GSB#2012-1308, 2012-1309, 2012-1310

UNION#2012-0517-0044, 2012-0517-0045, 2012-0517-0046

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Marshall et al)

Union

• and -

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

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Legal Services Branch Counsel

HEARING

September 6, 2012, January 23, April 2 & 4, May 6, 7, 16, 22, 24 & 27, August 6 & 8, 2013

Decision

1On July 24, 2012, three senior Correctional Officers were discharged by the Employer. The first, C.O. Harbir Sidhu, is alleged to have used excessive force on an inmate by slapping him across the face during a strip search, and then covering it up by being untruthful to the Employer during an investigation and obstructing a CISU investigation. C.O.s Dan Marshall and Terry Warling, allegedly witnessed the slap but did not report it and also covered it up. The grievances assert that the three were discharged without just cause.

2The key issue is whether or not the slap occurred. Everything else flows from that central question.

Facts

3The grievors all worked as Correctional Officers at Toronto West Detention Centre (TWDC). Sidhu began his employment with the Ministry on September 11, 1989; Marshall on July 25, 1988, and Warling on October 22, 1990.

4On December 5, 2011, three “shanks” – inmate constructed weapons – were found in Unit 3A. Consequently, on the morning of December 6, 2011, a thorough search of the unit was undertaken. All cells in Unit 3A, both Right and Left, were to be searched, and all inmates were to be strip searched. The search of Unit 3A Left was completed without incident, and the search of Unit 3A Right was mostly done when the alleged incident occurred. The evidence established that this was a “heightened” search – not a routine one – because of the shanks that were found the day before.

5The search was led by OM 16 McArthur, and ten C.O.s were assigned to the search. A cell would be opened by McArthur, and the inmates inside the cell (usually two or three inmates) would be lined up outside of the washroom area where the strip searches would take place. Two cells were done at a time. Four C.O.s – two for each cell - would search the now vacant cell. Two C.O.s were assigned to the day room, the area with a few tables and a television where the inmates usually would be able to sit and watch television during the day. C.O. Lynn Charbonneau was assigned to the day room – responsible for laundry and clean-up. C.O. Matt Duffy was also assigned to the day room to control the inmates while they were waiting for the strip search, and when they were done so they could return to their cell after it had been searched. Another C.O. was assigned to monitor the door to the unit.

6The three grievors were assigned to conduct the strip searches, which were done in the inmate shower/washroom. This area contains two shower stalls, one urinal and one toilet. There are no doors or curtains. It opens to the day room. The dimensions were not specifically provided although a tour of the unit, including the washroom area, was done at the outset of the hearing. The washroom was small. It was described by Warling as “very confined”, “maybe 14 feet” in all. Nor was it wide. Marshall called it “fairly tight” quarters. It is composed of ceramic tiles and according to both Warling and Duffy “everything echoes in there …”

7Marshall took the first, innermost, shower stall to conduct the strip searches. Warling took the second one. No one took the urinal, and Sidhu took the toilet area, which is adjacent to the entrance. Each officer would strip search one inmate at a time. There was no C.O. assigned to observe the strip search. Consequently, only the three C.O.s who were conducting the strip searches were present in the washroom area.

8There is a surprising amount of consistency among the three grievors and Duffy about what occurred between Sidhu and Inmate Taylor. According to Sidhu, Inmate Taylor was directed into the washroom area but initially went to move past him. He directed him back and he complied, putting his roll on the near half wall. He directed him to hand him one item at a time, and the inmate picked up his roll and stepped toward him. Sidhu directed him to “stay back” putting his hand up like a stop sign. The inmate then sucked his teeth at him which was “pretty loud.” That was a “rude and disrespectful” gesture – akin, Sidhu explained, to giving someone “the finger.” Sidhu told him, in a “little bit of a raised voice”- “don’t suck your teeth at me.” In the interview he gave to the Corrections Investigation and Security Unit (CISU), he stated that he “raised” his voice after the inmate sucked his teeth. He also directed him to hand him one item of clothing at a time – two or three times, but the inmate did not comply. In his statement to CISU, Sidhu stated that he felt threatened, because the inmate looked “angry”. He testified that he just “stood there, staring at me.” Duffy then came in, asking the inmate, two or three times, “what don’t you understand, do as you’re told.” The inmate then stared at Duffy, and Duffy escorted him out of the washroom towards the Professional Visits Room (PVR). The search then continued. Sidhu denies that he slapped the inmate, or made any physical contact with him.

9According to Duffy, he was supervising inmates waiting to be searched in the day room, when he heard an “authoritative voice” from the washroom, so he looked over there. He saw Inmate Taylor standing in Sidhu’s “personal space” – not quite an arm’s length away from Sidhu. Sidhu then “shouted” “don’t suck your teeth at me”, raised his right hand, with his blue latex glove on, and slapped the inmate across his left cheek. He saw and heard the slap, which he believes almost all in the unit would have heard. In his view, an inmate sucking his teeth was a rude and disrespectful gesture. He saw the inmate stare at Sidhu, with his left hand clenched, and jaw muscles and nostrils flaring, and he feared there would be a confrontation. Sidhu directed the inmate to get back but the inmate did not move. Duffy then spoke directly to the inmate, asking him “what don’t you understand?”, saying this two or three times. The inmate then stared at him, and Duffy escorted the inmate out of the washroom.

10C.O. Marshall testified that he heard a verbal interaction between Sidhu and the inmate, with Sidhu asking the inmate to pass his clothing one item at a time. He didn’t hear the inmate suck his teeth, but he heard Sidhu say to the inmate twice, in a “little bit of a raised voice, “stop sucking your teeth.” He agreed that in Corrections, an inmate sucking his teeth is a rude and disrespectful gesture. On cross-examination, Marshall acknowledged that Sidhu said “don’t such your teeth at me” in a “raised” voice. He stated that the inmate was “close” to Sidhu, and just stared at him. Then Duffy popped his head in, and said to the inmate “do you understand” two or three times, then he took the inmate out. He testified that he did not see or hear a slap.

11C.O. Warling testified that he heard the inmate suck his teeth, and turned to look for “about five seconds.” He agreed that sucking one’s teeth is a sign of disrespect. Sidhu was directing him to pass him one item at a time, when Duffy “walked into the washroom.” Sidhu did not say anything “that I can remember.” He saw that the inmate was “glaring” at Sidhu. On cross-examination, Warling testified that Sidhu said, “don’t suck your teeth”, after which Duffy “leaned into the washroom”, with his hand around the wall.” He testified that Duffy repeatedly said, very loudly, “do you understand” to the inmate. He was certain that Duffy was not next to Sidhu. He did not see or hear a slap. In his statement to the CISU, Warling stated that Sidhu did not raise his voice, but spoke “with authority.”

The consistent elements are:

1. The inmate was non-compliant with Sidhu’s instructions – he did not hand him one item at a time. He just stared at him.

2. The inmate sucked his teeth at Sidhu, a sign of disrespect and hostility.

3. Sidhu, in a raised, or somewhat raised voice, stated “don’t suck your teeth at me” once, or perhaps twice.

4. The inmate continued to ignore Sidhu’s instructions, and glared at him.

5. The inmate was physically close to Sidhu.

6. Duffy came onto the scene when Sidhu directed the inmate to stop sucking his teeth at him.

7. Duffy repeatedly asked the inmate “do you understand”, moving the inmate’s attention to him and away from Sidhu, then led him away.

12Consequently, there is a fair amount of “common ground” among the witnesses. The one key dispute concerns the slap. C.O. Duffy testified that it occurred – he saw and heard it. C.O. Sidhu denies that it occurred. He did not make physical contact with the inmate. C.O.s Marshall and Warling did not see or hear the slap, though both acknowledge – either at the hearing or to the CISU – that it could have occurred. They also both acknowledge that if it did occur, they likely would have heard it.

13A few other facts are undisputed. The inmate was immediately placed in the PVR room and had no contact with other inmates on the unit – either that day or any time afterward. There is no evidence that Inmate Taylor had contact with other inmates in Unit 3A after he was removed to the PVR room, including when he left the institution to attend an immigration hearing.

14After the search concluded, OM 16 McArthur went into the PVR room, and Inmate Taylor told him that he had been assaulted by the “Sikh” officer during the strip search, and that he wanted the police and his lawyer called. This is evident from the inmate’s statement on Dec. 6, 2011 and McArthur’s Occurrence Report. These statements, as will be more fully explained later, are not accepted for the truth of the matters asserted (i.e., that he was assaulted), but what the inmate said at the time.

15The police were contacted that morning and attended at the institution. They met with Inmate Taylor and Correctional Officers Sidhu, Marshall and Warling. Duffy attended the interview with Sidhu and Marshall, as their union representative. No criminal charges were filed. The inmate was also seen by a nurse at the institution at approximately 10:30 a.m., who completed an Accident and Injury Report. The report states that the inmate “states was slapped L cheek during a search. States had a headache @ the time. Still has headache. … No injuries noted.” He was given Tylenol. The inmate also provided a written statement on December 6, in which he alleges that a “Sikh CO” “slapped me with his right hand to the left side of my face saying I was ‘sucking my teeth’ at him.”

16There is no evidence of a prior “history” between the inmate and Sidhu. Sidhu told the CISU that he had “no idea why the inmate would say this about him.”

17There is no evidence of a “history” between Duffy and Sidhu. On the contrary, Duffy was repeatedly Sidhu’s choice of union representative – in the past and for this incident as well. Employees have some discretion in choosing their union representative, and Sidhu consistently chose Duffy. There was some suggestion, particularly in the testimony of Warling, that Duffy was prejudiced against Sidhu. He allegedly heard Duffy tell C.O. Sardina, in response to a question about how long Sidhu had been wearing a turban with his uniform, that he had done so “for years” and it was “nothing that a little friendly fire wouldn’t take care of.” Warling did not report this to management because it “didn’t offend me” and he was not part of the conversation, although he was aware of the Ministry’s Workplace Harassment and Discrimination Policy (WDHP). Duffy flatly denied making this comment, and C.O. Sardina was not called to testify. Significantly, there was no claim at all by Sidhu that Duffy was prejudiced or had anything against him. Duffy’s comment to the CISU that Sidhu was “aloof” was in response to a question put to him about whether he thought Sidhu knew he had seen the slap, and he said that Sidhu was “aloof…. He’s Indian and generally speaking it’s a, there’s an aloofness about people from the East, East Asia okay and especially there’s a, there’s an aloofness, a dignity you know generally speaking and so they’re hard to read.” He explained then, and again at the hearing, that to him, acting aloof meant act with quiet and dignity. Taken in context, Duffy’s description of Sidhu as “aloof” cannot be viewed as an insult or negative prejudice.

