FPSLREB Decisions

I. Grievance referred to adjudication

1 On May 7, 2004, the Correctional Service of Canada (CSC or “the employer”) terminated the employment of Frederick James Tobin (“the grievor”) for disciplinary reasons after he pled guilty to committing a criminal offence. Unsuccessful in challenging that decision at the final level of the internal grievance process, the grievor referred the matter to the former Public Service Staff Relations Board for adjudication under subparagraph 92(1)(b)(ii) of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 ("the former Act").

2 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, the grievor’s reference to adjudication was, and continues to be, dealt with in accordance with the provisions of the former Act.

3 In Tobin v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 26, the adjudicator overturned the discipline and ordered the employer to reinstate the grievor to his substantive position as a consultant psychologist (classified PS-03) at the Ontario Regional Treatment Centre (RTC) at Kingston Penitentiary. The grievor returned to work on June 18, 2007.

4 The employer applied for judicial review of the adjudicator’s decision. In Attorney General of Canada v. Tobin, 2008 FC 740, the Federal Court set the decision aside. The employer then took the position that the original termination of the grievor’s employment was still in force and effect and removed him from the payroll as of July 11, 2008.

5 The grievor appealed the Federal Court’s decision. In Tobin v. Attorney General of Canada, 2009 FCA 254, the Federal Court of Appeal dismissed his appeal, confirmed that the adjudicator’s decision was set aside and returned the matter for a rehearing before a different adjudicator, with the following instructions:

…

a) the matter is to proceed on the basis that the Commissioner’s Standard applies to the assessment of Mr. Tobin’s behaviour and to the assessment of the appropriateness of the penalty imposed by the employer.

b) it is open to the adjudicator to conclude from Mr. Tobin’s conduct and the objective and subjective factors surrounding his criminal conviction that he brought discredit to the Correctional Service of Canada, without the necessity of direct evidence of loss of reputation.

6 The Chairperson of the Public Service Labour Relations Board appointed me to rehear the case as ordered by the Federal Court of Appeal.

II. Summary of the evidence

7 At the beginning of the hearing, the parties submitted an agreed statement of facts (“the ASF”) that appears as Annex A to this decision. I also admitted, on consent, 70 documents from the original adjudication hearing (Exhibits E-1 to E-25 and G-1 to G-45). Additional exhibits were admitted during the hearing.

A. Summary of the ASF

8 As an aid to reading the ASF, the following chronology summarizes key events in this case.

9 The grievor joined the CSC as a consultant psychologist at the RTC in August 1988. In 1997, he became the program director of its Women’s Offender Unit. Between 1998 and September 2001, he acted in higher-level positions, first as the warden of the Prison for Women and later as the deputy executive director of the RTC, the latter while still performing the duties of his substantive PS-03 psychologist position. From September 2001 until February 26, 2002, he worked on assignment at the Ontario Regional Headquarters (RHQ). From February 26, 2002 to July 8, 2002, the grievor acted as the deputy warden of the Collins Bay Institution (CBI), also in the Kingston area.

10 In, or about, March 2001, the grievor began a relationship with HM, a female term employee at the RTC. From September 2001 to the end of February 2002, HM worked as a casual employee at the CBI and continued there as a volunteer until the end of March 2002. When the grievor accepted the position of acting warden at the CBI at the end of February 2002, HM was at the institution and technically came under the grievor’s supervision but did not report directly to him. Their relationship continued for a time after HM left the CBI.

11 On July 5, 2002, the grievor was arrested and held on five criminal charges relating to the harassment and intimidation of HM (Exhibit E-1). Effective July 9, 2002, the warden of the CBI placed the grievor on suspension without pay, pending the completion of a disciplinary investigation (Exhibit E-8).

12 Based on the investigation report (Exhibit E-16), Nancy Stableforth, the CSC’s deputy commissioner for Ontario, concluded that she had insufficient information to make a decision about the grievor’s situation. On November 20, 2002, she ordered his return to work in a position that did not require direct contact with offenders and reinstated his pay and benefits at the PS-03 level retroactive to the date of his suspension (Exhibit E-16).

13 On April 19, 2004, the grievor pled guilty to one of the original five criminal charges, namely, that he violated paragraph 264(2)(d) of the Criminal Code, R.S.C., 1985, c. C-46. As recorded in the “Plea and Sentencing Transcript” of the Ontario Superior Court of Justice (Exhibit E-2), the count of the indictment to which the grievor pled guilty read as follows:

…

… between and including the 1st day of November, 2001 and the 4^th day of July 2002, in the City of Kingston, and elsewhere in the Province of Ontario, the said Frederick James Tobin, knowing that [HM] is harassed, or being reckless as to whether [HM] is harassed, did without lawful authority engage in threatening conduct directed at [HM], thereby causing [HM] to reasonably, in all circumstances, fear for her safety, and did thereby commit an offence contrary to s. 264 (2) (d) of the Criminal Code of Canada.

…

The other charges were dismissed. The Court accepted the plea agreement, convicted the grievor, suspended his sentence, imposed an 18-month probation and placed a number of statutory and non-statutory conditions on his probation.

14 On April 21, 2004, after learning about the grievor’s conviction, Ms. Stableforth suspended him pending the completion of an investigation (Exhibit E-20). She convened a hearing with the grievor and his criminal counsel on April 28, 2004. At that hearing, she accepted a request to allow the grievor an opportunity to contact his labour relations representative for assistance in making representations to Ms. Stableforth. The grievor’s representative from the Professional Institute of the Public Service of Canada (“the bargaining agent”) provided a written submission on May 4, 2004 (Exhibit E-22).

15 On May 7, 2004, Ms. Stableforth terminated the grievor’s employment. The letter of termination read as follows:

…

I have completed a full review of the Plea and Sentencing document along with the Administrative Review conducted in 2002. I have also taken your comments from our meeting of April 28, 2004 and those of your union representative, provided to me in writing May 4, 2004, into consideration.

… you have pled guilty to engaging in threatening conduct directed at [HM], thereby causing [HM] to reasonably, in all circumstances, fear for her safety, and you did thereby, commit an offence contrary to section 264(2)(d) of the Criminal Code of Canada. You are on record as accepting responsibility for your actions in relation to this conviction and have been imposed a suspended sentence and eighteen months probation by the Court.

You have contravened Standard 2 — Conduct and Appearance of the Code of Discipline and the Standards of Professional Conduct:

• Acts, while on or off duty, in a manner likely to discredit the Service;
• Commits an indictable offence or an offence punishable on summary conviction under any statute of Canada or any province or territory, which may bring discredit to the Service or affect his or her continued performance with the Service.

In making my decision, I have concluded that the behaviour you have demonstrated is incompatible with the duties you were required to perform as a Psychologist and with the behaviour expected of employees of the Correctional Service of Canada.

You have brought the Correctional Service of Canada into disrepute in the eyes of the public, the staff and offenders, and the trust and confidence that you were once afforded have been irrevocably damaged.

I have taken into consideration your years of service and your disciplinary record; however, this does not mitigate the seriousness of your actions. Therefore, based on the foregoing … you are hereby advised that your employment with the Correctional Service of Canada is terminated effective April 23, 2004.

…

16 The grievor presented his grievance against the termination of his employment on May 18, 2004 and referred the matter to the former Public Service Staff Relations Board for adjudication on January 25, 2005.

B. Additional oral evidence

17 I received additional oral evidence from Ms. Stableforth and from the grievor.

18 Ms. Stableforth confirmed that she did not rely upon Standard 3, “Relationships with Other Staff Members”, in the Code of Discipline (Exhibit E-12) when she terminated the grievor’s employment.

19 When Ms. Stableforth returned the grievor to work in November 2002 after his first suspension without pay, her letter to him (Exhibit E-16) stated that a further investigation would be initiated “… should management become privy to further information in connection with the criminal charges against [the grievor] … .” When she learned about the grievor’s guilty plea and the agreed statement of facts in the “Plea and Sentencing Transcript” (Exhibit E-2) shortly after the proceedings in the Ontario Superior Court of Justice, she wrote to inform him that she was “… reviewing this new information and the surrounding circumstances …” (Exhibit E-19). In a second letter two days later (Exhibit E-20), she attached a copy of the “Plea and Sentencing Transcript”, suspended the grievor and invited him and his representative to the meeting on April 28, 2004.

20 Ms. Stableforth recounted the details of that meeting (summarized in Exhibit E-21). She stated that the grievor’s criminal counsel, Mr. Smith, indicated that the grievor was not prepared to make representations and said that he had expected to be summarily fired at the meeting. As labour relations was not Mr. Smith’s area of expertise, he asked that the grievor have an opportunity to consult with his bargaining agent; Ms. Stableforth agreed. At the end of the encounter, the grievor tried to offer an explanation for his guilty plea and conviction. Ms. Stableforth declined to hear his explanation and advised the grievor that she accepted the decision of the Ontario Superior Court of Justice.

21 Ms. Stableforth confirmed that her only subsequent contact with the grievor’s bargaining agent representative on the matter was the representative’s letter of May 4, 2004 (Exhibit E-22). Ms. Stableforth did not initiate any other contact with the representative or with the grievor before issuing her decision to terminate his employment.

22 In cross-examination, Ms. Stableforth made the following statements: (1) She has no direct supervisory contact with a CSC psychologist in her role as deputy commissioner but might come into contact with psychologists in discussions about mental health services; (2) She did not provide the grievor with an opportunity to make representations on whether he should be terminated; (3) She did not give the grievor or his representative an indication of the reasons for termination for comment before making her final decision; (4) She did not specifically ask the grievor for his views about whether he had violated Standard 2 of the Code of Discipline; (5) She was aware that the grievor returned to work as a psychologist after the adjudicator’s decision but did not monitor his performance in that capacity and was only aware of his general duties; (6) She did not recall looking for any other specific positions to which the grievor might have been appointed as an alternative to terminating his employment.

23 The grievor asked Ms. Stableforth about her knowledge of other employees who had been convicted of a criminal offence. Provided with three specific names, she stated that she did not know about their convictions. Ms. Stableforth also described a briefing note prepared for her at the end of May 2004 in response to a request from national headquarters that identified 12 cases of employees charged with criminal offences in her region (Exhibit G-46). Asked whether she undertook a similar exercise before terminating the grievor’s employment, she replied that she would have discussed precedent cases with in-house legal counsel as well as with her labour relations advisors. However, she could not recall whether specific comparisons were made based on the circumstances of the grievor’s case.

24 In his testimony, the grievor described the nature of his duties during his career as a psychologist at the RTC. He indicated that the majority of his work involved providing services to offenders who presented with psychological or psychiatric problems and to offenders convicted of sexual offences. The work required a wide range of interventions using individual and group counselling approaches. For offenders with major illnesses, interventions are normally coordinated with other health team members, including psychiatrists and nurses.

25 When the grievor was reinstated to his substantive CSC position after his original suspension in July 2002, he worked in a policy and planning unit for Bonnie Smith, a regional administrator, and completed several projects under her supervision, including the development of a new management control framework. He also evaluated research proposals for Ms. Smith and prepared correspondence for Ms. Stableforth. Because Ms. Smith did not have enough work to keep him occupied, he was assigned to work under the supervision of the warden of Frontenac Institution (FI), Janet DeLaat. At the FI, the grievor worked on implementing the new management control framework in that institution, among other duties.

26 Asked what factors he considered when he decided to enter into his plea agreement, the grievor described the difficulties that the circumstances of his case posed for his wife and children. He understood that a trial could require as much as two weeks and could attract much unwelcome publicity. The grievor also stated that he was concerned for the sensitivities of the victim, her family and the CSC. He recalled that he felt relieved when he learned that the Crown was prepared to dismiss the other charges as part of a plea agreement.

27 Following the termination of his employment, the grievor worked as a pyschometrist for the Leeds and Grenville social services authority (the ASF, at paragraph 104). He stated that that employer did not identify any issues with his performance and that his supervisor spoke well of him and provided letters of reference.

28 When the adjudicator reinstated the grievor to his substantive position as a psychologist at the RTC, the grievor worked on a pilot project as part of the National High Intensity Sex Offender Program under the supervision of Dr. Jan Looman. Larry Stebbens was the RTC’s executive director. In a meeting with Mr. Stebbens on his first day back at work, the grievor asked whether Mr. Stebbens had any concerns about the grievor’s return to the workplace and was told that nothing specific had been related to him. When the grievor asked Mr. Stebbens several months later whether he had heard anything negative about him, his answer was “nothing, zero.”

29 The grievor outlined a two-week training program that he attended, focusing on intervention approaches with sex offenders, risk assessment instruments and therapeutic approaches (Exhibit G-47) as well as a two-day national meeting for psychologists on mental disorders in offender populations. At the RTC, he assisted Dr. Dorothy Cotton in conducting screening assessments of candidates for the sex offender program and then performed those assessments on his own. He delivered pilot versions of the treatment program with a colleague and then conducted pre-treatment assessment interviews with, and phallometric stimulus-response tests of, participants actually enrolled in the program, as revised after pre-testing. The participants were high-risk sex offenders, some of whom posed significant, additional psychological treatment challenges. Once underway, the program required group meetings of between one-and-one-half and two hours’ duration, four or five times per week, supplemented by weekly counselling sessions with each participant. The basic goal was to assist the participants in challenging their inappropriate thoughts, attitudes and beliefs using the program’s treatment model. Before, during and after the program, the grievor applied different assessment techniques and tests to compile assessment reports on each offender (Exhibits G-50 to G-53).

30 The grievor explained that he had hoped to grow into Dr. Cotton’s position, who planned to retire in a few years, and that he had discussed those hopes with Dr. Looman.

31 The grievor outlined his knowledge of the case of “Mr. X,” another psychologist in the Ontario region. The grievor appeared as a character witness in court for Mr. X, who had been charged in connection with an acrimonious family situation. Mr. X was found guilty on at least one charge but was not incarcerated. His conviction was made public. Mr. X was not suspended or terminated by the CSC and continued performing his duties as a psychologist in the region. He told the grievor that he only received a letter of reprimand.

32 Following the grievor’s removal from the payroll in July 2008 after the Federal Court’s decision, he conducted a lengthy job search. He finally secured employment in January 2011 with the H’Art School of Smiles Inc., where he now works as a coordinator of programs that support adults with developmental difficulties and that promote opportunities for post-secondary education for those clients (Exhibit G-56). The grievor testified that his new employer is aware of the circumstances of his conviction.

33 In cross-examination, the employer further explored the case of Mr. X. Among other points, the grievor indicated that he was not aware of all the details of the assault for which Mr. X was charged, was not present when evidence was adduced in the court, could not recall what details of the case were made public in media reports, had not seen Mr. X’s letter of reprimand and was not otherwise aware of any discussions that had occurred between Mr. X and the CSC about the matter.

34 With respect to the work that he performed on his reinstatement to the RTC, the grievor agreed that the model used in the sex offender treatment program teaches self-management. Its purpose is to help participants learn how to control themselves in difficult situations and how to manage their behaviour so that they will not commit additional sexual assaults.

35 Referred to the agreed statement of facts in the “Plea and Sentencing Transcript” of the Ontario Superior Court of Justice (Exhibit E-2), the grievor confirmed that he deleted an email from HM’s work computer. He also confirmed that HM stayed with him during a conference in Cornwall to which he was sent by the employer, in a hotel room paid by the employer. By that time, HM was no longer an employee. The grievor also agreed that he used a cellular telephone supplied by the employer to make the repeated telephone calls to HM and to leave the messages on her answering machine that were referenced in the agreed statement of facts. He also accepted that the verbal altercation mentioned in the transcript occurred.

36 In re-examination, the grievor stated that he was never disciplined because HM accompanied him to Cornwall or for his use of the employer-supplied cellular telephone to contact her or leave messages. He accessed HM’s work computer using a password that HM gave him. The grievor also outlined that the employer never disciplined him about the rumours that he was involved in originally hiring HM to her position at the RTC.

37 After the hearing, the parties submitted a statement of agreed facts about the conviction of Mr. X that can be found on the record.

III. Summary of the arguments

A. Main arguments

1. For the employer

38 The criminal offence to which the grievor pled guilty involved a series of events that occurred from November 1, 2001 to July 4, 2002. It was not limited to what occurred on July 4, 2002, the circumstances that triggered his arrest. That the criminal harassment for which he was convicted involved a pattern of behaviour over many months is apparent in the wording of Count 5 of the indictment (Exhibit E-1). The grievor’s harassment of HM included events at work and while on business travel, as outlined in the “Plea and Sentencing Transcript” (Exhibit E-2). The nexus of his relationship with HM was in the employment sphere.

39 Ms. Stableforth’s letter terminating the grievor’s employment (Exhibit E-23) outlined the two specific infractions of Standard 2, “Conduct and Appearance”, of the Code of Discipline and of the Standards of Professional Conduct (Exhibits E-11 and E-12) on which her decision was based; that is, that he acted, while on or off duty, in a manner likely to discredit the CSC and that he committed an indictable offence that discredited the CSC and affected the continued performance of his job.

40 Ms. Stableforth stated in the letter that the grievor’s behaviour was “… incompatible with the duties [that he was] required to perform as a Psychologist … .” The duties of the grievor’s position are set out in his job description (Exhibit E-10) and are confirmed in the ASF, at paragraphs 70 to 73. The grievor’s conviction of criminal harassment and the pattern of behaviour on which that conviction was based called his judgment into question, brought the CSC into public discredit and seriously undermined the grievor’s capacity to serve as a role model of appropriate and law-abiding conduct for offenders. Ms. Stableforth reasonably believed that the grievor could not counsel offenders were he not capable of controlling his own behaviour.

41 The grievor understood that work in the correctional context is different from other work. He knew that the CSC’s mission was to encourage offenders to respect the rule of law and that it was part of his job to contribute to public safety by teaching inmates not to reoffend. While the grievor’s technical ability to perform his duties was never in question, his criminal conviction made his ethics and personal suitability an issue. It was his business as a psychologist to modify the behaviour of offenders with serious problems — to teach them to “self-manage” — but his criminal conduct compromised his ability to do so. In the words of the Standards of Professional Conduct (Exhibit E-11), his commission of a serious criminal offence did not “… demonstrate the type of personal and ethical behaviour considered necessary in the Service [CSC].”

