GSB# 2016-0044

UNION# 2016-0108-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Goden)

Union

• and -

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

Employer

BEFORE

M. V. Watters

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Susan Munn Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 10, June 21, August 9, August 17, September 21, 2017, January 4, 2018

DECISION

1The grievor’s employment as a Correctional Officer (CO) at the Elgin-Middlesex Detention Centre (EMDC) was terminated effective April 5, 2016. The letter of termination of the same date, which was signed by the Deputy Superintendent-Administration, Ms. Kim Wright, set out the following grounds for the Employer’s decision:

“1. You used excessive force when you physically directed inmate W’s head into the Unit #4R sally port door frame;

2. You failed to document that you physically directed inmate W into the door frame of the Unit #4R sally port door frame in your Occurrence Report dated January 13, 2015; and

3. You failed to provide a Use of Force Addendum for the Use of Force incident involving inmate W as ordered.”

For purposes of this Decision, I have anonymized the name of the inmate involved.

2A grievance contesting the termination was filed on April 5, 2016. A second grievance was filed on October 3, 2016. It challenged the Employer’s decision to forfeit seventeen (17) days of vacation credits which the grievor had earned in 2014. The facts relating to this issue, as stipulated by the parties, are set out later in this Decision.

3The following witnesses presented evidence on behalf of the Employer:

Dan Stricko - Sergeant Stricko has been employed by the Ministry of Community Safety and Correctional Services in a variety of positions since 1984. He has worked at the EMDC for the past seven (7) years. At the time of the incident material to this dispute, Sergeant Stricko served as the Local Investigations Manager;

Greg Ireland - Mr. Ireland is currently the Manager, Customized Training, Defensive Tactics, Personal Safety Training at the Ontario Correctional Services College (OCSC). Between February, 2004 and March, 2017, he served as the Provincial Coordinator, Use of Force Programs at the OCSC. An impressive statement of Mr. Ireland’s qualifications was filed as an exhibit in this proceeding. The Union accepted that Mr. Ireland is an expert on the use of force for purposes of the instant case;

Ivan Masse - Mr. Masse has worked as a CO at the EMDC for fifteen (15) years. On January 13, 2015, he was assigned to a post in Unit 4. As described below, Mr. Masse was assaulted by inmate W during the course of his shift that day; and

Kim Wright - Ms. Wright is currently the Superintendent at the EMDC. She served as the Deputy Superintendent-Administration at this institution between April, 2015 and November, 2016. As indicated above, Ms. Wright signed the letter of termination which was given to the grievor. At the time of the incident on January 13, 2015, Ms. Wright was the Acting Superintendent of the Sarnia Jail. Prior to that, she occupied the same position at the Chatham Jail. Ms. Wright’s resume was filed as an exhibit in this proceeding. A reading of same discloses that she has worked in a number of management positions since 2002. Ms. Wright has approximately twenty-eight (28) years of experience in Corrections.

4The grievor, Patricia Goden, was the sole witness called to present evidence on behalf of the Union. She was first hired as a CO at the Whitby Jail in July, 2000. The grievor subsequently moved to the EMDC in April, 2002. She became a full-time employee at this facility in 2005. Over the course of her tenure at EMDC, the grievor held the following positions with the Union: Trustee for the Local for two (2) years starting in or about 2004; Joint Chair of the Health and Safety Committee for approximately six (6) to seven (7) years thereafter; Vice President of the Local for two (2) years; and President for four (4) years. The grievor did not occupy a Union position at the time of the incident or at termination.

5At approximately 3:00 p.m. on January 13, 2015, CO Masse was in the Day Room of Unit 4 Right. CO Masse testified that inmate W then called out to him from inside his cell in an effort to get his attention. CO Masse was unable to hear what inmate W wanted. As a consequence, he elected to open the cell door to better understand what the inmate was talking about. CO Masse recalled that as soon as the cell door was opened, inmate W swung at him with his right fist. He advised that the punch connected with his face. At that juncture, CO Masse grabbed inmate W’s arm and took him to the ground. CO Masse was then able to turn inmate W over on his chest and to handcuff his hands behind the back. At about this time, CO Elizabeth Robinson, who was positioned behind the locked sally port grill door, observed the altercation and proceeded to activate a Code Blue alert. This action resulted in a number of COs rushing to the area in an effort to provide any necessary assistance. The grievor and CO Ainslie Jackson were the first to arrive on the scene. CO Robinson then unlocked the grill door so that these two (2) COs could enter the Day Room to assist CO Masse.

6CO Masse stated that he started to lift inmate W off the ground by pulling on the back of his orange coveralls. He recalled that the inmate was halfway up when the grievor and CO Jackson arrived. It was his evidence that these COs helped him to get inmate W up on his feet and that the grievor and CO Jackson then escorted the inmate through the sally port and into the adjacent area. I note that the sally port in question is quite small. It is separated from the Day Room in Unit 4 Right by a grill door which is always locked. At the other end of the sally port, and just a few feet away, there is a second solid door which is bordered by a steel door frame. I was told that this door generally remains open and unlocked. The allegation in this case is that the grievor, while proceeding through the latter door with inmate W, used excessive force by physically directing his head into the aforementioned door frame.

7CO Masse advised that, during the altercation, inmate W told him that he wanted to be placed on suicide watch. It was his evidence that he had no real recall of anything else following the inmate being handcuffed. More specifically, CO Masse was unable to recall any of the following: whether inmate W said anything or offered resistance during his handoff to the grievor and CO Jackson; whether the inmate was struggling, or moving his body around, at the time; whether there was anything unusual about the handoff; and any of the details as to how inmate W was moved through the sally port and out of the unit. In CO Masse’s words, he just wanted to disengage and get rid of inmate W. CO Masse did not participate in the subsequent escort of inmate W to Segregation.

8On January 13, 2015, the grievor was posted to the Float Officer position on Unit 5. When the grievor heard the Code Blue alert announced over the P.A. system, she immediately ran to Unit 4 Right. She estimated the distance between the two (2) units was between seventy-five (75) and ninety feet (90'). On arriving at the Unit 4 Right Day Room, the grievor observed that CO Masse was in the process of lifting inmate W up off the floor. She confirmed that the inmate’s hands were handcuffed behind his back at that time. The grievor then positioned herself on the left side of inmate W and took hold of him for purposes of commencing the escort out of the Day Room. At this juncture, she was to the left of the sally port grill door. Prior to entering the sally port, the grievor moved to the inmate’s right side in an effort to better facilitate the escort through that area. It is apparent from the evidence that only the grievor had hands on inmate W as they progressed through the sally port.

9The grievor stated that the pace of the escort out of the Day Room and through the sally port was much quicker than usual. She advised that, generally, COs walk with an inmate during the course of an escort. In her words, “this was much quicker than walking pace”. The grievor noted that CO Masse was anxious to have inmate W removed from the area and that, as a result, there was an almost immediate handoff of the inmate. It was the thrust of her evidence that forward momentum developed as they proceeded through the sally port and into the outer hallway. The grievor did not recall any pause or stop while moving through the sally port and into the outer hallway. She maintained that, given the expeditious departure from the Day Room, there was no real opportunity presented to pause, assess the situation, or to consider alternate options. The grievor testified that, while she was in the Day Room, CO Masse told her that inmate W had swung at him. She claimed that she did not then know if the swing had hit or missed her colleague.

10The grievor recalled that inmate W was struggling from the time he was first lifted to his feet in the Day Room. It was her impression that he was attempting to pull away from her as they progressed through the sally port towards the hallway. While the grievor had a hold on inmate W at the time, she did not think that she had control of the situation. The grievor questioned whether she could have halted his forward movement. She also appeared to suggest that she was having some difficulty keeping up with the inmate, in part because of the limited space inside the sally port.

11The grievor testified that she gave the inmate several directions to cooperate. She recalled that an order to comply was given more than once before they proceeded through the second sally port door. It was her evidence that she ultimately directed the inmate to “lay on the ground”. Inmate W was taken to the ground shortly after exiting from the sally port.

12Operations Manager (OM) Jacquie Brandt, CO Melissa Horodyski and CO Jamie Drouillard arrived on the scene at about the time inmate W exited the sally port. At least six (6) additional COs subsequently arrived in the hallway. Once inmate W was under control, he was escorted to Segregation by several COs, including the grievor. By all accounts, the inmate acted out and resisted the escort throughout. The grievor observed that OM Brandt did not ask that she remove herself from the escort. She claimed that, pursuant to policy and common practice, OM Brandt should have given that direction if the grievor had employed excessive force against inmate W as they exited the sally port.

13The grievor denied the allegation that she deliberately directed inmate W’s head into the sally port door frame. In this regard, she disputed the report of the Correctional Services Oversight and Investigations Inspector, Mr. Michael McLennon, that she told him the inmate’s head did make contact with the door frame. It was her evidence that she informed him that inmate W’s head was near the open door. I took this to mean that his head was close to the door frame as they moved out of the sally port. The grievor emphasized that inmate W did not suffer any injury to the head area. She stated that she did not observe any injury and that the inmate did not complain about having experienced an injury during the subsequent escort to Segregation. The grievor commented as follows on this point: “If I directed the inmate’s head into the steel door frame, there would have been injuries, cuts, redness, bruising”. In cross-examination, she acknowledged that a CO’s use of excessive force against an inmate would amount to just cause for the imposition of discipline. The grievor, however, adamantly rejected the assertion that she had used excessive force in this instance.

