Ontario's correctional services ministry slapped with damages
Ontario’s correctional services ministry has been slapped with the highest damage amount ever awarded against the province after a judge ruled it discriminated against a gay jail guard.
Robert Ranger — a gay ex-jail guard formerly with the Ottawa-Carleton Detention Centre — launched his case against the Ministry of Community Safety and Correctional Services more than 10 years ago. Ranger filed a grievance back in 2002, saying he was subjected to harassment and discrimination based on his sexual orientation. The alleged poisoned work environment caused Ranger to fall ill and, when he returned to work in 2004, he said the ministry failed to accommodate him by finding another position. He indicated he was ready to return to work, as long as it was not at the Ottawa-Carleton jail.
Then in 2010, arbitrator Deborah Leighton — who also presided over the current case — ruled in Ranger’s favour, saying the jail did not make any serious attempts to find him another position. Leighton ordered the ministry pay just under $250,000 in lost wages.
The Ontario Public Service Employees Union (OPSEU) headed back to arbitration on Ranger’s behalf this year, arguing the award was not sufficient based on the hardship Ranger endured. Moreover, it was almost two years after the guard said he was able to return to work before any attempts to accommodate him were initiated.
"The employer showed a callous disregard for the grievor’s right to an accommodation. The effort to accommodate was negligent, incompetent and mired in senseless bureaucracy," OPSEU argued. "All of this led to a victim being victimized again. If the employer breaches its responsibilities, it will have to pay adequate, suitable compensation. Restoring wages and a job is not enough to make the grievor whole."
On the other hand, the ministry maintained that, while it may have been difficult to fulfill at times, it did not outright ignore Ranger’s request for accommodation. Previous rulings indicated this was not a case of bad-faith bargaining, and therefore no further compensation was necessary.
"Given there was no finding of bad faith by the board, counsel argued there is no basis for punitive, aggravated, pain and suffering, mental distress or bad-faith damages," the employer argued. "Much of what has happened to the grievor could have been done better, but that is not a basis for damages flowing from the breach of the Human Rights Code. Further, providing a large sum of money will not fix the grievor’s experience over the last ten years."
OPSEU also sought damages for future wage loss. According to the union, Ranger would have been promoted at some point between 2002 and 2010, save for the discrimination he suffered. Leighton immediately dismissed this point, noting there was no evidence he would have been promoted.
Similarly, OPSEU also demanded an order to put 22 weeks of vacation credits in Ranger’s bank, as he had used vacation credits to top up sick leave pay. Because there was no time between 2002 and 2010 that would qualify as a vacation, Leighton awarded the credits to Ranger.
Last on the docket was an apology.
"While some arbitrator’s have ordered employers to apologize, most of us believe that an apology ordered is not an apology," Leighton explained. "I find myself in the latter camp. I believe Mr. Ranger deserves an apology, but I decline to order one."
Hearing the case for the second time, Leighton again ruled in Ranger’s favour.
"The experience has completely crushed him. He said he wanted the employer to enforce its policies to prevent harassment and discrimination so no one else has to suffer what he has suffered," she said in her decision.
Thus, she awarded an additional $18,000 in compensation after the employer failed to accommodate between 2008 and 2010.
Reference: Ministry of Community Safety and Correctional Services and the Ontario Public Service Employees Union. Deborah J.D. Leighton – arbitrator. Sean Kearney and Paul Meier for the employer. Donald Eady and Jessica Latimer for the union. July 24, 2013.
