GSB# 0157/98

UNION# 98A354

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Holmes)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Public Safety and Security)

Employer

BEFORE

Maureen K. Saltman

Vice-Chair

FOR THE UNION

Nelson J. Roland Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Christopher Jodhan and Len Hatzis Counsel Management Board Secretariat

HEARING

July 8, 1999, July 13, 1999, July 14, 1999, July 28, 1999, July 29, 1999, February 28, 2000, March 6, 2000, March 7, 2000, May 16, 2000, July 27, 2000, January 11, 2001, January 24, 2001, May 16, 2001, May 28, 2001, May 29, 2001

DECISION RENDERED

December 20, 2001.

REASONS FOR DECISION

The Grievor in this case, Dene Holmes, who was employed continuously from April 29, 1991 as a Correctional Officer at the Sudbury District Jail, was discharged on February 11, 1998. Prior to his employment as a Correctional Officer, the Grievor was employed as an RCMP Officer for some 10 years and as a private investigator for approximately three years thereafter.

The letter of discharge, which the Grievor received on or about its date of issuance, reads as follows:

Personal and Confidential

February 11, 1998

Mr. Dene Holmes

Dear Mr. Holmes:

On Monday February 02, 1998, you attended a meeting in my office to respond to the allegation that you engaged in inappropriate conduct which also involves sexual improprieties towards a female offender. At the meeting you were accompanied by your local representative Mr. P. Slee and Mr. P. Lachance.

During our meeting you denied the occurrence of the incidences [sic] of sexual improprieties directed towards a female inmate on October 05, 1998. You admitted making the statement to the investigator (‘Why would I, a married man, want to meet, I presume, a Native, in a public restaurant no matter what time of day or night’). You explained that you did not intend the remark to be discriminatory.

After careful consideration of the results of the investigation into the matter and your responses, I am of the view that on a balance of probability the incidences [sic] did occur. Your conduct and behavior is in direct conflict with the Ministry policy and represents a violation of the Ministry’s Statements of Ethical Principles.

It is clear that you do not appreciate that Correctional Officers must exhibit high standards of conduct in order to provide quality care to the offenders while serving the public of Ontario.

As a Correctional Officer with more than six (6) years of service and having been warned and disciplined respecting your unprofessional conduct and inappropriate behavior, you should have been well aware of you [sic] responsibility to conduct yourself in accordance with the standards of appropriate behavior.

As a result, in consideration of the seriousness of these incidences [sic] and your work record to date, I would advise you that your services as an unclassified Correctional Officer at this institution will be terminated effective the date of receipt of this letter.

Please return to the Office Manager any copies of the institutional standing orders, your identification card and any other property belonging to the Ministry.

Yours truly,

‘R. Chenard’

R. Chenard

cc Mr. J. Lake Mr. K. Graham Mr. J. Whibbs Mrs. L. Spears

On September 2, 1997, the Complainant, Ms. P., was convicted of aggravated assault, for which she was sentenced to 90 days in jail, to be served intermittently on weekends, from 7:00 p.m. on Friday to 6:00 a.m. on Monday. The Complainant began serving her sentence at the Sudbury District Jail on Friday, September 5^th. As an intermittent inmate, the Complainant was housed apart from the general inmate population, either in a segregation cell or in the Health Unit.

On the weekend of October 3^rd, the Complainant was assigned to 4 Corridor, which is a segregation unit in “B” Area, located on the first floor. On Saturday, the Complainant testified that she was not feeling well. She was, in her words, “burning up with fever” and experiencing “hot and cold chills”. The Complainant testified that she asked the Correctional Officer on duty if she could see the Nurse, but was told that the Nurse was busy and that she had to make a written request to see her. It would appear, however, that the Nurse does medication rounds at regular intervals, at which time an inmate may ask to see her without making a written request. Nevertheless, Ms. P. testified that, in response to her complaint of fever, the Correctional Officer told her “to take her clothes off”, or words to that effect (she was wearing a nightgown). The Complainant testified that, when he made this comment, the Correctional Officer had a “flirtatious look in his eyes” and that, as a result of the comment, she felt “degraded as a woman”. She also testified, in effect, that the Correctional Officer lingered in the area of her cell for a time after making the comment.

The Complainant testified that the offensive comment (telling her “to take her clothes off”) was made “toward evening, before suppertime”. She also testified that “later, toward evening”, the Correctional Officer, whose name she did not know, came by her cell again and started a conversation. Apparently, the Complainant was a student at Cambrian College and brought her homework to the Jail on weekends. The Correctional Officer asked about her schoolwork and what she did in her spare time. The Complainant said that she did not do anything, as her schoolwork took up most of her time. The Correctional Officer then asked if she “went to bars”. The Complainant said she did not, as she had been released on her own recognizance in relation to other charges and that one of the conditions of her recognizance was that she abstain from alcohol. According to the Complainant, the conversation continued, culminating in an invitation from the Correctional Officer to meet him at Trevi’s Restaurant on Lascelles Blvd. at 9:00 p.m. on Monday. The Complainant testified that she was familiar with Trevi’s as she lived in the area and played Bingo next door. She also testified that the Correctional Officer told her that he lived on Lascelles Blvd. behind Miracle Mart across from Trevi’s Restaurant. In any event, although the Complainant testified that she “didn’t know what to make” of the invitation, she agreed to meet him at the Restaurant. Some time before 11:00 p.m. that evening, the Officer came back to her cell and changed the meeting time from 9:00 p.m. to 11:00 p.m. on Monday.

The Complainant testified in examination-in-chief that she did not meet the Correctional Officer at Trevi's because she felt it was inappropriate. In cross-examination, however, she acknowledged that she could not meet the Officer at Trevi's as it would have been a breach of the conditions of her recognizance to go to a restaurant that served alcohol.

Although the Complainant was released by a female Correctional Officer at around 5:20 a.m. the following Monday (October 6^th), she did not mention the alleged incident involving a male Correctional Officer. Furthermore, she did not report the incident immediately upon her release (ostensibly because, as an inmate, she thought she had no rights). However, shortly thereafter (which would appear to have been on October 7^th), she mentioned the incident to Laura Pelletier, a Court Worker with the Native Friendship Centre. On Ms. Pelletier’s advice, the Complainant made a telephone call to the Jail. When the receptionist answered, the Complainant identified herself as an intermittent inmate and asked questions about whether it was unprofessional for a Correctional Officer to ask an inmate out on a date and generally about interactions between Correctional Officers and inmates. Although the Complainant suggested that these were hypothetical questions, the receptionist, Lorraine Blondin, testified that she understood the Complainant to be referring to her own situation. In this regard, Ms. Blondin testified that the Complainant sought confirmation that there should be “no connection between guards and inmates” and said that she wanted to speak to someone about a matter of this nature involving a married Correctional Officer at the Sudbury District Jail where she was serving her sentence. In oral evidence, however, the Complainant denied any knowledge of the Correctional Officer’s marital status. In any event, Ms. Blondin transferred the call to the Security Manager, Gary Parent.

