Committee Transcripts: Standing Committee on the Ombudsman - 1994-Jun-08 - Ombudsman Special Report on the Complaint of Ms R

Ombudsman Special Report on the Complaint of Ms R
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OMBUDSMAN SPECIAL REPORT ON THE COMPLAINT OF MS R

OMBUDSMAN ONTARIO

ONTARIO HUMAN RIGHTS COMMISSION

CONTENTS

Wednesday 8 June 1994

Ombudsman special report on the complaint of Ms R

Ombudsman Ontario

Roberta Jamieson, Ombudsman

Ontario Human Rights Commission

Rosemary Brown, chief commissioner

D. Scott Campbell, executive director

Mark Frawley, director, legal services

STANDING COMMITTEE ON THE OMBUDSMAN

*Chair / Président: Rizzo, Tony (Oakwood ND)

*Vice-Chair / Vice-Président: Wilson, Gary (Kingston and The Islands/Kingston et Les Îles ND)

Abel, Donald (Wentworth North/-Nord ND)

*Akande, Zanana L. (St Andrew-St Patrick ND)

*Cooper, Mike (Kitchener-Wilmot ND)

*Haslam, Karen (Perth ND)

Henderson, D. James (Etobicoke-Humber L)

*Martin, Tony (Sault Ste Marie ND)

*Miclash, Frank (Kenora L)

Murdoch, Bill (Grey-Owen Sound PC)

*Ramsay, David (Timiskaming L)

Stockwell, Chris (Etobicoke West/-Ouest PC)

*In attendance / présents

Clerk / Greffier: Decker, Todd

Staff / Personnel: McNaught, Andrew, research officer, Legislative Research Service

B-69

The committee met at 1000 in room 151.

OMBUDSMAN SPECIAL REPORT ON THE COMPLAINT OF MS R

The Chair (Mr Tony Rizzo): We're dealing with Ms R's complaint against the Ontario Human Rights Commission. We're going to start by listening to the Ombudsman, and then listen to the commissioner of human rights, Ms Brown, and then open for questions from the committee. Hopefully, we are going to be able to reach a decision today. If we aren't able to, we will go to another meeting next week.

OMBUDSMAN ONTARIO

Ms Roberta Jamieson: Good morning, bonjour, sago, committee members. It's always nice to meet with you.

This is the final case of the five cases I brought and tabled to the Legislature last year. We've dealt with one involving the Attorney General. Two of them involved the Ministry of Community and Social Services, and those two were settled. Of the other two reports, one dealing with the Human Rights Commission on delay and backlog has been dealt with, and the one today is a particular case dealing with Ms R.

As Ombudsman, as an officer of the assembly, I'm charged with investigating complaints the public has about government agencies. I have reviewed the complaint of Ms R in this case and assured myself that a thorough investigation was conducted. We reached certain conclusions as a result, we found the complaint valid, and we have put forward certain recommendations to put this situation right. We have had no success in gaining acceptance of the recommendations I've put forward. We have raised the case with the Premier, as I'm required to do, and I am here today seeking the committee's support for the recommendation I have made in this case.

This involves an individual we have called in the documents Ms R, who is a black woman of West Indian origin who alleged discrimination in employment because of race, colour, ancestry, place of origin and handicap. This discrimination resulted in the loss by Ms R of her job.

The Human Rights Commission, which dealt with this case from 1986 to 1990, found there was a prima facie case. They found prima facie that Ms R had been discriminated against by the employer company, by the respondent. They also found a prima facie case of systemic discrimination against non-white employees at the respondent company. This employer was a large company and had had four similar complaints of discrimination. The Human Rights Commission was able to settle the systemic part of this case. In Ms R's case, there were protracted negotiations, there were over two and a half years spent in conciliation, and no settlement was reached at the end of the day. There were a number of offers that came forward. Ms R refused those offers, and in the final analysis the case was dismissed. Her request for a board of inquiry was denied, as was a request for reconsideration by the commission.

When she came to the Ombudsman office, her complaint was about how she was treated by the Human Rights Commission in its efforts to conciliate this case. I'll say again, there's no question that discrimination was found here. That is not an issue. What I have focused on is the treatment of Ms R following the determination of discrimination through the conciliation process. She complained about their treatment and she complained that they failed to obtain an appropriate settlement after they had established that she suffered discrimination.

Throughout the investigation, which took some considerable time, we did extensive interviews of Ms R, staff at the commission. We reviewed a great deal of documentation and the files. We were required to weigh all of the evidence and to make findings of credibility.

Ultimately, I made a number of findings of fact and I reached certain conclusions, and I'll deal with these in turn. There are three.

The first conclusion I reached after reviewing the evidence is that the actions of commission staff, at times subjecting Ms R to less than professional and courteous conduct, were oppressive, and we found a number of instances which bore this out, including:

There were scheduled meetings with commission officers where Ms R waited several hours, where an officer was not at the office, had not left word and never showed up. On other occasions she was similarly kept waiting.

She was also informed during the conciliation by the investigating officer that the respondent company requested a meeting with her. The commission officer did not confirm the meeting with Ms R; in fact did not call Ms R until one half-hour after the time of the proposed meeting. This meeting was a critical one because it's a meeting that had tremendous impact on the willingness of the respondent company to talk settlement in terms of reinstatement of Ms R to her job. In the words of the respondent company, "This incident irrevocably deteriorated the relationship between Ms R and the respondent company." The company reached the conclusion, and they were not dissuaded from reaching this conclusion by commission staff, that there was a total absence of confidence, trust and respect, and they reached certain conclusions about Ms R's behaviour in not attending this meeting.

The final example I will raise here of unprofessional conduct by the commission involved a letter dated February 20, 1989, which was received by Ms R by Priority Post on March 20, 1989, a letter that came from commission counsel. The letter indicated that the final minutes of settlement were included and advised her that she had 15 days from February 27 to execute those minutes of settlement. The facts are that Ms R received that letter and those minutes well after the 15-day expiry date. She protested and did get an extension. The fact is, there was no clear reason why this letter was sent when it was.

Those are all examples of the conduct that have led me to the first conclusion about this government agency.

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The second conclusion: I found that the commission's omission to fully consider and pursue reinstatement during conciliation of Ms R's complaint was unreasonable. From the beginning and throughout the conciliation process, the facts are that Ms R wanted her job back and she sought reinstatement. That was the central thing she sought as a resolution.

Reinstatement is a legitimate objective, especially when you've got a case where systemic discrimination has been proven. What better remedy than to put an individual back in the company that discriminated against her and which resulted in the loss of her job?

Even after Ms R was re-employed, the facts are that she sought reinstatement to her original job. Why? One of the very clear reasons was that the benefits were always superior in her first job. Even at the conclusion of reconsideration, she remained interested in reinstatement.

I found, and the facts show, that the commission's lack of effort in this regard to pursue reinstatement, a legitimate objective, was abundantly clear. None of the offers put forward over the period of conciliation involved reinstatement. The facts show that reinstatement was in fact set aside early on in the process, without proper consideration and regard as to whether this was an appropriate solution and certainly without regard as to what it was Ms R wanted in the end result.

The evidence is that even at reconsideration, the reconsideration officer himself recommended a board of inquiry because he thought reinstatement was the appropriate remedy. In fact, the reconsideration officer and the director of compliance both expected to be at the commission meeting when the case was decided, which was the practice. Both would have spoken, I believe, to reinstatement. The fact of the matter is that reinstatement was woefully neglected on the commission's part as part of the appropriate remedy in this case.

