The Lawyers Weekly - May 21, 2010

Grievance board upholds complaint of harassment and discrimination

NATALIE FRASER TORONTO

Homophobic taunts, derogatory comments and ongoing insults resulted in a poisoned work environment for a gay prison guard at an Ottawa jail, who won the grievance brought by his union against the corrections ministry.

In Ontario Public Service
Employees Union v. Ontario
(Ministry of Community Safety
and Correctional Services),
[2010] O.G.S.B.A. No. 18, the
Ontario Grievance Settlement
Board found that Roger Ranger,
who was a corrections officer at
the Ottawa-Carleton Detention
Centre (OCDC), endured
harassment and discrimination
because of his sexual orienta-
tion. The Board identified Mark
Grady, who was president of the
correctional services’ union at
the time, as Ranger’s main tor-
mentor, concluding,
“Having carefully considered
the evidence of harassment and
discrimination proffered by the
union on several key incidents
or examples of harassment, the
taunting gesture of mimicking
anal sex, the ‘cocksucker’ com-
ments, and the jokes at Mr.
Ranger’s expense in the class-
room incident, I find there is
ample evidence to support the
allegations…there can be no
doubt that the grievor was
harassed and discriminated
against because of his sexual
orientation by others at OCDC
aware of the homophobia that
existed among employees but
that “people were afraid to
report and that the culture of
the code of silence protected
some of the worst offenders.”
Ranger also alleged that the
harassment and discrimination
based on his sexual orientation

“

The Board found that management at the jail were aware of the homophobia that existed among employees but that ‘people were afraid to report and that the culture of the code of silence protected some of the worst offenders.’

and particularly by Mr. Grady,
and that he was working in a
poisoned workplace.”
In Ranger’s grievance against
the corrections ministry, he
alleged that his employer
breached its collective agree-
ment by condoning discrimina-
tion by fellow employees and
managers. The board found that
management at the jail were
made him ill. Board vice-chair
Deborah Leighton agreed, stat-
ing “that the timing of the griev-
or’s illness, his own testimony as
to its effect and Dr. Ahmed’s
expert opinion all provide ample
evidence that Mr. Ranger’s
depression was a result of the
harassment that he endured at
the OCDC and the failure of the
employer to provided a work-
place free of discrimination.”
After medical treatment,
doctors concluded that Ranger
was well enough to return to
work, but not in a corrections
facility. Ranger brought a
second grievance, alleging that
his employer failed to accom-
modate him once he was able to
return to work.

Reasons: Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services), [2010] O.G.S.B.A. No. 18.

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that they sought medical assistance

Brien

Continued From Page 9 We Practise At the CUTTING EDGE We Practise At the CUTTING EDGE

Employees must show evidence

light of the Supreme Court’s decision in Keays, whether Brien was entitled to damages resulting from the employer’s actions. The issue was whether the award of Wallace damages could survive in light of Keays.

The Court of Appeal affirmed that the employer’s conduct was improper and that employees are entitled to claim mental distress damages that result from their employer’s bad faith conduct. It also agreed that the dealership’s misconduct could have led to an award of mental distress damages; however, it found the distress that Brien experienced “was not of the nature and scope to qualify for compensatory damages” as she did not seek any medical or professional assistance, such as therapy, for her mental distress. As consequence, despite the employer having breached the duty of good faith, no damages could be awarded post-Keays to the employee for the breach, and the two months of Wallace damages awarded by the trial judge were set aside.

The decision clarifies that it is no longer
sufficient for a plaintiff to demonstrate a
breach of the duty of good faith to receive
damages. The employees must now go further
by demonstrating that the bad faith conduct in
the manner of dismissal caused them an actual
loss or damage, and that the loss was directly
related to the manner of dismissal. The nor-
mal distress and hurt feelings resulting from
dismissal, like those experienced by Brien due
to her employer’s actions, are not compensable
because termination is
a clear legal possibility
in the employment
relationship.

The employees must now go further by demonstrating that the bad faith conduct in the manner of dismissal caused them an actual loss or damage...

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