Date: 20210831

Files: 566-02-14698 and 39234

 

Citation: 2021 FPSLREB 100

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

ADAM WEINSTEIN

Grievor

 

and

 

DEPUTY HEAD

(Correctional Service of Canada)

 

Respondent

Indexed as

Weinstein v. Deputy Head (Correctional Service of Canada)

In the matter of individual grievances referred to adjudication

Before: Joanne B. Archibald, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Orlagh O’Kelly and Caitlyn Field, counsel

For the Respondent: Marc Séguin, counsel

Heard by videoconference,

January 5 to 8, 18, 19, 21, and 22, and February 1, 2, 4, 5, 11, 17, and 18, 2021.

 

REASONS FOR DECISION

I. Individual grievances referred to adjudication

[1] The grievor, Adam Weinstein, formerly a correctional officer (“CO”) classified CX-01, grieved his suspension without pay and subsequent termination from employment by the Correctional Service of Canada (“CSC” or “the respondent”) on the ground that they were without cause. He was suspended without pay on September 13, 2017, pending a disciplinary investigation. Following the investigation and a subsequent disciplinary hearing, the grievor was notified on July 23, 2018 that his employment was terminated, effective September 13, 2017.

[2] Both grievances were referred to the Federal Public Sector Labour Relations and Employment Board (the “Board”) pursuant to s. 209(1)(b) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; the “Act”), as “a disciplinary action resulting in termination, demotion, suspension or financial penalty”.

[3] According to the grievor’s termination letter, the respondent determined that he displayed inappropriate conduct involving inmates: (i) that he witnessed an assault of an inmate, did not take any action to stop or prevent it and failed to accurately report it; and (ii) that he called on inmates to fight him, orchestrated fights between them, attempted to intimidate them and called them inappropriate names. The respondent also concluded that the grievor displayed inappropriate conduct, including bullying and intimidation, towards employees and that he attempted to influence a staff member to change their statement of observation report (“SOR”) following an assault.

[4] The respondent has the burden of showing that the grievor engaged in the alleged misconduct. As detailed in this decision, I find that the respondent did not demonstrate cause for discipline. Therefore, the grievor’s termination was not warranted and the grievances are allowed.

II. Background

[5] The grievor was a CO classified CX-01 from his appointment on July 23, 2012, until his suspension and eventual termination.

[6] For the duration of the grievor’s employment, his position was located at the Edmonton Institution (EI) at its G unit. He was a member of the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“UCCO-SACC-CSN”).

[7] EI is maximum-security. As explained by Gary Sears, the current warden, its 260 inmates represent some of the most difficult cases to manage. He described the inmates as aggressive, high risk, and resistant to change or the opportunity for change.

III. Summary of the evidence

[8] Throughout this decision, and with the parties’ consent, inmate identities have been anonymized by using alphabetic designations.

A. Suspension without pay on September 13, 2017

[9] Clovis Lapointe was EI’s warden on an acting basis as of the grievor’s suspension without pay. He evaluated whether to suspend the grievor with or without pay. He concluded that a suspension without pay was warranted, notified the grievor of the suspension without pay, and convened the board of investigation.

[10] The TLS report of March 12, 2017, preceded the grievor’s suspension. It was described by Mr. Lapointe as a “temperature tool” or a “wellness tool” that CSC commissioned to assess EI’s work environment. Mr. Lapointe explained that it painted EI in a negative light and described it as a toxic workplace. It suggested that most interviewees believed that five or six unnamed COs were at the root of every issue. Much of the information in it was anonymous.

[11] According to Mr. Lapointe, both before and after the TLS report was issued, CSC Commissioner Don Head went to EI to meet with employees directly and in confidence, without fear of repercussion. Mr. Lapointe recalled that there was a general mistrust of middle management, which was why Commissioner Head became directly involved. He estimated that the Commissioner met with 80 to 90 employees. The Commissioner held town-hall meetings and established a telephone tip line. Employees made allegations and, possibly, inmates did also, although Mr. Lapointe was uncertain.

[12] When the decision was made to investigate the grievor’s conduct, Mr. Lapointe determined that a suspension without pay was warranted for the period of the investigation.

[13] On September 13, 2017, Mr. Lapointe called the grievor at his residence to advise him of the suspension without pay and the grounds for it. A disciplinary board of investigation was to look into the matter. Mr. Lapointe stated that he gave the grievor no particulars of the allegations as doing so would have identified who made the complaints. He said, “We were not going to give away who said it.”

[14] Mr. Lapointe recalled that the grievor was very upset during the telephone call. He asked for access to his workplace email and documents stored on CSC servers. His request was refused. Mr. Lapointe explained that once the grievor was suspended, he had no access to information stored in the CSC’s systems, except through an access-to-information request. Only the investigators had direct access.

[15] A letter of suspension was provided to the grievor shortly after the telephone conversation. It described the allegations as follows:

• physical assault and sexual assault of employees at Edmonton Institution;

• personal harassment and sexual harassment of employees at Edmonton Institution;

• inappropriate conduct involving inmates at Edmonton Institution;

• misuse of Correctional Service of Canada (CSC) property; and,

• breaches of Employer policies, procedures, directive, and other legislation.

 

[16] It is important to note from the outset that the allegations of physical and sexual assault and personal and sexual harassment were not remitted to the board of investigation. They were sent to the Edmonton Police Service (EPS) for investigation. During the hearing, the Board was presented with a statement from the EPS advising that it had closed the investigation and that it would take no action.

[17] On October 27, 2017, the grievor was notified of a further misconduct allegation: “... inappropriate conduct, including bullying and intimidation, towards employees at Edmonton Institution ...”.

[18] Based on the allegations, the board of investigation was convened and the investigation was launched. Mr. Lapointe was uncertain as to how the board members were selected.

[19] Mr. Lapointe stepped down as warden and on January 8, 2018, and Mr. Sears replaced him.

[20] Mr. Sears had no personal knowledge of the grievor. Before starting, he was briefed by Commissioner Head, Senior Deputy Commissioner Alain Tousignant, and former Senior Deputy Commissioner Fraser MacAulay about the report. Mr. Sears had read and knew that the report spoke of dysfunctional labour relations and the possibility that employees had engaged in illegal and unauthorized activities at EI.

[21] Mr. Sears testified that he continued the grievor’s suspension without pay for the duration of the investigation. He did consider whether the grievor could be managed safely in his position or elsewhere in the CSC or the federal public service. He concluded that it was unsafe to allow the grievor back into the workplace due to the state of EI at that time, which he described as highly unstable. According to Mr. Sears, the grievor’s presence might have been disruptive, and he might have engaged in bullying or intimidation in the workplace. He did not consider reinstating the grievor’s pay.

[22] On April 26, 2018, the board of investigation issued its report. It stated that two allegations were founded, specifically, inappropriate conduct involving inmates at EI, and inappropriate conduct, including bullying and intimidation, toward employees at EI.

[23] Mr. Sears convened a disciplinary hearing on June 15, 2018. On July 23, 2018, he terminated the grievor’s employment effective September 13, 2017.

[24] The evidence that follows has been organized to correspond to the grounds that the respondent relied on to terminate the grievor’s employment.

B. Whether the grievor displayed inappropriate conduct involving inmates at EI

1. G unit

[25] Throughout his employment, except for brief periods, the grievor was assigned to “1&5” squad in G unit at EI. A number of witnesses described G unit. Their evidence gives context to the workplace.

[26] Carin Taylor, now retired, was formerly a correctional manager (“CM”) at EI. She recalled that the population of G unit consisted of problematic inmates. It was one of two units that had a more structured plan for inmates than elsewhere in EI. The STEP or Security Threat Elimination Program was used for G unit for inmates who could not be housed elsewhere. It was, according to Ms. Taylor, a program for problematic inmates who had been removed from segregation. The goal was to reintegrate them into the general population.

[27] Mark Pauline, now retired, testified that he was a CM on G and H units at EI from 2012 through 2017, except when he was assigned other duties. Mr. Pauline explained that the COs on G unit are placed on one of three squads. The squad members always work on-shift together. He confirmed that the grievor worked on the 1&5 squad. Mr. Pauline recalled that other 1&5 squad members included COs Mohammad Naqvi, Jordan Bailey, and Mark Tilles who also appeared as witnesses during this hearing.

[28] Concerning use of force, Mr. Pauline testified that it was known that G unit housed particularly dangerous inmates within EI. Inmates in a maximum security institution are high risk in terms of public safety and escape. Force was used when necessary to prevent assaults and attacks. Housing a population of non-compliant inmates together in one unit increases use of force incidents because of the inmates’ nature.

[29] Mr. Pauline stated that when he was the CM, as a new inmate arrived on the unit, he was welcomed and was advised that on G unit, 100% of the rules in the inmate handbook would be enforced. The rules were there for the safety of inmates and staff.

[30] Mr. Pauline described the grievor as an excellent employee, always eager to learn, and stated that he was very “by the book.” In Mr. Pauline’s opinion, while inmates might not like rules being enforced, they expect consistency, which the grievor delivered. He applied the rules and never became angry or frustrated. He got the job done.

[31] The grievor testified that the population of G unit represented some of the most problematic inmates in the country. The inmates were violent and did not listen or conform to laws, rules, or policies. They were challenging to manage. He was trained to remain professional at all times, to understand that the inmates were serving their sentences and that they should be respected. It was his duty as a peace officer to uphold the law, report wrongdoing, and be ethical in his conduct.

[32] The grievor testified that inmates received a handbook with the law and policy that COs had to impose and follow. It covered dress and deportment and the requirements to stand for count and respect the rules and policies throughout their time at EI.

[33] The grievor stated that all G unit COs enforced the rules and policies to make sure that the inmates and COs were as safe as possible.

[34] The grievor stated that he had positive relationships with the inmates on G unit. In his view, the inmates were working toward becoming law abiding citizens. It was not his job to make their lives miserable, but they had to respect the law, policy, and procedure. He felt that although it took them a while to adjust after arriving from other units, they liked the routine and consistency of G unit.

[35] According to the grievor, required rounds on G unit were completed once in each 60-minute period so that prohibited or illegal activities could be caught and stopped. During a round, COs verified that each inmate was alive and breathing and that nothing was out of context.

[36] Standing counts were conducted several times per day, as mandated. At a minimum, two COs worked together. They announced the standing count as they entered a range. The inmates were required to stand and face the COs, who then confirmed and recorded the number of inmates. Standing for count was enforced on G unit, and an inmate would be charged if he failed to stand.

[37] Mr. Naqvi, who left EI in 2016 to join the EPS, testified that the institutional rules were enforced on G unit. He recalled that those inmates were ex-gang unit, had left segregation, or did not get along well on other units.

[38] According to Mr. Naqvi, it was common for inmates to push back when they arrived on G unit as some units were, in his words, “lackadaisical” about enforcing the rules. When working overtime on other units, he had observed failures to enforce the rules, which could lead to a loss of control over inmates and to major incidents.

