Meeting 10: Indigenous Issues

Facts

 Ms Baker, who describes herself as First Nations, had been employed in housekeeping at the respondent College for nine years when the following isolated incident occurred.  In August 2010, during a lunch break, her manager made several “derogatory” and “inflammatory” and statements about First Nations[1] peoples. Ms. Baker, who had been removed from her family and placed in a residential school at a very young age, was very offended and hurt. The College responded quickly, taking the following actions:   

• Launched a thorough investigation of the incident;
• Suspended Ms. Nelson during the course of the investigation (from August 19 to September 21, 2010);
• Prohibited Ms. Nelson from having any direct contact with Ms. Baker;
• Assembled all Faculty members and staff for the purpose of restating and reinforcing the College's Principles of Community, its policies regarding discriminatory comments and behaviour and its "unequivocal expectation" that all employees would abide by these principles;
• Directed that Ms. Nelson write a letter of apology to Ms. Baker;
• Retained a prominent mediator with extensive knowledge and experience of First Nations issues to hold a mediation/facilitation session on September 15 with Ms. Nelson, Ms. Baker and other staff members who had witnessed the comments which are the subject of the complaint, during which time further oral apologies were made to Ms. Baker by Ms. Nelson and the other staff in attendance;
• Put Ms. Nelson on notice that any further similar misconduct would result in the immediate termination of her employment;
• Required Ms. Nelson to take, and enrolled her in, a number of courses and seminars to teach her how to conduct herself as a manager in a respectful workplace, which Ms. Nelson completed;
• Held "respectful workplace seminars", presented by a professional facilitator, mediator, trainer and coach who holds a Master's degree in dispute resolution, on November 2, 2010 to its Food Services, laundry and housekeeping staff members, including Ms. Nelson;
• Held meetings with Ms. Baker and provided a letter of apology from the College; and
• Made accommodations regarding Ms. Baker's position during the summer months in order to avoid having Ms. Nelson become her temporary supervisor during that period. [2]

While Ms Baker agrees that the steps taken by the college were sufficient, she remained unsatisfied. She maintains that the steps taken by the College did little to correct Ms. Nelson’s attitudes, to alleviate her mental distress, to provide adequate work accommodation.  Deeming the college’s response to be “inadequate and ineffective”, Ms Baker filed a complaint with the Tribunal, requesting the following orders:

• That appropriate steps are taken to prevent this type of conduct, including adequate training for Ms. Nelson
• That she be provided with counselling or stress relief services to alleviate her aggravated medical condition and to ensure that she feels safe work;
• That she be ensured that her employment, especially in the summer months, will not be compromised as a result of this incident; and
• That she is appropriately compensated for expenses incurred, including medical expenses and injury to dignity, feelings and self-respect.” [3]

Issue

Should the Tribunal take on this case?

Decision

No

Reasons

The Tribunal emphasized the “importance of encouraging parties to resolve matters internally and in a manner reflective of the purposes of the Code” [4] and underscored that “absent any extenuating circumstances, when an employer or service-provider responds promptly and appropriately upon becoming aware of a potentially discriminatory situation, it would not further the purposes of the Code to proceed with a complaint against that respondent.”[5]  It reminded the parties that the standard to meet in human rights processes is not perfection but rather reasonableness.  With these principles in mind, it used the following criteria to determine that the college’s response was adequate:

 The seriousness of the alleged discriminatory conduct;

• Whether the respondent acknowledged the discriminatory conduct;
• The reasonableness of any remedial steps undertaken by the respondent (including the timeliness of its response, whether there was an investigation, whether the respondent had a non-discrimination policy, and whether there was compensation for any loss of wages, employment or other costs or damages incurred by the complainant); and
• The importance of encouraging both employers and employees to address allegations of discrimination in a direct, timely and constructive manner. [6]

While the manager’s conduct was discriminatory, and therefore serious, it was limited to a set of offensive comments made on one informal occasion. The complainant did not face any negative job action (loss of wages, employment or other costs) and she did not allege that the comments reflected the attitudes of the employer or that they demonstrated a systemic barrier against First Nations persons at the College. The respondent acknowledged the discriminatory conduct, as did the manager.  The College embarked upon a human rights resolution process that was “responsible, sensitive, prompt and proportionate”[7].  While the remedy was not perfect (because it involved the modification of Ms. Baker’s job duties so as to separate her from the manager), Ms. Baker did give her consent. In the end, the Tribunal determined that a hearing would not have come up with any new remedies except, perhaps, for the award of monetary damages.  It found that the cost of holding a hearing greatly outweighed the monetary damages that Ms. Baker might receive.

