FPSLREB Decisions

Heard at Toronto, Ontario,
April 14 to 17, 2015.
(Written submissions filed May 6 and 19 and June 8, 2015, and March 7 and 29, 2016.)

REASONS FOR DECISION

I. Introduction

1        This grievance was filed pursuant to section 208 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA). The grievor, Shelley Hassard, was formerly Director of the Keele Enhanced Supervision Unit, commonly referred to as the “Keele Community Correctional Centre” (“Keele Centre”), in Toronto, Ontario, of her former employer, the Correctional Service of Canada (“the Service” or “the employer”). Her position was classified at the WP-06 group and level and was managerial.

2        In 2011, some of the grievor’s actions came to be investigated by a board of inquiry, which had been appointed as a result of a complaint made under the Public Servants Disclosure Protection Act (S.C. 2005, c. 46; PSDPA), sometimes referred to as whistleblower protection legislation. As it evolved over time, the investigation came to focus primarily on the grievor’s actions in late 2010 and early 2011, following the arrest of an offender and former resident of the Keele Centre (who shall be referred to as “Mr. AB” as his identity is not relevant and necessary to support the reasons for this decision) for a violation of his long-term supervision order. The investigation eventually resulted in a report dated August 25, 2011 (“the Final Report”, Exhibit G-1, Tab 1).

3        The Final Report (Exhibit G-1, Tab 1) was reviewed by Lori MacDonald, then Acting Regional Deputy Director (Ontario) of the Service, in its Kingston office. She solicited the grievor’s response to the Final Report’s findings and recommendations. Ms. MacDonald decided that discipline was in order. About this time, the grievor retained counsel, Stephen Moreau. Ms. MacDonald, the grievor and Mr. Moreau entered into discussions with respect to a possible resolution of the matter, which eventually failed.

4        On October 14, 2011, Ms. MacDonald disciplined the grievor by demoting her to the non-managerial position of Ontario Senior Project Officer, at the AS-04 group and level and at a different office of the Service in Toronto. The grievor chose to retire on October 21, 2011, rather than accept that position. She then filed this grievance on November 17, 2011.

5        In her grievance, the grievor alleged the following, among other things:

a. she was unjustly disciplined and unjustly demoted;

b. her demotion amounted to a constructive dismissal;

c. she was unfairly treated by the Service and by the investigation; and

d. the Service breached an agreement it had entered into with her, as follows (Exhibit G-1, Tab 35):

Contract entered into, and offer made, for an option whereby the grievor could retire in exchange for no discipline being imposed; however, Correctional Services Canada reneged on the terms of this contract and offer and attempted to make the grievor’s retirement conditional on her signing a Full and Final Release of all rights in order to obtain the removal of discipline.

6        The grievor later added the argument that her retirement on October 21, 2011, had not been voluntary but had instead been coerced by the employer.

7        The hearing of this grievance was held is three distinct parts.

8        The first part of the hearing involved an application by the grievor’s counsel to sever and determine certain issues first, which I decided to grant. I decided to hear and determine three questions before proceeding on the merits on the case. In brief, they were (see Hassard v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 29 (“Hassard No. 1”)):

a. whether the common-law doctrine of constructive dismissal applies to grievances governed by the PSLRA;

b. whether the grievor’s resignation or retirement was coerced; and

c. whether I was bound to accept as binding the findings in the Final Report (Exhibit G-1, Tab 1).

9        In due course, those questions came before me at the second part of hearing, which focused primarily on the grievor’s argument that her demotion had in fact been a termination by way of the doctrine of constructive dismissal; see Hassard v. Treasury Board (Correctional Service of Canada), 2014 PSLRB 32 (“Hassard No. 2”).

10        Eventually, I questioned whether the doctrine of constructive dismissal has any role to play in employment contracts in the public sector. Even if it has, on the facts, it could not be said to have applied in the grievor’s case. I also ruled that her subsequent retirement was voluntary rather than (as she had argued) coerced. Finally, I ruled that, albeit with some reservation, despite her resignation, she was entitled to file a grievance with respect to events — in particular, the disciplinary demotion — that took place before her retirement. Accordingly, she was entitled to continue with her grievance to the extent that it dealt with the employer’s decision to impose a disciplinary demotion on her in October 2011.

11        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the new Board to replace the former Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the PSLRA as the PSLRA read immediately before that day.

12        The grievor elected to proceed with her grievance. At some point after making that choice, she retained new counsel, Mr. Fisher, who represented her at the third part of the hearing, which took place in April 2015. The principal issues at that part of the hearing were twofold, as follows:

a. Did the employer have grounds to discipline the grievor, and, if so, was the discipline imposed reasonable in the circumstances?

b. If the discipline was not reasonable, did I have the power to grant damages, and, if so, on what basis and to what amount?

A. Motion for the production of an unredacted copy of the Final Report

13        I should note that the grievor’s counsel made a motion for an order requiring the employer to deliver to him an unredacted copy of the Final Report (Exhibit G-1, Tab 1). He argued that in redacted form, the Final Report was difficult to read because of its redactions, which made it difficult for him to craft a defence to the allegations made in it. The employer opposed the motion on the grounds that the witnesses had been promised confidentiality, which in general is mandated by the PSDPA.

14        The motion was heard on a conference call on March 31, 2015. For reasons to be issued later, I made the following direction on April 7, 2015:

Having considered the submissions of counsel on March 31^st, and for written reasons to be delivered in due course, the following order is made with respect to the investigation report:

(1) The Respondent Employer will make six copies of the *unredacted* report;

(2) Two copies of the unredacted report are to be delivered to Mr. Fisher for use by him and his client Ms. Hassard by Thursday, April 9^th, on the undertaking of Mr. Fisher and Ms. Hassard that they will *not* make copies of the report, and that they will not distribute the unredacted report, nor discuss its contents, with anyone other than themselves, and on their further undertaking to return both copies of the unredacted report to Mr. Fader upon the completion of the hearing;

(3) Two copies of the unredacted report are to be brought to the hearing, one for use as an exhibit *if* the report is entered into evidence, and one for the use of the adjudicator in the event that the report is entered into evidence;

(4) Two copies of the report may be used by Mr. Fader and his instructing client;

(5) In the event the unredacted copy of the report is entered into evidence at the hearing it will be subject to a non-disclosure order [for the same reasons noted in 2014 PSLRB 32 at paras. 8-10];

(6) Whether a copy of the unredacted report is in fact entered into evidence will be determined following submissions on the point at the hearing.

[Emphasis in original]

15        My reasons for granting that order were twofold.

16        First, and despite the PSDPA’s general confidentiality provisions, nothing in the PSDPA forbids releasing an unredacted copy of an investigation report. Section 44, which provides for the confidentiality of an investigation, is premised with the words, “[u]nless the disclosure is required by law or permitted by [the PSDPA] … .” Paragraph 51(a) then provides the following:

51. …nothing in this Act is to be construed as prohibiting

(a) the presentation of an individual grievance under subsection 208(1) of the Public Service Labour Relations Act … .

17        Paragraph 22(d) of the PSDPA also speaks of the Public Sector Integrity Commissioner’s duties to “… ensure that the right to procedural fairness and natural justice of all persons involved in investigations is respected, including persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings … .” But procedural fairness and natural justice are concepts most often — and most properly — applied and necessary for people against whom allegations are made — not the witnesses and not the complainants.

18        Taking section 44 and paragraphs 51(a) and 22(d) of the PSDPA together, it was my conclusion that nothing in the PSDPA prohibits an adjudicator under the PSLRA from making whatever disclosure order is necessary to ensure that a grievor’s rights to procedural fairness and natural justice are respected.

19        Second, the judicial authorities support such a conclusion. For example, in Marchand v. Public Sector Integrity Commissioner, 2014 FC 329, the Federal Court concluded that the principles of natural justice and procedural fairness weighed in favour of releasing to the person against whom the allegations were made a copy of an investigative report, despite the PSDPA’s confidentiality provisions. In El-Helou v. Courts Administration Service, 2012 FC 1111, the Federal Court noted in passing that procedural fairness in the context of that case warranted providing to the person against whom the allegations were made at the very least a summary of the information gathered by the investigator appointed pursuant to the PSDPA.

20        Taking these two principles to heart, it was my opinion that the direction of April 7, 2015 struck an appropriate balance between the grievor’s rights to procedural fairness and the confidentiality expectations of the witnesses that the board of inquiry interviewed. The direction limited the disclosure to the grievor and her counsel and required the return of the Final Report (Exhibit G-1, Tab 1) at the conclusion of the matter. It also left in abeyance the issue of whether the unredacted report would become an exhibit (and hence possibly public). As it turned out, the grievor’s counsel decided that it was not necessary to make the report an exhibit. So, both confidentiality and procedural fairness were upheld.

B. Collateral procedural issues

21        Two other procedural wrinkles appeared in this case.

22        First, during the course of the third part of the hearing, counsel for the grievor raised a new issue. Relying in part on evidence the grievor said that she had learned for the first time at the third part of the hearing, and in part an argument that she had received bad legal advice from her previous counsel before her retirement, Mr. Fisher advised of his intention to move for an order that my ruling in Hassard No. 2 that the grievor’s retirement was voluntary be set aside. I decided that I would receive written submissions with respect to the motion after the hearing. Counsel for the grievor subsequently made that motion by way of submissions dated May 5, 2015. Counsel for the employer responded in submissions dated May 19, 2015. Counsel for the grievor replied in submissions dated June 5, 2015.

23        Second, Mr. Fisher’s notice of motion gave rise to an issue involving solicitor-client privilege and involving, in particular, whether the grievor’s decision to waive privilege with respect to certain advice she received from her former counsel on October 17, 2011, could be limited to that date (as her counsel submitted), or whether the waiver had to cover a longer period (as counsel for the employer submitted). The advice in question was contained in an email that was entered into evidence as Exhibit G-31.

24        On this point, I ruled that if the grievor were to waive privilege with respect to the advice she received, it had to be for the period from October 6, 2011, to November 10, 2011. Having put the issue of her legal advice in issue, she could not cherry-pick the correspondence that she would reveal. Whatever advice she received, she received it in an overall context of discussions that took place between her and her counsel over that period. That being the case, she had to disclose it all, and I so ordered. Her counsel then reviewed the file and then produced, overnight, to the employer’s counsel, copies of correspondence between the grievor and her previous counsel between the dates at issue, which were entered as Exhibits G-31 to G-36 and G-38 to G-42.

II. Summary of the evidence

25        On behalf of the employer, I heard the testimony of the following witnesses:

a. Ms. MacDonald;

b. Michael Toole, who in late 2011 was a parole officer supervisor working out of the Service’s Toronto West Office and who interviewed Mr. AB at the Don Jail in Toronto following Mr. AB’s arrest for violating his long-term supervision order in November 2010; and

c. John Sleziak, an investigator with the Service who had been seconded to the board of inquiry to assist in the investigation and in preparing the Final Report (Exhibit G-1, Tab 1).

26        On behalf of the grievor, I heard the testimony of the following witnesses:

a. her; and

b. Craig Townsend, who at the material time was Associate District Director for the Central Ontario District of the Service.

27        With a very few exceptions, there was little if any disagreement amongst the witnesses as to the facts. The differences that did arise had much more to do with how the witnesses interpreted certain events or with what they or others ought to have done. That being the case, I do not propose to summarize the testimony of each witness. Instead, I will set out the evidence and my findings of facts based on it, unless I indicate to the contrary.

28        A number of exhibits, in addition to those already entered during the second part of the hearing, were introduced into evidence at the third part of the hearing.

A. The Keele Centre

29        Community Correctional Centres are divisions within the Service. They are classed as minimum-security institutions but, as the grievor testified, are somewhat akin to halfway houses. They are located in communities and often have community members sitting on advisory committees. The Community Correctional Centres are designed to house offenders who are considered high risk (generally those convicted of sex offences or with mental illness) who have been placed on statutory release with residency conditions or are on long-term supervision orders with residency conditions. The purpose of the Community Correctional Centres is to assist these kinds of offenders to make the transition from institutional incarceration to parole — or freedom — in the outside community.

30        Sometime after the grievor’s arrival at the Keele Centre, the facility was reorganized as an enhanced supervision unit (with her as the director) — it consisted of two “divisions.” The first was the Keele Centre, which acted as a form of halfway house. Offenders were required to live in residence. They could go out into the community for specific purposes (such as for a job or to attend school) but had to report to the Keele Centre at specified times. The second was the Keele Team Supervision Unit, which was designed for offenders who were permitted to live in the community but who were still subject to close supervision by the Keele Team Supervision Unit. (I will continue to refer to the facility as the Keele Centre unless it is necessary to identify a particular division.)

31        The grievor testified as to her long history of employment with the Service. Much if not all of that time had been spent in what she termed the rehabilitative, as opposed to the incarceration, side of the Service. She had early on worked as a parole officer. In that capacity she had often written informational letters to the court regarding particular offenders. She had also on at least one occasion conducted an investigation on her own that had led to the arrest of an offender. That had led to her being awarded the Golden Jubilee medal.

32        The grievor testified that when she arrived at the Keele Centre in 1999, its relations with the surrounding community were poor. The police were suspicious of it. Community members held protests objecting to its presence (and of its resident offenders) in their neighbourhood. Members on the Keele Centre’s citizen’s advisory committee did not believe in the Keele Centre’s rehabilitation project, resulting in numerous leaks to the press, carrying with it negative publicity for the Keele Centre and for the Service as a whole.

33        The grievor began to rehabilitate the Keele Centre’s standing in the community. She recruited community members to the Keele Centre’s citizen’s advisory committee who were sympathetic to the goals of rehabilitation. She held tours of the facility. She met with local police. As this process of rehabilitation continued, she found that art, in both its production by offenders and its display, had a positive impact on the offenders as well as the public. Murals were painted on the walls. Offenders’ art was displayed, and they began to take pride in their surroundings and their work. Community members who toured the facility and saw the art, as the grievor testified, would see what she saw, in her words, “that offenders are defined not just by their crimes, but are people with multiple sides.”

34        The grievor testified that this focus was part of her attempt to transform the Keele Centre from an institution to a home for the offenders. She stated that she wanted “to instill a sense of pride in the men, to give them ownership of how their home [i.e., the Keele Centre] looked.” It gave her and the staff a discussion point in their communication with the offenders that was not related solely to their casework. It also kept the offenders busy and engaged in a way that watching TV did not. She found that vandalism at the facility decreased and stated that “the men were proud of their work.” And as the art — and the facility’s encouragement of it — grew, it began to attract outside attention. Local politicians, both provincial and federal, would tour the facility. Crown attorneys, judges and international delegations from China, South Africa and Europe would come to see the facility and what was taking place there.