42 Ms. Stableforth considered the following mitigating factors when she was deciding whether termination of employment was the appropriate penalty: the fact that the grievor had no previous discipline on his record, his 16 years of employment with the CSC and the several commendations that he had received for his work. Missing was any evidence that the grievor recognized that he had done something wrong. At the court hearing, the grievor admitted his guilt but did not apologize for what he had done. Both at her meeting with him on April 28, 2004, and through his bargaining agent’s written representations (Exhibit E-22), the grievor wanted to explain away the seriousness of his offence by stating his reasons for accepting the plea bargain. The bargaining agent’s letter refers to him entering into the plea agreement   “… in spite of his own confidence in his innocence … ” For Ms. Stableforth, the grievor failed to demonstrate remorse or an understanding of the very serious nature of his behaviour.

43 In its decision in Tobin, the Federal Court of Appeal discussed subjective and objective criteria that can be used to assess the seriousness of the offence committed by the grievor (at paragraphs 64 and 65). The grievor was convicted of harassment under paragraph 264(2)(d) of the Criminal Code on the basis of a pattern of threatening behaviour that caused HM to fear for her safety, an offence that carried a maximum penalty of 10 years. The maximum length of the sentence that can be imposed is an objective indicator of the seriousness of the crime. The Court described the potential 10-year penalty available for the grievor’s offence as a “significant sentence”; see also R. v. L.M., 2008 SCC 31, at para 24, and Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, at para 40. The Federal Court of Appeal went on in Tobin to outline a number of subjective criteria that could be considered aggravating factors in the grievor’s case.

44 The Federal Court of Appeal addressed the issue of assessing the harm caused to the employer’s reputation by the grievor’s case — which found its way into newspapers in Kingston and Ottawa. The Court referred to Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455, which describes the concept of impairment as elastic, as is the concept of discredit to reputation. In that light, the Federal Court of Appeal stated that an adjudicator must use his or her own “common sense and measured judgment” to weigh whether the grievor’s conduct brought the CSC into discredit.

45 To assist my assessment of the harm caused by the grievor’s conviction and for other analyses that it considered relevant, the employer referred me to the following cases: Flewwelling v. Canada (F.C.A.), [1985] F.C.J. No. 1129 (QL)(C.A.), at pages 3 and 8; Ottawa-Carleton District School Board v. Ontario Secondary School Teachers’ Federation, District 25 (2006), 154 L.A.C. (4th) 387, at pages 393 and 394; Dionne v. Treasury Board (Solicitor General of Canada - Correctional Service), 2003 PSSRB 69, at para 39 and 40; Wells v. Treasury Board (Solicitor General - Correctional Service Canada), PSSRB File No. 166-02-27802 (19971125); Gibbons v. Treasury Board (Solicitor General Canada), PSSRB File No. 166-02-19622 (19901115), at pages 17 and 19; Beirnes v. Treasury Board (Employment and Immigration Canada), PSSRB File No. 166-02-21914 (19920710), at page 26; and MacArthur v. Deputy Head (Canada Border Services Agency), 2010 PSLRB 90, at para 88 to 93 and 97 to 111.

46 In summary, the employer submitted that the grievor’s actions comprised an infraction of Standard 2 of the Code of Discipline, that his behaviour was inconsistent with his position as a psychologist and that, in the circumstances, he should not be reinstated.

2. For the grievor

47 The basis for the employer’s decision to discipline the grievor was not his workplace relationship with HM. Nothing in the letter of discipline (Exhibit E-23) refers to work-related incidents. Ms. Stableforth’s only concern was the grievor’s off-duty conduct.

48 The decision of the Federal Court of Appeal examined factors that should be considered in assessing the impact of the grievor’s conviction. The employer failed to provide any evidence about those factors, whether objective or subjective. It did not prove how the discipline that it imposed was justified and added nothing new about the issue of its reputation.

49 Ms. Stableforth made no attempt to consider the grievor’s work after he was reinstated to his position as a result of the adjudicator’s decision. The testimony about the work that he performed at the RTC between June 2007 and July 2008 is the best possible evidence disproving Ms. Stableforth’s theory about the impact of his conviction on the CSC’s reputation and on his ability to perform the duties of his position. The evidence shows that his supervisors at the RTC did not have concerns arising from his previous history, knew about the grievor’s interest in a higher-level role and encouraged him. There is not a single indication of a complaint about the grievor, of a negative newspaper report or of any problem in his work with offenders. All the alleged issues against the grievor were rebutted by the year that he worked at the RTC after being reinstated.

50 Ms. Stableforth disciplined the grievor based only on her opinion. Opinion evidence must be treated with great caution; see Attorney General of Canada v. King, 2009 FC 922, at para 12, quoting King v. Treasury Board (Canada Border Services Agency), 2008 PSLRB64. As outlined in Fraser, at paragraph 47, the normal rule requires direct evidence to prove impairment to perform a specific job. In that regard, Ms. Stableforth’s personal conclusions about the impact of the grievor’s actions on the employer are not sufficient. Something more is required — and it is not the evidence argued by the employer about negative newspaper coverage of the grievor’s case. Those reports can be ignored. Ms. Stableforth’s own evidence was that she did not dismiss the grievor because of the media coverage (the ASF, at paragraph 96).

51 With respect to the question of the seriousness of the grievor’s offence, the CSC’s Standards of Professional Conduct (Exhibit E-11), at page 10, address criminal violations as problematic “… particularly if the offences are repeated or serious enough to result in imprisonment …” By that measure, the alleged seriousness of the grievor’s offence should be placed in perspective by the fact that it did not result in a prison sentence. There were also no repeated offences.

52 Extreme caution is required when relying on the statement of facts in the “Plea and Sentencing Transcript” (Exhibit E-2). Not all of the component statements are facts; for example, some statements reported how HM felt, and thus comprise classic hearsay. The transcript also states that HM testified that the grievor had threatened to kill her. In accepting the agreed statement of facts before the court, the grievor agreed that HM gave that testimony, but he did not agree to its truth. To establish the facts in this hearing, the employer cannot depend on the transcript in isolation. It must test any alleged facts about the seriousness of the offence with the grievor, which it did not do. In contrast, the grievor has provided a clear statement confirming the elements of the “Plea and Sentencing Transcript” that are factual (the ASF, paragraph 58).

53 What did Ms. Stableforth actually know when she disciplined the grievor? She knew about his guilty plea, but she never asked any questions about the impact that plea might have in the workplace. As outlined in the ASF (at paragraph 75), she held opinions about how the grievor’s conviction impacted his ability to perform the duties of a psychologist, but beyond those opinions, there is not one shred of evidence to show how any of the grievor’s specific duties were compromised by his conviction or by the behaviour for which he was convicted. There is no evidence to indicate any effect on the grievor’s ability to deal with offenders. To the contrary, the year that the grievor worked at the RTC established that Ms. Stableforth’s opinions were wrong. The evidence, such as the assessment reports that he completed (for example, Exhibit G-49), demonstrates that the grievor excelled in the skills that were required to perform his work. Mr. Stebbens, the RTC’s executive director, was positive about his conduct. All the other evidence confirms that the grievor was an experienced and well-regarded employee; see Exhibits G-2, 3, 10-17, 19-21, 25, 28, 31, 32, 34 to 39, 54 and 55 and the testimonies of Ms. DeLaat and David Farnsworth, another CSC psychologist, included in the ASF at paragraphs 84 to 87.

54 Ms. Stableforth formed her opinions based on nothing. She did not speak to the grievor’s supervisors before she terminated his employment (ASF paragraphs 91 and 94). The administrative investigation that she ordered did not look at the impact of the events in his case on public perceptions (ASF paragraph 92). She gave the grievor no opportunity to discuss the connection between his conviction and his work (ASF paragraph 97).

55 The grievor takes strong issue with the allegation that he demonstrated no remorse for what occurred. For example, he testified that he considered the impact of a criminal trial on HM, on her family and on the CSC when he decided to enter into the plea agreement. In any event, his alleged lack of remorse is not relevant, was not a factor mentioned in the letter of discipline and does not provide a basis for termination. It is also unfair to characterize the grievor as failing to accept responsibility for what he did. The letter to Ms. Stableforth from his bargaining agent representative (Exhibit E-22) made it clear that the grievor “… accept[ed] responsibility for his actions in relation to … Count 5. He [did] not attempt to deny this… ”

56 The grievor referred me to the following cases to support his contention that the employer has not provided the type and quality of evidence required to establish that his conviction for off-duty conduct impaired the employer’s reputation or compromised his ability to perform his job: Nova Scotia Teachers’ Union v. Nova Scotia Community College (2003), 121 L.A.C. (4th) 159, at para 98, 102, 108 and 120; Port Moody (City) and C.U.P.E., Loc. 825 (1997), 63 L.A.C. (4th) 203, para 74 and 78; Toronto District School Board v. Canadian Union of Public Employees, Local 4400 (2009), 181 L.A.C. (4th) 49, para 65; Burton v. Treasury Board (Solicitor General Canada – Correctional Service), 2004 PSSRB 74, at para 207, 209 and 216; Larson v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 9, para 161 and 163-166; Canada (Attorney General) v. Basra, 2010 FCA 24, at para 24, 26, 27 and 29; MacArthur, para 100, 101, 103, 107 and 109; and Leadbetter v. Treasury Board (Solicitor General Canada – Correctional Service), PSSRB File No. 166-02-28705 (19990429), para 159, 160, 170 and 175. (The grievor submitted other case law without comment or qualification which I have treated as providing general legal context for this decision.)

57 The grievor argued that other CSC employees who have been convicted of a criminal offence have been allowed to continue working; see the example of Mr. X and the examples cited in Exhibit E-25. The employer’s treatment of the grievor is inconsistent with its actions elsewhere; see Dosanjh v. Treasury Board – Solicitor General Canada – Correctional Service), PSSRB File No. 166-02-27262 (19970604) and Leadbetter on the issue of consistency.

58 Ms. Stableforth only considered two mitigating factors, the grievor’s length of service and his disciplinary record. She should have considered other standard mitigating factors recognized in the case law; see United Steelworkers of America, Local 3257 v. Steel Equipment Co. (1964), 14 L.A.C. 356, and Brown and Beatty, Canadian Labour Arbitration, 4th ed. (“Brown and Beatty”), at para 7:4400.

59 In summary, the grievor reiterated that the issue to be determined is the impact of his conviction and the fact that it was publicized on his ability to perform his duties and on what people think of the CSC. Even if the grievor’s post-reinstatement job performance is discounted, the employer still has not proven its case. The grievor urged me to allow the grievance and to order his reinstatement with the standard compensation of all lost wages and benefits. He asked that I remain seized of the matter for the purpose of remedy.

60 In the alternative, should I find that the employer had cause to impose discipline, the grievor maintained that the termination of his employment was excessive and that I should substitute a lesser penalty.

3. Employer’s rebuttal

61  On the matter of the grievor’s post-reinstatement job performance, the employer maintained that the reinstatement no longer exists because of the decisions of the Federal Court and of the Federal Court of Appeal. The evidence of that performance, on which the grievor proposes to rely, is simply not relevant.

62 Contrary to the grievor’s argument, the evidence on which Ms. Stableforth decided to terminate his employment, based on her knowledge of the region as its deputy commissioner, is amply outlined in the ASF. The Federal Court of Appeal sent the matter back to be reheard by a new adjudicator not for new evidence, but instead, with instructions about how to interpret the existing information. Despite the normal rule stated in Fraser, the approach to assessing that evidence must follow the directions given by the Federal Court of Appeal.

63 Imprisonment is not a requirement to establish the seriousness of an offence. In the grievor’s case, the fact that his violation of the Criminal Code carried with it the possibility of a 10-year prison term is sufficient to demonstrate that his offence was very serious; see MacArthur, in which the grievor was not imprisoned.

64 The issue of consistency in discipline should be approached with caution because the determination to be made by the employer in each situation involving a criminal conviction is heavily dependent on the specific facts of the offence and its relationship to the employee’s work.

65 By arguing that the employer did not fire the grievor for his relationship with HM, the grievor is attempting to sever his relationship with HM from the facts of the case. However, his relationship with HM is what led to the criminal charge, which in turn led to his disciplinary termination. His relationship with HM may not be the specific reason he was disciplined, but it was integral to the actions that brought him before the criminal court and that exposed him to the discipline that the employer subsequently imposed.

B. Supplementary arguments

1. Subsequent-event evidence

66 As indicated in the foregoing summary of oral arguments, the parties took conflicting positions on the extent to which I may or should rely on evidence that I received about the grievor’s performance of duties after his reinstatement to his substantive position at the RTC in June 2007. I determined that it was appropriate to invite further written submissions from the parties on the following question:

May the adjudicator rely on evidence about the grievor’s work subsequent to his reinstatement as an employee of the CSC on June 18, 2007 in determining the merits of the employer’s decision to terminate his employment and/or an issue of remedy?

67 Both parties submitted detailed legal briefs on the question, which I have reviewed in their entirety. The complete texts and case law are on file at the Board. The summaries to follow are limited to the highlights of the parties’ positions.

a. For the employer

68 The employer referred me in the first instance to the Supreme Court of Canada’s decision in Cie minière Québec Cartier v. Québec, [1995] 2 S.C.R. 1095, in which it determined that an arbitrator’s reliance on subsequent-event evidence constituted a jurisdictional error. The following excerpts from the decision capture the essence of the Court’s ruling:

…

11.  … in reviewing a decision by the Company to dismiss an employee, an arbitrator has broad jurisdiction to establish criteria for assessing whether or not a “just and sufficient cause” for dismissal has been made out. As well, the arbitrator has broad jurisdiction to consider any evidence which he considers relevant to the issue before him. However, ultimately, the arbitrator’s jurisdiction is limited in that he is required to address the specific issue before him: whether or not the decision to dismiss the employee in question was justified. In particular the arbitrator is required to determine whether or not the Company had just and sufficient cause for dismissing the employee as at the time when the employee was actually dismissed.

12. As a general rule, an arbitrator reviewing a decision by the Company to dismiss an employee should uphold the dismissal where he is satisfied that the Company had just and sufficient cause for dismissing the employee at the time that it did so. On the other hand, the arbitrator should annul the decision where he finds that the Company did not have just and sufficient cause for dismissing the employee at the time that it did so… .

13. This brings me to the question I raised earlier regarding whether an arbitrator can consider subsequent-event evidence in ruling on a grievance concerning the dismissal by the Company of an employee. In my view, an arbitrator can rely on such evidence, but only where it is relevant to the issue before him. In other words, such evidence will only be admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented. Accordingly, once an arbitrator concludes that a decision by the company to dismiss an employee was justified at the time that it was made, he cannot then annul the dismissal on the sole ground that subsequent events render such an annulment, in the opinion of the arbitrator, fair and equitable. In these circumstances, an arbitrator would be exceeding his jurisdiction if he relied on subsequent-event evidence as grounds for annulling the dismissal. To hold otherwise would be to accept that the result of a grievance concerning the dismissal of an employee could vary depending on when it is filed and the time lag between the initial filing and the final hearing by the arbitrator… .

…

69 In Smoky River Coal Ltd. v. U.S.W.A., Local 7621 (1995), 52 L.A.C. (4th) 409, an arbitration board applied Cie MinièreQuébec Cartierto reject subsequent-event evidence of a grievor’s resolution of his drinking problem. It wrote as follows at para 13:

…

The grievor has presented evidence indicating that he no longer drinks, and that he has rehabilitated himself.  Assuming his assessment of the situation to be correct, the fact remains that he stopped drinking and underwent his rehabilitation program after his termination. Thus, it is subsequent-event evidence which does not “shed light on the reasonableness and appropriateness of dismissal under review at the time that it was implemented… .”

…

70 The Alberta Court of Queen’s Bench followed a similar path in Canada Safeway Ltd. v. United Food and Commercial Workers Union Local 401 (1997), 47 Alta. L.R. (3d) 192. In that case, it considered an arbitrator’s use of subsequent-event evidence to justify his reinstatement of a grievor whose employment was terminated after he was convicted of sexually assaulting a female colleague. It acknowledged the arbitrator’s authority under provincial labour law (in the absence of a governing collective agreement provision) to modify a disciplinary penalty where it seemed to him “… just and reasonable in all of the circumstances” to do so. However, it said at paragraph 15 that “… ‘all the circumstances’ means all the circumstances pertaining at the time of the discharge - not new circumstances which have arisen subsequent to the discharge and which are not directly related to the cause of the discharge.” It stated that subsequent-event evidence that the grievor was married, had voluntarily continued counselling after his probation period and was largely rehabilitated according to expert medical evidence was not directly related or relevant to the cause of the discharge. By relying on that evidence in reaching his decision, the arbitrator had exceeded his jurisdiction.

71 In Centre for Addiction and Mental Health v. Ontario Public Service Employees Union, Local 500 (2000), 88 L.A.C. (4th) 13, at para 16, the arbitrator reflected on the application of Cie MinièreQuébec Cartier to the facts of the case and observed as follows:

16… There are limits to the extent to which a “practical approach” can expand the parameters of a grievance arbitration proceeding to include events that occurred subsequent to a discipline decision, and which cannot be said to form part of the discharge continuum (which could include an employee’s reaction to being disciplined, for example). To hold otherwise could give rise to the very difficulties identified by the Supreme Court of Canada in Québec Cartier… The point, which cannot be ignored, is that the parameters of arbitration are established by the grievance and the grievance procedure, which can accommodate grievance continuum events but not “new” post –discipline events. In our view, arbitrators have no jurisdiction to consider post-discipline events when determining the primary issue of just cause.

72 In the grievor’s case, the evidence about his ability to carry out tasks and that his co-workers or supervisors were satisfied with his work are exactly the type of facts contemplated by the Supreme Court in Cie MinièreQuébec Cartier, in which it stated that it would be absurd that a decision to dismiss an employee could be overturned whenever that employee, as a result of the shock of being dismissed, decides to rehabilitate himself or herself.