[39] Mr. Naqvi acknowledged that use of force incidents occurred on G unit, which he attributed to the inmate population profile. He never witnessed an excessive use of force.

[40] Mr. Naqvi also provided evidence on standing counts. If an inmate did not stand for a count, it could mean that he was dead in his cell, which would be unknown until morning. Mr. Naqvi remembered Inmate D arriving in G unit, refusing to stand for counts, and swearing at COs.

[41] In Mr. Naqvi’s view, Inmate D was not used to the way the rules were enforced on G unit, which clashed with how he thought he should reside there. He recalled that the grievor responded directly when Inmate D became threatening with him. He would tell Inmate D that he was on the verge of becoming assaultive and that force would be used if he tried to physically assault a CO.

[42] Mr. Naqvi added that it was always done fairly. A few inmates would challenge the COs, who would first explain the purpose for standing counts and involve the inmate unit representative before resorting to laying institutional charges.

[43] Mr. Bailey was a CO on G unit from October 2014 until September 2018, when he transferred to another institution. He worked on 1&5 squad with Mr. Weinstein. He confirmed that the members of a squad worked together every single day.

[44] Mr. Bailey testified that the population of G unit included the most hostile inmates at EI. Fights occurred among them all the time.

[45] Concerning the relationship between COs and inmates, Mr. Bailey testified that the COs on G unit enforced the rules for inmates as they were written. He stated that the inmates did not like the grievor because he enforced the rules and held them accountable.

[46] Mr. Bailey explained that inmates were assigned to G unit because they did not follow the rules elsewhere. On G unit, inmates were required to stand and face their cell doors for a count, even though no other unit did so. Range walks, as well, were conducted as required, within one hour of the previous round. Adhering to standing count and range walk rules created hostility from inmates toward the COs.

[47] Mr. Bailey knew that G unit enforced the rules more strictly than other units because he had worked overtime on other units, which allowed inmates to lay down, and the COs just walked down the ranges. On those units, he could not enforce the rules as he would have on G unit, as doing so would have created friction with COs and inmates.

[48] Mr. Bailey recalled the board of investigation telling him that G unit had the highest number of incidents of use of force in the country. He stated that he did not find this information surprising as G unit housed the most hostile inmates in the country in one place. Inmates and staff were assaulted regularly, and weapons were found. He never witnessed an excessive use of force.

2. Allegation of failing to report or participating in an excessive use of force

[49] As for inappropriate conduct involving inmates, it was first alleged that the grievor witnessed an excessive use of force against an inmate, did not take action to stop or prevent it, and failed to accurately report it.

[50] Richard Wilkie was a CO at EI. As of the hearing, he was still in the CSC’s employ, although his position was located elsewhere and his position has changed. He stated his understanding that inmates on G unit were considered a higher security threat and were involved with gangs and with leading them.

[51] On March 12, 2013, Mr. Wilkie responded to G unit as a member of the institutional Emergency Response Team (ERT) to an assault of a CO by Inmate A.

[52] Mr. Wilkie identified this SOR that he completed on March 13, 2013, to describe the incident and his involvement:

...

On the above date and time [March 12, 2013, at 13:00] the writer responded to a staff assault on Lower G Unit. Upon arrival to lower G Unit the writer observed Inmate [A] actively resisting 3 officers attempting to restrain him. Inmate [A] was moving in a forceful manner in an effort to resist and all verbal commands and physical handling attempted in an effort to safely restrain him. Inmate [A] was then drug to the ground outside the cell where the writer was able to assist with restraining Inmate [A] with handcuffs to the rear. Once restrained Inmate [A] stated that he would try and bite an officer once he was on his feet and that if he could not bite an officer he would spit in their face. The writer then assisted escorting Inmate [A] to HCC for an examination by a nurse. Following the examination the writer assisted with escorting Inmate [A] to A and D to be searched by the BOSS chair, in which nothing was found. Once the BOSS chair search was completed the writer assisted with escorting Inmate [A] to the shower on lower 1 in D and S. Once Inmate [A] was secured in the shower the writer removed the handcuffs from Inmate [A]. This concludes my involvement with this incident.

...

[Sic throughout]

 

[53] Mr. Wilkie confirmed in testimony that when he arrived, he witnessed three COs wrestling with Inmate A in his cell. Oleoresin capsicum spray (“OC spray”) had already been deployed in an attempt to control the situation. Mr. Wilkie described OC spray as causing watery eyes and runny nose and difficulty breathing and possibly causing a person to involuntarily close their eyes.

[54] Mr. Wilkie assisted with moving Inmate A to the floor of his cell and applying handcuffs behind him. Once restrained, Inmate A was lifted to his feet and moved from his cell and the unit. He was maintained in a posture that kept him bent forward at the waist. Mr. Wilkie recalled someone saying to be careful, as Inmate A would spit. He also recalled someone saying to watch his head.

[55] Mr. Wilkie identified Ms. Jackie Mikalsky and the grievor as the principal COs escorting Inmate A. Ms. Mikalsky is the grievor’s partner.

[56] Mr. Wilkie stated that during the escort, Ms. Mikalsky intentionally caused Inmate A’s head to strike a shower barrier on lower G unit by her placing her hands directly on his head and pushing it. He stated that this action was repeated three times: at the shower barrier, at the exit doorway from G unit, and at the entry to the front hall. Inmate A’s head was cut as a result, according to Mr. Wilkie.

[57] Mr. Wilkie explained that he did not report the incident as an excessive use of force but it bothered him. In September 2017, he attended a town hall meeting at EI. CSC Commissioner Head presided over the meeting and encouraged the attendees to come forward and report any wrong-doing that they had witnessed first-hand to a CSC tip line. Mr. Wilkie called the tip line to report an excessive use of force during the March 12, 2013, escort and to report that Ms. Mikalsky pushed Inmate A’s head into doors and barriers during the escort.

[58] A video recording of the portion of Inmate A’s cell extraction from his cell to a staircase on lower G unit was placed in evidence and shown to Mr. Wilkie. While viewing it, he identified the participating COs including himself, the grievor, Ms. Mikalsky, CM Pauline, and others.

[59] Mr. Wilkie clarified that he was not suggesting that the grievor acted to harm the inmate. In his view, only Ms. Mikalsky was implicated. On viewing the video, he pointed to a moment at which, in his opinion, Ms. Mikalsky caused Inmate A’s head to strike against the shower barrier on lower G unit.

[60] The grievor testified that he helped move Inmate A from G unit on March 12, 2013. He attended at Inmate A’s cell with CO Mikalsky and others.

[61] While Inmate A was packing to move, the grievor observed him putting CD cases in his bag. The grievor explained that CD cases are not allowed in an institution as they can be fashioned into knives. When he intervened, Inmate A threw the cases at him. This was assaultive behaviour, and the grievor deployed OC spray. Inmate A then punched the grievor in the left cheekbone and eye area. The grievor grabbed the inmate and held him while other COs responded to assist and handcuff Inmate A, and then remove him from the cell to the hallway.

[62] The grievor recalled that a large escort responded when Inmate A became assaultive. They escorted Inmate A from the unit; he continued to resist.

[63] The grievor testified that he continued with the escort of Inmate A from G unit to the healthcare unit. They squeezed through doorways. He recalled bumping into barriers, doors, and door frames as they maneuvered along the route. Safety was paramount, but control of the inmate had to be maintained, and the COs could not let go of him to negotiate doorways.

[64] The grievor, too, viewed the video recording. He stated that he has asthma and that this incident was his first exposure to OC spray at EI. He explained that because of the OC spray exposure, he had trouble breathing and his eyes were swollen. Before seeing the video, he had not known the identity of each CO who participated. On viewing it, he identified himself and the control he maintained by holding on to Inmate A’s arms.

[65] While the video has no soundtrack, the grievor remembered much verbal communication among the escort’s members. The inmate was wriggling and fighting, and the escort pushed and pulled, trying to maintain control. The COs called out “door, door” as they proceeded through doorways. Someone said, “Watch his head”, but the grievor was not certain who.

[66] Inmate A was bleeding by the end of the escort, as was the grievor. He recalled that Inmate A was escorted to the healthcare unit for his injury. There was concern that the grievor had been bitten by the inmate and that he had been exposed to blood.

[67] According to the grievor, at the end of the escort, CO Wilkie accompanied him and gave him access to the ERT shower area for decontamination. The grievor recalled having to pry open his swollen eyes with his fingers during the shower. Later, CO Mikalsky drove the grievor to a hospital for medical attention.

[68] The grievor submitted a SOR about the incident with Inmate A. He wrote that the event occurred on March 12, 2013, at 13:37, and added this:

...

At the above date and time I, CX1 Weinstein, CX2 Baird, CX1 Dubicanic [sic], CX2 Olson, Correctional Manager Pauline were working G unit. I and other officers escorted I/M [A] from the phone room to his cell G-009 and informed I/M [A] that he would be changing cells. I/M [A] entered his cell and displayed cooperative behaviour, the cell door was then closed so he could pack his belongings. I/M [A] informed officers that he was ready to move and that he needed a garbage bag. The cell door was breached to move I/M [A] to cell G-012, I/M [A] became verbally resistive and belligerent to staff. I/M [A] then became assaultive when he threw tapes at officers. This writer deployed MK9 [OC spray], I/M [A] became assaultive by striking this writer in the face with a closed fist. Verbal orders were giving [sic] to I/M [A] to prone out and stop resisting, I/M [A] was wriggling. This officer used physical to gain compliance. I/M [A] was handcuffed and escorted to healthcare to be treated and decontaminated. This completes my involvement.

...

 

[69] The SOR is dated March 13, 2013, at 07:00. The grievor explained that the SOR was delayed because he was transported to a hospital after the escort. He did not return to EI until the next day, and he completed the SOR then.

[70] The grievor testified that he was never involved in an excessive use of force at EI. Had he been, he would have reported it just as he would have reported any CO if they had injured Inmate A on purpose.

[71] Mr. Pauline stated that he gave the initial order to move Inmate A. As the CM, he was responsible for inmate safety and for directing staff.

[72] Mr. Pauline explained that anything outside the use of force model constitutes an excessive use of force. For example, not following the continuum of dynamic intervention from physical presence, verbal direction, assessment, reassessment, stepping away to let the inmate de-escalate, physical handling, chemical agent, baton, up to a firearm.

[73] Mr. Pauline viewed the video recording of the cell extraction. It showed him at the scene. He stated that it was clear that the inmate was resisting and assaultive. The video did not record any excessive use of force, in his view.

[74] Mr. Pauline added that additional cameras covered the rest of the route from G unit to healthcare. Those recordings, if they exist, were not put before the Board at the hearing.

[75] Mr. Pauline reviewed his SOR, which recorded that Inmate A had been bleeding from his scalp and had received medical attention. His SOR describes the events and records the following:

...