35        Ms. MacDonald once toured the facility along with the Honourable Vic Toews, then the Solicitor General of Canada. The Keele Centre had become, in the grievor’s words, “a showpiece for the Service.”

B. Mr. AB

36         Mr. AB had a history of offences, including four convictions for sexual assault. Most if not all of them coincided with the use (or abuse) of alcohol. In 2006, he was convicted of sexual assault and of failing to comply with a probation order. He was sentenced to a term of three months (in addition to the two years he had spent in pre-trial custody). He was also given a seven-year long-term supervision order, which commenced on January 14, 2007.

37        Long-term supervision orders are non-custodial sentences. Their purpose is to extend the period of supervision and support that the Service can have over — or provide to — offenders. Long-term supervision orders begin after an offender has completed his or her sentence. They are issued to offenders considered at a high risk to reoffend if they are not effectively supervised in the community. They generally have conditions attached that if breached by the offender may result in the offender being arrested and charged with breaching one.

38         Mr. AB was transferred to the Keele Centre in 2007. He took up art while there and became one of its recognized artists. He was in the Keele Enhanced Supervision Unit first for two years. He then moved to the Keele Team Supervision Unit for an additional year (Exhibit G-1, Tab 1, page 91). He began attending a local art college outside the facility, returning to the Keele Centre after classes were over. His development and attitude had progressed to the point that on October 25, 2010, he was transferred out of the Keele Centre to the Toronto West Office’s supervision. He was then under the Toronto West Office’s jurisdiction, not that of the Keele Centre. Mr. AB was still being supervised, in the sense that he still had to report to a parole officer (one operating out of the Toronto West Office), but it was at a reduced level to that of the Keele Team Supervision Unit. He was able to live in the community while reporting to his parole officer at the Toronto West Office. He moved in with his girlfriend.

39        On November 13, 2010, roughly three weeks after his transfer to the Toronto West Office’s supervision, Mr. AB was arrested for having violated two of the terms of his long-term supervision order. Those terms prohibited him from consuming alcohol and from being in places where alcohol was served (unless in the course of employment). The result of this breach of parole was that his long-term supervision order — and hence his right to be out in the community under supervision — was suspended. Once his long-term supervision order was suspended, he was no longer entitled to be free and had to return to some form of security institution within the Service.

40         Mr. AB was placed in the Don Jail following his arrest. Mr. Toole testified in cross-examination that at that point, Mr. AB’s Toronto West Office parole officer had three options. He or she could cancel the suspension of the long-term supervision order, recommend returning the grievor to a Community Correctional Centre or recommend to the Parole Board of Canada that a charge be laid against him for breaching the terms of his long-term supervision order.

41         Mr. AB was anxious to have a parole hearing as soon as possible. His exam date at the art college was fast approaching. He was concerned that if he missed it, he would lose the three years he had spent at the school while he was under the Keele Centre’s jurisdiction.

42        The grievor first learned of Mr. AB’s incarceration indirectly, when Jim Traynor, the chief warrant officer at the Keele Centre, advised her that Mr. AB had called him from jail and had asked him to ask the grievor to ask the Toronto West Office parole officer to interview him as soon as possible. This was on a weekend, and Mr. AB hoped to have his long-term supervision order suspension lifted so that he could take his exam. The grievor testified that she told Mr. Traynor to tell Mr. AB to call the Toronto West Office because Mr. AB was no longer supervised by the Keele Enhanced Supervision Unit. Mr. AB persisted in calling the grievor, who redirected him a number of times to the Toronto West Office. However, a number of times Mr. AB called the Keele Centre and was put through to the grievor. She agreed that she spoke with him on those occasions.

43        Mr. Toole and Mirela Samson, a parole officer at the Toronto West Office, visited Mr. AB in the Don Jail, in Toronto, on November 19, 2010. They cautioned him as to his rights. Mr. AB admitted that he had breached a term of his long-term supervision order and acknowledged the seriousness of what he had done (Exhibit G-20, page 2). However, Ms. Samson, who drafted the subsequent “Assessment for Decision” report dated November 26, 2010, did not appear impressed with Mr. AB’s sincerity (Exhibit G-20, pages 3 and 4). She wrote the following (Exhibit G-20, page 4):

Release Plan

The offender plans to return to reside with his girlfriend and resume his educational plans. He was willing to comply with any new release plan the [case management team] felt was appropriate if he was to be released. The [case management team] feel that the offender should return to the Keele Enhanced Supervision Unit on his next release as he will require ongoing monitoring and structure.

Assessment

The current [case management team] cannot condone the offender’s actions and believe that nature [sic] consequences must follow his behaviour. [Mr. AB] had just been given an opportunity to move forward with the new [case management team] and he assured the writer that he was, and has been fully committed to his sobriety and his parole conditions.

[Mr. AB] has blatantly violated two of his special conditions [about alcohol], returned to his offence cycle, displaying no remorse or insight despite the amount of community support and treatment/therapy available to him. His violations are considered to be serious and are directly related to his sex offending risk factors. Any progress [Mr. AB] has made in the past cannot over rule [sic] his current behaviour, and as stated above, it is highly unlikely that this was the only time he violation these conditions [about alcohol]. Several psychological assessments on file indicate that [his] static risk rating is high.

44        Based on that, Mr. Toole and Ms. Samson recommended pursuant to subsection 135.1(7) of the Corrections and Conditional Release Act (S.C. 1992, c. 20) that Mr. AB be charged with an offence under subsection 753.3(1) of the Criminal Code (R.S.C., 1985, c. C-46).

45        I pause to emphasize the case management team’s opinion that Mr. AB “… should return to the [Keele Enhanced Supervision Unit] on his next release as he will require ongoing monitoring and structure [emphasis added].” By recommending that Mr. AB return to the Keele Enhanced Supervision Unit, the case management team was in effect recommending his return to the Keele Centre. I have emphasized this point because, as shall be shown, the subsequent Final Report (Exhibit G-1, Tab 1) badly misinterpreted the case management team’s recommendation, which had serious consequences for the grievor.

46        Once the case management team recommended that Mr. AB be charged, jurisdiction over Mr. AB returned to the Parole Board of Canada. The Service continued to have some administrative responsibility in the sense that it would keep track of Mr. AB’s file and bail dates and so on. But its responsibility to supervise him as part of its case work ceased.

47        The next step in Mr. AB’s journey was his bail hearing. The grievor testified that the Service’s policy was not to take any position with respect to whether any particular offender should or should not obtain bail, or, if bail was granted, on what conditions.

48        Mr. Toole agreed that the responsibility for bringing a case involving a charge for breaching a long-term supervision order to court, to deal with the issue of bail or to remand in custody, lay with the Attorney General of Canada and not the Service (Exhibit G-23, para 54). He also agreed that a court could grant bail to an offender charged with breaching a long-term supervision order.

49        When cross-examined, Ms. MacDonald was not certain whether the responsibility for bringing a case involving a charge for breaching a long-term supervision order to court, to deal with the issue of bail or to remand in custody, lay with the Attorney General of Canada and not the Service, stating that she would have to take a look at the Service’s policies before she could answer.

50        Mr. Townsend testified as well on whether the responsibility for bringing a case involving a charge for breaching a long-term supervision order to court, to deal with the issue of bail or to remand in custody, lay with the Attorney General of Canada and not the Service. Now retired, he spent 40 years in community corrections with the Service. (Indeed, he continues to consult for the Service from time to time.) He testified that once an offender is charged with an offence, the parole officer’s jurisdiction over the offender ceases. He also testified that the Service does not take a position with respect to whether offenders who have been charged with breaching their long-term supervision orders should get bail.

51        Based on his testimony, I am satisfied that in a case like Mr. AB’s, the Service would not take a position on whether the offender should get bail. Its role, if any, is limited to providing information concerning the offender while he or she was under its supervision.

52        In late December 2010 and early 2011, the grievor had a series of email communications with Mr. AB’s counsel that dealt with a number of issues involving Mr. AB’s bail application, including which Community Correctional Centre in Ontario he might be transferred to if the Court granted bail, the Crown’s apparent attitude towards long-term supervision order violations and whether Mr. AB had been telling the truth about the circumstances of his alleged long-term supervision order violations (Exhibit G-1, Tab 1, pages 68 to 77). The grievor, who in early January 2011 appeared prepared to attend court, in her words, “if my being there would help” (Exhibit G-1, Tab 1, page 69), later changed her mind when she discovered (as a result of her own investigation by going to the bar where he had been arrested) that Mr. AB had not been truthful about the circumstances that had led to his arrest.

53        On December 17, 2010, the grievor drafted a letter on the Service’s letterhead. Directed to “To whom it may concern,” it referenced Mr. AB, “… who is before the courts facing two breaches of his [long-term supervision order]” (Exhibit G-1, Tab 1, page 64).

54        The December 17, 2010, letter began by stating that Mr. AB was well known to the Keele Enhanced Supervision Unit. He was first a resident of the Keele Centre and then was moved under the Keele Team Supervision Unit’s supervision. The letter explained the makeup of the Keele Enhanced Supervision Unit, which was that the Keele Centre was the residential unit and that the Keele Team Supervision Unit provided “… enhanced supervision services for those in the community who require a more intense form of support” (Exhibit G-1, Tab 1, page 64). After providing a detailed explanation of the Keele Enhanced Supervision Unit’s work and services, including its contacts with the community and the police, the letter described the role of art in the unit’s work with offenders. The letter then moved to a specific discussion of Mr. AB as follows (Exhibit G-1, Tab 1, pages 64 and 65):

While [Mr. AB] was on site he was an active participant in this outreach program, assisting with food drives, participating in the Junction Arts Festival, and creating impressive works of art that were hung on the walls of the centre that improved the atmosphere for residents, and staff and created a positive focus for the community members who regularly tour the site. [Mr. AB] was very helpful and enthusiastic in explaining his art to many visitors, and was a successful student at [Ontario College of Art and Design] during this period of time.

In that the [long-term supervision order] breach has been laid in this case, the Parole Board suspension has now lapsed and the criminal charge is processed like all others, with bail hearing and trial.

In the event that bail is granted in this case, this is to advise that [Mr. AB] would be welcome to return to our supervision—either with the less restrictive [Keele Team Supervision Unit], which would enable him to live in the community in his apartment under stringent supervision requirements, including curfew, or alternatively to life at the [Keele Centre] which is the halfway house. While residents have access to the community, it is carefully monitored and allowed for specific purposes such as attending school or employment.

I submit this information for the consideration of the courts. Residency at [Keele Centre] would need to be affirmed by a condition for residency imposed by the Parole Board of Canada (which would be arranged via our written submission), and would be dependent upon bed space availability. We have a limited number of beds (10) reserved for those with prior convictions for sexual offences.

[Sic throughout]

55        The grievor testified that she had showed a draft of this letter to Mr. Townsend for his review and approval. He testified that he recalled her expressing concern to him about whether Mr. AB’s bail hearing could be arranged in time to enable Mr. AB to continue with his art program. She was considering writing a letter to the Court in the event that bail was granted and asked Mr. Townsend what he thought about that. He stated that he told her that “as long as she was not acting as an obvious advocate, advising the Court as to whether there were beds available and providing information regarding [Mr. AB] would be fine.”

56        Mr. Townsend recalled that the grievor sent him a draft of the December 17, 2010, letter she was proposing to send. He reviewed it and stated that he had “one or two minor revisions.” Subject to those revisions, he approved the letter being sent. As far as he knew, the changes were made, and the letter was sent. He testified that he did not recall being shown the November 26, 2010 “Assessment for Decision” of the Toronto West Office (Exhibit G-20) at the time.

57        At the third part of the hearing before me, Mr. Townsend was shown a copy of the letter that the grievor eventually sent (Exhibit G-1, Tab 1, pages 64 and 65). To the best of his recollection, the letter was essentially the same as the draft he had seen. He was not able to recall what exactly his recommended changes had been, and he could not say whether the December 17, 2010, letter incorporated them. However, he testified that in any event, the December 17 letter had been acceptable. He testified that when the board of inquiry asked him about this incident in 2011, he prepared a written account of his recollection, which was entered as Exhibit G-30. He also testified that he had sent his account to Ms. MacDonald and stated that he was “sure” that he had told her that he had approved the grievor’s decision to send it.

58        On January 4, 2011, the grievor sent a long email to Mr. AB’s defence counsel detailing the history of the Keele Centre, its makeup, its staffing, its services, and the mechanisms it had in place to monitor and prevent offenders’ use of drugs and alcohol. The email concluded with the observation that “[w]ith these stringent measures in place we are able to address the needs of our population as they relate to substance abuse” (Exhibit G-1, Tab 1, pages 66 and 67).

59        During this time — that is, from December 2010 through January 2011 — Mr. AB would call the Keele Centre central switchboard and ask to be put through to the grievor. The grievor, who did not as a practice screen her calls, testified that she had repeatedly told him that he should be speaking to the two parole officers who were supervising him at the Toronto West Office and not to her. Nevertheless, she took his calls (which she put at about a dozen over this time), partly out of concern for his mental health and partly because she thought that she might assist him in realizing the errors of his ways. Mr. Toole testified that he was not aware that these calls to the grievor were taking place because they had not been entered in the computerized record keeping system that the Service used to keep track of offenders, their actions and their situations. He testified that such entries ought to have been made because it is important that the officers having direct supervision of an offender know what is going on with that offender.

60        I should note that the grievor testified that she had assumed that Mr. AB had spoken to the Toronto West Office, as she had told him to. However, she agreed — as she had admitted to the board of inquiry — that she had not recorded the calls into the computerized record keeping system and that it would have been better had she done so.

61        Mr. Townsend was also questioned during his testimony about the importance of accurately recording interactions between Service’s employees and offenders. He agreed that it is important but pointed out that it is to some extent a judgment call as to whether every interaction (such as a passing greeting in the morning) has to be recorded. He also noted that the computerized record keeping system at the time was cumbersome. He agreed that efforts had been made to bring home to Service’s staff the importance of record keeping, and that the grievor, as part of management, would have known of both the need to keep accurate records and the need to improve the Service’s overall general level of record keeping.

62        At some point in late December 2010, the grievor learned that Mr. AB was also using some of his calls to her to initiate three-way calls through the unit’s security booth, and she put a stop to it by email of December 31, 2010 (Exhibit G-1, Tab 1, page 28).