73 In Canada Safeway Ltd. the Alberta Court of Queen’s Bench suggested the type of subsequent-event evidence that could and should be allowed. It gave as an example the erratic and insubordinate behaviour of an employee that was later determined (after the fact) to have been caused by a brain tumour. Through that example, it made it clear that an arbitrator could use subsequent-event evidence if the employee establishes a fact (the brain tumour) that would have existed at the time of the incident that led to the discharge. The key is that, although the evidence was discovered after the incident in question and the discharge, the fact existed at the time of the discharge. Therefore, it met the test of being able to shed light on the reasonableness of the decision, or as stated in another fashion, it was part of the grievance continuum.

74 In the grievor’s case, the facts about his post-reinstatement work conduct, which he argues are relevant, occurred three years after the discharge. His performance of duties in the manner alleged was based on an opportunity to return to the workplace that he only received due to a decision by the adjudicator that was later found wrong and overturned. In this rehearing of the grievor’s case, the adjudicator should give no weight to the subsequent-event evidence proposed by the grievor, with respect to either the issue of termination or the issue of remedy.

b. For the grievor

75 According to the law governing post-discharge evidence, information about events after the decision to terminate an employee can be relied on if it is relevant. There is no doubt that the evidence of the grievor’s performance in his substantive position after being reinstated is highly relevant and probative. It provides direct information about the actual impact, if any, of the grievor’s conviction on the performance of his duties and on the reputation of the CSC. In fact, it is the best possible evidence about that impact. In most cases, an adjudicator only has the employer’s opinion or other presumptions about the impact of a criminal conviction. In this case, the adjudicator has evidence about the actual results.

76 Cie Minière Québec Cartier was the first leading case on the issue of post-termination evidence. However, many arbitrators have concluded that Cie Minière Québec Cartier was limited to the particular circumstances of the case before the Supreme Court — including the grievor’s disability and termination of employment related to absenteeism, as well as the unique labour relations regime in Quebec. The Supreme Court was concerned that an employee could rehabilitate herself after termination and then seek reinstatement, even though that rehabilitation would never have occurred absent the termination (at paragraph 13). The Supreme Court found that the arbitrator erred in imposing a new obligation on the employer to take back an alcoholic employee who was dismissed on sufficient grounds and who was given every reasonable chance of rehabilitation, but who decided after termination and before the grievance was heard to seek treatment, which was successful (at paragraph 15). Those concerns are not present in this case.

77 In its subsequent judgment in Toronto (City) Board of Educationv. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, the Supreme Court expressly endorsed the conclusion that an arbitrator could rely upon subsequent-event evidence. The case concerned an employee who was discharged on the basis of two letters (and other behaviour) that contained disturbing accusations and that could have been perceived as threats. Long after the termination and before the arbitration hearing, the grievor sent a third letter, which contained similar accusations and threats. The Supreme Court concluded that the arbitrator made a serious error by failing to consider that subsequent-event evidence. It wrote as follows at paragraphs 72 to 74:

72 The final significant item of evidence which leads to the conclusion that the grievor’s conduct was not temporary is the third letter. It was written several months after the Board of Inquiry’s decision had been rendered, and a month and a half before the hearing before the Board of Arbitration was to begin. Curiously, the majority did not even refer to it.

73      … The third letter was part of the evidence before the Board of Arbitration. Thus, it is appropriate to consider it in determining whether there was a basis for the inference drawn by the majority that [the grievor’s] conduct was temporary.

74      It is true that the third letter is, to some extent, “subsequent-event evidence” since it was written after the dismissal of [the grievor]. However it has been decided that such evidence can properly be considered “if it helps to shed light on the reasonableness and appropriateness of the dismissal”: Cie minière Québec Cartier v. Quebec … In this case, it would not only have been reasonable for the arbitrators to consider the third letter, it was a serious error for them not to do so.

[Emphasis in the original]

The Supreme Court proceeded to use the third letter as follows:

…

76      This letter is an admission by [the grievor] that he was still unable to control either his feelings or his impulse to express those feelings, however inappropriate they may be. It provides incontrovertible evidence that [the grievor] had not returned to a “calmer state” several months after the Board of Inquiry process came to an end, and that his extreme feelings and lack of judgment persisted. In the face of this letter, it was patently unreasonable for the arbitrators to conclude that his conduct was temporary and to return him to the classroom.

…

78 How the Supreme Court used the evidence in Toronto (City) Board of Education is identical to how the grievor proposes that the adjudicator use the post-termination evidence in this case. In Toronto (City) Board of Education, the evidence was used to assist in predicting the impact of the grievor’s actions in the future. The evidence in this case should be used to the same effect. It comprises incontrovertible proof that the grievor’s conviction will have no future impact upon the performance of the duties of his position or on the CSC’s reputation.

79 Adjudicators under the Act have recognized that Cie Minière Québec Cartier left the door open for them to receive relevant subsequent-event evidence. They have concluded that they are not subject to the same restriction established by the Supreme Court in Cie Minière Québec Cartier because of the differences between the Act and the legislation in Quebec.

80 In the recent decision LaBranche v. Treasury Board (Department of Foreign Affairs and International Trade), 2010 PSLRB 65, the adjudicator wrote as follows:

…

166    While the principle that subsequent-event evidence may be admissible would appear to be settled law, nonetheless, many arbitrators have distinguished its application by relying on the statutory basis for their remedial authority…

167    This being said, it is my view that the Supreme Court of Canada did not intend to limit the principle of the admissibility of relevant subsequent-event evidence to discharge cases, but refined a broad evidentiary principle that applies to the scope of all arbitral authority, that is, that the arbitrator must consider all the relevant evidence before deciding the outcome of a grievance.

…

170    In this case, the subsequent-event evidence put forward by the grievor is relevant to her grievance because it serves to confirm the ongoing nature of the employer’s inappropriate response to the incidents she alleged as being discriminatory. The severance of the grievor’s employment after receiving the anonymous correspondence was not only another indication that the employer condoned the discrimination, but it was the culminating event of its discriminatory behaviour.

…

[Emphasis in the original]

See also Zhang v. Deputy Head (Privy Counsel Office), 2010 PSLRB 98, at para 91 and 92, and Spawn v. Parks Canada Agency, 2004 PSSRB 25, at para 286.

81 Under the former Act, adjudicators also relied on post-discharge evidence when it was relevant. In Jalal v. Treasury Board (Solicitor General Canada - Correctional Service Canada), PSSRB File No. 166-02-27992 (19990421), the adjudicator examined circumstances that were virtually identical to the circumstances of this case. The grievor, an employee of the CSC whose employment was terminated because of criminal charges, tendered evidence that he had obtained post-termination employment in a field where the degree of trust that his new employer required was just as significant as that with the CSC. The adjudicator found that that evidence indicated that the termination was not reasonable and appropriate when it was ordered, relying expressly on the Cie Minière Québec Cartier case.

82 The grievor also referred me to the decision rendered under the former Act in Batiot v. Treasury Board (Justice Canada), PSSRB File No. 166-02-28540 (19990527).

83 For cases that illustrate the approach taken to subsequent-event evidence by arbitrators in other jurisdictions, the grievor presented Titan Steel & Wire Co. v. Teamsters Local Union No. 213 (2003), 116 L.A.C. (4th) 300, Great Atlantic & Pacific Co. of Canada v. United Steelworkers of America, Local 414 (Retail, Wholesale Canada, Canadian Service Sector) (1997), 65 L.A.C. (4th) 306, Alcan Smelters and Chemicals Ltd. (1996), 55 L.A.C. (4th) 261, Natrel Inc. v. Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 674 (2004), 134 L.A.C. (4th) 142, Toronto District School Board v. Canadian Union of Public Employees (1999), 79 L.A.C. (4th) 365, and Petro-Canada v. Communications, Energy and Paperworkers Union, Local 593 (2004), 129 L.A.C. (4th) 353. See also James D’Andrea, Illness and Disability in the Workplace, Aurora, Canada Law Book, 2010.

84 In summary, the grievor maintained that it is settled law that an adjudicator is entitled to rely upon post-discharge evidence if it sheds light upon the facts or presumptions relied upon by the employer to justify the discharge.

85 The grievor presented evidence to show that the employer’s decision to terminate his employment was based upon incorrect facts, in particular that his criminal conviction would have affected his ability to perform his duties and that it would have had a negative impact on the CSC’s reputation. At the time of the termination, the employer was attempting to predict that impact based on certain presumptions. Post-discharge evidence that casts doubt on those assumptions is highly relevant and should be admitted.

86 It is undisputed that the grievor was re-employed for over a year in his original, substantive position and that there was no evidence during that period of a negative impact on either the performance of his duties or the CSC’s reputation. To the contrary, the evidence showed that the grievor engaged in detailed assessments of sexual offenders and that he produced extensive reports on those offenders, including recommendations as to how they should be treated. That evidence demonstrates that the concerns of the employer were without a legitimate basis at the time of the termination. To ignore that evidence or exclude it would be an error of law, as held by the Supreme Court in Toronto (City) Board of Education.

87 To answer the specific question posed by the adjudicator, he can and should rely on subsequent-event evidence in assessing the merits of the decision to terminate the grievor’s employment. Moreover, no evidence was tendered to suggest that reinstatement is not the proper option should the adjudicator find that the termination was inappropriate. To the contrary, the evidence establishes that no issues will arise if the grievor is reinstated.

2. Rebuttals

a. For the employer

88 The employer commented in detail on Toronto (City) Board of Education. In that case, the Supreme Court depicted the third letter — the subsequent-event evidence that was at issue — as part of a continuum of behaviour. It found that there was an inextricable link between the grievor’s earlier conduct, revealed by his initial two letters, and the third letter. The Supreme Court ruled that that there was a lack of evidence to support the arbitration board’s leap of faith that the grievor’s behaviour had changed since his discharge. The third letter was relevant evidence based on medical opinions obtained before the termination that the behaviour that led to the termination of employment would continue. The facts in this case are completely dissimilar. The employer terminated the grievor’s employment in May 2004, but the proposed subsequent-event evidence took place more than three years later and more than five years after the events that led to the termination. That evidence was not part of a continuum of conduct.

89 The employer sought to distinguish a number of the other decisions argued by the grievor, as illustrated by the following sample of comments:

• In the Toronto District School Board case, the arbitrator considered the merits of the alleged post-discharge evidence only in the further alternative and determined that it revealed facts that existed either before, or concurrently with, the termination of employment. Even if he were to accept that evidence on its face, the arbitrator found that it would not alter his decision.
• In the Alcan Smelters and Chemicals Ltd. case, the arbitrator essentially followed Cie Minière Québec Cartier stating that “… ‘subsequent event’ evidence can be shown to be relevant to the circumstances as they existed at the time of the dismissal.”
• In Batiot, the adjudicator did not give weight to the post-discharge evidence.
• In Jalal, it must be assumed that his new employer chose to take a chance on the grievor even though it knew about his thefts and the termination of his employment. In that case, the employer was required by order of an adjudicator to reinstate the grievor.
• Great Atlantic & Pacific Co. of Canada, and many of the other cases submitted by the grievor, admits subsequent-event evidence that existed at the time of the event, albeit then unknown, but finds that such evidence, if proffered to show a change in behaviour, has little probative value for determining whether the decision to terminate was reasonable at the time it was made.
• In Natrel Inc., the full extent of the grievor’s addiction problem did not come to light until expert testimony was adduced at his grievance hearing. The arbitrator found that the grievor suffered from a significant disability that was the true cause of the absenteeism that led to his dismissal.
• The arbitrator in Petro-Canada was prepared to allow evidence of facts that existed at the time of the grievor’s discharge, but were then unknown, to shed light on the adequacy of the employer’s assessment of the grievor’s condition.
• In Spawn, post-discipline medical evidence was relevant to shedding light on the situation as it existed at the time of the initial decision to discipline. That type of post-discharge evidence is really evidence of facts that existedat the time of the discharge, albeit unknown to the employer.

b. For the grievor

90 The grievor’s reliance on subsequent-event evidence is completely consistent with theprinciples set out in Cie Minière Québec Cartier, especially when viewed in light of Toronto (City) Board of Education and the many other arbitration cases that have considered the issue since Cie Minière Québec Cartier. That more recent case law renders older decisions such as Smoky River Coal Ltd. of limited value; see, for example, Mitchell Island Forest Products Ltd. v. Industrial Wood andAllied Workers Union, Local 1-217 (1996), 60 L.A.C. (4^th) 73, at paragraph 47 to 49, for comments disagreeing with Smoky River Coal Ltd.

91 Canada Safeway Ltd., argued by the employer, supports the conclusion that reliance on post-termination evidence is appropriate. As noted by the employer, such evidence is relevant if it is related to the circumstances “…pertaining at the time of the discharge… .” The termination letter and the employer’s evidence make it clear that the basis for termination was the impact of the grievor’s conviction on his ability to perform his duties and on the CSC’s reputation. The employer was entitled to rely upon its belief that the impacts would be negative. However, its belief must have been supported by sufficient information and evidence. Any evidence that undermines that belief is highly relevant. In the words of Cie Minière Québec Cartier, such evidence sheds light on the reasonableness and the appropriateness of the dismissal. Clearly, the actual performance of the grievor in his substantive position is directly related to the employer’s belief or presumption about the impact of his conviction. Therefore, it is directly relevant to the cause of the discharge.

92 Canada Safeway Ltd. is limited to a very narrow concern. The Alberta Court of Queen’s Bench concluded that the post-termination evidence could not be admitted because it was tendered to show that the grievor had taken steps to rehabilitate himself after the termination. That concern is not at all relevant in this case. In Canada Post Corp. v. Canadian Union of Postal Workers, [2010] C.L.A.D. No. 219, at para 56-57, the arbitrator distinguished the Canada Safeway Ltd. case and concluded that post-discharge evidence was admissible.

93 Centre for Addiction and Mental Health must also be viewed carefully in light of its age and the substantial jurisprudence, particularly Toronto (City) Board of Education, which has limited the application of Cie MinièreQuébec Cartier. In any event, the arbitration board in Centre for Addiction and Mental Health concluded that the post-termination evidence was not admissible on the issue of just cause but that it was admissible on the issue of penalty. For the reasons already given, the nature of the evidence in this case does not fall within the concerns that would preclude its application to the question of just cause. Nonetheless, in the alternative only, if the adjudicator concludes that the grievor’s evidence is not admissible for the purposes of determining just cause, Centre for Addiction and Mental Health establishes that the evidence is relevant on the extent of the penalty. Given that the grievor and his employer have demonstrated together that he could perform his duties with no negative impact, there was no need to terminate the grievor.

94 Toronto District School Boardv. Canadian Union of Public Employeesreferred to Centre for Addiction and Mental Health to confirm the view that post-discharge evidence has been admitted for the purpose of determining whether there was a basis for continuing an employer-employee relationship or whether there was evidence of recovery from such problems as drug or alcohol dependency. Those “events” necessarily postdate the termination. The same circumstances are applicable in this case. The grievor’s actual performance in the job not only confirms an ongoing employer-employee relationship but also shows that the purported problems as a result of the conviction did not exist.

95 In summary, the four cases relied on by the employer deal with circumstances in which a grievor rehabilitated himself or herself after the shock of termination. The basis for the rulings in those cases was concern that the employer’s decision to terminate could be reversed solely by the actions of the grievor after termination. That issue does not apply in this case. The grievor’s post-termination evidence is not a result of his shock at being dismissed and at being assigned to rehabilitate himself. It is simply and solely the result of the first adjudication decision. The fact at issue is the employer’s belief or presumption that the grievor’s conviction would have a negative impact on the performance of his duties or on the CSC’s reputation. The evidence proposed by the grievor is directly relevant and sheds the best light possible on that belief or presumption.

3. Security clearance

96 During the hearing, the parties identified the expiration of the grievor’s security status as a potential factor bearing on the issue of remedy. After discussing how to proceed to address that issue with them, I decided to pose an additional question for post-hearing written submissions as follows: “If the adjudicator considers reinstating the grievor to his substantive position, how does the fact that the grievor’s security clearance has expired bear upon the determination?”

97 For the reasons stated later in this decision, I do not need to consider the issue.

IV. Reasons

98 The lengthy history of litigation in this matter does not change the basic nature of the determinations that I must make. I am re-hearing a grievance referred to adjudication with a subject matter of discipline. As is normally the case when discipline is the subject matter, I must address the following three main questions: Has the employer proven, on a balance of probabilities, the events or actions that led it to impose discipline? If so, has the employer proven that, on a balance of probabilities, the grievor’s actions provided it with cause to discipline him? If cause has been established, was the specific disciplinary penalty that the employer imposed appropriate and proportionate to the nature of the proven misconduct, given the mitigating and aggravating factors that existed?

99 In answering the three questions, the parameters for my analysis were defined by the employer’s identification of the reasons for discipline, as outlined in the formal notice given by Ms. Stableforth to the grievor on May 7, 2004 (Exhibit E-23). She stated those reasons as follows:

…

You have contravened Standard 2 — Conduct and Appearance of the Code of Discipline and the Standards of Professional Conduct:

• Acts, while on or off duty, in a manner likely to discredit the Service;
• Commits an indictable offence or an offence punishable on summary conviction under any statute of Canada or any province or territory, which may bring discredit to the Service or affect his or her continued performance with the Service.

In making my decision, I have concluded that the behaviour you have demonstrated is incompatible with the duties you were required to perform as a Psychologist and with the behaviour expected of employees of the Correctional Service of Canada.

You have brought the Correctional Service of Canada into disrepute in the eyes of the public, the staff and offenders, and the trust and confidence that you were once afforded have been irrevocably damaged.

…

A. Has the employer proven, on a balance of probabilities, the events or actions that led it to impose discipline?

100 In the circumstances of this case, answering this first question is relatively straightforward. It is uncontested that the grievor pled guilty in the Ontario Superior Court of Justice to violating paragraph 264(2)(d) of the Criminal Code, committing the offence of criminal harassment against HM as described in Count 5 of the indictment (Exhibit E-1) and in his pleadings (Exhibit E-2). As I understand the evidence and arguments, his commission of that offence anchors both of the employer’s allegations against him. The reference in the first alleged violation to acting “…in a manner likely to discredit the Service [CSC]” is directly tied to the same actions for which the grievor was convicted in the Ontario Superior Court of Justice — the subject of the second alleged violation.

