CITATION: Ontario (Transportation) v. Ontario Public Service Employees Union, 2013 ONSC 7227

DIVISIONAL COURT FILE NO.: 111/13

DATE: 20131210

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

A.C.J.S.C. MARROCCO, BALTMAN AND MCEWEN JJ.

BETWEEN:

HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO as represented by the Ministry of Transportation

Applicant

– and –

ONTARIO PUBLIC SERVICE EMPLOYEES UNION and GRIEVANCE SETTLEMENT BOARD

Respondents

Robert Fredericks and Heather McIvor, for the Applicant

Craig A. Flood and Katherine Ferreira, for the Respondents

HEARD: November 19, 2013

MCEWEN J.

REASONS FOR DECISION

[1] Her Majesty The Queen in right of Ontario, as represented by the Ministry of Transportation (the “Applicant”), seeks judicial review of a decision of the Grievance Settlement Board (the “Board”) dated January 30, 2013, concerning Jeffrey Richard (the “Grievor”). The Grievor had been employed with the Ministry of Transportation (the “Ministry”) where he worked as a Transportation Enforcement Officer (“TEO”). The Ministry terminated him from his employment in December 2010 after learning that the Grievor had performed a number of indecent acts that ultimately led him to plead guilty to two counts of performing an indecent act. The Ontario Public Service Employees Union (the “Respondent”) filed a grievance with respect to the Grievor’s termination, and the matter proceeded to arbitration before the Board. The Board accepted that the Grievor had committed the acts, but ordered that he be reinstated to his former position. The Board ordered that his reinstatement be subject to a penalty in the form of a lengthy suspension, being the time that he was terminated in September 2010 to the date of his reinstatement.

[2] For the reasons below, I would allow the application and order that the decision be set aside with respect to penalty, and that the Applicant’s decision to terminate the Grievor be upheld.

Factual Background

[3] The Grievor worked for the Ministry for approximately two years before he was suspended and ultimately dismissed as a TEO. The purpose of the Grievor’s position is set out in the Ministry’s Position Description Report (the “PDR”), that provides as follows:

Within an assigned geographic area, to enforce and ensure compliance with legislation, regulations, and industry standards pertinent to the safe, efficient and legal operation of all types of vehicles on the highway system.

[4] TEOs are peace officers pursuant to the provisions of the Criminal Code and Highway Traffic Act. They are authorized to issue tickets and lay charges under the Provincial Offences Act. They are further responsible for enforcing the provisions of a number of Provincial Statutes pertaining to the use and operation of vehicles.

[5] In the furtherance of their duties, TEOs wear uniforms and are issued batons and handcuffs. The PDR also stipulates that TEOs are required to provide support to Crown Prosecutors with case preparation and documentation, testify in court as the officer involved in the proceeding, or testify as an expert witness. The PDR states that TEOs have to be able to provide credible testimony. In the furtherance of their duties, TEOs have regular contact with various law enforcement agencies.

[6] The Grievor commenced his employment as a TEO in 2006. In August 2008, while off-duty, the Grievor went to the trail system of the Niagara Recreational Waterway, removed his clothing and masturbated in a public place. He made no attempt to conceal his presence and was observed by two young females, one being 14 years of age. He was charged with four counts of performing an indecent act in a public place. During his sentencing, at which he was convicted of two counts, he agreed that the four counts had occurred and that there were ten other similar incidents between June and August 2008 on the trail system. The area in which the incidents took place is near a girls’ high school and two rowing clubs used by female students.

[7] Subsequent to being charged, the Grievor arranged for and attended psychological counselling with Dr. Denis Belicki (“Dr. Belicki”) for 14 session treatments over a period of approximately 6 months. Dr. Belicki ultimately submitted a report dated July 21, 2009, in which he provided the following prognosis:

Let me now turn to the issue of prognosis. Individuals with Exhibitionism are generally at risk to recidivate but this risk can be significantly lessened by participation in evidence-based treatment. Mr. Richard committed himself to a full course of treatment over a period of more than six months. He was motivated, expressed considerable remorse and demonstrated a willingness to address his problems. Throughout the treatment Mr. Richard was willing to answer very difficult and embarrassing questions and he was willing to discuss his actions in great detail. Many individuals with Exhibitionism use high levels of denial and refuse to admit to their behaviours. Mr. Richard, in contrast, was willing to admit to his actions and sought treatment.