For his part, Mr. Parent testified that he received a telephone call on October 7^th from Ms. Pelletier, with whom he had had previous dealings. According to Mr. Parent, Ms. Pelletier indicated that Ms. P. was in her office and wished to lodge a complaint. Ms. Pelletier then gave the telephone to Ms. P., who outlined the nature of her complaint, i.e., that a Correctional Officer had made an inappropriate comment about her taking her clothes off and then asked her out on a date. Ms. P. asked if this was proper conduct for a Correctional Officer. Mr. Parent testified, in effect, that he had no doubt that Ms. P. was describing an actual incident, rather than a hypothetical circumstance. Accordingly, Mr. Parent advised Ms. P. that if she wished to pursue the matter, she would have to prepare a written complaint, which she proceeded to do. That complaint reads as follows:

TO WHOM IT [sic] CONCERN:

I, [SP] DO INTERMITTENTS ON WEEKENDS AT SUDBURY DISTRICT JAIL. ON OCTOBER 5, 1997 SECTION 4, (CELL 2)

I HAD TOLD THE GUARD DENE L I WAS FEELING RATHER SICK. I HAD HOT & COLD CHILLS & SWEATS I HAD MY NIGHTGOWN ON BECAUSE IT WAS GOING TOWARDS THE EVENING. I FELT IT WAS NOT RIGHT & I FELT DEGRADED ABOUT HIS COMMENT. BEFORE LOCK UP HE CAME TO MY CELL & ASKED ME WHERE I HANG OUT AT ? I HAD TOLD HIM I DON’T USUALLY GO ANY WHERE BECAUSE OF MY SCHOOL SCHEDULE AT CAMBRIAN COLLEGE, IT TAKES UP MY TIME PLUS OF [sic] MY HOMEWORK. LATER HE (DENE) ASK [sic] ME TO MEET HIM AT TREV’S [sic] RESTAURANT ON LASALLE [sic] BLVD ON OCTOBER 6, 1997. ME I FELT IT WASN’T PROPER TO MEET HIM AT THE PLACE BECAUSE IT WAS UNPROFFESSSIONAL [sic] ON HIS PART. I STILL FEEL I’M NOT DOING THE RIGHT THING BECAUSE OF MY SITUATION OF DOING MY TIME ON THE WEEKENDS I DON’T WANT ANY HASSELS [sic] FROM THE GUARDS AT THE JAIL. I KNEW I HAD TO DO SOMETHING ABOUT THIS BECAUSE I DON’T WANT THIS THE [sic] HAPPEN TO ANOTHER INMATE. I’M GRATEFUL FOR TELLING SOMEONE TO GET OUT OF [sic] MY CHEST. I COULDN’T EVEN CONCETRATE [sic] AT SCHOOL BECAUSE ABOUT THIS SITUATION I’M IN.

[‘SP’]

The Complainant testified that she told Mr. Parent over the telephone that she thought the name of the Correctional Officer involved in the incident was ”Dene” (although it is unclear whether she was saying “Dean” or ”Dene”) or “D something” and Mr. Parent identified the Officer as “Holmes”. Accordingly, as she had been apprised of the identity of the Correctional Officer at the time she prepared her complaint, the Complainant characterized the reference to “Dene L.” as a “typo”. As to the content of her complaint, Ms. P. testified that shortly before lockup, the Correctional Officer asked where she “hung out” and then came back after lockup to ask her to meet him at Trevi’s Restaurant at 9:00 p.m. on Monday. A couple of minutes later, he returned to change the meeting time to 11:00 p.m.

Aside from asking for a written complaint, Mr. Parent scheduled an interview with the Complainant. Prior to the interview, Mr. Parent advised the Superintendent, Roger Chenard, that an informal complaint had been made alleging that a male staff member had made an inappropriate comment and tried to make a date with a female inmate. Mr. Chenard directed Mr. Parent to interview the inmate and obtain a statement, at which time, a decision would be made as to whether to conduct an internal investigation or refer the matter to the Independent Investigations Unit (“IIU”). Pursuant to this direction and prior to interviewing the inmate, Mr. Parent put together some documentation which might be relevant to an investigation of the complaint.

That documentation included the Disassociation Behaviour Report, which is located on the wall outside each segregation cell and on which the Area Officer (being the Correctional Officer assigned to the area) records his observations of each inmate in the segregation area (in this case, 4 Corridor in “B” Area) as part of his routine rounds at approximately 20-minute intervals; the log book, in which information pertinent to the entire shift for the area in question is recorded; and the duty roster, on which individual assignments are recorded in four-hour blocks.

In this case, the Disassociation Behaviour Report for October 5^th identifies the Grievor as the Area Officer from 7:05 p.m. to 10:40 p.m. (Although the actual entry, 1905 to 2240, was made on the 24-hour clock, to avoid confusion with other evidence, the Board has converted all references to the 12-hour clock.) It also includes entries of 4:30 p.m. for supper and 9:00 p.m. for “jug up” (which is a light snack, such as cake, cookies, cheese and crackers or a sandwich). The log book for the same date indicates “dishes out”, which signifies the end of the meal period, at 5:00 p.m.; “jug up” at 9:00 p.m. and “jugs out”, signifying the end of the snack period, at 9:40 p.m. The log book also identifies Claude St. Jean as the Shift Supervisor for the #3 shift from 7:00 p.m. to 7:00 a.m. and the Grievor as the Area Officer for “B” Area from 6:50 p.m. to 10:42 p.m., and indicates that the Nurse, Judy Buchanan, was in “B” Area distributing medications at around 7:35 p.m.

Finally, the duty roster for October 5^th identifies an individual by the name of Mroczyaski as the Shift Supervisor from 7:00 a.m. to 7:00 p.m. and Mr. St. Jean, from 7:00 p.m. to 7:00 a.m. the next day. The duty roster further identifies the Grievor as the Area Officer for “B” Area from 7:00 p.m. to 11:00 p.m. and Denis Leger as the “First Floor Runner” from 7:00 a.m. to 7:00 p.m. The Runner from 7:00 p.m. to 11:00 p.m. was Randy Baldelli. The Runner, the evidence indicates, is the Correctional Officer responsible for escorting inmates to and from their cells and assisting with meal delivery as well. In this regard, the log book for October 5^th records several instances of inmates being escorted to and from their cells in “B” Area on the #3 shift (between 6:50 p.m. and 10:43 p.m.), which would have required the presence of the Runner. As well, Mr. Parent acknowledged that, particularly as October 5^th was a weekend shift, the Runner would have been in “B” Area assisting with meal delivery, including supper at around 4:30 p.m. In any event, after reviewing the documentation, Mr. Parent concluded that there was a possibility that the allegations against the Grievor were founded, as the Complainant was housed in 4 Corridor, where the Grievor was assigned for a period of time on October 5^th. Accordingly, he decided to review the complaint and proceed with the interview of Ms. P.

