An independent law firm, Bernardi Human Resource Law, retained to look into allegations of racial microaggression at Whitby Council in October 2024 (see below) has submitted its report, recommending better dialogue between council members.
It defined the source of tension as stemming from the unwillingness of Mayor Elizabeth Roy to appoint Councillor Steve Yamada as Deputy Mayor.
Mayor Roy acknowledged that she did not want Councillor Yamada to be her deputy as she believed as deputy mayor he would undermine her priorities if she became incapacitated.
As a result of Mayor Roy’s statements, staff did not provide Councillor Yamada with the deputy mayor name tag or assign him the usual seat beside the mayor in council chambers.
According to the investigation, Mayor Roy relied on the initial internal opinion. When that opinion was not confirmed by external counsel, the mayor and staff changed course and Councillor Yamada was given the name tag.
The Infamous October 9 Meeting
At a meeting on October 9 last year, Councillor Leahy insinuated that Councillor Yamada experienced racial microaggressions from council and staff during his time as deputy mayor with the Town of Whitby.
The parties involved, largely stated, that when he was deputy mayor, Councillor Yamada was not:
- Initially given a name tag,
- Assigned the usual deputy mayor seat, and
- Was not referred to as deputy mayor in council meetings.
The independent inquiry accepted that not being given the deputy mayor name tag or applicable seat at council constitutes negative treatment of Councillor Yamada.
On the third point it said, most witnesses indicate that the term deputy mayor is rarely used in meetings and generally only when the deputy mayor is chairing.
After that meeting, Councillor Leahy accused council of violating closed meeting rules during the recess. Aird & Berlis, the closed meeting investigator, was retained to investigate that allegation and determined that closed meeting rules were not violated.
Code of Conduct Penalty
In late October two Code of Conduct complaints were filed against councillors Leahy and Yamada for improperly raising the allegations of microaggression in council.
The Integrity Commissioner released its report this March 11, and found that Councillor Leahy’s “unsubstantiated comments” in which he accused council of anti-Asian racism towards Councillor Yamada breached his obligations under the Code of Conduct.
Councillor Yamada’s statement “in which he cast aspersions on the integrity of his colleagues, implying that his council colleagues engaged in racism towards him” also breached his obligations under the Code of Conduct.
The Integrity Commissioner recommended a one-week suspension of remuneration for both Councillors Leahy and Yamada, which was approved by council.
Allegations of Racial Microaggressions Raised in Good Faith
Bernardi Human Resource Law was retained thereafter to investigate the allegations originally raised by Councillors Leahy and Yamada. It found that the allegations of racial microaggressions were raised in good faith by both councillors Leahy and Yamada.
The report also states that although Councillor Yamada was treated differently than other councillors during his time as deputy mayor, there is insufficient evidence to establish on a balance of probabilities that his identity as a Japanese Canadian was a factor in that treatment.
The report concluded that…race, ancestry or ethnic origin was not a factor in how Councillor Yamada was treated by the mayor, other councillors or staff. It was due to the combative relationship with Mayor Roy and Councillor Yamada.
Challenging and Divisive
According to the report by Lauren Bernardi: “It is apparent from my meetings with various individuals that this has been a challenging and divisive issue. But I respectfully encourage all of council to view this as an opportunity for constructive reflection and to refrain from using these findings for vindication or blame.”
To that end, the law firm recommended that council should clarify policy language and enhance procedural fairness and respectful engagement.
The Recommendations Included:
- Education on unconscious bias and discrimination and how to respectfully respond when allegations of bias and discrimination are raised.
- Exercising caution in public responses to allegations of bias.
- Policy clarification and reform. The Code of Conduct and the Respect in the Workplace Policy currently lack clarity regarding allegations of discrimination. Council was asked to consider whether:
- Section 4 of the Code of Conduct (Conduct Respecting Others) should explicitly state that discrimination is considered “inappropriate behaviour”, similar to harassment, and investigated in the same manner.
- To make corresponding amendments to the Respect in the Workplace Policy to reinforce expectations to eliminate bias and discrimination across all levels of municipal leadership.
- To define discrimination in the context of council relations and consider whether it should apply to both the “municipal work environment” and “activities of elected office”.
- To extend the reprisal provisions in the Code of Conduct to complaints that are investigated by a body other than the Integrity Commissioner.
- To clarify how and in what forum allegations of discrimination should be raised.
- To clarify that unsubstantiated allegations made in good faith do not automatically constitute a contravention of the provisions of the Code of Conduct.
As discrimination is often experienced subjectively and can lack tangible evidence, the report states that council needs to protect individuals who raise concerns in good faith.
Lauren Bernardi ended her report by saying: “This is an opportunity for reflection rather than blame. There are valuable insights to be gained from this situation, and I encourage council to focus on learning from this experience and on engaging with each other with respect and professionalism.”
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