101 The grievor apparently disputes some of the specific facts of the offence to which he pled guilty. His version of what occurred, as stipulated in the ASF, attempts to qualify what was stated in open court. That effort to qualify the facts may be relevant as I address other issues later in this analysis. However, it does not dissuade me from accepting from the start that the basic circumstances of the grievor’s criminal conviction have been conclusively proven and are the basis for the employer’s decision to discipline him. In my view, the answer to the first question is not in doubt.

B. Has the employer proven that, on a balance of probabilities, the grievor’s actions provided it with cause to discipline him?

102 I read the decision of the Federal Court of Appeal in Tobin as providing direction to my analysis in two principal respects. First, it defines how I must treat the employer’s Code of Discipline (Exhibit E-12) and the associated Standards of Professional Conduct (Exhibit E-11). Second, it offers guidance about the type of evidence on which I may rely in assessing whether the employer has discharged its burden to prove that it had cause to impose discipline and whether the penalty imposed was appropriate and proportionate.

103 On the first dimension, the Federal Court of Appeal ruled that an adjudicator must apply the employer’s Code of Discipline, understood against the context provided by its Standards of Professional Conduct, both to determine whether a disciplinary infraction occurred and to assess the disciplinary penalty imposed for that infraction. In short, the Code of Discipline has binding legal effect and authoritatively describes actions or behaviour that may attract discipline. The Court wrote as follows:

…

[46] The power to promulgate the Code of Discipline implies the right to assess employee conduct against the terms of that Code, otherwise it serves no useful purpose. I reviewed the links in the chain of delegated authority from the Treasury Board to the Commissioner of the CSC. If there is a missing link in this chain, it has not been shown to us. The Treasury Board’s authority to establish standards of discipline in the public service was delegated to the Commissioner who exercised it by promulgating the Code of Discipline.

[47] If the Commissioner has the right to promulgate the Code of Discipline, then presumably, he or she must have the right to have employee conduct assessed against the rules set out in the Code, otherwise they serve no useful purpose. That process cannot be short-circuited by assuming that since the conduct complained of is off-duty conduct, another set of rules apply.

[48] Standard 2 of the Standards of Professional Conduct, which are intended to be read with the Code of Discipline, specifically contemplates its application to off-duty conduct. In this case, the Disciplinary Infraction contemplates that a criminal conviction could be the object of disciplinary proceedings. The criminal conviction referred to in the Disciplinary Infraction is not limited to a criminal conviction arising from conduct on the employer’s premises. Counsel for Mr. Tobin conceded this point. Consequently, the applicability of the Commissioner’s Standards to off-duty conduct does not arise in the way in which it did in Millhaven Fibres.

…

[51] In the same way, the Standards of Professional Conduct and the Code of Discipline deal with conduct which will bring discredit to the CSC. Having regard to the CSC’s mission, the assessment of whether a criminal conviction, and the circumstances of that conviction, will bring discredit to the CSC are factors to be considered in assessing the appropriateness of the penalty imposed on Mr. Tobin.

[52] … the failure to apply the Commissioner’s Standards, would be unreasonable. This does not preclude an adjudicator from concluding that in all the circumstances, the penalty imposed is not appropriate but that decision would have to be justified in light of the Standards of Professional Conduct and the Code of Discipline.

…

104 In that light, the employer’s burden at this rehearing of the grievor’s case is to prove, on a balance of probabilities, the two infractions of Standard 2 of the Code of Discipline as described by Ms. Stableforth in the letter of termination. The Federal Court of Appeal confirmed that the Code of Discipline and the Standards of Professional Conduct apply to employee behaviour both on and off-duty. On that finding, it set aside the widely recognized and long-used Millhaven Fibres test in the circumstances of this case. According to the Federal Court of Appeal’s decision, the standard for determining whether the employer had cause to discipline — that is, for defining culpable misconduct — is whether a violation described by the Code of Discipline occurred. Proof of such a violation establishes cause for discipline.

105 What type of evidence proves those infractions? The Federal Court of Appeal’s direction on that element was based in the first place on its ruling that the original adjudicator erred in requiring a certain type of direct evidence of a loss of reputation suffered by the employer due to the grievor’s criminal conviction. The Court wrote as follows:

…

[60] … There may be a role for direct evidence of loss of reputation in some circumstances but it was clearly unreasonable for the adjudicator to set a standard which, for all practical purposes, could never be met. The reputation of a national institution cannot be measured or assessed in the same way as the reputation of a person in a community. How did the adjudicator conceive such evidence might be put before him? Would it be by way of public opinion surveys? Quite apart from the issue of cost and the judicious use of public funds, it seems to me that the design of such surveys would be fraught with difficulties. For example, how would the employer know to begin the process of collecting evidence of its reputation before the incidents in question? The idea that the state of the CSC’s reputation can be gauged with arithmetical precision and that changes in that reputation can be attributed with certainty to one factor or another is simply unreasonable.

[61] The passage which the applications judge cited from Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455 [Fraser] at paragraph 50 of his Reasons is particularly apposite in this regard. The issue in Fraser was whether a public servant’s criticism of government policy resulted in a perception of an impairment of his ability to discharge his duties as a public servant. The concept of impairment, like the concept of discredit, is rather elastic. This is what the Supreme Court said:

Turning to impairment in the wider sense, I am of the opinion that direct evidence is not necessarily required. The traditions and contemporary standards of public service can be matters of direct evidence. But they can also be matters of study, or written and oral argument, of general knowledge on the part of experience [sic] public sector adjudicators, and ultimately of reasonable inference by those adjudicators.

Fraser, supra at paragraph 48

62 The same is true of the question of whether certain conduct brings the CSC into discredit. The question is one which calls for the application of common sense and measured judgment. The adjudicator erred when he reduced it to a question of empirical evidence.

…

106 The Federal Court of Appeal also disagreed with the adjudicator’s approach to assessing evidence of the seriousness of the grievor’s criminal offence. On that aspect, I quote the Court at length, as follows:

…

[63] The second question in respect of which the adjudicator erred is in the assessment of whether the offence to which Mr. Tobin pleaded guilty was a serious breach of the Criminal Code. The adjudicator essentially assessed seriousness by the severity of the penalty imposed. In Mr. Tobin’s case, the adjudicator found that a suspended sentence and 18 months probation did not satisfy him that Mr. Tobin committed a serious breach of the Criminal Code.

[64] The seriousness of an offence is assessed according to subjective and objective criteria: see, for example, R. v. L.M, [2008] 2 S.C.R. 163 at paragraphs 24 and 25. The objective criteria are normally the maximum punishment which could be imposed on the accused and the mode of prosecution, that is, by indictment or by summary conviction. In this case, the offence to which Mr. Tobin pleaded guilty, criminal harassment by threatening conduct, is a hybrid offence, that is, the Crown may choose to proceed by indictment or by summary conviction. Proceeding by indictment is reserved for more serious offences. Where the Crown proceeds by indictment, as in this case, and the accused is convicted, the maximum punishment is ten years, which is a significant sentence. The objective criteria are indicative of the gravity of the offence in the eyes of the legislator who, of course, does not have any information as to the circumstances of a particular offence.

[65] The subjective criteria are the circumstances surrounding the commission of the offence which may either be either mitigating or aggravating factors. All of the surrounding circumstances are to be considered, not merely those which are relevant to the count to which the person has pleaded guilty. In the present case, there were a number of circumstances which were relevant to the assessment of the subjective gravity of the offence and which do not appear to have been considered. In his Decision, at paragraph 80, the adjudicator sets out a lengthy list of factors which Mr. Tobin argued should be considered as mitigating factors in his case. The adjudicator did not, at any time, consider a number of factors which could be considered to be aggravating factors. Such factors could include:

-the nature of the work relationship between Mr. Tobin and the victim at the material times.

-the persistent refusal of Mr. Tobin to allow the victim to terminate the relationship.

-Mr. Tobin’s position as a role model for all offenders, including sexual offenders and offenders with relationship issues.

-Mr. Tobin’s employment as a consulting psychologist who could be expected to be aware of the damaging consequences of his behaviour on the victim.

-the seriousness of the conduct to which Mr. Tobin admitted at the sentencing hearing.

[66] The approach adopted by the adjudicator in this case relied simply on the sentence imposed by the trial judge following a joint submission from the Crown and the defence. The adjudicator does not appear to have grasped the significance of the suspended sentence, the period of probation and the prohibition on the possession of firearms. The effect of the suspended sentence is that if Mr. Tobin breached the terms of his probation order, he could be brought back before the Court which could then impose the sentence, including a period of imprisonment of up to 10 years, which was appropriate in the circumstances. The Courts have consistently held that a period of probation is not a “light” sentence. It imposes restrictions on an offender’s liberty as well as conditions leading to penal consequences in the case of a breach: see Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404 at paragraph 54; R v. B. (M.), [1987] O.J. No. 276 (Ont. C.A.). Finally, a prohibition on the possession of firearms is a condition which, by the terms of section 109 of the Criminal Code, must be imposed where a person is convicted of an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment for ten years or more. These circumstances were present in the present case and are a further indication of the seriousness of the offence to which Mr. Tobin pleaded guilty.

[67] Consequently, the sentence imposed by the criminal court cannot be treated as a distillation of the objective criteria and the subjective factors surrounding the offence. The Criminal Code requires the sentencing judge to take into account factors which may or may not be relevant in the employment context: see section 718 of the Criminal Code. It was unreasonable for the adjudicator to limit his analysis on this issue to the sentence imposed.

…

107 In my view, the Federal Court of Appeal’s comments do not tie my hands excessively with respect to the issue of evidence proving that the grievor’s actions discredited the employer’s reputation. (Its comments on evidence proving impairment also appear to apply to the impact of the grievor’s conviction on his ability to perform the duties of his job.) In the Court’s words, as reinforced by Fraser, there remains room for the exercise of “common sense and measured judgment.” With respect to evidence about the seriousness of the offence committed by the grievor, the Court’s comments seem somewhat more limiting, although they stop short of directing a specific finding.

108 In this rehearing of the grievor’s case, a new evidentiary issue must also be considered. Am I entitled to rely on evidence about the grievor’s work after his reinstatement as an employee of the CSC on June 18, 2007 to evaluate the merits of the employer’s decision to terminate his employment or for an issue of remedy?

109 I will address the issue of subsequent-event evidence after first considering the evidence used by, or available to, the employer when it terminated the grievor’s employment, bearing in mind the direction given by the Federal Court of Appeal. If I conclude that the grievor’s actions gave the employer cause to discipline him based on what the employer knew at that time, I will turn to assess whether I may rely on the subsequent-event evidence adduced by the grievor and, if so, whether that evidence alters my conclusion about the existence of cause. Should I instead rule that the employer did not have cause to discipline the grievor based on the facts known at the relevant time, there will be no need to consider the issue of subsequent-event evidence. (I note that the bargaining agent argues that, even if the grievor’s post-reinstatement job performance is discounted, the employer still has not proven its case.)

1. The first ground for discipline — discredit to the CSC

110 The first ground cited by the employer for disciplining the grievor focused on the impact of his actions on the CSC’s reputation. The employer not only refers in the termination letter to a violation of the Standard 2 prohibition against conduct “likely” to bring the CSC into disrepute, but goes further to draw what I interpret to be a conclusion of fact by stating in a following paragraph that the grievor “… brought the Correctional Service of Canada into disrepute in the eyes of the public, the staff and offenders… .”

111 The Federal Court of Appeal set aside the adjudicator’s decision in part because it found that he set a threshold for direct evidence of the loss of reputation that, in the Court’s opinion, could not be met. While it effectively relaxed that threshold, it is clear to me from the Court’s ruling and from the wider case law that the employer remains subject to a requirement to substantiate its conclusion. The Court was less specific in its comments about the types of evidence that an adjudicator might consider to evaluate loss of reputation than in its comments about assessing the gravity of the grievor’s offence. However, it referred to Fraser concerning the assessment of impairment and indicated that there must be room for the adjudicator to exercise “common sense and measured judgment.”

112 The documentary evidence depicting the impact of the grievor’s conviction on the CSC’s reputation is limited to four media articles, two from 2002 (Exhibits E-13 and E-14) and two from 2004 (Exhibits E-17 and E-18). Ms. Stableforth testified that she learned of the grievor’s arrest from the 2002 media reports but, in their wake, judged that “… there was not enough significant information for her to keep [him] suspended” (the ASF at paragraph 52). That statement suggests to me that the first media reports were not necessarily “significant” evidence of a loss of reputation in her mind. With respect to the 2004 media reports published after the grievor’s conviction, Ms. Stableforth testified that she wrote to the grievor and suspended him for a second time after she read them (Exhibit E-20) (the ASF at paragraph 65). However, she also testified that she “did not terminate Mr. Tobin because of media coverage” (the ASF at paragraph 96). On that evidence, I have no basis to rely on the media reports as proof of the perceived loss of reputation that led Ms. Stableforth to conclude that the grievor “… brought the Correctional Service of Canada into disrepute in the eyes of the public, the staff and offenders… ”

113 What, then, led Ms. Stableforth to that view? My analysis of the limits of the evidence reported in the ASF and of Ms. Stableforth’s testimony is that she formed a personal judgment that the grievor’s conviction discredited the CSC without necessarily relying on specific evidence. Paragraph 96 of the ASF states the following agreed fact:

With respect to the impact of these events, Ms. Stableforth’s personal conclusions were based upon her understanding that the actions in question did not display the CSC in a positive or credible manner…

114 I believe that a reasonable observer, cognizant of the circumstances of this case, would sympathize with Ms. Stableforth’s “understanding.” It seems reasonable for her to have found that the pattern of behaviour that led to the grievor’s conviction for criminal harassment, outlined in public pleadings (Exhibit E-2), “… did not display the CSC in a positive or credible manner.” When a senior employee of the CSC, bound by his duties to uphold the law and bound by his profession to high ethical standards, is found guilty of criminal behaviour, the possibility of negative fallout from media reports of the conviction surely cannot be discounted. From that “understanding,” it is probably only a small step to the conclusion that the grievor’s actions were of a type that “…may bring discredit to the Service [CSC],” using the words of the Code of Discipline. In light of the direction provided in Fraser, judging that the grievor’s actions might impair the CSC’s reputation is, in my opinion, a “reasonable inference” founded in “general knowledge.”

115 However, the employer set the threshold higher. Ms. Stableforth explained her decision to discipline the grievor by telling him that he “… brought the Correctional Service of Canada into disrepute in the eyes of the public, the staff and offenders… .” Those words convey a claim that the grievor’s conviction caused demonstrated impairment to the CSC’s reputation. I believe that it is appropriate to hold the employer to that claim. To that end, something more tangible is required to establish the basis for Ms. Stableforth’s factual conclusion than her personal understanding — however reasonable — that the grievor’s action did not display the CSC in a positive or credible manner.

116 On balance, I do not think that the employer has met that requirement. In coming to that view, I do not believe that I have set an evidentiary threshold that could not be met, as the Federal Court of Appeal judged was the case in the original adjudicator’s decision. I searched the evidence for some better indication of what Ms. Stableforth had in mind when she concluded that the grievor’s action discredited the CSC, particularly “… in the eyes of … the staff and offenders… .” Essentially, I looked for anything that might provide more insight into how she assessed the situation, understanding that she probably did not rely on any evidence that was systematically developed. In the case of staff and offenders, it is reasonable to assume that Ms. Stableforth’s position afforded her access to at least indirect reports from within the RTC or other institutions about reactions to the grievor’s case. That type of information may have led her to conclude that the grievor’s conviction had had the negative effect that she claimed. However, I did not find any traces of evidence of that nature in the ASF or in her oral testimony.

117 As a result, I rule that the employer has not proven, on a balance of probabilities, the first ground that it stated for disciplining the grievor. While I accept the reasonableness of Ms. Stableforth’s judgment that the grievor’s actions “… did not display the CSC in a positive or credible manner,” I am unable to accept that the employer has provided anything more to substantiate the actual impairment of its reputation that Ms. Stableforth’s termination letter appears to claim. To the extent that her stated finding that the grievor violated the Code of Discipline included her conclusion that there was actual impairment to the CSC’s reputation, I am not satisfied that the first allegation of misconduct within the meaning of the Code of Discipline has been adequately made out.

2. The second ground for discipline — impairment of job performance

118 The second allegation of misconduct within the meaning of the Code of Discipline is that the grievor committed “… an indictable offence or an offence punishable on summary conviction … which may bring discredit to the Service [CSC] or affect his or her continued performance with the Service [CSC].” As I have already considered the issue of “discredit to the Service [CSC]” in the context of the first ground for discipline, the aspect of alleged misconduct that remains to be assessed is the claimed impact of the grievor’s conviction on his “… continued performance with the Service [CSC].” In the termination letter, Ms. Stableforth stated that “… the behaviour [he had] demonstrated is incompatible with the duties [he was] required to perform as a Psychologist … .” That statement confirms that the impairment to the grievor’s “continued performance” contemplated by Ms. Stableforth referred directly to his functions as a psychologist, as opposed to other types of duties.

119 Paragraph 81 of the ASF states more specifically Ms. Stableforth’s job impairment reasons for disciplining the grievor as follows:

81 … Ms. Stableforth terminated Mr. Tobin for the following reasons:

…

6. Duties of his substantive position as a psychologist (PS-03) are in conflict with the conviction;
7. With respect to the custody of inmates, he is to be a role model and abide by the law;
8. Credibility and judgment are in question. He can’t counsel offenders if he himself cannot control his behaviour.

120 The following excerpts from the ASF appear to me to be relevant in indicating Ms. Stableforth’s knowledge of the work performed by the grievor:

…

46. Ms. Stableforth, as the Deputy Commissioner, was responsible for all operations in the region including the implementation of national and regional policies, budgets, programs and services, all employees, all inmates (approximately 3600); as well as all federal corrections in the Territory of Nunavut. The programs and services she was responsible for included Psychological Services.