The interview with the Complainant took place at the Sudbury District Jail on October 9^th. According to Mr. Parent, when the Complainant arrived for the interview, she submitted her complaint, which she had prepared at his request. Mr. Parent testified that he set aside the complaint and took a statement from the Complainant, which he wrote out for her signature. This statement reads, in its material portion, as follows:

What would you like to report?

This is about a comment from an officer called DENE L. I said to him I’m sick with hot & cold sweats. I was in a nightgown & he said ‘take it off’ with a smirk on his face.

Before lockup on October 05/97 he came to my cell & asked me where I hung out at. I said I don’t go anywhere because of school. Later he began talking to me about classes, programs & said I could bring my text in & then said ‘Do you go to Trevi's’, (no) meet at 9 oclock [sic] at Trevi's Monday night (Oct 6). He later came back & said make that 11 pm. He told me he lived behind Miracle Mart on Lasalle [sic] not far from the Trevi's.

I felt intimidated & unsure of him & did not know what to do. I did say yes to him just to get rid of him.

Although it is not clear what was written underneath the name, examination of the Complainant’s statement reveals that the reference to “Dene L.” in the first line was written over something which had been erased. In any event, Mr. Parent testified that, when the Complainant completed the statement, he asked if she was sure of the name of the Correctional Officer, because there was no Dene L. employed at the Jail, although there was an employee by the name of Dene Holmes. In this regard, Mr. Parent testified that Correctional Officers were given a choice as to how they wished to have their names displayed on their name tags, which must be worn at all times when on duty, and the Grievor chose to be identified by his first name and last initial, i.e., Dene H. (rather than his surname and first initial). Accordingly, as the Grievor was the only Dene working at the Jail, Mr. Parent told the Complainant that the Correctional Officer in question was Dene Holmes. However, as indicated, the duty roster indicates that Denis Leger was working in the area as the First Floor Runner from 7:00 a.m. to 7:00 p.m. on October 5^th and Mr. Parent acknowledged that his name tag might have read “Denis L.”. Nevertheless, Mr. Parent never considered that the Complainant’s reference to “Dene L.” might just as well have been Denis Leger as Dene Holmes. In any event, Mr. Parent asked the Complainant to read the statement and sign if she agreed with its contents, which she did. Following the interview, Mr. Parent provided a copy of both the complaint and the statement given by Ms. P. to Mr. Chenard, who made the decision to refer the matter to the IIU.

When the complaint was received in the IIU, it was assigned to Senior Investigator, Brian Scott. Mr. Scott testified that he received a copy of the complaint, as well as the letter of referral to the Manager of the IIU, Renata Kozarov. He began his investigation by conducting a series of interviews, the first of which was with the Complainant. As the Employer indicated that it was not relying on the notes of this interview, as well as a follow-up interview, with the Complainant for the truth of their contents, the Union withdrew its objection to the admissibility of the notes. Accordingly, the Board has considered the notes only to the extent that they were addressed by the Complainant in her oral evidence.

Mr. Scott testified that he arranged to meet with the Complainant at the Native Friendship Centre on October 29^th. At that time, although she told Mr. Scott that, when the Grievor asked her to take her clothes off, he had a “flirting look” on his face, in cross-examination, she was unable to explain what led her to that conclusion. She also told Mr. Scott that the Grievor made the offensive comment (asking her “to take her clothes off”) at around 7:00 p.m. or 8:00 p.m. on October 5^th, which was a Sunday, at a time when she understood he was the only Officer on duty. Another relevant point is that the Complainant told Mr. Scott that it was before lockup when the Grievor asked her to meet him at Trevi’s Restaurant and that he came back a couple of minutes later (which might have been before or after lockup) to change the time of the meeting. Although the Complainant claimed that she was “shocked” by the invitation, she seemed to suggest that, as an inmate, she felt she had no right to refuse. In any event, she claimed that it took until the next day at school for her to appreciate the impropriety. She, therefore, did not show up at Trevi’s Restaurant that night, as previously arranged. She acknowledged, however, that the Grievor never asked why she had not shown up (although it was unclear from the evidence whether she ever saw the Grievor again). Further, the Complainant told Mr. Scott that the Grievor had indicated that he lived behind Miracle Mart, which is across the street from Trevi’s Restaurant on Lascelles Blvd.

Finally, the Complainant apprised Mr. Scott of two incidents, one involving an allegation that the Grievor came to her cell to retrieve cigarettes for her common-law husband, who was incarcerated on another range, and the other, that the Grievor watched her getting undressed. As these incidents were not relied upon as the basis for discipline and as the details of the incidents, particularly in relation to the Grievor’s demeanour during the first incident, are highly prejudicial and of little probative value, they will be referred only to the extent necessary to understand the allegations in this case.

A follow-up interview with the Complainant took place at the Native Friendship Centre on December 19^th. Although the Complainant initially testified that she could not recall this interview, she subsequently confirmed excerpts from the notes of the interview, which she had signed. Specifically, she acknowledged that she had, on occasion, had drinks at Trevi’s Restaurant, which contradicts her earlier evidence to the opposite effect. She also told the Investigator that the Correctional Officer’s name tag said “Dene” and, although she noticed that the last initial was “L”, Mr. Parent told her that the last name was Holmes. As well, although the Complainant indicated that she called home on Sunday night (at 7:36 p.m., according to the log book entry), she denied that she called home on the night of the invitation to Trevi’s Restaurant. Almost immediately, however, Ms. P. resiled from this position, testifying that she, in fact, called home on the night in question, and that the call was made subsequent to both the offensive remark and the invitation to Trevi's. However, she claimed that she did not apprise her aunt, with whom she lived, of her encounter with a Correctional Officer, as her aunt was “over inebriated”. Finally, although the Complainant acknowledged that, once she knew the Grievor’s name (which had been given to her by Mr. Parent), she could have looked up his address and telephone number in the telephone directory, she vehemently denied that this was how she found out where the Grievor lived.

The second interviewee was the Grievor. Prior to interviewing the Grievor, Mr. Scott reviewed his personnel file. For his part, the Grievor testified that he first learned of the allegations in a telephone conversation with Mr. Scott on October 29^th. At that time, the Grievor was advised that an inmate by the name of SP had made allegations of sexual impropriety against him; that the allegations were being investigated and that he would be receiving written notification of the allegations. As well, an interview was scheduled for November 4^th to afford the Grievor an opportunity to respond to the allegations. Some time between October 29^th and November 4^th, the Grievor received documentation containing the name of the Complainant and details of the allegations of sexual impropriety, namely, that on October 5^th, he had asked the Complainant to take her clothes off and also asked her to meet him at a restaurant outside the institution the following day.