C. Board of inquiry

63         Mr. AB was in due course released on bail back to the Keele Centre on January 10, 2011 (Exhibit G-1, Tab 1, page 50). It appears that at least some of the staff did not approve, because a day later, on January 11, 2011, someone complained to Carla Di Censo, who at the time was Director, Office of Internal Disclosure, at the Service’s national headquarters. The complainant alleged (Exhibit G-1, Tab 1, page 3) that the grievor.

a. had “… an inappropriate relationship with [Mr. AB]”;

b. had been treating Mr. AB preferentially since 2007;

c. had “inappropriately involved herself” in Mr. AB’s case following his arrest for violating his long-term supervision order, even though he was no longer within the Keele Enhanced Supervision Unit’s jurisdiction; and

d. had written “… an inappropriate letter to the court in an effort to facilitate [Mr. AB’s] release on bail to the [Keele Centre], despite knowing that the supervising Case Management Team had assessed that [Mr. AB’s] risk to offend could no longer managed [sic] within the community.”

64        I again pause to note that the existence of some disagreement — perhaps even tension — between the grievor and some of the Keele Centre staff had been evident for a few years before these events. For example, her performance reviews, while otherwise outstanding, did note in 2004-05, 2007-08, 2008-09 and 2009-10 the existence of some strained communication issues and personality conflicts between the grievor and some of her staff (Exhibit G-1, Tab 1, pages 11 and 12). (While noted in the Final Report (Exhibit G-1, Tab 1), it appears that the board of inquiry did not take it into account when it weighed the complaints.)

65        Ms. Di Censo conducted telephone interviews with the complainant and two other witnesses on January 12 and 17, 2011. They all alleged that the grievor had “an inappropriate relationship” with Mr. AB. One also suggested having been asked by the grievor to seek to influence the Toronto Police Service to help Mr. AB obtain bail. Another added that the grievor had directed the use of a Service’s vehicle to move the personal property of Mr. AB’s girlfriend. All three alleged that the grievor gave Mr. AB preferential treatment. They said that that treatment included working too closely with Mr. AB’s defence counsel after Mr. AB’s arrest for his parole violation. In addition, two pieces of correspondence that had been prepared by the grievor — the December 17, 2010, letter and the January 4, 2011, email correspondence to Mr. AB’s defence counsel — were provided to Ms. Di Censo by District Director David Pisapio, to whom the grievor reported (Exhibit G-1, Tab 1, pages 3 to 5).

66        This information led Ms. Di Censo to recommend to the Service’s senior officer for disclosure that a formal investigation under the PSDPA be convened (Exhibit G-1, Tab 1, page 6). A board of inquiry under the PSDPA was then convened on January 19, 2011 (Exhibit G-1, Tab 1, page 9). Mr. Sleziak was assigned to the board of inquiry to assist in its investigation.

67        As set out at page 7 of the Final Report (Exhibit G-1, Tab 1), the board of inquiry was tasked with reviewing three “global issues,” as follows:

a. whether the grievor failed to avoid a conflict of interest in her relationship with Mr. AB;

b. whether the grievor provided benefits and personal favours to Mr. AB and his friends; and

c. whether the grievor encouraged, counselled or directed one or more persons working as employees, volunteers or providing services for the Service to commit wrongdoing as defined under section 8 of the PSDPA.

68        Section 8 of the PSDPA defines “wrongdoing” as one of the following:

8. …

(a) a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act, other than a contravention of section 19 of [the PSDPA];

(b) a misuse of public funds or a public asset;

(c) a gross mismanagement in the public sector;

(d) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant;

(e) a serious breach of a code of conduct established under section 5 or 6; and

(f) knowingly directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e).

69        The board of inquiry was also tasked (Exhibit G-1, Tab 1, pages 7 and 8) “… with determining the accuracy of and the complete circumstances around the following specific issues …” that for readability I have summarized as follows rather than quoting:

a. whether the grievor had an inappropriate relationship with Mr. AB;

b. whether the grievor encouraged a specific person to assist Mr. AB to obtain bail;

c. whether the grievor asked a specific person to use personal influence with another specific person to assist in obtaining Mr. AB’s bail;

d. whether the grievor encouraged a specific person as well as someone else to assist Mr. AB to obtain bail by acting as character witnesses on his behalf;

e. whether the grievor directed a specific person to facilitate unauthorized three-way telephone calls between the grievor, Mr. AB and a third party while Mr. AB was incarcerated;

f. whether the grievor misused government assets when she authorized Mr. AB to store furniture, beyond that which is normally permitted by Service’s policy, at the Keele Centre;

g. whether the grievor attempted to misuse government assets when she authorized the use of a Service’s vehicle to transport the personal property of Mr. AB and of his girlfriend for purposes not related to Mr. AB’s correctional plan; and

h. whether the grievor directed a specific person and someone else to use a Service’s vehicle to transport the personal property of a person who was not under the care or control of the Service, namely, Mr. AB’s girlfriend.

70        Finally, at page 8 of the Final Report (Exhibit G-1, Tab 1), the board of inquiry was to make “… any recommendations it considered appropriate and which may contribute to the effective resolution and/or prevention of similar occurrences in the future.”

71        As detailed in Hassard No. 2, the investigation proved very stressful to the grievor. She was interviewed five times about allegations made by people whose identities were not revealed to her. Neither she nor her support person was allowed to ask questions or challenge the information that the unnamed sources had provided to the board of inquiry.

72        Further, part of the grievor’s difficulty during that time stemmed from the sprawling nature of the board of inquiry’s investigation. As explained at page 48 of the Final Report (Exhibit G-1, Tab 1), the board of inquiry decided on its own volition to expand its investigation into areas that did not form part of its original convening order:

The issues identified below did not form part of the original convening order, however, the [board of inquiry] has the right and responsibility to accept any and all information received during the course of the investigation in order to come to a full understanding of the matters under investigation.

73        Those “issues” included the following (Exhibit G-1, Tab 1, pages 48 to 59):

a. posting artwork within the Keele Centre that some staff perceived as sexually suggestive or violent;

b. inappropriately sharing and transmitting Protected B information about Mr. AB to someone else;

c. approving the purchase and use of tattoo equipment at the Keele Centre;

d. offering to donate $60.00 to someone for art supplies who could in turn give them to an offender at the Keele Centre;

e. allegedly minimizing offenders’ crimes and their risks to reoffend; and

f. disagreeing with a parole officer’s recommendations with respect to another offender.

74        The grievor received a copy of the board of inquiry’s lengthy draft report on April 29, 2011. She was initially provided with only an hour to review it. She asked for more time and was provided with an additional week. She provided a long and detailed response, portions of which found their way into the Final Report (Exhibit G-1, Tab 1), which, totalling 109 pages, was released on or about August 25, 2011. It concluded that a number of the allegations had been “founded.” It made a number of recommendations, one of which was that the grievor was to be required to attend a disciplinary hearing “… to examine her serious misconduct … [and given her] serious misconduct and her refusal to recognize the appropriateness [sic] of her actions, it [was] recommended that appropriate disciplinary action be taken” (Exhibit G-1, Tab 1, page 62).

75        The Final Report (Exhibit G-1, Tab 1), in its redacted form, eventually ended up on Ms. MacDonald’s desk. She interviewed the grievor about the conclusions contained in it. She did not conduct any independent investigation of her own. She simply asked the grievor for her response to the Final Report’s conclusions with respect to the allegations that had been made against her. By then, the grievor had retained counsel (Mr. Moreau). Both he and the grievor engaged in active negotiations with Ms. MacDonald in an attempt to avoid both discipline and the serious impact the release of the Final Report’s conclusions might have on her reputation. At one point, they discussed the possibility of the grievor resigning “with her head high” rather than continuing as a Service’s employee under the cloud that discipline as a result of the Final Report might bring. But that option did not come to pass. Instead, Ms. MacDonald imposed discipline by way of a demotion.

76        The operative passages of the discipline letter dated October 14, 2011, are set out as follows (Exhibit E-2, Tab 9):

In your investigation interviews and the disciplinary hearing, you have acknowledged that you failed to report any communications between the defence attorney [for Mr. AB] or a specific offender. You have also acknowledged that you had numerous three way (Collect) telephone conversations with the above-mentioned offender. You admitted to directing the use of Government of Canada Motor Vehicle to transport the personal property of the offender’s girlfriend. Your behaviour in allowing an offender to benefit from the sale of artwork by taking $900.00 from the ‘Pop Fund’, and your continual denial that the offender did not gain from this does not reflect those values; as a result that trust had been damaged. By doing so you breached section 5 of the [Service’s] code of discipline and the Values and Ethics code of Public Service. These wilful actions placed you in a position of conflict of interest.

I concur with the findings of the investigation in that you became overly involved in the case of a specific offender when he was the responsibility of another jurisdiction, you worked with the defence attorney to support release on bail, you mislead [sic] the courts into believing that [the Service] supported the return of the offender to the community when in fact the [Service] opposed his release as he was deemed a risk to public safety.

Having carefully reviewed the facts and circumstances in this case, including your comments, I have concluded that your actions have violated Standards 4—Relations with Offenders, of [the Service]’s Standards of Professional Conduct and Code of Discipline—CD 060, as well as the Values and Ethics Code for the Public Service.

The infractions under Standard Four, Relationships with Offenders are:

(a) Staff must be aware of all matters affecting offenders for whom they are responsible by referring to their files and any other relevant source of information. They must be informed of the correctional plan and the offender’s progress towards the achievement of that plan.

(b) Staff must be diligent in their responsibility to record and make available for review all offender information which could contribute to sound decisions affecting the offender or public safety.

Under the Values and Ethics Code for the Public Service you have contravened the ethical value of acting at all times in such a way as to uphold the public trust. Public servants must perform their duties and arrange their private affairs so that public confidence and trust in the integrity, objectivity and impartiality of government are conserved and enhanced. Public servants must also act at all times in a manner that will bear the closest public scrutiny.

77        Ms. MacDonald testified that she reviewed and relied upon the findings of the board of inquiry’s Final Report (Exhibit G-1, Tab 1). She explained in detail as to her reasons, based on both the report’s findings and the grievor’s responses to them, for imposing the discipline that she did.

1. Misleading the Court on Mr. AB’s bail application

78        With respect to the letter to the Court of December 17, 2010, Ms. MacDonald testified that she considered this the most serious of the allegations against the grievor that the board of inquiry had concluded was founded. She explained in cross-examination that in her opinion the grievor had no authority to write it because she lacked jurisdiction over Mr. AB’s file at that point. Ms. MacDonald said that the letter was misleading in three ways; first, because of how it was framed; second, because it suggested that the grievor had jurisdiction over Mr. AB’s file, when she did not; and third, simply because she wrote it. Ms. MacDonald was unable to say whether anything in the letter was untrue, and in any event that was not the point, in her view. The point was simply that the grievor had written the letter at a time when she (or rather the Keele Centre) lacked any jurisdiction over Mr. AB.

79        Ms. MacDonald stated that she thought that the letter was misleading because “it implied there was support for Mr. AB in the community when in fact [the Toronto West Office] was opposed to that.” It was misleading because the letter implied there was support to have Mr. AB at the Keele Centre when, in Ms. MacDonald’s words, “the parole officer who had supervision of him had concerns … where there is a record saying that Mr. AB cannot be managed in the community at this time.” Ms. MacDonald testified that the Keele Centre had no authority or jurisdiction to intervene in any capacity in the case. Given a context in which a parole officer already expressed a contrary view, the letter became misleading because it implied the Service’s support for Mr. AB’s bail application and because it implied that the Service supported a position — bail for Mr. AB — which it (or at least the supervising parole officer) did not. However, Ms. MacDonald agreed that there was nothing incompatible with a parole officer’s decision that a particular offender could not be managed under the parole conditions that had been imposed and an offender obtaining pretrial release. Ms. MacDonald was not aware of any fact that would have precluded Mr. AB from returning to the Keele Centre.

80        Ms. MacDonald also testified that when she asked Mr. Townsend whether he had seen the letter, he told her, “No.” She recalled him telling her that he understood what the grievor had been trying to do but that he had not seen the letter. On this point, I am satisfied that having heard Mr. Townsend’s testimony as well as having seen his written recollection (Exhibit G-30), Ms. MacDonald misunderstood what she had been told. Mr. Townsend’s statement that he had not seen the actual letter (as opposed to a draft), and his caution to the grievor that whatever she sent should not be capable of interpretation as advocacy, led Ms. MacDonald to the mistaken conclusion that Mr. Townsend had not approved of the grievor’s intended course of action when in fact he had, subject to the noted caveats.

2. Using the “Pop Fund” to purchase Mr. AB’s artwork

81        The evidence with respect to the “Pop Fund” issue comes from Ms. MacDonald’s testimony and the grievor’s and from the contents of the Final Report (Exhibit G-1, Tab 1). The “Pop Fund” was created from proceeds from the sale of pop and juice from a vending machine at the Keele Centre. Thus, the money came from offenders, staff and visitors who purchased items from that machine. Ms. MacDonald testified that there were no formal rules governing the use of the fund. Over the years, it had been used for a number of purposes; it had been used to fund pizza nights or parties for the staff or for offenders. On at least one occasion, it had been used to purchase work boots for an offender who needed them for a job he had obtained (Exhibit G-1, Tab 1, pages 31 and 32).

82        Sometime in the spring of 2009, Mr. AB received an offer to purchase a large painting of his, which was of flowers and had been hanging on a wall at the Keele Centre. The grievor testified that Mr. AB wanted to sell the painting so that he could use the proceeds towards renting an apartment, where he planned to live with his girlfriend. The grievor, believing that the art work in question was an important part of the Keele Centre’s public face, suggested that the “Pop Fund” be used to purchase the painting, to keep it at the Keele Centre. She testified that she had discussed the issue with others at the unit and that no one had objected to the plan. So, between May 28, 2009, and July 5, 2010, funds were drawn from the “Pop Fund” to pay Mr. AB the $900 purchase price for the painting. The purchase receipt stated that the painting had been purchased “… for the benefit of the residents of [Keele Centre], the staff and the public who tour the facility with some regularity” (Exhibit G-1, Tab 1, pages 31 and 32).

83        I note that the Final Report (Exhibit G-1, Tab 1), at page 32, stated the following about its interviews of the unidentified witnesses:

All persons interviewed on this topic expressed grave concern about Keele purchasing an offender’s artwork, indicating that they perceived this as a conflict of interest. They also indicated that the Pop Fund was being used to benefit all or most of the offenders, and that using the fund for only one offender could be perceived by the residents as favouritism. One employee also expressed concern that paying [Mr. AB] to keep his art work at Keele was a form of manipulation on his part, and served to reinforce his sense of entitlement.

84        Ms. MacDonald acknowledged that the “Pop Fund” had also been used to purchase boots for an offender but said that that had been different. In that case, she stated that the offender needed the work boots “to assist him to reintegrate with the community by getting employment.” In Mr. AB’s case, she stated that the fund was being used to provide a “significant” amount to him so that he could move into an apartment.

