McKinnon v Ontario
McKinnon v Ontario (Ministry of Correctional Services) OHRT, 2011
- In 1979, the Respondent, the Ministry of Correctional Services, hired the complainant, an Aboriginal man named Michael McKinnon, to work as a correctional officer in its Metro Toronto East Detention Centre. McKinnon endured harassment on the basis of his Aboriginal ancestry for many years before filing the first of three internal complaints in 1988.Far from remedying the racially poisoned environment, his complaints led to workplace reprisals, including the unfair denial of promotions to McKinnon and his wife.
- In 1998, the Human Rights Board of Inquiry upheld McKinnon's complaint of racial harassment, discrimination and reprisals against the Ministry. When the Ministry failed to comply with the 1998 remedial orders, the Board issued a stronger set of remedies in 2002. The Ministry fought the 2002 ruling and was defeated by the Ontario Divisional in 2003 and the Ontario Court of Appeal in 2004. When, after the judicial battle, it failed to implement various orders by 2007, the complainant returned to the Human Rights Tribunal (as the Board of Inquiry is now called) requesting a third set of even stronger remedies. One of the orders was to create a division within Corrections to deal with harassment and racism within the organization. Another made the Deputy minister ultimately responsible for the implementation of the orders and for the disclosure of relevant information/documentation about the Division to the parties.
- When the Ministry allegedly failed to implement various orders by 2009, the complainant returned to the Tribunal in 2009. The Tribunal made two express orders, in April and July 2009, requiring the Ministry to produce all relevant information/documentation. In June 2010, upon discovering that the Ministry had been allegedly misleading the Tribunal and withholding a key document, McKinnon requested that the Tribunal file a prima facie case of contempt against the Ministry and Deputy Minister Hope. While the Tribunal acknowledged that it was impossible to find the crown or the ministry in contempt of court, it did proceed with a prima facie case against Deputy Minister Hope.
Over a period of five days, the ADM of the Ministry's Operational Effectiveness Division testified on behalf of the Ministry, giving glowing reviews of the OED, which had been created in accordance with the 2007 Orders in the goal of eradiacting racism and harassment in the Ministry of Corrections. After two days of cross-examination, however, it became clear that the Tribunal had been mislead; there were, in fact, serious issues of racism, bullying and mismanagement within the OED. The Tribunal learned that an investigation had been conducted following a series of anonymous emails from staff members within the OED; that the ADM who had been testifying so positively about the OED had, in fact, been recently stripped of his powers (and was subsequently terminated after the second day of cross-examination); and replaced by a team of police officers charged with straightening out the dysfunctional OED. It also came to light that an internal report (Operational Review) had been submitted to the Deputy Minister who had failed to disclose the document to the complainant, the Tribunal or its own counsel.
The Deputy Minister, who was ordered to appear before the Tribunal, admitted that he was aware of the 2007 orders - which were clear and unambiguous - and that he was aware that those orders gave him personal responsibility for the implementation of the orders and for keeping McKinnon informed about the operations of the OED. He admitted that the Operational Review was a highly relevant document. The Deputy Minister defended his non-disclosure of the document, arguing saying that he would have disclosed, in good faith, the document to McKinnon had McKinnon asked him for a copy and, that he had, in fact, disclosed the document as soon as the Tribunal ordered him to.
- Can the Tribunal state a prima facie case of contempt of court against Deputy Minister Hope for failing to disclose the Operational Review in a timely manner?
- In order to find a person in contempt of court, the tribunal determined that it needed to meet three tests. The first was to determine whether the evidence showed that a person breached section 13 of the Statutory Powers Procedures Act (SPPA). Then, it had to determine whether the orders that the person breached were clear and unambiguous. Finally, it had to show that the person purposefully breached those orders. Section 13 of the SPPA reads as follows:
Where any person without lawful excuse,
(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or
(b) being in attendance as a witness at an oral hearing or otherwise participating as a witness at an electronic hearing, refuses to take an oath or to make an affirmation legally required by the tribunal to be taken or made, or to produce any document or thing in his or her power or control legally required by the tribunal to be produced by him or her or to answer any question to which the tribunal may legally require an answer; or
(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,
the tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court. R.S.O. 1990, c. S.22, s. 13; 1994, c. 27, s. 56 (27).
- The Tribunal ruled that the Deputy Minister had breached part c of section 13 of the SPPA when it failed to disclose information about the OED to McKinnon in a timely manner. The Tribunal determined that the deputy minister was not personally responsible for the disclosure orders given in 2009; those were addressed to the Ministry (which is immune from contempt charges). Furthermore, the Tribunal ruled that it would be inappropriate to find the deputy minister in contempt for failure to comply with past orders of 2002 and 2007. However, the Deputy Minister could not just "wash his hands" of the matter. The 2007 orders made the deputy minister personally responsible for implementing the orders and for keeping McKinnon informed about the situation of the OED. This last direct order was clear and unambiguous. Deputy Minister Hope testified that he was aware of its existence and how it placed ultimate responsibility upon his shoulders. It is this order that the Deputy Minister breached in a deliberate and willful way; his claim that he would have disclosed the information to McKinnon had the complainant asked for it was, in the words of Hubbard, "devious", because it was impossible for McKinnon to ask for something of which he had no knowledge. The argument that the Deputy Minister did, in fact, disclose all relevant information was dismissed; it is the timely disclosure of relevant information which is required.