18After this incident and when Sidhu did not “man up” to what allegedly occurred, Duffy became angry with Sidhu, and that anger came out during his testimony at the hearing. But there is no credible evidence that Duffy had any motive against Sidhu prior to this.

19Another uncontroverted fact is that there is a code of silence in Corrections. This has been recognized by the GSB is many cases. Re OPSEU (Gillis et al.) and Ministry of Community Safety and Correctional Services, GSB No. 2003-1520 (Abramsky); Re OPSEU (Beltrano et al) and Ministry of Community Safety and Correctional Services, GSB No. 2003-3597 (Petryshen); Re OPSEU (Zolnierczyk) and Ministry of Community Safety and Correctional Services, GSB 2005-0823 (Herlich); Re OPSEU (Horan) and Ministry of Public Safety and Security, GSB No. 0670/01 (Herlich). The evidence established that the code exists at TWDC. Putting aside the evidence of Duffy concerning his treatment since it was revealed that he filed a supplemental Occurrence Report, the testimony of C.O. Al Speers and C.O. Derek Anthony establish this clearly. Both men no longer speak to Duffy, avoid him, and treat him as a “rat”. The testimony of Duffy asserts that he has been shunned, harassed, the victim of false reports and prank calls. There has been “grief, sorrow and misery.” He can no longer work at TWDC, or a number of other institutions. This conduct falls precisely within the code of silence.

20According to the three grievors, shortly after the search, they were paged that morning to attend in the Duty Captain’s office. Duffy, who was Chief Union Steward at the time, also attended. Either OM 16 McArthur or OM 16 Holly advised them that Inmate Taylor had alleged that Sidhu had slapped him during the search, and that he wanted the police and his lawyer to be called. They were asked for Occurrence Reports.

21All four – Duffy, Marshall,Warling and Sidhu – omitted any reference to a slap in their Occurrence Reports. Sidhu’s report, done at 9:10 a.m. states as follows:

Sir,

On 06 Dec., 2011, about 0750 hours, I was assigned to strip search of unit 3AR.

I called inmate TAYLOR, ANTHONY, #041087756, into the shower area in the booth closest to the outer wall. As he came in, he placed his roll of clothing on the far end of the half wall. I directed him to pick up his roll and hand me one item at a time. He picked up his roll and started walking out of the booth towards me. I told him to stay in the booth and give me one thing at a time. At this point he sucked his teeth. I told him not to suck his teeth and do as he is told.

But the inmate just stared at me. CO Duffy, who was standing just outside the shower area, came in and asked the inmate, if he understood the directions. Inmate TAYLOR just stared at him as well without saying anything. CO Duffy asked him three more times if he understood, but the inmate stayed silent and stared at him in a threatening manner. CO Duffy then escorted him to the PVR.

Sidhu showed his Occurrence Report to Duffy, as Chief Steward, prior to submitting it. He testified that this was his usual practice.

22Marshall’s report, done at 9:25 a.m., states:

Sir:

I was on my assigned post General Duties Officer West Wing, Toronto West Detention Centre 0700-1900 Hrs.

I was assigned as a search officer for a daily routine search.

Today we search[ed] Unit 3ALeft and Right. We completed the search on 3A Left at about 0745 hours. I was assigned as a strip search officer, along with Officers Warling, T., and Sidhu, H. We proceeded to the shower area of Unit 3A Right to conduct the next set of strip searches. I Officer Marshall, D., was at the far left shower. Mr. Warling, T. in the middle, and Officer Sidhu, H. in the toilet area. I was conducting a strip search as was Mr. Warling and Mr. Sidhu H. I heard Mr. Sidhu ask the inmate he was about to search to hand him his clothing (1) one at a time.

The said inmate Taylor, A. #0410877454 handed over all of his clothes. Mr. Sidhu H. again instructed the inmate to pass his clothes (1) one at a time. I heard Mr. Sidhu, H. tell the inmate to stop “sucking his teeth” and hand his clothes over (1) one item at a time. “Do you understand”. Mr. Duffy, M. C.O. II Correctional Officer came to the shower area and asked said inmate Taylor, A. #0410877454 if he understood Mr. Sidhu’s order. Then Officer Duffy, H. escorted Inmate Taylor off the unit.

Our strip search continued as usual without incident.

Marshall also testified that he probably showed this Occurrence Report to Duffy before he submitted it.

23Warling’s report, done at 9:10 a.m., reads as follows:

Sir, On Tuesday Dec. 6, 2011 I was assigned duties to West General Duties for the duration of the T7 shift. At approximately 0715 hrs I reported to a unit search on unit 3A. I was assigned strip search duties with CO2 Sidhu and CO2 Marshall. About 0800 hrs I was strip searching an inmate in the first shower stall (Inmate unknown) when I overheard CO Sidhu give verbal direction to an inmate to hand him his clothing one item at a time. I continued to observe the inmate I was stripping when I heard the inmate suck his teeth. I then overheard CO Sidhu tell the inmate “Don’t suck your teeth.” I looked over and saw that CO Duffy had entered the doorway of the washroom area and was assisting CO Sidhu. I continued to strip the offender in front of me as CO Duffy escorted the inmate out of the washroom area without incident.

About 0915 hrs I was asked by OM 16 McArthur to write this report because inmate Taylor, Anthony #0410877454 was making an allegation against staff.

Later on the same day, December 6, Warling was asked to submit an addendum. At 2:44 p.m., he wrote as follows:

Sir, on Tuesday Dec 6, 2011 I was asked by Mr. MacArthur to write an addendum to a report. I was asked to answer two questions.

1. Why did CO Sidhu require assistance?

2. What assistance did CO Duffy provide?

I am unaware of why CO Sidhu needed assistance. CO Duffy just happened to be there assisting with keeping dirty offenders [i.e., those who had not yet been searched] from clean offenders [i.e., those that had already been searched]. As for what assistance CO Duffy provided, CO Duffy assisted by escorting the offender out of the washroom area so CO Sidhu could continue with stripping another offender.

24Duffy’s Occurrence Report was a bit more descriptive, but it also made no mention of a slap. It was written at 9:21 a.m., and states:

Mr. O’Connell:

Today, Tuesday, 6 December, 2011, I was performing duties as a General Duties Correctional Officer at the Toronto West Detention Center – assigned to 0645 hours to 1915 hours, day shift.

Specifically, I was detailed to report to the search of Unit #3A Left and to Unit 3A Right by OM 16 M. Hooey, the General Duty Captain of the Institution. I assumed that both sides were being searched, instead of the usual one side, because two crude inmate “shanks” and one, more refined inmate shank, were found there yesterday, by the “Institutional Search Team.”

While searching the Unit 3A Right I was supervising the inmates in the day area. While doing this I heard an authoritative voice emanating from the inmate washroom. I walked over to the inmate washroom and observed Correctional Officer Mr. H. Sidhu tell inmate Taylor, A. (#041-087-7454) to step back into the stall and not to suck his teeth at him. Inmate Taylor did not move nor make any attempt to comply. He stood still and was staring at Officer H. Sidhu. Officer H. Sidhu then ordered the inmate, again, to step back and away from him. Inmate Taylor, A.C. still did not move or comply.

I then asked inmate Taylor, A.C. if he understood what the officer was telling him. Inmate Taylor, A.C. turned his head and body toward me and now made direct, unwavering eye contact with me. The whites of his eyes appeared to be blood-shot. I observed his jaw muscles and nostrils flexing repeatedly and his right hand was clenched into a fist. I believed that his inmate was about to become violent so I ordered him out of the inmate washroom and out of the unit. While I was escorting this inmate towards the unit door he threw his laundry at my legs. He did, however continue to walk out of the unit and straight into the 3A Professional Visits Room, where he was secured without incident or complaint.

I was required to use no physical force on this inmate.

25Superintendent O’Connell testified that he was first advised by the Deputy Superintendent of Operations McLeod, about the possibility that an inmate had been slapped by an officer during a search on December 6, and that Occurrence Reports were being written. He instructed the Security Managers to begin an internal administrative review concerning what had occurred. He testified that as the Occurrence Reports were submitted, they were reviewed. He found that they “didn’t answer the questions we needed answered.” Duffy’s report indicated that the inmate was angry and aggressive and had to be removed, but it was not clear what had made him that way – what was the trigger? He asked for addendums.

26On December 11, 2011, the Regional Director requested an investigation into this matter by the Correctional Investigations and Security Unit (CISU). That investigation began on December 15, 2011.

27In the meantime, the internal investigation continued. Superintendent O’Connell received Warling’s addendum and one from Sidhu, on December 13.

Sidhu’s addendum, written on Dec. 13 at 11:30 a.m., states:

Sir,

On 12 Dec. 2011 around 1600 hours I was told to write a supplemental report to my occurrence report dated 06 Dec., 2011, re inmate Taylor, by OM16 Holly on direction of OM16 McLennan to describe aggression shown toward me by inmate Taylor on 06 Dec. 11.

I had not mentioned any aggression in my report dated 06 Dec. 11. Inmate Taylor was directed to pick up his roll and give me one item at a time. But the inmate started walking out of the booth. I told him to stay there and hand me one thing at a time. At that time he sucked his teeth and kept staring at me, without handing me his clothing. CO Duffy, who was standing nearby, heard the conversation and came into ask the inmate if he understood my directions. But the inmate just stood there staring at us, without doing or saying anything. He was then escorted out of the area by CO Duffy and I proceeded to strip search the next inmate.