... I escorted inmate [A] to Health Care with other staff as he was bleeding from an unknown area. Inmate [A] was seen by Health Care for a gash on his scalp and was then escorted to Administrative Segregation where he was decontaminated. The writer conducted a post use of force medical assessment with nurse Nicole GUZZI. Inmate [A] had no issues with the force used nor did he want to provide a statement to the institutional head.

...

 

[76] Mr. Pauline testified that under policy, there is a requirement to speak with the inmate about the use of force. This is recorded on video with a nurse, to show that the inmate is given adequate medical attention and to discuss issues with the amount of force used. The recording is maintained by CSC as a record. The recording, if it exists, was not placed before the Board.

[77] A “Use of Force Report” was placed in evidence. The portion completed by the nurse includes the question, “Does the inmate have any complaints of pain or injury related to the use of force?” The word “No” is circled, followed by the written answer, “i/m did not complain of any injuries on camera.”

[78] Ms. Mikalsky testified and denied causing Inmate A’s head to strike any surface during the escort. She recalled that he was punching, biting, headbutting, and spitting. Force was used during the incident, which included physical handling, OC spray, and restraints. She recalled that several COs were injured.

[79] Ms. Mikalsky clarified that she was not personally involved with the grievor at the time of this incident except as a work partner. She drove him to the hospital for medical attention after the incident.

[80] Ms. Mikalsky reviewed the video evidence and stated that she recalled nothing happening to the inmate around the shower door. As she watched, she described the event. Inmate A did not cooperate as the COs worked together to maintain control. She observed herself holding Inmate A’s arm and later his back as the escort climbed stairs. She also described other areas in EI that the escort moved through, and that would have been monitored by cameras. As noted, no other video evidence was produced.

[81] SORs were also submitted by COs Dubicanac, Mikalsky (then Baird), Olsen, Laurie, and Griffith, and CM Pauline, all of whom responded to the incident. Each SOR notes that Inmate A was assaultive toward the COs while in his cell and that OC spray, physical handling, and restraints were used. None of the SORs records Ms. Mikalsky removing her hands from Inmate A, causing his head to strike any object, or using excessive force at any point during the escort.

3. Allegation of orchestrating fights, intimidating, and calling inmates inappropriate names

[82] The second aspect of the inappropriate behaviour toward inmates was the respondent’s assertion that the grievor called on G unit inmates to fight with him, orchestrated fights between inmates, attempted to intimidate them, and called them inappropriate names.

a. Fight club allegations

[83] Ms. Taylor spoke of fight clubs at EI in which COs would set up fights between inmates. She recalled observing one fight in 2011 on G unit. That year precedes the grievor’s employment with CSC. She had no other knowledge of fight-club incidents involving inmates. She spoke of them generally and had no direct knowledge implicating the grievor.

[84] In 2012, Mr. Pauline heard an allegation of a fight club in the past. It was claimed that “2&4” squad would allow inmates to fight. Mr. Pauline understood that an investigation team was brought in and that it found no evidence of a fight club. He never witnessed anything that would support a suggestion that a fight club existed at EI.

[85] Mr. Naqvi was a CO on G unit from January 2014 onward on the 1&5 squad. He was present every working day with the grievor. He explained that he was new to law enforcement and that he developed a good, professional relationship with the grievor. He was clear on expectations and on how to operate. They became friends outside the workplace.

[86] Mr. Naqvi heard rumours of a fight club in which two inmates were made to fight one another in 2011 or 2012, which resulted in a murder. This was before he arrived at EI. He never witnessed anything of that nature while he worked there.

[87] Mr. Bailey, too, heard of a fight club, in which staff set up fights between inmates. The rumour attributed the fight club to a STEP unit that existed some years earlier. He never saw anything like it.

[88] Inmate D was called as a witness. He told the Board that he was extremely uncomfortable and that he was present to testify only because he was “dragged in.”

[89] Inmate D was formerly an inmate on G unit at EI. He stated in evidence that he “vaguely” remembered the grievor.

[90] Inmate D recalled that on G unit, inmates were obliged to stand for rounds, and stated that that requirement was not enforced on every unit. Standing for rounds rubbed him the wrong way.

[91] Inmate D said that when he was new to G unit, he “butted heads” with the grievor. He did not like the grievor’s position that the COs ran the unit and that the inmates did not. He felt that in his former unit, the inmates ran it, and he did not like being told that things were different on G unit.

[92] Inmate D testified about his assault on Inmate E. He remembered that when Inmate E transferred to G unit, Inmate F approached him and said that he was planning to attack Inmate E because of his attitude. Inmate D told Inmate F he would do it instead, as Inmate F had a bad shoulder.

[93] Inmate D then initiated the assault on Inmate E, and the COs stepped in to stop it. The matter was resolved between the inmates through mediation, and institutional charges were not laid.

[94] Inmate D testified that a few days later, the grievor brought Krispy Kreme doughnuts to the unit office. Some inmates were in the unit office eating them. Inmate D was invited in and was told to take two doughnuts as a reward for fighting with Inmate E.

[95] Inmate D stated that he was completely certain that the doughnuts were Krispy Kreme as he had never had them before. Inmate D also testified that after that day, the COs on G unit offered him food a few times.

[96] In evidence, Inmate D named the other inmates who were present in the office. None of them was called to testify before the Board.

[97] According to Inmate D, the grievor later retrieved Inmate D’s stereo and delivered it to his cell.

[98] Inmate D then approached Inmate F, who disclosed to him that there was more to the assault than Inmate D was aware of and that things had been ongoing with Inmate E in Segregation before he was brought to G unit. According to Inmate D, he told Inmate F that he felt like he had committed the assault for the staff, and Inmate F responded, “Sort of.”

[99] Inmate D considered that the doughnuts and the stereo delivery were rewards for assaulting Inmate E.

[100] Inmate F was not called as a witness.

[101] The grievor testified that Inmate D was originally assigned to G unit because of threats and bad behaviour elsewhere. When he initially arrived on G unit, it was made clear to him that he would follow the laws and policies or he would be charged. Later, if he was threatening or assaultive, the grievor would direct him to stop, or force would be used.

[102] In the grievor’s experience, once an inmate saw consistency and routine, he got used to it. For a brief period, it could have been considered that Inmate D and the grievor were butting heads as Inmate D displayed an attitude and talked back. After the initial period, the grievor found his relationship with Inmate D professional and respectful.

[103] The grievor remembered that Inmate D was involved in several fights, which would be found documented in the respondent’s records.

[104] The grievor recalled Inmate D’s assault on Inmate E. The grievor testified that he was in the unit office when he heard it. He arrested Inmate E, took him for a decontamination shower, and returned him to the unit. He recalled that a mediation then took place between the inmates. He was positioned outside the room where the mediation then took place. His role was to intervene if fighting recurred.

[105] The grievor stated that he had no knowledge of any inmate giving Inmate D information to assault Inmate E, and he had no involvement in organizing the fight.

[106] Mr. Pauline recalled that Inmate E was assigned to G unit following a serious assault on an inmate on another unit. Inmate E was very loud about his opposition to being removed from the general population and assigned to G unit, but later, he calmed down.

[107] Within several hours, the fight with Inmate D broke out. OC spray was deployed, and the fight ended.

[108] Mr. Pauline interviewed both inmates after the assault, to determine the next steps. In his opinion, after evaluating the risk and reason for the fight, he believed that mediation would be successful. Both inmates agreed to participate and were placed in an area with COs nearby to intervene if necessary. The mediation successfully ended the matter.

[109] Mr. Pauline then wrote a SOR to record the fight, mediation, and apparent resolution.

[110] Mr. Bailey remembered the fight between Inmate D and Inmate E. He identified the SOR that he completed on November 20, 2015, about the fight. It records that he first saw the fight on camera and that he responded. With the grievor, he escorted Inmate E for decontamination. He also returned Inmate E to the CM’s office for mediation with Inmate D.

[111] Mr. Bailey testified that Inmate D explained that he attacked Inmate E because Inmate E was being loud on the range. Mr. Bailey stated that when an inmate causes a scene, the range is locked down. He thought that Inmate D attacked Inmate E because inmates do not like being locked down.

[112] Mr. Naqvi testified that he heard a radio transmission about the assault. It notified him that there was fight on G unit. He, too, responded and later completed an SOR.

[113] With respect to Inmate D’s evidence that the grievor brought doughnuts to G unit, the grievor denied the allegation that he had ever taken Krispy Kreme or any other kind of doughnuts to the inmates. According to the grievor, Krispy Kreme doughnuts are not available in Edmonton. In any event, at no time would any CO bring food of any kind into EI for an inmate.

[114] Addressing Inmate D’s evidence concerning his stereo, the grievor stated that after Inmate D put in a request for his stereo and the CM signed it, the grievor retrieved it for the inmate as part of his CO duties. CSC’s record of the request was not placed in evidence.

[115] Mr. Naqvi confirmed in evidence that COs never brought food into EI for inmates. Mr. Bailey testified that other than regular meals prepared in CSC kitchens at other institutions, food for inmates is not brought into EI.

[116] Mr. Sears stated that it would be extremely unusual for a CO to bring food into EI and that it could be done only with permission.

b. Intimidation and name calling

[117] Inmate D testified that the grievor called him a “bitch” because he would not step out of his cell to fight when challenged. He also recalled an occasion when he refused the grievor’s order to clean the servery and told the grievor to “f*** off”. According to Inmate D, the grievor returned with another CO, removed him from his cell, and in the inmate’s word, “tornadoed” his cell.

[118] The grievor denied calling Inmate D names. Concerning a cell search, the grievor stated that he was sure that he had searched Inmate D’s cell multiple times in the course of his work. Cell searches were mandated. Had an incident with Inmate D occurred, it would have been documented.

[119] Laura Gall was a CO at EI. As of the hearing, she was absent from the workplace and was receiving workers’ compensation board (WCB) benefits. At one time, she worked on G unit, but she left sometime in 2013 to train to become a detector dog handler.

[120] In April 2018, Ms. Gall reached out to Mr. Sears about her WCB claim. They both agreed in evidence that the grievor was not mentioned at their meeting. Ms. Gall stated that she also came forward to speak to the board of investigation as the WCB told her that her claim would not be accepted unless it was investigated. She described the grievor as a minor part of her larger of her WCB claim.

[121] Ms. Gall recalled inmates telling her that they were afraid of 2&4 squad on G unit. When it was put to her that the grievor worked on 1&5 squad, she stated that she associated him with the members of 2&4 squad and that perhaps he had worked overtime with them. She could not remember time frames but then stated that she believed that they worked together on 1&5 squad. She stated that logbooks would confirm when. No CSC logbooks or work schedules were produced to confirm whether or when they worked together.

[122] Ms. Gall described the grievor as a “heat bag”, which she defined as someone who antagonizes inmates. According to her, the grievor regularly poked or prodded inmates and encouraged reactions from them. She recalled no specific dates, times, or locations at EI and provided only a general recollection. She said that a handful of times, she saw him challenge an inmate to hit him but that she never saw an inmate assault the grievor. She could not identify the inmates involved.