The Grievor testified that he was surprised at the allegations and so he attempted to locate the log book to verify where he had been working on October 5^th. However, the log book was not accessible. Moreover, his co-workers could not recall where he had been working that day. Nevertheless, the Grievor acknowledged in the interview of November 4^th that he had worked in “B” Area from 7:00 p.m. to 11:00 p.m. on October 5^th (although he had originally been scheduled to work in another area, where he would not have had contact with female inmates). However, he maintained that he did not recall the Complainant as having been an inmate in “B” Area. In this regard, the Grievor testified that although the Complainant’s name would have been on the Disassociation Behaviour Report and on a card outside her cell, he did not have sufficient contact with her to know who she was. As well, the Grievor claimed that he did not recall the Complainant from an occasion around the middle of October, when he went to her cell to request cigarettes for her common-law husband. On the Grievor’s version of events, the cell was not sufficiently well lit for him to have seen her clearly, whereas the Complainant claimed that, when the Grievor came to her cell, the lights came on, which suggests that the Grievor would have been able to get a good look at her. Nevertheless, the Grievor did recall having talked with an individual (whom he later found out was the Complainant) about her being a student at Cambrian College and about the procedure to be followed in bringing her school books into the institution. However, he denied having looked into the Complainant’s cell for five minutes (or so) before saying “goodnight” to her.

Apart from his personal knowledge, the Grievor testified that he understood from his co-workers that the Complainant was an intermittent inmate, who was “dry celled” (which is a procedure under which water is turned off in the cell of an inmate suspected of having swallowed contraband or placed it in a bodily orifice in order to force its expulsion from the inmate’s body) upon admission to the Jail on weekends, as she was suspected of bringing drugs into the institution. Mr. Parent testified, however, that he would have given the order for dry celling; that he gave no such order in respect of Ms. P.; and, further, that there would have been no reason for such an order.

The Grievor was also asked when he had worked on October 6^th. Although the Grievor had no independent recollection of the matter, his records, which he kept in his own calendar, indicate that although he was originally scheduled to work from 11:00 p.m. on October 6^th to 7:00 a.m. on October 7^th, he changed shifts and, in fact, worked from 3:00 p.m. to 11:00 p.m. on October 6^th. At the time of the interview, however, the Grievor could not recall when the shift had been changed or why the change was made. On reflection, however, he testified in these proceedings that he changed shifts with another Correctional Officer by the name of Perry Caverson and that the change was most probably arranged on the night of October 5^th. Although the Grievor did not recall the circumstances under which the change was made, he testified that shift changes were usually arranged by mutual agreement between two Officers and approved by the Shift Supervisor.

In this case, although the Grievor did not recall the specific conversation with Mr. Caverson, he recalled that Mr. Caverson initiated the change in order to assist with a hockey team he coached. Moreover, although the Grievor could not recall whether Mr. Caverson spoke to him in person or over the telephone, the Grievor suggested that the Complainant could have overheard the conversation by either means. Had Mr. Caverson telephoned him, the Grievor testified that the call would have been made to the telephone at the Guard Station in “B” Area and, as the door leading to the cells is generally left open, he assumed that an inmate in one of the first four cells (the Complainant was in the second cell) would have been able to hear the conversation. In fact, the Grievor was of the view that, as he has a loud voice, a telephone conversation could have been heard by an inmate in the eighth or ninth cell. On the other hand, had Mr. Caverson spoken to the Grievor in person, the conversation most probably would have taken place in the area of the Guard Station, which is just inside the block door, which also tends to be left open after 5:00 p.m. (although the Grievor acknowledged that it was an infraction to leave the block door open). The Grievor expressed the opinion that a conversation in this area would have been overheard more easily than a telephone conversation. Moreover, as the Grievor understood from Mr. Scott that the Complainant had referred to the 24-hour clock, which is not commonly referred to outside the Jail or similar institution, the Grievor assumed that she must have overheard his conversation with either Mr. Caverson or Mr. St. Jean, which would explain the fact that she seemed to know about the shift change. In any event, the Grievor’s evidence in this regard is purely conjecture, as he acknowledged that he did not recall the conversation with Mr. Caverson or Mr. St. Jean and, regrettably, Mr. Caverson cannot assist with the matter as he has developed amnesia.

Although Mr. St. Jean was called as a witness, he appeared to have no independent recollection of this matter. Nevertheless, the occurrence report, which he completed on October 28^th, indicates that he was scheduled to work from 7:00 p.m. on October 5^th to 7:00 a.m. on October 6^th and that some time during that shift, he approved a request by Mr. Caverson for a shift exchange with the Grievor for the following day. As a result of this exchange, the Grievor would have been working from 3:00 p.m. to 11:00 p.m. on October 6^th (instead of 11:00 p.m. on October 6^th to 7:00 a.m. on October 7^th). The report further indicates that Mr. St. Jean telephoned the Grievor to verify that he was in agreement with the change. Although Mr. St. Jean could not recall whether Mr. Caverson requested the shift change over the telephone or in person, he acknowledged in these proceedings that the request might have been made while he was on his rounds. As well, Mr. St. Jean acknowledged that it was “possible” he had spoken to the Grievor about the shift change while he was on his rounds. However, the occurrence report (which is the only reliable evidence, as Mr. St. Jean had no independent recollection of these events) indicates that Mr. St. Jean received confirmation of the Grievor’s agreement to the shift change over the telephone. In this regard, Mr. St. Jean acknowledged that although an inmate in the first cell might have been able to overhear the telephone conversation, in this case, she would only have been able to hear the Grievor’s end of the conversation, the substance of which was, “It does not matter to me which shift it is.”

Further, the Grievor indicated in the interview that he lived 10 minutes north of Miracle Mart across from Trevi’s Restaurant on Lascelles Blvd. Although he was surprised (and somewhat concerned) to discover that the Complainant knew where he lived, he acknowledged that he might have told her, in course of conversation, that he lived near Cambrian College or that she might have overheard him telling another Correctional Officer that he lived behind Miracle Mart. However, as he understood from Mr. Scott’s questions that the Complainant knew his address (and not just the area in which he lived), he suggested that she could have found his address in the telephone directory.

Finally, the Grievor denied having asked Ms. P. to meet him at Trevi’s Restaurant (or anywhere else, for that matter). The Grievor further testified that he assumed from the allegation that he had asked the Complainant to take her clothes off (which he denied), that the additional allegation that he asked her to meet him at a restaurant was for the purpose of a sexual encounter. However, the Grievor said, in effect, that he is not attracted to native women (he assumed from her surname that the Complainant was native) and so he would not have asked her to take her clothes off or meet him at a restaurant, as he could have seen better-looking women at a “strip club”. The Grievor testified that he did not intend this remark to be discriminatory, but rather to suggest that, given his sexual preference, he would not have initiated a sexual encounter with a native woman, particularly in a public place, such as Trevi’s Restaurant, where he knew the owners and some of the clientele. In particular, he indicated that he had been recently married and that his stepson frequented Trevi’s Restaurant. Accordingly, he suggested that there was too much at stake for his marriage for him to have taken a woman to a public place where he could have encountered his stepson. As well, he suggested that Trevi's attracted an older clientele and, further, that a native woman would have stood out in that setting. In addition, given the shift change, whereby he worked from 3:00 p.m. to 11:00 p.m. on October 6^th, he still would have been in uniform had he met the Complainant at Trevi's at 11:00 p.m.