28Superintendent O’Connell felt that he was still “not getting the information I needed.” He decided to employ what he termed a “supplemental investigation technique.” He would bring the four in for questioning by the Security Managers who were to ask them two direct questions: (1) At any time on December 6th during the search on unit 3A, did you use force on Inmate Taylor? and (2) Did you at any time during the search on unit 3A on Dec. 6th witness a use of force on Inmate Taylor?

29On December 14, Marshall, Warling and Sidhu answered “no” to each question. Duffy was also to be asked these two questions, but before he did so, a number of things happened.

30On December 13, 2011, the Security Managers interviewed seven inmates in Unit 3A. Warling told Duffy about it in a telephone call that morning. Duffy also had heard this from Sidhu, who learned of it from Charbonneau. Duffy stated that Sidhu was really worried about it, and he said he would check into it. Duffy also knew of the supplemental interview requests, and the addendum requested of Sidhu, as Sidhu showed him his addendum before he submitted it. Duffy testified that he was aware that there was a “different climate” in the Ministry which was taking a more vigorous review of use of force incidents and the code of silence in light of the investigation that was ongoing by the Ombudsman. In November 2011, just a few weeks before this incident, Duffy was called in to meet with the Ombudsman. The interview lasted for three hours. All of this led Duffy to be very concerned that this was going to “go south, hard” and be “very baaaad.” When he learned from Warling and Sidhu that Security was interviewing inmates on Unit 3A, he decided to meet with Marshall, Sidhu and Warling about the incident.

31At around 1:00 p.m., Duffy met with the three grievors in the Health and Safety Office. There is some dispute about what was said, but the gist of it was that Duffy pressured Sidhu to change his report. He did not admit to them that he had seen the slap. Instead, he implored all of them, but mostly Sidhu, that if he done anything, now was the time to acknowledge it. He testified that he told them that he believed it was going to “go south, go bad.” He faced Sidhu and told him “this was a problem, his problem, and he had to fix it right now” and that “now was the time to fix it.” Marshall testified that Duffy was pressuring Sidhu to “fess up.” Sidhu replied, “well, if I do that then I’ll get fired.” Marshall then said, “not necessarily.”

32One reason that Sidhu might have been concerned about termination is because on June 15, 2011, he had been given a five-day suspension for (1) failing to properly discharge his duties and (2) being untruthful during the employer’s investigation. He had grieved the matter, but it was still on his record at this time. Duffy was Sidhu’s union representative for this incident.

33Duffy testified that he felt further discussion in the Health and Safety Office was useless and left the meeting. Warling, he stated, mentioned that he thought that the inmates had a lot of opportunity to coordinate their stories before Inmate Taylor had been moved out of the unit.

34Sidhu confirmed that he said, “if I do that then I’ll get fired” during the meeting. But he also asserted that he mentioned that he wrote two truthful reports, and if he changed his report he would be fired. Warling testified that he could not remember what Sidhu had said, but stated that it was “why would I change my story; it didn’t happen” – “something to that effect” but he “couldn’t remember.” Marshall stated that his position was also that he wrote his report, and “my report is my report.” Warling could not recall Marshall saying anything at this meeting

35Marshall, Sidhu and Warling all testified that Duffy mentioned that he had been to the Superintendent’s office and told them that there would be “suspensions” and someone would be “fired.” He also told them that Security had four inmates “corroborating” that a slap had occurred – and they wondered how he knew that. In Duffy’s statement to the CISU, on December 16, Duffy stated that he told them that “it’s my information that there are four inmates who have corroborated that they saw an assault take place” and told Sidhu, if there is anything to report, now is the time.

36On cross-examination when asked about how he knew that the inmates had “corroborated” that a slap occurred, he initially could not recall who told him that. He then agreed with a suggestion put to him by Union counsel that he possibly learned it from the investigation, but then denied that and testified that he “assumed” corroboration was going on.

37He further testified that the following day, December 14, after he submitted the addendum, he was directed by Superintendent O’Connell to go to the police station with Security Manager MacLellan, to provide a statement. While there, he overheard MacLellan tell the police that he had inmate statements that corroborated that a slap occurred, including one written in Russian that had to be translated.

38Duffy also denied that he said that the Superintendent told him there would be suspensions, stating that it was a “pretty good, educated guess” in light of his 25 years of experience. He had seen it happen before. He testified that the “Superintendent told me nothing.”

39The evidence establishes that Duffy made a number of attempts to get Marshall to file an addendum. He testified, without contradiction, that he approached Marshall on December 6 in the I.C. unit, to file an addendum and Marshall responded, “if I do that, then I’m going out the front door” to which Duffy responded, “no f------ problem, I’ll back you to the hilt because I’ll write a report as well.” Marshall was not asked about this conversation at the hearing. He testified, however, that on December 13, after the meeting in the Health and Safety Office, Duffy again approached him to write an addendum in the Union office because he did not want to see him get suspended or fired. He offered to make an appointment for him with the Superintendent or Deputy Superintendent, but Marshall told him “don’t talk on my behalf. If I want to see them, I will. If they want to see me, they can call me.” He testified that Duffy asked him a few more times that day to write an addendum. He stated, “I think I left the office.” On the morning of December 14, Marshall testified that Duffy told him that he made an appointment for him at which point “I got mad”, told him that he would not go to any meeting and would “talk for myself.”

40Correctional Officer Nick Mustari, who is currently an acting OPSEU Grievance Officer and has held a number of local Union positions including steward, Secretary-Treasurer, Vice-President and President, testified that he returned to work on the afternoon shift of December 13, 2011, after a vacation. He was advised about the December 6 incident and investigation upon his return by both Marshall and Duffy. Mustari confirmed that on that date, Duffy was “begging” and “pleading” with Marshall to write an addendum, telling him that he “loved him like a brother”, that he “didn’t want him to get suspended.” He found this very unusual behavior for Duffy. He stated that Marshall told Duffy that he had nothing else to say.

41Duffy testified that on December 13, 2011 he felt that Marshall was “close” to agreeing to submit an addendum, but needed some time to think about it. He stated that Marshall’s view changed, however, after this meeting in the Union office with Mustari. He stated that Mustari reviewed Marshall’s Occurrence Report, and then said that the way he saw it, 3A was the only unit without cameras; the police came in and did nothing; the inmate had no marks or bruises; there were no witnesses so “nothing f------ happened” and urged them to “stick to your guns” and “leave it as it is.” Mustari was not questioned about this at the hearing. Nor was Marshall asked about these comments by Mustari. After this, according to what Duffy told CISU, Marshall “turned to stone.”

42The evidence shows that at around 2:00 p.m. on December 13, Duffy approached Deputy Superintendent Operations McLeod about the possibility of Marshall writing an addendum. According to an Occurrence Report submitted by McLeod the following day, by end of the day on December 13, when he spoke to Duffy again, Duffy advised him that Marshall would not be writing any addendum. The Occurrence Report also states:

At that point Mr. Duffy voluntarily stated to me he had spoken to Mr. Sidhu and told him he needed to “man up” if he did something wrong, admit it, and not take other people down with him. Mr. Duffy alleges Mr. Sidhu said to him in response: “if I do that they will fire me.” Mr. Duffy then said it was during a meeting in the Union office with Mr. Sidhu, Mr. Marshall, and Mr. Mustari when Mr. Sidhu made the comment about being fired. …

43As noted before, the Security Managers were to meet with Marshall, Sidhu, Warling and Duffy to ask the two follow-up questions on December 14. Mustari served as the union representative for Marshall, and they told him when they finished with Marshall, they wanted to see Duffy. Mustari advised them that he would get a hold of him and come up. He then paged Duffy a few times to come to the Union office, but got no response. He also inquired with Control, as to whether they had seen him. They had not. A short time later, Mustari testified that Security Manager John Hastings called him and told him that “Duffy was having a heart to heart with the Superintendent” and that, “per the Superintendent”, they did not need to see him.¹

44Mustari further testified that when Duffy returned to the union office, he asked him where he had been, and Duffy told him that he had been on the seventh floor for a health and safety matter. He responded, “well that’s funny, I just got a telephone call from Hastings who said that you were having a discussion with the Superintendent.” Duffy told him that was “not true” and walked out of the office.

45In fact, Duffy was having a “heart to heart” with the Superintendent. Before his interview with the Security Managers occurred, Duffy went to see Superintendent O’Connell. Duffy testified that his omission “resonated in my mind” since he had written the Occurrence Report. He felt the situation was “untenable”. He tried to get Sidhu to handle it. He spoke to Marshall and “lobbied him hard” to submit an addendum, “him and me.” But “that didn’t fly.” In his view, “someone needed to man up, so those of us with children wouldn’t be out of work.” Sidhu did not, but Duffy stated that “[i]f he had, we wouldn’t be here right now.” Those involved were being interviewed, re-interviewed with different questions. Everyone was “on tenderhooks.” So, he “cut to the chase and went to the Superintendent.” He told the Superintendent that he saw an assault on December 6 that he did not include in his first report because he did not want to be labeled a “rat.” He then wrote the following addendum to his Occurrence Report, at 2:36 pm.:

Mr. O’Connell:

On Wednesday, 14 December, 2011, I was performing duty as a General Duty Correctional Officer at The Toronto West Detention Centre - 0645 hours to 1915 hours, day shift.

At this juncture, I wish to amend my Occurrence Report dated 12 [sic] December, 2011 regarding inmate Taylor.

The whole Occurrence Report on that date, Tuesday, 6 December, 2011 was truthful. However, I omitted one important detail. When I arrived at the Unit 3AR Inmate Washroom due to hearing the authoritative voice I saw COII Mr. H. Sidhu slap inmate Taylor on the left cheek with his right hand. COII Mr. H. Sidhu was wearing blue, rubber search gloves when he did so.

46Duffy testified that Superintendent O’Connell congratulated him and shook his hand, telling him that he had done the right thing and would “back me up” and “watch my back.” He wrote the report in the Superintendent’s office, on his computer. He typed it up, signed it and handed it in.