[123] Ms. Gall acknowledged that video cameras were trained on the range in G unit. While they did not record audio, they would have captured the grievor standing in the cell doorway challenging the inmate. No video evidence was produced to show this.

[124] Ms. Gall stated that the grievor called inmates names like “f***ing goof, skinner, and asshole.” She agreed that calling a G unit inmate one of those names would result in a negative response and would potentially trigger an assault.

[125] Ms. Gall did not recall ever completing a SOR on the grievor’s behaviour toward inmates. Nonetheless, she felt that she must have reported something to the CM on duty, although she could not specifically recall doing so.

[126] Ms. Taylor was the grievor’s manager at EI upon his arrival. She never worked with him on G unit. She completed several performance evaluations in which she reported no concerns and satisfactory performance.

[127] Ms. Taylor spoke of use of force incidents, stating her view that they occurred more frequently on G unit than elsewhere in EI, perhaps two to three times per week. Staff assaults also occurred more regularly on G unit. Ms. Taylor recalled no specific use of force incidents that involved the grievor but added, “I am well aware of his use of force, as is every officer in the institution.”

[128] Ms. Taylor testified that the grievor was a heat bag who caused problems for inmates and staff. She stated that it is not a derogatory term and that she, too, was called a heat bag many times. She remembered a discussion with the ERT in which the grievor was called that. However, she remembered no specific examples of the behaviour that led to calling him that.

[129] The grievor testified that he never challenged or swore at any inmate. He denied behaving as Ms. Gall described. He did not recall her working on G unit, and they did not work together. He remembered that she was one of three dog handlers at EI. He saw her rarely and only if she was conducting a sweep.

[130] Mr. Naqvi testified that he never saw or heard the grievor swear at Inmate D or at any other inmate. He stated that Ms. Gall did not work on the unit when he was there. He remembered her as a dog handler. He estimated that he saw her every two months, when she participated in surprise spot searches.

[131] Mr. Bailey, who worked as a CO on the 1&5 squad on G unit with the grievor, never witnessed the grievor use derogatory language.

[132] James Rutledge, as of the time of the hearing, was a CO at EI. Although he was not permanently assigned to G unit, he often worked overtime with the grievor. He testified that they worked similarly and that they shared a direct approach to solving problems, enforcing rules, and removing risks such as contraband, alcoholic brew, and weapons before they could turn into something bigger.

[133] Mr. Rutledge said that his experience working with the grievor was positive. He was always confident in the grievor’s ability to deal with offenders and to de-escalate situations, even when the inmates tested, manipulated, or pressured the COs. The grievor did not talk down to inmates or use inappropriate language.

C. Whether the grievor displayed inappropriate conduct involving employees at EI

[134] In addition to inappropriate behaviour toward inmates, the respondent also asserted that the grievor displayed inappropriate conduct towards employees at EI, including bullying, intimidation, and that he attempted to influence a staff member to change their SOR following an assault.

1. Ryan Quint’s allegation

[135] Ryan Quint, a CO at EI, explained that at 14:30 on October 18, 2016, he overheard a communication between Inmate B and Ms. Mikalsky, who was then the CM on F unit. From what he overheard, he understood that a threat had been made against Inmate C. Mr. Quint stated that he and another CO, whose identity he could not recall, approached Ms. Mikalsky, but she did not agree that what Mr. Quint had heard was a threat concerning Inmate C.

[136] At 22:40, after Inmate C was seriously assaulted, Mr. Quint wrote a SOR as follows to record his concern for the threat he had heard earlier:

...

At approximately 1430 hours the F-Unit Rep inmate [B] ... was in the F-Unit correctional manager’s office with the unit correctional manager having a discussion with the door open. I overheard [B] complaining about inmate [C] ..., claiming [C] was “beaking-off” other inmates on F-Unit making them riled up against him. Unit staff response was to monitor inmate [C’s] interactions on F-Unit and report any problems he may be causing to the unit inmates and staff. This is the end of my involvement in this report.

...

 

[137] Mr. Quint stated that unfortunately, he had been busy and had not completed the SOR until the end of the day. He did not recall whether the other CO might also have completed one. No other SOR was produced in evidence.

[138] Mr. Quint testified that on the following day, October 19, 2016, he was assigned to work in E/F subcontrol. When he arrived, he was surprised to see the grievor there, which he thought was odd as the grievor had not been scheduled to be there. According to Mr. Quint, the grievor confronted him, telling him that he had “ratted out a fellow blue” and that he would let EI know that Mr. Quint was a “rat goof.”

[139] Mr. Quint stated that he reacted by thinking that the grievor was misinformed or that he had misheard something through the rumour mill. Although he is six feet and two inches in height, and the grievor is five feet and seven inches tall, he felt that the grievor was “getting up in his face” by taking a confrontational stance and entering his personal space.

[140] Mr. Quint acknowledged that the exchange with the grievor was verbal. There was no physical contact during their interaction, although Mr. Quint remembered that there were subsequent rumours at EI to that effect.

[141] According to Mr. Quint, later on October 19, 2016, Ms. Mikalsky met him in subcontrol to ask him about what had happened. According to Mr. Quint, she said something to the effect that she would “tell her husband to back off” or “lay off”. Until then, Mr. Quint did not know that the grievor and Ms. Mikalsky were in a relationship.

[142] In Mr. Quint’s view, when he reflected on the interaction with the grievor and Ms. Mikalsky, he felt that the grievor tried to influence him or “muscle” him to retract his SOR. He immediately consulted the UCCO-SACC-CSN local president, Sean Whelan. He recalled that a meeting was scheduled for him to speak with Mr. Lapointe about the incident, but it never occurred. Later, he volunteered to bring the incident to the board of investigation.

[143] The grievor denied the occurrence of October 19, 2016, as described by Mr. Quint in evidence. The grievor produced his personal calendar, which recorded the shifts he worked at EI from the start of his employment. It shows that he did not work on October 19, 2016.

[144] The respondent did not produce work schedules or logbooks to confirm employee scheduling on October 19, 2016.

[145] The grievor testified that he became aware of the assault on Inmate C some time later, when he saw the injuries. He first learned of allegations of an issue involving a SOR when he attended interviews with the board of investigation on November 20 and December 8, 2017, and some mention was made of them. Later, he discussed his interviews with Ms. Mikalsky. She was able to recognize that the board of investigation had questioned him about the assault on Inmate C and about Mr. Quint’s SOR.

[146] The grievor stated that he first saw Mr. Quint’s SOR either via disclosure from the respondent or through an access to information request, both of which were done in preparation for this hearing.

[147] While Ms. Mikalsky’s actions were not the subject of the hearing, she testified about her interaction with Mr. Quint after the incident. When Inmate C was assaulted, she was the CM of F unit. The assault occurred after her shift had ended and she had left EI for the day. She first learned of it during the briefing the following day. She took no issue with the content of Mr. Quint’s SOR but was concerned that it was not completed sooner, when Mr. Quint first became concerned.

[148] Ms. Mikalsky testified that she consulted Mr. Pauline about how to address the matter with Mr. Quint. She then elected to speak with Mr. Quint alone about the delay filing the SOR in a situation in which he perceived a threat to an inmate in the afternoon and did not prepare the SOR until the evening, after the assault had occurred. In her view, a SOR of this nature should have been completed no later than 16:00.

[149] Ms. Mikalsky stated that she did not discuss the event with the grievor at that time.

[150] Mr. Pauline remembered Ms. Mikalsky approaching him about a CO who had perceived a threat at 14:00 and had made a SOR at 22:00 after an assault had occurred. Mr. Pauline stated that he counselled her to speak with the CO and to tell him that if he had intelligence beforehand, his obligation was to make a timely report and not wait until after an assault to report it. SORs should be written quickly to prevent such incidents, according to Mr. Pauline.

[151] On November 24, 2016, Mr. Tilles emailed the then Deputy Warden Travis Baker to describe an interaction with Mr. Quint. These are the relevant parts of the email:

...

As per our conversation at approximately 1030 hrs today, I am writing to formally inform you about sensitive and negative information that is being circulated by CX1 Ryan Quint. I was working on F unit with him and while having a casual conversation, this officer brought out the topic that he was working with the President of the Local Union, Sean Whalen [sic], to put in a harassment complaint against Jackie Mikalsky and Adam Weinstein. He alleged that Jackie Mikalsky sent Adam Weinstein to intimidate and harass him a few weeks ago. He claimed that the Local Union is helping him with this harassment complaint because the Local Union stated that Adam Weinstein has “a reputation for being full of shit” and has a history of having conflicts with union, staff, and management throughout the Institution.

I am disappointed and shocked that CX1 Ryan Quint would discuss this private and sensitive issue with me. I did not inquire or ask him about this issue. He voluntarily shared this sensitive and negative information about fellow officers with me....

...

 

[152] At the hearing, Mr. Tilles identified the email as his. He stated that he did not want to speak to Mr. Quint about it at the time, and he changed the subject. He explained that the grievor and Mr. Quint were his friends. He thought that it should be dealt with among the individuals involved. For that reason, he wrote the email to Mr. Baker. However, no action was taken.

[153] Mr. Baker occupied the position of Deputy Warden of EI on an acting basis when Mr. Tilles wrote his email. He testified that he was very new to the position and that he had been unsure of the course of action to take. He asked Mr. Lapointe for direction and was told to refer the employees to Regional Headquarters. Mr. Baker had no memory of the events of that time and believed that this ended his involvement.

[154] Mr. Rutledge testified that he heard Mr. Quint boasting and laughing about his involvement in having the grievor terminated. He described a shift when he was working by the EI gym as the inmate movement controller. To access a washroom, he had to go to an office identified as “#2 Control”. Walking through #2 Control, he heard Mr. Quint bragging to three or four COs who were present about how he had acted to have the grievor fired. Mr. Rutledge stated that he was taken aback and was offended but that he did not speak up. He did not recall the identities of those present.

[155] After being suspended without pay, the grievor testified that he saw Mr. Quint once, at a movie theatre. He was watching the movie “Jigsaw” with two colleagues. Mr. Quint was seated several rows ahead of him. At the end of the movie, Mr. Quint approached them, shook the grievor’s hand, said that he felt badly, and wished the grievor luck.

[156] Mr. Rutledge recalled accompanying the grievor and another person to a movie theatre shortly after the grievor’s suspension, to see that movie. He saw Mr. Quint at the theatre, sitting several rows ahead of them. The theatre was almost empty. After the movie ended, Mr. Quint approached them, and they shared a friendly conversation.

[157] Mr. Quint addressed the evidence of Mr. Tilles, Mr. Rutledge, and the grievor. He stated that he did not recall sharing information with Mr. Tilles or others and maintained that he spoke with no one other than Mr. Whelan about his concerns. He denied that he had laughed or bragged to other COs about having the grievor fired. Mr. Quint denied that he had ever seen that movie or encountered the grievor or Mr. Rutledge at a movie theatre.