Finally, the Grievor testified that he did not know of any reason why the Complainant would have fabricated allegations of sexual impropriety against him. He further testified that there had never been any complaints of this nature against him and that, although he had been offered sexual favours in exchange for allowing female inmates to smoke in segregation, which is a non-smoking area, he always refused these offers. As to the Complainant, in particular, the Grievor testified that he did not know at the time of the interview that she had applied for the temporary absence programme (“TAP”). In this regard, the evidence indicates that some time prior to the alleged infractions, the Complainant applied for a temporary absence programme known as “ACE” (Alternative Custodial Environment), which would have allowed her to serve the balance of her sentence in the community rather than in jail. It would appear that the Grievor made two applications for ACE, the first, for one weekend only, covered the weekend of October 31^st to November 3^rd. That application, which would appear to have been approved on October 30^th, refers to “special circumstances”, which the Employer acknowledged was a reference to the ongoing investigation of the Grievor in relation to the allegations in this matter. The second application, which was also approved, covered the period from November 7^th to December 14^th, which was the end of the Complainant’s sentence, taking into account statutory remission. As a result of the approval of her ACE application, the Complainant was not required to return to the Sudbury District Jail at any time subsequent to her release on October 27^th.

At the conclusion of the interview, which lasted about an hour, the Grievor was asked to read the statement, which Mr. Scott had prepared for his signature, and initial each page. Subsequently, the Grievor asked for a few days off. Upon his return to work, he requested that he not be scheduled to work with female inmates. However, his request was denied, as it was impossible to guarantee that he would not come into contact with female inmates. Nevertheless, the Employer agreed that he would not be required to guard the Complainant (although it would appear that by this time, she was no longer serving time in jail). Moreover, it is unclear whether the Grievor guarded the Complainant at any time between October 6^th, when she was released from jail at the end of the weekend when these allegations arose, and October 27^th, which would appear to have been her last day in jail in regard to this period of incarceration.

The evidence further indicates that the Grievor telephoned Mr. Scott the day after the interview (November 5^th). The purpose of the telephone call was to get some indication of what the Complainant had said in her interview, and to reiterate that he had not asked the Complainant (or any other inmate) to take her clothes off or meet him at Trevi’s Restaurant on October 6^th and, further, that he had not gone to Trevi’s on October 6^th (although he had allegedly arranged to meet the Complainant there at that time).

Following the telephone conversation with Mr. Scott on November 5^th, the Grievor made efforts to recall where he had gone after work on October 6^th (the date on which it is alleged he arranged to meet the Complainant at Trevi’s Restaurant). After talking with two of his co-workers, Randy Baldelli and Terry Phytila, the Grievor remembered that he had driven to Don Cherry’s Sports Bar immediately after work. The evidence in this regard indicates that Mr. Baldelli called the Jail and left a message with the Control Officer, Mr. Phytila, who relayed the message to the Grievor to meet Mr. Baldelli at Don Cherry’s after work. Mr. Baldelli testified that as he had been drinking, he needed a ride home. The evidence further indicates that, by arrangement with his replacement, the Grievor left work 15 minutes early and arrived at Don Cherry’s (a 10-minute drive) before 11:00 p.m. When he got there, the Grievor was still in uniform. After about 45 minutes, the Grievor left Don Cherry’s and went to Casey’s, another bar in the local area, to talk to the owner about installing a bar top video machine. Evidently, the Grievor has had a business installing amusement machines since 1988. In any event, the Grievor testified that he got to Casey’s just before midnight. He clearly remembered this as being a Monday, as it was Monday football night and the employees were outfitted like football players. In any event, after waiting for about 15 minutes, the Grievor spoke with the owner, Mike Reid, and arranged for delivery of a video machine the following day. He then returned to Don Cherry’s at about 12:15 a.m. and drove Mr. Baldelli home. At no time, however, did he go to Trevi’s Restaurant that night.

The following day (October 7^th), the Grievor drove Mr. Baldelli to pick up his truck from the parking lot of Don Cherry’s, where he had left it the night before. Mr. Baldelli stayed at Don Cherry’s while the Grievor went on to Casey’s to install a video machine. Mr. Baldelli followed him to Casey’s a few minutes later. Although Mr. Baldelli stayed at Casey’s, the Grievor left as soon as he had finished programming the machine.

Once the Grievor recalled where he had gone after work on October 6^th, he gave this information to Mr. Scott in a telephone conversation on November 6^th. Although the Grievor provided Mr. Scott with the names of the individuals he had been with on the night of October 6^th, he did not know whether Mr. Scott took steps to verify his account. In fact, Mr. Scott testified that he interviewed Messrs. Reid and Baldelli, but their input did not inform his conclusions with respect to this matter.

Some time later (most probably in late November or early December), the Grievor had a conversation with AS, an intermittent inmate, who had been housed in “B” Area for perhaps as long as a year. The Grievor testified that he often talked with Ms. S., who had been a Probation Officer in Iroquois Falls. On this particular day, the Grievor testified, Ms. S. told him that she believed that Ms. P. might have been bringing drugs into the Jail for two other inmates in 4 Corridor, and that Ms. P. might have been seeking revenge against him because he blocked the transfer of newspapers, which was the means by which the drugs were transferred. The Grievor professed to be “amazed” at Ms. S.’s story and asked her to write it down, which she did.

In regard to this matter, the Grievor testified that intermittent inmates were known to carry drugs into the Jail and to transfer them by placing them in newspapers and passing the newspapers from cell to cell. In order to prevent the transfer, the Grievor testified that he refused to allow newspapers to be passed between cells. Although the Grievor had no information that Ms. P. had attempted to pass newspapers between cells, as previously indicated, he understood that she was in the segregation unit as she was suspected of bringing drugs into the institution. However, the evidence indicates that intermittent inmates were generally segregated from the main population to reduce the risk of contraband (including drugs) being brought into the institution, irrespective of whether it was suspected that a particular intermittent inmate was transporting drugs. In any event, Ms. S. purportedly stated that she believed that Ms. P. might have been bringing drugs into the institution and that Ms. P. would do something to exact revenge on the Grievor for interfering with the transfer of drugs. Although the Grievor conceded that he did not know how Ms. S. would have come upon this information (as he had not discussed the matter with her and as her cell was at the other end of the cell block from the Complainant), he suggested, in effect, that information of this sort circulated within the Jail. In any event, on or about December 10^th, the Grievor contacted Mr. Scott and suggested that he talk with Ms. S., as she had some insight into Ms. P.’s motivation for initiating the complaint against him. He also provided Mr. Scott with a copy of the note Ms. S. had given him. Mr. Scott testified that he interviewed Ms. S., but considered her input to be irrelevant, as she did not purport to know anything. In addition, Mr. Scott interviewed Mr. Caverson and Ms. Pelletier, but discounted their input as well.