14The grievor submitted the following Use of Force Occurrence Report on January 13, 2015:

“On Tuesday January 13, 2015 approximately 1455 hrs at Elgin Middlesex Detention Centre I was assigned as Unit #5 Float. At this time I heard a Blue Alert announced over the PA system indicating Unit #4 as the location. At the time of the announcement I was in the Unit #5 staff office. I ran to Unit #4 where I could see…4 Right CO Ivan Masse had inmate W….handcuffed to the rear and on the ground. CO Masse told me to take the inmate out of the Unit and indicated that the inmate had swung at him. I took hold of the inmate’s shoulder and coveralls and ordered him out of the Unit. Inmate W would not comply with this direction. I pushed inmate W to walk out of the unit and ordered him to cooperate to which he would not comply. After struggling with inmate W to walk out of the unit I ordered him to lay on the ground. Inmate W continued to resist my direction and I pushed him onto the ground into a prone position and placed by (sic.) left shin on the back of his leg to hold the inmate on the ground until further assistance arrived to escort inmate W to segregation. CO Jackson assisted in removing the inmate from the day room on 4 Right to the hallway outside of the Unit 4 Right grill. CO Rutkaukas (sic.) attended the blue alert and assisted me in aiding inmate W to a standing position. Inmate W was informed that he was going to segregation but would not comply with direction to walk by attempting to pull away from the staff and not standing upright. Inmate W was leaning forward and at this time attempted to bite CO Scott McDonald on his outer thigh. I yelled that the inmate was attempting to bite to alert CO McDonald and took hold of the inmate’s collar on his coverall to attempt to prevent any further attempts at biting. CO Fraleigh, CO Rutkauskas and myself escorted inmate W to segregation. Inmate W was non compliant the entire route from Unit #4 to Male segregation. Inmate W was ordered more than ten times to stand upright and walk however inmate W continued to push back against us, drop his weight to the floor plant his feet on the floor to push in the opposite direction. As we entered segregation, I left at the cell door as to not participate in the strip search.”

15It was the grievor’s evidence that she had no prior experience in completing the new Use of Force Occurrence Report form. The grievor testified that, as a consequence, she showed the above report to OM Brandt once it was completed. She stated that OM Brandt informed her that she had viewed the videotape of the incident and that the content of the Use of Force Occurrence Report was consistent with same. As is evident, the form completed by the grievor did not reference that inmate W hit the door frame. When asked why that was so, I recorded her responses as follows: “I didn’t observe the inmate hit the door frame” and “I didn’t observe the inmate make contact with the door frame at the time of the incident, so I didn’t write that in my report”. The grievor maintained that the Use of Force Occurrence Report, as written, was accurate in all material respects.

16In his capacity as the Local Investigations Manager, Sergeant Stricko reviewed the report of the incident Manager and the Use of Force Occurrence Reports submitted by the COs who were involved in the incident. He then secured a copy of the related video and put it into DVD format. After so doing, Sergeant Stricko compared the two (2) sources of information, namely the reports to the video. In his words, he was looking for “consistency” between the two (2). Based on this exercise, Sergeant Stricko determined that more information was required with respect to how the grievor and inmate W exited Unit 4 Right. On his review of the video, it seemed as if the inmate had come into contact with the door frame in question. He noted that such contact was not referenced in the grievor’s initial Use of Force Occurrence Report. Sergeant Stricko testified that he wanted to clarify the facts concerning the exit from the sally port. More specifically, at the time he did not know whether the apparent contact was caused by a “footing issue” or by someone else being in the way. Accordingly, Sergeant Stricko asked the grievor by email of January 27, 2015 to provide a Use of Force Addendum Report to explain “why inmate W…did bounce off the door frame when exiting the unit”. It is agreed, for the reasons set out below, that the requested Addendum was never provided to the Employer by the grievor.

17The video secured by Sergeant Stricko was taken by four (4) separate cameras, each having a distinct angle on the events material to this case. On my review, two (2) of the camera angles are more helpful in terms of depicting what actually occurred during the incident of January 13, 2015. The first camera captured what took place in the Unit 4 Right Day Room, including the following: CO Masse opening the cell door; inmate W exiting the cell and almost immediately swinging at him; the takedown of inmate W to the floor and the placement of handcuffs on him by CO Masse; the grievor and CO Jackson entering the Day Room subsequent to the Code Blue alert; the grievor helping CO Masse get inmate W to his feet; and the movement of the grievor and inmate W out of the Day Room and through the sally port area. This particular camera angle, however, does not clearly show what happened at the second sally port door. The better camera angle for that determination is the one from outside of the Day Room. It shows the hallway leading up to the sally port; the second sally port door; and the sally port grill door. The viewer can also see into the Day room through the grill door, albeit not with any degree of precision. This camera captured the grievor and inmate W coming out of the Day Room; their passing through the sally port; some distinct movement on the part of the grievor and inmate W close to the door frame of the second sally port door; and the taking of the inmate to the ground shortly thereafter.

18The grievor was the sole person called as a witness to give direct evidence about the incident outside of the Day Room. OM Brandt, CO Horodyski and CO Drouillard did not present evidence as to any observations they may have made. All three (3) of these individuals were close to the second sally port door when the grievor and inmate W were exiting from the sally port. Inmate W was also not called to testify in this proceeding. The views of Sergeant Stricko, CO Masse, Mr. Ireland and Ms. Wright as to what occurred were premised entirely on their assessment of the video, which was shown many times during the course of their evidence. This Arbitrator was provided with a copy of the video. I note that it can be viewed at both normal and slow speed and at a much slower, shot by shot, pace. The respective assessments of the video by the above witnesses is set out below.

19Sergeant Stricko testified that he reviewed the video from all four (4) angles at least twenty (20) times, and that he did so at regular, slow and frame by frame speed. In his opinion, the video showed that inmate W’s body seemed to come into contact with the steel door frame. Sergeant Stricko, however, could not definitively determine whether the grievor’s body came up against inmate W as they proceeded through the sally port. Additionally, he was unable to discern whether the inmate’s head made contact with the steel door frame. In cross-examination, Sergeant Stricko agreed that it was unclear from the video whether such contact occurred. He further agreed that review of the video did not permit him to assess the grievor’s intention at the time. It was Sergeant Stricko’s evidence that all of this uncertainty led to the request for the grievor to provide the Use of Force Addendum Report mentioned above.

20Sergeant Stricko also acknowledged that the video could be reasonably interpreted as showing CO Masse push inmate W towards the sally port as the grievor was about to start the escort out of the Day Room. He noted, in this regard, that CO Masse’s hands moved forward and back. At another point in his evidence, Sergeant Stricko described the observed movement as “a release”.

21As mentioned, CO Masse did not recall much about the incident after inmate W was handcuffed in the Day Room. More specifically, he did not see whether the inmate came into contact with the door frame or if the escort came to a stop as it proceeded through the sally port. It is clear that CO Masse’s evidence about what occurred after the commencement of the escort was based on his review of the video. He advised that he reviewed same on two (2) occasions prior to his attendance at the hearing. CO Masse was also shown parts of the video on several occasions during the course of his evidence. He expressed the opinion that the video was “not of good quality”.

22CO Masse’s evidence with respect to what he observed on the video may be summarized as follows:

i) Inmate W was wearing socks, without any shoes on, as he moved out of the Day Room and through the sally port. CO Masse advised that the floor in both areas are concrete and potentially could be “very slippery”. From the video, he could see a reflection of the grill of the sally port door on the floor;

ii) CO Masse agreed that he gave inmate W “a very little push” just as he released his hold on him in the Day Room. He stated that he did not recall having done so at the time and, for that reason, did not reference the push in his Use of Force Occurrence Report;

iii) CO Masse further agreed that it appeared as if the grievor and inmate W were moving quickly through the sally port. He noted from the video that the latter’s jumper seemed to come down off his shoulder, exposing some skin, during this movement. In his words, it looked like the jumper was “pulled down a little bit”; and

iv) CO Masse was unable to notice from his review of the video if inmate W hit his head on the door frame of the second sally port door.

23On Mr. Ireland’s view of the video, inmate W was in restraints and was compliant when the grievor arrived in the Day Room. In his judgment, the situation was then under control and the inmate did not pose any immediate threat. Mr. Ireland testified that there was no indication the inmate resisted the escort before being moved through the sally port. In his opinion, the need at that point was simply to remove inmate W out of the unit. Mr. Ireland also observed that the inmate was not struggling or resisting as the escort proceeded through the sally port. It was his assessment that the grievor then had good control over the inmate.

24Mr. Ireland noted that inmate W was walking in a forward direction as the escort approached the second sally port door and that the inmate’s body was then “over the top of his feet”. He emphasized that inmate W was not walking towards the door frame. Mr. Ireland testified that, on his review of the video, the grievor’s body turned towards the door frame. It appeared to him that the inmate’s upper body was then deliberately pushed by the grievor and that the force used caused him to come into contact with the door frame. Mr. Ireland considered it material that there was a sudden change of direction in the movement of both the grievor and inmate W. On his analysis, inmate W’s face was in “the centre of the door” and he was moving straight through before his upper body abruptly changed direction. Mr. Ireland did not think that this change was the result of an accidental fall on the part of the inmate. He further asserted that it would not have been possible, in the circumstances, for inmate W to have intentionally thrown his body against the door frame.

25It was Mr. Ireland’s opinion that inmate W was directed face first into the door frame by the grievor. He acknowledged that he could not definitively determine what part of the inmate’s head contacted the door frame. In cross-examination, Mr. Ireland was asked whether, on his review of the video, he could say absolutely that the inmate hit his face on the door frame. I recorded his response as; “It appears that he did, can’t say one hundred per cent, only the inmate can say that”. Mr. Ireland was also confronted with Sergeant Stricko’s evidence that, despite watching the video more than twenty (20) times, he could not see the inmate’s head hit the door frame. Mr. Ireland stated that he and Sergeant Stricko simply had “a difference of opinion” on the point. He repeated his opinion that inmate W’s face came into direct contact with the steel door frame.