47Superintendent O’Connell testified that Duffy came into his office about mid-day, and asked him why he was asking the two questions formally, and he told him that it was because he “was not getting the information I need” so he would reach out and get the information. He said that Duffy was quiet, and put his head down on the desk. He asked him if he was okay and he lifted his head. He then asked Duffy whether he had “told me all you need to tell me about this incident.” He stated that Duffy delayed a long time, then said, “no, I haven’t.” He asked,“what haven’t you told me?” and Duffy replied, he “saw Sidhu slap Inmate Taylor on the face - the left hand side of his face with his right palm, on December 6.” The Superintendent then congratulated him on coming forward, and asked him to write an addendum, which he did in his office. They shook hands, he thanked Duffy for being truthful, and told him “I got your back on this.” He testified that he knew, eventually, it would become known and that Duffy would “experience a great deal of reprisals for coming forward with the truth.”

48Duffy also submitted an Occurrence Report on December 14 about his meeting the day before with Deputy Superintendent McLeod and the meeting with Marshall, Sidhu and Warling in the Health and Safety Office. This was either at the request of Superintendent O’Connell directly, or Deputy Superintendent McLeod, at O’Connell’s request. In the title section of the form “Subject/Nature of the Report”, Duffy wrote: “O.P.S.E.U. Union Representation and advice to Correctional Officer Local 517 Members.” The third page of this report, with that heading, but the page blank, was found by Nick Mustari in the printer of the Union office.

49The Superintendent denied sharing the inmate statements with Duffy, or any Occurrence Reports. Nor did they discuss them. He stated he “would never do that.” He denied discussing the discipline of Marshall, Sidhu or Warling with him.

50After meeting with the Superintendent, Duffy had his “interview” with Security, where he was asked the two questions. He had a union representative with him, and he responded “no” to each question. His answers were later discarded. Superintendent O’Connell testified that this was done “at my direction” to protect him as long as possible. He explained that the “institution was focused on this issue.” It was “high profile” and everybody was watching, including who was interviewed. If Duffy was not interviewed, or did not bring a union representative along, he would be labeled a rat. So he arranged it to protect him.

51Duffy further testified that he submitted his addendum because in 1995, he had received a twenty-day suspension for excessive use of force and lying about it in the Occurrence Report. He did not grieve that discipline because he thought it was “fair.” Although the discipline was long off his record under the three-year sunset clause in the collective agreement, he testified that he had promised himself that he would never be called a “liar” again. Also significant was the promise that he made to Superintendent O’Connell, who started at TWDC in May 2011. They promised to be truthful with one another. He is also a religious man. He has six children and a wife to support. He told CISU that although he was not “mortgage poor”, he was “grocery poor”, and lived essentially paycheque to paycheque. When it was suggested to him on cross-examination that “he could not take a risk of being fired or suspended”, he agreed, saying “absolutely not.”

52Duffy was also challenged, on cross-examination, as to why he expected Sidhu to “man up” but he would not admit that he saw the slap to them. He responded: “I didn’t man-up. I couldn’t man-up. I was afraid to man-up.” He stated: “I was afraid of being labeled a rat and losing my career as a C.O.” He wanted to “protect my family and the truth.” His first allegiance, he stated, was to the Employer.

53On December 16, 2011, Marshall, Sidhu and Warling were suspended with pay, pending investigation. On the same date, Duffy was interviewed by CISU. Inmate Taylor had been interviewed by CISU the day before.

54Duffy made another attempt to get Marshall to submit an addendum on the December 23, 2011 – two days before Christmas. He testified that he pulled out three GSB decisions involving use of force and the code of silence, marked them up, and gave them to Mustari, who was also working that day.² He stated that he did so because Mustari was advising Marshall. They both took a break around 5:00 p.m., in the Union office. Mustari repeatedly asked him whether he had filed an addendum about the December 6th incident. Eventually, at around 6:20 p.m., he left and went to make a private telephone call to his wife in the front office area. Mustari found him there, and again asked whether he put a report in. They returned to the Union office and Duffy told Mustari, that “yes”, he “submitted a truthful report.” Mustari, he said, then hugged him and they discussed whether something could be done for Marshall and the other two.

55There is significant dispute about that discussion and the telephone calls that followed. According to Duffy, at around 7:00 p.m., he and Mustari called the Security Office and Security Manager MacLellan, one of the two Security Managers conducting the internal investigation, answered. They wanted to talk about the suspended officers, but MacLellan told them the matter was under investigation and he could not discuss it. So they decided to call Superintendent O’Connell. Duffy made the call and told him that they wanted to discuss but became very emotional and gave the phone to Mustari. He went into a backroom to compose himself. He did not hear what Mustari said to O’Connell.

56The plan, Duffy testified, was to call Marshall, to see if Mustari should broker clemency for him, and if so, they would call Assistant Deputy Minister (ADM) Steven Small. They called Marshall first, then up the “chain of command” on the Union side. Duffy called Marshall and told him about the plan. According to Duffy, Marshall said to tell the ADM that he would take a twenty day suspension. Mustari then made a call to Dan Sidsworth, the OPSEU MERC Co-Chair. He then called ADM Small, who picked up the phone. In hypothetical terms, Mustari asked what would the Ministry’s response be if an officer on suspension were to write a truthful addendum, and that Small replied, “it would go very well for that officer.” When Mustari told him this, Duffy said that he clasped his hands and said “thank God.” He then printed off 10 blank Occurrence Reports and a handful of confidential envelopes into a manila folder to have them delivered to Marshall in Barrie. He then left for the evening. The following day, Duffy’s wife dropped them off at Marshall’s house. In Duffy’s view, this was “Mustari’s plan” and he was “all for it.”

57According to Mustari, on the evening of December 23, he saw Duffy sitting in the front office area with the lights off. He said “hi” to him, and then went back to the Union office and Duffy came in a short time later. Duffy sat at the computer, staring at the screen, and said, “I’m pissed off at Dan [Marshall] for not putting in an addendum”, then broke down crying. Duffy told him that Security Manager MacLellan had told him that he was implicated because the inmate identified him by his badge number. He then told him that he had met with the Superintendent who mentioned the GSB caselaw on ‘willful blindness’, and said that it “pushed him over the edge.” He also told him that there was no second interview because Security had “ripped up my report.” Mustari stated that Duffy did not state that he had filed an addendum “specifically”, although on cross-examination admitted that it was “possible.” But he stated that Duffy did acknowledge that he submitted an Occurrence Report concerning the meeting in the Health and Safety Office because Deputy Superintendent McLeod told him, per the Superintendent, that he would lose his job.

58Mustari testified that Duffy then called Marshall. After asking about his father who was ill and telling Marshall that he was “praying” for his father, he “begged him to submit an addendum”, telling him he “loved him like a brother.” Duffy suggested that “all he had to say was that he saw Sidhu lift up his hand.” He stated that this “kept up”- “Dan, please, I love you like a brother, please file an addendum.” After, Duffy called Security Manager MacLellan, asking him if he could come to speak to him. Mustari stated that Duffy asked him to go with him, but before they went, Duffy began to cry “hysterically.” He calmed down after about five minutes, and they went to see MacLellan. Duffy asked MacLellan whether if Marshall put in an addendum, they would take it easy on him. MacLellan said it was not his call to make. He said that Duffy then went to Security Manager Hastings desk and made a call to O’Connell, asking the same thing – if Dan wrote an addendum would they go easy on him – and they would write-off his eight other grievances. Then, according to Mustari, Duffy started crying and handed the phone to him. Mustari identified himself, and O’Connell told him to tell Duffy that he “can’t promise anything.” He denied that he told O’Connell that Marshall was prepared to provide an addendum.

59After this, they went back to the Union office, and Duffy asked him if he could call Assistant Deputy Minister Steve Small. Although he had dealt with Small previously, Mustari did not have his phone number. He then tried Local President Monte Vieselmeyer, but could not reach him, so he called Dan Sidsworth who gave him Small’s number. Mustari testified that he dialed the number but gave the phone to Duffy but he did not want to take it. Small answered, and Mustari asked the question: how would the Ministry look upon people submitting addendum reports? Small responded, “if it’s the case I think you’re talking about, it would go a long way.” He then told Duffy the response and Duffy began to smile. Duffy then called Marshall again. Duffy told him what Small had said, and to please put in an addendum. Mustari said that he “saw his [Duffy’s] hand raised up.” Mustari then spoke to Marshall, but stated that Marshall never agreed to put in an addendum. After that call, however, they had “a plan.” The “plan”, he said, was “Duffy’s plan” – to get Marshall to write an addendum. Once that was done, they would both approach Warling to write an addendum, and all three would go to Sidhu.

60On cross-examination, Mustari testified that he did not question why they were speaking to Security Manager MacLellan, Superintendent O’Connell or ADM Small about leniency on a Friday night, two days before Christmas, if Marshall had nothing to say. He was simply “repeating what Duffy was saying”, representing a member, and doing what Duffy asked him to do. It “never crossed my mind” not to call Small, if Marshall had nothing to add. He believed that Duffy was pressured into lying about seeing Sidhu slap the inmate since he had just bought a house. He felt that Duffy was “pushed over the edge” by his being implicated, the case law and having just bought a house.

61Superintendent O’Connell wrote an email to the Regional Director and another individual, concerning the telephone call he received on the evening of December 23. It was written just after 8:00 p.m. and states:

Hi Gents,

I just received a telephone call from Matt Duffy and Nick Mustari. Matt started the conversation by saying that he has talked to Nick and Dan Marshall and that Dan Marshall is now ready to provide an addendum report regarding what he witnessed during the search in 3AR. Matt broke down emotionally and put Nick on the phone Nick told me that Dan was now willing to provide the necessary addendum and would be willing to accept any suspension that would fit his situation. Mr. Mustari asked if I would consider his proposal. I told Nick that I was in no position to bargain anything and that Dan needs to write the addendum asap and that the investigation was ongoing.

Mr. Mustari, who sounded extremely nervous, then thanked me profusely and then said that he would pass the information to Dan Marshall.

62At the arbitration hearing, Superintendent O’Connell further stated that Mustari asked him whether it would be okay for him to call ADM Small, and he responded that he could talk to Small but believed he would get the same response from him. He urged Mustari to encourage any officer to file an addendum if they had left something out, and that the longer they waited, the harder it would be.