The upshot is that the treatment has effectively lessened recidivation risk and the short-term risk is very low. If Mr. Richard continues to apply what he learned in therapy then he can keep this risk very low. I’ve specifically advised him that the risk will be somewhat higher one to two years from now given that once these situations are behind people they tend to diminish them. He fully realizes this and he has expressed a willingness to contact me should the need arise.

In concluding let me note that Mr. Richard worked hard in his treatment and through this he has processed some unresolved anger that he had while at the same time he has learned a series of strategies to cope with the Exhibitionism.

[8] Colvin J., the judge in the criminal proceeding, ordered an assessment be conducted at the Centre for Addiction and Mental Health. This assessment was carried out by Dr. R. Dickey (“Dr. Dickey”) in November 2009. In addition to Dr. Dickey meeting with the Grievor, certain testing was also performed. Dr. Dickey provided a number of opinions and recommendations as follows:

1. Mr. Richard suffers from no major mental illness; he would not be deemed certifiably mentally ill as defined by the criteria of the Mental Health Act of Ontario.

2. Mr. Richard suffers from exhibitionism. Exhibitionism is a disorder of sexual preference in which the preferred method of achieving sexual arousal or gratification is through the exposing of the genitals to unsuspecting individuals. The course of this disorder is lifelong. The etiology of this disorder is unknown.

Although exhibitionism may cluster or coincide with other disorders of sexual preference involving lesser degrees of consent, we have no information available to us which would suggest that Mr. Richard suffers from any deviant sexual proclivity involving such deviant sexual preferences which would encompass coercion, rape or sadism.

3. Mr. Richard was scored on an actuarial instrument designed specifically to predict risk for sexual re-offending, namely Static-99. His scores in this instrument would indicate that he represent a relatively low risk for such re-offence with his most closely resembling groups of men who reoffended at a rate of 8.7 to 23% over 10 years.

Similarly, another actuarial instrument, namely the Sex Offender Version Risk Assessment Guide (SORAG), which is designed to predict risk for both sexual and violent reoffending combined would indicate that he represents a very low risk for such re-offence with his score on this instrument being consistent with his most closely resembling groups of men who reoffended at a rate of approximately 9% over 10 years.

Composites estimates of risk taking into account case specific factors including his suffering from Exhibitionism, which is a lifelong disorder, are however quite significant in terms of his incurring a re-offence. He would over many years be adjudged to represent at least a moderate risk for a re-offence similar to that which pertains to his current criminal charges. [Emphasis added.]

4. Mr. Richard indicated that he would be willing to engage in sexological treatment. Although exhibitionism tends to be somewhat refractory to treatment, we would be willing to assess him in our program for involvement in the same should he come to be in the community. Mr. Richard could be referred to our or similar to program through his family doctor or if deemed appropriate, through Probation and Parole Services. Such treatment would encompass Relapse Prevention Treatment which is a cognitive-behavioural modality designed to assist individuals such as Mr. Richard in indentifying sexual thoughts, urges, feelings and behaviours in relationship to behavioural triggers and risk related situations. Should there be further concerns as to his controlling his sexual behaviour, adjunctive treatment might include psychopharmacological treatment or sex drive reduction.

[9] In September 2010, The Grievor met with representatives of the Ministry to discuss his employment situation. He was requested, but not required, to provide a list of any mitigating factors. He provided a list that contained a number of factors. While some of the factors were legitimate mitigating factors there were, in my view, a number of others that diminished the nature and extent of the significance of his actions. He concluded the list by stating:

I have wife and child and a mortgage. I am a human and make mistakes like anyone else. ‘Let he who is without sin cast the first stone’.

[10] The Grievor was terminated shortly thereafter by way of letter dated September 16, 2010.

The Arbitration

[11] In conducting its analysis, the Board correctly relied upon the factors set out in Re Millhaven Fibres Ltd. v. Oil, Chemical and Atomic Workers International Union, Local 9-670, [1967] O.L.A.A. No. 4, which stated as follows:

20 In other words, if the discharge is to be sustained on the basis of a justifiable reason arising out of conduct away from the place of work, there is an onus on the Company to show that:

(1) the conduct of the grievor harms the Company’s reputation or product

(2) the grievor’s behaviour renders the employee unable to perform his duties satisfactorily

(3) the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him

(4) the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees

(5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.