2. Ms. Taylor’s allegations

[158] Ms. Taylor stated that the grievor bullied her. She remembered a time when she called him to work overtime. During the shift, she observed him leave EI with Mr. Pauline for lunch. In her view, COs should not leave EI for a meal break. When the grievor returned, Ms. Taylor told him that she would dock his pay for the time he was away. According to Ms. Taylor, later, he repeatedly phoned her to tell her to hurry up and dock his pay so that he could make a harassment complaint.

[159] Ms. Taylor was unaware of the grievor ever making a harassment complaint, and none was produced during the hearing that related to this incident.

[160] Mr. Pauline recalled that Ms. Taylor approached him after the incident and that she was not happy that he had removed the grievor from EI without asking her first. He acknowledged that she was right and that he should have asked, and he apologized.

[161] Ms. Taylor testified that in reality, she did not see the grievor harass staff. However, because she was a manager in the main office, staff members had come to her to complain of bullying on G unit and of racist behaviour. Although she never witnessed the behaviour, based on the complaints, she considered the grievor a ringleader on the unit. She did not document the concerns.

[162] Ms. Taylor testified about the grievor asking her to support him becoming a member of the ERT in 2013. She told him that she would not support him as he was a new CO who should focus on learning his job. In response, according to Ms. Taylor, he told her to “get the f*** away from [him].” In her testimony, she explained that he had been at EI for only a short time and that he had been involved in a number of use-of-force incidents. She knew that the ERT members did not want him.

[163] Ms. Taylor said that shortly after that, she approached the grievor, who was sitting by himself in the briefing room. According to Ms. Taylor, as she approached him, he told her to “get the f*** away from” him. She directed him to leave the room and to wait for her in her office, but he refused.

[164] The grievor testified that he had a very good relationship with Ms. Taylor when he started working at EI. He recalled the board of investigation alleging that an incident had occurred in the briefing room during which he told an unidentified CM to “get the f*** away from” him. He denied that it occurred.

[165] In his testimony, the grievor recounted the incident with Ms. Taylor. He was sitting alone on a couch waiting for the briefing. Others were present. She approached him and said, “I don’t want any more of your bullshit.” According to him, she raised her voice and said, “I have a f***ing problem with him and it needs to be dealt with.” He replied that he did not want to discuss it at that time and that he wanted to set up a meeting with her and his UCCO-SACC-CSN representative. Ms. Taylor directed him to go to her office. He did so after the briefing, with a union representative.

[166] The grievor testified that he wrote himself an email to record the incident. It was produced in evidence. It is dated July 8, 2013, at 21:35. It substantially records the events of that day as he described them in his evidence.

[167] Ms. Mikalsky, the grievor’s partner, was present in the briefing room to witness the interaction between Ms. Taylor and the grievor. She was sitting with another CO, Argeis Kamberi. She testified that she saw Ms. Taylor enter the briefing room shouting and speaking unprofessionally to the grievor. She did not recall what was said but remembered Ms. Taylor’s body language and tone.

[168] Mr. Kamberi, formerly a CO at EI and as of the hearing a police constable in Ontario, testified that he recalled that day in the briefing room, although he was uncertain whether he had sat with Ms. Mikalsky. He remembered that the grievor was on a couch by the window and that Ms. Taylor raised her voice to direct comments at him. Mr. Kamberi heard the grievor respond by stating that he wanted to speak to a union representative. Ms. Taylor told him to go to her office. Mr. Kamberi said that it was not normal for a manager to yell at an employee in the briefing room and that it drew attention.

3. Ms. Gall’s allegations

[169] Ms. Gall was a CO on G unit until she left in 2013 to train as a dog handler. She testified that after leaving G unit, she still would have seen the grievor daily in her duties as a dog handler.

[170] She described the grievor as being more aggressive than she is. She said that he swore and shouted at her and that often, they did not see eye to eye on how inmates should be treated or handled. When asked whether the grievor intimidated other staff, Ms. Gall responded that there were no specific examples, just that generally, he raised his voice to staff and mocked or taunted them for their intelligence, looks, and CO abilities. At some point, he called her “fat.”

[171] The grievor denied behaving as described by Ms. Gall, adding that he did not recall her working on G unit or with him. He remembered her being the institutional dog handler.

[172] No work schedules or logbooks were produced to show when the grievor and Ms. Gall might have worked together.

D. Suspension and impact

[173] As noted, on the morning of September 13, 2017, the grievor received a telephone call at his home from Mr. Lapointe. He recalled that Mr. Lapointe told him that he was suspended without pay as allegations had been made against him of sexual assault, physical assault, harassment, and intimidation.

[174] The grievor asked for access to CSC’s “M” drive to retrieve documents he had written and saved that would have helped him prepare to answer the allegations. Access was denied.

[175] The grievor recalled feeling particular shame about the allegations of sexual and physical assault. Mr. Lapointe told him that the complaints of sexual assault were anonymous.

[176] The grievor said that Ms. Mikalsky questioned him about whether he was involved with other women.

[177] The grievor described his actions in the hours after Mr. Lapointe’s call. He started drinking and took his anxiety medication. He explained that all he could think was that a female CO had made false claims against him as a CO. He would go to jail as a sex offender, and as a former peace officer, he would not survive.

[178] The grievor remembered putting two knives to his throat. Ms. Mikalsky took them away.

[179] He texted Mr. Pauline as well as Mr. Naqvi, who by then was an EPS officer, saying words to the effect that this was it; it would be a closed casket, and he would go out with a bang.

[180] The grievor understood that Mr. Naqvi then contacted the EPS. He remembered Mr. Naqvi and another colleague coming to his house. Mr. Pauline testified that he, too, attended with Mr. Torres. Five police cars and up to nine officers also responded.

[181] The grievor stated that Mr. Lapointe’s call pushed him over the edge. He challenged the police to use their OC spray or their guns. He was attempting “suicide by cop.” After the police tried unsuccessfully to calm him, tasers were used; he was taken into custody and hospitalized for his own well-being.

[182] The grievor stated that the allegations just “ate [him] alive inside.”

[183] The grievor then applied for and received employment insurance. The record of employment issued by the respondent October 20, 2017, indicated that he had been dismissed from employment.

[184] The grievor noted that the EPS never contacted him during its investigation of the sexual and physical assault allegations. In response to his email, on December 17, 2020, the EPS confirmed that the investigation was closed.

[185] Ms. Mikalsky recalled the events of September 13, 2017. Both she and the grievor were upset by Mr. Lapointe’s call. The grievor was emotional, and in her view, he became suicidal. She had never before seen this behaviour. She sent their children upstairs and called the police.

[186] Ms. Mikalsky confirmed the events recounted by the grievor, which were that the EPS arrived and that he was tasered, medicated, and taken to hospital.

[187] Ms. Mikalsky recalled that later, when a letter arrived from CSC containing the misconduct allegations, the sexual assault allegation affected the grievor most deeply.

[188] Despite the grievor’s suspension without pay, Ms. Mikalsky continued to work at EI and found it a very negative environment. She later resigned.

[189] Some aspects of the grievor’s work and personal history are relevant to the impact of his suspension.

[190] The grievor testified that in 2014, an inmate tried to stab him. Evidence was found of a plot on his life. Someone outside EI had been paid to murder him. The EPS became involved in his protection.

[191] Pamela Thompson is a registered psychologist. She treated the grievor in relation to workers’ compensation claims arising from his employment at EI starting first with the incident in 2014. He was first referred to her for an assessment and for treatment for psychological trauma and anxiety resulting from a threat on his life that inmates had made. She assessed him as frightened and vigilant, and noted that he had no signs of depression. They met three or four times between May 28 and June 24, 2014.

[192] Mr. Pauline confirmed that intelligence was received that the grievor was the target of an assault or murder. Mr. Pauline described the psychological impact as devastating. The threat contributed to moving the grievor temporarily from G unit to a static post, where he had very limited inmate contact. He was also absent for a time while receiving WCB benefits.

[193] From August 25, 2015, through May 16, 2016, in relation to a WCB claim for injuries received during an assault by an inmate, the grievor continued treatment with Ms. Thompson, this time for anxiety as well as depression.

[194] In September 2017, immediately following his suspension, the grievor asked Ms. Thompson for an emergency appointment. He returned to her care for treatment for anxiety, depression, and symptoms of post-traumatic stress.

[195] Ms. Thompson stated that he was devastated and that he experienced full-blown panic attacks. She recalled that he was highly anxious, agitated, and confused. In her office, he was shaky, emotional, and overwhelmed. He was not sleeping and was worried about his family. She viewed him as far more symptomatic and significantly more depressed than he previously had been.

[196] Ms. Thompson spoke of the pain the grievor experienced because of what she described as physical gripping. It included a sore jaw, chronic facial pain, and migraine headaches.

[197] Ms. Thompson recalled that the grievor was particularly troubled by the sexual assault allegations. Together, they worked to let it go and to allow the grievor to speak his truth.

[198] By the time of the grievor’s termination, Ms. Thompson felt that he was not surprised but was highly disappointed, discouraged, and angry.

[199] Ms. Thompson continued to treat the grievor until April 23, 2020, when his coverage for treatment ran out, and she was planning to retire. She described it as a long, significant course of treatment to that point, during which she helped him to plan and to not be overwhelmed by emotion. She continued to be concerned. Although his symptoms were improving, he needed assistance with depression, pain, and pain management.

[200] The grievor testified that he was still affected and that as of the hearing, he was still seeing a psychologist weekly or biweekly.

E. Disciplinary hearing and termination

[201] The investigation report was completed on April 26, 2018.

[202] Mr. Sears testified that he received the complete investigation report around April 26, 2018. He read it and accepted its conclusions without question. He had the authority to return the matter to the investigators if he felt that the conclusions were not supported by the facts and analysis. However, he felt that it covered the elements of the convening order and that it was not his role to replace the investigators’ findings.

[203] On May 31, 2018, the grievor was provided with a redacted copy of the report. It was the only information the respondent gave him to prepare for the disciplinary hearing. The names of those interviewed, other than the grievor and Ms. Mikalsky, were redacted, and the report contained no details of the dates of the alleged incidents.

[204] On June 3, 2018, the grievor wrote an email to Mr. Sears and others, entitled “Rebuttal”. He denied any wrongdoing and stated that he had provided evidence to clear himself of “all allegations and rumours.” He complained that the CSC failed to provide him with the allegations or evidence against him that would have allowed him to prepare to defend himself. He objected to an unfair investigation that did not provide him with access to his workplace emails, SORs, or the documents used in the investigation.

[205] Mr. Sears first met the grievor at his disciplinary hearing on June 15, 2018, which he convened at an EPS detachment.

[206] The grievor objected to holding the disciplinary hearing at that location. He testified that he considered it an intimidation tactic, particularly in the context of the suspension letters of December 27, 2017, and onward, in which the CSC advised him repeatedly that he was the subject of an ongoing EPS criminal investigation.