63Marshall testified that he never agreed to provide an addendum. He testified that he received two calls on December 23, and the telephone logs confirm that he was called at 7:00 p.m. for a 14 minute call, and again at 8:05 p.m. for an 8 minute call. The first call, he said, was from Mustari who told him that Duffy wants to talk to you and put him on the phone. Duffy told him that he was praying for his father, who was ill at the time, and that his children were praying for him too. He also begged him to write an addendum, saying that he loved him like a brother and didn’t like seeing him suspended. He would help him write it, and back him up. He testified that Duffy told him to just say that you saw Sidhu’s hand go back. Duffy also told him that he was trying to get ahold of O’Connell. Marshall stated that Duffy “went on about the addendum for a while” and he responded, “if you want to send an Occurrence Report to my home, then send it.” Duffy then told him that he would have his wife drop it off. He denied that he agreed to write an addendum or asked him to make a deal for him. The conversation ended, he said, by him saying, “go ahead and send it”, referring to the Occurrence Reports.

64The second call, Marshall stated, was that they advised him that they had gotten ahold of O’Connell and that there was no guarantee they would do anything. His response was “whatever.” He testified that nothing was said about the ADM.

65In my view, I need not resolve all of the discrepancies in the testimony concerning the meeting and telephone calls on December 23. What emerges from all of the evidence is that significant efforts were made that night, by Duffy and Mustari, to broker some kind of deal for Marshall if he submitted an addendum. Marshall may or may not have agreed to write an addendum or take a twenty day suspension, as Duffy believed. But he certainly implied he might – by accepting the Occurrence Reports, which were delivered to him on Christmas Eve. Marshall was also aware that they were going to try to contact O’Connell on his behalf. This was part of the “plan”, which Mustari was part of, to help all three grievors – starting with Marshall, then Warling and finally Sidhu.

66It is also clear on the evidence that Duffy made some kind of confession that night to Mustari about coming forward to management. He might not have admitted he filed an addendum “specifically”, but he admitted that he was “pushed over the edge”, in Mustari’s words, in relation to this case. It was after that point that the “plan” was undertaken.

67Duffy testified that he called Marshall on Christmas Day to inquire if he had anything for him to deliver to the institution, and was told “no.” He asked if Marshall was sure that he had nothing to submit, and Marshall again replied “no.” Marshall testified that he put the blank Occurrence Reports in a cupboard at home. No addendum from Marshall was ever submitted.

68In terms of his conversation with Mustari, Duffy denied that he told him that McLeod told him he had been implicated because the inmate had identified him from his badge number. He stated that he knew he was implicated because the inmate stared at his badge before he escorted him out of the unit that day. He also denied that he told Mustari that he and the Superintendent discussed the case law, and denied that they did discuss it. Superintendent O’Connell also denied that. Finally, Duffy stated that he did not buy a new house until June 29, 2012.

69Marshall, Warling and Sidhu were interviewed by CISU on January 11, 2012, and all three denied that a slap occurred. Marshall and Warling stated that they were unaware that a slap occurred, but acknowledged that it was possible that it did. OM 16 McArthur was interviewed by CISU on December 22, and retired shortly thereafter. CO Lynn Charbonneau was interviewed on January 12, 2012.

70On May 16, 2012, CISU submitted its Investigation Report to the Regional Director. It concluded that “Sidhu used force upon inmate Taylor when he struck him with an open right hand, across the left side of the fact in the Unit 3A Right washroom” and that he was dishonest in his denials. It also determined that Warling and Marshall were dishonest when they denied knowledge of the incident. Allegation meetings were held on July 5, 2012. On July 24, 2012, C.O.s Marshall, Warling and Sidhu were discharged.

Sidhu was discharged for the following reasons:

1. Used excessive force on an inmate

2. Covered up a use of force on an inmate

3. Were untruthful to the employer during an investigation

4. Obstructed a CISU investigation.

Warling and Marshall were terminated for three reasons:

1. Covered up a use of force on an inmate

2. Were untruthful to the employer during an investigation

3. Obstructed a CISU investigation.

Reasons for Decision

71The parties agree that the Employer must establish, on the balance of probabilities, that the slap occurred, and that to meet this onus, there must be “clear and cogent” evidence. Re OPSEU (Gillis et al.); Re OPSEU (Beltrano).

72The parties also agree that this case turns on credibility, and both rely on the test of credibility set out in Re Faryna v. Chorny 1951 CanLII 252 (BC CA), [1951] B.C.J. No. 152 (B.C.C.A.)at pars. 10 and 11. Those passages state:

10. If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility… A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth….

11. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. …

This kind of analysis is necessary, the Court wrote at par. 12, because “[t]he law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses.”

73The Union asserts that Duffy is lying and that his evidence does not form the kind of “clear and cogent” evidence required to meet the Employer’s onus. Essentially, its theory of the case is that he changed his Occurrence Report, and fabricated seeing Sidhu slap the inmate, because he feared that he would be suspended or terminated if he did not do so. It submits that he lied when he implicated Sidhu in order to save his job. It suggests that Duffy was made privy to information known only to the investigative team, including the Superintendent, such as the fact that four inmates had “corroborated” Inmate Taylor’s assertion that he had been slapped and that there would be suspensions and terminations. It submits that Duffy became afraid that if he did not come forward and support the inmate’s story, he would lose his job because the Ministry would believe the inmates. It submits that there is evidence of collusion between the Employer and Duffy in terms of threats of termination if he did not come forward to support the inmate’s allegations, as well as inducements to do so.

74The Employer’s theory is that Duffy initially omitted mentioning the slap in his Occurrence Report, consistent with the code of silence, and that he then decided to come forward with the truth to avoid being suspended or terminated for covering up the incident. It concurs that Duffy was afraid to lose his job – but asserts that is why he came forward with the truth.

75There is no doubt that Duffy did not want to lose his job over this incident. He had six children and a wife to support and he was “grocery poor.” He could not afford to lose his job. The question is whether he told the truth to save his job, or he lied to save his job.

76After reviewing all of the evidence and considering the arguments presented, although the Union’s theory is possible, I do not find it probable in all of the circumstances. I find it far more likely that Duffy filed the addendum – revealing that Sidhu had slapped the inmate – to avoid being suspended or terminated for covering it up. I find it far more probable that he told the truth to save his job.

77There are many factors that lead me to this conclusion. The evidence established that during the Fall/Winter of 2011, there was a heightened focus within the Ministry on the use of force and the code of silence because of the investigation into those issues by the Ombudsman. Many people, including Duffy and the Superintendent, were interviewed. Duffy had a three-hour interview with the Ombudsman in November 2011 – just weeks before this incident. The Ombudsman’s investigation formed the backdrop to Duffy’s concerns about the incident and the Ministry’s investigation into what occurred.

78The CISU interview reveals that Duffy was very concerned about the fact that the investigation was continuing, especially after he learned that the Security Managers were interviewing the inmates. He told the CISU investigators that he had “never heard that before – all of the inmates.” He became more and more concerned that the incident would “go south, hard” and “go baaad.” Instead of the matter being dropped after the police did not file charges, the investigation proceeded. Addendums were sought, additional questions were being formally asked – and other inmates, not just Inmate Taylor, were being interviewed.

79Duffy’s concern led him to put considerable pressure on Sidhu, Marshall and Warling to come forward, if they did or saw something – before he decided to file his own addendum. The December 13th meeting in the Health and Safety Office demonstrates this. Duffy was, as Marshall phrased it, asking Sidhu to “fess up”. He told him “this is a problem – your problem” and that he had to “fix it” now. Sidhu refused, concerned that if he did so he would be fired. The fact that these exhortations occurred before he submitted his own addendum is significant. It shows that he was trying to get them to come forward with the truth. As Duffy stated, Sidhu had to “man up” so those with children to support would not be brought down with him. Clearly, Duffy was concerned that if Sidhu did not come forward and they all remained silent, they would be caught up in the fall out. His actions are consistent with an individual who knows the truth and is afraid of the consequences for not coming forward.

80Duffy’s concern that he could lose his job if he covered up a Correctional Officer’s excessive use of force was well-founded. Marshall and Warling both testified that if they saw the slap take place they would have included it in their Occurrence Report. When Warling was asked why he would report it, he stated “because you get fired if you don’t tell the truth.”

81The Union takes issue with the fact that Duffy never once “manned up” himself. He never admitted to the grievors that he saw the slap, yet was pressuring Sidhu and the others to change their reports and file addendums. Given the code of silence, Duffy’s reluctance to admit that he had witnessed the slap is understandable. So is Marshall’s and Warling’s reluctance to do so. Sidhu, in my view, had good reason to be fearful of amending his report given his recent five-day suspension.

82Because of Sidhu’s refusal to amend his report, and Marshall’s unwillingness to do so, Duffy was in a very difficult spot. He either took the risk of losing his job for covering up the slap or he came forward, potentially being labeled a “rat.” Doing so, moreover, would lead to the suspension or termination of his colleagues, including Marshall, someone he considered a friend.

83In this regard, I find it hard to credit that Duffy would fabricate that Sidhu slapped the inmate when it was clear that it would result in significant discipline for two other senior officers, particularly Marshall. The evidence clearly established that Duffy cared for Marshall – a current Vice-President of the local and former local President. They often had lunch together at work, and for a time, commuted from Barrie together. Duffy repeatedly testified that he “loved him like a brother.” Considering the “probabilities that surround the currently existing conditions”, I find it unlikely that he would make up a story that would result in significant discipline for Marshall. Even if he had something against Sidhu - and I find insufficient evidence to reach that conclusion – it is unlikely that Duffy would create a story that would harm Marshall.

84The situation was even more problematic because Duffy was also the Chief Steward at TWDC – a union position of significant responsibility and trust. He held that position since 2007, and was a Steward before then. He also held other Union roles. He faced a clear conflict between his duty to his Employer and his responsibilities to the Union and its members. As he told CISU, he did not want to let down the Superintendent and he also did not want to let his partners down. That is why he pushed so hard to get the grievors to file addendums. He repeatedly “begged” and “pleaded” with Marshall. He pressured Sidhu. This is not the conduct of a man asking others to lie, as the Union contends. It is the conduct of a man who is pushing the others to come forward with the truth – to save them all. At the end, when Sidhu, Marshall and Warling would not budge, he chose to save himself. As he testified at the hearing, his “first allegiance” was to the Employer”. He wanted to protect “my family and the truth.”