3. Directing the use of a Service’s vehicle for the transport of Mr. AB’s girlfriend’s property    

85        With respect to having directed Service’s employees to use a Service’s vehicle to transport the personal property of Mr. AB’s girlfriend, the Final Report (Exhibit G-1, Tab 1) explained at page 38 that the grievor did the following in September 2010;

… spoke directly to [name redacted in the original] … and asked him to take a Government of Canada motor vehicle (GMV) and drive [Mr. AB] to various establishments in the City of Toronto to retrieve his artwork for an art show. [The grievor] also testified that she asked [name redacted in the original] to attend the home of [Mr. AB’s girlfriend] with the GMV to pick up five (5) boxes of her personal property and move them to another location. [Name redacted in the original] testified that he did drive the GMV to various locations across the city to assist [Mr. AB] in picking up his art work. [Name redacted in the original], however, [sic] that he refused to move the personal belongings of [Mr. AB’s girlfriend], as he believed to do so would be a misuse of government assets.

86        It is important to note that on this evidence, the Final Report concluded that the grievor had “… directed [name redacted in the original] to misuse Government of Canada assets in September 2010 [emphasis in the original]” (Exhibit G-1, Tab 1, page 41). The Final Report argued that Mr. AB’s girlfriend was not entitled to have her personal property transported by government assets. That being the case, “[c]ounselinga public servant to misuse government assets, regardless of whether the public servant actually followed through with the direction, is legally considered wrongdoing under section 8(f) of the Public Servants Disclosure Protection Act [emphasis added]” (Exhibit G-1, Tab 1, page 41). I will return to this note later in my decision.

87        Ms. MacDonald testified that government policy is clear: government vehicles are not for personal use. (That is true, but as will be discussed later, the issue was not personal use but use for offenders or their property or that of their girlfriends or boyfriends). Under cross-examination Ms. MacDonald could not point to any express rule or policy that prohibited transport of an offender’s personal property. She was also asked in cross-examination whether it would have been appropriate to transport Mr. AB’s personal property in a Service’s vehicle. She replied, “Technically ‘no,’ because that is not what the Service has vehicles for, to move personal property of offenders.” Ms. MacDonald noted that the grievor had agreed that she had asked an employee whether he would use a government vehicle to move Mr. AB’s girlfriend’s property to the apartment the two of them had leased and that the employee had refused.

4. Failing to record her conversations or actions with Mr. AB in his Service’s file

88        Little of Ms. MacDonald’s testimony was directed to the grievor’s failure to record her calls in the computerized record keeping system. Ms. MacDonald’s concern focused more on the result — the lack of communication with the Toronto West Office. She testified that the grievor had agreed that it would have been appropriate to let the Toronto West Office know about the calls and that her failure to “could create an issue.”

5. Accepting or permitting calls (three-way or otherwise) from Mr. AB

89        At page 35, the Final Report (Exhibit G-1, Tab 1) concluded that the grievor had “… inappropriately directed [name redacted in the original] to facilitate 3-way calls from Mr. AB while the offender was incarcerated in a provincial detention facility.” It found that the frequency of calls from Mr. AB while incarcerated “… went beyond what could be considered normal or appropriate in the circumstances.” It went on as follows at pages 35 and 36:

[The grievor] had become unable to refuse [Mr. AB’s] requests for assistance because she had become overly invested in [Mr. AB]. She extended preferential treatment to him by permitting him to abuse the [Keele Centre]’s policy to accept collect calls form [sic] offenders. In this way, [the grievor] had entered into a conflict of interest, thereby breaching section 8 of the [Service’s] Code of Discipline, and the Values and Ethics Code of the Public Service. By seriously breaching those codes of conduct, [the grievor] committed wrongdoing as defined by section 8(e) of the Public Servants Disclosure Protection Act.

90        This issue stems from the period during which Mr. AB was incarcerated at the Don Jail awaiting his bail hearing. The grievor testified (both to the board of inquiry and at the third part of the hearing before me) that she had taken at most a dozen calls from Mr. AB; that on at least four occasions, she told him that since the Keele Centre no longer had jurisdiction over him, he should be directing his enquiries to the Toronto West Office (Exhibit G-1, Tab 1, page 90); and that by taking his calls, she had done no more and no less that what she and other parole officers did when subject to desperate and remorseful calls from offenders who found themselves back in jail due to parole violations. The grievor noted that there were no policy or directives forbidding receiving such calls. As for the three-way calls, while she admitted allowing them at first, it appears that she put a stop to them in late December 2010 (Exhibit G-1, Tab 1, page 71). The Final Report (Exhibit G-1, Tab 1) does not state that there was a policy against accepting collect calls. Nor does it appear to give any credit to the grievor’s evidence that she had redirected Mr. AB a number of times.

D. Grievor’s “rationalizations”

91        At the third part of the hearing, Ms. MacDonald testified that she also took into account what she called the grievor’s “rationalizations” of some of the grievor’s actions. Ms. MacDonald was of the view that the grievor often minimized or sought to justify the actions the grievor took, even while acknowledging that the grievor would not do the same thing in the future or that the grievor should have acted differently. Ms. MacDonald testified during cross-examination that the grievor acknowledged that there were some things that “[the grievor] would not do again, but other times [the grievor] provided a rationalization for what [the grievor] did.” Ms. MacDonald testified that the grievor’s tendency to rationalize some of the grievor activities was “an important factor” in Ms. MacDonald’s decision to impose discipline. For example, she noted the following with respect to the grievor’s December 12, 2010, letter to the Court:

[The grievor] … said she would do things differently if it happened again … but she did not have the same view of the letter as the Board of Investigation … she rationalized and minimized the letter in my mind … she acknowledged the perception [the letter] might give, but she did not get to the place regarding her role and her responsibility regarding the intervention in a case not under her supervision or in having a discussion with Mr. AB’s lawyer.

E. Penalty

92        Ms. MacDonald testified that her decision to impose the demotion was a function of a number of factors. First, she considered the grievor’s conduct to have constituted serious breaches of her duties and responsibilities. Second, the advice Ms. MacDonald had received from the employer’s Human Resource consultants suggested that the breaches were serious enough to warrant termination. But third, and on the other hand, she took into account the grievor’s long and overall positive service record. With these factors in mind, Ms. MacDonald settled on demotion as being the appropriate penalty.

93        Ms. MacDonald also took into account what she thought would be the temporary nature of any demotion. She thought that it would last no longer than two years. As shall be shown, this piece of evidence — the employer’s apparent view that the demotion was to be limited rather than permanent — provided the springboard for counsel for the grievor’s submission that the grievor’s decision to retire was based on incomplete information and hence ought to be revisited.

94        Ms. MacDonald also testified that she was aware that during the grievor’s long career, the grievor had never been disciplined.

III. Summary of the submissions

A. For the employer (discipline and penalty)

95        At the start of the third part of the hearing, counsel for the employer acknowledged that the employer had the onus of establishing grounds for discipline — and of justifying the disciplinary measure that was imposed. He emphasized that he would rely only on the reasons set out in the discipline letter and not on the Final Report (Exhibit G-1, Tab 1), save to the extent that certain of its findings formed the basis for the employer’s (that is, Ms. MacDonald’s) decision to impose discipline and to impose the particular penalty that it did.

96        Counsel also submitted that as far as the Final Report (Exhibit G-1, Tab 1) was concerned, the grievor had a right to apply for a judicial review of its findings. Absent such an application, the employer had an obligation to act on its findings.

97        Turning to the employer’s decision to discipline the grievor, and in particular to the October 2011 discipline letter, counsel for the employer summarized these alleged disciplinary violations as follows:

a. the grievor misled the Court by suggesting that the Service supported Mr. AB’s release on bail after his arrest for violating the terms of his long-term supervision order;

b. the grievor advocated on Mr. AB’s behalf by communicating with his counsel with respect to Mr. AB’s bail application, which put the grievor in a conflict of interest with her duties and responsibilities as the Keele Centre’s director;

c. the grievor arranged for the purchase of Mr. AB’s artwork out of the Keele Centre’s “Pop Fund”;

d. the grievor failed to record her conversations or actions with respect to Mr. AB in his Service’s file following his arrest for violating his long-term supervision order and while he was in jail awaiting his bail application;

e. the grievor directed the use of a Service’s vehicle to transport Mr. AB’s girlfriend’s property; and

f. the grievor’s overall lack of appreciation for the seriousness of her actions (which warranted a termination, but she was demoted instead).

98        Counsel for the employer also noted by way of introduction that while the evidence was that the employer had not considered the demotion permanent, as was the case, for example, in MacArthur v. Deputy Head (Canada Border Services Agency), 2010 PSLRB 90, he was prepared to proceed on the basis that it had been intended to be permanent. Although there was no evidence before me on the employer using demotions as penalties, counsel submitted that it was “… a piece of cake to move people up and down …” as part of its disciplinary arsenal. However, he submitted that even with that assumption, I was entitled to substitute a lesser period of demotion in the event that I was of the opinion that the penalty imposed was too severe; see Gauthier v. Deputy Head (Department of National Defence), 2013 PSLRB 94.

99        Dealing first with the grievor’s December 17, 2010, letter to the Court, counsel for the employer noted that while the case management team’s assessment report on its face said that Mr. AB should be returned to the “enhanced supervision unit,” it could mean that he should be returned to residence at the Keele Centre. On the other hand, the grievor had suggested that Mr. AB could be returned to the Keele Team Supervision Unit — in other words, returned to living in the community. It was that difference — the difference between residence at the Keele Centre versus in the community— that served to ground the allegation of misleading the Court.

100        Counsel for the employer submitted that a justice of the peace, on a bail application, reading the grievor’s December 17, 2010, letter, would reasonably conclude that the Service was recommending that Mr. AB be granted bail and that he be bailed out into the community. Moreover, the letter enthusiastically supported Mr. AB. It was advocacy and was not a neutral statement of fact. The letter failed to mention earlier reports, such as one in 2007 that the board of inquiry had interpreted in its Final Report as taking a dim view of Mr. AB’s prospects (Exhibit G-1, Tab 1, page 16). And even if the grievor’s evaluation of the situation was correct, she failed to discuss it with the Toronto West Office before sending the letter.

101        Turning to the grievor’s failure to record her December 2010 and January 2011 discussions with Mr. AB into the employer’s computerized record keeping system, counsel for the employer noted that by the grievor’s own admission, this was important information about Mr. AB’s emotional condition. Counsel submitted that it was critical information that should have been recorded in the computerized record keeping system. Her failure to was reckless and all the more serious because of her senior position. Accepting Mr. Townsend’s testimony, the grievor would have known of the employer’s concerns about lapses in using the computerized record keeping system to record information. Hence, the grievor’s failure to record that information was grounds for demotion.

102        Counsel for the employer then moved to the grievor’s January 4, 2011, email to Mr. AB’s counsel. He submitted that it could not be “explained away.” The email was clear — the grievor had volunteered to give evidence on Mr. AB’s behalf. The fact that she later changed her mind (because of what she had discovered on investigating Mr. AB’s story) could not negate her original willingness to assist Mr. AB in his bail application.

103        Counsel for the employer stated that the December 17, 2010, letter and the January 4, 2011, email, taken together, demonstrated the grievor’s lack of neutrality. She had descended into the arena. She was willing to actively support Mr. AB’s bail application. She did so knowing that other Service’s sections — in particular, the Toronto West Office — were neither supportive of nor sympathetic to Mr. AB. Her failure to communicate this division of opinion within the Service added to the misleading nature of her letter to the Court.

104        Counsel for the employer next dealt with the use of the “Pop Fund”. He submitted that on its own, it was a minor fault. But placed in the context of the larger issue of the grievor’s conduct in December 2010 and January 2011, it became further evidence of her lack of neutrality when it came to Mr. AB. She was overly involved and overly invested in his welfare.

105        Counsel for the employer also noted that the fact that there might not have been formal written directives to guide Service’s employees with respect to particular issues (such as dealing with the courts on bail applications) was not an answer to the allegations against the grievor. He submitted that there is a “code of common sense”; see Gannon v. Treasury Board (National Defence), 2002 PSSRB 32, at paras 128 to 131. “… The test is what would be viewed as proper according to a reasonable person in like circumstances … .”; Gannon, at para 131. The grievor’s conduct fell below that standard and was worthy of discipline.

106        Counsel for the employer also submitted that the grievor’s actions were a conflict of interest. He pointed to the Service’s “Standard Four (Relationships with Offenders)”; see Exhibit E-2, Tab 17. Standard Four provides the following:

Staff must actively encourage and assist offenders to become law-abiding citizens. This includes establishing constructive relationships with offenders to encourage their successful reintegration into the community. Relationships shall demonstrate honesty, fairness and integrity. Staff shall promote a safe and secure workplace and respect an offender’s cultural, racial, religious and ethnic background, and his or her civil and legal rights. Staff shall avoid conflicts of interest with offenders and their families.

107        Counsel for the employer submitted that a conflict of interest arises when an employee puts someone’s interests ahead of those of his or her employer; see Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62, at paras 161 to 164. In this case, the grievor’s support of Mr. AB led her to put his interests ahead of the Service’s.

108        In the end, then, counsel for the employer submitted that the grievor’s conduct was more than worthy of discipline. As for the penalty — demotion — counsel submitted that it was more than reasonable in the circumstances. He pointed out that termination had been recommended to Ms. MacDonald by her human relations consultant. Termination, he suggested, would also have been reasonable in the circumstances, but Ms. MacDonald had placed great emphasis on the grievor’s years of service and had for that reason settled on the lesser (and hence all the more appropriate) penalty of demotion.

B. For the grievor (discipline and penalty)

109        Counsel for the grievor commenced his submissions by observing that “serious” had to mean something. Not every misstep, breach or violation of a code of conduct is serious. And in this case, the only fact that was proved to be a clear violation of the employer’s policies was the grievor’s failure to record her communications with Mr. AB in the computerized record keeping system (and hence, possibly by extension, her failure to advise the Toronto West Office of her actions). Counsel agreed that that made the grievor “clearly wrong.” Indeed, she had agreed right from the beginning that she should have acted differently. But was this conduct serious? He pointed out by way of comparison that the grievor’s conduct came nowhere near that in Simard v. Treasury Board (Solicitor General Canada - Correctional Service), 2003 PSSRB 53, in which the grievor was terminated for engaging in an intimate relationship with an offender on statutory release (who was in fact living with her) and having, at least initially, lied about it. Nor did it amount at any point to misappropriation for her own benefit of an offender’s or the employer’s property, as was the case in Amos v. Treasury Board (Solicitor General Canada), PSSRB File No. 166-02-14678 (19850107), in which a one-year suspension was substituted for a termination. Nor was it close to Chénier v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 40, in which the grievor had given an inmate a bank card (and whose resulting termination was upheld). Those cases involved serious infractions of the Service’s codes of conduct and behaviour, whether formal or not. This case does not.