The offers that were put on the table by the respondent company ranged from $4,000 in the beginning to almost $75,000 in the end, and from the beginning to the end Ms R took the position that it was not money she was after, it was reinstatement. She refused the final offer of upwards of $75,000. Even in the end you'd say, "Well, why did she refuse that?" She refused it because she sought her job back or a board of inquiry, where she was willing to risk whatever the board would do. The board is a public process. This would have been open to public view. The board could have ordered reinstatement. I think the facts are very clear on this, and this was not pursued by the commission.

The third conclusion the investigation supports is that the commission's actions in pressuring Ms R to accept the settlement, which she considered inappropriate -- it's efforts were coercive and oppressive. The efforts I will talk about are a few in number and include the following:

From the beginning, offers of $4,000, to the end, upwards of $75,000, Ms R was urged by commission officers of increasing levels of authority to accept the particular offer they deemed to be reasonable. Each time an offer came forward, whether it was $4,000 or $11,000 or $45,000 or $74,000, she was told, "This is a reasonable offer." She was urged to accept each of these offers. One incredible and confusing position to be put in, having people, particularly at different levels of authority -- and this is not usual practice -- attempting to convince her and I believe pressuring her to accept these offers as reasonable. One day $4,000 is reasonable, the next day $45,000 is reasonable, and the next day almost $75,000 is reasonable.

She was also encouraged to sign a release form even though she had not agreed to the associated settlement proposal and had in fact refused the offers. I have told you about the late letter that came, which similarly included minutes of settlement and placed a deadline on her. The deadline had passed before she received the letter. This too, I believe, contributed to pressure on Ms R.

She was advised that if she did not agree to settlement of the case as proposed, it would be dismissed and she would have no opportunity for the case to go before a board of inquiry and she would then have nothing. I believe this was undue pressure and coercive: "Take the settlement or the case is dismissed. There will be no board of inquiry. There will be no remedy."

I believe that the fact that different officers presented to her as reasonable a variety of offers and minutes of settlement they knew not to be acceptable and the fact that there was no real attempt to pursue the remedy that Ms R wanted is key. Rather, she was pressured to accept a settlement that met the objectives of the respondent company. Remember, this company had already had four complaints of discrimination against it. They had settled those for $5,000 or less. So what did they want to do with this case? They wanted to pay it off. Those were their objectives. She was pressured to accept a settlement that met the respondent's objectives, and when she resisted she found herself faced with more pressure, which I find, on the facts, amounted to coercion.

This situation undoubtedly was confusing and stressful for Ms R. It is not surprising that she became frustrated and exasperated and expressed her frustration. You will hear, I am sure, that at one point in the conciliation efforts Ms R made a statement about $1 million. There was an offer put forward to her of $45,000, and when she refused it the staff person in attendance expressed frustration to her at her unwillingness to accept this offer. They were saying, "Remember, this is a reasonable offer," words to the effect of, "Well, what do you want, blood?" Ms R's reply was to the effect that "If I cannot be reinstated to my job, then let them pay me $1 million or let a board of inquiry decide."

I have looked at this and we have spoken to commission staff, who also believe the conclusion that this statement was not a serious request for $1 million. This was a statement made out of frustration and to emphasize the fact that she wanted her job back. I believe that any emphasis given to this statement as one seeking $1 million really ignores the situation this individual was in. This is not the statement of a hostile, aggressive or unreasonable complainant looking for $1 million. That is accepted and has been by senior members of the commission staff we have interviewed. Rather, this is the statement of somebody frustrated and ignored, someone who's been poorly treated by an agency mandated to protect and enforce her rights and an agency that didn't hear her. I believe the intent of the statement was to say that no amount of money would be enough to restore her dignity and to emphasize the fact that she continued to seek reinstatement.

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This is a statement of someone caught between an oppressive employer on the one hand, who had discriminated against her, and a government agency on the other hand that was ignoring her, pressuring her and coercing her to accept a settlement that she did not want and that was not appropriate in the circumstances.

I have reached the conclusions that I've noted and I have made a recommendation, and I would say to you that the investigation that was done is a thorough one: The files that were reviewed were done so thoroughly, the interviews were conducted that should have been conducted.

The recommendation I have put forward has to take into account the fact that what we have here is an individual who had a prima facie case of discrimination and went to the agency charged with reviewing these complaints and giving some relief. This is, after all, an enforcement agency. At the end, she was left with nothing. At the end, she was deprived of any remedy: no board of inquiry, no reinstatement, nothing. I have recommended that she be provided with an apology and $75,000 in compensation to redress the unreasonable and unprofessional handling of her case.

You may well decide that this was the last offer on the table and that Ms R is entitled to something more. You may well decide that with the passage of time, interest is in order. You may well decide that a greater sum is in order. You may wish to recommend that.

The commission's response to date on the findings on the recommendation that I've provided I'll just review for you. There are quite a number of exchanges of correspondence, I appreciate. My staff and I have dealt with four successive chief commissioners on this file at the Ontario Human Rights Commission.

In the final analysis, the commission offered to apologize. They have admitted that the staff may have misunderstood Ms R's position during conciliation and taken her statements, including, I believe, the $1-million statement, out of context. It's that misunderstanding that led them to emphasize the monetary settlement rather than reinstatement. They have acknowledged this.

They have also advised that they've instituted a number of projects internally, key among them an anti-racism project. They've acknowledged that in this case, where you've got an environment of cross-cultural, interracial dynamics, misunderstanding is always a possibility and it's critical that you have a high degree of sensitivity among the staff dealing with it. So they have agreed to do that.

They have also confirmed that the process of offering a settlement to an individual on the basis that "If you refuse it the case will be dismissed" was in fact coercive and this policy has been discontinued.

Finally, they have advised that they are seeking changes to the code to make it very clear that when they're determining whether a case should go to a board of inquiry in the future, the complainant's instructions should be given paramountcy. In this case, Ms R wanted reinstatement. Last, they have offered compensation, but only in the amount of $5,000.

I appreciate the steps the commission has advanced to try and respond to my recommendation and settle this case. I appreciate their acknowledgement of the shortcomings. I can say with candour that it was with great difficulty that even this much was accomplished.

What troubles me is that there still does not seem to be an acknowledgement of the position of Ms R or a genuine acceptance of responsibility on the commission's part that it was due to its actions that she is without a remedy at this stage. Ms R is a victim of discrimination, going to a government agency mandated to protect and enforce her rights that has, through its own coercive and oppressive behaviour, deprived her of a remedy.

She was entitled, I believe, to expect to be treated professionally; she was not. She was entitled to expect to be treated sensitively; she was not. She was entitled to expect to be heard; she was not. She was entitled to evaluate the offers of settlement proposed to her without coercion; she was not. She was entitled to have her legitimate settlement proposal considered and advanced, and it was not, and she hung on to this till the very end. She was entitled to rely on the commission to discharge its responsibilities to protect and enforce her rights. I believe in this case this did not happen.

When all was said and done, Ms R, as I've said, wanted her job back. The commission lost sight of this. They did get a settlement on the systemic part of the complaint with the respondent company, but I believe at the expense of the person who was the subject of the complaint in the first place.

I believe that government agencies must accept the responsibility for their actions. I think it's incredible that an agency involved each and every day with enforcing and protecting human rights could have failed in its duties in this regard and itself become coercive and oppressive in its behaviour. If a government agency is to have credibility in asking respondents or the public to compensate for such behaviour, it has an even higher duty to do so itself.

For all of these reasons, I have recommended that the commission provide Ms R with an apology and $75,000 to compensate her to redress the unreasonable and unprofessional handling of her case. I ask this committee to support this recommendation in your report to the assembly on this case. I know you will also want to hear from the commission as to why it has not implemented the recommendation itself before you conclude your report.

I'll be happy to answer any questions you may have.

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Mr Frank Miclash (Kenora): A question in my mind is, was there ever any reason why the respondent refused to reinstate Ms R?

