Independent External Review of Complex WDHP Cases

Part I: Executive summary

On January 19, 2018 and March 26, 2018, the Secretary of the Cabinet publicly announced that as part of the Ontario Government’s commitment to identifying, preventing and eliminating systemic racism for all employees, the Anti-Racism Directorate was engaging a third party to review the WDHP Program through an anti-racism lens.

The independent external third party reviewer was engaged to create criteria for the selection of eligible cases from the WDHP Program, with a focus on racialized OPS employees, and in particular Black and Indigenous individuals who had initiated WDHP complaints. The Terms of Reference provided for the external reviewer to invite complainants and respondents from selected cases (or other necessary parties involved with the WDHP process) to participate in an in person, confidential interview with me to discuss their experiences with the WDHP process. The Terms of Reference also provided for the external reviewer to issue a written report to the Deputy Ministers' Advisory Group to outline any trends or patterns common to the selected cases which should be considered as part of a pending broader WDHP Review, and to provide advice and recommendations on potential improvements to the way in which race-based cases are handled within the WDHP Program.

In the interviews with the complainant Participants, virtually all pointed to seemingly neutral policies and processes in respect of temporary or acting appointments, with or without competitions, and promotions, as the underlying basis of their WDHP complaints. In addition, many pointed to the selection process for training and professional mentoring / shadowing / championing opportunities as creating a barrier to advancement.

In 2014, 26% of black employees within the OPS were in administrative positions, compared to 17% of all OPS employees and 46% of Black administrative employees were reportedly unhappy with their career path, compared to 27% of OPS employees as a whole. The 2017 OPS Employee Survey results, published in May 2017, indicated that while the rate of discrimination generally had decreased, Black employees identified being discriminated against at almost twice the rate of OPSemployees generally. Further, of the OPS employees who reported that they had experienced discrimination, 25.17% indicated that the discrimination experienced was based on race.

These systemic issues play a material role in the complaints being initiated to the WDHP Program by Black OPS employees and play a material part in the expressed cynicism of the WDHP process as being an inadequate means of remedying, or even addressing, their complaints.

Further, the Participants reported the failure of the WDHP Program in a number of areas, including the lack of clear information about aspects of the process, the failure to adhere to the timelines at various stages of the process, and other policy and operational deficiencies. Also, Participants identified a high degree of emotional trauma associated with the WDHP process itself, as well as the complaint issues. Most of the Participants felt that the WDHP process was not accountable.

The complainant Participants also identified as areas of concern the lack of early senior/executive management intervention to respond to, review and de-escalate situations between employees and management, as well as the lack of management intervention to identify systemic issues and taking action to discuss and address them, if possible.

This report, based upon a microcosm of selected cases, reviews the experiences of the Participants and makes operational and systemic recommendations as to how to improve the WDHP Program through an anti-racism perspective.

Part II: Mandate

1. Introduction

   In Memoranda issued on January 19, 2018 and March 26, 2018, attached as Appendix A to this Report, the Secretary of the Cabinet, Mr. Steve Orsini (Orsini), publicly announced that as part of the Ontario Government’s commitment to identifying, preventing and eliminating systemic racism for all employees, the Anti-Racism Directorate was engaging a third party to review the Workplace Discrimination and Harassment Prevention (WDHP) Program through an anti-racism lens (the WDHP Review).

   The Secretary of the Cabinet further announced that as a microcosm of the WDHP Review, an independent external third party reviewer would be appointed to review a select number of complex WDHP cases from an anti-racism perspective and further, to identify any additional steps, mechanisms or procedures that could assist in the resolution of the selected cases, without interference with, prejudice or delay to the WDHP process or the individual merits of those selected cases.

   I was engaged as the independent external third party reviewer (the External Reviewer) on March 22, 2018.

   I am a Partner with the law firm Koskie Minsky LLP in Toronto, Ontario (the Firm), in practice with the Firm for over twenty-seven years. My primary areas of expertise include employment law, human rights, anti-racism and workplace discrimination and harassment and workplace investigations relating thereto.

   My extensive experience with anti-racism, workplace discrimination and harassment matters arose both in respect of my legal practice and also through my extensive voluntary involvement with the Canadian Association of Black Lawyers (CABL) as an Executive Board member for a number of years, including as Vice-President, President and Immediate Past President. In addition, I have been engaged in pro bono and other work for community organizations focused on delivering services to the Black, and other racialized, communities.

2. Terms of Reference

   The Terms of Reference for my mandate, attached as Appendix B to this Report, was prepared by me in consultation with the Secretary of the Cabinet; Deputy Minister, Correctional Services, Sam Erry (Erry); Assistant Deputy Minister, Anti-Racism Directorate, Akwatu Khenti (Khenti); and Deputy Minister Responsible for the Anti-Racism Directorate, Steven Davidson.

   My mandate provided for me, as the External Reviewer, to create criteria for the selection of eligible cases from the WDHP Program (the Selected Cases). I did so with a focus on racialized Ontario Public Service (OPS) employees, and in particular Black and Indigenous individuals; who form the vast majority of employees who have sent communications to the Secretary of the Cabinet reporting direct, indirect or systemic race-based discrimination and harassment issues within the OPS.

   My developed criteria included cases involving racialized OPS employees, and in particular Black and Indigenous individuals, primarily with long standing careers within the OPS; cases with any form of race based complaints (or other analogous human rights grounds such as place of origin, colour, ancestry, ethnic origin or creed); complex or lengthy cases; cases where employees had been out of the workplace, with or without pay; and cases where the individuals appeared to be vulnerable due to disability or otherwise (the Criteria).

   The Terms of Reference provided for me to invite complainants and respondents from the Selected Cases (or other necessary parties involved with the WDHP process) to participate in an in person, confidential interview with me to discuss their experiences with the WDHP process.

   The Terms of Reference also provided for me to issue a written report (the Report) to the Deputy Ministers' Advisory Group to outline any trends or patterns common to the Selected Cases which should be considered as part of the broader WDHP Review, and to provide advice and recommendations on potential improvements to the way in which race-based cases are handled within the WDHP Program.

   A copy of the Report have been provided to the Deputy Ministers' Advisory Group for inclusion in the broader WDHP Review and will be made available as part of that process.