Subsequent to the conclusion of the interviews, Mr. Scott prepared a report of his investigation, which he submitted to his Manager. The principal finding of the report was that the Grievor had committed a sexual impropriety by asking the Complainant to take her clothes off and by arranging to meet her at Trevi’s Restaurant. In support of this finding (specifically, the arrangement to meet the Complainant outside the institution), the Investigator relied on the fact that, even prior to the initial interview with Mr. Parent on October 9^th, the Complainant knew where the Grievor lived in relation to Miracle Mart. As to this matter, Mr. Scott discounted the possibility that the Complainant could have found out where the Grievor lived by looking in the telephone directory, as she would have to have known his surname in order to have used the directory. It would appear, however, that she did not know the Grievor’s surname until Mr. Parent “let it slip” in the course of the interview. Moreover, even if she had known his surname, there were three listings for “D. Holmes” (including one with a middle initial) in the directory and, in order to have picked the correct listing, the Complainant would have to have known which one was in the area of Trevi’s Restaurant, which Mr. Scott conceded she could have known had she been sufficiently familiar with the area or looked at a map. However, he considered it unlikely that the Complainant would have found out where the Grievor lived in this way. Mr. Scott also relied on the fact that the change in the time at which the Grievor arranged to meet the Complainant was consistent with the Grievor’s shift change for October 6^th. Regarding the shift change, Mr. Scott did not accept that the Complainant could have overheard the conversation between the Grievor and Mr. Caverson. As well, the Investigator found the Complainant’s evidence to be more credible than that of the Grievor. His conclusion, as set out at pages 8 and 9 of his report, is as follows:

After considering all the evidence, it is concluded, on a balance of probabilities and based on clear and convincing evidence, that the respondent [the Grievor] committed a sexual impropriety in that he asked the complainant to take her clothes off on October 5, 1997. It is also concluded that the respondent committed a sexual impropriety by arranging to meet the complainant at Trevi’s. Although there is no direct evidence as to the purpose of such a meeting, the only reasonable interpretation, given the facts of this case, is that the respondent was asking the complainant to meet him with a view to a romantic or sexual encounter. As well, it is concluded that the respondent’s comment to the investigator (‘Why would I, a married man, want to meet, I presume a Native, in a public restaurant no matter what time of day or night’) to be a discriminatory remark based on race, contrary to the WDHP Directive.

The investigative report was subsequently provided to the Superintendent, Mr. Chenard. After reviewing the report, Mr. Chenard wrote to the Grievor on January 27, 1998 advising of the receipt of the report and arranging a meeting for February 3^rd to discuss the findings. The Grievor attended the meeting with his Union Representative, Paul Lachance, and the OPSEU Staff Representative, Paul Slee. Also in attendance was the Deputy Superintendent of Operations, Enzo Pedron. The purpose of the meeting, according to Mr. Chenard, was twofold: (1) to apprise the Grievor of the findings of the IIU investigation in respect of the allegations against him; and (2) to give him an opportunity to respond to the allegations. As to the actual report, Mr. Chenard testified that although he was permitted to reveal its contents, as the report was confidential, his instructions from the Deputy Minister’s office were not to make copies of the report. Accordingly, although Mr. Chenard read excerpts from the report, he did not allow the Grievor or his Union Representatives to peruse the report. Moreover, although the Grievor and his Union Representatives requested a copy of the report at the meeting and subsequently by means of an application under the Freedom of Information and Protection of Privacy Act, it was not until these proceedings that the report was finally produced.

In any event, as to the content of the investigative report, Mr. Chenard testified that he told the Grievor that the allegations, namely, that the Grievor had asked an inmate to take her clothes off; that he had arranged to meet her outside the institution; and that he had made a discriminatory remark to the Investigator, had been substantiated by the IIU. He then questioned the Grievor in respect of these allegations, namely, how the inmate could have gotten his name and address as well as information regarding his shift change for October 6^th. Although his responses did not satisfy Mr. Chenard, the Grievor suggested, among other matters, that the inmate could have gotten his address from the telephone directory. However, Mr. Chenard suggested that it would have been difficult to locate the Grievor in the directory without knowing his address.

As to the shift change, the Grievor also suggested that the inmate might have overheard his conversation with another Correctional Officer or with the Shift Supervisor, Mr. St. Jean. According to Mr. Chenard, however, Mr. St. Jean’s occurrence report indicates that he telephoned the Grievor about the shift change and Mr. Chenard suggested that it would have been difficult for an inmate to have overheard a telephone conversation (or even a face-to-face conversation between two Officers), as there was a great deal of background noise (notably, the ventilation system, television sets, etc.). In this regard, Mr. Chenard testified that it is even difficult for an Officer on rounds to converse with an inmate in segregation, as the Officer must speak loudly enough to be heard through a solid door or must bend down and speak through the food hatch in order to be understood. Although Mr. Chenard acknowledged that a Correctional Officer had been counselled for confronting her Supervisor about an assignment in an area where she could be overheard by inmates, the details of the incident, involving another Correctional Officer, were unclear. Nevertheless, of relevance for this case, it seems clear that the Officer was yelling, rather than speaking in a conversational tone and that the conversation took place in a corridor in which the cells were secured with bars, rather than steel doors. Leaving aside the likelihood that a conversation might have been overheard, Mr. Chenard suggested that, in this case, the inmate’s information about the shift change was too specific to have been gleaned in this manner.

Finally, although the Grievor acknowledged that he had made the racial comment attributed to him, he stated that he did not intend the comment to be discriminatory. There was also some discussion as to the Grievor’s attempt to obtain cigarettes from the Complainant for her common-law husband. However, that matter was not pursued as a basis for discipline. At the conclusion of the meeting, although the Grievor was given an opportunity to make additional comments, he chose not to do so. The Grievor was then advised that a decision would be made regarding disciplinary action, if any, to be taken.

Subsequently, Mr. Chenard testified, he reviewed the investigative report, as well as the information provided by the Grievor at the February 4^th meeting. Although the Grievor’s conduct was viewed as being of a serious nature, which contravened Ministry policies and Conflict of Interest Guidelines, Mr. Chenard testified that he reviewed the Grievor’s work record to determine if there was any basis upon which to mitigate the penalty of discharge. However, he found nothing to mitigate the penalty. In the result, the letter dated February 11, 1998 (reproduced on the first two pages of these reasons) was sent terminating the Grievor’s employment.

Decision

In justifying the action to terminate, the Employer relied on three principal allegations, namely, that the Grievor committed a sexual impropriety on October 5, 1997 by (1) asking the Complainant to take her clothes off; and (2) inviting her to meet him at a restaurant outside the institution. As well, it is alleged that the Grievor made a discriminatory remark to the IIU Investigator to the effect that he would not want to be seen in public with a native woman.