Ms Jamieson: One of the reasons given early on was that they did not want to put the individual back dealing with the same manager who had been involved in the complaint. This is a large employer. There were ample options for the employer to find employment for this individual within the organization. I think that reason was feeble, at best.

Mr Miclash: When we're talking about reinstatement, apparently there was a point where Ms R indicated to the commission staff that she was no longer interested in reinstatement as a possible remedy. How did that come about and when did that come about?

Ms Jamieson: I believe that is a position the commission has put forward, but I can tell you that on the facts, looking at the investigation, beginning to end, Ms R was throughout seeking reinstatement, right until the end, which is why I talked about it.

With an offer of almost $75,000 in front of her, why would she turn that down? She turned it down because she was hoping, on reconsideration, that she would be able to have the matter go to a board of inquiry. That would have risked everything, but that board could have ordered reinstatement, and that's what she sought.

Mr Miclash: That's fine.

Ms Zanana L. Akande (St Andrew-St Patrick): You have stated that Ms R was told, and if I'm stating this wrong, please correct me, that unless she accepted a certain amount of money, or the money, the board of inquiry would be cancelled, the case would not go to a board of inquiry. Is that correct? She was left without the board of inquiry on the basis of the fact that she would not accept the money? Is that it?

Ms Jamieson: She was left without anything at that stage. It was the policy at that stage to put minutes forward and let people know that if they did not accept the settlement offered, the case would be dismissed and it would not go to a board of inquiry. In other words, that's it. That's the position she found herself in.

Ms Akande: Let me ask you, and I'll later ask the commission, because I really want to understand this clearly: What would be the more appropriate basis on which one would decide whether or not a case should go to a board of inquiry?

Ms Jamieson: I know the commission has to balance looking for settlements in the public interest and that deal with the complainant's concern. In determining whether something goes off to the board of inquiry, they take into account whether the settlement offer is appropriate, whether there are new facts, what is the particular situation and whether it should go on to a board of inquiry or not.

I don't believe there's anything wrong with that policy itself, unless you're in a situation like this one, where there was coercion on the part of the commission itself. Then I think the commission itself is not in a position to make that determination, and this is where a board would be most appropriate. It's a public forum, and the board itself would determine what's appropriate.

Ms Akande: None of the considerations you mentioned that the commission makes -- as I say, I will be asking it the same question -- in deciding whether or not there should be a board of inquiry mentions the acceptance or non-acceptance of the settlement. None of the considerations you mentioned that the commission would have to make in deciding whether or not to have a board of inquiry mentions the complainant's acceptance of a settlement.

Ms Jamieson: If the complainant accepted the settlement, you wouldn't be in a position, I think, of deciding whether you'd refer something to a board of inquiry; that would be the end of it at the commission.

Ms Akande: That's right. But I asked you what should be the considerations one would think about in deciding whether or not to have a board of inquiry, and none of the considerations you mentioned included the complainant's acceptance of a settlement. Am I correct?

Ms Jamieson: Yes, but let me be clear, and I was obviously not clear. I do think the complainant's wishes, or request by way of settlement, should form part of the decision whether or not a board of inquiry should be called. In fact, I believe the commission itself has come to the conclusion that what an individual is seeking should be paramount in deciding whether a board is called and is itself seeking that very change to be made in the code. I believe, however, there was ample opportunity for them, without changes to the code, to make that determination here and it ought to have been made.

Part of what the commission takes into account when it makes its determination whether settlements are reasonable is whether the settlement proposal puts individuals back in the position they would have been in but for the discrimination.

In this case this did not happen, for reinstatement would have put her in the position she would have been in, and that was a legitimate objective, I believe. In this case, she was denied the board of inquiry because she refused to settle it in keeping with the respondent's objectives and the monetary offer that was on the table. She was left to choose between what the commission thought was reasonable or nothing at all. I think both in coming to the conclusion of what was reasonable this agency was wrong and, secondly, in putting it to her the way they did their actions were coercive. Thirdly, in denying her any remedy at all because of their actions on those two counts, she was left with nothing.

Mrs Karen Haslam (Perth): I have a couple of questions. You said one day she was offered $4,000 and the next day she was offered something else. I've been trying to find the time lines because I don't believe that's the case. I don't believe that one day she was offered $4,000 and the next day she was offered $45,000. In fact, starting in September, 1986, I understand that $4,000 is usually done at the time -- I was reading someplace -- of first investigation of the case, and I just don't find when the $45,000 was then offered, but it wouldn't have been the next day.

Ms Jamieson: No.

Interjection.

Mrs Haslam: Oh, thank you. I beg your pardon. I just found out. So in March 1988, two years later, that was the offer of $45,000, after two years, from the respondent. It wasn't that one day she was offered one thing and the next day she was offered another.

Then, if I look farther, the final offer of $74,000 came another three years later, in 1992. I guess I've answered my own question. I couldn't understand why you were saying one day she was offered $4,000 and the next day she was offered $45,000.

Ms Jamieson: Thank you, Mrs Haslam. I did not mean that literally. What I mean is that in one instance she is told that $4,000 is reasonable, in another instance she is told that no, $45,000 is reasonable --

Mrs Haslam: Two years later.

Ms Jamieson: -- and in another instance she is told another figure is reasonable. It's that point I was trying to make.

Mrs Haslam: Okay. I just wondered about the time lines, but I see there are two years between each offer.

The other thing I wanted to look at also, in one of the bits of information I have in front of me, says that: "At a triparty meeting, Ms R took the position that if she would not be reinstated, then she would consider compensation for salary from date of dismissal to retirement age at 65. The officer understood this to mean that she would give up reinstatement if the money offered was attractive enough. It was at this point that the conciliation process began to focus on a monetary remedy as a viable proposition."

I wondered, if that was one side of the case, why you didn't agree with that, why you felt that she still wanted reinstatement even after four years, even going to the reinstatement argument?

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Ms Jamieson: Because the facts are that Ms R over and over and over again returned to reinstatement, and the commission itself has acknowledged that it may well have misunderstood her representations and has acknowledged that it focused unduly on monetary compensation as opposed to reinstatement and it ought not to have.

Mrs Haslam: That brings me to the other point that I found interesting. The reconsideration officer was aware that further conciliation talks focused upon reinstatement were a futile exercise. As you will notice, his recommendation was not for further conciliation but to recommend a board of inquiry since no monetary remedy, no matter how overwhelming, would be adequate in Ms R's view.

I wonder if you ever got the feeling, and I read it someplace else and forgot to note it, that what this person really wanted was a day in court, a time to say, "This company has done me wrong and here is what has been said." Did you get that feeling from the person? So it doesn't matter what the offer was; what she wanted was her day in court or blood or whatever it was.

Ms Jamieson: I can tell you that I have been concerned by the attempts to portray this individual as unreasonable, hostile --

Mrs Haslam: No, I don't get that from this.

Ms Jamieson: -- never being satisfied, there never being an amount of money that would be satisfactory. In that sense, unreasonable? No.

We interviewed this individual, made findings of credibility, determined the credibility of this individual. I believe that she was always interested and would have been satisfied. Her original request, you may know, included reinstatement and, I believe, some $15,000 in damages.

Mrs Haslam: Right.

Ms Jamieson: It was quite, in relative terms, a modest request. I believe it to be reasonable under the circumstances and I believe settlement could have been achieved on that basis.

Mrs Haslam: In light of the time from 1986 to 1992, when the reconsideration was taking place, that's a long time, and in light of all the bad relations that had gone on between the company and the person, do you feel that reinstatement was still a reasonable demand at the time of the reconsideration?

Ms Jamieson: This is a large company. This is a large organization. Ms R could well have found employment in this organization that would not have put her in the same area, wing, whatever. I believe they could have accommodated that.