   My mandate, and the Terms of Reference, did not include making an assessment or finding in respect to the merits of any individual case selected. However, if I was of the view that there were additional steps, mechanisms or procedures which could assist in the resolution of any given case, I made recommendations to the Deputy Minister of the responsible Ministry and to the parties to the individual cases, with a copy provided to the Deputy Ministers' Advisory Group.

3. Background of Review

   As stated above, the background for this Review arose, in part, from communications from individual employees, primarily Black and Indigenous, to the Secretary of the Cabinet, or to Assistant Deputy Ministers or Deputy Ministers and forwarded to the Secretary of the Cabinet, as well as from other sources such as The Black Ontario Public Service Network (BOPSers), detailing the experiences of such employees when dealing with the WDHP Program and race based issues.

   The nature of the communications gave rise to concerns that the WDHP Program may not be meeting the needs of the participants where complaints raised race-based issues, whether operationally or substantively. It was therefore thought by the Secretary of the Cabinet that any necessary improvements to the WDHP Program should be approached through an anti-racism perspective.

   Further, the Secretary of the Cabinet’s office had a strong perception that the existing WDHP process might be exacerbating or perpetuating the challenges of individual participants when dealing with already difficult issues of racism, unconscious bias and cultural sensitivity.

   Taking a microcosm of selected cases was believed to be a necessary step to engage participants involved in the WDHP process to share their views about how race-based cases were being handled and how the WDHP process could better deal with such complex matters.

   At the same time, the information as to participants' common experiences would be a useful tool for an external reviewer to make recommendations, both on an individual case basis and on a wider perspective, on how race based cases could be better handled or potentially be resolved at an earlier stage.

4. Methodology

   In order to determine which cases would be selected for the review I initially reviewed 53 cases comprised of:

   1. 36 ongoing or recently closed WDHP cases (and 19 grievance files related to the 36 ongoing or recently closed WDHP cases)
   2. 5 grievance files unrelated to the WDHP cases which could potentially present race-based issues;
   3. 5 OPP files which could potentially present race-based issues;
   4. 4 MGCS files which could potentially present race-based issues; and
   5. 3 pending WDHP files which could potentially present race-based issues,
   (hereinafter collectively referred to as WDHP complaints).

The initial review was designed to identify files with race-based allegations and apply the Criteria listed in the Terms of Reference. There were no Indigenous race-based WDHP complaints identified in the initial review.

Following the initial review, I identified 13 Selected Cases which met the Terms of Reference criteria and letters were sent to the complainants in those cases to invite them to participate in a confidential interview with me. Of those agreeing to participate, interview invitation letters were then also sent to their respective respondents. All of the interviews were completed in person in my offices. A total of 13 interviews were held with the individuals who accepted the invitation to participate in the Review (the Participants) between April 25, 2018 and May 11, 2018. All but three of the complainant Participants were women. All of the respondents were management.

In addition, I interviewed staff from the WDHP office, in respect of the WDHP Program, process and practices and viewed the policies provided to me in respect thereto.

Part III: Observations/Discussion

1. Systemic Discrimination

   In identifying and reviewing the Selected Cases, it became apparent that they not only involved race-based allegations, but that they all involved allegations of a systemic nature.

   The Ontario Human Rights Commission states that systemic or institutional discrimination consists of patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization, and which create or perpetuate a position of relative disadvantage for racialized persons.^{footnote 1[1]}

   Action Travail des Femmes v. Canadian National^{footnote 2[2]}, a Canadian Human Rights Tribunal decision which was appealed up to the Supreme Court of Canada, defines systemic discrimination as practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics.^{footnote 3[3]} The patterns of behaviour, policies or practices appear neutral on their face but have an exclusionary impact on racialized persons. Further, systemic discrimination can overlap with other, more direct forms of discrimination.

   In the interviews with the complainant Participants, virtually all pointed to seemingly neutral policies and processes in respect of temporary or acting appointments, with or without competitions, and promotions, as the underlying basis of their WDHP complaints. In addition, many pointed to the selection process for training and professional mentoring / shadowing / "championing" opportunities as creating a barrier to advancement. They perceived this to be due to an inherent and unconscious bias and anti-Black (or anti-racialized) animus resulting in a lack of opportunity to develop relationships with individuals of influence within the OPS who could not only provide skills training, but who could provide strategic advice and knowledge on creating opportunities for them and management’s failure to provide them opportunities to act in increasingly more responsible and better paying roles, and in particular, leadership/management roles. One complainant Participant, of almost 20 years' service, reported 58 unsuccessful competitions since 2008.

   These types of systemic allegations were accompanied by allegations of direct or indirect discrimination and/or harassment on the basis of race by management, based on a specific incident. It was impossible for the complainant Participants to separate the specific incident which led to the filing of the WDHP Complaint from the underlying systemic issues.

   In that respect, and for the reasons articulated below in my discussions concerning the WDHP Program and Policy, all of the Participants, both complainants and respondents, saw the WDHP process as highly inadequate to identify and resolve the complaints in a fulsome and comprehensive way, as none of the systemic issues were dealt with in any manner whatsoever. Further, while in a number of the closed Selected Cases the complaint was ultimately found to be unsubstantiated, or unproven, the finding pertained to the specific incident rather than to the underlying systemic issues, which were not addressed.

2. Anti-Black Racism

   The OPS has a history of working on strategies to combat racism, including anti-Black racism, and to promote inclusion within its organization.

   The OPS Diversity Offices' OPS Inclusion Strategic Plan: 2013-2016 Inclusion Now! (Inclusion Strategic Plan: 2013-2016)^{footnote 4[4]} specifically established a mandate for creating a healthier and more respectful workplace by addressing systemic issues, including racism, discrimination and harassment, and acting early to remove or mitigate barriers.^{footnote 5[5]} It recognized that employees who identified as Aboriginal, Black, Persons with Disabilities and LGBTQ, were the four demographic groups reporting the highest level of perceived discrimination and harassment.

   The Inclusion Strategic Plan 2013-2016 indicated that between 22% to 32% of employees who identified in these four categories reported they had experienced discrimination in the workplace and further, that there was a under-representation of certain demographic groups at various levels in the organization, including visible minorities in senior management.