…

48. Ms. Stableforth had no background in psychology and relied on the expertise of others…

…

52. Ms. Stableforth decided to put Mr. Tobin back to work after the initial arrest and administrative investigation was completed and after consulting the jurisprudence. Ms. Stableforth was of the view that the criminal charges contained very serious allegations, however, Mr. Tobin had denied that the events had occurred, but also had not provided any information with respect to what had in fact occurred. In her view there was not enough significant information for her to keep Mr. Tobin suspended. That being said, Ms. Stableforth was also of the view that the charges were too serious and the allegations contained in the charges were of such a nature that she could not return Mr. Tobin back to an Acting Deputy Warden position or to his substantive position in Psychological Services…

…

74. Ms. Stableforth determined that Mr. Tobin could not return to work as a PS-03 because the duties of a PS-03 were inconsistent with the behaviour he had exhibited that led to the criminal conviction.  As a PS-03 he was required to:

1.  Perform assessments and provide counselling to inmates;
2. Conduct interventions with inmates;
3. To challenge the behaviour of inmates and to assist them in coping with situations.

75. Ms. Stableforth is of the view that the psychologist’s duties and responsibilities are carried out based on their professional knowledge. Part of being able to have effective treatment of the inmate will be that the inmate respects the psychologist; that he is able to be a credible example; he must exhibit credibility and exercise judgement. According to Ms. Stableforth, Mr. Tobin’s actions surrounding the incidents on July 2, 2002 raise concerns about his judgement and his ability to be a role model of appropriate conduct.

…

121 The foregoing statements reveal that Ms. Stableforth had general, but not expert, knowledge of the psychological duties performed by the grievor and of the programs and services in which he was involved. Her decision in 2002 not to return the grievor to his substantive position after his initial suspension because of the nature and seriousness of the criminal charges against him suggests that her knowledge of the grievor’s work was sufficient to identify a possible impact on his ability to carry out his specific functions as a psychologist working in direct contact with offenders. Paragraph 74 of the ASF also indicates knowledge on Ms. Stableforth’s part of the main components of the grievor’s position. Paragraph 75 adds her understanding that the grievor’s position required him to model appropriate conduct for his client offenders. (The grievor’s position description is also in evidence (Exhibit E-10). However, I have no direct evidence proving Ms. Stableforth’s familiarity with that document.)

122 In her oral testimony, Ms. Stableforth confirmed that she had no direct supervisory contact with a CSC psychologist in her role as deputy commissioner but that she might have come into contact with psychologists in discussions about mental health services.

123 In addition to information about the basis of Ms. Stableforth’s knowledge of the work performed by the grievor, the ASF provides the following information about the grievor’s responsibilities as a CSC psychologist:

…

69. Mr. Tobin understood that the CSC’s mission was to encourage offenders to become law-abiding citizens, respecting the rule of law.  He also understands that it is part of his job to contribute to public safety, and to teach inmates so that they do not re-offend.

…

71. Mr. Tobin agreed that as a psychologist he would:

…

V. Teach, model and try and provide options to inmates to cope;

…

73… it was part of the job of a psychologist to assess the behaviour of inmates and assist inmates in modifying their behaviour to have them ready to return to the community and keep them from re offending.

…

124 In cross-examination, the grievor confirmed that the model used in the sex offender treatment program teaches self-management and assists offenders to learn how to control themselves in difficult situations and how to manage their behaviour so that they will not commit additional sexual assaults.

125 Information about the nature of the work performed by the grievor comprises one side of the ledger in an analysis of job impairment. The other side requires evidence about the behaviour or actions for which the grievor was criminally convicted. For that information, I believe that that I am entitled to rely on the facts officially recorded by the Ontario Superior Court of Justice at the plea and sentencing hearing (Exhibit E-2). The grievor’s counsel agreed at the hearing that “… those facts are admitted to be substantially correct.” The grievor himself confirmed at paragraph 58 of the ASF that “… the facts that are set out between page 3, line 5 and page 7, line 4 of the “Plea and Sentencing Transcript” were accurate.” I note, to illustrate, the following extracts from those pages:

…

… the victim attempted, numerous times, to end the relationship, due to the accused’s overly-possessive and manipulative behaviours: the continuous monitoring, dictating who she should be friends with, where she spent her time, and who she could associate with, in and outside of the workplace; the monitoring and deleting of workplace e-mails …

…

… [the victim] received repeated, unwanted calls from Mr. Tobin … Mr. Tobin arrived and confronted [the victim], and the real-estate agent. He then left, andvarious messages were subsequently received, on [the victim’s] answering machine, of a degrading nature.

…

… en route to her mother’s, the accused passed her, going the opposite – very likely heading to her residence – and quickly spun around and began to follow her. He caught up to her … Given the aggressive driving situation, [the victim] felt that it was necessary, for her safety, to pull into the … parking lot … and she was followed by Mr. Tobin.

…

… The accused approached her vehicle, and proceeded to berate, degrade and otherwise totally, verbally abuse the victim …

…

After repeated demands that she accompany the accused into his car, and after consistent refusals, the victim finally relented , and got into his vehicle …

…

… [the victim] testified that, during the drive, Tobin threatened to kill her, and that she was fearful for her life …

…

… Upon arrival [the victim’s father] found the accused waiting on the door-step of the residence. A small confrontation occurred …

…

126 Paragraphs 58 to 63 of the ASF effectively outline the grievor’s version of the events that led to his conviction. On balance, I view the grievor’s version as an effort to discount the seriousness of what occurred and, in particular, to distance himself from some of the facts reported in the transcript of the Ontario Superior Court of Justice hearing. On the latter point, paragraph 59 of the ASF states that “… [the grievor] did not agree to specific facts but simply agreed that HM believed or felt that way.” Elsewhere, he appears to have gone further to profess his innocence despite having agreed to plead guilty. Paragraph 38 of the ASF states the grievor’s belief that “… his behaviour was not ‘criminal’ and he did not commit the acts.” In her letter to Ms. Stableforth dated May 4, 2004 (Exhibit E-22), the grievor’s representative writes about his “confidence in his innocence.”

127 Even were I to accept the grievor’s further testimony about his reasons for pleading guilty, I have not found any compelling circumstances in this case “… which warrant overriding the strong public interests served by treating a criminal conviction as a final determination of [the] facts”: Brown and Beatty, at para 2:3224. In the circumstances, I judge that the “Plea and Sentencing Transcript” of the Ontario Superior Court of Justice should be treated as substantially establishing the facts of the grievor’s conduct towards HM. Accepting the possibility that some of the statements in the transcript may comprise hearsay — which I am entitled nonetheless to consider — the overall depiction of the grievor’s behaviour as aberrant is still clear.

128  The evidence indicates that Ms. Stableforth was aware of the statement of facts agreed to before the Ontario Superior Court of Justice and depended on that information about the grievor’s behaviour in making her decision. While it was within her discretion to order an independent investigation of the circumstances behind the grievor’s conviction, I do not think that her reliance on the facts presented to the Court and her acceptance of the Court’s judgment can be viewed as improper.

129 I am persuaded by the evidence and as a matter of reasonable inference that Ms. Stableforth — on the basis of what she knew when she decided to terminate the grievor’s employment — had reason to judge that the behaviour for which the grievor was convicted was incompatible with his duties and that it could have affected his continued performance of the responsibilities of his position. I believe that it is sound to infer that she was in a situation in which she had to assess the risk that there would be job impairment based on what had occurred. Essential to the grievor’s work was the requirement that he model behaviour for the offenders whom he treated. The self-management and control issues that he was required to help offenders confront related primarily to their treatment of women. To judge that his credibility as a role model of appropriate relationships with women would have remained unaffected by his criminal conviction for the offence of harassing a woman strikes me as an unreasonable assessment of risk. Ms. Stableforth was entitled to hold the grievor to high standards of conduct in both his capacity as a representative of the CSC, mandated to respect and enforce the law, and as a psychologist, whose training and work gave him special insight into interpersonal dynamics and the consequences of aberrant behaviour. Holding him to high standards was necessary to ensure that his ability to perform his duties was not compromised. The grievor’s conviction was proof that he had fallen seriously short of those standards.

130 My assessment reflects, in part, the Federal Court of Appeal’s reference in Tobin to the two following factors as examples of what may be considered when assessing the gravity of the grievor’s conviction:

…

-Mr. Tobin’s position as a role model for all offenders, including sexual offenders and offenders with relationship issues.

-Mr. Tobin’s employment as a consulting psychologist who could be expected to be aware of the damaging consequences of his behaviour on the victim.

…

If those factors are relevant to weighing the seriousness of the grievor’s offence, it follows that they should also be relevant to evaluating whether his conviction gave the employer cause to discipline him. Applying “common sense and measured judgment,” is it reasonable to believe that Ms. Stableforth could have ignored the information about the grievor’s conduct revealed by his conviction, or discounted it, when an essential part of the grievor’s work with offenders was to model relations with women quite the opposite of what he had demonstrated in his behaviour towards HM? Ms. Stableforth could not have known with certainty at that time exactly what degree of job impairment might result from the grievor’s conviction, but in my opinion, she did not need to be absolutely certain about the result to decide that the grievor’s behaviour met the threshold for a disciplinary offence as contemplated by the Code of Discipline. As stated earlier in this decision, her assessment necessarily involved an evaluation of risk. She did not need to wait for a demonstrated result. The evidence convinces me that she had a reasonable basis at the relevant time for believing in the likelihood of job impairment given the incompatibility between the grievor’s criminal behaviour and the duties that he performed. From that perspective, Ms. Stableforth’s conclusion that the grievor breached Standard 2 of the Code of Discipline withstands scrutiny.

131 I reviewed the other adjudication decisions submitted by the parties and did not identify in the circumstances of those cases or in their findings any reason to change my assessment of the reasonableness of Ms. Stableforth’s conclusion that she had cause to impose discipline. I was struck, in particular, by an observation in one of the cases. The decision of the Federal Court of Appeal in Flewwelling primarily concerned a matter of an adjudicator’s jurisdiction. Nevertheless, the Court commented on the adjudicator’s findings and upheld the discharge of an employee with peace officer status after he was charged with possession of a substantial quantity of narcotics (but not yet convicted). The Court wrote as follows:

…

It appears to me that there are forms of misconduct which, whether they are prohibited by regulations or by the Criminal Code or by any other statute, are of such a character that they are readily recognizable by any reasonable person as incompatible and inconsistent with the holding by one involved in such conduct of a public office …  the duties of which are to enforce the law…

…

In this case, the grievor’s responsibility to exemplify law-abiding behaviour was equally clear. While my analysis has focused primarily on the incompatibility between his behaviour towards HM and his special professional responsibilities to model self-control and appropriate relations with women, I cannot lose sight of the fact that his overarching duty as an officer of the CSC to demonstrate lawful conduct was also placed in question by his conviction. On that element alone, the case law suggests that the employer may well have had strong cause to discipline him for his conduct.

132 I rule provisionally that, on the balance of the evidence, the second ground for discipline has been proven and that the employer had cause to discipline the grievor. My ruling is provisional in the sense that I must now return to determine whether I may rely on the subsequent-event evidence adduced by the grievor and, if so, whether that evidence alters my conclusion about the existence of cause for discipline.

3. Subsequent-event evidence

133 I wish to express my appreciation to both parties for their detailed and well-argued submissions about subsequent-event evidence.

134 On my reading, the preponderance of the case law holds that an adjudicator may rely on subsequent-event evidence in a discharge case if that evidence is relevant, that is, if the evidence helps shed light on the reasonableness and appropriateness of the dismissal under review when it was imposed. In essence, both parties accept that conclusion. However, they disagree as to whether the particular type of subsequent-event evidence adduced by the grievor meets the test of relevance.

135 Without departing from the case law, I take the view that it is appropriate to adopt a very cautious approach to subsequent-event evidence. An employer must make decisions about discipline based on the best evidence available to it at the relevant time. If the contemporaneous evidence indicates that, on balance, the employer had cause to impose discipline, it is appropriate that the party who later asserts the relevance of subsequent-event evidence bears a clear onus to prove exactly why it is relevant and how it serves to qualify or vitiate the original decision.

136 In this case, the grievor vigorously argues for the relevance of the evidence about his work record at the RTC for the period from his reinstatement on June 18, 2007 as a result of the adjudicator’s decision to his departure from the workplace on July 11, 2008 after the Federal Court quashed the adjudicator’s decision. To be sure, he argues that it comprises “the best possible evidence” and that it conclusively refutes the employer’s claim that it had cause to terminate his employment on the ground of job impairment.

137 The employer argued in part that the subsequent-event evidence in this case resulted from an opportunity that the grievor should not have enjoyed, given the Federal Court’s decision overturning the adjudicator’s original order. From my perspective, that argument has little significance. The fact that the Federal Court rescinded the grievor’s reinstatement does not somehow make the evidence of what later happened disappear or taint it as inadmissible for that reason alone. My concern instead is, what exactly is the relevance of the subsequent-event evidence in this case? What light does it actually shed on the decision that Ms. Stableforth made over three years earlier? If it is relevant, what weight should I give it?

138 The grievor maintains that the evidence proves that he performed the duties of his substantive position as a psychologist on his return to work without impairment due to his conviction. He testified that he received no indication from his superiors at the time of his reinstatement that his conviction posed a problem. He testified further that he met the requirements of his position for over a year without any report and certainly no allegation from his superiors that his conviction compromised his relationships with fellow employees or affected his ability to work with offenders.

139 From my perspective, it is important to understand first what the evidence about the grievor’s workplace performance between June 18, 2007 and July 11, 2008 does not do or purport to do. It does not cast any significant new light on the evidence about the nature of the behaviour that led to the grievor’s conviction in 2004. The situation in this case is not comparable to, for example, the circumstances reviewed in Canada Safeway Ltd., in which a brain tumour diagnosed after the fact explained the unacceptable behaviour for which a grievor was disciplined. In my opinion, the situation in this case is also not really analogous to what occurred in Toronto (City) Board of Education, in which the recurrence of problematic behaviour, rather than its opposite, was found to be relevant, and in which there was a compelling basis to depict the “third letter” as part of the continuum of behaviour addressed by the employer’s termination decision.

140 The subsequent-event evidence in this case also does not shed any new or different light on the nature of the duties that the grievor was called on to perform as a psychologist working at the RTC. There is no reason to believe that knowledge of what the grievor did at the RTC after reinstatement would have appreciably altered Ms. Stableforth’s understanding of the nature of his work in her assessment of the risk of job impairment when she terminated his employment. Nor does the evidence prove anything different from what she already knew about the grievor’s skills and knowledge to do the job — the evidence is clear that his technical abilities have never been in question.

141 The real and only issue is whether subsequent-event evidence about the grievor’s purported absence of job impairment in 2007-08 sheds light on Ms. Stableforth’s judgment in 2004 about the impact of the grievor’s conviction on his ability to do his job. The effect of the grievor’s argument is that, because he had an opportunity to put Ms. Stableforth’s judgment to the test three years later, the ledger pages should now be revised and reassessed — that I should now factor in the evidence from 2007-08 and re-evaluate Ms. Stableforth’s assessment that the grievor’s actions, found to comprise criminal behaviour in 2004, impinged on his ability to serve as a role model in performing the duties assigned to him. With due respect, I cannot endorse what the grievor urges.

142 At the most basic level, I suspect that the grievor has a different appreciation than mine of the nature of the decision that Ms. Stableforth had to make in 2004. While he maintains that Ms. Stableforth was entitled to rely on her belief that the conviction would have a negative impact, his call for “sufficient information and evidence” of that belief seems to verge on imposing a requirement to demonstrate job impairment as an actual result. I have described Ms. Stableforth’s decision earlier in this decision as involving an assessment of risk. In my opinion, she was not in a position to wait and see whether the grievor’s conviction would actually impair his ability to do his job were he permitted to return to work. To do so would arguably have been to abdicate her responsibility to anticipate and prevent problems in the workplace. Instead, she had to determine whether, in the words of the termination letter, his behaviour was incompatible with the duties that he was required to perform as a psychologist and, if so, to decide what to do about it. In contrast to her factual statement in the same letter that the grievor’s behaviour had brought discredit to the CSC, I view her statement about job impairment in the letter as essentially predictive. Given what she perceived as an incompatibility between his criminal harassment of HM and the requirement to perform his professional duties, including modelling appropriate relations with women, I believe that it is a reasonable inference to interpret her decision as an assessment — also reasonable — that there was a real risk that the grievor would or could be impaired in his duties. She had to conduct that assessment based on the information available to her at that time about his offence and about his job. Almost by definition, it was always possible that her assessment might be disproven by subsequent events if the grievor returned to the workplace. That does not make her assessment of risk wrong in the circumstances and at the relevant time.

143 In that sense, I am persuaded that the grievor’s subsequent-event evidence does not really shed new light on the decision that Ms. Stableforth had to make. That evidence is not really about the reasonableness in 2004 of her assessment of the risk that what occurred could or would affect the grievor’s suitability to perform his job. It is not evidence that sheds light on facts that existed at that time. Instead, it is evidence from a different and later period that purports to show that there actually was no job impairment as a demonstrated result. Were I to accept that that evidence is relevant in the circumstances of this case, it opens the possibility that an assessment about the risk of job impairment grounded in knowledge at a point in time must be reconsidered if, for whatever reason and after whatever period, a grievor subsequently has the opportunity to resume duties and prove the absence of actual impairment. In my opinion, such an approach could undermine the importance of finality in decision making and extend the time frame of the grievance continuum in this case in an unjustified fashion. It misconstrues the challenge faced by the employer to make a determination about the possibility of job impairment based on its reasonable judgment that there was incompatibility between proven criminal conduct and the known functions of an employee’s job.

144 Should I be in error that the subsequent-event evidence in this case does not shed new light on the real decision that Ms. Stableforth had to make, I remain unconvinced that the weight of that evidence is otherwise sufficient to justify overturning her finding in 2004 that she had cause to discipline the grievor. While the evidence about his experience at the RTC in 2007-08 was not contradicted by any employer witness, much of it must still be viewed with caution. The inferences that can be drawn from the evidence appear limited.