110        Counsel went on to note that the allegation that the grievor had exhibited favouritism towards Mr. AB was a theme running through the case but that there was no evidence of favouritism. In particular, there was no evidence that the grievor had reacted to Mr. AB’s situation any differently than she had with any other offender. The decision to use the “Pop Fund” to purchase Mr. AB’s art was made only after she had consulted with others at the Keele Centre. It had not benefitted her.

111        Turning to the December 17, 2010, letter to the Court, which Ms. MacDonald had characterized in her testimony as the most serious breach of the grievor’s duties, counsel for the grievor submitted that Ms. MacDonald’s (and the employer’s) position was based on a fundamental misconception of long-term supervision orders. Counsel pointed to page 21 of the Final Report (Exhibit G-1, Tab 1), where the board of inquiry had characterized the Toronto West Office’s recommendation as being one that Mr. AB “remain in custody until tried because the risk to re-offend [sic] was considered unmanageable in the community [emphasis in the original].” But the Toronto West Office had not recommended that he remain in jail or even that, for that matter, he remain in custody. What it had recommended was his return to the Keele Enhanced Supervision Unit, to the Keele Centre, which, by its nature, could have included either residing at the Keele Centre or being supervised in the community by the Keele Team Supervision Unit.

112        Counsel for the grievor also submitted that the board of inquiry’s (and hence Ms. MacDonald’s) characterization of the Toronto West Office’s conclusion represented a misreading of the intent and purpose of long-term supervision orders. He pointed to the Supreme Court of Canada’s explanation of that purpose in R. v. Ipeelee, 2012 SCC 13, at para 48, as follows:

… we can therefore identify two specific objectives of long-term supervision as a form of conditional release: (1) protecting the public from the risk of reoffence, and (2) rehabilitating the offender and reintegrating him or her into the community. The latter objective may properly be described as the ultimate purpose of [a long-term supervision order], as indicated by s. 100 of the [Corrections and Conditional Release Act], though it is inextricably entwined with the former… .

113        Counsel for the grievor submitted that it was clear on both the evidence and the law that the Service has no role to play in a bail application. Thus, nothing bars a Service’s employee from placing before a court on a bail application information that may be relevant to the decision. Doing so was not advocacy, and even if it could be characterized as such, it was done in good faith. The grievor had shown a draft of the letter to Mr. Townsend before sending it, and his testimony, not seriously challenged on cross-examination, was that the letter did not breach any code of conduct. Counsel also pointed out that the information about the Keele Centre in the letter could have been relevant to the Court’s deliberations. After all, had the Court concluded that some form of supervised release was appropriate, it might have liked to know what type of supervision was available. Nor had Ms. MacDonald or the employer demonstrated any other way that the Court could have obtained such information.

114        Counsel for the grievor pointed out that the grievor had not said at any point that Mr. AB should not be charged for violating his long-term supervision order, that he should be released on bail or even that he should be released into the community. The Toronto West Office had recommended that Mr. AB be returned to the Keele Enhanced Supervision Unit (i.e., to the Keele Centre’s jurisdiction).

115        All that meant was that the Toronto West Office did not feel that its level of supervision was suitable at that point. Had the Toronto West Office meant that Mr. AB should have been confined to residence at the Keele Centre, it would have said so; it did not. The grievor had simply described what the Keele Enhanced Supervision Unit was, how it functioned and whether there was space to receive Mr. AB in the event the Court came to the same conclusion as the Toronto West Office. The December 17, 2010, letter contained no inaccuracies, and Ms. MacDonald could not point to any. Nor had the grievor acted in secret. She had discussed the letter — or at least a draft of it — with Mr. Townsend. She had also spoken to others at the Keele Centre to determine whether Mr. AB could be taken back in the event that the Court decided to release him to the Keele Centre.

116        Counsel for the grievor noted Ms. MacDonald’s testimony that Mr. Townsend had denied seeing the December 17, 2010, letter when Ms. MacDonald spoke to him after reading the Final Report (Exhibit G-1, Tab 1). But Mr. Townsend’s evidence — supported by his written statement given to the board of inquiry (Exhibit G-30) — was to the contrary. Counsel submitted that I should accept Mr. Townsend’s evidence over that of Ms. MacDonald.

117        Counsel for the grievor pointed out that in its Final Report (Exhibit G-1, Tab 1), the board of inquiry had mischaracterized the grievor’s words in her December 17, 2010, letter to the Court. For example, at page 24 of its Final Report, the board of inquiry stated as follows:

[The grievor] undertook of her own volition to write an official letter to the Courts, on [the Service’s] letterhead … . This letter welcomed the return of [Mr. AB] to the [Keele Centre]. In the official letter, [the grievor] wrote that “this is to advise that [Mr. AB] would be welcome to return to our supervision.” She also wrote “I submit this information for the consideration of the courts.”

[Emphasis in original]

118        Counsel for the grievor pointed out that the complete sentence was in fact the following: “In the event that bail is granted in this case, this is to advise that [Mr. AB] would be welcome to return to our supervision.” The board of inquiry’s selective editing of the letter, and its lifting of a phrase out of context, resulted in a distorted impression of what the grievor had said. Counsel submitted that this distortion of the contents of the grievor’s December 17, 2010, letter was evidence of bad faith on the board of inquiry’s part. There could be no other reason for leaving out the words that it did when quoting from the letter.

119        Counsel for the grievor then turned to Ms. MacDonald’s testimony on the December 17, 2010, letter. He suggested that she had offered three reasons for her concern: first, how the letter was framed; second, the fact that the case was outside the Keele Centre’s jurisdiction then; and third, the mere fact that the grievor had written a letter. Counsel reiterated that nothing in the letter was factually incorrect. Moreover, he pointed to the grievor’s uncontradicted testimony that when she had worked as a parole officer, she had often written informational letters to the Court. Ms. MacDonald, whose background was on the Service’s incarceration side (as opposed to the rehabilitation side), gave no evidence to the effect that a parole officer’s role did not include preparing factual correspondence for a court.

120        Counsel for the grievor acknowledged that — as had she — the grievor ought to have advised the Toronto West Office of her December 17, 2010, letter. But her failure to had nothing to do with favouritism or a desire to mislead the Court. He also pointed out that on the evidence, it was clear that had the Court released Mr. AB, Mr. AB would not have gone back to the Toronto West Office. Rather, as the Toronto West Office recommended, Mr. AB would have gone back to the supervision (and hence jurisdiction) of the Keele Enhanced Supervision Unit (assuming there was room for him there).

121        Counsel for the grievor then turned to the grievor’s January 4, 2011, email to Mr. AB’s counsel before the bail hearing. Counsel for the grievor acknowledged that she had expressed a somewhat critical view of the stance Crown counsel had taken in the past towards offenders subject to long-term supervision orders and their breaches of them. But to suggest that her email was wrong is tantamount to saying that thoughts could count as crimes. Griping about the Crown could not constitute wrongdoing. And while she did not record her communications in the computerized record keeping system, what harm came of it? Was it really, counsel asked rhetorically, evidence of favouritism or of a conflict of interest?

122        Counsel for the grievor submitted that the grievor’s decision to investigate the veracity of Mr. AB’s version of what had happened by going to the bar where he had been arrested might have been a bit strange but that no harm came of it. Moreover, it was not much different from what she had done as a parole officer, when her work led to her being awarded with a Golden Jubilee Medal. In any event, it also established that the grievor was not favouring Mr. AB by uncritically accepting his statements to her.

123        Turning to the dozen or so calls the grievor received from Mr. AB while he was in jail, her counsel noted her testimony that she did not screen her calls. He also emphasized her testimony that offenders who have been returned to jail are often upset and emotionally vulnerable. In addition, her evidence was not contradicted that at least four times, she told Mr. AB to call the Toronto West Office instead. It could not then be said that she acted incorrectly in the circumstances. It may be that she should have recorded the calls in the computerized record keeping system, but that failure did not amount to a serious dereliction of duty. And on that point, counsel noted that there was no evidence comparing the grievor’s record keeping (or her inadequacies with it) with anyone else’s at the Service. Mr. Townsend had testified that the computerized record keeping system was cumbersome to operate, making recording information difficult. Nor did the grievor’s failure to record the conversations represent an attempt to hide them. After all, she had discussed them with Mr. Townsend.

124        Counsel for the grievor then dealt with the issue of using the Service’s vehicle. He pointed out that the issue was not the grievor’suse of it. He acknowledged that Ms. MacDonald was certain that Service’s vehicles could not be used to move an offender’s property but noted that the evidence was to the contrary. There was no express rule against it. Counsel submitted that the practice at the Keele Centre had been to provide such assistance when an offender was moving out into the community, as evidenced in part by the fact that the board of inquiry in its Final Report (Exhibit G-1, Tab 1)had noted that a Service’s vehicle had been used to help move some of Mr. AB’s artwork — or that he had been permitted to store some of his furniture — at the Keele Centre, without making any adverse finding (Exhibit G-1, Tab 1, pages 36 and 38 to 41). Instead, the issue was that the grievor asked someone whether he would use the Service’s vehicle to transport some of Mr. AB’s girlfriend’s belongings. The point is that both the board of inquiry and Ms. MacDonald characterized this as a “direction.” But that is not what happened. The grievor asked; the person refused, and that was the end of it. At best, there was a problem in perception but not in action.

125        With respect to the use of the “Pop Fund” to purchase Mr. AB’s painting, counsel for the grievor noted testimony — uncontradicted — about the important role of art at the Keele Centre. No one had disputed that many people had toured the facility (including then-Minister Vic Toews), along with national and international organizations. No one disputed that the display of offenders’ art was part of those tours or part of the rehabilitation of the Centre’s image in the community. In the Final Report (Exhibit G-1, Tab 1), the board of inquiry took a different, and much more jaundiced, view of that art and its display. But the board of inquiry exceeded its mandate by exploring the relative merits of the art as art. The only relevant issue was the grievor allowing, in Ms. MacDonald’s words in the termination letter, “… an offender to benefit from the sale of artwork by taking $900.00 from the ‘Pop Fund’ … .” Counsel submitted that this statement ignored the entire purpose of the fund, which was to benefit people, whether the staff for parties, offenders for pizza or individual offenders who had particular needs (such as boots for work).

126        Counsel for the grievor noted that while counsel for the employer had disavowed reliance on the Final Report (Exhibit G-1, Tab 1), Ms. MacDonald had testified that she had relied on those allegations that the board of inquiry had concluded were founded. She conducted no independent investigation of those allegations, other than asking the grievor for her response. Counsel noted that while Ms. MacDonald was certain that Service’s vehicles could not be used to transport an offender’s property, she could point to no rule or policy to that effect. Nor had she been able to explain in cross-examination how a justice of the peace on a bail application could obtain information concerning the availability of spaces at a Community Correctional Centre without a letter from that facility. Nor could Ms. MacDonald explain why she took the grievor’s responses to be “rationalizations” (and hence minimizations) of the grievor’s conduct, as opposed to simple explanations of why the grievor’s had done what she did.

127        Counsel for the grievor concluded by noting that the board of inquiry had been created on the basis of allegations that the grievor and Mr. AB were having an inappropriate relationship. Such an allegation clearly suggested that they were having a sexual relationship. Yet there was not a shred of evidence to that effect, something the board of inquiry glossed over by redirecting its focus to other and fundamentally different acts by the grievor. The grievor had a 36-year career with the employer. She had been awarded a Golden Jubilee Medal for services related to that career. Her performance reviews were consistently good over the years. It was not perfect — there were issues with communication with staff. But poor communication skills are not tantamount to the misconduct she stood accused of.

128        Accordingly, counsel for the grievor submitted that on the facts of this case, nothing justified a departure from the principles of progressive discipline. Nothing justified censure, let alone formal discipline. And if discipline was warranted, it ought to have been something far less than what was imposed.

C. Employer’s rebuttal (discipline and penalty)

129        Counsel for the employer acknowledged that Ms. MacDonald had had to review the Final Report (Exhibit G-1, Tab 1). But only the contents of the October 14, 2011, discipline letter were relevant. The decision to discipline the grievor stood or fell on the matters outlined in the discipline letter, not in the Final Report.

130        Turning to a letter that the grievor had written in the case of another offender, counsel for the employer pointed out that the grievor was on the case management team at that time. Hence, she had a role to play and jurisdiction to write a letter. The same could not be said in the case of Mr. AB.

131        With respect to the long-term supervision order issue, counsel for the employer submitted that the grievor’s position was contradictory. One cannot say that the Service has no role to play in bail applications and then involve oneself in a bail application. Counsel also agreed that the Keele Centre, as an enhanced supervision unit, provided two options: one in which the offenders lived in residence (and hence under supervision) there, and one in which they remained under close supervision but could live in the community. The Toronto West Office’s recommendation had clearly been that Mr. AB could not live in the community. That being the case, the grievor’s inclusion of both options in her December 17, 2010, letter to the Court necessarily brought her into conflict with the Toronto West Office’s recommendation.

132        Turning to Mr. Townsend’s testimony, counsel for the employer noted that Mr. Townsend was not aware that the case management team at the Toronto West Office had come to a different conclusion than the one outlined in the December 17, 2010, letter. In other words, the grievor had not given him the full picture. Thus, his conclusion that the letter was appropriate was made without a full and complete understanding of the situation.

D. For the grievor (motion to set aside ruling that the grievor’s retirement was voluntary)       

133        As already noted, counsel for the grievor signalled at the third part of the hearing that he intended to make a motion for an order setting aside part of my decision in Hassard No. 2. His submissions with respect to that motion were filed in writing on May 6, 2015.

134        For context, recall that the grievor was disciplined by way of a demotion. Rather than accept the demotion, she retired and then filed a grievance about it. Thus, one of the issues before me was whether she voluntarily resigned. Her previous counsel had argued that her resignation had not been voluntary because it had been provoked by, amongst other things, a demotion that in law amounted to a constructive dismissal. After hearing the evidence and submissions, I decided in Hassard No. 2 that her decision to retire had been voluntary. Based in part on the apparent agreement of counsel at the time, I also decided that nevertheless, she retained the right to grieve her demotion, even though she had retired.

135        At the third part of the hearing, counsel for the grievor argued that my ruling in Hassard No. 2 that the grievor’s resignation had been voluntary ought to be set aside, for two reasons. First, he submitted that Ms. MacDonald had misled the grievor by not telling her that the demotion was intended to be temporary. Had the grievor known that, she would not have resigned. Thus, her resignation, in effect, was involuntary and ought to be set aside. Second, he submitted that the grievor had received bad advice from her previous counsel, who had advised her that she could resign andstill grieve her demotion on the basis that it constituted a constructive dismissal. That advice was allegedly wrong, but the grievor relied on it when she decided to retire and then grieve.