   Finally, The Inclusion Strategic Plan 2013-2016 identified the clustering of certain demographic groups in certain jobs, with Black employees having a high representation in administrative support and customer and client service jobs, leading to a higher expression of dissatisfaction with their careers and OPS hiring practices.^{footnote 6[6]}

   The above represents the consistent pattern articulated by the complainant Participants, who expressed that in their view, the clustering in lower positions and the significant under-representation of Black employees in management and executive positions, was occurring notwithstanding that Black employees had higher educational levels. The data results from the 2011, 2014 and 2017 OPS Employee Surveys seem to confirm their impressions. Specifically, the 2011 OPS Employee Survey found that 26% of Black employees worked in administrative/clerical positions, compared to 17% of OPS employees generally; 22% of Black administrative employees, compared to 15% of all OPS employees and 16% of all administrative employees, expressed job dissatisfaction; 46% of Black administrative employees, compared to 27% of all OPS employees and 33% of all administrative employees, were dissatisfied with their career progress and 35% of black administrative employees, compared to 24% of all administrative employees and 16% of OPS employees, were dissatisfied with their job fit.^{footnote 7[7]} Further, based upon the 2011 OPS Employee Survey, 58% of OPS Black employees had a University degree or higher, compared to 52% of the OPS general population.^{footnote 8[8]}

   The 2014 OPS Employee Survey results found that the rate of discrimination generally had decreased from 2011 by 3.39%, from 17.64% to 14.25%, with 34.76% of those who experienced discrimination reporting the issue to management or a WDHP Advisor. Discrimination based on race was reported by 22.61% of those who experienced discrimination; an increase of 3.6% over 2011 and second only to age discrimination at 27.39%.^{footnote 9[9]}

   The successor to The Inclusion Strategic Plan 2013-2016 is the OPS Inclusion and Diversity Blueprint which was launched in November 2017.^{footnote 10[10]} The Inclusion and Diversity Blueprint confirmed the results that again racialized employees were one of 4 groups of employees which have the greatest gaps in representation at senior management levels. The 2017 OPS Employee Survey results, published in May 2017, indicated that while the rate of discrimination generally had decreased to 12.56%, Black employees identified being discriminated against at almost twice the rate of OPS employees generally. Further, of the OPS employees who reported that they had experienced discrimination, 25.17% indicated that the discrimination experienced was based on race.^{footnote 11[11]}

   I conclude that these systemic issues play a material role in the complaints being initiated to the WDHP Program by Black OPS employees and play a material part in the expressed cynicism of the complainant Participants in the WDHP process as being an inadequate means of remedying, or even addressing, their complaints.

3. Intersectionality Between Race and Gender

   In the case of Baylis-Flannery v. DeWilde^{footnote 12[12]}, a decision of the Human Rights Tribunal of Ontario (HRTO), the Tribunal noted that:

   … the law must acknowledge that she is not a woman who happens to be Black, or a Black person who happens to be female, but a Black woman. The danger in adopting a single ground approach to the analysis of this case is that it could be characterized as a sexual harassment matter that involved a Black complainant, thus negating the importance of the racial discrimination she suffered as a Black women. In terms of the impact on her psyche, the whole is more than a sum of the parts: the impact of these highly discriminatory acts on her personhood is serious.^{footnote 13[13]}

   This decision highlights a recognition of the intersectionality of race and gender as a legal construct, which has been championed by writers/activists such as Kimberle Crenshaw^{footnote 14[14]} and Carol A. Aylward^{footnote 15[15]}, among others.

   Intersectionality has been defined by the Ontario Human Rights Commission as:

   … intersectional oppression [that] arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone… An intersectional approach takes into account the historical, social and political context and recognizes the unique experience of the individual based on the intersection of all relevant grounds. This approach allows the particular experience of discrimination, based on the confluence of grounds involved, to be acknowledged and remedied.^{footnote 16[16]}

   The intersectionality framework comes from, what is today, a largely accepted recognition that multiple grounds of discrimination produces something unique, as acknowledged in human rights decisions such as Baylis-Flannery.^{footnote 17[17]}

   In interviewing the complainant Participants, who were primarily Black women who had significant years of service with the OPS, it was clear that their lives as Black women framed, influenced and impacted upon their work experiences and the nature of the issues underlying their WDHP complaints and their responses to complaints made against them. Again, the issues underlying these complaints related to allegations of systemic and anti-Black discrimination resulting in a lack of opportunity; whether it be for hiring, training, mentoring, championing, recruitment for temporary or acting positions at a higher level, or promotions to better, higher paid positions.

   Their experiences of systemic discrimination and racism as reported to me were in certain ways similar to those expressed by the Black male complainant Participants interviewed in terms of the lack of advancement opportunities due to discrimination based upon race, directly and systemically and a lack of opportunity to illustrate their skills and abilities in more responsible positions.

   However, the Black female complainant Participants also described experiences which were particular to being Black women. Such experiences included:

   1. perceptions of them, as Black women, being angry and activists;
   2. perceptions of them as being argumentative, difficult and un-co-operative when they voiced/articulated their career goals and aspirations and the lack of opportunities for advancement;
   3. the perception of them as playing the race card upon them identifying perceived differential or inequitable treatment;
   4. perceptions that they could not be effective senior managers or executives; and
   5. their view that their work performance was being judged on how they fit in as opposed to on their professional competence, ability or knowledge evaluated based upon concrete, unbiased measurables.