[207] Mr. Sears agreed that the grievor might have found it intimidating to meet at an EPS detachment but explained that it was located conveniently near EI. He also considered that it would not be appropriate for the grievor to be on EI’s site.

[208] Mr. Sears recalled that the disciplinary hearing lasted approximately a half hour. The grievor continued to deny the findings in the investigation report. Mr. Sears asked him a number of questions, but instead of addressing the specific findings, the grievor denied them.

[209] Mr. Sears testified that he needed the grievor to show substantial acknowledgement of the issues raised in the investigation report and to provide more context than, “I follow the rules and they don’t like me.” However, the grievor’s response did not go beyond a denial.

[210] According to Mr. Sears, the grievor’s response did not address his expectation that the grievor would indicate that he understood what was going on, describe the pressures he might have been under, and tell Mr. Sears how his behaviour in the future would be different.

[211] The grievor testified that he continued to deny the allegations when he was before Mr. Sears because they did not happen. He could not speak to something that did not occur, and he could not think of any other way to respond. He did not know what else he could do.

[212] During the disciplinary hearing, Mr. Sears referred to reviewing an earlier disciplinary incident and stated that the grievor had been disciplined for excessive use of force.

[213] The record of the earlier discipline was produced. Mr. Sears agreed that he was mistaken. The grievor was never disciplined for excessive use of force. A memo of December 6, 2016, signed by Mr. Lapointe, recorded the finding that on May 30, 2016, the grievor completed a non-routine cell search without prior authorization from a CM. Discipline in the form of a written reprimand was imposed.

[214] The grievor testified that he did not agree with the discipline that he received in 2016 but that he chose not to grieve it.

[215] Considering the question of discipline, Mr. Sears stated that he relied on the investigation report as well as the grievor’s performance records, which overall were satisfactory. He knew that the scale of discipline included termination.

[216] Mr. Sears stated that after the disciplinary hearing, he requested and received permission to terminate the grievor’s employment. Mr. Sears explained that the security of CSC institutions is based on individuals being able to work with one another professionally. On the most basic level, this means conducting counts and rounds to ensure inmate well-being, not posing a risk to staff or others, and modelling appropriate behaviour.

[217] According to Mr. Sears, the findings of the investigation, in conjunction with the grievor’s denial of all the findings, left him no choice as the grievor had exhibited a pattern of harassing behaviour toward inmates and co-workers. Mr. Sears felt that he could no longer trust the grievor to work effectively with others or trust him with inmates’ care and custody.

[218] On July 23, 2018, in a second meeting at the EPS detachment, Mr. Sears issued a letter of termination to the grievor. It stated, in part, as follows:

...

Further to the investigation and the disciplinary hearing I have concluded that you committed the following misconduct: (i) that you displayed inappropriate conduct involving inmates at Edmonton Institution, more specifically, that you witnessed an assault of an inmate, did not take any action to stop or prevent it and failed to accurately report it; and that you called on inmates to fight with you, orchestrated fights between them, attempted to intimidate them and called them inappropriate names; and (ii) that you displayed inappropriate conduct, including bullying and intimidation, towards employees at Edmonton Institution, more specifically that you attempted to influence a staff member to change their statement of observation report following an assault.

...

 

[219] Mr. Sears continued:

...

In determining an appropriate disciplinary measure, I have taken into consideration all aggravating and mitigating factors, including your years of service, your personal statements, and your discipline record which includes a written reprimand. I also gave consideration to your comments at your disciplinary hearing as well as the written rebuttal you provided. After careful consideration, I have concluded that the bond of trust essential to your employment with CSC has been irrevocably broken and determined that you do not demonstrate the values and ethics required of a CSC employee as outlined in CSC’s Mission Statement. Your misconduct is of such a serious nature that you breached the fundamental principles of respect, fairness, professionalism and accountability within the employment relationship which must exist between you and CSC. I am unable to maintain confidence or trust in your ability to perform your duties as an employee of CSC and a peace officer.

...

 

[220] The grievor’s termination was effective retroactively to September 13, 2017, to coincide with the day on which he was first suspended without pay. By the termination meeting, his suspension without pay totalled 313 days.

[221] Mr. Sears explained that he elected to terminate the grievor retroactively because all the matters before the board of investigation occurred before the termination date.

IV. Summary of the arguments

A. For the respondent

[222] The respondent noted that hearings before the Board are de novo hearings, meaning that they start anew before the Board and the Board does not adopt the conclusions that have been reached in the disciplinary process.

[223] The respondent had the burden of proof with respect to the suspension without pay and the termination of employment. If there were clear and cogent reasons for the discipline, then the respondent’s action fell within the balance of probabilities.

[224] The respondent acknowledged that there were conflicting stories but argued that it provided witnesses to prove its case and to counter the grievor’s denials.

[225] The respondent acted with objectivity and conducted an investigation in response to allegations that were made. Ultimately, it determined that these two allegations were founded:

• inappropriate conduct involving inmates at EI, specifically Inmate A, with respect to whom the grievor was party to an excessive use of force and failed to report multiple head strikes during the inmate’s escort; and

• inappropriate conduct, including bullying and intimidation, toward employees at EI, specifically, Mr. Quint.

 

[226] Only two of the allegations were founded, but the respondent had an obligation to investigate everything that was brought forward. Throughout the time at issue, the respondent acted in good faith. The termination was linked to the disciplinary board of investigation’s findings and nothing else.

[227] The respondent’s witnesses were independent and unconnected. They had no reason to mislead and nothing to gain. On the other hand, the grievor’s witnesses, Mr. Naqvi, Mr. Bailey, and Mr. Rutledge, were his co-workers and could be considered his friends. Mr. Pauline was his manager. Ms. Mikalsky is his partner. She was also suspended and has much to gain if the grievances are allowed.

[228] The respondent acknowledged that this is not a case of progressive discipline. In cases of a loss of trust or serious misconduct, there can be justification to move directly to dismissal, as the former Public Service Labour Relations and Employment Board stated in Chopra v. Deputy Head (Department of Health), 2016 PSLREB 89, citing UFCW (Canada), Local 1288P v. B&N Hospitalities Inc., 2006 NBCA 29.

[229] During the disciplinary hearing, the grievor failed to acknowledge or give context to the allegations that had been investigated. He simply denied their occurrence. This left Mr. Sears with no alternative but to conclude that he could not trust the grievor, and the termination was warranted.

[230] The suspension without pay was not disguised discipline. It was administrative. If the termination is ruled justified, then any question about the suspension would be moot, and the retroactive effect of the termination would equally be justified. (See Canada (Attorney General) v. Bétournay, 2018 FCA 230.)

[231] With respect to the evidence of the psychologist, Ms. Thompson, the grievor consulted her about several incidents. As she testified, the symptoms he experienced in 2017 could have represented a cumulative effect and could have been not simply the consequences of the suspension.

B. For the grievor

[232] The grievor was suspended without pay for 313 days. The harm brought by his suspension and termination continue today. It affects his well-being. There was no misconduct, and even if there was, termination was not a proportional response.

[233] The principles of credibility, reliability, and weight apply to the evidence presented. There are questions of whether an adverse inference should be drawn from the failure to call witnesses or produce documents.

[234] Many of the respondent’s witnesses were employees, and one was an inmate in custody. They were not independent witnesses, as the respondent suggested. Inmate D’s demeanour before the Board was noted. He expressed his discomfort and told the Board that he did not want to be at the hearing.

[235] The respondent took no issue with the grievor’s credibility, and his evidence was corroborated by other witnesses. The witnesses included individuals who worked directly with him. They shared a view of enforcing the rules to mitigate safety concerns. Some of his co-workers became his friends, but that does not influence the credibility or reliability of their evidence.

V. Analysis

[236] The respondent has the burden of showing that its disciplinary decision was warranted. (See Pelletier v. Canada Revenue Agency, 2019 FPSLREB 117.) As detailed below, the evidence does not show on the balance of probabilities that a disciplinary offence was committed. Therefore, no discipline was warranted. The grievances are allowed.

[237] A hearing before this Board is a hearing de novo (Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.)(QL)). It is curative of any defects in the process that led to the suspension and termination. As such, I have not considered the board of investigation’s conduct or the degree of fairness that was accorded the grievor during that investigation process in determining the merits of the grievances.

[238] My assessment of the matter corresponds to the three-part analysis, taken from Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1976] B.C.L.R.B.D. No. 98 (QL) at para. 13 (“Wm. Scott”):

... arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss the employee an excessive response in all of the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?

 

A. Has the employee given reasonable cause for some form of discipline?

[239] For the reasons that follow, on the balance of probabilities, I find that the respondent did not demonstrate reasonable cause for discipline. The evidence does not persuade me of misconduct by the grievor.

[240] The termination letter addressed to the grievor on July 23, 2018 set out two findings of misconduct as follows:

...

... (i) that you displayed inappropriate conduct involving inmates at Edmonton Institution, more specifically, that you witnessed an assault of an inmate, did not take any action to stop or prevent it and failed to accurately report it; and that you called on inmates to fight with you, orchestrated fights between them, attempted to intimidate them and called them inappropriate names; and (ii) that you displayed inappropriate conduct, including bullying and intimidation, towards employees at Edmonton Institution, more specifically that you attempted to influence a staff member to change their statement of observation report following an assault.

...

 

[241] I turn first to the respondent’s assertion that the grievor displayed inappropriate conduct involving inmates at EI.

[242] The respondent stated that the grievor observed or participated in an excessive use of force during Inmate A’s escort on March 12, 2013.

[243] Mr. Wilkie testified that he saw Ms. Mikalsky intentionally cause the inmate’s head to strike barriers and doorways, including the shower barrier on G unit. He explained that it had bothered him, which had led him to report it to the respondent approximately 4.5 years later.

[244] The respondent called only Mr. Wilkie to testify about the escort. Inmate A did not testify.

[245] Mr. Wilkie’s SOR did not mention this occurrence. It did note that in addition to resisting, Inmate A threatened to bite and spit on the COs.

[246] Many other COs were involved in the escort. The SORs placed in evidence included 11 from officers who escorted Inmate A. Those SORs described a resistant inmate and the use of physical handling, OC spray, and handcuffs to gain his compliance. None of them refer to excessive use of force or action taken by Ms. Mikalsky or anyone to injure Inmate A.

[247] Mr. Pauline’s SOR noted a gash on Inmate A’s scalp. The nurse who later assessed him completed a section of the Use of Force Report which read, “Does the inmate have any complaints of pain or injury related to the use of force?” The answer was, “i/m did not complain of any injuries on camera.”

[248] A video recording of the portion of the escort that occurred on G unit was shown several times during the hearing. While Mr. Wilkie maintained in evidence that he could see Ms. Mikalsky push the inmate’s head or cause it to strike the shower barrier, it was not patent to any other witness. He did not suggest that the grievor used excessive force at any point.