136        With respect to the first point, counsel for the grievor noted that Ms. MacDonald testified at third part of the hearing that she had intended the demotion to be temporary, not permanent. Ms. MacDonald had suggested that at the time she imposed it, demotions were typically in the two-year range. However, the October 14, 2011, discipline letter had said nothing to that effect. As a result, the grievor, as she testified, had understood that the demotion was permanent. She also testified that had she known that it was intended to be only temporary, she would not have retired.

137        With respect to the second point, counsel for the grievor noted that the decision in Hassard No. 2 had placed considerable emphasis on the fact that the grievor had been represented throughout the period from August 2011 to October 2011 by experienced counsel. However, that counsel’s advice to her had been that she could resign (or retire) and still grieve her demotion, and he had not told her that retirement might prejudice her right to grieve her demotion. Had she known of that potential prejudice, she would not have retired. Moreover, that counsel — by reason of that negligent advice — was then in a conflict of interest but remained silent, to the grievor’s detriment.

138        Counsel for the grievor submitted that the combined effect of these two points was to make the grievor’s retirement involuntary. When deciding to retire, she relied on misleading information (or rather lack of information) from Ms. MacDonald and on negligent advice from her previous counsel.

139        By way of remedy, counsel for the grievor sought the following:

a. a declaration that the grievor’s resignation was involuntary and that it constituted a termination within the meaning of the PSLRA; and

b. an order reinstating the grievor to her original position, with full back pay.

140        In the alternative, counsel for the grievor submitted that even if the resignation is found voluntary, I ought to find that it was still the result of Ms. MacDonald’s “deception.” He submitted that the grievor would not have retired without that deception and that accordingly, I ought to award her damages to compensate for her loss, representing her past and future wage loss.

E. For the employer (motion to set aside that the grievor’s retirement was voluntary)     

141        Counsel for the employer filed his written submissions on May 19, 2015.

142        Counsel for the employer submitted that my decision in Hassard No. 2 ought to stand. He made two basic submissions.

143        First, counsel for the employer submitted that I do not have jurisdiction to adjudicate the bona fides of a resignation. My jurisdiction, under subsection 209(1) of the PSLRA, allegedly extends only to “disciplinary action[s]” by the employer and does not extend to resignations pursuant to section 63 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12 and 13), because they are employee actions and not employer actions. Counsel submitted that it was irrelevant that the resignation might have been a response to a disciplinary action by the employer. He acknowledged that I could inquire into the bona fides of the employer’s actions to ensure that they were not in fact disciplinary (as, for example, in rejections on probation); see Dhaliwal v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 109, and Tipple v. Deputy Head (Department of Public Works and Government Services), 2010 PSLRB 83. However, the case is different when the argument is that an employee’s independent action (a resignation in this case) was somehow part of — or a direct consequence of — the employer’s disciplinary action. In such cases, the “but for” test cannot be applied to make a resignation implicit in a demotion; see Rogers v. Canada Revenue Agency,2010 FCA 116, at paras 14 and 18 and Mak v. National Research Council of Canada, 2012 PSLRB 63, at para 37.

144        Second, in the alternative, counsel for the employer submitted that the proposition that the grievor would not have resigned had she known that the demotion was temporary could not be made out on the evidence, which was that resignation had been an option that Ms. MacDonald and the grievor had discussed before the disciplinary meeting. The grievor did not ask whether the demotion was temporary or permanent and in any event could have applied for a promotion at any point after the demotion. And the employer’s general practice, as testified to by Ms. MacDonald, was to limit demotions to two years, which is consistent with the principle of progressive discipline; see MacArthur, at para 123. With those points in mind, it could not be said on a balance of probabilities that the question of whether the demotion was permanent or temporary was a crucial determinant of the grievor’s decision to retire. Nor could it be said that she was misled in any way.

145        Counsel for the employer then dealt with the question of the legal advice that the grievor had received from her previous counsel. His submissions focused on what impact, if any, such advice had on the voluntariness of the grievor’s decision to retire. He submitted that the grievor’s email correspondence with her previous counsel made it clear that she was interested in retiring and then suing (or grieving) for two years’ salary, based on a constructive dismissal claim. The fact that I later ruled that she could not do both did not go to the voluntariness of her resignation but only to the scope of her remedies.

146        As for the quality of the legal advice the grievor received from her previous counsel, counsel for the employer submitted that any defects in that advice could not be laid at the employer’s doorstep. The employer had not selected the grievor’s counsel.

147        Accordingly, counsel for the employer submitted that the motion for an order setting aside part of my decision in Hassard No. 2 ought to be dismissed.

148        On March 7, 2016, while this decision was in draft, counsel for the employer drew my attention to the decision in Stevenson v. Treasury Board, 2016 PSLREB 17, at para. 121, to the effect that an adjudicator does not have jurisdiction with respect to a termination of employment by way of a resignation and application for retirement that had been accepted.

F. Grievor’s rebuttal (motion to set aside that the grievor’s retirement was voluntary)    

149        Counsel for the grievor filed his reply submissions on June 8, 2015.

150        Counsel noted that I had already ruled in Hassard No. 2 that the fact that the grievor was no longer an employee when she filed her grievance did not deprive me of jurisdiction to hear her grievance; see para 199 of that decision. Apparently, this had also been counsel for the employer’s position (a different counsel at the time). Accordingly, it was not open for the employer to argue now that I do not have jurisdiction. That being the case, the new evidence — of Ms. MacDonald — which was not reasonably available to the grievor at the time, could be considered and ruled on.

151        On March 29, 2016, counsel for the grievor objected to the employer’s submission on Stevenson for two reasons. First, previous counsel for the employer had not raised this issue in Hassard No. 2 and second, there were no new facts since Hassard No. 2 that might justify a different conclusion.

IV. Analysis and decision

152        The issue of jurisdiction was discussed in Hassard No. 2 at paras. 196-199. There I noted that there appeared to be two lines of authority on the point. One denied jurisdiction: see para. 197. The other, apparently based on the decision of the Federal Court of Appeal in The Queen v. Lavoie, [1978] 1 FC 778 (CA), was to the effect that an employee does have the right to raise a grievance against his or her former employer with respect to a matter that had happened while he or she was an employee: see para. 198. At that time I also noted that both parties had agreed that the decision in Lavoie was correct. Given that decisions of the Federal Court of Appeal are binding on an adjudicator, and given that neither party at the time challenged either the correctness of Lavoie or its applicability to the facts of this case, I decided in Hassard No. 2 at para. 199 that the fact that the grievor “… was no longer and employee when she filed her grievance does not in the circumstances of this case bar her from grieving the decision to demote her–nor does it deny me jurisdiction to hear such a grievance.” That decision was final, in the sense that it enabled the grievance to proceed on its merits, and for reasons noted below I believe I do not at this point have the jurisdiction to revisit the issue.

153        I will deal first with the grievor’s motion to set aside part of the decision in Hassard No. 2.

A. Motion to set aside ruling that the grievor’s retirement was voluntary

154        Before proceeding, I should note in retrospect that I may not be entitled to vary my ruling in Hassard No. 2. An adjudicator does not appear to have jurisdiction to revisit a formal ruling that determines a major point, that was made during the course of an adjudication of a grievance: Part 2 of the PSLRA grants an adjudicator no power to review his own decisions and section 233 provides that his decisions are final. It might also be that I was at this point functus officio (that I had exhausted my jurisdiction) insofar as the formal ruling was concerned: see Doyon v. P.S.S.R.B., [1979] 2 F.C. 190 (C.A.); Canada (Treasury Board) v. Cantin, [1985] F.C.J. No. 330 (C.A.) (QL); Canada v. Exley et al. (1985), 61 N.R. 121 (F.C.A.); Canada (Attorney General) v. Purcell, [1994] F.C.J. No. 1649 (T.D.) (QL); and Canada (Attorney General) v. Lebreux, [1994] F.C.J. No. 1711 (QL) (C.A.). However, the fact that counsel for the employer raised no objection to my jurisdiction on these grounds does not vest me with the authority to entertain the motion: see Canada (Attorney General) v. Boutilier, [1999] 1 F.C. 459 (T.D.), confirmed in Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27 (C.A.). This being said, it is not necessary for me to decide this issue because, as discussed below, even if I had the jurisdiction the motion must fail.

155        Despite the able submissions of counsel for the grievor, I was not persuaded that there were any grounds to set aside my decision in Hassard No. 2.

156        I reached that conclusion for several reasons.

157        First, the grievor’s position is at its heart based on what her counsel stated was “fresh evidence.” The test as to whether such evidence can be considered to revisit a formal ruling would appear to be the following:

a. The evidence should generally not be admitted if by due diligence it could have been adduced at the hearing in question.

b. The evidence must be relevant to a decisive or potentially decisive issue in the hearing.

c. The evidence must be credible in the sense that it is reasonably capable of being believed.

d. If it is believed, the evidence could reasonably be expected, if taken with the other evidence, to have affected the result; see Palmer v. The Queen, [1980] 1 S.C.R. 759, at 775; M.A.D. v. Children’s Aid Society of Halifax, 1993 CanLII 5662 (NS CA); and Shire Canada Inc. v. Apotex Inc., 2011 FCA 10.

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158        The test, at least in civil matters, is stringent; see Brace v. Canada, 2014 FCA 92, at para 11.

159        In my view, the evidence in question — Ms. MacDonald’s intention as to the duration of the demotion — does not satisfy the rather stringent requirements for qualifying such evidence as “fresh evidence”. That evidence could have been obtained at the time through the exercise of due diligence. Ms. MacDonald could have been asked at the second part of the hearing in August 2013 whether the demotion was intended to be temporary or permanent. The grievor’s former counsel did not ask the question. If the nature and extent of the demotion was truly a relevant issue at the time, counsel could have asked the question. To later stumble on information that was available at the time had the question been asked is not the same as discovering evidence that was unavailable, even if such questions had been posed. The evidence was available. All it took was the right question. In my view, failing to ask the right question does not amount to the exercise of due diligence.

160        Given that conclusion, it is not necessary for me to consider whether the second and third conditions of the test as to whether new evidence can justify revisiting a formal ruling were satisfied. However, I note that, for reasons that are discussed later, in my view, the fourth condition could not have been met. That is, the evidence, even if considered, could not reasonably be expected to have affected the result. This brings me to the second reason for dismissing the motion: the actual evidence.

161        The grievor’s testimony at the third part of the hearing was not that she thought the demotion was permanent. She testified that she understood from Ms. MacDonald that she “could reapply for [her] job at some later time.” She added that she had asked for clarification, but at that point, her testimony was interrupted by both counsel with objections and arguments as to the effect of Ms. MacDonald’s testimony the day before, which was that she had intended the demotion to be for only two years. Counsel for the grievor later returned in his questioning to the point and asked the grievor whether she believed on October 21, 2011, that the demotion was permanent or temporary. She answered as follows: “In effect permanent … even if I could apply for my job, with this whistleblower issue, I would never achieve the same position [emphasis added].” She was then asked whether she would have retired had she known that she “would automatically return to the previous position [emphasis added].”

162        What I take from that testimony is that the grievor understood that her demotion was not actually permanent. She understood that she could reapply for her old position at some point. But she also thought that the existence of the discipline on her record would make it extremely unlikely that she would be successful. The issue then is not whether she understood the demotion to be permanent or temporary but rather if she understood that she would automatically get her old position back.

163        The grievor stated that she would not have retired had she understood that she would automatically get her old position back after some time. This in turn raises the following two questions:

a. Do I find that evidence credible?

b. Even if I do, is it relevant?

164        The grievor’s understanding as to whether she would be placed into her old position automatically at some point after the demotion would be relevant to her motion if there was evidence that such reinstatements were automatic after a demotion. But there was no evidence from anyone that the employer’s practice with respect to demoted employees was to reinstate them automatically into the positions from which they had been demoted. In the absence of such evidence, the grievor’s testimony as to her understanding lacks relevance.

165        Even were the grievor’s testimony on this narrow point relevant to the issue of the voluntariness of her decision to retire, I was not persuaded that it would have changed my decision. The demotion was significant. It moved her from a managerial to a non-managerial position. She also expressed concern that given the relatively small work community, she would have to work surrounded by people who knew of the demotion and the Final Report’s conclusions (Exhibit G-1, Tab 1). It strikes me as unlikely that she would have been prepared to endure such circumstances for the two years of the demotion. There was certainly no testimony to that effect from her.

166        Third, and turning to the question of the impact of her previous counsel’s advice on the grievor’s decision to retire, the fact that the advice might have been bad, wrong or negligent did not affect the voluntariness of her decision. The decision was hers to make; she was not forced to make it. The employer did not mislead her. If the legal advice she received was negligent — and if it caused her loss or damage — then her cause of action, if any, and her remedy are against her previous counsel , not the employer.

167        Given that conclusion, it is not necessary for me to refer to the correspondence between the grievor and her previous counsel leading up to her decision to retire in October 2011.

168        For these reasons, I dismiss the grievor’s motion to set aside the finding that her decision to retire was voluntary.

B. Discipline and penalty

169        I now turn to the employer’s decision to discipline the grievor and to impose the demotion penalty. This being a case of discipline, the onus was on the employer to establish cause. And I must consider the following three questions:

a. Were there grounds for discipline?

b. If so, was the discipline imposed reasonable in the circumstances?

c. If not, what would a suitable penalty be?

170        For ease of reference, I will list the grounds that counsel for the employer relied upon in support of the employer’s decision to discipline the grievor, as follows:

a. the grievor misled the Court by suggesting that the Service supported Mr. AB’s release on bail after his arrest for violating the terms of his long-term supervision order;

b. the grievor advocated on Mr. AB’s behalf by communicating with his counsel with respect to Mr. AB’s bail application, which put the grievor in a conflict of interest with her duties and responsibilities as the Keele Centre’s director;

c. the grievor arranged for the purchase of Mr. AB’s artwork out of the Keele Centre’s “Pop Fund”;

d. the grievor failed to record her conversations or actions with respect to Mr. AB in his Service’s file following his arrest for violating his long-term supervision order and while he was in jail awaiting the outcome of his bail application;

e. the grievor directed the use of a Service’s vehicle to transport Mr. AB’s girlfriend’s property; and

f. the grievor’s overall lack of appreciation for the seriousness of her actions (which warranted a termination, but she was demoted instead).