[12] The Board correctly stated that an employer did not need to prove all five criteria and that any one of the five would satisfy its onus. The Board also correctly stated termination is not the only result; if one or more of the five factors are established, the employer has the right to discipline the employee depending on the circumstances.

[13] The Board then went on to review each of the five criterion. After completing its analysis the Board concluded that the employer had satisfied the Millhaven criteria set out in 1, 3, 4 and 5, and that the Ministry had just cause to discipline the Grievor, but that he ought to be reinstated subject to the above-noted suspension.

Standard of Review

[14] There is no dispute between the parties, except for the issue of post-discharge evidence, that the standard of review of a labour arbitration award is reasonableness. In applying the reasonableness standard, the court must consider the justification, transparency, and intelligibility of the decision-making process, and whether the decision falls within a range of possible acceptable outcomes that are defensible in light of the facts and law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. The law is also clear that, as in this case, s. 48(17) of the Labour Relations Act, 1995, S.O. 1995 c. 1, provides arbitrators with broad discretion when dealing with penalty in the absence of a specific penalty provision in a collective agreement: Ontario Public Service Employees Union v. Ontario (Ministry of Labour), 2008 59106 (Div. Ct.), at para. 7. In this case there is no specific penalty clause.

[15] The issue of the deference that tribunal decisions ought to be afforded has been well discussed in the case law that has emanated from the Supreme Court of Canada. In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 the court held as follows:

12 It is important to emphasize the Court’s endorsement of Professor Dyzenhaus’s observation that the notion of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”. In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows:

“Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even it its reasons are in some respects defective. [Emphasis added.]

(David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304)

See also David Mullan, “Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let’s Try Again!” (2008), 21 C.J.A.L.P. 117, at p. 136; David Phillip Jones, Q.C., and Anne S. de Villars, Q.C., Principles of Administrative Law (5th ed. 2004), at p. 380; and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 63.

13 This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for “justification, transparency and intelligibility”. To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist. That was the basis for this Court’s new direction in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 23 (SCC), [1979] 2 S.C.R. 227, where Dickson J. urged restraint in assessing the decisions of specialized administrative tribunals. This decision oriented the Court towards granting greater deference to tribunals, shown in Dunsmuir’s conclusion that tribunals should “have a margin of appreciation within the range of acceptable and rational solutions” (para. 47).

[16] Most recently in the decision of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, the court provided the following guidance:

54 The board’s decision should be approached as an organic whole, without a line-by-line treasure hunt for error (Newfoundland Nurses, at para. 14). In the absence of finding that the decision, based on the record, is outside the range of reasonable outcomes, the decision should not be disturbed. In this case, the board’s conclusion was reasonable and ought not to have been disturbed by the reviewing courts.

[17] The parties differ, however, with respect to the standard of review that ought to be applied with respect to the issue of post-discharge evidence. The Applicant states that the standard of review is correctness: Cie minière Québec Cartier (Grievances Arbitrator), 1995 113 (SCC), [1995] 2 S.C.R. 1095 [Québec Cartier]. The Respondent, on the other hand, submits the standard of review is reasonableness: Canadian Broadcasting Corporation Radio-Canada v. Canadian Media Guild, 2007 BCCA 232, 2007 BCCA. 232, 281 D.L.R. (4th) 394, rev’g 2005 BCSC 1, 37 B.C.L.R. (4th) 210, leave to appeal to S.C.C. refused, [2007] S.C.C.A No. 312; Hamilton (City) v. C.U.P.E., Local 5167, 2013 34391 (Surdykowski); and Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487. For the reasons that follow this dispute is of no import in this matter.

The Issues

[18] The Applicant submits that the Board made three significant errors that led to an unreasonable decision. The errors are as follows:

(i) The Board relied upon the passage of time between the sentencing and the three year period of probation during which time the Grievor was not caught reoffending, and therefore improperly relied upon post-discharge evidence;

(ii) The Board erroneously interpreted the medical evidence with respect to the Grievor’s risk of reoffending; and

(iii) The Board ignored its own findings in concluding that the Grievor ought to be reinstated.

[19] I will deal with each in turn.