85The Union questions Duffy’s concern about the code of silence, pointing to comments he made during his CISU interview on December 16. During his interview, when asked whether he anticipated any backlash, Duffy replied:

Duffy: I don’t anticipate it and I’m not concerned about it if it were to happen because you know I’m not afraid of anything. That ain’t going anywhere. Nobody, no…

Investigator: I would like to think what comes out of this is respect. Greater respect for you.

Duffy: Well I don’t think anything’s going to come out if because I don’t think anybody’s going to know.

That interview took place on December 16, at 7:30 a.m. – before the grievors were suspended. The Superintendent had arranged his “interview” with Security to protect him and no one knew he had filed an addendum. His statement was either bravado or wishful thinking. It does not mean that the code was unimportant to Duffy or the entirety of what occurred in this case.

86To be clear, the code of silence does not establish some form of “super-credibility” for someone who comes forward. The testimony of a Correctional Officer who comes forward with an allegation against a colleague must be evaluated in light of all of the facts and evidence. But it is a factor to consider in weighing credibility. It is one of “the currently existing conditions” in Corrections. The code of silence had an impact on the actions of everyone in this case – Duffy, Marshall, Warling, Sidhu, and the other C.O.s who were on the unit, even OM 16 McArthur, the Security Managers and Superintendent O’Connell. It impacts the assessment of whether Duffy was coming forward with the truth when he filed the addendum, or lying and creating a fiction.

87Duffy’s conflict was evident. He became highly emotional and crying with Mustari and Superintendent O’Connell. Even C.O. Anthony, clearly no fan of Duffy, felt “sorry for the man” when he witnessed Duffy’s emotional breakdown. Anthony’s testimony also shows the resentment that Duffy’s decision to change his Occurrence Report engendered. It was viewed that he “sold his soul to the devil” and that “all he worked for, at this point, was destroyed by one decision.” The fact that Duffy might have been coming forward with the truth was irrelevant. What mattered was that his addendum “caused three COs to be suspended…”

88Although Duffy primarily acted to save his job, I also credit his testimony that his conscience ate at him between December 6 and December 14, when he submitted his addendum. He considered his prior 20-day suspension for excessive force and covering it up, and his promise to himself that he would never be called a “liar” again. Also significant was the promise that he made to Superintendent O’Connell that they would be truthful to one another. The evidence also established that he was a genuinely religious man.

89I further find that the events that took place later in December – Duffy’s efforts to get Marshall to put in an addendum, the meeting in the H & S office and the December 23rd series of telephone calls to make some kind of deal for Marshall – supports Duffy’s credibility that a slap occurred, and that all present knew it. What is significant is that during the December 13th meeting – and during all of Duffy’s subsequent attempts to get Sidhu or Marshall to amend their reports – no one objected that he was asking them to lie, or even questioned him. Sidhu stated that he already submitted two truthful reports and he was not going to change them. But if the Union’s theory is to be credited, I would have expected significantly far more push back from Sidhu, Warling and Marshall that what Duffy was asking them to do was fundamentally wrong; that he was asking them to lie – for Sidhu to admit he did something he did not do and for Warling and Marshall to admit that they saw something that they did not see and could potentially end in Sidhu’s termination. If no slap occurred, what he was asking them to do was extraordinary. He was asking them to change their truthful reports and submit lies – false reports. But they said virtually nothing. If nothing happened, one would expect them to vehemently protest what Duffy was suggesting. That did not happen, and it strongly suggests that they did not because they knew the slap occurred.

90In addition to the group meeting on December 13, the evidence is undisputed that Duffy – prior to his filing an addendum on December 14 - repeatedly approached Marshall to file an addendum to his original Occurrence Report. Duffy testified, without contradiction, that he approached Marshall on December 6 on the I.C. unit, and Marshall responded, “if I do that, then I’m going out the front door” to which Duffy responded, “no f---- problem. I’ll back you to the hilt because I’ll write a report as well.” Marshall was not asked about this conversation at the hearing. He testified, however, that Duffy approached him on December 13, after the meeting in the Health and Safety Office, urging him to write an addendum because he did not want to see him get suspended or see something happen to him. Duffy offered to make an appointment with the Superintendent or Deputy Superintendent, and Marshall told him not to speak on his behalf. Marshall testified that Duffy “asked me a few more times” and “I think I left the office.” At no time did Marshall confront Duffy about why he was pushing him so. He certainly got angry about it when Duffy made an appointment with management for him, but he never expressed amazement or even surprise. He never expressed outrage that Duffy was asking him to lie and submit a false addendum. Instead, his response, repeatedly, was that he would not write anything unless the Employer asked him to, and they never did. If nothing happened, one would expect Marshall to say so and to be all over Duffy for asking him to lie and implicate Sidhu.

91Similarly, the December 23rd evening telephone calls. December 23, 2011 was a Friday night, two days before Christmas. Sidhu, Warling and Marshall had been suspended since December 16. The evidence establishes that Duffy and Mustari spoke to Security Manager MacLellan, Superintendent O’Connell and ADM Steve Small – one of the highest ranking managers in the Ministry. It seems highly unlikely that they would try to broker some kind of deal for Marshall which would require him to file an addendum implicating Sidhu if nothing had happened.

92The Union argues that I should consider Duffy’s demeanor on the witness stand, which in its view, was “bizarre.” It points to his testimony that he knew something “baaad” was going to happen, that he insisted that the health and safety meeting took place on Dec. 6, the day of the incident, when the evidence (including his own Occurrence Report) shows that it took place on December 13. It submits that Duffy insisted that this meeting took place on December 6, not out of confusion, but because it bolsters his story that he knew, from the outset, that this would go “baaad.” It demonstrates, it argues, Duffy’s propensity to lie when it suited him.

93There were points where Duffy’s demeanor can be characterized as extreme - the investigation was “going south, HARD!” It was “gonna be baaad.” My impression of Duffy’s evidence was that he was angry – mostly at Sidhu for not “manning up”, as he repeatedly phrased it, and taking responsibility for his actions. He also appeared angry and disappointed with Marshall, Warling and the local Union. In his view, much of what occurred – the terminations and his career demise – could have been avoided if Sidhu had owned up to his actions. It was his opinion that “we wouldn’t be here today” if Sidhu had acknowledged the slap. However, Sidhu did not do so. He was, as his comment at the Dec. 13th meeting reveals, concerned that if he changed his report, he would be fired. Under the circumstances, that was a reasonable assessment although, as Marshall said at the time, "not necessarily."³ Sidhu, though, had good reason to be fearful because he had a recent five-day suspension for misconduct (failing to properly perform his duties and being untruthful during the investigation.). Although that matter had been grieved, it was still on his record. Another serious incident, particularly lying on the O.R., could have indeed led to his termination.

94Either way, Sidhu did not change his report, and the situation unfolded as it did. Duffy’s demeanor at the hearing is consistent with his view that most of what occurred should be laid at Sidhu’s doorstep. His demeanor was consistent with someone who is angry and hurt. I do not find that his demeanor, though extreme at times, undermines his testimony.

95The Union asserts that the evidence establishes collusion between the Employer and Duffy – that he was threatened and/or offered inducements – if he implicated Sidhu. It relies on comments made by Duffy during the Dec. 13th meeting in the Health and Safety Office – that he told them he had just come from the Superintendent’s office and that there would be suspensions and terminations, and that four inmates had “corroborated” that a slap occurred. It also presented the testimony of C.O. Speers that “a few days before the suspensions”, Duffy told him that “heads are going to roll” and there would be “suspensions.” It also presented C.O. Anthony who testified that on December 30, 2011, when he confronted Duffy about whether he had changed his O.R., Duffy admitted to him that Superintendent O’Connell had told him that if he did not change his report he would lose his job.

96In regard to the meeting on Dec. 13, Duffy denied saying that he had just come from the Superintendent’s office but asserted that he advised that there would be suspensions and terminations based on his more than 25 years of experience. Considering the new focus on use of force and the code of silence by the Ministry, the continuation of the investigation (requests for addendums, interviewing the inmates, supplemental interviews) that was a reasonable conclusion and a plausible explanation for Duffy’s statement. His explanation for the use of the word “corrobation” in regard to the inmate statements was that it was an assumption on his part. If one credits his testimony that he saw and heard the slap, his “assumption” that the inmates saw and heard it too is plausible. He only learned shortly before the meeting – from Sidhu (who had been advised by C.O. Charbonneau) and Warling – that Security was interviewing the other inmates.

97The evidence shows that seven inmates were interviewed by Security Managers on December 13. There is no evidence as to when those interviews took place, how long they took, or when they were completed. The meeting in the Health and Safety office took place around 1:00 p.m. There is no evidence that Duffy met with anyone who could have provided him with information about what the inmates had said prior to that meeting. The interviews were conducted by Security Managers MacLennan and Hastings. It seems far less likely that MacLennan and Hastings (or possibly Superintendent O’Connell) would risk their careers to leak such information to the Chief Steward than Duffy simply “assuming” that the inmates had corroborated the slap in order to bolster his plea that Sidhu had to change his report.

98The evidence establishes that Duffy did not learn about the fact that the inmates had corroborated that a slap occurred until the next day, after he submitted his addendum. He testified that he was ordered by O’Connell to go with MacLellan to the police station to give a statement, and while there, overheard MacLellan tell the police about the inmates’ statements, including one that was written in Russian and had to be translated. There is simply no evidence that he learned that before he submitted his addendum.

99In terms of Anthony’s testimony about the “threat” made by Superintendent O’Connell, I find that it should be given no weight. Anthony was interviewed by CISU about his discussion with Duffy on December 30, 2011 on January 23, 2012, under Section 22 of the Ministry of Correctional Services Act, which requires cooperation in an investigation. He was asked about what was said during that meeting – and he left out what he testified to at the arbitration hearing – that Duffy broke down, and told him that he “had to” change his report because the Superintendent told him that “I would lose my job” if he did not. He explained that he “didn’t feel it was relevant” and he “knew it would be explosive”, implicating the Superintendent in potential criminal conduct - obstruction of justice. He did not want to “get into O’Connell’s crosshairs.” He felt it was “more important to tell this information to the legal team for the Union.” He also stated that he was “not asked directly” about it by CISU.