[249] On viewing the video, I perceived no point at which Ms. Mikalsky or any other member of the escort released their grip on the inmate to push his head or, in fact, any point when the inmate’s head struck any barrier, doorway, or other object.

[250] I note further the evidence of Mr. Pauline, who told the Board that other cameras covered the entire escort’s route. The respondent produced no other video evidence.

[251] I accept, as well, the grievor’s evidence that he is asthmatic and that his eyes were swollen shut from the OC spray that was deployed while he was with the inmate in the cell. His perception, then, would have been impaired.

[252] As he considered the appropriate discipline, Mr. Sears felt that there was a prior use of force incident involving the grievor. The evidence showed that his belief was mistaken. The event to which he referred involved a requirement for permission to search a cell and a reprimand being issued for failing to obtain it. I am not satisfied that the event bears on this aspect of the matter that is before the Board.

[253] I find that the respondent did not demonstrate an evidentiary foundation for a finding that the grievor failed to report or participated in an excessive use of force related to this event.

[254] Next, several witnesses spoke of a fight club orchestrated by COs at EI. There was no direct evidence of this serious allegation. Rather, every witness who addressed it, other than Ms. Taylor, attributed their awareness to rumour or stories from the past. Ms. Taylor testified that she observed a fight in 2011, two years before the grievor joined the CSC.

[255] It was alleged that the grievor orchestrated a fight between Inmate D and Inmate E. Inmate D provided evidence, describing his conversations with Inmate F before and after the assault.

[256] Inmate D also described with certainty the specific Krispy Kreme doughnuts he was given to reward his participation in the fight. He spoke of a meeting of inmates and the grievor in the unit office. Inmate D named the others who were present, none of whom was called as a witness.

[257] The grievor denied orchestrating a fight and later bringing in doughnuts. He also stated that Krispy Kreme doughnuts are not available in Edmonton.

[258] There was no corroboration from Inmate F who, according to Inmate D, was directed by the grievor to organize the fight with Inmate E.

[259] The Board did not hear from the other inmates who were said to be present when the grievor allegedly brought doughnuts into the unit.

[260] Many witnesses, including the grievor, Mr. Sears, Mr. Naqvi, and Mr. Bailey, testified that COs do not bring food into EI for inmates. Mr. Sears added that it would be extremely unusual and that it could not happen without permission.

[261] There was no evidence that the grievor asked for or received permission to bring doughnuts into EI. Neither was there any evidence that Krispy Kreme doughnuts, so clearly identified by Inmate D, were available in Edmonton. None of the other inmates allegedly present was called to corroborate the event.

[262] Inmate movement, as described during the hearing, was monitored and controlled on G unit in accordance with institutional rules. No reasonable explanation was provided to explain the gathering in the unit office.

[263] As for the delivery of Inmate D’s stereo to his cell, any record of the request for the stereo, if it exists, lies with the respondent. The respondent neither denied nor confirmed that a record exists. Certainly, none was produced.

[264] Given what evidence there is, Inmate D’s conjecture, and the grievor’s evidence that the property was delivered based on a signed approval, I am not persuaded that delivering Inmate D’s property to him was irregular or that it suggests Inmate D was receiving special treatment to reward him for fighting Inmate E.

[265] I rely on the principles enunciated in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357 (B.C.C.A.), in evaluating the evidence. I find that Inmate D’s account is simply not in “... harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

[266] Inmate D’s surmise that the grievor organized the fight was conjecture. Perhaps Inmate F knew more, but he was not called as a witness.

[267] The allegation that the grievor orchestrated fights between inmates cannot be sustained on the evidence that was presented.

[268] Some witnesses, specifically Inmate D, Ms. Taylor, and Ms. Gall, suggested that the grievor swore at inmates, that he challenged them to fight, and that he called them names. They did not provide persuasive evidence.

[269] Inmate D, who expressed himself as a reluctant witness, described being called names and being challenged to fight by the grievor.

[270] Ms. Taylor and Ms. Gall described the grievor as a heat bag and spoke generally of witnessing the grievor provoking inmates. It was not clear that Ms. Taylor had ever witnessed the grievor’s interaction with inmates. Ms. Gall testified that she had seen the grievor’s behaviour with inmates but that she had no specific memory of an incident, completing an SOR, or reporting the behaviour to a CM. Certainly, had she written an SOR, it would have been in the CSC’s records, but none was produced.

[271] Ms. Gall asserted that she often worked with the grievor on G unit and the grievor denied it. No records were produced to corroborate Ms. Gall’s assertion.

[272] The evidence of these three witnesses contrasts markedly with the descriptions provided by Mr. Pauline, Mr. Naqvi, Mr. Rutledge, Mr. Tilles, and Mr. Bailey, who worked directly with the grievor, all of whom spoke of his professionalism and denied observing or hearing behaviours such as those described by Inmate D, Ms. Gall, and Ms. Taylor.

[273] I find that the respondent failed to marshal convincing evidence of the grievor deriding inmates, abusing them verbally, or using excessive force against them. I find the evidence of those who had first hand opportunities to observe and hear the grievor’s interactions with inmates to be more reliable.

[274] In summary, the evidence does not persuade me, on the balance of probabilities, that misconduct by the grievor in the form of inappropriate conduct involving inmates at EI, as set out in the termination letter, occurred.

[275] I turn next to the respondent’s position that the grievor displayed inappropriate conduct, including bullying and intimidation, toward employees at EI, specifically, Mr. Quint who he attempted to influence to change a SOR following the assault of Inmate C.

[276] In evidence, Mr. Quint described a chronology of events that culminated in an encounter with the grievor on October 19, 2016. Mr. Quint was specific about this date.

[277] Mr. Quint’s account is not sustainable in light of the evidence. The grievor denied that the encounter of October 19, 2016 occurred and he presented his record of his work schedule to show that he was not at EI on that date. The respondent presented no logbooks or work schedules to support Mr. Quint’s account that he and the grievor were assigned to work in subcontrol on sequential shifts that day.

[278] I have not overlooked the evidence of Mr. Tilles and Mr. Rutledge.

[279] Mr. Tilles both testified about a conversation in which Mr. Quint told him of meeting the grievor in subcontrol and of subsequently working with the UCCO-SACC-CSN on a harassment complaint.

[280] On November 24, 2016, almost a year before the grievor’s suspension, Mr. Tilles emailed Mr. Baker when Mr. Quint shared his account of the interaction with the grievor in subcontrol and of working with UCCO-SACC-CSN to make a harassment complaint. Mr. Tilles explained that his goal had been to resolve any discord between his friends, Mr. Quint and the grievor, at the lowest level rather than allow it to fester.

[281] Mr. Rutledge testified about overhearing Mr. Quint in #2 Control boasting of working with the UCCO-SACC-CSN to have the grievor fired.

[282] The grievor and Mr. Rutledge also described meeting Mr. Quint and having a cordial conversation at a movie theatre after the grievor’s suspension.

[283] Although Mr. Quint denied the accounts of Mr. Tilles, Mr. Rutledge, and the grievor, I find no reasonable explanation of the contradiction in their evidence and it is unnecessary for me to resolve it.

[284] In the end, I find the evidence of the grievor’s work schedule particularly persuasive. It draws the event at the foundation of Mr. Quint’s allegation and his corresponding testimony into serious question.

[285] Therefore, on the balance of probabilities, I find it unlikely that the encounter of October 19, 2016 as described by Mr. Quint, occurred. This being the case, I observe that it is equally unlikely that Ms. Mikalsky would have had reason to respond to Mr. Quint by telling him that she would “call off” the grievor.

[286] Lastly, I turn to the evidence of Ms. Taylor and Ms. Gall concerning their interactions with the grievor.

[287] Ms. Taylor expressed concern that the grievor harassed her when she deducted hours from an overtime shift.

[288] There is no corroboration of the claim that the grievor harassed Ms. Taylor about the deduction. It might have come in the form of a work schedule, pay record, institutional telephone record, or email, any of which could have shown the shift, hours deducted, or contact between them. Instead, the evidence consists only of Ms. Taylor’s harassment allegation and the grievor’s denial. This is unconvincing evidence that he harassed her about an overtime pay deduction.

[289] Ms. Taylor also testified that in 2013, the grievor told her to “get the f*** away from” him. She stated that it happened twice, once at her office, and once in the briefing room, and that it related to her refusal to support his wish to join the ERT.

[290] There was no corroborating evidence of the office exchange. However, there were witnesses, Ms. Mikalsky and Mr. Kamberi, who testified to the exchange in the briefing room. They remembered Ms. Taylor approaching the grievor and raising her voice. Ms. Mikalsky commented on Ms. Taylor’s body language. Mr. Kamberi heard the grievor ask for union representation. The grievor wrote a contemporaneous record of the encounter with Ms. Taylor.

[291] Ms. Taylor also testified about information that she heard or gathered second-hand about the grievor. The evidence was hearsay, unattributed, and unconvincing. While the Board often receives hearsay evidence, in this case, the evidence was so general as to be unpersuasive and of little value.

[292] Ms. Gall testified that she did not get along with the grievor and he demeaned other COs. Her evidence was general with the exception that she testified that the grievor called her “fat”. I note that when she initially met with Mr. Sears, she did not mention the grievor.

[293] Ms. Gall was candid. She stated that she was motivated to participate in the disciplinary investigation and, presumably, this hearing, to support a WCB claim.

[294] The respondent did not produce logbooks or work schedules to support Ms. Gall’s claim that she often worked with the grievor.

[295] In the face of Ms. Gall’s assertion that she worked with the grievor on G unit, and the grievor’s denial of it, I am unable to determine whether they ever worked directly together. It may be that they had some contact when she was the institutional dog handler and visited G unit on her rounds.

[296] I cannot overlook the testimony of Mr. Naqvi and Mr. Bailey about the grievor’s conduct toward other employees. They worked daily with him on G unit 1&5 squad. Mr. Rutledge worked with him on overtime shifts. They testified that they had never seen him use derogatory language.

[297] In evaluating the evidence of witnesses who might have had only limited contact with the grievor, relative to those who had daily contact with him, I am not persuaded that he acted inappropriately in word or deed toward Ms. Taylor, Ms. Gall or any CO.

[298] I find that on the balance of probabilities, that the evidence does not show inappropriate conduct by the grievor, including bullying and intimidation, toward any employee at EI.

[299] Lastly, during the hearing, the parties alluded to examples of contextual factors, including the TLS report, assertions of a fractious relationship between the grievor and UCCO-SACC-CSN, anti-Semitism directed at the grievor, and sexual harassment of the grievor’s partner. It was suggested by the grievor that these factors influenced the respondent’s actions to suspend and terminate him from employment.

[300] As I have stated above, throughout this adjudication, the burden of proof remains with the respondent. I find that the contextual factors are not material to the disposition of the matters in issue, and I have not repeated the evidence relating to them in this decision.