26Mr. Ireland acknowledged the following during his cross-examination:

i) Inmate W did not sustain, or complain of, any injury to his face or head resulting from the incident;

ii) Inmate W was moved quickly through the sally port. Mr. Ireland advised that he did not make any determination as to why that occurred, as he was more focused on the use of force;

iii) It appeared that CO Masse had pushed inmate W. Mr. Ireland suggested that this might explain why the grievor and the inmate were moving quickly through the sally port. He further agreed that it was possible that the grievor might not have known of the push or that it could potentially have contributed to the inmate’s movement; and

iv) A possibility existed that inmate W’s feet were slipping as he proceeded through the sally port.

27It was Mr. Ireland’s ultimate opinion that the grievor used excessive force in this instance. He maintained that the only force required to escort the inmate through the sally port was hands-on control by way of a “bent wrist lock” technique. Mr. Ireland added that this could have been coupled with a firm direction to inmate W to proceed to where the grievor wanted him to go. As mentioned above, Mr. Ireland considered that inmate W was compliant during the initial escort from the Day Room through the sally port. He testified that, even if the inmate was not compliant, pushing him into the door frame would not represent an appropriate response. Mr. Ireland stressed that COs must never act to cause bodily injury or harm and that any force used must be necessary, reasonable and not excessive. He observed that the goal in this type of incident is a peaceful resolution without the use of force. Mr. Ireland believed that such an objective could have been achieved in this case. He acknowledged that the situation here was made more difficult given the fact inmate W had just assaulted another CO and advised that such a scenario could create a form of “combat stress”. Mr. Ireland emphasized, however, that a CO is not permitted to retaliate and must respond professionally. Lastly, he stated that his conclusion would not have been impacted even if inmate W was known to be unstable and unpredictable. It was his evidence that this type of special knowledge should serve to influence a CO’s decision-making with respect to both the nature of the response and the selection of appropriate options.

28Mr. Ireland testified that the grievor’s use of excessive force on January 13, 2015 was inconsistent with both the training provided to COs and applicable legislation. He noted that the aforementioned training is based on the Ministry of Correctional Services Act, the Institutional Services Policy and Procedures Manual, and the Criminal Code of Canada. During the course of his evidence, Mr. Ireland described how COs are trained to respond to use of force situations. In this regard, he specifically referenced the Use of Force Management Model and the Defensive Tactics-Theoretical Concepts Lesson Plan.

29At the time of this incident, Mr. Ireland was responsible for reviewing use of force incidents that were referred to Correctional Services Oversight and Investigations (CSOI). In this instance, he reviewed the following sources of information prior to the completion of his report dated October 28, 2015: the Digital Video; the Local Investigation Report; and Occurrence Reports submitted by seventeen (17) staff members. He also met with CSOI Inspector Mr. Michael McLennon on July 8, 2015. Mr. Ireland’s report reads, in part:

Summary

The Force used that is in question pertains to Correctional Officer Goden, P.

Reports are consistent and indicate that inmate W………………….had assaulted a correctional officer. Inmate W was aggressive and threatening towards staff. Force was required and used to take control of the inmate and remove him to the segregation area.

Upon reviewing the reports it was found that some of the occurrence reports are lacking in detail with regards to the description of force and techniques used. Review of the digital video indicates that the actual force used by staff was consistent with the profiled behavior of the inmate and all other circumstances throughout the incident with one exception. While escorting inmate W through the unit door into the hallway, CO Goden did physically direct inmate W into the steel door frame.

Findings

After reviewing all materials provided, it is my opinion that the Force Used by Correctional Officer Goden would be considered to be excessive. Officer Goden did exert physical effort on an inmate that caused the inmates face to come into direct contact with a steel door frame. The action is inconsistent with training, unnecessary, and not reasonable under the circumstances.

This report was subsequently incorporated into Mr. McLennon’s CSOI Investigation Report.

30Mr. Ireland testified that, with respect to use of force incidents, COs are expected to document in their Occurrence Reports the details of what they observed and how they responded. He stated that a CO should not speculate as to what may have occurred if they did not actually see some part of an incident. Mr. Ireland acknowledged that, in that event, he would not anticipate that a CO would reference something they did not see in their Occurrence Report. Additionally, he agreed that despite all of the training provided, it was possible that a CO might not see something that occurred during the course of an incident even though other COs observed and reported on the point.

31As mentioned, Ms. Wright was not working at the EMDC at the time of the incident. Her first real involvement with same was in early March, 2016, after she was provided with the complete Correctional Services Oversight and Investigations Report. Her view as to what occurred on January 13, 2015 was based solely on her review of the video. Ms. Wright advised that she did not personally interview any of the possible witnesses, including inmate W. She further advised that she did not rely on any of the Use of Force Occurrence Reports filed by the other COs pertaining to the incident. Ms. Wright explained that, for the most part, their reports did not reference the inmate contacting the door frame, as they were either not there at the time or did not actually see what occurred.

32Ms. Wright testified that she reviewed the video at least ten (10) times prior to the Allegation Meeting held on March 15, 2016. More specifically, she then viewed all four (4) camera angles at regular, slow and frame by frame speeds. Like the other witnesses, Ms. Wright also watched portions of the video at the hearing during the course of her evidence. Ultimately, she formed the opinion that the grievor physically directed inmate W’s upper body and head into the door frame of the second sally port door. Ms. Wright, in effect, concurred with the findings in the Correctional Services Oversight and Investigations Report on this point.

33Ms. Wright observed that inmate W’s feet were “square under his shoulders” as he and the grievor were proceeding through the sally port. She noted that the inmate was walking upright and appeared to be moving directly through the area. It was her evidence that she then saw the grievor reach across her body and seemingly push inmate W’s upper body into the door frame. On Ms. Wright’s view of the video, inmate W’s torso and face “swerved” into the door frame and then ricocheted back off same. As noted above, she concluded that the inmate’s head hit the door frame. She expressed the opinion that the grievor intentionally directed the inmate into the door frame as, from her perspective, the grievor was “grimacing” when she engaged in that action. Ms. Wright rejected the notion that inmate W deliberately directed himself into the door frame.

34The salient points from the cross-examination of Ms. Wright are as follows:

i) Ms. Wright acknowledged that, in the past, inmates who were being escorted deliberately hit themselves against a wall, a door frame, or some other person to create the impression they were being hurt or mistreated during the process;

ii) Ms. Wright was aware that no injuries or marks to the inmate’s face or head were noted in the Accident Injury Report completed on the day of the incident;

iii) When confronted with Sergeant Stricko’s evidence that, despite watching the video numerous times, he was unable to say that he observed inmate W’s head hit the door frame, Ms. Wright simply responded that she had a different and inconsistent perception of the incident. She reiterated that she thought she saw the inmate’s head hit the door frame; and

iv) Ms. Wright agreed that the allegation of excessive use of force on the part of the grievor would not be proven if this Arbitrator determined there was insufficient evidence to show that inmate W’s head contacted the door frame.

35Ms. Wright agreed with the finding set out in the Correctional Services Oversight and Investigations Report that the grievor failed to document in her Use of Force Occurrence Report of January 13, 2015 that she physically directed inmate W into the Unit 4 Right sally port door frame. She testified that this fact should have been reported, as it was something unusual that occurred during the course of a use of force incident. In cross-examination, Ms. Wright agreed that there would be nothing “nefarious” about this failure to report, assuming the grievor did not think or realize the inmate came into contact with the door frame. Ms. Wright testified that if the aforementioned assumption was accurate, she would not have expected the grievor to report any contact.

36The grievor testified that she first saw the video during her interview with the Correctional Services Oversight and Investigations Inspector on June 16, 2015. It was her evidence that she was then shown the view from inside the Day Room, and that from that angle she did not see inmate W come into contact with the door frame. The grievor stated that, as a consequence, she had no recall as of the date of the interview of the inmate hitting, or coming into contact with, the door frame. The grievor advised that she subsequently viewed the video taken by the hallway camera during the Allegation Meeting on March 15, 2016. That camera captured the escort through the sally port and into Unit 5. It also focused attention on the door frame in issue. The grievor maintained that it was at this juncture that she first became aware of the fact the inmate’s body had come into contact with the door frame. She stated that she was “surprised” by this revelation, as she had not observed such contact on the day of the incident. After reviewing the video taken by the hallway camera, the grievor acknowledged at the Allegation Meeting that inmate W had indeed come into contact with the door frame. She testified, however, that she did not see his head hit the door frame despite watching the video numerous times.

37As noted, the grievor’s Use of Force Occurrence Report documented that she “pushed inmate W to walk out of the unit …..” It was her evidence that this push occurred when she had a grasp on the inmate and was to his left in the Day Room. She stated that the push was intended to get the inmate to start walking. The grievor advised that she was unable to see the push when viewing the video. She insisted, however, that she did not push inmate W towards the door frame of the second sally port door.