145 The documentary component of the subsequent-event evidence (for example, Exhibits G-49 to G-53) establishes in greatest part that the grievor successfully conducted assessment tasks during his year back at the RTC. However, I do not believe that his ability to perform assessment work was ever in question. The only performance evaluation report in evidence (Exhibit G-54) contains no performance evaluation, only performance objectives for the upcoming period. The documents about training and development (Exhibits G-47, G-48 and G-55) similarly reveal very little, if anything, about how the grievor actually performed his day-to-day duties. None of the exhibits, in my view, provides substantial insight about the key attribute placed in question by the grievor’s conviction — his ability to model lawful behaviour and appropriate relations with women in his work with sexual offenders.

146 What remains is largely the grievor’s own oral testimony that he did not receive any reports on his return to work or later on that his superiors, colleagues or offenders viewed his criminal conviction as problematic or as impairing his work as a psychologist. That evidence has some limited value but would have been more compelling had it been corroborated by other witnesses. The grievor’s further testimony, suggesting that he received favourable feedback from his superiors about his performance and that they supported his career advancement aspirations, also represents the grievor’s perception of the facts and should be weighed cautiously.

147 In sum, I have not found the subsequent-event evidence offered by the grievor particularly illuminating. Moreover, it needs to be understood in context. Contrary to the grievor’s argument, I believe that it was quite reasonable to expect that he would have bent every effort to disprove the concerns that led to his discharge when given the opportunity to return to work. It is unquestioned that the grievor’s reinstatement was not the result of the type of rehabilitation process found in other cases, but that does not mean that he was somehow unaffected by the years interceding since the original criminal charges and did not change his behaviour as a result. It is also reasonable to believe that the impact of his conviction may have receded with the passage of so long a period. For either reason, I am not surprised that there were apparently no problems on his return to work in 2007-08 but that fact, once more, does not disprove the reasonableness of Ms. Stableforth’s decision in 2004.

148 I also examined the other subsequent-event evidence about the grievor’s psychometric duties with the Leeds and Grenville social services between 2004 and 2007 (the ASF, at paragraph 104) and his employment since January 2011 with H’Art School of Smiles Inc. I found it to be largely unhelpful. In my view, Ms. Stableforth’s decision about job impairment related specifically to the unique context of the grievor’s responsibilities as a psychologist modelling lawful behaviour and appropriate gender relationships to incarcerated offenders. The other settings where the grievor worked after his discharge were quite dissimilar.

149 I have several brief supplementary comments about the subsequent-event evidence case law argued by the grievor. For example, he maintained that the circumstances reviewed in Jalal were virtually identical to the circumstances of this case. I do not agree. Mr. Jalal did not plead guilty and never admitted to his offence. The seriousness of the offence for which he was convicted was also entirely different — petty theft of $34.01. Mr. Jalal was a correctional officer, but his duties did not include the special professional responsibilities to model appropriate behaviour that are central to the work of a CSC psychologist and that were put in question by the nature of the grievor’s conviction. The test applied by the adjudicator in Jalal was based on Millhaven, a test that the Federal Court of Appeal found did not apply. Finally, the adjudicator in Jalal modified the disciplinary penalty but found that Mr. Jalal’s conviction for a minor criminal offence nevertheless comprised cause for discipline.

150 In Batiot, the adjudicator agreed to consider subsequent-event evidence of Ms. Batiot’s rehabilitation efforts undertaken “… after the shock of her suspension     …” but found that they did not offer sufficient reason to interfere in the employer’s decision to terminate her employment.

151 The cases from other jurisdictions cited by the grievor — for example, Titan Steel & Wire Co., Great Atlantic & Pacific Co. of Canada, Alcan Smelters and Chemicals Ltd., Natrel Inc., Toronto District School Board and Petro-Canada — provide further support for the general proposition that relevant subsequent-event evidence may play a role in arbitral decision making. That said, the factual circumstances examined in those decisions are sufficiently different to readily distinguish them.

152 Reflecting more generally on the case law, it strikes me that there remains a need in many circumstances to distinguish between evidence that can be said to reflect or reveal conditions at the time of an event that is subsequently disclosed versus evidence of subsequent events — evidence about something that occurred after the event that cannot be said to reflect or reveal conditions that existed at the time of the event. The former type of evidence may have a powerful prima facie claim to relevance because, in principle, or in other circumstances, it could reasonably have been known by, or could have been made known to, the decision maker. Establishing the relevance of evidence of the latter type is a greater challenge, because we normally presume that a decision maker is held to account only for what he or she could have reasonably known when a decision had to be made.

153 Based on the foregoing analysis, I find that the subsequent-event evidence proposed by the grievor does not alter my provisional finding that the employer had cause to discipline him. Therefore, I rule formally that the employer has discharged its burden to establish on the balance of the evidence that it had cause for discipline.

C. Was the termination of the grievor’s employment the appropriate and proportionate penalty?

154 The available evidence about the analysis that Ms. Stableforth conducted to decide that terminating the grievor’s employment was the appropriate and proportionate disciplinary is not extensive. She stated the following in the termination letter:

…

I have taken into consideration your years of service and your disciplinary record; however, this does not mitigate the seriousness of your actions. Therefore, based on the foregoing … you are hereby advised that your employment with the Correctional Service of Canada is terminated effective April 23, 2004.

…

155 The ASF outlines some aspects of the disciplinary process that Ms. Stableforth followed, as follows:

…

100. Ms. Stableforth never gave Mr. Tobin a list of concerns or issues about the impact of the events which lead [sic] to his termination. Ms. Stableforth did not discuss with Mr. Tobin the points raised in her termination letter. Ms. Stableforth also did not have any discussion with Mr. Tobin’s Union representative over these matters. Other than through the letters dated April 21, 2004 and April 23, 2004, Ms. Stableforth did not discuss with Mr. Tobin the points raised in the termination letter.

…

102. With respect to Mr. Tobin’s performance appraisals, Ms. Stableforth can’t say whether she looked at them prior to Mr. Tobin’s termination. Ms. Stableforth did not look at any other jobs for Mr. Tobin prior to his termination in the spring of 2004.

103. With respect to the question of rehabilitation, and the Guide to Staff Discipline and Non-Disciplinary Demotional or Termination of Employment for Cause, Ms Stableforth did not look at any specific steps but was influenced by the event in and of itself and did not look into the future.

…

156 The ASF adds the following information about Ms. Stableforth’s views about criminal convictions, albeit in the context of reacting to the criminal charges against the grievor in 2002:

…

88. … Ms. Stableforth agreed that, if an employee of CSC received a criminal conviction, it would not automatically lead to discipline.

89. Regarding the CSC Code of Conduct, Ms. Stableforth does not accept that imprisonment of an employee would be worse than a conviction in terms of the appropriate level of discipline.  Ms. Stableforth does accept, that imprisonment is an important factor to consider.

…

157 Ms. Stableforth’s oral testimony, summarized earlier in this decision, confirmed that she did not seek the views of the grievor or his representative on the reasons for, and the appropriateness of, termination and that she did not consider the alternative of appointing him to a different position.

158 The soundest inference to be drawn from the available evidence is that Ms. Stableforth judged that the seriousness of the grievor’s conviction in and of itself justified discharge as a response rather than any lesser penalty. My task then must be to review the reasonableness of that view of the seriousness of the grievor’s offence and to canvass relevant aggravating and mitigating factors.

159 The Federal Court of Appeal’s direction appears to support treating the grievor’s conviction for criminal harassment as a serious offence regardless of the fact that the grievor was not sentenced to a prison term. The Court challenged the original adjudication decision for its finding that a suspended sentence and probation for 18 months was insufficient to establish the seriousness of the grievor’s breach of the Criminal Code. The Court stated that the adjudicator “… does not appear to have grasped the significance of the suspended sentence, the period of probation and the prohibition on the possession of firearms.” The Court described the 10-year maximum penalty that could have been imposed as “significant” and as an objective indicator of the seriousness of the crime that was available to the adjudicator.

160 The Federal Court of Appeal also criticized the adjudicator’s assessment of aggravating and mitigating factors for failing to take into account considerations such as the nature of the work relationship between the grievor and HM, the grievor’s continued refusal to accept the end of his relationship with HM, his responsibilities as a role model for relationship issues, and the expectation that his professional work should have made him aware of the consequences of his behaviour on the victim.

161 On review of the evidence, I have found no reason to depict the grievor’s criminal offence and the behaviour underlying it as anything other than serious. I believe that a reasonable and informed observer would share that view. The grievor began a consensual extramarital relationship with a young woman who was employed by the CSC and over whom he had at least some indirect authority for a temporary period. Those circumstances did not cause the employer to intervene and I draw no inference about the grievor’s behaviour on that point. At some stage, HM sought to break off the relationship. What then became criminal behaviour in the judgment of the Ontario Superior Court of Justice was the grievor’s continued pursuit of that relationship against HM’s wishes, marked by reckless conduct, persistent unwelcome efforts to contact her, threats and what HM eventually believed was the possibility of physical harm. In the words of the provision of the Criminal Code to which he pled guilty, the grievor’s action reasonably caused HM to fear for her safety. Even on a very restrained reading of the victim impact statement given by HM at the plea and sentencing hearing (Exhibit E-2, pages 9 to 12) — unquestioned by the grievor’s criminal counsel — the crushing impact of the grievor’s actions on HM is unmistakeable.

162 The suspension of the grievor’s sentence and the imposition of probation do not significantly alter my views about the seriousness of his offence. While I might be prepared to accept that a lengthy prison term would have reinforced those views, its absence does not serve to qualify the grievor’s crime in my mind as minor or somehow suggest that what he did ought to be viewed in a softer light. In that regard, I note the approach taken in Ottawa-Carleton District School Board to judging the seriousness of an offence in light of the actual penalty that was imposed. The board of arbitration in that case upheld the discharge of a school custodian for committing armed robbery on his lunch hour even though he received what was described as an “expressly lenient” penalty on pleading guilty in court. A sentence that fell substantially short of the maximum available penalty did not alter the majority view of the board of arbitration that his crime was very serious and that it irrevocably undermined the trust required of the occupant of his position. I take a similar view about the effect of the actual penalty imposed on the grievor.

163 Of course, it is a truism that one person cannot be found more guilty of an offence than another. Regardless of the penalty imposed on him, the grievor is as guilty of criminal harassment as any other individual convicted of violating paragraph 264(2)(d) of the Criminal Code, but no more so. Nonetheless, I have a clear sense in the circumstances of this case that the grievor’s professional training and his specific professional responsibilities in the workplace should have made him among the most sensitive to the unacceptable nature of his conduct towards HM. It has to be a significant aggravating factor that he had a privileged, professional understanding of interpersonal dynamics, had worked for many years as a health professional and was required to counsel offenders on a daily basis about self-control and appropriate conduct towards women, yet he conducted himself in a manner towards HM that was entirely opposite from the behaviours that he was supposed to teach and model. In that context, his lengthy discipline-free service and recognized record of good performance in the workplace offer little mitigation. Simply put, a person with that amount of experience, with his professional training and duties, and who had also been exposed to higher-level management responsibilities above and beyond his work as a psychologist, clearly should have known better.

164 In my opinion, the subsequent-event evidence discussed earlier does not bear on the seriousness of the grievor’s conviction. It may provide limited support for the proposition that the grievor is unlikely to reoffend, but that evidence does not detract from the seriousness of what he did in 2002 and the gravity of his conviction in 2004.

165 I find a further source for concern in what I have viewed as the grievor’s efforts to qualify facts attested to as part of his criminal pleadings and to offer an explanation for his plea agreement that did not forthrightly accept his guilt. Despite his protests that the absence of an apology at the time of his conviction should not be taken to prove the absence of remorse, I note that he made no apparent attempt at this rehearing of his case seven years later to put his sentiments more clearly on the record. Instead, what I heard again were the reasons he entered into a plea agreement, not disingenuous as such, but hardly a fulsome acceptance that what he did was wrong. Looking back, I also find it particularly difficult to reconcile that he could, through his representative and after his conviction, state that he accepted “… responsibility for his actions in relation to … Count 5” but at the same time have his representative refer to “ … his own confidence in his innocence” (Exhibit E-22). On balance, I find that the grievor’s attitudes about his conviction and about some of the facts of the case do not reveal genuine remorse and comprise a further aggravating consideration.

166 The grievor attempted to place on the table an issue of condonation or at least a question of consistency of discipline. I have examined Exhibit E-25, which lists five cases reported at the original adjudication hearing. Two of the examples (Employees “D” and “E”) lack any contextual information. Of the remaining three cases reported, one involves a conviction of a nurse for impaired driving that does not appear to pose an issue of job impairment. The remaining two examples both involved convictions for spousal assault, but there is no information in one case whether discipline resulted, and in the other, it is not possible to evaluate how the reported fact that the employee’s wife committed suicide in front of him influenced the employer’s decision to limit discipline to a written reprimand.

167  Exhibit G-46, adduced during the grievor’s examination-in-chief at the             rehearing of his case, identified 12 cases of employees charged with criminal offences in Ms. Stableforth’s region as of May 28, 2004 (Exhibit G-46). Without further information about the nature of those charges, whether there were resulting convictions and how the employer responded to any such convictions, the information in Exhibit G-46 provides no assistance.

168 The grievor also referred in oral testimony to the case of Mr. X, another psychologist in the Ontario region found guilty of at least one criminal charge but purportedly given only a letter of reprimand by the employer in the wake of his conviction. In my opinion, subsequent admissions by the grievor during cross-examination revealing the limited nature of his knowledge about the circumstances of that case, despite his appearance in court as a character witness, preclude my drawing any relevant inferences from his testimony. The further agreed facts submitted by the parties after the hearing substantially distinguish the situation of Mr. X.

169 Still on the issue of consistency, the grievor referred me to Dosanjh and Leadbetter. I am at a loss to understand the relevance of Dosanjh, a decision that examined an altercation in the workplace between correctional officers that attracted a seven-day suspension, later reduced to three days. Other than involving the CSC, I find nothing substantial that would suggest similarities between the actions of the grievor in Dosanjh and those of the grievor in this case. Leadbetter involved the actions of an administrator at a correctional institution whose employment was terminated after he requested that employees under his supervision construct six wooden boxes for his personal use and had those boxes removed from the workplace. The adjudicator determined that termination was too excessive a penalty. Once more, I do not believe that it is reasonable to suggest that there are more than the weakest of parallels between the facts in Leadbetter and the facts of this case. Neither Dosanjh nor Leadbetter raise a credible issue of disciplinary inconsistency.

170 The crux of the matter remains whether the circumstances surrounding the grievor’s conviction were sufficiently serious and incompatible with the performance of his specific duties as a psychiatrist that discharge was an appropriate and proportionate response. I find that the case law offers general support for the choice that Ms. Stableforth made; see, for example, Dionne, Wells and Beirnes. Particularly in the justice system and in the law enforcement environment, serious criminal convictions often attract very serious disciplinary penalties. I am persuaded that a reasonable and informed observer would not view this case as an exception. The argument for imposing a lesser penalty is weak. A suspension, however lengthy, followed by reinstatement to his position would still have risked sending the message that the grievor’s conviction for criminal harassment and his specific duties as a psychologist treating offenders about self-control and appropriate relations with women could ultimately be reconciled. That leaves the option of a suspension followed by assignment to other duties. Apart from any issue about my authority to consider a remedy that effectively involves ordering an appointment, I am unaware of any legal principle that would have required Ms. Stableforth to consider the option of reassignment at the relevant time. As the delegated representative of the employer, she could have decided to pursue such a course, but in my view, she was acting well within her authority to confine her assessment to the grievor’s future in his position.

171 There are statements of fact in the ASF and in the oral testimony that suggest that Ms. Stableforth could have done more to consult the grievor and/or his representative before finalizing her decision. As a de novo opportunity to consider fully the merits of the case, this hearing cures those procedural shortcomings, if they can be characterized as such; see Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (QL)(C.A.).

172 In summary, my judgment is that the termination of the grievor’s employment was an appropriate and proportionate disciplinary penalty in the circumstances of this case. My assessment of the major mitigating and aggravating factors has not led me to interfere with the employer’s decision.

173 For all of the above reasons, I make the following order:

V. Order

174 The grievance is dismissed.

June 6, 2011.