Analysis

(i) Post-Discharge Evidence

[20] I agree with the Respondent that in the circumstances of this case, it was appropriate for the Board to consider post-discharge evidence. The post-discharge evidence that the Applicant took issue with involved the Grievor’s efforts at rehabilitation and the fact that the Grievor had not reoffended.

[21] In my view, since the Grievor had begun his rehabilitation efforts prior to discharge, the Board was entitled to consider post-discharge efforts at rehabilitation that had continued. I agree with the submissions of the Respondent that this is an issue that should be properly considered by the Board.

[22] That said, the fact that the Respondent has not been caught reoffending is of limited significance since it would necessitate the Applicant, in essence, to prove a negative i.e., that the Grievor has been engaging in the conduct but has not been caught.

(ii) The Medical Evidence

[23] In the Board’s decision, at paragraph 91, it found that the Grievor’s likelihood of reoffending “was moderate to low”. A review of the medical evidence, however, demonstrates that this is not the case, and that the Board misapprehended the medical evidence which resulted in an unreasonable conclusion.

[24] Both Dr. Belicki and Dr. Dickey spoke of the difficulties with individuals suffering from exhibitionism. Dr. Belicki stated that individuals with exhibitionism are generally at risk to recidivate (though the risk can be lessened with treatment), and Dr. Dickey stated that exhibitionism is a life-long disorder.

[25] Dr. Belicki was of the opinion that the short-term risk was very low and that if the Grievor continued to apply what he had learned in therapy, he could keep the risk at this level. He did not specifically provide an opinion with respect to the long-term risk.

[26] Dr. Dickey agreed that the risk within a ten year period was low, citing the Grievor’s chance of sexual reoffending in the range of 8.7 to 23%, and his risk of sexual and violent reoffending being very low in the range of approximately 9% over a ten year period. Dr. Dickey, however, had a much different opinion with respect to the long-term risks. In this regard Dr. Dickey, taking into account the Grievor’s case specific factors and the fact that exhibitionism is a life-long disorder, concluded that the Grievor would represent “at least a moderate risk for re-offence similar to that which pertains to his current criminal charges”.

[27] Based on the foregoing, it was unreasonable for the Board to find that the medical evidence rated the likelihood of a repetition as “moderate to low”. This analysis failed to take into account the long-term prognosis, and specifically the opinion of Dr. Dickey, which was uncontradicted.

[28] The Board’s finding cannot be justified in the medical evidence and falls outside the range of possible acceptable findings, and as such it was unreasonable.

[29] For this reason alone I would quash the Order of the Board and set aside the Board’s decision.

(iii) The Analysis of the Millhaven Criteria

[30] I am cognisant of the fact that the Board could find that all or most of the Millhaven criteria have been met and still not conclude that the Grievor’s dismissal was justified. I am further sensitive to the fact that the decision must be approached as an organic whole. In my view, however, the Board unreasonably diminished, ignored, or made contradictory findings with respect to critical evidence when considering the five Millhaven criteria. This flawed analysis led to an unreasonable decision concerning reinstatement. In this regard, I will review each of the criterion.

1. The conduct of the grievor harms the company’s reputation or product.

[31] First, the Board correctly stated that in law, it is not necessary for the Ministry to prove damage to its reputation, and that it can be inferred from the details of the incident. The Board then went on, however, to review the publicity surrounding the Grievor’s arrest and conviction and concluded that it was not clear that the employer’s concerns about its reputation were valid. Given the legal test, the analysis that the Board applied is wrong in law and led to an unreasonable conclusion.

[32] The Board’s conclusion that the public’s response to the Grievor’s conduct would not have “summoned the same visceral reaction as the sexual assault of a minor or the possession of child pornography” is unreasonable.

[33] The Grievor chose a trail system near a girls’ high school and rowing club that was frequented by students. He engaged in 14 instances of indecent exposure in which the Grievor exposed himself and masturbated in front of women, including female high school students. He either did this while naked or while wearing special pants to maximize exposure. He made no attempt to hide from his victims. One of the victims was 14 years of age, and was severely traumatized by the actions of the Grievor.