   Following feedback from employees and a review of employment data showing the need to increase the representation of Black female employees in specific, non-traditionally female or racialized roles in communications, finance, policy and procurement,^{footnote 18[18]} the Ontario government initiated a career pilot program in 2014 entitled the Administrative Internship Pilot Program (AIP). At that time, 26% of black employees within the OPS were in administrative positions, compared to 17% of all OPS employees and 46% of Black administrative employees were reportedly unhappy with their career path, compared to 27% of OPS employees as a whole.^{footnote 19[19]} The AIP was an OPS internship opportunity designed to provide experiential learning to black, female administrative staff interested in moving to a different career stream. The pilot ran in 2014-2015 and included nine (9) placements for a period of one (1) year in four (4) ministries – Ministry of Community and Social Services (MCSS), Ministry of Health and Long-Term Care (MOHLTC and the former Ministry of Government Services (MGS), which currently exists as Ministry of Government and Consumer Services (MGCS) and Treasury Board Secretariat (TBS). The pilot concluded in May 2015.^{footnote 20[20]}

4. WDHP Policy and Program
   1. Purpose and Scope

      The WDHP Program is administered under the OPS Respectful Workplace Policy (Policy to Support a Respectful Workplace and Prevent Workplace Harassment and Discrimination) which was first issued on June 1, 1998 and last revised on September 1, 2016, effective October 1, 2017 (the WDHP Policy).^{footnote 21[21]} The purpose of the WDHP Policy is stated to be:

      1. the promotion of respectful and inclusive behaviours in support of the health, safety, human rights and dignity of individuals in OPS workplaces; and
      2. the establishment of principles for maintaining positive and productive workplaces and mandatory requirements for the prevention of workplace harassment and discrimination.^{footnote 22[22]}

      The WDHP Policy defines Workplace Discrimination in sections 6.12 and 6.13 as follows:

      Discrimination

      6.12

      For the purposes of this policy, discrimination is defined as any practice or behaviour, whether intentional or not, which has a negative impact on an individual or group based on one or more of the prohibited grounds of discrimination in employment under the Code, except where the conduct is permitted under the Code. Discrimination may arise due to treatment which though applied equally has an unequal effect on an individual or group protected from discrimination under the Code.

      6.13

      The prohibited grounds of discrimination in employment are age, ancestry, citizenship, colour, creed, disability, ethnic origin, family status, gender expression, gender identity, marital status, place of origin, race, record of offences, sex (including pregnancy and breastfeeding), and sexual orientation.

      The WDHP Policy provides that violations of the Policy include:

      Policy Violations

      8.1

      Engaging in workplace harassment or discrimination is a violation of this policy. Behaviours and practices that are workplace harassment or discrimination contrary to this policy include, but are not limited to the following examples:

      a) workplace harassment or discrimination in any aspect of employment, which may include, but is not limited to: recruitment, selection, promotion, learning and development, performance management, redeployment, layoff, pay and benefits, termination, job assignment, and granting leaves of absence…

      Notwithstanding section 8.1(a) of the WDHP Policy above, which specifically provides for violations relating to recruitment, selection, promotion, learning and development and job assignment, the WDHP Program does not address violations in respect to these aspects of employment on a systemic basis.

      Violations under section 8.1 of the WDHP Policy also include:

      g) management’s failure to respond appropriately and expeditiously to workplace harassment or discrimination;^{footnote 23[23]} and

      i) reprisal, including threatening or retaliating against an employee for exercising a right under the WDHP Policy,^{footnote 24[24]}

      both of which a number of the complainant Participants state arose in their situations.

      We note at this point that a number of the respondent Participants expressed significant upset at what they perceived to be frivolous and bad faith allegations made against them. They indicated the view that notwithstanding section 8.1(j) of the WDHP Policy, which confirms that the filing of a complaint knowing there has been no violation of the WDHP Policy is itself a breach of the WDHP Policy,^{footnote 25[25]} no disciplinary action is taken under this provision against complainants. The same respondent Participants expressed anger at the perceived inability, which they state was reaffirmed by the WDHP advisors they dealt with, for managers to file workplace harassment complaints against the complainants in their cases under the WDHP Policy.

      The WDHP Policy is stated to support the Human Resources Management Directive, originally issued in 1999 and last revised in June 2011, effective April 1, 2012^{footnote 26[26]}, and to complement other human resource policies which promote and sustain positive, inclusive and supportive workplaces, including, among others, the Policy on Preventing Barriers in Employment, which was originally issued on March 25, 1998 and last revised on January 2, 2007, effective January 10, 2013.^{footnote 27[27]}

      The Policy on Preventing Barriers in Employment sets out requirements and directions on the identification, removal, mitigation and prevention of systems employment barriers that may arise from human resource management directives and policies.^{footnote 28[28]}

      The Policy on Preventing Barriers in Employment also states the following:

      1. Policy Statement

      1.1

      The Ontario Public Service (OPS) is committed to fostering and sustaining an inclusive, accessible and barrier-free workplace. The policy of the OPS is to take reasonable steps to develop and implement human resource management directives and policies that are free of systemic employment barriers and that support employees to achieve full participation in the workplace.

      …

      3. Application and Scope

      …

      3.2.

      This policy applies to human resource management directives and policies, as well as practices relating to the implementation of such directives and policies, for example: recruitment and selection, appointment, assignment and transfer, employment accommodation, performance management, learning and development and redeployment.

      …

      4. Definition of Systemic Employment Barrier

      4.1.

      For the purpose of this policy, systemic employment barrier means a human resource management rule, standard, requirement, or practice, in whole or in part, which, when applied in the same way to everyone, has the effect of excluding or restricting the participation of some individuals within the workplace, based on prohibited grounds of discrimination in employment under the Human Rights Code, being:

      • race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex (including pregnancy), sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status and disability

      5. Principles

      5.1

      Human resource management directives and policies and practices relating to the implementation of such directives and policies are transparent and applied in ways that mitigate systemic employment barriers.

      5.2

      Removal or mitigation of systemic employment barriers will be assessed against the undue hardship, if any, that would result from removal or mitigation.

      5.3

      An inclusive, accessible and barrier-free workplace supports employees in achieving full participation in the workplace.

      5.4

      Every employee has a role to play in creating and sustaining an inclusive and accessible workplace.

      However, at the same time, section 6.7 of the WDHP Policy states that the WDHP Policy does not apply to…allegations of systemic employment barriers (see the Policy on Preventing Barriers in Employment)^{footnote 29[29]}.

      While a seemingly admirable aspirational and directive policy, any perceived breach of the Policy on Preventing Barriers in Employment is apparently not enforceable by way of a complaint under the WDHP Policy.

      Only some of the complainant and respondent Participants confirmed to me that they had been advised by WDHP advisors of such exclusion. The ones who were aware stated that as they are aware of no other policy under which systemic issues can be addressed, they continue to raise systemic issues in their WDHP complaints; while at the same time acknowledging to me that nothing is done about those issues.