171        I will deal with those grounds in that order.

1. Allegedly misleading the Court on Mr. AB’s bail application

172        In her cross-examination, Ms. MacDonald agreed that this was the most serious of the allegations against the grievor that the board of inquiry had concluded was founded. And I agree that if proved, such an allegation would have been very serious, particularly given the grievor’s role and position in the justice system. The problem is that the board of inquiry’s supposed finding was based on a mischaracterization of the evidence that was if not willful, then certainly careless. The facts that supposedly underpinned the Final Report’s conclusion (Exhibit G-1, Tab 1) simply did not exist — and the inferences the report drew from those supposed facts were similarly flawed.

173        This conclusion requires some careful analysis of the evidence gathered by the board of inquiry and presented in its Final Report (Exhibit G-1, Tab 1). The analysis is necessary because the board of inquiry conflated two issues — misleading the Court and a conflict of interest — in its analysis of what had happened. Its conclusions as to both issues were similarly incorrect.

a. What the Final Report said happened

174        The Final Report (Exhibit G-1, Tab 1) starts by describing the first allegation against the grievor as follows, at page 23:“Between January 2007 and January 12, 2011 it is alleged that [the grievor] breached the Correctional Service’s Professional Code of Conduct by failing to avoid a conflict of interest in her relationship with [Mr. AB].”

175        However, the Final Report (Exhibit G-1, Tab 1) focuses on the interview between Mr. AB and the two Toronto West Office officers at the Don Jail. It reports that Mr. AB “… was advised of his case management team’s recommendation to the [Parole Board of Canada] namely, that he remain in custody until trial because h[is] risk to offend was considered unmanageable in the community [emphasis in the original]” (Exhibit G-1, Tab 1, page 21). The report then goes on to state that the Toronto West Office “… did not support the return of [Mr. AB] to the community [emphasis in the original],” and went on as follows (at page 23):

On the contrary, the Case Management Team was recommending that [Mr. AB] be charged with breach of his [long-term supervision order], and that he remain in custody until trial, because these violations were directly related to his offence cycle. In short, the supervising case management team believed that returning Offender [Mr. AB] to the community would put public safety at risk.

[Emphasis in the original]

176        The Final Report (Exhibit G-1, Tab 1) then provided a detailed analysis of the grievor’s actions between Mr. AB’s arrest and his bail hearing. It noted (at page 24) that the grievor wrote the letter to the Court dated December 17, 2010, describing it as follows:

[The grievor] undertook of her own volition to write an official letter to the Courts, on [the Service’s] letterhead … . This letter welcomed the return of [Mr. AB] to the [Keele Centre]. In the official letter, [the grievor] wrote that “this is to advise that [Mr. AB] would be welcome to return to our supervision.” She also wrote “I submit this information for the consideration of the courts.”

[Emphasis in the original]

177        In brief then, the Final Report’s conclusion (Exhibit G-1, Tab 1) was that the grievor had written a letter to the Court that was misleading because it supported (or proposed) a course of action with respect to Mr. AB that the office that last had jurisdiction over him (the Toronto West Office) did not support. The difficulty with the board of inquiry’s conclusion is, as is explained below, that its characterization of what happened was quite simply wrong. Hence, so is the conclusion.

b. What actuallyhappened

178         Mr. AB had been under the supervision of the Keele Enhanced Supervision Unit at the Keele Centre for upwards of three years. He was transferred to the Toronto West Office’s supervision in late October 2010. Approximately three weeks later, he was found in a bar, which breached a condition of his long-term supervision order.

179         Mr. AB’s Toronto West Office parole officers visited him in the Don Jail. They listened to his explanation and to his apology for his conduct. Ms. Samson wrote that she and Mr. Toole formed the opinion that he “… should return to the Keele Enhanced Supervision Unit on his next release as he will require ongoing monitoring and structure” (Exhibit G-20, page 4).

180        The Keele Enhanced Supervision Unit included, as stated earlier, the Keele Centre and the Keele Team Supervision Unit. In other words, the Toronto West Office parole officer who had most recently been responsible for supervising Mr. AB was of the view that on Mr. AB’s “next release” (which I assume was meant from jail), he should be returned to the Keele Enhanced Supervision Unit’s jurisdiction.

181        A recommendation that Mr. AB be returned to the Keele Enhanced Supervision Unit meant that if the recommendation was followed, he would have been placed in one of the following two settings:

a. in the residential unit at the Keele Centre, where he might still have been able to be out in the community, albeit with daily reporting requirements and a curfew; or

b. under the Keele Team Supervision Unit’s supervision, meaning that he could have lived in the community but under the Keele Team Supervision Unit’s supervision, which was more stringent than what the Toronto West Office offered.

182        Ms. Samson then wrote that she could not “… condone the offender’s actions and believe[d] that natural consequences must follow his behaviour” (Exhibit G-20, page 4). Ms. Samson then recommended (Exhibit G-20, page 4) that based on all the information available to her, she was “… of the belief that the offender’s risk cannot be managed in the community at this time and in accordance with s. 135.1(7) of the [Corrections and Conditional Release Act (S.C. 1992, c. 20)], the laying of information to charge the offender under section 753.3(1) of the Criminal Code.”

183        Based on that evidence, I find that the Toronto West Office assessment report must be read as follows:

a. Mr. AB’s action of violating his long-term supervision order by drinking in a bar established that he was no longer a suitable candidate for the type of parole supervision the Toronto West Office provided for offenders living in the community; and

b. on release from jail, he should be returned to the Keele Enhanced Supervision Unit.

184        Nothing states that Ms. Samson thought that Mr. AB should be denied bail or that he could not under any circumstances live in or have access to the community. Rather, there is a recommendation that he should be returned to the Keele Enhanced Supervision Unit and that he would require “ongoing monitoring and structure.” The evidence was clear that the Keele Enhanced Supervision Unit provided more supervision that the Toronto West Office did. It was also clear that such supervision was provided at one of two levels: either the Keele Centre or the Keele Team Supervision Unit. Neither precluded any community access.

185        In addition, nothing in Ms. Samson’s report states that the officers thought that Mr. AB should remain in custody until trial, contrary to what the board of inquiry stated in its Final Report (Exhibit G-1, Tab 1). Indeed, as I have already noted, Ms. Samson’s report speaks only to what should happen on his release. In other words, and assuming that Ms. Samson’s recommendation was put before the Court, it could be interpreted only as a recommendation as to what the Court might reasonably consider doing, were bail granted. And that recommendation was that Mr. AB be returned to the Keele Centre, not that he be denied bail and kept in jail until trial.

186        Nor can Ms. Samson’s assessment be read as her opinion that Mr. AB represented such a risk that he could not be permitted in the community, again contrary to what the board of inquiry stated in its Final Report (Exhibit G-1, Tab 1). Ms. Samson’s recommendation that Mr. AB be returned to the Keele Enhanced Supervision Unit, given the nature of the services it provided, can be read only as an opinion that Mr. AB could be in the community but only if he were under the enhanced supervision provided by the Keele Centre or the Keele Team Supervision Unit.

187        In short, the board of inquiry got it wrong. Its Final Report (Exhibit G-1, Tab 1) misrepresented or at least misunderstood the evidence upon which it based its conclusion that the allegation had been founded.

188        I turn now to the grievor’s December 17, 2010, letter to the Court.

189        The relevant portions of the December 17, 2010, letter have already been set out. It describes the Keele Enhanced Supervision Unit’s services and states that it has room for Mr. AB at the Keele Centre. It states that if the Court ordered his release to the Keele Enhanced Supervision Unit, he could be accommodated there under either “division”; that is, in residence (a bed was available) at the Centre, or in the community, under the Keele Team Supervision Unit’s supervision.

190        All of this is factual. None of this is incorrect. None of this is misleading, especially given that Ms. Samson had stated that Mr. AB ought to be returned to the Keele Centre.

191        The board of inquiry appears to have been particularly concerned about the grievor’s use of the word “welcome” in her December 17, 2010, letter. There are several difficulties with it.

192        First, as I have noted, the board of inquiry took the phrase out of context. The complete sentence was as follows:

In the event that bail is granted in this case, this is to advise that [Mr. AB] would be welcome to return to our supervision—either with the less restrictive [Keele Team Supervision Unit], which would enable him to live in the community in his apartment under stringent supervision requirements, including curfew, or alternatively to life [sic] at the [Keele Centre] which is the halfway house… .

193        The sentence says nothing about whether the Court should grant bail. It does say that if (“[i]n the event that”) bail is granted, Mr. AB would be welcome to return to the Keele Enhanced Supervision Unit. The December 17, 2010, letter does not suggest to the Court which of the two divisions he should be returned to were the Court to decide to release him on bail or even that he should be returned to the Keele Enhanced Supervision Unit. The use of the word “welcome” in context can be read only as a statement that the Keele Enhanced Supervision Unit had no objection to Mr. AB returning to its jurisdiction — a statement that, I might add, was exactly in line with the Ms. Samson’s recommendation.

194        Moreover, the statement that if the Court so chose, Mr. AB could be returned (“would be welcome”), was a reasonable statement, in the context. He was not a stranger to the staff or other offenders in the Keele Enhanced Supervision Unit. He had been there for a number of years. He was familiar with both divisions. Both divisions were familiar with him. It is certainly conceivable that a court might want to know whether there would be a problem following Ms. Samson’s recommendation about his return to the Keele Enhanced Supervision Unit. Perhaps Mr. AB had a poor relationship with certain residents or staff at the Keele Centre, which would have made it preferable to send him elsewhere. The grievor’s December 17, 2010, letter simply addressed that possible concern.

195        Where then is the defect in the December 17, 2010, letter? When read in its totality, is anything misleading or untrue? No — there is nothing. Rather, it was the board of inquiry’s finding that the letter was misleading that was incorrect, based as it was on a selective reading of its text and on a misunderstanding of what Ms. Samson had actually recommended. In short, there was no conflict between the grievor’s letter to the Court and Ms. Samson’s recommendations. Hence, nothing about the letter was misleading to the Court.

196        It may be that Ms. Samson and the grievor had a difference of opinion as to the sincerity of Mr. AB’s efforts to rehabilitate himself. But if so, there was no difference in what either thought or were prepared to accept with respect to what could happen if he was released, which was that he could be returned to the Keele Enhanced Supervision Unit.

2. Communicating with defence counsel, conflict of interest

197        In the letter of discipline, Ms. MacDonald stated that she concurred with the board of inquiry’s finding that the grievor had become “overly involved” in Mr. AB’s case

a. when Mr. AB had been transferred to the jurisdiction of the Toronto West office;

b. when the grievor worked with defence counsel “to support [Mr. AB’s] release on bail”; and

c. when the grievor misled “… the courts into believing that the Service supported the return of [Mr. AB] to the community when in fact the Service opposed his release as he was deemed a risk to public safety.”

198        The first point was not correct. Once Mr. AB violated his parole and was arrested for it, Mr. AB returned to the Parole Board of Canada’s jurisdiction. The Toronto West Office no longer had jurisdiction over him.

199        The third point was also incorrect, as I have detailed.

200        That brings up the second point, the grievor’s communications with Mr. AB’s defence counsel with respect to the bail issue between December 2010 and January 2011.

201        There is no question that the grievor did communicate with Mr. AB’s defence counsel. She did provide counsel with information about the Keele Enhanced Supervision Unit. She did express her concerns — indeed criticism of — what she took to be an unsympathetic attitude of some Crown attorneys and some courts towards offenders on long-term supervision orders. So it is clear that she was involved. However, the questions are whether any involvement in a particular offender’s case was a breach of her duties as a Service’s employee, and if not, whether an over-involvement was, and if so, where the line between acceptable and unacceptable involvement was to be drawn and whether she stepped over that line.

202        First, I did not take it that counsel for the employer submitted that any involvement in an offender’s case was a breach of a Service’s employee’s duties and responsibilities. Indeed, I would have been surprised had such a submission been made. In this respect, I note the provisions of section 3 of the Corrections and Conditional Release Act, as amended, which provide as follows:

3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by

(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and

(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.

203        To help rehabilitate offenders and reintegrate them into the community as law-abiding citizens, surely some Service’s employee involvement is required in their cases. For example, after an offender has spent several years under the supervision of a particular parole officer or a particular Community Correctional Centre, one might expect that officer or Community Correctional Centre to become involved in some way in that offender’s case in the event that that officer or Community Correctional Centre thinks it might help the offender’s rehabilitation. After all, they would have a lot of first-hand experience, over an extended period, with a given offender. Why, then, should their involvement be a breach of their duties, if their involvement could assist in the offender’s rehabilitation, while at the same time ensuring that safe and humane custody and supervision could be maintained?

204        Indeed, the commentary to Standard Four (Relationships with Offenders) appears in fact to assume that such involvement is to be expected, as follows (Exhibit E-2, Tab 17):

Staff must be diligent in their responsibility to record and make available for review all offender information which could contribute to sound decisions affecting the offender or public safety. In addition, staff must give offenders ongoing documented feedback about their behaviour. Staff must respect the race, national or ethnic origin, color, religion, sex, age, language and/or mental or physical disabilities of offenders and be responsive to the various needs of different cultural groups in our society. Ensuring that relationships with offenders remain constructive and professional is a difficult and sensitive task, but is necessary for a professional service. It requires that staff maintain a delicate balance between personal and professional interest in the offender.

205        I do not read this commentary as forbidding any involvement. I read it instead as recognizing that such involvement is part of a Service’s employee’s duties and responsibilities but that precisely because involvement is personal, care must be taken to maintain one’s objectivity.

206        Second, from the commentary, it would appear then that the central issue is not whether the grievor was involved in Mr. AB’s case — and in particular with his bail application — but whether she was overly involved. In other words, was there evidence that would support a conclusion that she failed to maintain the “… delicate balance between personal and professional interest in the offender”?

207        Again, I was not persuaded that the grievor’s January 4, 2011, correspondence with defence counsel caused her to cross any line. The possibly negative views she expressed to defence counsel about the approach of some Crown attorneys and some courts to offenders who had breached their long-term supervision order conditions was neither unusual nor inconsistent with the proper interpretation and application of the law with respect to offenders subject to long-term supervision orders. After all, the Supreme Court of Canada’s majority decision in Ipeelee said as much at para 48, as follows:“… Unfortunately, provincial and appellate courts have tended to emphasize the protection of the public at the expense of the rehabilitation of offenders. This, in turn, as affected their determinations of what is a fit sentence for breaching a condition of [a long-term supervision order].”

208        It seems to me that the real question is whether the grievor’s personal views — or her involvement in Mr. AB’s case — caused her to do anything that constituted a breach of the Service’s standards and policies. I was not persuaded that it did. As I have already noted, her December 17, 2010, letter to the Court was not misleading. Her initial offer to consider being a witness to explain the Keele Enhanced Supervision Unit’s workings was withdrawn once she discovered that — through her own investigation — what Mr. AB had said about the circumstances of his arrest were incorrect. I note that for some reason, the board of inquiry thought that the grievor’s decision to check the veracity of Mr. AB’s account was indicative of her over-involvement. However, it seems to me that her decision to investigate reflected her professionalism. She did not allow herself to take Mr. AB at his word. In other words, she did not permit him to manipulate her. And after conducting her investigation and discovering the inaccuracy in his account, she quite properly withdrew her offer to be a witness.