[34] The Board continually referred to the victims as “young women”, which was not the case given the evidence that the likely victims and at least one victim was a minor. In my view, the public’s reaction would be of a similar visceral nature with respect to the Grievor’s actions. There is little is to be achieved in attempting to rate a sexual assault of a minor or possession of child pornography or the Grievor’s conduct. All of them are repugnant.

[35] Lastly, the Board also concluded that the Respondent’s activities were not the subject of gossip in the workplace. It is difficult to understand how the Board could have come to this conclusion given the fact that the two employees who testified on behalf of the Applicant both deposed that there had been discussions at work about what the Grievor had done and the resulting negative reaction of the co-workers. Furthermore, the supervisor who testified, Alfred Doussept, named seven employees who approached him about the rumours concerning the Respondent’s possible return to work. While this may not be construed as “gossip”, the evidence discloses that it was widely discussed.

[36] It was therefore unreasonable for the Board to find that the conduct of the Respondent did harm to the company’s reputation but then diminish it for reasons that are unsupportable.

2. The grievor’s behaviour renders the employee unable to perform his duties satisfactorily.

[37] In this regard, the Board found that there was “no evidence” that the Grievor is or will be unable to perform his duties satisfactorily. In my view, this finding is unreasonable.

[38] Once again, the Board focussed on the issue of publicity and gossip in the workplace and concluded that there had been none. This is unsupportable on the facts of the case. As noted, approximately ten workers at the Ministry and the Niagara Police Service were aware of the situation. With respect, it is naïve to think that this information would somehow remain private.

[39] Furthermore, the PDR, as noted, stipulates that TEOs are required to provide support to Crown prosecutors and testify in court, not only with respect to matters in which they are involved, but also as expert witnesses. They have to provide credible testimony. The obligation for the Grievor to present as a Crown witness obviously requires that he be credible and above reproach. It is unreasonable to conclude that his ability to perform his duties as a TEO, particularly those with respect to his obligation to testify in court would not be significantly compromised.

[40] It is for these reasons that I find that the Board’s conclusion that the Grievor would be able to satisfactorily perform his duties was unreasonable.

3. The grievor’s behaviour leads to refusal, reluctance or inability of other employees to work with him.

[41] The Board arbitrarily diminished the evidence on this point. First, it must be noted that the Board preferred the evidence of the Ministry witnesses over the Union’s witnesses. This evidence demonstrated the reluctance of the Ministry’s co-workers to work with the Grievor given, amongst other things, concerns about personal safety, the effects the Grievor would have on the atmosphere of the workplace, and the fear that teams would be split along gender lines given females’ concerns for safety. There was clearly significant reluctance or inability of other workers to work with the Respondent. The Board, however, gave little weight to this evidence and specifically noted that no employee had stated that they would quit if they were forced to work with the Grievor. Respectfully, this is not the test. It is not up to a worker who has done nothing wrong, and enjoys the security of his/her employment, to jeopardize that employment by refusing to obey a command to work with the Grievor. The reluctance or inability of other workers to work with the Grievor, particularly his female co-workers, is completely understandable given the nature of the activity that the Grievor had engaged in.

[42] It was unreasonable in the circumstances to diminish the testimony of the employer’s witnesses as being mere “opinions and preferences” after having accepted their testimony.

4. The grievor has been guilty of a serious breach of the Criminal Code thus rendering his conduct injurious to the general reputation of the company and its employees.

[43] The Board accepted that this criterion had been met but unreasonably diminished its significance. Instead of referring to the 14 admitted incidents, the Board restricted its analysis to the 4 criminal charges. Once again, in my view, it unreasonably diminished the significance as compared to offences of sexual assault or child pornography. This was done notwithstanding the Board’s conclusions that the two victims who were the subject matter of the two guilty pleas were traumatized as a result of the Grievor’s actions, and had suffered “grave consequences”. I accept that in the scheme of sexual offences set out in the Criminal Code, the charges that the Grievor pleaded guilty to would be at the lower end. It does not, in my view, result in a conclusion that the Grievor was not guilty of a serious breach of the Criminal Code. The Board failed to analyse the significance of the Grievor’s conduct vis a vis the reputation of the company and its employees. In this case, in my view, it would cause great injury in light of the statutory powers given to the Ministry and its uniformed employees that include ensuring compliance with Provincial legislation, regulations, and industry standards as well as providing Crown evidence.