I also know that when you're dealing with cases of systemic discrimination, one of the most effective remedies that is recognized to be available is to place an individual back in the company that discriminated against them. Particularly if you've got an employer like this one who has visited discrimination on four other cases, you know it and you know they've settled for money each time. They're obviously not learning a whole lot, and some other extraordinary step seems to be in order. I think it was perfectly legitimate and reasonable and could well have been accommodated.

It simply was not pursued, and the fact that the respondent company resisted at the outset was accepted. The door was closed and was not pursued. I also think that it had to do with the fact that the commission focused a great deal of its efforts on the systemic remedy and lost sight of an appropriate solution for Ms R, as a result.

Mrs Haslam: Do you think there are any time lines for reinstatement? This was six years.

Ms Jamieson: Yes. I'm not recommending reinstatement at this stage.

Mrs Haslam: So you think there is a time line to reinstatement in a company?

Ms Jamieson: It's very hard to say. It would be year one, year seven. I think you have to look at it in the circumstances, what is possible. I think timely resolution of complaints is critical, which is why I would have hoped this agency would have seen that reinstatement was something that could and should have been pursued, rather than spending two and a half years conciliating on increasing amounts of money.

Mrs Haslam: Because they were of the opinion that reinstatement was no longer viable or was no longer requested?

Ms Jamieson: They chose not to pursue it. I believe that was a poor judgement call.

Mrs Haslam: You believe they chose not to pursue it, versus they felt that Ms R was no longer interested?

Ms Jamieson: The facts are that Ms R was interested, beginning till end. I find it very difficult to accept -- in fact the commission itself now says it may well have misunderstood. If they had heard her, if she had been heard by the officer involved, she repeatedly requested reinstatement. This was not a one-off; this was over time and repeated. This was not pursued and I believe it should have been. We didn't go back and relive what happened. We went back and investigated and looked at the evidence, and the fact is that this was not pursued.

Mr Gary Wilson (Kingston and The Islands): Thanks very much, Ms Jamieson, for your presentation. I also would like to look at the question of reinstatement, because of course it affects the compensation as well. I was wondering whether you know the reason for the respondent not considering reinstatement. Did you ever see anything to that effect?

Ms Jamieson: I think that was along the lines of Mr Miclash's question, Mr Wilson, and one of the reasons that was given is that the company was not interested in putting Ms R back in the situation with the same manager who had been part of the difficulty or discrimination in the first place. I think that was a feeble excuse and should have been pursued. The fact that the respondent company resisted it is not a good enough reason for the commission to have discontinued pursuing it as part of the settlement. This is, after all, an enforcement agency we have here.

Mr Gary Wilson: To be clear, is it back in the original position or a comparable one in the company?

Ms Jamieson: I believe it was the original position.

Mr Gary Wilson: That's what Ms R wanted or the company was willing --

Ms Jamieson: I believe Ms R would have accepted a position elsewhere. And I believe the company could well have accommodated that, if it were pursued.

Mr Gary Wilson: Okay. In some of the documentation we have in the commission's response to your investigation, it's suggested that on May 5, 1987, at a triparty meeting, Ms R took the position that "if she would not be reinstated, then she would consider compensation of her salary from date of dismissal to retirement at age 65." Actually, "if she would not be reinstated" is underlined, which suggests, I think, that this is a break in Ms R's position, that reinstatement was what she wanted, plus the compensation because of the problems that arose.

Do you see that as significant, or what significance do you place on that assessment?

Ms Jamieson: What I've said, Mr Wilson, is that from the beginning to the end, looking at every meeting, looking at all the notes to file, having all the interviews, both with Ms R and the individual staff members involved, it is clear that she sought reinstatement from beginning to end, and any monetary settlement was not what she sought, nor did she find it attractive. I believe there was at least one statement, the $1-million statement made out of frustration, but at no time was she seeking a monetary settlement in earnest. Otherwise, why would she turn the $75,000 down at the end?

Mr Gary Wilson: Yes. Because apparently by that time, that is, that May 5, 1987, meeting, she was working at another job that was actually paying more money, according to this document.

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Ms Jamieson: I believe also that you need to keep in mind that even though she got another job, for which an individual in this position is to be commended, there were not near the benefits.

I also believe that at this stage, we have certainly an acknowledgement from the commission on record that it ought not to have focused on the monetary compensation; that it ought to have focused on reinstatement, and it didn't.

I know there have been exchanged over the years a fact here and a fact there, but I can tell you that that's the point we're at at this stage. The findings have been made and the commission itself has acknowledged this. So I'm not sure it's helpful for the commission to go back a couple of years and have this discussion all over again. I would hope we're beyond that.

Mr Gary Wilson: All right. Do you know how much that would amount to, "...would consider compensation for salary from date of dismissal to retirement age at 65 years"? Do you have any idea what that would amount to?

Ms Jamieson: No.

Mr Gary Wilson: Do you know anything about her work record? I think she was employed there for 10 years.

Ms Jamieson: That would not be a relevant part of our investigation.

Mr Gary Wilson: I just wondered whether you did look at that.

Ms Jamieson: We were looking at the commission's treatment of this individual. We were not looking at treatment or experience with the respondent company. This was a prima facie case of discrimination, no question about that, so that would not be seen as relevant. We were looking purely at how the commission handled her complaint.

Mr Gary Wilson: Okay. I'd just like to ask you about the absence of the reconsideration officer and the director of compliance at the hearing to see whether a board of inquiry would be set up. Why do you think that affected the decision?

Ms Jamieson: Pardon me? What's the question?

Mr Gary Wilson: You make a point of saying that the two officers weren't in attendance at the meeting to decide about a board of inquiry. Why do you think the absence of these two officers affected Ms R's case?

Ms Jamieson: I found in the investigation only that it justified her conclusion in her own mind that she was not being dealt with fairly when these two individuals normally would have been in attendance at the board meetings, fully expected to be there, were in particular supportive of reinstatement and somehow did not attend the meeting. I don't think it's too much of a leap for her then to feel that, "Boy, I'm really not being dealt with fairly here, am I?"

I don't know why they were excluded. I found it unusual. I don't impute motive, but I can tell you that as a result I found her perception of bias was strengthened because of that.

Mr Gary Wilson: Even when that reconsideration was under discussion, with the amount of time that had elapsed since Ms R had been dismissed at that point of the meeting for reconsideration, do you think reinstatement was still a reasonable step at that point?

Ms Jamieson: Not only do I think that, the reconsideration officers themselves thought that and put that forward. They thought money was not the appropriate remedy in this case; reinstatement was and should be explored. I go back and remind you that the commission itself has accepted that undue emphasis was placed on monetary compensation and not enough on reinstatement and it ought to have. So I think that's a given at this stage.

Mr Tony Martin (Sault Ste Marie): I wanted to ask a couple of questions on the question of reinstatement and how vigorously that was pursued.

In a case where it is found that there was conduct that was discriminatory in nature, is reinstatement normally the route that's taken? Is there a precedent here? Are there many precedents here?

Ms Jamieson: I think, Mr Martin, you'll find that in cases of systemic discrimination in particular, and certainly in recent years, it's considered a key remedy that should be considered.

Mr Martin: From your experience, normally, in situations of systemic discrimination, that's what in fact is recommended and that's what happens?

Ms Jamieson: I believe it does happen and I believe it was certainly what this individual was seeking. Moreover, I think that's the more important point, that she was seeking that.

If you have a look at a couple of letters in the briefing books, both dated March 25, from the then chief commissioner, one to Ms R, one to myself, you will see an acknowledgement, and I'll just quote from it: "We consider that our staff may have misunderstood your position" -- speaking to Ms R -- "during conciliation, which led to undue emphasis by them on the monetary remedies you discussed rather than on reinstatement." There is also reference to that in the letter to me of the same date. "We admit the possibility that our staff may have misconstrued Ms R's position and inadvertently taken her statements out of context in terms of the monetary."