38On Tuesday, January 27, 2015, the grievor was assigned to work in the Control Module. While there, she received a telephone call from Sergeant Stricko asking whether she had completed a Use of Force Occurrence Report concerning another incident which occurred on Saturday, January 24^th. Sergeant Stricko had previously asked the grievor to submit this Report by an email of Monday, January 26^th. In the aforementioned communication, he requested that the Report be completed before the end of her shift that day. The grievor informed Sergeant Stricko that she had not been provided with any relief on that day. During the same telephone discussion, Sergeant Stricko asked the grievor to provide a Use of Force Addendum Report concerning the incident of January 13, 2015 involving inmate W. Sergeant Stricko had earlier made this request by email. It appears that the grievor had not received the email as of the time of her telephone call with the Sergeant and asked for a copy of same. The grievor explained that she did not have access to a computer when working in the Control Module. At this juncture, the grievor asked Sergeant Stricko for relief so that she could complete both of the Reports requested. She testified that Sergeant Stricko then told her he would send another CO to relieve her. It was the grievor’s evidence that no relief was provided to her on January 27^th and that, given the lack of access to a computer, she was unable to complete either Report. She added that COs were not permitted to leave the Control Module on their own initiative and that the nature and volume of her duties, while there, did not leave her with the time or opportunity for preparing the Reports in handwritten form.

39The grievor testified that her shift on Wednesday, January 28, 2015 was extremely busy and that, as a consequence, she did not have the requisite time to complete the Use of Force Addendum Report. The grievor acknowledged that she did not stay on after the end of her shifts on January 27^th and January 28^th to prepare this Report. She explained that, due to a medical condition, she was getting a ride to and from work and, for that reason, was unable to delay her departure from the institution.

40On Thursday, January 29, 2015, the grievor was assigned to the Male Segregation Unit. During her lunch and dinner breaks, she was able to prepare the Use of Force Occurrence Report relating to the incident of January 24^th. The grievor advised that she elected to complete this Report first, as it was the one Sergeant Stricko first requested. She was under the impression that he wanted the Reports completed in the order they were requested. The grievor acknowledged that Sergeant Stricko did not specifically tell her that.

41It was the gist of the grievor’s evidence that she did not have sufficient time during the course of her shift on January 29^th to also complete the Use of Force Addendum Report. In this regard, the grievor testified that CO Blakely came to inform her that he was supposed to provide her with relief. She stated, however, that he told her he could not do so as his Unit was on lockdown and he had to return to it. The grievor maintained that she telephoned Sergeant Stricko to alert him to this development. It was her recollection that he then told her he would send someone else to relieve her as soon as he could, so that she could complete the Use of Force Addendum Report. The grievor asserted that she was not, in fact, provided with the promised relief on January 29^th.

42The grievor testified that she spoke to Operational Manager (OM) Steve Brydges at the end of her shift on January 29^th and informed him about her inability to complete the Use of Force Addendum Report. She then gave him the completed Use of Force Occurrence Report in respect of the January 24^th incident and told him that she would complete the Addendum on her next shift in, which was scheduled to be Saturday, January 31^st. The grievor stated that OM Brydges advised her that it would be okay to do so. She noted that he was then in charge of the institution at that point in the day and that he had the necessary authority to approve the completion of the document on her next shift in. OM Brydges was not called as a witness to address the alleged exchange between he and the grievor.

43On Friday, January 30^th, while off on a vacation day, the grievor was called at home by the Deputy Superintendent and informed that she was suspended pending investigation. She was further instructed not to come into the institution. Given the subsequent developments in the case, the grievor never worked another shift at the EMDC. The grievor testified that, while she was on suspension, management never contacted her to request completion of the Use of Force Addendum Report.

44The grievor agreed that she was obligated to provide the Use of Force Addendum Report requested by Sergeant Stricko. It was her evidence, however, that she was unable to do so as she did not have the necessary time to prepare it in view of the Employer’s failure to provide relief. The grievor asserted that COs have a right to such relief, if they ask for same for purposes of writing an Occurrence Report. She referenced a “twelve (12) point plan” which had been implemented at EMDC around September, 2012, following a discussion with Local Management about a number of workplace issues, including the provision of relief. At the time, the grievor was the Local President. It was her evidence that, in this capacity, she attended a meeting with the Minister of Community Safety and Correctional Services to discuss the issues of concern. I note that the twelve (12) point plan contains the following provision:

“8. Occurrence Reports: ensure correctional officers write and submit Occurrence Reports; if necessary, provide relief to correctional officers from their posts to write these reports.”

The grievor claimed that the practice at the EMDC was that COs were allowed time to complete Occurrence Reports through the provision of relief. She acknowledged that, at times, the relief would not be provided immediately after an incident. The grievor explained that if the institution was operating at less than full complement, the relief could occur “after the fact”.

45The grievor also expressed the opinion that COs were entitled to access computers in order to complete Use of Force Occurrence Reports. She referenced the Employer’s response to the Ombudsman’s Draft Report on excessive use of force in Ontario’s correctional facilities. The response contains the following provision:

“8. Review the resources available to correctional staff and ensure that adequate technology and time is provided to allow for the thorough completion of reports relating to incidents of use of force.”

46On Monday, January 26, 2015, Sergeant Stricko asked the grievor to provide a Use of Force Occurrence Report with respect to the incident which occurred on January 24^th, this being the preceding Saturday. He agreed that the grievor was not given relief to write the Report.

47Sergeant Stricko testified that he did not know where the grievor was working on January 27, 2015. He agreed that he could not dispute she was, in fact, posted to the Control Module on that day. Additionally, he could not recall if he personally went to the Control Module on January 27^th to speak with the grievor. Sergeant Stricko further agreed that COs working in Control cannot access their emails, except during their break periods. He acknowledged that if his email of January 27^th was sent to the grievor while she was working in that area, she might not have seen it then given the aforementioned inability to access emails.

48Sergeant Stricko could not recall if the grievor asked him to provide relief on January 27^th so as to have the time to prepare her Use of Force Addendum Report. He advised that he did request relief for the grievor from the Shift I.C. and was told that she would do her best to provide it. Sergeant Stricko acknowledged that he did not follow up that day to determine if relief was actually made available. He subsequently learned that it was not, as the Shift I.C. was unable to free up another staff member for that purpose. Sergeant Stricko agreed that he did not give the grievor a copy of his email of January 27^th on that day.

49Sergeant Stricko was out of the institution on Wednesday, January 28, 2015. He had not made any prior arrangements for the grievor to have relief on that day. On his return to the institution on Thursday, January 29^th, he discovered that the Use of Force Addendum Report had still not been completed by the grievor. Sergeant Stricko stated that, as a consequence, he instructed another staff member to report to Segregation, where the grievor was assigned, to relieve her so that she could complete the Report. He did not recall the name of the staff who was directed to provide the relief. Sergeant Stricko acknowledged that he could not dispute it was CO Blakely who was sent for this purpose. It was his evidence that he was not advised that CO Blakely was unable to provide the relief because his Unit was on lockdown. He also did not recall receiving a telephone call from the grievor informing him of this and of CO Blakely’s need to return to his Unit. Rather, it was Sergeant Stricko’s understanding that CO Blakely was told by the grievor that she did not need his assistance. He indicated that the grievor was not subsequently provided with relief in view of her prior statement that it was not required. CO Blakely did not present evidence in this proceeding.

50Sergeant Stricko believed that he had a short telephone conversation with the grievor at about the mid point of her shift on January 29^th. He recalled that the grievor then told him she would complete both of the requested Reports at a computer station in the Segregation Unit. It was his evidence that he reminded the grievor that the Reports were to be finished before she went home that day. While it is not entirely clear, it seems as if Sergeant Stricko then went to the Segregation Unit and provided the grievor with a copy of her original Occurrence Report with highlighted areas requiring clarification. Sergeant Stricko stated that the grievor took the Occurrence Report from him and said, “I’ll write it” in reference to the Use of Force Addendum Report.

51Sergeant Stricko advised that he was relieved by OM Brydges on January 29^th. He stated that, after he left the institution, this OM was responsible for obtaining the Use of Force Addendum Report from the grievor. Sergeant Stricko agreed that OM Brydges then had the authority to permit the grievor to leave the institution at the end of her shift and to complete the Report on her next shift. He added that OM Brydges similarly had the authority to say, “No, complete it now”. On the evidence, it is apparent that OM Brydges did not direct the grievor to complete the Use of Force Addendum Report before leaving for the day. Sergeant Stricko testified that, on learning of this development, it was his expectation that the Report would be provided on the grievor’s next shift. He was not then aware that the grievor had a scheduled vacation day for Friday, January 30^th and that she was actually suspended on that day. Sergeant Stricko subsequently learned that the grievor did not have a “next shift” after leaving work on January 29^th. In cross-examination, he agreed that she, therefore, did not have the opportunity to provide the Use of Force Addendum Report. Sergeant Stricko advised that he never got the Report requested. From his perspective, the grievor had failed to follow his direction.

52As mentioned above, an Allegation Meeting was held on March 15, 2016. Ms. Wright and Mr. Jim Allen, the Staff Services Manager, attended on behalf of the Employer. The grievor and Mr. Rain Loftus, her Union Representative, were present for the Union. At this meeting, the grievor was given the opportunity to respond to the findings set out in the Correctional Services Oversight and Investigations Report. Ms. Wright’s evidence as to the grievor’s responses may be summarized as follows:

i) The grievor initially stated that she did not recall inmate W’s body or head coming into contact with the steel door frame of the second sally port door. She explained that until that point in time, she had not been shown the camera angle from the hallway, which captured the inmate as he moved by the second sally port door. Ms. Wright noted that, after watching the video from all four (4) camera angles at both slow and regular speed, the grievor agreed that inmate W made contact with the door frame. The grievor did not believe, however, that his head hit the door frame. She asserted that there would have been observable injuries if inmate W’s head had made such contact as the result of an excessive use of force. The grievor denied that she used excessive force during the course of the escort through the sally port area;

ii) As the grievor did not initially recall inmate W coming into contact with the door frame, she did not include it in her Use of Force Occurrence Report of January 13, 2015; and

iii) The grievor provided the reasons for why she did not complete the Use of Force Addendum Report requested by Sergeant Stricko. These reasons included the following: the lack of a computer in the Control Module; the failure to obtain relief while working that assignment; and that the CO sent to provide relief, while she was posted to the Segregation Unit, immediately left to return to his Unit because of a lockdown situation.