      The Human Resource Management Directive sets out the OPS' governance model and policy framework to HR management^{footnote 30[30]}, and applies to all phases and aspects of human resource management for public servants appointed to work in ministries or Commission public bodies under section 32 of the PSOA.^{footnote 31[31]} While this Policy sets out general responsibilities of employees and management and conduct in terms of HR Policy and workforce planning, employee relations, HR services, education and training and employee engagement, it also lacks any enforcement provisions for a failure of management to adhere to its responsibilities.

      Finally, many of the Participants stated that there are a lot of OPS policies but they are not always clear and they don’t always know about them or how to use them to address their issues.

   2. WDHP Advisors

      The Participants articulated a vast disparity of experiences with their WDHP advisors, with some being described as excellent and some as terrible. The treatment experienced by a number of Participants, both complainants and respondents, also varied; with some Participants stating that they were yelled at, interrogated and treated like a criminal.

      Further, a number of Participants stated that their WDHP advisors did not always seem to be knowledgeable about certain aspects of the WDHP Program and Policy and delays were experienced while they had to consult with WDHP management. This may suggest the inconsistent training of advisors and a failure to emphasize that advisors must be respectful and empathetic to all parties, regardless of what they perceive about the merits of their complaints.

      An additionally disturbing occurrence identified by a number of complainant Participants was that they were pressured into foregoing reference to important aspects of their complaint. This particularly occurred where the complaint wanted to include reference to a pattern of behaviour on the part of management which may have preceded the six month period from the most recent alleged incident for initiating a WDHP complaint provided for in section 6.5 of the WDHP Policy.^{footnote 32[32]}

      In one instance, a Participant was advised that he could include reference to a few incidents preceding the six months only if they related to the same manager. In this case, the Participant’s complaint related to a consistent pattern of being overlooked for promotion due to his race within a branch, where he had roles reporting to a number of different managers. He wanted to evidence a pattern of systemic discrimination, up to and including the latest incident.

      The complainant Participants overwhelmingly indicated that they would prefer to draft their own complaints, in their own words, so that they can describe their experiences fully, accurately and in a manner which captures the nuances of the anti-Black racism which they feel they have endured.

      Some also indicated that they would have preferred to have met with the WDHP advisor in person to discuss the elements of their complaint. At least one Participant indicated that even when the Participant requested to do so, the request was denied.

      Finally, a number of the Participants, and in particular the respondent Participants, complained that they never received a copy of the other side’s complaint/response. One Participant stated only after indicating to their WDHP advisor that they would not participate in the investigation interview without first receiving it, was it provided.

   3. Complaint Initiation and Observance of Timelines

      Based upon the interviews with the Participants, some appear to be unclear as to how a WDHP complaint is initiated. While a complainant is free to directly initiate his or her own complaint with the WDHP Program, a number of the complainant Participants reported that they initially believed their complaint to have been started by management. Specifically, they had thought that upon the reporting of the issues to their managers, either verbally and in writing, it triggered an obligation for the manager to report the issue to the WDHP Program. This interpretation is supported by section 9.15 of the WDHP Policy, which provides that managers and human resource advisors must notify the WDHP Section, Centre for Employee Health, Safety and Wellness (CEHSW), Ministry of Government and Consumer Services (MGCS), or the applicable OPP contact/CPB office upon receipt of an alleged workplace harassment or discrimination complaint or becoming aware of a potential violation of this policy.^{footnote 33[33]} The WDHP advisor is then obligated to conduct a preliminary assessment within 15 working days of complaint receipt.^{footnote 34[34]}

      Based upon the interviews, this mandatory obligation to report on the part of managers is not being followed in all cases, leading to confusion on the part of some complainant Participants as to whether, and when, their WDHP complaint originated. Specifically, believing that their managers filed a complaint upon the reporting of the incident/issue, the complainant did not initially do so. Accordingly, not only are complaints being unnecessarily delayed, leading to a lengthier WDHP process and deferred resolution, but the frustration of Participants are being amplified.

      Further, some complainant Participants reported that the intake interview with the WDHP advisor resulted in inaccurate or only partial information being included in their complaints, which also served to delay the process.

      Also, the process of the complaint being prepared at first instance by the WDHP advisor (which occurred in most instances), who most of the Participants stated did not appear to be trained in anti-Black racism or unconscious bias, resulted in the nuances and interpretations of facts related to racial bias being lost, necessitating further revision and resulting in further delay.

      Finally, while section 9.17 of the WDHP dictates that the complaint resolution is to be initiated within 15 working days of the preliminary assessment, and sets out completion dates for direct management action (30 working days), alternative dispute resolution (50 working days) and investigation (90 working days for internal and 120 working days for external), virtually all Participants reported that the timelines were habitually breached.

      All of the Participants reported the failure of the WDHP Program to adhere to the timelines at some stage of the process, sometimes unreasonably so. Credibility in the process depends on accountability. Most of the Participants felt that the WDHP process was not accountable, and the failure to adhere to its own timelines or to advise Participants that timelines needed to be adjusted, and the reasons therefore, was a primary reason.

   4. Out of Scope Determinations

      A number of complainant Participants discussed in scope and out of scope and stated that they were unclear as to what those concepts meant in relation to their complaint and that it was not properly explained to them by their advisors.

      Others expressed concern that out of scope determinations were being made on the merits without the benefit of investigation.

      It was also apparent, based upon my discussions with the Participants that Participants were having parts of their complaints removed as being out of scope due to the systemic nature of the excised portion, notwithstanding that that portion was integral to the incident giving rise to the complaint. As well, Participants were encouraged to proceed against certain respondents and not others, based on the advisor’s perception of those removed respondents being out of scope, in instances where the Participants wanted those respondents included due to their failure to address their issues at an early stage or failing to address the pattern of exclusion due to anti-Black bias, thereby exacerbating the Participant’s perceived harm.