I believe the commission has certainly acknowledged those things: that it should have pursued reinstatement and it didn't; that it placed too much emphasis on monetary compensation and should not have; and that its policies were oppressive -- "constrictive" is the word it uses in its documents. They have removed that policy today. I believe they've acknowledged all of those things. I think what we're down to at this stage is, what then is the compensation that should flow as the result of this acknowledgement?

The Chair: Thank you, Ms Jamieson. You may proceed now. Do you want to add anything?

Ms Jamieson: Only to say that I don't know if the committee will have further questions of me after they've heard from the commission. I'm certainly happy to be available. It's often that additional issues are raised. The committee may wish to hear from me once again. I am happy to make myself available to speak further to any subjects that would assist you or to have an opportunity to clarify anything further. Indeed, I would ask for that opportunity.

The final thing I would like to say is to acknowledge, in the five cases we've been dealing with here, the professionalism and the hard work of each and every member of my staff who has worked on these cases; indeed, in their everyday work. They're highly trained, they're professionals and they do terrific, quality investigations, but I'd just like to record my appreciation for their work on these files in particular.

I will make myself available to the committee. Are you wanting to hear from the commission, then ask questions? Are you wanting to conclude this consideration this morning or is it possible it'll go on till next week?

The Chair: We'll try to conclude this morning. It depends how long it's going to take to go through the presentation of the Human Rights Commission and the questions.

Ms Jamieson: I'll make myself available then.

The Chair: Please, yes, this would be helpful.

Ms Jamieson: So I can be called back any time this morning?

The Chair: Yes.

Ms Jamieson: Thank you.

The Chair: Thank you. Ms Brown.

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ONTARIO HUMAN RIGHTS COMMISSION

Ms Rosemary Brown: Good morning. The commission really welcomes the opportunity to appear before the standing committee and to clarify its role, its procedures and the decisions at which it arrived in this case.

Before going to my written notes as to the process of the case, I think I would like to ask us to do two things. One is to place in context the fact that the Ontario Human Rights Commission does not operate as an individual organization on its own. Its entire conduct is mandated through the code, the oldest code in this country and certainly one of the best, and all decisions and all procedures are guided by that code.

In addition, there is a difference between the responsibilities of the staff of the Human Rights Commission and the commissioners. The staff of the Human Rights Commission investigate and they recommend, but the final decisions about the disposal of matters before the commission are made by the commissioners.

Usually, this is an appointed group of nine individuals from various walks of life who are considered to be responsible in terms of their consideration, impartial, unbiased and neutral at all times, with one goal and one goal only, and that is to defend the rights of the protected groups outlined in the code and to ensure that there is no violation of the rights of any of the citizens of this province.

Bearing in mind those two things, I want to tell you how the commission conducted itself in this matter and to again reassure you that at no time did the commission make any decisions or involve itself in any conduct based on its own private ideas and desires, but it was guided by the code.

Now on June 23, 1986, Ms R registered a human rights complaint against her previous employer and three of its officials. She alleged that she had been harassed on the job and that eventually her employment had been terminated, allegedly because of an injury to her right thumb and because of her race and her colour.

The commission then conducted an investigation of this complaint and what the worker found was that Ms R had suffered a cut to her right thumb while at home, that when she returned to work three days later she was unable to perform her job as a keyboard operator because of this injury and was then assigned to another position. She then submitted medical certificates indicating that she would be unable to perform her duties for three to four weeks.

The investigation also found that because she had expressed a desire to further develop her career, there was an agreement that she would be transferred to the human resources department, where she would obtain assistance in career development. At this point, her original position was then posted as vacant and it was filled by someone else. Ms R then applied for various other positions within the company but she was unsuccessful.

As a result of this, the commission's investigation appeared to support the complainant's allegations that her employer's overall hiring and promotion policies had an adverse impact on racial minorities such as herself. That was the conclusion of the investigation.

During the course of its investigation the commission, pursuant to its mandatory, statutory duty, made attempts to obtain both corporate respondent as well as individual remedy for Ms R and, at the same time, a systemic remedy for what the commission saw as systemic issues around employment equity and training. The investigator was trying to do two things at the same time: Get a remedy for Ms R and, at the same time, look at the way in which that particular company conducted its business. He found that it was indeed not conducting its business in a way which was not hurtful to racial minorities and wanted to negotiate a remedy which was systemic as well as individual.

As a result of this, the parties eventually reached a settlement position, and the key word here is "position." On April 28, 1988, the corporate respondent -- and this was after all of the settlement negotiations between the two, which started at $4,000 and then finally arrived at the figure, on April 28, of $74,178.55.

This was broken down as follows: It represented 23 months of lost income plus interest; it represented $10,000 in general damages, because that is the maximum amount which is provided for under the Human Rights Code; it included consideration for future income loss; it included consideration for forfeited pension contributions by Ms R; it included lost pension entitlement and lost future pension contributions on her behalf. That was the individual remedy.

The systemic remedy was that the company was willing to put into place some employment equity measures of staff training on equity issues, as well as a number of unmentioned systemic remedies.

This package was presented to Ms R, not in a coercive manner, but presented to Ms R. It was detailed exactly how the figure, the really strange and bizarre figure, of $74,178.55 was arrived at. Ms R refused the offer and requested compensation in the amount of $1 million, either that or the demand that her case proceed to a board of inquiry for adjudication.

At this point, the commissioners of the commission are mandated under the act to make a decision -- not the staff but the commissioners, because the code provides that once a settlement is offered and is rejected, the commission then has to make a decision as to whether a complaint should be forwarded to a board of inquiry for adjudication.

The code goes on to instruct the commission as to the tests which it must use in coming to this conclusion. Subsection 36(1) of the code make it absolutely clear that two criteria have to be met: The evidence before the commissioners has to warrant the appointment of a board of inquiry and the procedure has to be appropriate. The staff do not make a decision on this. The appointed commissioners have to weigh those two issues and make a decision.

In the case of Ms R, the commissioners decided that there was sufficient evidence to warrant referring her case to a board of inquiry. However, they decided that in light of the settlement offer which was made, both individually and systemic, in the individual instance an offer which was in excess of what would have been awarded by a board of inquiry, the procedure of sending it to a board of inquiry was not appropriate. So it split.

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There was never any question as to whether the evidence was sufficient or not. The decision was, though, that because the respondent had met the systemic requirements of the settlement as well as offered as individual remedy in excess of what under the code the board could have offered in terms of general damages and payment for wages lost, it would have been most inappropriate for the commissioners to refer this matter to a board. That would have been an abuse of their power.

On February 8, 1989, the commission therefore advised Ms R in writing of the decision of the commissioners, not of the staff. She was allowed, as mandated by the code, 15 days with which to request reconsideration. As the Ombudsman stated, an extension to this 15 days was granted to Ms R when it was requested.

In that same letter, Ms R was advised by the commission that whether she applied for reconsideration or not, the decision had been made not to refer her complaint to a board of inquiry. As the Ombudsman has stated, that procedure in which both of these pieces of information are included in the same letter has been changed; that is no longer the case.

Ms R, upon consideration, chose not to accept the settlement offer. As was her right, she requested reconsideration of the commission's decision, and this was granted. There was a thorough analysis, re-evaluation, rewalking through of the procedure and the process of this case. Both Ms R and the corporate respondent were also provided with an opportunity to make submissions upon the upcoming reconsideration decision.

On January 10, 1990, the commission, after due deliberation, upheld its initial decision not to request the appointment of a board of inquiry.