53Based on her review of the video, the Correctional Services Oversight and Investigations Report, the Local Investigation Report and the grievor’s responses at the Allegation Meeting, Ms. Wright determined that the grievor had used excessive force on January 13, 2015. In her judgment, no force was required or necessary as inmate W was secured, compliant and under control as the escort proceeded from the Day Room of Unit 4 Right and through the sally port area. Ms. Wright stressed that, during this movement, the inmate’s hands were cuffed behind his back. She described the grievor’s behavior as unprofessional and inappropriate in the circumstances. Ms. Wright suggested that the grievor’s actions amounted to retaliation against inmate W for his prior assault on CO Masse.

54Ms. Wright concluded that the grievor’s actions, and specifically the directing of inmate W’s head into the steel door frame, amounted to a violation of the following: Institutional Services Policy and Procedures Manual (ISPPM) – General Information for Institutional Employees; ISPPM – Staff Conduct and Discipline; ISPPM – Statement of Ethical Principles; ISPPM – Use of Force; and the Ontario Correctional Services Code of Conduct and Professionalism Policy,

55The ISPPM – Use of Force contains the following provisions:

“3.1.4 No employee shall use force against an inmate unless force is required in order to enforce discipline and maintain order within the institution; defend the employee or another employee or inmate from assault; control a rebellious or disturbed inmate; or conduct a search (see Searches) R.R.O. 1990, Reg. 778, s. 7 (1).

3.1.5 Force must always be the action of last resort. The amount of force used must only be that amount needed to control a situation. When there is a decision to use force, it must be used in compliance with the law, good judgment, and Ministry policy, procedures and training.

3.1.6 When an employee uses force against an inmate, the amount of force used shall be reasonable and not excessive, having regard to the nature of the threat posed by the inmate and all other circumstances of the case R.R.O. 1990, Reg. 778, s. 7(2).

3.1.7 Force is not intended to be, and must never be used as a means of punishment.

3.1.9 Excessive Use of Force will not be tolerated. Employees found to have applied force in excess of approved methods may be subject to criminal charges and/or appropriate disciplinary penalties, up to and including dismissal.”

56Ms. Wright testified that the grievor was obligated to report the incident at the sally port door, including the fact that force was used at the time. On her reading, the grievor’s Use of Force Occurrence Report of January 13, 2015 lacked relevant, accurate and precise information. Ms. Wright noted that such Reports are legal documents which must provide a true account of events. She observed that a failure in this regard has the real potential to “place the Employer in a bad light” and in a challenging position. Ms. Wright concluded that the grievor’s failure to properly document the events of January 13^th constituted a violation of ISPPM – Report Writing, the material provisions of which read:

“4.13 Use of Force Occurrence Report: Information report used to document a detailed description of the events related to a Use of Force incident containing information on what the employee observed, what actions were taken, what others were doing and who was present during the incident; answering the questions who, what, where, when, why and how. Use of Force (UoF) Occurrence Reports must be completed (by the end of the current shift; the only exception will be with the approval of the superintendent or designate) by staff involved in, or witness to a Use of Force incident. The report must include the following:

4.13.1 an account of the events leading to the Use of Force, being specific regarding inmate(s) behaviour and with any action either taken or attempted to resolve the situation by the writer and others involved in the incident;

4.13.2 an accurate and precise description of the incident including the reasons for employing force and of the techniques used. The description should also be specific regarding inmate(s) behaviour and with any action either taken or attempted to resolve the situation by the writer and others involved in the incident;

5.7 Employees are required to prepare professional, accurate and complete reports.

5.8 Employees are required to complete all reports prior to leaving duty; the only exception will be with the approval of the superintendent or designate.”

57Ms. Wright considered that the reasons advanced by the grievor for not providing the Use of Force Addendum Report were “not persuasive” and amounted to “excuses”. She testified that COs have a duty to complete requested Reports by the end of their shift. Ms. Wright stated that they are expected to do so during down time on their Unit or at the end of shift before leaving for home. She added that if a CO is unable to stay on for this purpose, they should bring such inability to their Manager’s attention. Ms. Wright further maintained that COs should handwrite Reports if a computer is not available. She advised that she was not aware that there was no computer in the Control Module at the time material to this case.

58Subsequent to the Allegation Meeting, Sergeant Stricko advised Ms. Wright that OM Brydges permitted the grievor to leave the institution on January 29, 2015 without first completing the Use of Force Addendum Report. She agreed, in cross-examination, that OM Brydges had the authority to allow the grievor to complete it during her next shift. Ms. Wright was also aware that the grievor, in fact, never had another shift at the EMDC. She acknowledged that the above information did not impact her ultimate decision to terminate the grievor’s employment. Ms. Wright agreed that the grievor would not have been allowed to return to the institution following her suspension without the approval of the Superintendent. She did not have any direct knowledge as to whether her predecessor directed the grievor to come back to the institution to complete the Use of Force Addendum Report.

59Ms. Wright was not aware of the practice at the EMDC, at the time of the incident, to provide COs with relief to enable them to complete Use of Force Occurrence Reports and any supplementary Addendums. She agreed that Sergeant Stricko’s efforts to provide relief, while the grievor was working in both the Control Module and the Segregation Unit, were consistent with such a practice.

60In the final analysis, Ms. Wright considered it material that the grievor never completed the Use of Force Addendum Report despite Sergeant Stricko’s several requests that she do so. In her view, the grievor’s refusal of a direct order amounted to insubordination.

61Ms. Wright felt that the grievor did not display any remorse at the Allegation Meeting. She was left with the impression that the grievor believed she had done nothing wrong and had failed to assume any responsibility for her actions. All of this led Ms. Wright to think that similar misconduct would likely continue going forward. She, ultimately, concluded that termination of employment was the appropriate disciplinary response. Ms. Wright acknowledged that there was no discipline on the grievor’s record as of the date of her decision. The termination letter of April 5, 2015, signed by Ms. Wright, reads in part:

“…………………………………………………………………………………….…..I have taken into consideration all of the circumstances surrounding the substantiated allegations including, but not limited to, the seriousness of the above-noted offences, the lack of acceptance of responsibility and remorse, the employer’s business interests and the mitigating factors you presented. I have also conducted a comprehensive review of all relevant factors, including your employment history and length of service, and all relevant documentation, including your personnel file.

The Ministry takes its responsibility of providing and protecting inmates with a safe, healthy and a responsive environment seriously and therefore your misconduct is a significant concern to the Ministry.

With due consideration to the aforementioned and given the very serious nature of your actions, you are hereby dismissed from employment pursuant to section 34 of the Public Service of Ontario Act, 2006 effective immediately. Please be advised that you have the right to grieve your dismissal pursuant to Article 22.8.2 of the OPSEU collective agreement.

62Counsel for the Employer, in closing argument, reviewed the content of the video in some detail. In her view, it clearly showed that inmate W’s head and upper body came into contact with the sally port door frame. She noted that both Mr. Ireland and Ms. Wright reached the same conclusion from their review of the video. Counsel submitted that both of these witnesses expressed the “correct interpretation” of what was captured by the cameras. In her words, the video disclosed that inmate W’s head was “dragged across the door frame”. She considered it material that immediately thereafter, the inmate moved to the ground “as though he was immobilized by the blow”.

63Counsel next argued it was clear from the video that the grievor caused the contact in issue. More specifically, she asserted that the grievor physically directed inmate W’s head and upper body into the steel door frame. Counsel referenced the evidence of Mr. Ireland and Ms. Wright in support of this submission. On her analysis, the inmate’s change of direction, immediately prior to the contact with the door frame, was caused by a deliberate push on the part of the grievor. Counsel submitted that I should reject the alternate explanations advanced by the Union for the following reasons: no explanation was offered as to why inmate W would direct himself into the door frame; the video did not capture any erratic or sudden movement by the inmate consistent with a slip; and any push by CO Masse occurred well before the inmate’s head and torso hit the door frame. Counsel asked that I further reject the grievor’s evidence that inmate W was struggling during the escort out of the Day Room and through the sally port. From her review of the video, it did not show that any struggle occurred. To the contrary, it appeared that inmate W was, in fact, compliant when he was handed off to the grievor by CO Masse.

64Counsel submitted that the grievor’s act of physically directing inmate’s W’s head and upper body into the sally port door frame amounted to an excessive use of force in the circumstances of this case. She offered the following reasons in support of this submission:

i) The inmate was compliant, and the grievor had control of him, when the escort began. From her perspective, the only force that the grievor needed to employ was hands on the inmate for purposes of directing him where to go;

ii) If inmate W was not compliant, the grievor could have stopped or slowed down the movement from the Day Room through the sally port in order to assess and diffuse the situation or to give any necessary verbal direction. Counsel stressed that the grievor did none of the above. Instead, she continued the escort at a fast pace and “recklessly ploughed through the sally port without stopping to see how the escort should be done”; and

iii) No control purpose was served by directing inmate W into the door frame.