Facts:

The Faculty of Health Sciences at Brandon University has a program called the First Nations and Indigenous Counseling program (FNAC). Its website describes it as follows:

The coexistence of the FNAC within the Faculty of Health Sciences was not harmonious. In 2006, the Director of the FNAC made allegations of harassment and discrimination against the University.  In addition, BUFA (Brandon University Faculty Association) filed a policy grievance (March 2006) against the University regarding the management of FNAC. Dr. Shirley Katz was commissioned to investigate the allegations of the Director and BUFA’s policy grievance. She found that no acts of discrimination or harassment had occurred but “identify[ed] errors and problems made by the University in dealing with the former Director of the FNAC program”. In July 2007, a BUFA filed a second policy grievance (substantially similar to the first) in which it defined the nature of the grievance as follows:

 “The Employer has fostered, and allowed to continue, an environment of disrespectful and patronizing behavior with regard to those involved in the First Nations and Indigenous Counseling Degree Program. The staff and guest lecturers in the First Nations and Indigenous Counseling Degree Program are treated are treated differently than in any of the other facilities at the University.”

The parties asked A. Blair Graham to arbitrate/mediate a settlement on behalf of the parties and, in the case of non-agreement, to resolve outstanding issues by the granting of remedial orders. 

Issues

1. Should the University be ordered to make a declaration of having allowed a poisoned environment to exist at the FNAC and of having failed to alleviate the problems that existed there
2. Should the arbitrator order that parts of the Respectful Environment Policy (covering harassment, discrimination, personal harassment and workplace violence be amended, notwithstanding the fact that it is a Board of Governor’s Policy?
3. Should the arbitrator order that an advisory committee to the FNAC program be established?
4. Should the arbitrator order the convocation of joint meetings to monitor and assess the state of relations between the Indigenous committee and the larger University community
5. Should the arbitrator order who should sit on the FNAC selection committee, start and end dates of advertisements for 2 academic positions; and timing of the hiring of the Coordinator?
6. Should the arbitrator order that a revised protocol for the use of the ceremony room be adopted?
7. Should the arbitrator order that a “multifaceted” educational strategy about living and working with Indigenous colleagues and students be “regularly and repetitively” offered to all faculty, support staff and students at Brandon University and reviewed systematically to monitor effectiveness?

Decisions

1. No
2. No
3. Yes
4. Yes
5. Yes
6. Yes
7. Yes

Reasons

1. Due to lack of evidence, appropriateness and usefulness, the arbitrator denied this part of the grievance
2. The arbitrator felt that since it was a board of governor’s policy, it would be inappropriate for him to make any such orders of amendment.  However, he did make a number of recommendations, some of which were in accordance with the wishes of the association, others in accordance with those of the university.
3. Yes, and the parties were in agreement on the substantial features of such a body, which the arbitrator formalized into an order
4. Yes, and the parties were in agreement on the substantial features of such meetings, which the arbitrator formalized into an order
5. Yes, and the parties were in agreement on the substantial features of such meetings, which the arbitrator formalized into an order
6. Yes, and the parties were in agreement on the substantial features of such meetings, which the arbitrator formalized into an order
7. Yes, and the parties were in agreement on the need for such an initiative, which the arbitrator formalized into an order (see below)

Order

An Order is hereby granted that the University shall promptly undertake educational initiatives which will feature the following elements:

a)  All new employees will be given two sessions as part of the new employee orientation each August.

The first, done by a Brandon University Indigenous faculty member will be a presentation which will provide new faculty members with perspectives on how to teach and work effectively with First Nations and Indigenous students and colleagues. The second, which will be presented by the Director of Human Resources, will provide all new employees with information, and an opportunity to discuss the Respectful Environment Policy, the definitions there under, and the processes contemplated by the Policy, and will also provide all new employees with information and an opportunity to discuss expectations regarding human rights discrimination and harassment, personal harassment and workplace violence;

 b)  Members of the general University community, including faculty, support staff and students, will be invited to attend semi-annual sessions on how to teach and work effectively with Indigenous students and colleagues. Specific topics may include cross-cultural awareness, Indigenous traditions and cultural practices, Human Rights principles, and anti-discrimination practices, stress in the workplace, and Respectful Environment Policies. These sessions will be not less than 60 minutes in length, and will be held each October and February, beginning in October, 2009. They will be offered two times in one week, either on two consecutive work days, or on alternate work days, to enable as many people as possible from the University community to attend. Facilitators may include:

 i) Faculty or instructional associates from Brandon University, or other universities that have extensive experience in Indigenous post-secondary education;

 ii)  Elders with relevant experience; or

 iii) any other outside facilitator with appropriate qualifications and experience.