The Ombudsman has told you that it's common practice to have the reconsideration officer present at the board meetings at which reconsideration is discussed and, in this instance, this was not the case. There is no common practice. As a matter of fact, since I've been chief commissioner, the reconsideration officer has only been present at one of our board meetings, because the important decision that the members of the commission have to make is whether there is new evidence for them to reconsider. That discussion is made by the commissioners, not by the staff.

In her report, the Ombudsman reached three conclusions. The first was that the actions of the commission staff were at times less than professional and courteous. The second was that the commission failed to adequately pursue reinstatement of Ms R during its conciliation and settlement attempts. The third was that the commission attempted to coerce Ms R into accepting the $74,178.55 settlement and that such actions were oppressive towards her. The report then goes on to recommend that the commission should compensate Ms R by paying her $74,178.55, the same sum of money she rejected when it was offered in 1988.

The commission has tabled its synopsis of the case through the committee's counsel, and you have it. I would refer you to the commission's detailed position on the Ombudsman's three conclusions, to be found on pages 4 and following of that synopsis.

Briefly, the commission's position on the first conclusion of unprofessional conduct is that the Ombudsman's report itself concludes that of the six allegations on this issue, four were unfounded. As to the other two allegations, the commission moved swiftly to address them and already has undertaken significant staff training in the area of customer service and heightened sensitivity, including the development of race case guidelines for use by all of its staff. So the complaints have been addressed. The criticism has been addressed.

The Ombudsman's second conclusion, and the one which is more troublesome, deals with the issue of reinstatement. Although the respondents made it clear early on in the settlement negotiations that they did not wish to consider reinstatement, the commission's human rights officers nevertheless negotiated this issue. It was on the table. It was negotiated. However, when the final offer was made to Ms R, it was Ms R herself who indicated to the commission staff that she had obtained other employment and was not interested, and I quote, "in ever returning" to her original employer.

Now, it is not the business of commission staff to interpret the complainant's wishes. When Ms R said she had obtained other employment and that she was not interested in ever returning to her original employer, the human rights officer involved with her case and everyone else treated that statement with respect. That was her wish and that was respected. Ms R made it clear that she was seeking either monetary damages or the appointment of a board of inquiry.

The issue of reinstatement was also taken up, as you heard, by the reconsideration officer. So this issue of reinstatement was not abandoned, and I think it is truly unfair to say that the commission did not pursue this matter. The reconsideration officer, however, realized that it was not going to be possible to successfully negotiate this matter with the respondent, and that was the basis of the reconsideration officer's recommendation for the appointment of a board of inquiry.

However, as I stated before, upon deliberation, the commissioners decided that although there was a prima facie case, because the remedy offered was appropriate or in excess of that which would be achieved before a board of inquiry, it would uphold its original decision not to refer this matter to a board of inquiry.

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The third conclusion of the Ombudsman involves the allegation of coercion. This is an extremely serious, destructive and damaging accusation of the commission, and at no time has the commission ever admitted to involving itself in coercion. In its offer of $5,000 to Ms R, in its letter, it said if there was a perception on her part that there was a matter of coercion, then the commission was willing to make this offer.

The commission cannot coerce. It does not have that mandate in the code. It would be unethical. It would be so unacceptable in its behaviour that none of the previous chief commissioners, honourable people all of them, would have tolerated it. I have had the opportunity of meeting both Catherine Frazee and Alok Mukherjee, and I cannot in my wildest dreams imagine either of them tolerating coercion on the part of a human rights officer.

When I asked for an explanation of that accusation of coercion, I was reassured again and again that Ms R was walked through the process of what the $74,178.55 meant. It was broken down and explained to her.

That was not coercion. That was a responsibility of the code, as set out in section 33, to try to effect a settlement. We have no option. The code gives us that mandate. We must do it. When we failed to do that in another case, the case was destroyed; the board refused to deal with it. We have to do that.

This was a complicated settlement and it was spelled out in all of its six or seven parts, but at no time was any attempt made to coerce her into accepting this against her will. It was simply stated that this was a settlement in excess of what she would receive before a board of inquiry, because the board of inquiry also has guidelines which it has to follow.

Despite this, Ms R remained steadfast in her rejection of what was very clearly stated by the respondents as their final offer of $74,178.55, and even after receiving the notice of the commission's final decision for disposal of this case, namely that it would not be referring it to a board of inquiry, Ms R continued to reject that offer.

Now, for these reasons which I have stated in response to the three criticisms raised in the Ombudsman's report, the commission does not consider that the recommendation by the Ombudsman of payment to Ms R is merited.

In summary, therefore, the commission is before you today to reaffirm its position that there was no procedural or substantive error in the commission's process or decisions. Accordingly, the commission cannot use public funds to pay Ms R $74,178.55, which is the recommendation of the Ombudsman, that the commission do so.

The commission is satisfied that all the necessary elements of natural justice were afforded to Ms R throughout the process of investigation, conciliation and decision-making at the commission. The commission has indicated to the Ombudsman on several occasions that it is, however, more than willing to apologize to Ms R for any perception of unfairness which she believes she received at the hands of the commission.

As I stated earlier, the commission has moved to make systemic changes in terms of retraining of staff around the matters of customer service and other issues raised by Ms R in terms of courtesy and respect in the way in which she was treated. As well, I would like to add that not only have we involved, embarked on, a process of training initiatives that have to do with customer service, but that we're also addressing, and have addressed, the issues of sensitivity which were raised by the Ombudsman's report.

It is with the greatest respect, therefore, that the commission declines to accept the Ombudsman's recommendation that it make payment to Ms R in the amount of $74,178.55.

Accompanying me this morning is the senior counsel for the commission, who also was the counsel dealing with Ms R's case, and the executive director of the Human Rights Commission. Mr Chair, I would ask your permission for them to join me at the table to deal with any questions pertaining to this case which may be raised by members of the committee.

The Chair: Yes, you're welcome. First question: the opposition side.

Mr Miclash: You indicated that the commission cannot use public funds for the $74,178.55, but in our notes it's indicated that you're willing to authorize payment to her of up to $5,000. Does that still hold true, that there's going to be a letter of apology plus an authorized payment of up to $5,000?

Ms Rosemary Brown: If that recommendation were to come from this committee, I would have to take it back to the commissioners. I cannot make a unilateral decision on my own. These decisions are made by the full commission, and at the next commission meeting I would have to present this recommendation to the commissioners.

Mr Miclash: In terms of the use of public funds, when you say you cannot use public funds for the $74,000 yet you're allowed to make a decision of the use of public funds up to $5,000, what is the difference here? I'm a little confused there.

Ms Rosemary Brown: The difference is close to $70,000. But aside from that, the sum of $5,000 was one which was arrived at after due consideration on the part of our senior counsel and the commissioners that the perception that she was not treated with courtesy and felt hurt by that was something which could be addressed in this manner, but certainly not $74,178.55.

Mr Miclash: When you say she was not treated with courtesy, you indicated something about staff training. Can you elaborate a little more on what you were talking about in terms of staff training?

Ms Rosemary Brown: Yes. The executive director is with me and I'm sure would be very happy to give you details of that.

Mr D. Scott Campbell: First of all, in terms of the training initiatives, we have to look at them in the context of what we're doing as an organization as a whole. They are just one of eight organizational improvement initiatives, organizational change initiatives, that we've talked about. In fact, we talked about it at the last hearing of this committee.

What we have done in terms of customer service is that we have developed a document called Commitment to Service. It actually is on all of the walls of every single office in the commission. As you know, there are 15 regional offices throughout the province. We have also trained all our staff on that Commitment to Service. By that I mean, what do we mean by courteous service, what do we mean by respectful service etc?