65Counsel maintained that even if the grievor had no intent to cause harm, she still used force to shove inmate W through the sally port. She stressed that such force led to him “bouncing off” the door frame. Put another way, while the grievor may not have intended to direct inmate W into the door frame, she did intend to shove him without regard to the potential consequences. Counsel reiterated that the grievor’s actions resulted in inmate W coming into contact with the steel door frame. On her analysis, this similarly constituted an excessive use of force.

66Counsel for the Employer noted that terminations are routinely upheld by the Grievance Settlement Board when there is a finding of excessive use of force on the part of a CO. She stated that this result reflects the fact that there is an inherent trust placed on COs to protect inmates and provide them with a safe and secure environment. Counsel observed that the use of excessive force fundamentally violates this trust and irreparably destroys the employment relationship. She acknowledged that termination need not be the automatic sanction in all cases. It was her submission, however, that a CO in the grievor’s position must show why termination should not be sustained where there is a finding of excessive use of force.

67Counsel argued that the mitigating factors identified in the applicable jurisprudence are not present in this instance. Her submissions on this point may be summarized as follows:

i) Inmate W was a vulnerable and defenceless inmate who, at the time of the incident, was in the grievor’s custody and control;

ii) The grievor’s actions were not the product of a momentary flare-up and were not responsive to some physical threat or provocation from inmate W;

iii) Excessive use of force is a serious employment offence despite the lack of any observable injury to the inmate. Counsel emphasized that the grievor’s use of excessive force was “completely gratuitous” and that there was no real reason for her to resort to the use of any force in the circumstances;

iv) Economic circumstances should not be a significant consideration given the fact that any termination results in negative economic consequences;

v) The grievor failed to acknowledge any responsibility for the incident and did not offer an apology during the investigation or at the hearing. Counsel noted that, instead, the grievor simply denied the allegation of excessive use of force;

vi) This Arbitrator must conclude that the grievor was dishonest at arbitration, if I determine that she used excessive force against inmate W. Counsel noted that honesty at arbitration is a factor to be considered in deciding whether to mitigate a termination of employment; and

vii) Counsel acknowledged that the grievor’s seniority and clear work record were factors in her favour. She stated, however, that a review of the relevant jurisprudence discloses that long seniority alone is not sufficient to mitigate against a termination given the seriousness of an excessive use of force. Counsel observed that such terminations have been upheld despite lengthy service and a clean disciplinary record.

68Counsel relied on the policies and procedures referenced by Ms. Wright. Additionally, she argued that the grievor’s use of excessive force against inmate W was a violation of Ontario Regulation 778 under the Ministry of Correctional Services Act, RSO 1990, c.M.22. The applicable subsections of the Regulation read:

“7(1) No employee shall use force against an inmate unless force is required in order to,

(a) enforce discipline and maintain order within the institution;

(b) defend the employee or another employee or inmate from assault;

(c) control a rebellious or disturbed inmate; or

(d) conduct a search.

(2) When an employee uses force against an inmate, the amount of force used shall be reasonable and not excessive having regard to the nature of the threat posed by the inmate and all other circumstances of the case”.

69Counsel for the Employer argued that the grievor failed to comply with the requirements of ISPPM-Report Writing. Her Memorandum of Law, filed in this proceeding, also referenced subsection 7(3) of Ontario Regulation 778 which reads:

“Where an employee uses force against an inmate, the employee shall file a written report with the Superintendent indicating the nature of the threat posed by the inmate and all other circumstances of the case.”

Counsel noted that the grievor’s Use of Force Occurrence Report of January 13, 2015 failed to document that inmate W’s head and upper body were forcefully directed into the sally port door frame. It was her submission that the grievor was obligated, by both policy and legislation, to provide a professional, accurate and complete report of the incident prior to leaving the institution on January 13^th. Counsel asked me to reject the grievor’s assertion that she was simply not aware that the inmate came into contact with the door frame and, as a consequence, did not document it. On her view of the video, this claim was not credible. Counsel stressed that it was obvious from the video that “something significant” occurred and that, in the circumstances, the grievor must have been aware of the contact. She suggested that the fact the grievor may have been moving quickly as the escort proceeded through the sally port did not constitute a “sufficient explanation” for why she did not notice the contact. Counsel also referred to Ms. Wright’s evidence as to how a CO’s failure to provide a true account of a use of force incident could negatively impact the Employer. She further observed that such a failure could contribute to the continuation of the Code of Silence and possibly encourage more institutional misconduct.

70Counsel considered it material that the grievor, during the course of her evidence, acknowledged she was obligated to provide the Use of Force Addendum Report requested by Sergeant Stricko. She referenced the several reasons advanced by the grievor to explain why the document was never provided. It was her submission that these reasons were simply “excuses” and “technicalities”, and that the grievor, in effect, attempted to transfer blame to the Employer for her failure to complete the Addendum. Counsel noted that the grievor could have complied with the request by doing any of the following: prepared the Addendum in handwritten form; stayed on after the end of her shift to complete it; or submitted the document subsequent to her suspension. Counsel suggested that the grievor did not resort to any of these options, as she was trying “to avoid telling the whole story about the excessive use of force”.

71Counsel argued that the grounds for discipline, as set out in the letter of termination dated April 5, 2016, were established by the evidence presented in this case. She noted that the grievor’s failure to display any remorse, or to assume any responsibility for her actions, led Ms. Wright to think that similar misconduct might be repeated going forward. Counsel, additionally, observed that Ms. Wright took into account the grievor’s seniority and her clear disciplinary record. For these reasons, this Arbitrator was asked to find that there was just cause for discipline and that the penalty of termination was the appropriate response. Counsel submitted that no reason exists to substitute a lesser penalty for the discharge. She expressed the opinion that such a result would provide COs with “a licence to commit violence against vulnerable inmates in the care of the Ministry of Community Safety and Correctional Services”. In the alternative, counsel asked for an award of damages in lieu of reinstatement were I to find that the grievor used excessive force against inmate W, but that the penalty of termination was too severe. She referenced subsection 7(4) of the Crown Employees Collective Bargaining Act, 1993, SO 1993, c.38 which would preclude this Board from reinstating the grievor to her former position as a CO if there was a finding she, in fact, used excessive force. In the further alternative, counsel argued that a substantial disciplinary sanction should be imposed for the grievor’s failure to provide the Use of Force Addendum Report, even if I were to determine that she did not apply excessive force in this instance. She described this failure as a significant breach of policy for which no adequate explanation was offered. Counsel submitted that in this scenario any reinstatement should be without compensation, benefits and the accumulation of seniority.

72The following authorities were relied on in support of the Employer’s position: Re Government of Province of British Columbia and British Columbia Government Employees Union (Correctional Services Component) (1987), 1987 CanLII 8881 (BC LA), 27 L.A.C. (3d) 311 (Hope); OPSEU (Beltrano et al.) and Ministry of Community Safety and Correctional Services, GSB#2003-3597 (Petryshen); OPSEU (Zolnierczyk) and Ministry of Community Safety and Correctional Services, GSB#2005-0823 (Herlich); R. v. Feeney, 2008 ONCA 756, [2008] 238 C.C.C. (3d) 49 (Ont.C.A.); R.v. Nixon, [1991] B.C.J. No. 486 (B.C.C.A.); OPSEU (Horan) and Ministry of Public Safety and Security, GSB#0670-01 (Herlich); OPSEU (Collin) and Ministry of Community Safety and Correctional Services, GSB#2001-1578 (Harris); OPSEU (Gillis et al.) and Ministry of Community Safety and Correctional Services, GSB#2003-1520 (Abramsky); OPSEU (Lavallee) and Ministry of Community Safety and Correctional Services, GSB#2007-2778 et al. (Watters); OPSEU (Marshall et al.) and Ministry of Community Safety and Correctional Services, GSB#2012-1308 et al. (Abramsky); OPSEU (Esser) and Ministry of Community Safety and Correctional Services, GSB#2011-3658 et al. (Watters); OPSEU (Wild) and Ministry of Community Safety and Correctional Services, GSB#2011-2731 et al. (Harris); Natrel Inc. and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 462 (2005), 2005 CanLII 94253 (ON LA), 143 L.A.C. (4^th) 233 (Knopf); Better Beef Ltd. v. United Food and Commercial Workers International Union, Local 175 (Howard Grievance) (2006), 2006 CanLII 37587 (ON LA), 156 L.A.C. (4^th) 78 (Chauvin); Metro Ontario Inc. and CAW Local 414 (Ritchie Grievance) (2011), 207 L.A.C. (4^th) 419 (Hinnegan); Re Canada Post and Canadian Union of Postal Workers (Roziere Grievance), [1996] C.L.A.D. No. 120 (Chertkow); OPSEU (Khan) and Ministry of Community Safety and Correctional Services), GSB#2010-0606 (Briggs); Real Canadian Superstore, a Division of Fortinos Supermarkets Ltd. v. United Food and Commercial Workers Union, Local 175 (Giannecchini Grievance), [2008] O.L.A.A. No. 650 (Barrett); OPSEU (Adam) and Ministry of Community Safety and Correctional Services, GSB#2003-0892 et al. (Herlich); Lyne Simard v. Treasury Board (Solicitor General Canada-Correctional Service), [2003] C.P.S.S.R.B. No. 45 (Tessier).

73Counsel for the Union argued that the applicable standard of proof in a case of this nature is one requiring proof by clear and cogent evidence on the balance of probabilities. He noted that this standard has been previously utilized in many Decisions of the Grievance Settlement Board. Counsel stated that this is the appropriate test given the serious consequences which can flow from a finding that a CO used excessive force against an inmate. By virtue of subsection 7(4) of the Crown Employees Collective Bargaining Act, such a CO cannot be reinstated to a position where they are responsible for the care, custody and control of inmates, even if their use of excessive force did not warrant the sanction of termination. Counsel observed that a finding of excessive force essentially puts an end to a CO’s career in Corrections.