Dan Butler,
adjudicator

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Annex A – Agreed Statement of Facts

1. Mr. Fred Tobin, the grievor, was employed by the Correctional Service of Canada (“CSC”) as a Psychologist (PS-03), which position was located at the Regional Treatment Centre (“RTC”), a Maximum Security Institution that is located within the reserve and walls of Kingston Penitentiary, Kingston Ontario.  The RTC provides treatment services to federal inmates with major mental illnesses.
2. Mr. Tobin was terminated from this position on May 7, 2004 by letter dated that same day.  The termination was effective April 23, 2004.
3. At all material times Ms. Nancy Stableforth was a Deputy Commissioner for CSC, for the Ontario Region, and was the person who terminated Mr. Tobin’s employment with CSC.
4. At all material times Mr. Alan Stevenson was employed by the CSC and was the Warden of Collins Bay Institution (“CBI”), a medium level security Institution for male offenders located in Kingston Ontario within the Ontario Region of CSC.
5. At all material times Ms. Janet DeLaat was employed by the CSC and was the Warden of Frontenac Institution, a minimum level security Institution for male offenders also located in Kingston Ontario, on the same Federal Reserve as CBI. Ms Delaat has known Mr. Tobin since 1996 through work, however really knew Mr. Tobin and his wife on a social basis.
6. At all material times Mr. David Farnsworth was employed as a psychologist (PS-03) with the CSC and worked at the RTC.  He joined the Federal Public Service in 1990.
7. HM, is a young woman, who worked as a volunteer and later as a term employee for the CSC, either at both the RTC and CBI.
8. Mr. Tobin obtained an Honours Degree in Psychology from Dalhousie University and a Masters Degree in Clinical Psychology from St. Mary’s University.
9. Mr. Tobin’s work history was as follows:
   
   1. From 1982-1985, he was employed as a Program Director at Metropolitan Group Homes in Halifax.  This was a community based organization which provided services to individuals with major mental illnesses and assisted them in transferring back into the community from an institution;
   2. From 1985-1988, he worked in the Psychology Department at the Halifax County Regional Rehabilitation Centre.  In that capacity, he administered psychological tests, interpreted them, wrote reports, provided consultation to staff members in a variety of other disciplines, and provided individual counselling and group programs. He worked in three separate areas: major mental illness, development disability, and persons who suffered Alzheimer’s disease;
   3. He commenced employment with the CSC in 1988 as a consulting psychologist and shortly thereafter was given the position of Program Director, Female Behavioural Unit;
   4. He worked in the Female Behavioural Unit where he led some groups in his role as Program Director.  In this capacity, he provided functional supervision for a variety of employees in many areas of expertise – counselling, intervention, programming, and program analysis;
   5. In 1994-1995 he was on Education Leave;
   6. In 1997, he was appointed as the Program Director of the Womens’ Offender Unit at the Regional Treatment Centre;
   7. During the period 1998-2000, he assumed the position of Acting Deputy Warden of the Prison for Women, and later as the Acting Deputy Executive Director of the RTC.  This position was concerned with the daily operation of the facility, including supervising uniform staff, case management staff, and parole officers.  As well, the position involved a mix of clinical and operational issues.  In the course of exercising these duties, he was called upon to deal with crisis situations and dealt with offender issues from self injury to aggressive behaviour, non-compliance, and refusals to participate.  While at the RTC he was part of the Female Behaviour Unit.
10. Mr. Tobin’s work history from March of 2000 to the date of termination was as follows:
    
    1. From March of 2000 to September of 2001 he was working at the RTC, in both his substantive position as a PS-03, as well at times as the Acting Deputy Executive Director;
    2. From September of 2001 until February 26, 2002 he was on assignment at Ontario Regional Headquarters (hereinafter referred to as “RHQ”);
    3. From February 26, 2002, until his suspension on July 8, 2002, he was working at CBI as the Acting Deputy Warden
    4. From July 8, 2002 until November 20, 2002 he was suspended without pay, which suspension was set aside and he was reimbursed all lost pay and benefits during this period of time;
    5. From November 20, 2002 to April 23, 2004 he was working on special assignment projects under the supervision of Frontenac Institution Warden Janet DeLaat;
    6. From April 23, 2004 until May 7, 2004 (the date of termination of employment) he was suspended without pay.
11. Mr. Farnsworth met Mr. Tobin in or about 1990 and has been friends with him since that time.  Between January of 1996 and September of 1996 (a period of nine months), he was Mr. Tobin’s supervisor and would have been involved in his performance assessment at that time.
12. Mr. Fransworth’s view of Mr Tobin’s competence while at the RTC was that he was excellent and that he (Farnsworth) would not have a problem working with Mr Tobin after his conviction.  He believes that Mr Tobin, in the 5-6 years that he worked with him, had excellent interaction with inmates.  Mr. Farnsworth would not have a problem with allowing Mr. Tobin to work with inmates. Mr. Farnsworth was not aware of the specifics of the criminal charges; nor was he aware of the facts surrounding the criminal charges; nor was he aware of what the charge was that Mr. Tobin pled guilty to.
13. Mr. Farnsworth supervised Mr. Tobin for a nine-month period in 1996.  Mr. Tobin became his boss for a brief period of time.  Mr. Farnsworth has not worked with or supervised Mr. Tobin for a period of roughly 14 years.
14. Alan Stevenson was the Warden of CBI during the time frame in which Mr. Tobin was the Acting Deputy Warden (of that Institution). At the time of Mr. Tobin’s tenure, CBI was (and remains) a Medium Security Institution for male inmates. At the time of Mr Tobin’s tenure it housed approximately 200 to 240 inmates and had a staff compliment of roughly 200.
15. Mr Tobin was initially brought in to CBI as Acting Deputy Warden for a period of six weeks.  After the initial six weeks in this position, Mr. Stevenson asked if Mr. Tobin would continue.  Mr. Tobin was to become a little more involved in long term planning and some operational issues particularly as they pertained to construction.  To Mr. Tobin’s knowledge, there were no issues with his performance.
16. The Deputy Warden position is an extremely demanding position requiring an energetic and innovative person with good judgment all of the time.  The Deputy Warden has a larger impact than the Warden on the institution.  Mr. Stevenson as the Warden at CBI, was away approximately 40% of the time requiring the Deputy Warden to be in charge of the institution.  In addition, the Deputy Warden sees the inmates more than the Warden.  Also, during crisis situations, it is the Deputy Warden that plays a significant role.
17. Mr. Tobin was involved in the day to day running of the Institution and often acted for Warden Stevenson when he was not in Collins Bay Institution.
18. Mr. Stevenson agreed with the assessment of Mr. Tobin’s performance, which was set out, in part, in a document entitled ‘Narrative Candidate Assessment Form’,  as follows:
    

    As Acting Deputy Warden and in his previous work assignments, Mr. Tobin continuously demonstrates a thorough knowledge and understanding of CSC’s Mission, its policies and Corporate Objectives.  He assists his staff to understand the issues and the importance of ensuring that the legal and policy requirements are met.

    …

    I have had the opportunity to manage a number of crises with the assistance of Mr. Tobin and he has demonstrated a good knowledge of the legal and policy requirements as well as good judgment during very difficult situations[…]  He provides staff with the necessary direction to ensure the safe resolution of the crisis.  I consider his management style an asset durring [sic] the management of crisis situations.

19. Mr. Stevenson accepted that Mr. Tobin performed well in his duties as Acting Deputy Warden and he was capable of assuming all of them.
20. HM was working at the RTC at least during the period of March 2001 to September of 2001 and was working at CBI until roughly the end of February 2002.  From the end of February 2002 until roughly the end of March 2002, she continued to attend at that institution on a “volunteer basis”.
21. Mr. Tobin’s relationship with HM commenced in or about March of 2001 while he was the acting Deputy Warden of RTC, and shortly after HM started working at RTC on a volunteer basis.  HM was later hired as a casual at RTC and there was some suggestion that Mr. Tobin was involved in this hiring.  It was over these suggestions that Mr. Tobin took the assignment to RHQ in September of 2001 to avoid a formal inquiry over the matter.  While Mr. Tobin was at RHQ, HM’s term at RTC ended and she subsequently obtained a casual position at CBI.  This relationship was known to some members of CSC staff.  Mr Tobin was never disciplined solely because of this relationship.
22. When Mr. Tobin was being considered for the Acting Deputy Warden position at CBI, his relationship with HM was still ongoing and HM was employed at CBI institution as a casual employee. Although HM’s employment at CBI had come to an end, she continued to attend and work as a volunteer at CBI until the end of March 2002, during which period Mr. Tobin was the Acting Deputy Warden and during which time their relationship was still ongoing.
23. When Mr Tobin was working at the RTC, HM was technically under his supervision, she did not report directly to him.
24. Prior to bringing Mr. Tobin on as the acting Deputy Warden at CBI, Mr. Stevenson recalls having had a meeting with Mr. Tobin (Mr. Stevenson does not recall the specific reason for the meeting or other details of what the meeting was about).  During this meeting they discussed in general some of the circumstances that arose that caused Mr. Tobin to move to the RHQ from the RTC.  Although no detailed discussion took place, Mr. Stevenson was aware of Mr. Tobin’s movement from RTC to RHQ, and that there was some issue that arose with a female staff member.  Although he was not aware of the details of the relationship, Mr. Stevenson recalls being told by Mr. Tobin that the relationship with the young lady was over and done with.  Mr. Stevenson does not recall the specifics of the meeting that was taking place when this discussion took place.
25. Mr. Tobin recalls two meetings with Warden Stevenson.  He did not keep notes of those meetings. However unlike Mr. Stevenson, he does not recall any discussions involving the statements about the young lady with whom he had a relationship. He recalls that the first of these meetings took place on the first day of work as Acting Deputy Warden when he was shadowing Janet DeLaat, and he met with Mr. Stevenson and he (Stevenson) had said he was looking for a more experienced Deputy Warden.  According to Mr. Tobin, the second meeting took place close to the end of Mr. Tobin’s initial acting assignment and was about continuing his assignment at CBI.  Mr Tobin does not recall having discussions with Mr Stevenson on these occasions about his relationship with HM being over.
26. On July 5, 2002, Mr. Tobin was arrested and was held on charges relating to harassment and intimidation of HM.  The first five counts were laid at the time of Mr. Tobin’s arrest in July of 2002 while the sixth charge was added later.  The charges were that Mr. Tobin:
    
    1. Uttered a threat to cause death to HM contrary to section 264.1(1)(a) of the   Criminal Code of Canada (“CCC”);
    2. Did without lawful authority confine HM contrary to section 279(2) of the     CCC;
    3. Did wrongfully and without lawful authority compel HM from driving to her intended destination contrary to section 423(1)(e) of the CCC;
    4. Did knowing that HM is harassed or being reckless as to whether HM is harassed did without lawful authority beset or watch the dwelling house and/or other places where HM happened to be, thereby causing HM to reasonably in all the circumstances fear for her safety and did thereby commit an offence contrary to section 264(2)(c) of the CCC;
    5. Did knowing that HM is harassed or being reckless as to whether HM is harassed did without lawful authority engage in threatening conduct directed at HM thereby causing HM to reasonably in all the circumstances fear for her safety and did thereby commit an offence contrary to section 264(2)(d) of the CCC;
    6. Did commit a sexual assault on HM did thereby commit an offence contrary to section 271(1)(a) of the CCC;
27. As set out in the Transcript of the Plea and Sentencing, dated April 20, 2004, Ontario Superior Court, before the Honourable Mr Justice Chilcott, (“Plea and Sentencing Transcript”) and as confirmed by Mr. Tobin, these events arose out of and involved the relationship between Mr Tobin and HM.
28. With respect to Mr. Tobin’s arrest in July of 2002, Mr. Stevenson first received word of the situation when he received a call from Janet DeLaat, the Warden of Frontenac Institution, who advised him of Mr. Tobin’s arrest.
29. Ms. DeLaat found out about the charges against Mr. Tobin after the long weekend in July of 2002 as Mr. Tobin’s wife [her name] contacted her.  Ms. DeLaat, upon receiving this information, paged Mr. Stevenson, the Warden of CBI, to whom Mr. Tobin reported, as Mrs. Tobin indicated (to Ms. Delaat) that she wanted Mr. Stevenson to know.
30. Mr. Stevenson documented what occurred in the meetings and discussions he had after Mr. Tobin’s release on bail. He documented these discussions in notes he made to file that are dated July 6, 2002 and July 8, 2002 (three separate notes).
31. On July 8, 2002, Mr. Stevenson received a message on his pager from Mr. Tobin. Mr. Tobin told Mr. Stevenson during the course of the return telephone call that he was not guilty and that the courts would exonerate him.
32. The options that Mr. Stevenson considered at this time were:
    
    1. suspending Mr. Tobin with pay;
    2. returning him to his substantive position; or
    3. reassigning him. 

    Mr. Stevenson did not discuss these options with Mr. Tobin. 

33. Mr. Stevenson and Mr. Tobin met the next day (July 9, 2002) for lunch and Mr. Stevenson delivered to Mr. Tobin the letter of suspension (which was dated July 9, 2002).  Again at this meeting Mr. Tobin assured Mr. Stevenson that he was innocent.  Again Mr. Stevenson made a note to file of this meeting and discussion.
34. Mr. Stevenson met with Mr. Tobin one further time, when he attended Mr. Tobin’s home to deliver documents.  Again, during the course of this visit, Mr. Tobin assured him that he was innocent; there was no substance to the charges, and that the whole matter was as a result of her (HM’s) wrongful attitude towards him.
35. Mr. Stevenson never discussed any aspect of the position description of the Deputy Warden with Mr Tobin in connection with the events which led to discharge.  Mr. Stevenson made no attempt to obtain information from Mr. regarding the impact of those events on the performance of my duties.
36. Mr. Stevenson will agree that he has a notoriously poor memory, hence the reason he would make notes and place them on files.
37. In Mr. Stevenson’s view, at the time of the termination of Mr. Tobin’s employment, the only change in circumstance was the fact that he had pled guilty and had been convicted.  Mr. Stevenson did not talk to Mr. Tobin regarding the impact of the events on his duties prior to the termination of his employment.
38. Mr. Tobin stated that he believed his behaviour was not “criminal” and he did not commit the acts.  He confirmed that he did state this to both Mr. Stevenson (and later to Ms. Stableforth).  He also agrees that he likely said this to other individuals as well.  Mr. Tobin has no recollection of ever being asked why he was taking that position.
39. With respect to the criminal charges, Mr. Tobin confirms that he did indicate at the time that he was not guilty or that he would be exonerated of the charges.  Mr. Tobin said this because he believed that he did not commit the acts.  When Mr. Stevenson and Mr. Tobin had lunch together, Mr. Tobin repeated that he thought that he was not guilty and Mr. Stevenson said that he believed him.  Mr. Tobin could not predict the future but in his own mind he had not committed the offence.  He therefore thought that he would be exonerated.
40. According to Mr. Tobin, the personal impact of the charges on him was overwhelming.  He was in shock and felt trauma.  This included the fact that he spent one night in custody in the police station in Kingston and two nights at  the Quinte Detention Centre.  These events were overwhelming and exceptionally difficult.
41. According to Mr Tobin, there was also an impact on Mr. Tobin’s family, particularly his wife and children.  They suffered embarrassment, media coverage, as well as denigration of his reputation and career.  In many cases, friends discontinued contact with him.
42. Mr. Tobin does not recall any discussion of his duties with senior managers following these charges.
43. Mr. Stevenson was not involved with respect to the discipline of Mr. Tobin.
44. Nancy Stableforth was the Deputy Commissioner for the Ontario Region of the CSC. Ms. Stableforth was called to the Bar in 1980. A Deputy Commissioner is equivalent to an Assistant Deputy Minister. As Deputy Commissioner for the Ontario region, Ms. Stableforth was responsible for 13 institutions, which included the RTC and the CBI.
45. Ms. Stableforth reported to the Commissioner of Corrections directly and all wardens in the Ontario Region reported directly to her.  Ms. Stableforth had two Assistant Deputy Commissioners who reported to her.
46. Ms. Stableforth, as the Deputy Commissioner, was responsible for all operations in the region including the implementation of national and regional policies, budgets, programs and services, all employees, all inmates (approximately 3600); as well as all federal corrections in the Territory of Nunavut. The programs and services she was responsible for included Psychological Services.
47. Ms. Stableforth was the Regional Deputy Commissioner for Ontario for just under 8 years and has been with the Correctional Service for 14 years.  Prior to being the Regional Deputy Commissioner she was the Deputy Commissioner for Women.
48. Ms. Stableforth had no background in psychology and relied on the expertise of others.  She has no background or expertise in the area of measuring public opinions, conducting polls, or education in statistics.
49. Ms. Stableforth learned of Mr. Tobin’s arrest by reading the newspaper articles that were found in the Kingston Whig Standard (undated) entitled “Deputy Wardern accused of kidnap”, and the Ottawa Citizen (dated July 11, 2002) entitled “Acting Collins Bay  Warden Faces Stalking Charge”.  At the time she was not the Deputy Commissioner for Ontario, and was appointed to that position subsequent to Mr. Tobin’s arrest and suspension.
50. On July 25, 2002, an Administrative Investigation into Mr Tobin’s arrest and the criminal charges against him, was convened by Assistant Deputy Commissioner of Operations Lou Kelly. An Investigation Report was produced dated September 10, 2002.  Both Mr Tobin and HM refused to provide any information surrounding the events of July 2, 2002 involving the arrest and charges.
51. Mr. Tobin admits that, with respect to the Administrative Investigation that was carried out subsequent to his arrest, which later resulted in the Report dated September 10, 2002, he did not provide any information to the investigators with respect to the event which led to the criminal charges, on the advice of his legal counsel.
52. Ms. Stableforth decided to put Mr. Tobin back to work after the initial arrest and administrative investigation was completed and after consulting the jurisprudence.  Ms. Stableforth was of the view that the criminal charges contained very serious allegations, however, Mr. Tobin had denied that the events had occurred, but also had not provided any information with respect to what had in fact occurred.  In her view there was not enough significant information for her to keep Mr. Tobin suspended. That being said, Ms. Stableforth was also of the view that the charges were too serious and the allegations contained in the charges were of such a nature that she could not return Mr. Tobin back to an Acting Deputy Warden position or to his substantive position in Psychological Services.  She also felt that if any subsequent investigation did happen, disciplinary action, up to and including termination, could occur. This was conveyed to Mr. Tobin by Ms. Stableforth in a letter dated November 20, 2002.
53. After Ms. Stableforth reviewed the Administrative Investigation Report and after she determined that Mr. Tobin would be returned to work, pending the outcome of the criminal proceedings, an unscheduled meeting took place between her and Mr. Tobin.  Mr. Tobin, upon learning that he would be returned to work pending the outcome of the criminal proceedings, waited outside Ms. Stableforth’s office at RHQ and upon her arrival requested to have a brief meeting with her to which she agreed.  Mr. Tobin assured Ms. Stableforth that he was innocent of the criminal charges and that he would be exonerated.  Prior to determining that Mr. Tobin should be returned to work pending the outcome of the criminal proceedings, Ms. Stableforth did not discuss the matter with Mr. Tobin.
54. Mr. Tobin was brought back to work while the charges were still outstanding.  Mr. Tobin was assigned to do some work under Ms. DeLaat’s supervision.  Mr. Tobin was not returned to work at CBI, RHQ or the RTC in the position of an Acting Deputy Warden, or as a psychologist. One task he was assigned to carry out as a special project and reporting to Ms. DeLaat was piloting the Management Control Framework with the management team at Frontenac Institution and as such was ahead of the other institutions because of that initiative.
55. Ms. DeLaat was pleased with the work done by Mr. Tobin on these projects as were other members of the management team, with respect to the project.  She also indicated that she had no concern with respect to his work performance during this period of time. With respect to the criminal charge, Ms De Laat was only concerned with respect to the fact that, when Mr. Tobin first arrived, she would want to make sure that there were no negative reactions. She said this did not affect the results of my performance.  Moreover, Ms De Laat said that, knowing of Mr. Tobin’s conviction, it would not affect her decision to hire him.
56. Mr. Tobin pled guilty to one of the charges on April 19, 2004. This is set out in the Plea and Sentencing. According to the Plea and Sentencing Transcript and Mr. Tobin, he pled guilty to Charge Count No. 5, being that:
    

    “ between and including the 1^st day of November 2001 and the 4^th day of July 2002, in the City of Kingston in the Province of Ontario, and elsewhere in the Province of Ontario he, knowing that HM is harassed, or being reckless as to whether HM is harassed, did without lawful authority engage in threatening conduct directed at HM, thereby causing HM to reasonably, in all circumstances fear for her safety,  and did thereby  commit an offence contrary to s. 264 (2) (d) of the Criminal Code of Canada.”