Notice of these events will be distributed widely in order to encourage attendance from all segments of the Brandon University community. Attendance will be encouraged, but will not be mandatory;

 c)  In addition to the foregoing, within the School of Health Studies, the acting Director of FNAC, or the Co-ordinator, as the case may be, will be asked to continue to lead sessions periodically with senior practicum students on the importance of being knowledgeable about Indigenous cultures when working with Indigenous individuals, or their communities;

 d) Members of the general University community, including faculty, support staff and students, will be invited to attend semi-annual sessions on Human Rights principles, and the Respectful Environment Policy, as it presently exists, and as it undergoes change, in the October/November, and February/March time periods in each year, starting in October/November, 2009. The sessions shall be conducted or facilitated by the Learning and Development Officer;

 e) The University and BUFA will attempt to agree on a process whereby the above-noted programs and initiatives will be reviewed to assess their effectiveness, and whereby some or all of the programs and initiatives will be changed if necessary to improve their effectiveness, or ultimately discontinued if they remain ineffective, or if they are no longer required.

When is it not discriminatory to prefer Indigenous candidates over non-Indigenous candidates in a job competition?     

Facts:

The complainant is a non-Indigenous man who had enrolled in, but had not completed, a psychology program at Laurentian University.  He had worked at the Ininew Friendship Centre (a non-governmental organization providing services to Indigenous persons of all ages) from 1997 to 2006 as an on-call relief worker (1997-2003) and then as a part time Special Needs Counsellor (2003-2006).

In 2005, an Indigenous woman was hired as Director of the Centre in favour of the applicant.  He resigned in 2006 “expressing concerns about delivering the Indigenous component of his program within the allotted 30 hours a week”.  In 2006 applied for two positions (Prime Worker and then Special Needs Counsellor) the first of which was granted to an experienced Indigenous candidate who spoke Cree fluently and the second of which was a qualified Indigenous candidate who spoke Cree a little.  The complainant filed two complaints with the Tribunal (2005 and 2006) which is treated them as a single complaint. He submitted medical evidence that the denial of the jobs caused him emotional pain and hurt feelings.  

Facts about the respondent:

1. Advertisement Policy: The Ininew Friendship centre posts its positions internally for three days before posting in the local newspaper. It explains that although this limits the applicant pool, it also increases the chances that the applicant will in fact take the job.
2. The ability to speak Cree was listed in the first posting (Prime Worker) as an “asset” and in the second (Special Needs Counsellor) as “preferred”
3. The mandate of the Center is to serve the Indigenous community
4. The Center’s policy manual “provides that every effort will be made to recruit Indigenous candidates for all positions that become available in order to fulfill its commitment to providing positive role models to the community and to the training and development of Indigenous people. The respondent submits that this preference to hire Indigenous Workers is intended to assist Indigenous persona achieve equal opportunity.”

Issue

Did the Ininew Friendship Centre discriminate against the applicant when it failed to hire him?

Decision

No

Reasons

1. The other candidates were more educated, qualified and/or experienced than the candidate (18)
2. The other candidates spoke Cree and “within a Cree-speaking friendship center such as Ininew, the ability to be able to communicate with the people it serves, particularly the elders who have limited or no fluency in English or French, is necessary to maintain its mandate and promote Indigenous culture, language and traditions”(16)
3. The respondent argued that the Center and its programs (especially those associated with the posted positions) qualified as “special programs” targeted at alleviating group disadvantage. As such its hiring preferences are not considered to be discriminatory.

Facts

 The applicant, Dr. Mary An Corbière, is an Indigenous assistant professor with the Department of Native Studies at the University of Sudbury. Dr. Corbière filed a number of grievances against the university, all of which were settled or resolved in 2009.   The grievances dealt with the following issues:

Denial of promotion to associate professor

• Issue:  Based on an “[unreasonable and arbitrary ]interpretation of the criterion regarding scholarly work”, the president of the University of Sudbury denied the applicant a promotion despite the recommendation of the Faculty Affairs committee
• Settlement:  The grievor’s immediate promotion to associate professor following the publication of a named work.

