GSB# 2001-0224

UNION# 2001-0582-0018, 2001-0582-0019, 2001-0582-0020, 2001-0582-0017, 2001-0582-0003, 2001-0582-0016

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sammy et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Dan Harris

Vice-Chair

FOR THE UNION

Ed Holmes Ryder, Wright, Blair & Doyle Barristers and Solicitors

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

David Strang Acting Associate Director Management Board Secretariat

HEARING

November 4, 2004.

Decision

These matters involve grievances filed by Tim Collins, Don Cuthbert, Carleton Johnson, Rob Mondesir and Dale Sammy. The grievors were correctional officers who worked at the Toronto East Detention Centre. They were suspended and, all but Mr. Johnson, subsequently discharged from their employment for their various roles in injuries sustained by an inmate. Criminal charges were laid against all but Mr. Johnson. After an extended trial, all four were convicted.

The Ministry now asks that the four discharge grievances be dismissed on the grounds that they are both an abuse of process and frivolous. It says that there is no remedy that reasonably can be given in these matters.

In large measure, the Ministry relies upon its interpretation of the Criminal Court’s sentencing Reasons for the proposition that the court took into account the grievor’s suspensions and discharge in arriving at the sentence imposed. The Reasons read in part as follows:

3 Mr. Corelli, for the Crown, conceded that specific deterrence is not a significant goal of this sentencing; however, he submitted that general deterrence and denunciation must be strongly emphasized. In a nutshell, he argues that the officers were in positions of trust which they breached, and that a strong message must be sent to other persons in similar positions of authority that such conduct will not be tolerated. He relies particularly on s. 718 of the Code, which lists breach of trust as an aggravating factor in sentencing.

4 Defence counsel – Mr. Black for Cuthbert, Mondesir and Collin, and Mr. Kuzmicz, for Sammy – submit that absolute or conditional discharges are the appropriate sentences in this case, given that their clients are exemplary citizens with no criminal records, and that Pearson had no serious or lasting injuries. They argue that each of them has already paid a significant price, having endured thirty-seven months of prosecution, having been suspended and fired from their jobs, and having suffered family trauma and social stigma. Mr. Black submits that although technically in positions of trust, correctional officers are not vested with the same degree of authority and public trust as police-officers, and thus should not be treated as harshly. Specifically, he argues that they are constantly within close range of supervisors and video cameras, and therefore not in a position to exercise the same degree of power as a police officer. Breach of trust, he submits is therefore not to be overemphasized as a goal of sentencing.

28 Before concluding, I would like to reiterate that I have only found that the principles of general deterrence and denunciation are satisfied by these sentences because the price already paid by all accused has been very high. Hopefully the combination of this suffering and the sentences will send a strong message to all correctional officers that the public interest requires them to exercise their power temperately, in accordance with law and institutional policy. A DNA order with respect to each is mandatory. However, there will be no firearms prohibition ordered, given the absence of prior incidents of violence and the favourable factors found with respect to each accused.

The Ministry also relied upon s. 7(4) of the Crown Employees Collective Bargaining Act (hereafter CECBA):

s.7 (4) Restrictions on substituted penalties – In substituting a penalty under subsection 48(17) of the Labour Relations Act, 1995, the Grievance Settlement Board shall not provide for the employment of an employee in a position that involves direct responsibility for or that provides an opportunity for contact with residents in a facility or with a client if the Board has found that the employee,

(a) has applied force to a resident in a facility or a client, except the minimum force necessary for self-defence or the defence of another person or necessary to restrain the resident or client; or

(b) has sexually molested a resident or a client.

Accordingly, although the Board would have the authority to direct that the grievors be returned to work to a position that does not involve contact with inmates, the Ministry noted that these grievors are unclassified employees. To reinstate them would be to require that they be accommodated in a completely different position than that held when they were dismissed. To do so would reward the grievors for criminal conduct in the workplace.