209        Accordingly, I was not satisfied that the employer had made out its concern that the grievor was overly involved in Mr. AB’s case.

3. Using the “Pop Fund” to purchase Mr. AB’s artwork

210        The discipline letter expressed the concern in this way:

… Your behaviour in allowing an offender to benefit from the sale of artwork by taking $900.00 from the ‘Pop Fund’, and your continual denial that the offender did not gain from this does not reflect those values; as a result that trust had been damaged… .

211        The issue or concern was not clear to me on the evidence. The grievor’s testimony that she had discussed the purchase of Mr. AB’s artwork with others at the Keele Centre before going ahead and that no objection had been raised was not contradicted at the third part of the hearing. Nor is it clear why the fact that Mr. AB benefitted from the “Pop Fund” being used to purchase his art was wrong or a breach of Service’s policy. The evidence was that the “Pop Fund” had been used in the past to benefit offenders, both as a whole and individually, as well as staff. Indeed, one would think that in such a situation, the Service would expect an offender to be paid — and that not paying for his or her art or crafts would be the breach, as it was, for example, in Amos. Nor was the purchase for the grievor’s benefit. Her evidence that the artwork in question hung in a public place at the Keele Centre, that its content was unobjectionable and that it contributed to the Centre’s positive public profile was not challenged. As the receipt noted, the purchase was “… for the benefit of the residents of [Keele Centre], the staff and the public who tour the facility with some regularity” (Exhibit G-1, Tab 1, pages 31 and 32).

212        The fact that what had triggered the purchase was Mr. AB’s need for funds to finance his move into an apartment did not render the purchase a conflict of interest. The money was not intended to help him buy drugs or alcohol or with some other activity that would have breached his long-term supervision order or would have worked against his rehabilitation. Rather, it was intended to assist him in his move into the community — a move that at the time was clearly part of his rehabilitation plan. That being the case, it is difficult to see how the purchase violated either the employer’s principles or its code of conduct.

213        I should also note that the purchase price was paid between May 28, 2009, and July 5, 2009, which was long before the complaint was filed about the grievor’s conduct. The board of inquiry’s decision to dredge this up long after the event that triggered the original complaint — and the employer’s reliance on it — was unfair to the grievor. After all, if the decision to use the “Pop Fund” to provide the purchase funds for Mr. AB’s artwork was problematic, one would have expected a complaint about it to have surfaced.

4. Failing to record conversations or actions with Mr. AB in his Service’s file

214        This ground was made out on the evidence. Indeed, the grievor admitted right from the start that she should have recorded her actions but did not. Mr. Townsend’s testimony — that the computerized record keeping system was cumbersome and that employees did not always record everything concerning an offender in it — may go to mitigation but not to the existence of a breach of the policy respecting the need to record interactions with offenders. I also note that because the grievor occupied a senior management position at the Keele Enhanced Supervision Unit, one would have had all the more reason to expect her to adhere to the recording requirement.

5. Directing the use of a Service’s vehicle for the transport of Mr. AB’s girlfriend’s property    

215        This allegation — and the board of inquiry’s assumption that it had been grounded — was in fact entirely unfounded. There are two basic reasons for this conclusion, one having to do with the way the allegation was worded, and one having to do with the Service’s policies. And in both cases, the board of inquiry came to the wrong conclusion.

a. Allegation’s wording

216        As already noted, the board of inquiry concluded that the grievor had directed or counselled someone (presumably a Service’s employee) to use a Service’s vehicle to transport the property in question. Again, that is not what happened, which was that the grievor asked whether the person would do it; the person refused, and that was the end of it.

217        The point is that there is a difference in meaning between the word “directed” and the word “asked.” The word “directed” carries with it the meaning of an order. For example, the Oxford Online Dictionary provides as one of the meanings of “direct” the following:

3 [with object and infinitive] Give (someone) an official order or authoritative instruction: ‘the judge directed him to perform community service’

[with clause]: ‘he directed that no picture from his collection could be sold’

[Emphasis in the original]

218        To “ask,” on the other hand, is to request permission or to inquire as to someone’s willingness to do something. Thus, it is different from directing them to do something. It is not to order them to do it.

219        The board of inquiry’s use of the word “directed” to characterize what actually happened thus distorted the evidence it had.

220        The objection may be made that even to “ask” was a breach of the rules governing the use of Service’s vehicles. If it was, one would not have expected the board of inquiry to use the word “directed” to make that concern clear. In addition, Ms. MacDonald could point to no specific rule that forbids using Service’s vehicles to transport an offender’s property — let alone that of the offender’s girlfriend or boyfriend. This brings us to the second reason for concluding that the board of inquiry came to the wrong conclusion — the Service’s policy with respect to using its vehicles.

b. Service’s policy about using its vehicles

221        The board of inquiry did not appear to review the Service’s “Internal Services Directive (Fleet Management),” which was introduced at the third part of the hearing as Exhibit G-25. Had it done so, it would have noted the following:

a. offenders were permitted to drive [the Service’s] vehicles on public roads “as part of duties normally assigned to them in minimum and occasionally medium security institutions” para.52; and

b. Normally [suggesting there were exceptions], [the Service’s] personnel and inmates/offenders are the only authorized passengers in a motor vehicle/OME. Due to the potential risk, and liability in the event of an accident, only the Institutional Head/District Director may authorize other passengers (e.g. contractors or children in the Mother-Child Program): para.55.

222        Nothing in that text forbids using a Service’s vehicle to transport an offender or his or her personal effects or, indeed, the personal effects of an offender’s spouse or girlfriend or boyfriend. Nor would it have been surprising that even absent this directive, an offender’s property might sometimes have been transported in Service’s vehicles. After all, if an offender at the Keele Enhanced Supervision Unit is permitted to move out of residence at the Keele Centre into the community, he or she may need help transporting whatever personal property he or she has to the new residence. Since the move would presumably be part of his or her rehabilitation, it is difficult to understand why assisting him or her with transporting his or her personal property would not be a necessary part of his or her rehabilitation and hence a proper use of a Service’s vehicle. I also note that the person the board of inquiry interviewed about this incident appeared to have no difficulty with using the Service’s vehicle to transport Mr. AB’s property but drew the line only at transporting Mr. AB’s girlfriend’s property.

223        But if in a suitable case a Service’s vehicle could be used to transport an offender’s property — and if indeed the Service’s directive permitted offenders to operate its vehicles — then a request to use that vehicle to move the property of an offender’s girlfriend or boyfriend into the same residence to be occupied by the offender would not appear unreasonable. If the grievor’s request represented a misreading of the Service’s directive, it can hardly be a misreading that could be said to amount to a wrongful act.

6. Grievor’s lack of appreciation of the seriousness of her actions

224        This brings us to the concern that Ms. MacDonald expressed about what she called the grievor’s “rationalizations.” Two points can be made.

225        First, as I have noted earlier, the most serious allegations the board of inquiry made against the grievor were not in fact made out; its findings and conclusions were inaccurate and wrong. Faced with such unfounded allegations, it would not be surprising that an employee under investigation would object strongly and attempt to establish the errors in such a report.

226        Second, and as became clear during Ms. MacDonald’s cross-examination, in her lexicon, the word “explanation” was the same as the word “rationalization.” But the two words are different in meaning and effect. A rationalization of a particular act comes close in meaning to a justification of it. An explanation, on the other hand, is simply that — an account of the facts and thinking that went into a particular act. When an employee is asked to respond to an allegation, that employee is necessarily required to explain what happened. That explanation may be an attempt to rationalize or justify what happened. But it may also simply be an answer to the question.

227        It is important to maintain this distinction because the response, whatever it is, may also go to mitigation. For example, an employee who explains that he or she broke a rule because he or she misunderstood it is in an entirely a different spot, as far as discipline is concerned, from one who says that he or she understood the rule but did not agree with it. Ms. MacDonald’s apparent conflation of the two types of responses meant that she characterized (and understood) the grievor’s every attempt to explain why the grievor had done what she did as an attempt to justify what she had done. It also means that apparently, Ms. MacDonald did not take those explanations into account when deciding on the penalty to impose.

228        On another point, investigation reports, even those conducted under the shelter of the PSDPA’s confidentiality provisions, are not entitled to any special deference with respect to their conclusions and recommendations. Any investigator should be expected to be fair in her or his investigation, dispassionate in her or his analysis and even-handed in her or his conclusions. Failing to adhere to these principles can seriously affect the reliability of her or his report and hence render an employer’s reliance on that report fatal; see, for example, El-Helou and Marchand. And as may be clear from what I have said so far, the most serious allegations the board of inquiry made against the grievor in its Final Report (Exhibit G-1, Tab 1) were not in fact founded.

229        And that in turn brings me to the employer’s decision to discipline the grievor. Despite counsel for the employer’s statement that hewould not rely on the Final Report (Exhibit G-1, Tab 1), it is clear that Ms. MacDonald didrely on it in making the decision that she did. And I am satisfied that Ms. MacDonald, deprived as she was of any vigorous analysis of the report that was laid before her, was mistakenly led to take more serious disciplinary action that was reasonably justified by what had happened.

230        It is difficult to read the board of inquiry’s Final Report (Exhibit G-1, Tab 1) without a sense of despair at how badly the investigation fell off the rails. The investigation was launched in response to vague innuendoes about the supposed existence of an inappropriate relationship between the grievor and Mr. AB. It almost immediately sprawled to include vague and contradictory allegations that bore little relation to any clearly identified wrongdoing. The Final Report that was the product of the investigation was similarly flawed. It is not written as an objective presentation of facts and conclusions. Instead, it is replete with innuendo, leaps of logic, incorrect characterizations of evidence and slipshod reasoning. Most if not all facts are given a negative spin or taken out of context in a seeming effort to paint the grievor in the worst possible light.

231        As one example, the Final Report (Exhibit G-1, Tab 1) includes an exhaustive account of Mr. AB’s offences over the years. But his record was not relevant to the board of inquiry’s concerns with respect to conflict of interest or favouritism. Its inclusion could only blacken the grievor’s name and actions by association in a form of drive-by character assassination. As may also be apparent from what I have already outlined, the grievor’s actions are often repeated in a number of different ways, giving the appearance that she had committed numerous acts, as opposed to just one. The report is written in an almost unrelenting tone of condemnation of the grievor. It was not a dispassionate account of the results of the investigation upon which it was supposedly based.

232        To take another example, in the Final Report (Exhibit G-1, Tab 1), the board of inquiry discussed in some detail offenders’ art (not always that of Mr. AB) and how staff considered some of it offensive and how the grievor disagreed. The question of course is what possible relevance this discussion had to the investigation. The issue had nothing to do with the original complaint. Nor was the board of inquiry in any position to adopt — as it did — one opinion of what is after all an intensely subjective topic (“What is art?”). In doing so, the board of inquiry surely overstepped its jurisdiction and the facts. After all, the art had been on public display at the Keele Centre for years. Many had seen it, including the grievor’s superiors. Had the art overstepped the bounds of propriety, one would have expected the employer to have intervened. It did not.

233        I also note that the board of inquiry was launched on an allegation that an inappropriate relationship existed between the grievor and Mr. AB. However, the board of inquiry apparently overlooked that the term “inappropriate relationship” is defined in the Service’s “Standards of Professional Conduct.” I have already quoted Standard Four (Relationships with Offenders); see Exhibit E-2, Tab 17. Under the heading “Discussion and Relevance” is found the following:

Inappropriate relationships include, but are not limited to, concealing an offender’s illegal activity, using inmate services for personal gain, and entering into business or sexual relationships with offenders, their families, or their associates. Supervisors are expected to take prompt action when they see signs that an inappropriate relationship between an employee and an offender exists or could develop.

234        Yet none of the ground vigorously tilled by the board of inquiry exposed anything that could reasonably be said to fall within that definition. There was nothing sexual, no use of Mr. AB’s services for the grievor’s personal gain, and no business relationship with Mr. AB or his friends or family. In the end, all the board of inquiry could point to were actions that, as I have already detailed, were neither conflicts of interest nor violations of the grievor’s duties and responsibilities as a Service’s employee.

V. Conclusion

235        Based on all that, I am satisfied that there were grounds, albeit limited and minor, for discipline. Those grounds related solely to the grievor’s failure to record her actions in the employer’s computerized record keeping system in December 2010 and January 2011. Even still, I note that her actions during that time do not appear to have been a secret. She testified that she did discuss with others at the Keele Centre the use of the “Pop Fund” and whether Mr. AB could come back to the Keele Enhanced Supervision Unit were he released. She discussed the December 17, 2010, letter to the Court with Mr. Townsend. And her actions appear to have been public enough at the time to enable three complainants (presumably Keele Centre staff) to file complaints almost immediately after Mr. AB’s release to the Keele Centre.

236        At best, then, the grievor’s failure to maintain a record of her actions in the computerized record keeping system warranted some censure. I was not satisfied on balance that the employer established on the evidence that its decision to demote her was justified. Nor would the evidence have supported a suspension of any kind. At best, the grievor’s lapse, in my view, would have warranted no more than a letter of reprimand.

237        Accordingly, I must allow the grievance.

238        This brings me to the question of remedy.

239        I am satisfied that in these circumstances I do not have jurisdiction to reinstate the grievor to her position; see Mutart v. Deputy Head (Department of Public Works and Government Services), 2013 PSLRB 90, at paras 93 to 95 (upheld in 2014 FC 540). Her resignation was voluntary. The fact that it might have been based on bad legal advice does not grant me the jurisdiction to reverse that decision. Her remedy in respect of her reliance on such advice, if any, is against her former counsel.

240        As far as damages or losses are concerned, the grievor retired on October 21, 2011. Because of the welter of issues involved in this matter, it is not clear to me whether she suffered any loss of salary or other benefits before October 21, 2011, as a result of the employer’s decision to discipline her by way of a demotion. If she sustained any such loss, she is entitled to be made whole up to October 21, 2011. Accordingly, I will remain seized of this matter for 30 days from the release of these reasons to address any issue about the calculation of any such loss.

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

VI. Order

242        The grievor’s motion to set aside the finding that her decision to retire was voluntary is dismissed.

243        The grievance is allowed.

244        The employer is ordered to pay to the grievor the equivalent of any loss of salary or benefits that she sustained up to October 21, 2011, as a result of its decision to demote her.

245        I will retain jurisdiction for 30 days to deal with any issue arising from this order.

May 5, 2016.