Teaching load

• Issue: After a sick leave, the professor was given a workload that she found to be unreasonable
• Settlement:  Relief in the form of the subtraction of one 6 credit course

Handling of Student Complaints

• Issue: The University placed a letter of reprimand fin the professor’s file for “uncooperativeness” in the wake of its attempt to handle student complaints against her.
• Resolution: The grievor agreed to drop the grievance when the University agreed to remove the letter from her file.

Deduction of overload pay

• Issue: The University deducted $500 from the grievor’s overload pay
• “Full and Complete Settlement”: The University reimbursed the grievor in full.

 In 2010, Professor Corbiere filed an application with the Tribunal against the University, the principal and the head of her department.  She presented six issues, four of which relate to the same factual circumstances of the four settled or resolved grievances but reframed through a human rights lens. The applicant acknowledged that these grievances had been heard and resolved/settled. However, she maintained that collective agreement issues were different from human rights issues, so she should have the right to file the human rights elements of those cases.  

Two additional allegations within the application included an allegation of discrimination/harassment by the president as well as the change in criteria for eligibility for membership in the Board of Regents

Issue

Can the applicant allege that the settlement of her grievances did not address the human rights elements of her concerns?

Decision

Yes

Reasons

• The Tribunal pointed out that it could hear a human rights allegation stemming from a settled grievance if and only if the grievor had been unaware that her grievance included human rights elements (Zu v Hamilton City at the time. In this case, the documentary evidence shows that Corbière was fully aware of the human rights elements of her case; she had taken steps to remedy them at the university. Her failure to include human rights concerns in the promotion and overload grievances does not now give her the right to file a human rights application. Moreover, the applicant was told that she could not use any incident related to the promotion grievance in her claim against the president. 
• The Tribunal saw the human rights reframing of the work load issue as an abuse of process; it determined that the applicant was “now attempting to re-frame the same factual circumstances as a different allegation” especially since 1) she had no documentary evidence showing that the parties had not discussed the timing of the work load as part of the issue; and 2) she had not made any reference to “disability” in her application
• The Tribunal pointed out that the applicant could have filed a human rights complaint if she had withdrawn from the grievance process due to dissatisfaction with that process. However, in this case, the applicant withdrew her grievance as part of a satisfactory resolution process resulting in the removal of the letter of reprimand from her file. 

Facts:

In 2008, the Ministry of Municipal Affairs and Housing contracted the Consulting Matrix Inc. to provide Indigenous relations training (based on a training session provided for another Ministry) for its staff in Northern Ontario. The theme of the training included “the Indigenous peoples, culture and history in Ontario, an understanding of treaty rights, claims and assertions and Indigenous relations; and an introduction to engagement with Indigenous peoples” (19).  The Matrix provided the Ministry with two instructors: an Indigenous woman (to give an Indigenous perspective) and a non-Indigenous male (to give the crown perspective).  There was no contractual relationship between the Matrix’s instructors and the Ministry.

After the first training session, the regional director of the northwestern services office of the MMAH (who had moderated a training session with the applicant in 2007) received negative oral feedback from three staff members about both presenters. The director called the consulting firm to voice his concerns about the two instructors and to request the removal of the Indigenous instructor. Upon the request of Consulting Matrix, the decision was delayed until the parties had the opportunity to assess the written evaluations. The latter assessed the overall training session given by both presenters, and was very poor; only 33.33% of the attendees found the training to be “very good” (whereas the government training standard was 85%).  There were negative comments about the attitudes, knowledge and presentation styles of both the Indigenous and the non-Indigenous trainers; however there were more negative comments about the Indigenous trainer. Some of those negative comments about the Indigenous presenter included assertions that she was “being blitzed” “spacey”, “disconnected” and involved with “drug abuse”.  Others commented on her defensiveness/confrontational attitude at the end of the training session when she reacted to an offensive comment made by the other speaker about the duty to engage in meaningful consultation with the Indigenous community (he spoke of the importance of “covering [one’s] ass” by, at minimum, making a phone call.

The Ministry required Matrix to coach the non-Indigenous instructor and to replace the Indigenous instructor.  Matrix complied but was unhappy with the Ministry’s decision. It would have chosen to coach both instructors. The Indigenous instructor was replaced by another Indigenous instructor, who was very well received by the staff.  The non-Indigenous instructor was coached, but continued to receive poor evaluations for the remaining training sessions.

Issues

Is an inference of discrimination more probable than not based on all of the evidence?