74Counsel referenced the language contained in the letter of termination with respect to this ground. The finding is described therein as follows:

“You used excessive force when you physically directed inmate W’s head into the Unit #4R sally port door frame.”

On counsel’s reading, the words “physically directed” contemplated a deliberate action on the part of the grievor. He submitted that to find the grievor engaged in the behavior alleged, the Employer must establish two (2) things: first, that the grievor intended to direct inmate W into the sally port door frame; and, second, that she directed the inmate’s head into the door frame. Counsel argued that there is no clear and convincing evidence on either point. He asserted that it is incumbent on the Employer to prove the grounds relied on in support of the termination.

75Counsel stressed that none of the four (4) witnesses called on behalf of the Employer could say that they actually saw the grievor physically direct inmate W’s head into the door frame. Rather, their views as to what transpired during the incident were formed by what they saw on the videotape.

76Counsel first addressed the evidence of Sergeant Stricko and noted as follows:

i) Sergeant Stricko reviewed the video at least twenty (20) times before the hearing at various speeds and later saw it again a number of times while presenting his evidence. Counsel emphasized that, notwithstanding these many viewings, Sergeant Stricko was still unable to tell whether inmate W’s head hit the door frame; and

ii) Sergeant Stricko’s evidence on this point was consistent with that presented by the grievor, as she did not initially think there was any contact between the inmate and the door frame. Counsel noted that the grievor subsequently acknowledged that there was such contact, after being shown the video captured by the hallway cameras at the Allegation Meeting. She continued to insist, however, that she did not see inmate W’s head hit the door frame. Counsel considered it material that neither Sergeant Stricko nor the grievor could see on the video that the inmate’s head came in contact with the door frame.

77Counsel next turned to the evidence of Mr. Ireland. He noted that at the end of his cross-examination, Mr. Ireland was asked whether he could say with any degree of certainty that inmate W hit his face on the door frame. As stated earlier, his response was: “It appears that he did, can’t say one hundred percent, only the inmate can say that”. Counsel submitted that this answer from Mr. Ireland “should be the end of it”, in view of the need for clear and convincing evidence.

78Counsel for the Union highlighted the following salient points from his assessment of the video:

i) Inmate W only had socks on, was not wearing shoes, and was moving along a slippery concrete surface at a quicker than normal pace during the escort. On his view, the video disclosed that the inmate was slipping as the escort proceeded through the sally port. Counsel observed that Mr. Ireland acknowledged the inmate’s feet were slipping at that time;

ii) The video did not show that the grievor pushed inmate W to get him out of the Day Room, as stated in her Use of Force Occurrence Report of January 13, 2015. Instead, it recorded that CO Masse pushed the inmate just before the grievor and the inmate started through the sally port;

iii) Counsel did not see any clear and convincing evidence of the grievor slamming or directing inmate W’s body or head into the door frame. He observed that there was no stoppage as the escort proceeded through the sally port; and

iv) The sally port door frame was made of solid steel. Counsel stated that there was no evidence of any mark, redness or injury to the inmate’s head resulting from the escort. He stated that commonsense would suggest there would be physical evidence of contact if inmate W’s head had actually been directed into the steel door frame.

79Counsel commented on the fact that CO Horodyski, CO Drouillard and OM Brandt were not called as witnesses for the Employer. He observed that they were all in close proximity to the grievor and inmate W at the material time. He further noted that OM Brandt told the grievor that her Use of Force Occurrence Report of January 13, 2015 was consistent with her own assessment of the incident. He also thought it significant that OM Brandt did not remove the grievor from the subsequent escort to Segregation. Counsel suggested that she should have done so, if what the Employer alleges actually occurred. It was the substance of his submission that these individuals could likely have shed light on what occurred during the escort through the sally port and into the hallway. Counsel argued that the failure to call them as witnesses was important given that the video is unclear and is subject to subjective interpretation. From his perspective, if called they could likely have assisted in resolving “a significant material fact in dispute”. Counsel advanced a similar argument with respect to the Employer’s decision not to call inmate W to testify. He maintained that without such evidence, there is no clear and convincing evidence to support a finding that the grievor used excessive force. Counsel asked that an adverse inference be drawn against the Employer as a consequence of its failure to call the above individuals as witnesses.

80Counsel agreed that the grievor did not document inmate W’s contact with the door frame in her Use of Force Occurrence Report of January 13, 2015. He stated that she did not then do so, as she had no actual knowledge at that time that the inmate came into contact with the door frame. Counsel reiterated that the grievor only acquired such knowledge after seeing the video from the hallway cameras at the Allegation Meeting. Counsel noted that she immediately acknowledged the fact there was contact after viewing the video from this angle. He further noted that the grievor did not observe any contact between the inmate’s head and the sally port door frame. It was counsel’s assessment that the video did not establish that the grievor was aware of any contact with the door frame as of the time of the incident. He argued, in effect, that the grievor could not be faulted for failing to report the contact, if she did not see it occur. In the final analysis, counsel maintained that she had legitimate reasons as to why the contact was not reported on January 13^th and that these reasons did not amount to an excuse, as alleged by the Employer.

81Counsel similarly acknowledged that the grievor did not provide the Use of Force Addendum Report requested by Sergeant Stricko on January 27, 2015. He submitted, however, that she had several valid reasons for not doing so, including the following:

i) On January 27^th, the grievor was working in the Control Module and did not have access to a computer, other than when on breaks. As a consequence, she did not receive Sergeant Stricko’s request for clarification about the earlier incident, and was not provided with a copy of her original Use of Force Occurrence Report of January 13^th. Additionally, the grievor was not given the relief promised by Sergeant Stricko. In short, counsel argued that the Use of Force Addendum Report was not completed on January 27^th as Sergeant Stricko did not do what he said he would;

ii) Sergeant Stricko was out of the EMDC on January 28^th;

iii) On January 29^th, while assigned to Segregation, the grievor did receive a copy of her original Use of Force Occurrence Report and Sergeant Stricko’s email request of January 27^th. She was unable, however, to find the time necessary to complete the Use of Force Addendum Report, as CO Blakely, who was supposed to provide her with relief, was unable to do so as his unit was on lockdown. On the Union’s view of the evidence, Sergeant Stricko was apprised of that development by way of a telephone call from the grievor. Counsel noted that while Sergeant Stricko did not recall this communication, he did not dispute that it may have occurred. No other relief was offered to the grievor on January 29^th;

iv) Counsel submitted that, on the evidence, there was a clear practice at the EMDC to provide relief to COs so that they would have a sufficient opportunity to prepare their Occurrence Reports;

v) It was reasonable for the grievor on January 29^th to first complete the Use of Force Occurrence Report concerning the earlier incident of January 24, 2015, as the request for same predated Sergeant Stricko’s direction of January 27^th. Counsel noted Sergeant Stricko’s agreement that such an approach made sense and was not unreasonable,

vi) The grievor spoke to OM Brydges at the end of her shift on January 29^th and informed him about her inability to complete the Use of Force Addendum Report. Counsel stressed that she then received his approval to complete it on her next shift at the institution. Sergeant Stricko and Ms. Wright both testified that OM Brydges had the requisite authority to grant the extension. Unfortunately, there was no next shift for the grievor in view of her suspension on the following day; and

vii) During the sixteen (16) month period the grievor was off on suspension, the Employer never directed her to provide the Use of Force Addendum Report.

82In summary, counsel submitted that the grievor was not “running away from writing the Addendum”. On his account, she provided a “complete explanation” as to why it was not written. Counsel argued that there was no basis for any discipline with respect to this allegation. He stated that it would be unjust to impose discipline when the grievor received approval from a person in authority to provide the Use of Force Addendum Report on her next shift in.

83Counsel for the Union submitted that there was no cause for discipline on any of the three (3) grounds relied on by the Employer. By way of remedy, he asked that the grievor be reinstated with full retroactivity, benefits and seniority. Counsel argued that this Arbitrator should not order payment of damages in lieu of reinstatement. On his analysis, the circumstances of the case do not justify resort to this form of “extraordinary remedy”.

84In the alternative, counsel asked for reinstatement, subject to a period of suspension, if I was to find that the grievor used excessive force against inmate W. He referenced the following mitigating factors in support of this request:

i) There is no discipline on the grievor’s record;

ii) The grievor has not previously used excessive force over the course of her career;

iii) The grievor has seventeen (17) years of service;

iv) The events of January 13, 2015 amounted to an isolated incident in the grievor’s employment history;

v) The economic hardship arising from the application of subsection 7(4) of the Crown Employees Collective Bargaining Act; and

vi) While there was no apology, the grievor acknowledged at the Allegation Meeting that inmate W appeared to contact the door frame, although not with his head.

Counsel submitted that the reinstatement should be coupled with a recommendation that she be returned to a CO position, failing which she should be placed in a substantially equivalent role.

85In the final alternative, counsel acknowledged that some discipline would be merited if this Arbitrator determined that the grievor improperly failed to provide an accurate report of events in her Use of Force Occurrence Report and/or failed, without good reason, to complete the Use of Force Addendum Report.