100In fact, the testimony which he omitted during the CISU investigation was highly relevant to the CISU investigation, and he was asked specifically about it. When he had finished explaining what had occurred during the conversation, he was asked

Q. Okay. And was there anything else said or anything that Duffy said to you that…

A. Well yeah Mr. Duffy made a point of stating that I had written reports to the detriment of other officers. …

Q. Okay.

A. And that was the end of it.

Clearly, if his testimony at the arbitration hearing is believed, that was not the end of it.

Further, at the conclusion of his interview with CISU, he was again asked if he had anything to add:

Q. Is there anything else that we have not asked you but you think is very important that we would know, very relevant to this matter that we should know?

A. If I knew I’d tell you. If I could think of it as being relevant I would certainly tell you.

Anthony’s assertion that he did not think that this allegation against the Superintendent – that he interfered in the investigation by threatening Duffy with termination if he did not change his report – was relevant is simply not credible. His failure to include this “explosive” portion of his conversation with Duffy on December 30 undermines his testimony. He was under an obligation to provide that information to CISU and he did not.

101Further, Anthony’s testimony reveals that he was very angry at Duffy for filing a WDHP complaint against him (for the “sold your soul to the devil” comment) and causing him to appear before the CISU for an interview. He was also very angry at the Ministry for “cronyism” and “favouritism regarding the allocation of positions.” He was, by his own admission, a full participant in the shunning of Duffy afterwards. I have no confidence in his objectivity, and do not credit his belated testimony.

102In terms of C.O. Speers, his testimony does not establish that Duffy was given advance information about the investigation. Duffy’s concern about the investigation “going bad” was reasonable in the circumstances, and his prediction that there would be “suspensions” was based on his experience, and a reasonable prediction based on the circumstances that existed at the time.

103There is no question that after Duffy submitted his addendum on December 14, the Ministry engineered a “show” interview with Security. This was done to try to protect him. It does not establish that there was collusion between the Ministry and him before then.

104It also seems unlikely that if Duffy had been threatened by the Superintendent or McLeod, he would have just meekly capitulated and falsely implicated three senior colleagues, one of whom he considered a friend. He was the Chief Union Steward and had been for years. In that position, he would know his rights under the collective agreement and provincial labour laws. It is far more likely that had he been threatened with termination if he did not submit a false addendum he would have vociferously protested it and filed multiple grievances.

105The Union’s theory also requires that I find that Superintendent O’Connell had such a desire to “get” Sidhu (as well as Marshall and Warling) that he would risk his career to do so. No such evidence was presented. O’Connell did not trust Sidhu’s honesty because of the prior discipline, but he did not even meet him until after that discipline was imposed. The incident occurred and investigated before O’Connell’s arrival at TWDC, although he approved the discipline imposed. There is simply no evidence to support a finding that O’Connell threatened Duffy so he could get rid of Sidhu as well as Marshall and Warling.

106Nor does it make any sense that O’Connell would threaten Duffy, or put him in such an untenable position. Duffy and O’Connell clearly had a good working relationship which, from a management perspective, is a very good thing to have with the Chief Steward. Matters can be discussed and resolved, rather than grieved. It makes no sense that he would jeopardize that relationship by threatening Duffy with termination, as the Union suggests.

107There also was no evidence of any inducement offered to Duffy. The Union presented evidence that Duffy, who for a significant period was at home with pay, made the “Sunshine List” in 2012 – the list of those government employees who earn more than $100,000 per year. Due to the fall-out from this matter, Duffy was unable to continue to work at TWDC. Other postings the Ministry tried did not work out – including one that was caused by some inappropriate comments Duffy made. Superintendent O’Connell explained that the Ministry was trying to ensure that Duffy did not suffer monetarily because he came forward, so his salary included lost overtime. The amount of overtime was based on Duffy’s record of accepting overtime in the past.

108Further, the evidence is not clear that being sent home, even with pay, is an “inducement.” The testimony that Marshall gave to CISU sums it up well. At the end of his interview, which took place while he was on suspension with pay, he asked how long the investigation would take. He stated that he knew his suspension was “with pay but… it’s stressful enough” and “it’s not a holiday.” He continued:

There’s many times I kind of laughed when people have suspensions with pay. I always kind of thought that would be nice because I’ve never had that…. I don’t really like it to be honest with you. It’s not really about the money. I just want my routine. I just want to go to work. …

It’s quite possible Duffy feels the same way.

109On the balance of probabilities, I find that the evidence of a conspiracy or collusion falls short. There is insufficient evidence to establish that the Employer improperly pressured Duffy to submit an addendum by threatening him or offering him inducements. On the evidence, the decision to file an addendum was Duffy’s alone.

110The Union asserts that Duffy is not a credible witness. It points to some inconsistencies in his statements – the inmates were facing the wall versus they were not; they were talking versus quiet; the inmate was in Sidhu’s personal space before the slap versus the inmate took a step toward Sidhu after the slap, as well as others. In my view, these are relatively minor discrepancies and do not detract from his testimony on the central issue.

111In Re OPSEU (Zolnierczyk), supra, the arbitration hearing was preceded by investigations by the Employer and the police, preparations for civil and criminal proceedings and a preliminary inquiry which “provided a wealth of opportunities for the witnesses to offer and be questioned and cross-examined on their accounts of the critical 28 seconds.” He stated at par. 39: “It should come as no surprise that none of them was able to traverse all of those inquisitorial challenges without falling victim to at least some inconsistency.” He further noted at par. 52 in regard to the grievor’s evidence: “As with the other witnesses, I do not propose to catalogue all of the myriad inconsistences – many of which are of questionable significance and may simply be attributable to the unsurprising human inability to, on close examination, maintain a consistent version of events in all their intricate details over protracted period of time punctuated by various accounts of the same events.”

112In this case, there were only the initial Occurrence Reports, the addendums, the interviews with Security and CISU, and the allegation meetings before the arbitration hearing, but similar considerations apply. The real question is whether the inconsistencies are material and undercut the witness’s credibility about what they have seen or heard. I find the discrepancies here to be relatively insignificant. On the key issue – whether a slap occurred - after the original Occurrence Report - Duffy has been consistent on the central fact that Sidhu slapped the inmate across his face.

113In terms of Duffy’s omission on his December 6, 2011 Occurrence Report, I find his explanation to be plausible. He omitted the slap because he did not want to be viewed as a “rat.” Only when the investigation did not let up and, on the contrary, intensified, and his efforts to get Sidhu, Marshall and Warling to file addendums failed, did he come forward. This is similar to the situation in Re OPSEU (Zolnierczyk), supra, where C.O. Jensen originally failed to report in his Occurrence Report that he saw the grievor strike an inmate, but later came forward when he realized the potential seriousness of providing a false account to the police, and from that point forwards was constant in his assertion that he had seen the grievor strike the inmate. Vice-Chair Herlich concluded at par. 68:

In any event, and whether or not I take specific account of the Code and its operation in the instant circumstances, I find CO Jensen’s explanation for his initial failure to report what he had witnessed to be both plausible and credible. In other words, while his conduct may well give rise to the classic credibility question, I believe he was telling the truth when he admitted to having initially lied during the earliest phase of the investigation resulting from the incident. …

I reach the same conclusion here.

114One key point is Duffy’s location at the time of the incident. Duffy said that he was about 15 feet away when he heard the “authoritative” voice from the washroom, then placed himself much closer when interviewed by CISU. The Union asks me to reject Duffy’s evidence and credit C.O. Speers in regard to where Duffy was standing. Speers testified that Duffy was standing near cells 4 and 5, which are a considerable distance from the washroom entrance and would place Duffy at an angle that he would not have been able to see Inmate Taylor. Yet Speers’ recollection concerning that search is far from impressive. C.O. Speers could not remember where C.O. Charbonneau was stationed that day – he thought she was on the unit door. In fact, she was in the day room. He did not know where C.O. Bobb was. He was not aware of Duffy’s role – stating that he was “just milling about in the day room.” He did not hear any noise or sounds from the washroom, so how he would know Duffy’s location at the relevant time is unclear. He did not hear Duffy speaking loudly. In his Occurrence Report, he states that it was a “normal routine daily search” during which “nothing unusual occurred.” Numerous witnesses testified that it was not a “routine” search, but a search for weapons which required “heightened” attention.

115In terms of Duffy’s location, the evidence, taken as a whole, confirms that he was quite close to the inmate washroom. He was not between Cells 4 and 5, as Speers stated. He could not have been so far away in light of how quickly he appeared at the washroom entry when Sidhu told the inmate not to suck his teeth at him. Sidhu, in his Occurrence Reports and interview, stated that Duffy was “just outside the washroom.” and “close by.” He testified and told CISU that Duffy was “around the corner”. Given the timing of the event, Duffy had to have been quite close to the washroom. As noted earlier, his testimony concerning the sequence of events – except for the slap – largely matches the others in the washroom, particularly Sidhu. I find that Duffy was in a position, in the Day Room, to see and hear what occurred between Sidhu and Inmate Taylor.

116The Union also asserts that Duffy was a serial liar. He admittedly lied in his first Occurrence Report. He lied to Local Union President Vieselmeyer, Mustari and Eric O’Brien, head of the Grievance Department at OPSEU, concerning submitting an O.R. regarding the meeting in the Health and Safety Office.⁴ He lied to Mustari when he told him that he was handling a health and safety matter when he was actually having his “heart to heart” with O’Connell.

117The Union is correct that Duffy lied on these occasions. There is some irony in the fact that Duffy did not want to be viewed again as a “liar” yet he did lie to the Union on a number of occasions. But Duffy’s lies in relation to that Occurrence Report concerning Union representation, and his failure to admit that he had filed an addendum report or met with the Superintendent, all tie in to protecting himself in light of the code of silence. Those lies do not make him a “serial liar”. They do not undermine his credibility in regard to the central issue of whether a slap occurred.