57. The other five charges against Mr Tobin were dismissed by the Court.
58. Mr. Tobin confirms that the facts that are set out between page 3, line 5 and page 7, line 4 of the Plea and Sentencing Transcript were accurate.  Mr. Tobin confirms that he:
    
    1. Attended HM’s home the evening of July 2, 2002;
    2. As of July 2, 2002 the relationship with HM had not yet ended
    3. When he attended at HM’s home, he found that she was not alone and she was with another gentleman, drinking wine with whom Mr. Tobin assumed she was carrying on a relationship;
    4. He departed from HM’s residence;
    5. He left several messages for HM on her answering machine.  During the course of those messages he called HM various degrading names;
    6. He went to his home and then left his home and got in his car and was headed in the direction of HM’s residence when he saw HM travelling in the opposite direction; wherein he turned his car around and followed HM;
    7. HM pulled her vehicle to the side of the road and he approached her vehicle on the side of the road and proceeded to verbally abuse HM in a degrading manner;
    8. HM was crying while he was speaking with her;
    9. He and HM proceeded to Tim Hortons and then Lemoines Point where they spent time there for an unknown period of time after which he returned HM to her vehicle;
    10. He returned to HM’s residence the following day and per chance met HM’s father at the house;
    11. He left further messages for HM that next day.
59. With respect to the Plea and Sentencing Transcript and the Agreed Statement of Fact, Mr. Tobin states that he did not believe that HM felt threatened by him but that he agreed she felt that way.  With respect to the whole of the transcript, in many instances, Mr. Tobin did not agree to specific facts but simply agreed that HM believed or felt that way.
60. According to Mr. Tobin, with respect to the extremely degrading and abusive language, HM also used that kind of language with him.  Mr. Tobin, at that time, felt angry, he was tremendously emotional, and felt that he was being played.
61. According to Mr. Tobin he went over to HM’s house on that evening because she had called him a couple of times that day.  Mr. Tobin knew that HM was feeling stressed and that she told him that she was meeting one of her girlfriends that evening.  To him, it didn’t seem right so he went to her home.  Mr. Tobin recognized that the vehicle there was not her girlfriend’s vehicle and so he called and asked who was there.  Mr. Tobin attempted to introduce himself but the person chose not to reciprocate.
62. According to Mr. Tobin he also left eight or nine non-threatening messages with HM the next day.  The gist of these messages was that he was concerned and that he wanted to determine whether HM was okay.  In fact, she called him twice the next morning.  He also received two pages from her at work indicating that she wanted to meet with him.
63. With respect to page 23 of the Plea and Sentencing Transcript, Crown counsel referred to a “difference of perception”.  Mr Tobin’s position during the Criminal proceedings as set out at page 23 was that he did not have the perception that HM felt threatened. He also agreed that it was a fact that she had that perception.
64. Mr. Tobin has no recollection of Mr. Stevenson or Ms. Stableforth talking to him directly about why he stated he was not guilty or why he believed he would be exonerated or why he pled guilty.
65. Ms. Stableforth saw the newspaper articles in the Kingston Whig Standard (undated) and the National Post (April 22, 2004) with respect to the plea.  Ms. Stableforth wrote to Mr. Tobin on April 21, 2004, suspending him from work.
66. Ms. Stableforth, by letter dated April 23, 2004, invited Mr. Tobin to a meeting scheduled for April 28, 2004.  The purpose of the meeting was for Ms. Stableforth to provide Mr. Tobin with the information she had received and to provide him an opportunity to explain himself.  Mr. Tobin attended that meeting with his legal counsel, Mr. Smith.  During the course of that meeting, Ms. Stableforth testified that Mr. Tobin and his lawyer requested that the meeting be postponed and Mr. Tobin be allowed to contact a labour relations representative as Mr. Smith was a criminal lawyer and did not specialize in labour matters.  This request was granted by Ms. Stableforth and is evidenced by an email memo dated June 1, 2004. With respect to the letter dated April 23, 2004, Ms Stableforth would not state that she had already disciplined, i.e. suspended, Mr. Tobin.  However, she did admit that she had already made the decision to suspend him.
67. Mr. Tobin attempted to explain his actions regarding the guilty plea to Ms. Stableforth, however she told him that she did not want to “try this over again”, as she had accepted the decision of the Court.
68. No further meeting took place, however Mr. Tobin’s union representative Maria Dolenc forwarded a letter to Ms. Stableforth on Mr. Tobin’s behalf on May 4, 2004.
69. Mr. Tobin understood that the CSC’s mission was to encourage offenders to become law-abiding citizens, respecting the rule of law.  He also understands that it is part of his job to contribute to public safety, and to teach inmates so that they do not re-offend.
70. The job description of a PS-03 Psychologist is a generic job description for that position group and level and as far as Ms. Stableforth was aware, it was accurate as of 2002.  Mr. Tobin confirms that it accurately set out the duties and responsibilities of a PS-03.
71. Mr. Tobin agreed that as a psychologist he would:
    
    1. Conduct comprehensive psychological tests on inmates and assess inmates;
    2. Write up and reports on the treatment needs of inmates;
    3. Address issues of risk with respect to the inmate; the institution and the public;
    4. Provide counselling services to inmates;
    5. Teach, model and try and provide options to inmates to cope;
    6. Conduct his work in a team environment; it was multi-disciplinary including not just psychologists but nurses, social workers, case managers and correctional officers.
72. Mr. Tobin agrees that women offenders (with whom you may be dealing with on a professional level) might be manipulative.
73. As a Psychologist, working for the CSC, one would be often required to deal with offenders who suffer from a multiplicity of problems that include things such as personality disorders.  Mr. Farnworth indicated that psychologist’s deal with people who are manipulative, and often everyday would present a crisis to be dealt with and that it was part of the job of a psychologist to assess the behaviour of inmates and assist inmates in modifying their behaviour to have them ready to return to the community and keep them from re offending.
74. Ms. Stableforth determined that Mr. Tobin could not return to work as a PS-03 because the duties of a PS-03 were inconsistent with the behaviour he had exhibited that led to the criminal conviction.  As a PS-03 he was required to:
    
    1. Perform assessments and provide counselling to inmates;
    2. Conduct interventions with inmates;
    3. To challenge the behaviour of inmates and to assist them in coping with situations.
75. Ms. Stableforth is of the view that the psychologist’s duties and responsibilities are carried out based on their professional knowledge. Part of being able to have effective treatment of the inmate will be that the inmate respects the psychologist; that he is able to be a credible example; he must exhibit credibility and exercise judgement.  According to Ms. Stableforth, Mr. Tobin’s actions surrounding the incidents on July 2, 2002 raise concerns about his judgement and his ability to be a role model of appropriate conduct.
76. Ms Stableforth did not discipline Mr Tobin for harassing HM, as outlined in Standard 3 of the Code of Discipline of the CSC; she disciplined his actions as per Standard 2 of the Code of Discipline of the CSC and the letter of termination.
77. Mr. Tobin confirmed that he was familiar with both the CSC’s Standards of Professional Conduct and the Code of Discipline and had acknowledged receipt of them in writing when he commenced his employment with the CSC in August of 1988.
78. Standard No. 2 of the CSC Standards of Professional Conduct states:
    

    “Behaviour, both on an off duty, shall reflect positively on the Correctional Service of Canada and on the Public Service generally.  All staff are expected to present themselves in a manner that promotes a professional image, both in their words and in their actions.  Employee dress and appearance while on duty must similarly convey professionalism, and must be consistent with employee health and safety.”

    “The way in which employees speak and present themselves is an important part of a professional Correctional Service.  We lead by example.  As role models for offenders, staff are responsible for settling high standards which offenders can respect and emulate.  The use of abusive language, showing discourteousness towards other people and disrespect for their views, or other such behaviour will encourage offenders to act in the same manner, and so create an environment that is unfavourable to healthy interaction.  Staff must take care, both on and off duty, to present themselves as responsible law abiding citizens.”

    “Employees who commit criminal acts or other violations of the law, particularly if the offences are repeated or serious enough to result in imprisonment, do not demonstrate the type of personal and ethical behaviour considered necessary in the Service.  Accordingly, any employee who is charge with an offence against the Criminal Code or against other federal, provincial or territorial statutes must advise his or her supervisor before resumption of duties.”

79. Standard No. 2 of the CSC Code of Discipline states:
    

    “Infractions”:  An employee has committed an infraction, if he or she:

    - displays appearance and/or deportment which is unbecoming to an employee of the Service while on duty or while in uniform;

    - is abusive or discourteous by word or action, to the public, while on duty

    -  acts, while on or off duty, in a manner likely to discredit the Service;

    - commits an indictable offence or an offence punishable on summary conviction  under any statute of Canada or of any province or territory,  which may bring discredit to the Service or affect his or her continued performance with the Service;

    - fails to advise his or her supervisor, before resuming his or her duties, of being charged with a criminal or other statutory offence;

    - fails to account for, improperly withholds, misappropriates or misapplies any public money or property or any money/property of any other person(s) coming into his or her possession in the course of duty or by reason of his or her being a member of the Service

    - consumes alcohol or other intoxicants while on duty;

    - reports for duty impaired or being unfit for duty due to the influence of alcohol or drugs;

    - sleeps on duty

80. CSC Commissioner’s Directive 060, was issued on March 30, 1994 and is entitled the Code of Discipline.  The Directive reads as follows:
    

    Behaviour, both on an off duty, shall reflect positively on the Correctional Service of Canada and on the Public Service generally.  All staff are expected to present themselves in a manner that promotes a professional image, both in their words and in their actions.  Employee dress and appearance while on duty must similarly convey professionalism, and must be consistent with employee health and safety.

    An employee has committed an infraction, inter alia, if he or she: acts, while on or off duty, in a manner likely to discredit the service; commits an indictable offence or an offence punishable on summary conviction under any statute of Canada or of any province or territory  which may bring discredit to the Service or affect his or her continued performance with the Service;

81. Ms. Stableforth sent Mr. Tobin the Termination letter dated May 7, 2004 terminating Mr. Tobin’s employment which decision she had made.  Ms. Stableforth terminated Mr. Tobin for the following reasons:
    1. He contravened Standard 2 of the Standards of Professional Conduct;
    2. He committed an off-duty misconduct that was admitted through an agreed statement of facts as set out in the Plea and Sentencing Transcript dated April 20, 2004 ;
    3. He was responsible for the custody of offenders, and in the circumstances, the type of offence, in her view was quite serious;
    4. He displayed a pattern of continued behaviour, that displayed a lack of judgment;
    5. His actions brought discredit to the Service in public and media;
    6. Duties of his substantive position as a psychologist (PS-03) are in conflict with the conviction;
    7. With respect to the custody of inmates, he is to be a role model and abide by the law;
    8. Credibility and judgment are in question.  He can’t counsel offenders if he himself cannot control his behaviour.
82. With respect to the letter of May 7, 2004, Ms. Stableforth did not raise any of these issues (set out above) with Mr. Tobin prior to reaching this decision.  Mr. Tobin was not provided with any opportunities for training to correct any alleged deficiencies as a result of this conviction or provided an opportunity to look into other jobs.
83. Mr. Tobin was not provided with any training, courses, guidance, or counselling in connection with the charges that had been laid or how he would continue to work after the conviction.  The only exception to that was that Mr. Stevenson had offered an Employee Assistance Program option to him shortly after his arrest and bail.
84. Ms. DeLaat was aware that Mr. Tobin had pled guilty to one charge.  When questioned as to whether she could give or would give the particular work to Mr. Tobin (that had been given to him), having been convicted of a criminal offence; or would she take Mr. Tobin on for that work, Ms. DeLaat stated that if Mr. Tobin qualified through a regional selection process and assigned to her, she would not have any difficulty with that.
85. Ms. DeLaat, also, knowing Mr. Tobin had been convicted, if she had work that required inmate contact would not have any difficulty assigning Mr. Tobin to that work, if Mr. Tobin was qualified to do the work and that qualification was done through the regional selection process and he was available to do the work, she would not have any difficulty assigning him the work.
86. Mr. Farnsworth is a friend of both Mr. and Mrs. Tobin.   When Mr. Tobin was arrested, Mrs. Tobin came to his home quite upset that Mr. Tobin had been arrested.  He attended with Mrs. Tobin at the Quinte Detention Centre where Mr. Tobin was being held, pending his release.
87. Mr. Farnsworth was aware that Mr. Tobin had been having a relationship with a young woman who was not his wife. He had no part of the administrative investigation and had no part of the police investigation.  He did attend at the courthouse on the day that Mr. Tobin’s criminal trial was to commence, he did not attend inside the courtroom.  He was not aware of the specifics of the charges that had been made against Mr. Tobin.  He was told by Mr. Tobin he was innocent of the criminal charges, but did not discuss them with Mr. Tobin. Mr. Farnsworth and his wife remain friends with Mr. Tobin and his wife.
88. Ms. Stableforth agreed that one could be found guilty even when one claimed they were innocent.  Ms. Stableforth knew it was possible that Mr. Tobin could be convicted.  Ms. Stableforth agreed that, if an employee of CSC received a criminal conviction, it would not automatically lead to discipline.
89. Regarding the CSC Code of Conduct, Ms. Stableforth does not accept that imprisonment of an employee would be worse than a conviction in terms of the appropriate level of discipline.  Ms. Stableforth does accept, that imprisonment is an important factor to consider.
90. Ms. Stableforth accepted that the only standard in the CSC Code of Discipline which was alleged to have been violated by Mr. Tobin was Standard No.2.
91. Ms. Stableforth did not speak to Mr. Stevenson before deciding to terminate Mr. Tobin.
92. Ms. Stableforth admitted that the Administrative Investigation (September 2002) did not look at the impact of the charges and these events on the public.
93. Ms. Stableforth indicated that she had no issue with Mr. Tobin’s performance and agreed with the information contained in the memo she sent in August of 2003 to Human Resources with respect to the finding of an assignment for Mr Tobin pending the completion of the Criminal proceedings against him.
94. Ms. Stableforth did not talk to Mr. Tobin’s supervisors or colleagues regarding the impact of these events on his performance.
95. Ms. Stableforth never did a line by line comparison of the newspaper articles with the transcript of the criminal proceedings.
96. With respect to the impact of these events, Ms. Stableforth’s personal conclusions were based upon her understanding that the actions in question did not display the CSC in a positive or credible manner.  She conducted no polls and testified that she “did not terminate Mr. Tobin because of media coverage”.
97. Ms. Stableforth accepted that the incidents that took place in July of 2002 were off duty but stated that they had a connection to the workplace.  She did not discuss the connection to the workplace with Mr Tobin.
98. Ms. Stableforth’s recollection was that Mr. Tobin advised her that he ‘would be exonerated’ of the charges not that he advised her that he would ‘likely be exonerated’
99. With respect to the Victim Impact Statement of HM, read into the record at Mr Tobin’s Plea and Sentencing, Ms. Stableforth was not aware that Mr. Tobin or his counsel disputed or took issue with aspects of the Statement.With respect to the statement of Mr. Tobin’s lawyer to the Court that aspects of the Victim Impact Statement should be disregarded [page 18 of Exhibit E-2], she assumed that this referred to other employees.
100. Ms. Stableforth never gave Mr. Tobin a list of concerns or issues about the impact of the events which lead to his termination.  Ms. Stableforth did not discuss with Mr. Tobin the points raised in her termination letter.  Ms. Stableforth also did not have any discussion with Mr. Tobin’s Union representative over these matters.  Other than through the letters dated April 21, 2004 and April 23, 2004, Ms. Stableforth did not discuss with Mr. Tobin the points raised in the termination letter. 
101. On April 23, 2004, after Mr. Tobin’s Plea and Sentencing, Ms Stableforth wrote to Mr. Tobin suspending him from work pending a further investigation.
102. With respect to Mr. Tobin’s performance appraisals, Ms. Stableforth can’t say whether she looked at them prior to Mr. Tobin’s termination.  Ms. Stableforth did not look at any other jobs for Mr. Tobin prior to his termination in the spring of 2004.
103. With respect to the question of rehabilitation, and the Guide to Staff Discipline and Non-Disciplinary Demotional or Termination of Employment for Cause, Ms Stableforth did not look at any specific steps but was influenced by the event in and of itself and did not look into the future.
104. Following his termination, Mr. Tobin received a position as a psychometrist with Developmental Services of Leeds and Grenville. In this job, he administered and interpreted a variety of psychological tests to children, adolescents and adults.  The client population is referred there through the provincial ministry, and includes persons with developmental disabilities, severe learning disabilities, and pervasive developmental disorder. He has been involved with staff training, consultation of staff members, schools, parents, caregivers, workshops, discussing report findings, assisting teachers in developing and revising individuals’ education plans.  His employer knew about his criminal conviction before they offered him the position as he disclosed it in his interview.  He is not aware of any concerns.  He is also not aware of any performance difficulties as a result. His duties include interactions one on one with clients on a regular basis. He was advised by his employer that he was proceeding in the current position to a point where he would take over supervision of all psychological services at the Agency.  He never did because he was reinstated to CSC. He has worked in this position from November 29, 2004 until June of 2007, the date upon which he recommenced employment with the CSC as per the original decision of the PSLRB in this matter.
105. Regarding his role as a psychologist, Mr. Tobin’s view is that his conviction was not inconsistent with the mission of the CSC and that his role had not changed as a result.
106. Mr. Tobin completed his 18 months of probation without any problems and all conditions were met.
107. There was an impact on Mr Tobin due to his plea of guilty.  The plea of guilty provided relief to Mr Tobin as several serious charges were dismissed.  Mr. Tobin was concerned about his reputation, his family, his children and his career.

Dated at Kingston this 16^th day of February 2011.

[Sic throughout]