      This is notwithstanding the Principles outlined in section 7.3 of the WDHP Policy, which mandate that managers, with the assistance of human resources, take timely action to resolve situations contrary to the respectful workplaces, even where such behaviours are not workplace discrimination.^{footnote 35[35]} It is also noted that section 8.1 of the WDHP Policy which makes management’s failure to respond appropriately and expeditiously to workplace discrimination as violation of the Policy, for which management are to be held accountable.^{footnote 36[36]}

      Based on the above, it is arguable that WDHP advisors may be making inappropriate determinations of out of scope.

   5. Investigation Process

      Many complainant Participants expressed concerns with the Investigation process provided for in the WDHP Policy once the preliminary assessment has been completed and complaint was found to be in scope.

      Specifically, the complainant Participants expressed concern and confusion as to the basis upon which the alternative resolution methods outlined in section 9.17 of the WDHP Policy were chosen, and in particular in respect to when an internal versus external investigation would be held. Inquiries made by them of WDHP advisors about this issue went unanswered or were vague and unhelpful. Some complainant Participants suggested that an internal investigation was chosen when management wanted to cover up the allegations being made in the complaint or when it had already determined that the complaint was going to be found unsubstantiated.

      There appears to be no written criteria as to when a complaint will be referred to internal investigation by a manager. Based upon discussions with the WDHP Office, the decision is made in consultation with management and Human Resources within the branch.

      While there is an Internal Investigator’s Guide^{footnote 37[37]} which provides direction as to how to collect and consider evidence and how to prepare for and conduct an investigation, there is no mandate in the Guide that the manager must have prior workplace investigation experience or that he or she must have anti-racism/anti-Black racism, unconscious bias/anti-Black bias, intersectionality and cultural sensitivity training.

      Further, as per the WDHP Guide, the written investigation summary is not prepared with the parties involved, again leaving a number of the Participants feeling that there has been a cover up or feeling they have inadequate information to satisfy them that the issues have been properly investigated. One Participant engaged in the internal investigation process indicated that by the end of the WDHP process the Participant still had no knowledge as to what the internal investigation process did or found as the Participant was only told that the matter had been resolved.

      For the most part, the Participants found the External Investigators to be empathetic, however some Participants commented that based upon the questions asked, which avenues they were prepared to pursue and what evidence they were prepared to accept as relevant, some Investigators seemed to be obviously unqualified, legally and substantively, to deal with race-based allegations of a systemic nature. One complainant Participant whose External Investigator refused to consider similar fact evidence, stated that the External Investigator was only interested in getting enough evidence to reach a conclusion, not to get to the truth. Another stated that the External Investigator made no effort to obtain readily available personnel documents, to which the Participant no longer had access, which could substantiate her allegations (disputed by the respondent), stating that if the Participant did not have such documents in her possession, he could not consider them.

      One complainant Participant also had difficulty with her External Investigator being unprepared for her interview and lacking basic documents, such as the WDHP complaint itself.

      Based upon information and documents received from the WDHP Office, selected External Investigators are obtained from a preapproved list and are required to provide evidence of relevant experience and qualifications through the submission of prior assignments.

      As well, they are required to prepare a written assignment based on case studies and attend an in person interview. In my review of the sample case studies provided to External Investigators for written response, they appear to be rather simplistic and straight forward and do not capture the legal and factual complexity of an anti-Black racism complaint with underlying systemic issues, which appears to be the nature of most of the race based complaints being filed with the WDHP Program. While the oral interview questions appear to be much more directed towards the External Investigator’s knowledge of more complex racial discrimination concepts, the points awarded for that portion of the selection process is well less than half the total points awarded.

      The External Investigators are also provided with a written guide (the External Investigator’s Guide)^{footnote 38[38]} of their duties and responsibilities in respect of the Investigation process, however it appears that the Guide is not being following in all instances. For example, in section 10 thereof, the External Investigators are directed to provide procedural fairness to all parties engaged in the Investigation, including providing the complainant and respondent with the opportunity to identify witnesses and additional information pertinent to their complaint and defence^{footnote 39[39]}. As well, section 9 provides a requirement that the External Investigator must interview the parties and all relevant witnesses…and should also conduct appropriate follow-up as necessary.^{footnote 40[40]} As hereinbefore discussed however, a number of complainant Participants stated that their External Investigator prevented them from doing so; thereby potentially suggesting a lack of thoroughness.

      Further, the Investigator’s Use Guide stipulates that he/she must conduct the interview in a manner that:

      1. Allows all parties to articulate their stories, i.e. ask questions, explore situations fully and address difficulty naming racism, sexism and homophobia;^{footnote 41[41]} and
      2. Understands individual, societal, systemic barriers and power dynamics, and considers evidence pertaining to each case.^{footnote 42[42]}

      As discussed above, many of the complainant Participants expressed that their External Investigators did not allow them to present their stories fully and did not display an understanding of systemic barriers or issues.

   6. Communications Regarding Status of WDHP Process

      All of the Participants reported a significant degree of frustration with the lack of regular communication from their WDHP advisors as to the status of the WDHP process. Many reported numerous instances where they had to initiate contact with their WDHP advisors for status updates, often to find that the WDHP advisor had been replaced with no notice to them.

      This is in breach of section 9.20 of the WDHP Policy, which provides that complainants and respondents must be kept apprised of the status of the WDHP complaint resolution process. However, there is a question as to who is responsible for providing such updates. Section 9.20 does not provide that such responsibility belongs to managers, yet it appears under the heading Management Responses to Alleged Workplace Harassment or Discrimination, which is certainly confusing.

   7. Early Intervention

      The WDHP Policy is also focused on the prevention of complaints in that it states:

      Principles

      7.1

      Employees are responsible for respecting the dignity and rights of other employees, other workers and the public they serve. Managers, employees and other workers are responsible for demonstrating standards of respectful and professional behaviour consistent with the principles outlined in this policy, OPS Code of Ethics and organizational values.

      7.2

      Supporting a respectful workplace including the prevention of workplace harassment and discrimination is an integral part of all workplace activities, and is a shared responsibility requiring cooperation between the employer, employees and, where applicable, bargaining agents.

      7.3

      Managers, with the assistance of human resource advisors, take timely action to resolve situations contrary to respectful workplaces such as behaviours negatively impacting the workplace (e.g., conflict, poor communication), even where such behaviours are not workplace harassment or discrimination.