[301] To conclude my analysis of the first branch of the Wm. Scott test, I find that the respondent did not demonstrate that the grievor has given cause for discipline.

[302] Given my finding on the first branch of the Wm. Scott analysis, it follows that the grievor’s termination was unwarranted.

[303] The termination was made retroactive to September 13, 2017, corresponding with the start date of the grievor’s suspension without pay. The respondent maintains that the grievor’s suspension was administrative and not a disciplinary, and therefore not subject to referral to the Board for adjudication under s. 209(1)(b) of the Act. However, the respondent also argued that, if the termination were found to be justified, then any question about the suspension would be moot, and the retroactive effect of the termination would equally be justified.

[304] I believe the inverse argument must also be considered. Having made the decision to apply the termination for disciplinary reasons retroactively to the start of the suspension, and following the Board’s conclusion that the termination was unwarranted, the respondent cannot now claim that the suspension was merely administrative.

[305] The respondent acted to apply the termination retroactively for the suspension. In doing so, it made no distinction between any administrative aspect of the suspension and the ultimate disciplinary decision. Rather, the respondent determined that the entire suspension period and termination was disciplinary.

[306] The respondent bore the onus of establishing that the reasons for which it terminated the grievor’s employment formed a valid foundation for the decision. By applying the termination retroactively, the respondent demonstrated its conclusion that the reasons underlying the termination existed and were identifiable at the time it took effect (see Canada (Attorney General) v. Bétournay, 2018 FCA 230 at paras. 59 and 65). I have found that the respondent’s reasons did not furnish a foundation when the decision to terminate the grievor’s employment was taken in July 23, 2018, let alone retroactively to September 13, 2017.

[307] Consistent with the Board’s decision in Heyser v. Deputy Head (Department of Employment and Social Development) and Treasury Board (Department of Employment and Social Development), 2015 PSLREB 70 (application for judicial review dismissed, Canada (Attorney General) v. Heyser, 2017 FCA 113), at para. 161, I find that it would be contradictory to the respondent’s actions to find that the suspension was administrative when the respondent has failed to demonstrate that the retroactive termination was justified.

[308] As such, I allow both grievances and will now consider what remedies may be appropriate as a result.

VI. Remedy

[309] The parties made submissions on the question of remedy.

[310] The grievor explained that at the time of his suspension, he was paid at the top range for a CX-01. He also worked substantial overtime at EI. He would like to return to working as a CO.

[311] The grievor submitted that the lost overtime opportunity should also be considered when making him whole. The Board has previously considered a lost overtime opportunity in its awards. See, for example, Jassar v. Canada Revenue Agency, 2019 FPSLREB 54 at para. 614.

[312] The grievor acknowledged and the respondent agreed that if the Board ordered his reinstatement, there would be a deduction of employment income he earned after September 13, 2017.

[313] As to damages, the grievor noted that the respondent had pre-existing knowledge of the mental health issues from which he had suffered in 2014 and 2015 as they related to WCB claims arising from working at EI. On September 18, 2017, the grievor returned to the care of Ms. Thompson, who had seen him during those episodes.

[314] According to the grievor, from the time of the immediate events that unfolded on September 13, 2017, at his home, the stress of the suspension and termination has led to many physical and mental health challenges that continue.

[315] The respondent acknowledged Ms. Thompson’s evidence of the stress suffered by the grievor when he was terminated, suggesting that it could have been related to prior events such as the threat on his life. It could be considered a cumulative effect rather than a result of the suspension without pay and later, the termination.

[316] On the question of damages, the respondent submitted that it acted in good faith, that it received information, and that it investigated per the normal course of action. It was not reckless. The seriousness of the allegations jeopardized safety and the respondent’s reputation and made necessary the suspension without pay. Before the disciplinary hearing with Mr. Sears, the grievor was permitted to provide a rebuttal to the redacted investigation report that he had been provided.

[317] I am persuaded by evidence that before suspending the grievor and terminating his employment, the respondent was certainly well acquainted with his mental health history. The respondent’s knowledge arose from workplace incidents, a workplace accommodation to a static post, and WCB claims.

[318] It was reasonably foreseeable that when Mr. Lapointe communicated the suspension without pay by calling the grievor’s residence, it would engender a response and risk harm to the grievor, as it did on that day. Minimal preparation would have permitted the respondent to deliver its message in a way that recognized the grievor’s vulnerability. A telephone call was insufficient and insensitive to his known history.

[319] I am satisfied by the evidence of Ms. Thompson that the grievor now suffers from anxiety, depression, migraine headaches, nightmares, and insomnia related to his suspension and termination. I accept that one example of the grievor’s suffering is that he has ground his teeth to the point of breaking them. He has been referred to a psychiatrist and a pain-management clinic.

[320] The respondent offered no explanation for issuing a record of employment to the grievor in October 2017 indicating that he had been dismissed from employment. This was patently incorrect, and it is reasonable to consider that it contributed to the grievor’s distress.

[321] In substance, the disciplinary hearing conducted by Mr. Sears was lacking. Mr. Sears had the advantage of reading the full investigation report beforehand. He knew the allegations and the supporting evidence, as they were described in the investigation report. It is clear from his testimony that he accepted without question the board of investigation’s findings.

[322] The grievor was provided with a redacted investigation report containing little substance or detail to identify the allegations or the evidence.

[323] In the rebuttal of June 3, 2018, the grievor informed Mr. Sears that he did not have the allegations or evidence to prepare to defend himself. He referred specifically to workplace emails, SORs, and documents used in the investigation. This had no effect and the respondent continued to withhold material in its possession and control that, according to the grievor, was relevant and exculpatory.

[324] Nonetheless, Mr. Sears wanted the grievor to explain his role, to provide context to the incidents described by the board of investigation.

[325] The redacted investigation report failed to meet any reasonable standard for disclosure and failed to allow the grievor to answer the case that had been made against him. Mr. Sears ought reasonably to have questioned whether the information provided to the grievor was sufficient and whether the disciplinary hearing could proceed with due respect for fairness. This was an issue of good faith and fair dealing. Yet, there is little suggestion of concern for the substance of the process or for the grievor’s ability to answer allegations the details of which had not been provided to him.

[326] For months during the investigative period, the respondent repeated to the grievor in regular letters that he was under police investigation. However, when the time for the disciplinary hearing arrived, the respondent elected to hold the hearing at a police detachment.

[327] Mr. Sears spoke of the convenience of the location and availability of an EPS detachment.

[328] This is not a satisfactory explanation. It was, at best, unduly insensitive to convene the disciplinary hearing there. It was not neutral or balanced. It was not in the best interests of a fair, open, and participatory process. It was reasonably foreseeable that it would be intimidating to the grievor.

[329] I turn then, to consider the question of damages, I refer to Honda Canada Inc. v. Keays, 2008 SCC 39 at para. 57 (“Honda”), in which a majority of the Supreme Court held as follows:

[57] Damages resulting from the manner of dismissal must then be available only if they result from the circumstances described in Wallace, namely where the employer engages in conduct during the course of dismissal that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive” (para. 98).

 

[330] In Wallace v. United Grain Growers Ltd., [1997] 3 SCR 701 at para. 98, a majority of the Supreme Court held as follows:

98 The obligation of good faith and fair dealing is incapable of precise definition. However, at a minimum, I believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive....

 

[331] I find that the respondent acted with undue insensitivity and an absence of concern for the obligations of good faith and fair dealing throughout the process of the suspension and termination. It started with the disregard for the grievor by merely making a telephone call to him to announce the suspension and the serious grounds for it. It continued with the preparation of the ROE shortly thereafter to indicate, inaccurately at the time, that he was not suspended but dismissed. It was exacerbated by the refusal to evaluate the grievor’s articulated concerns for the fairness of the disciplinary investigation or to consider measures to provide him with a meaningful opportunity to participate in the disciplinary hearing. It concluded with the respondent’s decision to hold the disciplinary hearing at a police detachment before imposing the retroactive termination decision.

[332] As described in the evidence, the respondent’s actions harmed the grievor and the impact of its actions on him was foreseeable, given the respondent’s long-term knowledge of the mental health issues that had arisen from his employment.

[333] There are few instances in which this Board has awarded damages. However, in the totality of the circumstances of this case, and consistent with the Honda decision, an award of damages is warranted.

[334] The parties have jointly requested sealing Exhibit 2, the grievor’s book of documents, at Part 1, Tab 64. This is video evidence of COs extracting Inmate A from a cell. It is possible to identify individual CSC employees and a federal inmate in it.

[335] The Board’s general practice is that its files are publicly accessible, in accordance with the open court principle and its Policy on Openness and Privacy. However, the Board will consider sealing exhibits as confidential when warranted.

[336] The legal test for sealing an exhibit is commonly referred to as the “Dagenais/Mentuck” test, referring to Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, and R. v. Mentuck, 2001 SCC 76. The test originates from a criminal law context. The Supreme Court of Canada reformulated it in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 at para. 53, in an administrative law proceeding. In Canada (Attorney General) v. Philps, 2019 FCA 240, the Federal Court of Appeal determined that the test to be applied is that set out in Sierra Club of Canada.

[337] The Supreme Court has held that confidentiality orders should be issued only when necessary to prevent a serious risk to an important interest. The risk in question must be real and substantial. The decision maker must assess whether the benefit of keeping certain information confidential outweighs the negative effects of preventing public access to judicial proceedings.

[338] In this case, the exhibit is a video recording of the cell extraction of a non-compliant inmate performed by CSC employees. To the extent that any details of the event were pertinent to this matter, they were described by witnesses when they gave their evidence. No further benefit may be gained by viewing the recording. However, making it publicly available risks allowing the identification of individuals who were not parties or witnesses to this proceeding. It presents a safety and security concern for them. I conclude that the interest of keeping the exhibit confidential outweighs the public’s interest in viewing it.

[339] Therefore, I order the exhibit sealed.

VII. Conclusion

[340] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VIII. Order

[341] The grievances are allowed.

[342] I order the respondent to reinstate the grievor to his position, retroactively to September 13, 2017.

[343] I order the respondent to reimburse the grievor his salary, including increases to which he would have been entitled, and all benefits including pension rights, subject to the usual deductions and accounting for the grievor’s employment income from September 13, 2017, to the date of his reinstatement. This calculation will include an additional allowance for overtime, calculated with reference to the average number of overtime hours he worked in the two-year period before September 13, 2017.

[344] The grievor is entitled to interest from September 13, 2017 until the date payment is made.

[345] I order removed from the grievor’s disciplinary, labour relations, and any other personnel records any documentation other than this decision that relates to the suspension without pay and the termination of his employment.

[346] I award damages to the grievor in the sum of $20 000.00.

[347] Exhibit 2, the grievor’s book of documents, Part 1, Tab 64, is ordered sealed.

[348] I shall remain seized for 90 days of any question relating to the calculation of the amounts due under this order.

August 31, 2021.

Joanne B. Archibald,

a panel of the Federal Public Sector Labour Relations and Employment Board