Going one step further in terms of the training of our officers, we have had now two sessions, one last June -- it actually started June 28 -- and one in December of last year. They dealt with investigative techniques and with the issues of due process and administrative fairness. I think both of those speak to the issue you're raising.

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Ms Akande: Thanks for the presentation, and good morning. I have a few questions and, really, sort of an aside but not aside.

I'm really interested in your initiation of Commitment to Service. You mentioned that it deals with customer service, and I believe you mentioned that it also includes some view of anti-racism or some attention to anti-racism. I have to say, respectfully but clearly, that it seems passing strange to me that the Human Rights Commission would have to go through such a process before it recognized that it, of all offices, should have a commitment to making sure that its staff would be aware of and therefore responsive to the differences in races and the differences in groups and have a commitment to customer service. It would be my hope that the quality would go in before the label of human rights would go on. But I mention that just in passing.

I do have some questions and I'm very appreciative of the fact that you have separated the staff from the commissioners. That makes it extremely clear. It would be the staff, I believe, that would be working with Ms R about issues of the settlement that was offered: the $5,000, and then the $45,000 in March 1988, and then the $74,000. It would be the staff that would be making that. What explanation did the staff have or did the staff give or are you aware of that would account for the increase in settlement from $4,000 to, two years later, $45,000, to $74,178? I think I have the numbers right.

Mr Mark Frawley: Perhaps I can answer that for you. The initial amount of $4,000 was arrived at, I understand, at a very early stage, before any investigation whatsoever had been done. It was an offer that was a preliminary offer. As time progressed, clearly the respondent recognized that the damages would increase by the very fact that Ms R would have been out of work, so that amount alone would have increased. As well, other matters kept being put on the table, so the settlement grew until the final amount of some $75,000, which, as you heard, included a series of different items, both individual and systemic.

Ms Akande: So the respondent, even before the issue was taken very far, implied an admission of guilt by making the offer of $4,000.

Mr Frawley: I think that would be a wrong implication to put. All settlement offers are without prejudice. It would be approximately 50% of all cases at the Human Rights Commission that are settled, and all of them are settled on a "without prejudice" basis. At no time in the settlements do respondents ever admit to guilt. It is simply a matter of attempting to resolve an issue, and it is not unusual for an initial offer to be made on that basis.

Ms Akande: So if the offer were made without any admission of guilt or implication of such and that would be explained by the staff to Ms R, it would clarify, at least in my mind, why someone might want to continue with the board of inquiry and with reinstatement.

Mr Frawley: You're assuming, with respect, that reinstatement continued to be an issue, and I can come back to that if you wish. As the chief commissioner has said, it was made clear to commission staff that at one point Ms R changed her position and that reinstatement was replaced by monetary requests. The only thing a board of inquiry could do, assuming that reinstatement was not on the table, would be to award an amount of money, and when the $75,000 amount is analysed, it is clearly in excess of what a board would have awarded.

I pick two items only:

First, the amount for lost wages was in the amount of settlement of 23 months, and in fact she was only out of work for 15 months. So a board would never award more than 15 months; 15 months would be a maximum, or it might be less, depending on mitigation, had she fully mitigated, and if not, that might be reduced. It would never be in excess of the actual period of time that she was out of work.

The second item I choose as an example is the general damages, $10,000. The code provides for a maximum of $10,000, but in fact that has never been awarded by a board. That was an amount in excess of what could reasonably be expected that a board would ever award. Typically, general damage amounts are in the $2,000, $3,000, $4,000 range.

Ms Akande: When you explain this, you make very clear that it's the commission that makes the actual final decision about whether it should go to a board of inquiry, and Ms Brown has given us the basis of that decision made by the commission. We're actually reducing this case, at least in my mind, to whether or not there was coercion, to whether or not the staff was coercive in its communication with Ms R about whether the board of inquiry would hinge on or be related in any way to her acceptance of the sum of money.

Mr Frawley: In fact, the staff made it clear, as it always does, that it is the commissioners who make the final decision and not the staff. But even though the commission has denied in the strongest possible terms that there was any coercion, as the chief commissioner herself has told you, putting that aside for the moment, in the complainant's own mind, to her knowledge, when she received that letter in February, she knew at that point that the decision had been made by the commissioners not to appoint a board and she was then given an extra period of time, 15 days, which was then extended to 30, to accept the settlement.

It wasn't as if she was willing to take a roll of the dice, as it were, hoping that she'd go to a board. She knew that the decision had been made, not might be made, had been made by the commissioners not to appoint a board. Therefore the only decision for her was, "Am I going to accept this $75,000 or not?" and as she decided, she chose not to accept it.

Ms Akande: What is the reason for the commission's decision to separate those two pieces of information that were contained in the one letter? I can't find my copy of that letter; I don't know if it's here or not. Ms Brown had referred to that, that there was some decision.

Ms Rosemary Brown: What we're dealing with here is perception. The commissioners felt that if there is a practice in which we're involved which leaves a perception of coercion in the mind of a complainant or a respondent, we need to find a better way of doing it. We were responding to perception.

Ms Akande: I appreciate your answers.

Mrs Haslam: I have very basic questions this time. Did the commission conclude that reinstatement was not a realistic option? If so, what reasons were given to Ms R about why reinstatement was not being pursued?

Mr Frawley: The commission knew that Ms R had already decided that reinstatement was not something she wanted. She had told the then director of compliance and senior counsel in a meeting that reinstatement was not what she was looking for. This was a reaffirmation of what she had already told the regional staff. But when she met with those two individuals at head office and the final $75,000 offer was reviewed in detail with her, she again reaffirmed that she had obtained another position and that reinstatement was not something she was seeking.

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Mrs Haslam: Was Ms R's desire for reinstatement presented to the commission as a reason why she rejected the respondent's offer?

Mr Frawley: At the original decision or at the reconsideration decision?

Mrs Haslam: No, at the original decision.

Mr Frawley: At the original decision, what was before the commissioners was, as is always the case, the case analysis written by the officer setting out the investigative findings, and in this case all the conciliation efforts. That was the same document she had received, as had the respondent, and had been given an opportunity to reply to.

Mrs Haslam: So you don't look at a reason why someone chooses not to accept a settlement at a commission level?

Ms Rosemary Brown: The commissioners do.

Mrs Haslam: At the reconsideration?

Ms Rosemary Brown: Yes, the commissioners do.

Mrs Haslam: So at the reconsideration, were they informed why she had refused the original settlement?

Ms Rosemary Brown: The reconsideration was quite clear that by that time Ms R had another job. She had stated she would not "ever," in quotes, return to her original employment and she was seeking either monetary compensation or to have her case referred to a board of inquiry. Those were the only two things she wanted.

Mr Frawley: In fact, even at the original decision, she had by then obtained other employment. By the time of the original decision, she had already been employed by another employer.

Mrs Haslam: We talked about the absence of reconsideration officers during the reconsideration meeting. Do you feel that had any bearing on the commission's decision?

Ms Rosemary Brown: No. In fact, reconsideration happens at the same time as the commission is dealing with other cases, with other complaints. It happens at a regular commission meeting. It is not a special session that is set up to deal with reconsideration.

In terms of dealing with other cases, the officers involved are not present either. What we deal with are the facts that are before us, and we weigh those within the context of the code and the directions we have as a result of the mandate outlined in the code.

Mrs Haslam: The commission has put forward a settlement or option of settlement of $5,000. Is the commission still standing by that offer?

Ms Rosemary Brown: When that question was posed to me earlier, I said I would be willing to take that back to the next commission meeting and have the commissioners respond. I cannot make a unilateral decision.

Mrs Haslam: I apologize. I was obviously out of the room for a few minutes when that question was asked.

You talked about the perception. Would you tell me again what steps you've taken to address those concerns of the perception of coercion, of the perception of the way your staff handle people?