Decision

Yes

Reasons

“Upon reviewing all of the evidence before me, I find that it is more probable than not that the applicant’s race was a factor at play in the Ministry’s differential response between her and A.B. I make this finding for the following reasons:

1. Both trainers had performance problems at the training and yet they were treated differently. On its face, one of the difference between the trainers is their race;
2. The distinction made by the Ministry to justify the differential treatment is illusory. There is no meaningful difference between a presentation that is poor because it is delivered in a monotone way and a presentation that is poor because the presenter is “spacey”. Both traits could be perceived as disconnectedness. The particular criticism made about the applicant’s presentation style does not take into [consideration] cultural differences that may exist in the communication styles of the two presenters;
3. The applicant was criticized for being opinionated or attitudinal and yet she was retained as an Indigenous person to provide training from an Indigenous perspective. One might expect an Indigenous person to have opinions about the subject-matter of this particular training;
4. A racial stereotype was used by Ministry staff to describe the applicant’s demeanour. It was unclear to me how a link was made between the applicant being disconnected when presenting the slide material and allegations of drug abuse
5. The applicant was subject to greater scrutiny and a more punitive response than A.B. who continued to perform poorly throughout the training. A.B. was seemingly immune from consequences for his performance;
6. The applicant was blamed for the low overall rating of the training even though it applied to both presenters and the training as a whole. The negative comments on the individual assessment were also predominately attributed to the applicant even where she was not identified;
7. The applicant may have had bona fide reason for being defensive at the end of the training in light of the comment made by A.B, and yet she was given no opportunity to explain her performance prior to the decision to direct the termination of her contract.

 Order

The Tribunal ordered the Ministry to pay the applicant $20,000 in damages

Facts

A group of Innu teachers filed a complaint of discrimination against the Conseil des Montagnais de Natashquan claiming that non-Innu teachers were receiving benefits that were being denied to Innu teachers on the basis of race. These benefits included isolated post allowance, annual outing allowance and housing allowance. The benefits were outlined in a policy that was changed in 2007. 

Isolated Post Allowance

In the first policy, isolated post allowance was allocated to teachers with a certain level of educational attainment no matter where they lived in relation to the school.  No specification between resident and non-resident teachers was made in the policy, which did not specify that the benefit was meant to recruit teachers from outside the region.  In practice only non-Innu teachers received this benefit (there was only one exception; a non-Innu teacher who attained Indigenous status through mariage). In the 2007 policy, the language specifies that the isolate post allowance is meant only for non-resident teachers.

Annual Outing allowance

In both policies, annual outing allowance was allocated to teachers based on the distance they lived from Natashquan: only those living outside a 50 kilometer radius of Natashquan were eligible. The purpose is to help non-resident teachers, Innu or non-Innu,  return to their permanent residence three times a year.  The 2007 policy did not change the substance of the former policy.   

Housing allowance

In the former policy, a housing allowance of $450 was given to all its teachers. The 2007 policy restricts allocation of the housing allowance to non-residents; those living outside the 50-kilometer radius.  The purpose of this allowance is to help teachers from outside Natashquan for whom it is difficult to get adequate housing at a reasonable price. Almost all the complainants received some housing allowance, notwithstanding that they lived within the radius and did not have rents as high as $450.

Issues

1. Did the complainants establish prima facie discrimination?
2. Did the respondent provide a reasonable explanation for any discriminatory restriction?

Decisions

1. Yes and No
2. No

Reasons

1. The Tribunal ruled that the complainants made out a prima facie case of racial discrimination only in the case of the isolated post allowance. The other two benefits were based on residency, not race. In fact Innu teachers were receiving those benefits (the Tribunal did not make a ruling on the legitimacy of resident teachers receiving housing allowance geared towards non-resident teachers).  However, in the case of the isolated post allowance, the Tribunal determined that the pre-2007 policy was discriminatory on its face whereas the 2007 policy was not. The former did not specify the eligibility criteria and, in practice, only non-Innu teachers received the allowance. The 2007 policy corrected the problem by specifying that non-residency (i.e. not race) was the criterion.   
2. The respondent did not present any evidence to explain the criteria used to allocate isolated post allowance to non-Innu teachers exclusively.  Moreover, it stated that giving all teachers an isolated post allowance would cause the school board to sink into further financial crisis. It provided no facts to prove this; and the evidence was deemed to be "impressionistic".

Order

All complainants are to receive compensation for the years, up until 2007, that they should have received the allowance based on the wording of the old policy.