118Based on all of the evidence, I conclude on the balance of probabilities, that Duffy was telling the truth when he submitted his addendum and when he testified that Sidhu slapped the inmate during the search on unit 3A Right. I think it far more likely that he saw it and initially covered it up, but when it became clear that the Ministry was pursuing the matter, decided to save his job and come forward with the truth. That is far more likely than he decided to lie and support an inmate’s claim that a slap occurred, thereby bringing down three of his colleagues. The Union’s theory is possible, but it is not plausible. Consequently, on Duffy’s testimony, which is clear and cogent, the evidence establishes that Sidhu slapped Inmate Taylor across the face during the search. It also establishes that Sidhu’s denials in his Occurrence Report, interviews with Security and CISU were false.

119In so concluding, I have given no weight to the inmates’ statements. In an earlier ruling, I rejected the Ministry’s motion to accept those statements for the truth of their content under the “necessity” and “reliability” standard set forth by the Supreme Court of Canada in Re R. v. Khan 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 (S.C.C.). But I allowed the statements into the record under Section 48(12)(j), and stated that the parties could argue, in closing, what weight, if any, to give to the inmate statements.

120Upon consideration, I conclude that the inmate statements should be given no weight. They are admissible, but admissible only as hearsay – i.e., what was said by them – not for the truth of the matters asserted. In my view, based on the facts of this case, it would be unfair to the grievors to rely on the inmate statements for the truth of the matters asserted without the benefit of cross-examination. I agree with the Union’s contentions, and place no reliance on them for the truth of their content.

121I also place no weight on OM 16 McArthur’s statement. He placed Duffy between cells 3 and 4. There is no evidence that he was unavailable to be called as a witness. His statement, therefore, is hearsay and cannot be used to establish the truth of the matters asserted.

122Having concluded that the evidence establishes that Sidhu slapped the inmate, the question still remains whether Marshall and Warling saw or heard it. I conclude, on the balance of probabilities, that they did.

123This is based on a number of factors. Duffy testified that he saw Marshall and Warling “turn their heads to the sound of the slap, then snap back again.” Marshall testified that he looked over when Sidhu said, “stop sucking your teeth.” He was able to describe the inmate to CISU –his “mouth was closed and straight faced.” The inmate was “staring at Sidhu, then Duffy came in” and the inmate “stared at Duffy.” This description matches Sidhu’s and Duffy’s testimony and demonstrates that his “look” was more than a momentary glance. Warling testified that he glanced over when he heard the inmate suck his teeth for “about five seconds” and heard Sidhu say, “stop sucking your teeth”. He told CISU he looked over for maybe “seven seconds.” He saw Duffy arrive at the washroom entrance. This time period is exactly when the slap took place. I conclude that it is more likely than not that both Marshall and Warling saw the slap.

124But even if they did not actually see it, they would have heard it. Warling told CISU that the washroom is a “very confined” space, maybe “fourteen feet” long in total. Nor was it wide. It consists of ceramic tile and according to both Warling and Duffy, “everything echos in there…”. There was some, but not a lot, of exterior noise. Warling was able to hear the inmate suck his teeth, and heard Sidhu tell him not to suck his teeth. He even heard Duffy yelling at the inmates out in the day room. Likewise, Marshall testified that although he did not hear the inmate suck his teeth, he heard Sidhu say, “stop sucking your teeth.” In that small, confined space, it is more likely than not that they also heard the slap.

125Their conduct after the event, when Duffy was trying to get Sidhu and Marshall to file addendums, also strongly suggests that they saw what occurred, but were not prepared to come forward.

126Consequently, on the basis of the evidence as a whole, I conclude on the balance of probabilities that both Marshall and Warling saw and/or heard the slap occur, and then covered it up in their Occurrence Reports, interviews with Security and CISU, as well as at the arbitration hearing.

3. Was there just cause for discharge?

4. Harbir Sidhu

127The evidence establishes that Sidhu slapped inmate Taylor across the face during the search on December 6, 2011. There was no contention by the Union that, if the slap occurred, it was a justified use of force. The evidence established that no force was necessary, and consequently, the slap must be viewed as an excessive use of force under the circumstances.

128Excessive use of force is a serious matter in Corrections. As Vice-Chair Petryshen noted in Re OPSEU (Beltrano et al.), supra at p 93 [citations omitted]:

The key factors in assessing the appropriateness of the penalty in this case are the seriousness of the offense and the false denial of the grievors about committing the offense. As noted previously, COs are responsible for the care, custody and control of inmates and as peace officers they occupy positions of trust. As arbitrators and the Courts have recognized, the physical assault of an inmate by a CO without cause constitutes a breach of trust of the highest order and a most serious offence. …

The conduct of the grievors was fundamentally contrary to their obligations as COs. By itself, this conduct is indicative of an irreparable breakdown in the employment relationship. Their denial of the offence serves to compound the breach of trust and further indicates that the employment relationship cannot be rehabilitated. This is not a case where reinstatement or any remedy favouring the grievors is appropriate. To determine otherwise would be to undermine a fundamental responsibility of a C.O.

In that case, two of the grievors were found to have punched an inmate during an escort, and two others were found to have punched and kicked another inmate – a more serious use of force than the slap that occurred here.

129The GSB, however, has upheld the discharge of a C.O. for excessive use of force, even where the use of force was considered “relatively minor” and no injuries resulted. In Re OPSEU (Horan), supra at p. 18, the grievor was found to have lost control “which culminated in a push and a few swift kicks administered to the inmate.” The Board determined at p. 18 that “on the basis of clear and cogent evidence that, on a balance of probabilities, the grievor did (in however minor a fashion and with no resulting injuries) assault the inmate and was subsequently less than truthful about what had taken place.” The Board upheld the discharge although it noted that the result might have been different had the grievor had a significant level of years of service or she had acknowledged her wrongdoing and demonstrated some remorse.

130In this case, Sidhu has significant seniority, but there has been no acknowledgement of any wrongdoing. On the contrary, he was untruthful from the outset and covered up what occurred. He lied about it throughout the investigation, to CISU and at the arbitration hearing. Consequently, although he is a senior Correctional Officer, I find that the combination of these two actions constitutes just cause for discharge. His seniority, under the circumstances, is insufficient to mitigate what occurred. I conclude that there was just cause for discharge.

2. Marshall and Warling

131Unlike Sidhu, neither Marshall nor Warling used excessive force on an inmate. Their wrong-doing was covering it up. They lied by omission on their original Occurrence Report. They were untruthful during the investigation, to the CISU and to this Board. This is serious misconduct, warranting a significant penalty. Exactly what that penalty should be must be assessed on all the evidence and all of the relevant factors.

Section 48(17) of the Ontario Labour Relations Act states as follows:

Where an arbitrator … determines that an employee has been discharged or otherwise discipline by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator... may substitute such other penalty for the discharge or discipline as to the arbitrator … seems just and reasonable in all the circumstances.

132The Union asserts that the penalty of discharge should be mitigated because of the grievors’ long and unblemished record of employment. Marshall has 25 years of service; Warling has 22. There is no record of any discipline against either man. By any standard, therefore, Marshall and Warling are very long-term employees with otherwise unblemished records. In my view, their record should count for something, and I find that it should mitigate against the penalty of discharge. “But for” their past record and length of service, a different outcome might well be merited, but I believe their record should afford them another chance. They are to be reinstated as soon as operationally feasible.

133They essentially made one significant mistake - following the code of silence rather than admitting what had occurred. They then exacerbated the situation by continuing to deny what had occurred. They persisted in covering it up. I conclude that their persistence in covering up what occurred, and their failure to acknowledge any wrongdoing by doing so, should result in a loss of compensation, benefits and accumulation of seniority from the date of their termination to the date of this Decision. I realize that is a harsh outcome – though far better than discharge. It is harsh because a harsh result is necessary to send the message to them, and others, that it would be better to come forward and tell the truth rather than face a very significant penalty, or possibly discharge. They each had multiple opportunities to come forward but chose not to do so. Their persistence in the cover-up leads to my determination that their reinstatement must be without compensation, benefits or accumulation of seniority. This discipline, per the collective agreement, is to stay on their record for a period of three years from the date of this decision.

Conclusion:

134For all of the foregoing reasons, I conclude as follows:

1. The Employer established, on clear and cogent evidence, that Sidhu slapped Inmate Taylor during the December 6, 2011 search in Unit 3A Right.

2. The Employer established, on clear and cogent evidence, that Marshall and Warling saw and/or heard the slap take place.

3. The Employer established, on clear and cogent evidence, that Sidhu, Marshall and Warling covered up the incident in their Occurrence Reports, the internal investigation and the CISU investigation.

4. The Employer had just cause to discharge Sidhu.

5. The Employer had cause to discharge Marshall and Warling, but their discharge should be mitigated due to their long and unblemished service to the Ministry. However, because they persisted in the cover-up throughout the investigation, their reinstatement is to be without compensation, benefits or the accumulation of seniority.

6. I shall remain seized.

Footnotes

1. 1Superintendent O’Connell was asked about this on cross-examination. He testified that he did not speak to Hastings during this meeting with Duffy in his office, but he may have afterward.
2. 2There is some dispute about how these GSB decisions came into Duffy’s possession. He originally testified that he had them in his own collection of cases. But when shown an email, dated December 16, 2011 from the Superintendent sending them to him, “as requested”, he acknowledged that he might have requested them. Superintendent O’Connell testified that he had originally sent them to Duffy several months before, in the summer, and then resent them at his request.
3. 3It is possible that the inmate’s conduct of stepping forward and sucking his teeth might have been viewed as a provocation, and that Sidhu’s reaction a momentary aberration.
4. 4The Union’s anger about the disclosure of this meeting to management is understandable. At the time, Duffy was the Union’s Chief Steward. The grievors had a very reasonable expectation of confidentiality in regard to that meeting. From the Union’s perspective, moreover, Duffy was still acting as Chief Steward at this time, even though he had filed an addendum. He remained Chief Steward until he was asked to resign on January 9, 2012.