Mr. Ed Holmes made submissions on behalf of OPSEU regarding the grievances of Messrs. Cuthbert, Johnson, Mondesir and Sammy. As set out above, Mr. Johnson was neither discharged nor prosecuted. Accordingly, neither of his grievances is touched by this preliminary application brought by the Ministry. Mr. Holmes noted that the suspension grievances are not affected by the Ministry’s preliminary application either. Accordingly, they will go ahead in any event. Further, although the Court’s findings are to be taken as conclusive, the Board must still weigh those findings in exercising its discretion as to whether the penalty should be mitigated. Mr. Holmes submitted that these arguments made on behalf of the Ministry should be entertained at the conclusion of the hearing not at the outset.

Mr. Gavin Leeb made submissions on behalf of OPSEU regarding the grievances of Tim Collins. Mr. Leeb rejected the notion that reliance by the sentencing judge upon Mr. Collins’s loss of his job somehow binds this Board. First, these grievances predate the sentences, were the subject for prior Board proceedings and were raised at trial. In essence, it is submitted that it is not clear form the Reasons of the Court that the sentence imposed relied on the loss of Mr. Collins’s job. Second, Mr. Collins has the right to have the Board hear and determine the possible remedial options, including a return to work under section 7(6) of CEBA:

(6) Substitute Penalty – In substituting a penalty under subsection 48(17) of the Labour Relations Act, 1995 in circumstances in which it is restricted by subsection (4), the Grievance Settlement Board may provide for the employment of the employee in another substantially equivalent position.

Finally, no distinction can be drawn between classified and unclassified employees. Just cause is the standard to be applied by the Board. To determine the applicability of the standard, these matters must be heard.

In reply, Mr. Strang noted that the just cause standard applies to unclassified employees. However, it is appropriate to consider the possible remedies. The position to which these grievors might be reinstated are generally held by employees who need accommodations for medical reasons. Because reinstatement in these circumstances would amount to a promotion, it is an abuse of process and frivolous to go through the process.

Many of the authorities relied upon by the parties pre-date the Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. Further many of the submissions invite me to weigh and compare the circumstances of those authorities with the circumstances of these matters, as found by the Criminal Court and laid down in its Reasons. In my view, such consideration is more appropriate at the conclusion of the case. These grievors have been found by the Criminal Court to be guilty of assaults upon an inmate. The Court has convicted them for these assaults. However, the Union says that there are mitigating factors that speak to the reduction of the penalty imposed, and I should hear that evidence. This issue was previously dealt with by the Board in Ministry of Natural Resources and OPSEU (Timmerman) (2004), GSB #2000-0092 (Harris) in part as follows:

The Employer also relies on Toronto (City) v. C.U.P.E., Local 79 2003 SCC 63, [2003] 3 S.C.R. 77 in particular at paragraph 58, in part, as follows:

In short, there is nothing in a case like the present one that militates against the application of the doctrine of abuse of process to bar the relitigation of the grievor’s criminal conviction. The arbitrator was required as a matter of law to give full effect of the conviction. As a result of that error of law, the arbitrator reached a patently unreasonable conclusion. Properly understood in the light of correct legal principles, the evidence before the arbitrator could only lead him to conclude that the City of Toronto had established just cause for Oliver’s dismissal.

The Union conceded that the Board is constrained by the law as set out above. However, it submitted that the Board may still enquire into whether discharge from her employment was the appropriate penalty to impose upon the grievor. It said that there were many mitigating factors to put before the Board.

Here, there can be no doubt that to inflict a criminal assault against an inmate is just cause for discipline nor can there be any doubt, as a matter of law, that the fact of the assault is proven by the findings of guilt in the Criminal Court. However, the union may lead evidence and make submissions with respect to the mitigation of the penalty, as did the grievors’ counsel at the criminal proceedings.

As the Supreme Court directed in Toronto (City) and CUPE, supra, this Board will give full effect to the conviction.

Dated at Toronto this 17th day of December, 2004.