.

In its further representations of September 2, 1992, the Commission suggested that it could approach the Respondent to determine if it was still receptive to extending an offer of settlement to Ms. R. .

I acknowledged the Commission's suggestion. I noted, however, that my investigation has-focused on the actions of the Commission and I am concerned that actions of the Commission which I consider to have been unreasonable be appropriately recognized and redressed. I advised that I would not consider the matter resolved if the Commission undertook this action but found that the Respondent was unwilling to consider settlement at this stage.

I am recommending the Commission pay Ms. R. $75,000.00 compensation. I believe that this figure is an appropriate remedy, given that the Commission's investigation "determined that a prima facie case could be made out, both with specific respect to 'discrimination in employment against Ms. R. as well as systemic discrimination against non-white employees at the Respondent company."

I am further persuaded that compensation is appropriate, as Ms. R. has been provided no other remedy. I am convinced that her refusal to accept the financial package offered by Respondent was influenced by the widely varying options and advice that she received from Commission staff over a period of time , as to what they considered fair compensation.

Furthermore, I am persuaded to recommend this amount of compensation, given that the Commission's handling of Ms. R. 's case effectively denied her the opportunity to achieve her goal of reinstatement. Clearly, Ms R. experienced a loss of income and benefits when she was out of work for 15 months following her release from Respondent. When she did find subsequent employment, it was at a lower rate of pay and had fewer benefits than her former position provided. Furthermore, I believe that the amount of compensation reflects the fact that Ms. R. has no other redress available to her. I -am aware that the Commission recently approached- Respondent to inquire if the offer made to Ms. R. was still available. I have been advised that Respondent is not prepared to follow through on its offer, given the passage of time.

Given the long history of this case, and the position of the Respondent the appointment of a Board of Inquiry would serve no useful purpose at this late date. Because there is now no other means of achieving a fair settlement to this case, I -think financial compensation in the amount of $75,000.00 is appropriate.

Accordingly, in order to respond appropriately to the above conclusions:

I recommend that Ms. R. be provided with an apology and $75,000 compensation to redress the unreasonable and unprofessional handling of her case.

[Ombudsman Act R.S.O. 1990, c.0.6, s. 21(3)(g)]

If you have further representations to make to me in this matter, I would appreciate receiving them by December 11, 1992.

I am enclosing for your information a brief summary of our procedures, so that you may be aware of the consequences which may accompany my final recommendation in a matter such as this.

Yours sincerely,

Roberta Jamieson

Ombudsman

Enclosure

cc: The Hon. Elaine Ziemba

Minister of Citizenship