By way of background, the evidence indicates that the Complainant was an intermittent inmate at the Sudbury District Jail who, according to the Warrant of Committal, was sentenced to a 90-day jail term, which she began to serve on Friday, September 5, 1997. In accordance with the terms of her intermittent sentence, the Grievor was scheduled to attend at the Jail on weekends, from 7:00 p.m. on Friday to 6:00 a.m. on Monday. On the weekend of October 3^rd, the Complainant was assigned to 4 Corridor, which is a segregation unit in “B” Area, located on the first floor. The Union suggested that the Complainant was in segregation as she was suspected of bringing drugs into the institution and, further, that on the weekend in question, she was being “dry celled” (which was described as a procedure designed to force the expulsion of drugs and other contraband from an inmate’s body). However, the evidence does not support the conclusion that the Complainant was being “dry celled”. Mr. Parent testified that he had the authority, in his role as Security Manager, to give the order for “dry celling”, but that no such order was given in respect of Ms. P. In fact, he stated that there would have been no reason to have given such an order in her case. Moreover, none of the documentation in relation to Ms. P. supports the conclusion that she was being “dry celled”. Furthermore, there was no credible evidence upon which to conclude that the Complainant was in segregation because of concerns about her bringing drugs into the institution. In fact, the only evidence which purports to implicate Ms. P. in this regard is Ms. S.’s note, which suggests that Ms. P. might have been bringing drugs into the institution. Leaving aside its hearsay nature, this note is speculative at best. In any event, the evidence indicates that intermittent inmates were generally segregated from the main population in order to reduce the risk of contraband (drugs, among other proscribed substances) being brought into the institution irrespective of concerns in relation to any particular intermittent inmate.

As to the specific allegations, the Complainant testified that on a Saturday (which other evidence indicates was October 4^th), she was not feeling well. She further testified that, upon complaining of fever, the Correctional Officer on duty told her “to take her clothes off”. Although the Complainant testified that when he made this remark, the Correctional Officer had a “flirtatious look in his eyes”, in cross-examination, she was unable to explain what led her to that conclusion. In any event, the Complainant testified that as a result of the Correctional Officer’s remark, she felt “degraded as a woman”. She also testified that the remark was made “toward evening, before suppertime” (suppertime in segregation being at about 4:30 p.m.) and that the Correctional Officer lingered in the area of her cell after making this remark. The Complainant further testified that some time later, the Correctional Officer returned to her cell and initiated a conversation, which culminated in an invitation to meet him outside the institution (specifically, at Trevi’s Restaurant on Lascelles Blvd.) at 9:00 p.m. on Monday, October 6^th. Although the Complainant testified that she did not know “what to make” of the invitation, she agreed to meet the Officer outside the institution. Some time before 11:00 p.m., the Officer returned to the Complainant’s cell and changed the meeting time from 9:00 p.m. to 11:00 p.m. on Monday.

In compliance with the terms of her intermittent sentence, the Complainant was released from jail at around 5:20 a.m. on Monday, October 6^th. She testified that, some time during the day, she came to appreciate the impropriety of the Correctional Officer’s invitation and, therefore, decided against meeting him at Trevi’s Restaurant at 11:00 p.m., as previously arranged.

The following day (October 7^th), the Complainant enlisted the assistance of Laura Pelletier, a Court Worker with the Native Friendship Centre, in reporting the interaction with the Correctional Officer (including asking her to take her clothes off and asking her to meet him outside the institution) to the officials of the Sudbury District Jail. Her complaint was referred to Mr. Parent. After outlining the nature of her complaint, Ms. P. prepared a written complaint at Mr. Parent’s request. Notably, the complaint identifies the Correctional Officer involved in the incident as “Dene L.”. Although the Complainant testified in these proceedings that she did not know the name of the Correctional Officer at the time of the incident and, further, that she had not seen his name tag, she told Mr. Parent in the telephone conversation on October 7^th that she thought the name of the Correctional Officer involved in the incident was “Dene" (although it is unclear whether she was saying “Dean” or ”Dene”) or “D something”, and that Mr. Parent then identified the Officer as Dene Holmes. Accordingly, as she had been apprised of the identity of the Correctional Officer at the time she prepared her complaint, the Complainant characterized the reference to “Dene L.” as a “typo” (typographical error). Further, although the complaint identifies the date of the incident as being October 5^th, which was a Sunday, the Complainant testified that the incident took place on a Saturday. Although Saturday of the weekend in question was October 4^th, the Complainant never referred to this date in the course of her evidence.

Finally, in a statement given to Mr. Parent on October 9^th, the Complainant identified the date of the incident as being October 5^th and, of particular note, the name of the Correctional Officer as “Dene L.”. Although this statement was written out by Mr. Parent and presented to the Complainant for signature, according to Mr. Parent, it was at this point, and not in the telephone conversation, that he asked the Complainant if she was sure of the name of the Correctional Officer because, as he explained, there was no Dene L. employed at the institution, although there was an employee by the name of Dene Holmes. Moreover, Mr. Holmes’s name tag, which he was required to wear at all times while on duty, read “Dene H.”.

Based on the fact that the Grievor was the only Correctional Officer at the Sudbury District Jail named Dene and that his name tag displayed his first name and last initial, Mr. Parent testified that that he concluded that the Correctional Officer involved in the incident was Dene Holmes. In my view, it is this conclusion which taints the entire case against the Grievor. Although the Union suggested that there was a history of animosity between Mr. Parent and the Grievor and that it was this animosity which motivated Mr. Parent to implicate the Grievor in this incident, in our view, it is unnecessary to decide this matter. Suffice it to say that Mr. Parent made the identification of the Grievor and this identification undermines the Employer’s case against the Grievor. It should be said that, although there might have been circumstances in which the Employer could properly have made the identification had a sufficient description of the Correctional Officer been provided by the Complainant, in this case, the description provided was insufficient for this purpose. Whether one accepts the Complainant’s version of events, that Mr. Parent told her the name of the Correctional Officer after she identified him as “Dene” (or “Dean”, as the evidence was contradictory as to whether she had seen his name tag) or “D something” in the telephone conversation on October 7^th, or Mr. Parent’s version, that it was not until he saw the name “Dene L.” in Ms. P.’s statement that he provided the name, the description of the Officer provided by the Complainant was insufficient for Mr. Parent to have identified the Grievor as the Correctional Officer involved in the incident. Although there was no other individual by the name of Dene working at the Jail on October 5^th, the duty roster indicates that Denis Leger was assigned as the First Floor Runner (which covers 4 Corridor in “B” Area, which is the area in which the Complainant was housed) from 7:00 a.m. to 7:00 p.m. on October 5^th and it was acknowledged that his name tag might have read “Denis L.”. In this regard, the evidence indicates that Correctional Officers were given the choice of being identified on their name tags by first name and last initial or by surname and first initial.