      7.4

      All allegations of workplace harassment or discrimination are treated seriously and handled on a timely and confidential basis in accordance with this policy, the applicable program and applicable law with an aim to preserve the dignity, self-respect and rights of all parties.

      7.5

      The OPS offers employment accommodation short of undue hardship in accordance with its legal obligations, including under the Code.

      However, based upon the interviews with the complainant Participants, few indicated any early intervention being initiated by management as opposed to at their own initiative. Further, all indicated that any attempts they made to initiate discussions concerning the systemic aspects of their issues, were not substantively responded to, if at all.

   8. Mediation, Restoration and Resolution Services

      The Participants expressed an uneven experience with mediation, restoration and resolution services. Many of the Participants interviewed were still in the process of the WDHP and therefore had not yet engaged in any restoration process.

      Surprisingly however, most of the Participants had not been involved in any mediation or resolution process, either prior to or during the course of the WDHP process. Many of the Participants indicated a belief that had some sort of mediation or resolution process been offered to them at the time the issues forming their complaint had been raised, or early on in the WDHP process, it may have caused them not to proceed with a WDHP complaint or to abandon their complaint at an early stage.

      Many of the Participants expressed to me that they were still prepared to consider early mediation/early resolution, however, some indicated that the course of time and the emotional toll of the process made these processes no longer viable to them.

   9. Support for Participants

      A number of the Participants expressed that the WDHP process did not provide them with any support whatsoever for the emotional trauma they were experiencing due to the nature of the issues raised in the complaint and the delays and stress caused by the process.

      While section 9 of the WDHP Guide provides for a support person and/or bargaining agent representative for complainants, respondents and witnesses, no other supports are specifically provided. While the WDHP Policy references accommodation, many felt that it was not applied in practice. Further, it was unclear to the complainant Participants as to how the determination was made as to whether they remained in the workplace with the respondent, notwithstanding their emotional upset, or whether they were placed on a leave of absence with pay pending investigation.

Part IV: Recommendations

In accordance with my Terms of Reference mandate based upon my interviews with the Participants, and my own observations as discussed above, I set out below my Recommendations in respect of the WDHP process which may improve the manner in which race complaints are dealt with.

The Inclusion Strategic Plan 2013-2016 states that one of its key indicators of success is …fewer employees reporting experiences of discrimination and harassment.^{footnote 43[43]} Accordingly, I have also included in Part IV of this Report, Recommendations which focus on the pre complaint stage which might serve as preventative measures to reduce the number of WDHP complaints filed.

1. operational
   1. Training of WDHP Advisors

      WDHP advisors should be thoroughly trained in all aspects of the WDHP Program and the Policy and further, be made aware that WDHP complaints based on race will often include both an allegation of a direct racial incident as well as a background of systemic racial issues either related to the direct incident or giving rise to the direct incident. The totality of the complaint has to be examined in order to identify the nuances involved in such complaints so as to ensure that the analysis of in scope and out of scope is properly undertaken and not used as an instrument to effectively silence a complainant’s race-based issues.

      WDHP advisors should be required to undertake specific anti-racism/anti-Black racism, unconscious bias/anti-Black bias, intersectionality and cultural sensitivity training, and such training should be updated at least every 3 years.

   2. Preliminary Assessments for In Scope and Out of Scope Complaints

      WDHP advisors should clearly explain the concepts of in scope and out of scope to all Participants.

      WDHP advisors should also confirm the determination of a complaint, or any portion thereof, being found to be out of scope, and the reasons therefore, in writing.

      WDHP advisors must ensure that the basis of the out of scope assessment is not made based upon the merits of the allegations, but rather, on whether the substance of the out of scope portion could not found a WDHP complaint, even if proven after investigation.

   3. Notice in Writing of Change of Advisors

      Timely notice in writing should be provided to all parties upon a change of WDHP advisor, with the name and full contact information of the new advisor.

   4. Complaint/Response to Complaint Should be Drafted by Participants

      The complaint and response to complaint and any cross-complaints, should be drafted by the participants, unless participants seek assistance in so doing or unless the length of the document is clearly unreasonable.

   5. Complaint and Response Should be exchanged between the Parties

      In order for the parties to have a full appreciation of the issues, the complaint and response documents should be exchanged at an early stage in the process and well before the investigation interviews take place.

   6. Intake Interviews should be In Person if Requested

      Intake interviews with complainants or respondents should be completed by telephone, unless an in person interview is specifically requested.

   7. Timelines for the WDHP Process Should be Articulated in Writing and Adhered to

      WDHP advisors must be mandated to communicate timing delays in the process, which must be reasonable and bona fide, in writing, to all parties together with the reasons for the delay and the new timing schedule for the remaining steps.

   8. Regular WDHP Process Status Updates

      Written notice should be provided to all parties regarding the status of the WDHP complaint on a regular basis. Further, if possible, prior written notice of the upcoming stages and major events (such as the scheduling of investigation interviews) should be given in sufficient time for the parties to prepare.

   9. Notice of Initiation of WDHP Process

      It is recommended that all Participants receive a written notification of issues which may give rise to a WDHP Complaint to confirm to them that the process has been triggered, irrespective of how the process is initiated. As well, a copy of the WDHP Policy and the Workplace Discrimination and Harassment Prevention in the Ontario Public Service Complaint Handling and Resolution Program Guide (WDHP Guide)^{footnote 44[44]}, together with a concise summary of the WDHP process steps and timelines.

   10. Training of External Investigators

       It is recommended that the pre-approved list of external investigators contain only such external investigators who have undertaken specific anti-racism/anti-Black racism, unconscious bias/anti-Black bias, intersectionality and cultural sensitivity training, and that such training be updated at least every 3 years.

       The oral interview, which forms a portion of the selection process for external investigators, should be afforded far more weight than is currently the case.

       Participants should be surveyed as to whether the external investigators are complying with the requirements of the External Investigator’s Guide.

   11. Internal Investigations

       Given that there appears to be no written or other criteria to determine when and why an internal investigation is appropriate or evidence that the Internal Investigators are trained on workplace investigations or have received anti-racism/anti-Black racism, unconscious bias/anti-Black bias, intersectionality and cultural sensitivity training, it is recommended that the WDHP process dispense with internal investigations.