Ms Rosemary Brown: I'm going to ask the executive director to do that, because it's part of the whole reorganization that the commission is going through.

Mr Campbell: I'd be glad to answer that. We've done a number of things, again in the context of the organizational change initiatives in the commission. If you look at the eight organizational change initiatives, training is our number one priority. We recognize that the way to change the way we do business is to make sure that the staff in the commission -- and that's all the staff, not just the human rights officers; it's support staff, managers etc -- have the necessary knowledge, skills and abilities to perform their duties.

We have started with basic investigative techniques. The cornerstone of basic investigative techniques is the notion of due process, of administrative fairness. We've also dealt with issues such as customer service, and I said on the record earlier that we have developed a commitment to service and we've trained people relative to that. So those are two examples. I can give you more, but those are two.

Mrs Haslam: I'm interested in this case. Are there any other steps the commission could take to redress Ms R's perception of having suffered in this instance?

Ms Rosemary Brown: The commission is convinced, after really going through this case when the Ombudsman's interim report came out and again when the Ombudsman's final report came out and again in preparing for this, that there is no basis for her perception that coercion occurred, that in fact what she did get was very detailed explanations as to the reality of the situation, which was that because the settlement offer was in excess of what the commission thought she would receive from a board, the commissioners decided they would not proceed with this. This was not a staff decision. This was a decision made by the commissioners after due deliberation on this.

We can apologize for this. We can tell Ms R this a million times, but we may never, ever be able to change her perception that she was coerced. But when she asked for an extension of the 15 days to reconsider this, she was given 30 days. Now, if you're coercing a person, you don't give them extra time. I think the commission has done everything in its dealings with Ms R to be fair and to honour its mandate under the code.

Mr Gary Wilson: Thanks very much for your presentation, Ms Brown. I'd like to look at this reinstatement, since it certainly seems to play a large part in Ms R's concern about how she was treated, at least in my mind it does. I was wondering what began at the beginning or what steps were taken to see whether the company was interested at all in the reinstatement proposal.

Mr Frawley: The materials the Ombudsman reviewed would have been, as is always the case, the full investigative file. The commission doesn't hold back any documents, and never would, so the Ombudsman would have seen that there was a process the officer went through in which various options were explored.

Clearly, the option of reinstatement, which the complainant had indicated at the beginning was what she wanted, because of course at the beginning she was still without employment, was put to the respondent, but at a certain point in time, when Ms R advised that if reinstatement were not possible then she wanted money, at that point it shifted to how much and how would it be calculated.

The reinstatement is something which clearly the officer attempted to negotiate, but when faced with on the one hand a respondent who was reluctant to offer that and on the other a complainant who at a certain point said, "Then I want to switch over to a certain monetary amount," let alone at the point after which the complainant had obtained other employment, then I think reinstatement is very much a lower item on the scale. That obviously is not what you heard from the Ombudsman, but that is what the commission believed at the time from the complainant herself.

Mr Gary Wilson: I believe we also heard from the Ombudsman that the $1 million figure represented frustration, that it wasn't a real figure. What do you think of the $1 million amount?

Ms Rosemary Brown: Part of the training the staff get is, as I said, to be respectful of the instructions they receive from complainants. It was not the responsibility of the staff person to say that Ms R's request was irresponsible or that it was unreasonable or to make any other judgement of it. The responsibility of the officer was to continue using that figure in negotiations with the respondent. They do not have the luxury of assuming that that was the result of frustration.

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Mr Gary Wilson: But the term "frustration" adds some colour to what must be the negotiations that go on between the officer and the complainant, so I would think that would be part of the process.

Ms Rosemary Brown: Frustration should not be part of what goes on between the officer and the complainant. The officer's responsibility is to negotiate with the respondent. In the process of negotiating with the respondent, one or either of them may become frustrated, but the officer should not become frustrated with the complainant.

Mr Gary Wilson: I'm not suggesting the officer would, but the complainant might, I would think, if it's not turning out in the way they would hope it might. I was just wondering whether an assessment was made about the $1 million figure, for example.

Ms Rosemary Brown: The assessment that was made -- and this assessment was made by the commissioners, not by the staff -- was that the final offer of $74,178.55 was a reasonable offer. You see, under the code, we have the responsibility to make those kinds of decisions. At some time, the commissioners can decide, "This is a reasonable offer and we will not proceed any further."

One of the things the Ombudsman said is that if a complainant says, "I want to go to board," that should be what happens. If that were the case, then there would not be a commission. I mean, that's what you can do with the courts: You can say, "I want to go to court on this," you can hire your lawyer and you can go to court. But there is this other body in between the complainant and the board of adjudication, as there is between the respondent and the board of adjudication. It is these commissioners who have the responsibility to make some responsible decisions around this, and one of the responsible decisions the commissioners made was that the offer of $74,178.55 was reasonable.

Mr Gary Wilson: Could you give us some idea about how successful a reinstatement is in complaints like this? Have you any assessment of that?

Mr Frawley: I can advise you that in the 33 years or so that the Human Rights Commission has been in existence, to my knowledge there has only been one board of inquiry that has ordered reinstatement.

Ms Rosemary Brown: But there have been a number of instances when it's been negotiated without going before --

Mr Gary Wilson: That's what I was thinking too.

Ms Rosemary Brown: Yes. As in the case recently with the Northwestern General Hospital where, in the process of negotiations, we were able to negotiate reinstatement for all but two of those nurses. But as senior counsel says, in 33 years one board has ordered reinstatement. That's to his memory.

Mr Gary Wilson: But it's very important to realize too that it is something that does come out of preliminary negotiations.

Ms Rosemary Brown: Yes.

The Chair: Thank you, Ms Brown. It's 12 o'clock, and I wonder if I can have help from members of the committee: What do we want to do? The Ombudsman offered to be available for more questions. Do you want to go ahead, proceed with a decision on this case, or do you want to adjourn and meet at another date? I leave it up to you to decide.

Mr Gary Wilson: I would like to postpone the decision till next week, if that's possible, to go over the testimony that we've heard and give the case more consideration.

Ms Akande: I was really just interested in one point, this business of reinstatement. Talking about reinstatement now is certainly out of the question, but talking about reinstatement when this case was initiated and when the $4,000, which is a separate consideration, was initiated, is a different thing. I'm still not clear on how seriously or how realistically the staff from the Human Rights Commission dealt with the whole question of reinstatement -- not now, not in 1992, but way back there at the beginning of this issue. That's my concern.

Ms Rosemary Brown: Mr Chairman, with your permission, I would like to ask senior counsel who was responsible at that time to respond to Ms Akande's question.

Mr Frawley: The file in this matter reveals the steps that were taken by the investigating officer who handled this over its lifetime until it went to the commission for its initial decision; then of course it went to the office of reconsideration. That officer's notes, as reflected in the file and as the Ombudsman has seen, show that there were a series of steps that the negotiations went through, including the initial position of the complainant that she wished reinstatement, answers to that back and forth.

So I can tell you with complete certainty that the issue of reinstatement was addressed and was negotiated by the officer. It was done, ultimately unsuccessfully, but that does not mean it was not addressed with vigour by the officer. Sometimes you simply cannot convince a respondent to come up with all the things the complainant wants at a certain period of time.

I can also tell you that by the time it went to the commission meeting, the complainant had made it clear that that was no longer what she was seeking, that she had obtained other employment, that she did not wish to go back to that initial employer and that she was seeking only a monetary amount or the appointment of a board of inquiry.

Mr Gary Wilson: I move that we defer dealing with the report until next week.

The Chair: Thank you. The meeting is adjourned until next Wednesday at 10 o'clock in the morning.

The committee adjourned at 1156.

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