Nevertheless, Mr. Parent never considered that the reference in the complaint to “Dene L.” might just as well have been Denis Leger as Dene Holmes, which was an error on his part, as it has not been proven that the Grievor was even on duty in the area at the time the infractions are alleged to have taken place. More fundamentally, it has not been proven when the infractions actually took place. The Complainant testified in examination-in-chief that the infractions took place on a Saturday and, in particular, that the offensive remark (asking her to take her clothes off) was made “toward evening, before suppertime” (suppertime in segregation being at around 4:30 p.m.); that the request to meet the Correctional Officer outside the institution was made “later, toward evening”; and that some time before 11:00 p.m., the meeting time was changed. In cross-examination, however, she confirmed her statement to the IIU Investigator that the infractions took place on Sunday, October 5^th and, specifically, that the Correctional Officer asked her to take her clothes off between 7:00 p.m. and 8:00 p.m.; that he returned to her cell “before lockup” (lockup that night being at 10:30 p.m.) to ask her to meet him outside the institution; and that he came back “a couple of minutes later” (which, her evidence suggests, might have been before or after lockup) to change the meeting time from 9:00 p.m. to 11:00 p.m. Also in cross-examination, in the context of reviewing her written complaint, the Complainant testified that it was “after lockup” that the Correctional Officer asked her to meet him outside the institution. Finally, in relation to cross-examination, the Complainant testified that both infractions (the offensive remark and the invitation to meet him outside the institution) took place prior to a telephone call home which, according to the log book, she made at 7:36 p.m. on October 5^th. Accordingly, although October 5^th is consistent with the date identified on the original complaint and in the statement given to Mr. Parent, the times at which the infractions are alleged to have taken place are rife with inconsistency. Further, although nothing turns on the matter, the complaint does not actually identify the remark alleged to have been made by the Correctional Officer.

While we appreciate that inmates in segregation, who have no access to watches or clocks, might have difficulty pinpointing the exact time at which an incident took place, time can be estimated in relation to external events, such as meal times. Moreover, notwithstanding the difficulty in estimating time, in this case, timing is critical to a determination of whether the Grievor was even on duty in the area in which the Complainant was housed (either as the Area Officer or First Floor Runner) and, therefore, would have had the opportunity to commit the alleged infractions. It should be stated that for the purposes of this decision, the Board is prepared to accept that something untoward happened in relation to the Complainant on either October 4 or October 5, 1997 and, further, that if events occurred as described by the Complainant (i.e., that she was asked to take her clothes off and invited to meet a Correctional Officer outside the institution), they constituted misconduct on the part of the perpetrator. Accordingly, it is unnecessary to deal with the Union’s submission that the Complainant fabricated allegations of sexual impropriety against a male Correctional Officer in order to gain access to the TAP and, therefore, serve the balance of her sentence outside the institution. However, this case turns on the identity of the male Correctional Officer involved in the misconduct and, unless it can be proven that he was in the area at the time of the misconduct, the Grievor cannot be identified as having been the perpetrator.

Notwithstanding a prodigious effort in this regard, the Board has been unable to determine when the misconduct (accepting, as we have said, that there was misconduct) took place. If the infractions took place on Saturday, October 4^th, there was no evidence to establish that the Grievor was even on duty that day. In fact, there was no evidence (whether in the form a log book, a duty roster or otherwise) to establish which Officers were in “B” Area, either in the position of Area Officer or First Floor Runner, on that Saturday. And, if the misconduct took place the following day (Sunday, October 5^th), then, according to the log book, the Grievor was the only Officer on duty in the area between 6:50 p.m. and 10:42 p.m., although Mr. Leger was assigned as the First Floor Runner from 7:00 a.m. to 7:00 p.m. As the First Floor Runner, Mr. Leger would have been in “B” Area (including 4 Corridor, where the Complainant was housed) assisting with meal delivery at around 4:30 p.m. He also would have been in and out of the area throughout his 12-hour shift escorting inmates to and from their cells. Although the log book for the #3 shift for October 5^th records several instances of inmates being escorted to and from their cells between 6:50 p.m. and 10:43 p.m., the log book for the earlier shift was not produced to enable the Board to assess the activity of the Runner in escorting inmates prior to that time. Nevertheless, the Board’s jurisdiction in this case is not to determine whether Mr. Leger was the perpetrator of the misconduct at issue, but rather whether the Grievor was the perpetrator and, in this regard, the evidence was simply too unreliable to come to any conclusion.

Accordingly, even accepting the Complainant’s evidence that the misconduct (asking the Complainant to take her clothes off and asking her out on a date) took place, the Board is unable to conclude, with any degree of certitude, that this conduct was attributable to the Grievor. Certainly, the Complainant was unable to identify the Grievor as the Officer who committed the misconduct and, as has been indicated, the Employer’s identification was defective from the outset. Moreover, the fact that the Complainant knew that the Officer who had allegedly made the remarks lived behind Miracle Mart does not cure the defect. Once Mr. Parent identified the Officer as having been Dene Holmes, the Union suggested that there were a number of ways by which the Complainant could have found out where he lived (or, more accurately, the general vicinity in which he lived), including in course of conversation unrelated to any misconduct. In any event, the fact that the Complainant knew the general vicinity in which the Grievor lived does not implicate him in the misconduct, particularly as there was no evidence as to where Mr. Leger (or any other Correctional Officer, for that matter) lived in relation to Miracle Mart. One is then left with the fact that the change in the meeting time at Trevi’s Restaurant coincided with the Grievor’s shift change on the day in question (Monday, October 6^th). However, there could have been any number of reasons for the perpetrator to have changed the meeting time, and shift change is just one of them. The important point is that this coincidence, although perhaps suspicious, is not sufficient to overcome the fundamental flaw in the Employer’s identification of the Grievor in the first place. Accordingly, the Board finds that the allegation that the Grievor committed a sexual impropriety on October 5, 1997 by asking the Complainant to take her clothes off and by arranging to meet her at a restaurant outside the institution has not been proven.

There remains the allegation that the Grievor made a discriminatory remark to the IIU Investigator to the effect that he would not want to be seen in public with a native woman. In fact, the Grievor admitted having made this remark in defence of the allegation that he invited the Complainant to meet him in a public place (Trevi’s Restaurant). In this context, in which the statement was proffered in defence of the Grievor’s actions, the statement, which might be racist in another context, was purely exculpatory and cannot form the basis for discipline. In the result, the Board finds that no grounds for discipline existed with respect to this allegation as well.

Accordingly, as the parties were advised by decision dated December 21, 2001, the Board finds that the allegations against the Grievor have not been proven. In its decision, the Board directed that the Grievor be reinstated forthwith and remained seised to deal with remedial matters, including the Grievor’s status upon reinstatement. That retention of jurisdiction continues until this matter is finally determined.

DATED AT TORONTO, this 4^th day of February, 2003.