   12. Support for Participants

       It is recommended that complainants and respondents be recommended to engage EAP services at the earliest possible stage in the WDHP process and, that consideration be given to finding other comparable positions for complainant Participants experiencing significant emotional trauma while the WDHP process is ongoing.

2. preventative/systemic

   Many of the Preventative/Systemic Recommendations described below have, in a similar or identical format, been identified in the Inclusion Strategic Plan: 2013-2016,^{footnote 45[45]}  the 2017 OPS Inclusion and Diversity Blueprint,^{footnote 46[46]}  or in other OPS strategic documents. However, based upon discussions with both complainant and respondent Participants, many of the recommendations made in the Inclusion Strategic Plan: 2013-2016 and the OPS Inclusion and Diversity Blueprint have seemingly not been implemented in all branches/divisions. In particular, most of the Participants expressed that there is still a significant lack of diversity, anti-discrimination, unconscious bias or cultural diversity training within the OPS. Further, there is a widespread belief by complainants, albeit on an anecdotal basis, that there is an increasing, not decreasing, number of race-based complaints being initiated by Black employees through the WDHP Program. The collection of desegregated data however will determine if these impressions are substantiated in fact.

   In providing my Recommendations below, I am mindful that my mandate is restricted to an anti-racism review of the WDHP process. However, given my observations, as discussed above, I felt it necessary to include Recommendations which I believe may make the employee/management relationship more respectful, co-operative and cordial, thereby hopefully reducing the number of race-based WDHP complaints, both direct and systemic, being initiated.

   1. Revise The WDHP Policy

      Revise the WDHP Policy to include the ability to file a complaint in respect of systemic issues under the WDHP Policy, whether or not any other direct or indirect forms of discrimination are also raised. This would provide the missing enforcement tool for systemic discrimination based on race to be addressed.

      Race-based complaints should be dealt with by specialized teams of WDHP advisors, specifically trained on the provisions of the Policy on Preventing Barriers to Employment and in identifying and articulating:

      1. direct and indirect forms of racial discrimination; and
      2. systemic discrimination based on race.
   2. Collect Desegregated Data on WDHP Complainants and Respondents

      We note that sections 10.51 and 10.52 of the WDHP Policy delegates to the OPS Diversity Office obtaining and analyzing workforce data on various dimensions of diversity and corresponding policy and program measures.

      Data on WDHP complainants and respondents should be collected, on an annual basis, on a desegregated basis by race (rather than aggregated as racialized minorities), gender, age, years of service with OPS, position, position level, pay range, nature of the WDHP complaint (i.e. systemic or indirect/direct), and any other grounds which enable trends and systemic patterns in respect of race complaints to be identified and addressed.

      Furthermore, the desegregated data must be monitored and analyzed to examine specific trends and patterns among different racial groups. It was clearly articulated by the Black complainant Participants that they perceive preferential treatment in respect to advancement and better positions for groups of other racialized minorities to the detriment of Black employees.

      Also, the data must critically look at the particulars of the systemic issues giving rise to the complaints, based on the specific racial group in issue. For instance, many of the Black complainant Participants reported in particular, experiences of marginalization, ostracism, exclusion, reprisals and the diminishing of their qualifications, knowledge, expertise and experience.

   3. Mandate Widespread Anti-Racism Training

      All management, including ADMs and DMs, should maintain an environment of inclusiveness through anti-racism/anti-Black racism, unconscious bias/anti-Black bias, intersectionality and cultural sensitivity training for all employees, including all management.

      The WDHP Policy provides that newly appointed managers must complete workplace harassment and discrimination prevention education and/or training on the content of the WDHP Policy and associated programs within six (6) months of their start date. Existing managers must participate in such education and/or training at least every two (2) years.

      Based upon the perceptions of the complainant Participants, and the acknowledgment of the respondent Participants, it is questionable as to whether this training is actually being implemented on a wholescale basis.

      The necessity of this training has been recognized by the OPS in a number of reports and publications, including the Inclusion Strategic Plan: 2013-2016. The training must be mandatory and undertaken by qualified individuals who have both training credentials and lived experiences to provide credibility.

      The training should include tools to enable all management to identify, be sensitive to, and address race-based complaints and the underlying systemic issues related thereto so as to avoid WDHP complaints.

   4. Implement Early Resolution Initiatives

      The WDHP Guide provides for advisory services to Ministries to achieve early resolution and mediation services in respect of ongoing WDHP complaints.^{footnote 47[47]}

      However, as a preventative measure, early resolution initiatives should be devised and utilized so as to address issues giving rise to potential WDHP complaints.

      Management should be trained on early resolution/de-escalation measures, in particular, to address allegations of unfair competitions or the lack of promotion/training opportunities.

      Also, management should be trained as to when to seek the early intervention of HR to attempt to resolve issues between management and the prospective complainant prior to the escalation to a WDHP complaint.

   5. Conduct an Overview Hiring, Recruitment and Promotion Competitions and Appointment Policies and Practices with a Systemic Lens

      A review of all policy and practices, formal or informal, particularly those which impact hiring, promotion and other forms of advancement must be re-examined with an anti-racism lens. These seemingly neutral policies, particularly competition policies and practices, are having a significant impact upon the careers of Black OPS employees, especially Black female employees.

      Given the acknowledgement of a history of systemic discrimination and exclusion within the OPS, which has created an environment wherein Black employees have been unable to gain experience in leadership roles, consideration should be made to providing acting opportunities for senior positions specifically to racialized employees, and in particular, Black and Indigenous employees.

   6. Create Championship Opportunities

      Mentorship opportunities should be created whereby senior management are impressed with a stake in the success of the racialized employee to whom they are attached, in terms of performance measures.

   7. Management Accountability

      Management should be held accountable, through formal performance indicators, for ensuring the completion and monitoring of anti-racism/anti-Black racism, unconscious bias/anti-Black bias, intersectionality and cultural sensitivity training and initiatives. Further, they should be required to promote and participate in programs and activities which support and encourage diversity and inclusiveness within their units/branches/divisions/ministries.

Appendix A

In Memoranda issued on January 19, 2018 and March 26, 2018, attached as Appendix A to this Report

Appendix B

Terms of Reference