5. Places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.

[44] Once again, the arbitrator found that this criterion was met but unreasonably diminished it on the basis that few people knew about the charges. As noted, this is not reflected in the evidence that disclosed that the Niagara Police Service was aware of the charges, as were approximately ten co-workers. One TEO expressed concerns about her personal safety and the effect that the Grievor would have on the atmosphere of the workplace. She added that there had been discussions at work about the co-workers’ lack of trust in the Grievor and how essential it was to trust your partner when on the road. Another TEO, testified that he did not want to work with or be associated “with anyone who would be charged with flashing” and he was concerned that having the Grievor in the workplace would split the teams along gender lines. None of these concerns seemed to be addressed by the Board in determining the significance of this criterion.

[45] The Board also placed reliance on the fact that there would be no criminal record on file, and suggested the Grievor would enjoy some anonymity. This strikes me as naïve as the record of the guilty plea and the disposition of the case would remain “on file”.

[46] Furthermore, no analysis was done with respect to the difficulty that the Ministry may have in properly carrying out its function of efficiently managing its works given the uncontradicted evidence by the Ministry about the concerns it had if the Grievor was called to testify in court.

[47] In sum, the Board unreasonably diminished the significance of the Millhaven criteria, erroneously interpreted or ignored relevant evidence, and understated the importance of the Grievor’s conduct in the context of his work as a TEO. This led the Board to unreasonably conclude that termination was not appropriate.

Decision

[48] Based on the above, I find that the Board came to unreasonable conclusions both with respect to its analysis of the medical evidence and the Millhaven factors. Each, in my opinion, would justify quashing the decision. A combination of both even more so.

[49] I also note that the Board, in coming to its decision, placed emphasis on an earlier decision of this court in the case Toronto District School Board v. Ontario Secondary School Teachers’ Federation, 2011 ONSC 7018, citing “numerous similarities”. In my view, the Toronto District School Board case is entirely distinguishable from this case. There, the grievor was a child and youth worker in a school who had been found guilty of sexual assault outside the workplace. He had been found guilty of one count of sexual assault and was given a conditional discharge and probation. This court upheld a return to work. The facts in that case, however, are very different:

• The grievor was a 42 year old, eight-year employee

• There was only one incident of sexual assault

• The assault did not involve a minor

• His co-workers, including the school principal, were entirely supportive

• There were no thoughts of reoffending

• The uncontradicted medical evidence was that he did not pose a risk to students, staff, or parents

[50] I realize that the Board relied on various mitigating factors in choosing discipline over termination. Specifically, in paragraph 91, the Board cited the Grievor’s efforts to deal with his condition, his approximate six months of treatment, and his cooperation with the two medical practitioners, his probation officer, and his low risk of reoffending. The Board then justified its decision in paragraph 92 as follows:

[92] For the reasons set out above, I order the grievor be reinstated to his former position. I find that the Employer did have cause to discipline him for his off-duty conduct and that this conduct involved a serious breach of the Criminal Code. His actions had the potential to unfavourably affect the Ministry’s reputation and its ability to perform its functions. Nevertheless, I have decided to give him another chance to show he understands the inappropriateness of his actions and the consequences if he should repeat them.

[51] The Board’s decision to “give him another chance” seemed to be based almost completely on the Grievor’s short-term prognosis, his efforts to deal with his condition and obtain treatment, and the Board’s erroneous conclusion that he was at low risk of reoffending. It virtually ignored the Millhaven criteria and in particular the negative impact of his behaviour on his credibility as a law enforcement officer.

[52] Lastly, I should note that the Applicant also submitted that the Board erred in law when it failed to address the Ministry’s alternative argument that the Grievor should be awarded damages in lieu of reinstatement. I disagree. Written reasons were not required with respect to this issue given the findings of the Board. Further, given my findings, nothing turns on this issue.

Disposition

[53] For these reasons, I would allow the application, set aside the award as to penalty, and order that the Respondent’s termination be upheld.

[54] If the parties cannot agree as to the issue of costs, written submissions not exceeding five pages in length can be made. The Applicant shall deliver its material within 30 days and the Respondent’s reply 14 days thereafter.

A.C.J.S.C. MARROCCO

BALTMAN J.

MCEWEN J.

Date of Reasons for Decision: December 10, 2013

Date of Release: December 12, 2013