86The Union provided the following authorities in support of its position: OPSEU (Beltrano et al.) and Ministry of Community Safety and Correctional Services, cited above; OPSEU (Gillis et al.) and Ministry of Community Safety and Correctional Services, cited above; OPSEU (Maude) and Ministry of Community Safety and Correctional Services, GSB#2014-3306 et al. (Petryshen); Murray v. City of Saskatoon, 1951 CanLII 202 (SK CA), [1952] 2 D.L.R. 499 (Sask. C.A.); Re Canada Post Corp. and Canadian Union of Postal Workers (Seymour) (1992), 1992 CanLII 14471 (CA LA), 25 L.A.C. (4^th) 137 (Shime); OPSEU (Marshall et al.) and Ministry of Community Safety and Correctional Services, (2013), 232 L.A.C. (4^th) 181 (Abramsky); OPSEU (Iyamu) and Ministry of Children and Youth Services (2015), 262 L.A.C. (4^th) 139 (Nairn); Re Tenant Hotline and Peters and Gittens (1983), 1983 CanLII 4854 (ON LA), 10 L.A.C. (3d) 130 (MacDowell); Re United Steelworkers of America, Local 3257 and the Steel Equipment Co. Ltd. (1964), 1964 CanLII 984 (ON LA), 14 L.A.C. 356 (Reville).

87The Employer’s reply argument included the following submissions:

i) The physical direction of inmate W’s head did not require the grievor’s hand to be on his head. If the inmate’s body was directed into the door frame, the head would follow given they are both connected. Simply put, counsel argued that if the grievor directed the inmate’s body, she was also directing his head. Counsel reiterated that physical direction of inmate W’s head into the door frame did not require intent in order to constitute an excessive use of force. She submitted that the grievor’s actions, intended or not, did direct inmate W into the sally port door frame;

ii) Counsel referenced the way in which the allegation of excessive use of force was worded in both the letter of March 7, 2016, setting out the allegations against the grievor, and the letter of termination of April 5, 2016. On counsel’s reading of the language used, the grievor was not prejudiced, in any sense, with respect to her ability to respond to the allegation. She asserted, in substance, that it would be wrong to “toss the allegation” simply because of the way it was articulated; and

iii) Counsel argued that the video, in and of itself, constituted clear and convincing evidence of an excessive use of force on the part of the grievor. From her perspective, the video clearly disclosed that inmate W’s head and torso hit the door frame. As a consequence, there was no requirement for others to testify about what occurred. Counsel, accordingly, argued that it would not be appropriate to draw any adverse inferences against the Employer with respect to its decision as to who to call as a witness. She further submitted that the video should not be disregarded completely simply because of Mr. Ireland’s concession in cross-examination.

88The stipulated facts with respect to the second grievance of October 3, 2016 are as follows:

“1. According to Article 46.1, the Grievor was entitled to 1 and 2/3 vacation credits per month (or 20 vacation credits per year) prior to her termination.

2. The Grievor had 20 unused vacation days earned in 2014 as of December 31, 2014.

3. Her vacation credit bank was credited with 20 vacation days as of Jan 1, 2015. She then had 40 vacation credits in her bank as of January 1, 2015.

4. She used 3 vacation days in 2015.

5. She was suspended with pay pending investigation as of January 30, 2015 and remained suspended until her termination on April 5, 2016.

6. At the end of 2015, she had 37 vacation credits remaining. Her credits were reduced to 20 as of December 31, 2015 pursuant to the Employer’s interpretation of Article 46.5 of the Collective Agreement. The Employer considers the 17 vacation credits that she had in excess of her one year entitlement of 20 vacation credits to be “forfeited” vacation credits.

7. As of January 1, 2016, she was credited with her annual entitlement of 20 days. She then had 40 vacation credits in her bank as of January 1, 2016.

8. The Grievor was terminated on April 5, 2016. Her vacation credits were therefore pro-rated for 2016 because she did not work the full year. From January 1, 2016 to April 5, 2016, she was entitled to 6.67 vacation credits.

9. She was paid out 26.67 vacation credits at termination. This was the sum of her 2015 vacation credits (20 credits) and her 2016 vacation credits (6.67 credits). It is the Employer’s position that forfeited vacation credits are not paid out at termination.”

89The relevant provisions of the collective agreement read:

ARTICLE 46 – VACATIONS AND VACATION CREDITS

46.1 Effective January 1, 1992, an employee shall earn vacation credits at the following rates:

b) One and two-thirds (1 2/3) days per month after eight (8) years of continuous service;

46.5 An employee may accumulate vacation to a maximum of twice his or her annual accrual but shall be required to reduce his or her accumulation to a maximum of one (1) year’s accrual by December 31 of each year.

90Counsel for the Union argued that the grievor had no opportunity to use the seventeen (17) vacation credits from 2014, as she was off on a paid suspension subsequent to January 30, 2015. He, therefore, asked for an order that they be paid out to her, irrespective of the disposition of the grievance of April 5, 2016. In the alternative, and in the event of a reinstatement, counsel asked that an order issue to the effect that the grievor not lose the days in issue by way of the Employer’s forfeiture.

91In response, counsel for the Employer observed that the collective agreement does not provide for any exceptions to the operation of article 46.5. More specifically, that article does not permit the grievor to carry over all of her vacation credits in the circumstances of this case. Counsel submitted that such entitlement would have to be achieved through bargaining between the parties. She further suggested that the grievor, in effect, suffered no loss, given that she was suspended with pay for almost all of 2015. Counsel asked that the grievance of October 3, 2016 be dismissed.

92A number of Decisions of the Grievance Settlement Board have held that the Employer is required to prove an alleged excessive use of force, on the part of a CO, on the balance of probabilities based on clear and cogent evidence: see Beltrano et al; Gillis et al.; Marshall et al. The need for this standard of proof is because of the serious consequences that flow from a finding that a CO has used excessive force against an inmate. As noted in the Employer’s Memorandum of Law, this Board has consistently upheld the discharge of COs who have engaged in the use of excessive force towards inmates under their care and control: see Horan; Collin; Gillis et al.; Lavallee; Marshall et al.; Esser; Wild. Additionally, such a finding, by virtue of subsection 7(4) of the Crown Employees Collective Bargaining Act, precludes a reinstatement to a position in which the CO would have care and control of, or direct responsibility for, inmates. I accept that it is entirely appropriate to require the aforementioned standard of proof in this case.

93As mentioned, the grievor and CO Masse were the only persons called to testify who had direct involvement in the incident of January 13, 2015. On the evidence, CO Masse did not observe what occurred after he handed off inmate W to the grievor. More specifically, he did not see the inmate come into contact with the door frame of the second sally port door. The evidence of Sergeant Stricko, Mr. Ireland and Ms. Wright was based on their review of the video. This Arbitrator watched the video numerous times as the witnesses presented their evidence. I have also viewed the video a substantial number of times, from all angles and at various speeds, following the conclusion of the hearing. I note as follows on the basis of this review:

i) Inmate W did not offer any material resistance after CO Masse took him to the floor and applied the handcuffs. I share Mr. Ireland’s assessment that the inmate was then largely compliant and did not pose any immediate threat to correctional staff. In this regard, CO Masse in his Use of Force Occurrence Report of January 13, 2015 stated that inmate W was under control once he was handcuffed. The video evidence does not support the grievor’s claim that the inmate was struggling from the time he was first lifted to his feet in the Day Room;

ii) The video disclosed that CO Masse pushed inmate W as they were both close to the open grill door. It appears that he may have done so in an effort to direct the inmate out of the Day Room and into the sally port area. I am satisfied that this push did not cause, or contribute to, inmate W’s subsequent contact with the door frame. To be clear, the push by CO Masse occurred well before the contact and was delivered at a spot that was several feet away from the door in question;

iii) From a review of the video, it seems possible that the grievor also pushed inmate W from the rear while she was behind him and to his left in the Day Room. It is difficult to make a conclusive determination on this point, as the view of the grievor is blocked by CO Masse. In any event, I consider it unlikely that this push, if it occurred, was the force which caused inmate W to come into contact with the door frame;

iv) Inmate W seemed to be leaning towards his left as the escort moved from the Day Room and proceeded through the sally port. During this movement, his head was in close proximity to the open grill door. It does not appear that inmate W engaged in active resistance as he and the grievor progressed through the sally port. He was not then struggling with the grievor and looked to be under her control. It is possible that inmate W was offering some passive resistance at the time, in the sense he was not actively assisting with the movement. It is impossible to discern, given the lack of an audio component to the video, whether the grievor gave any verbal directions to the inmate during this part of the escort. I do recognize that, from all accounts, he was aggressive and threatening towards staff during the subsequent escort from the outer hallway to Segregation;

v) I am unable to determine from the video produced by the Day Room camera whether inmate W’s body and/or head collided with the door frame of the second sally port door. This inability stems, in part, from the fact that the line of vision is blocked by the corner frame of the grill door. Without doubt, the video taken by the camera located in the outer hallway is more helpful in resolving what actually took place on January 13, 2015. It shows that the grievor moved to the right side of inmate W, and turned towards the door frame, as they approached the second sally port door. I am satisfied, from many reviews of this video angle, that the grievor then pushed or directed inmate W into the door frame and that his head and facial area came into direct contact with same as a consequence. Use of the zoom feature on the video clearly establishes that this contact occurred. Ultimately, I find that Mr. Ireland’s and Ms. Wright’s analysis of what transpired is to be preferred over the grievor’s account of events;

vi) The video taken by the hallway camera does not support the suggestion that inmate W elected to throw his body against the door frame or that the contact resulted from his slipping on the floor. Rather, the impetus for the contact with the door frame clearly came from a push by the grievor. In my judgment, the push represented a deliberate and intentional act on the part of the grievor; and

vii) From a review of the video, I conclude that the grievor had to have seen inmate W’s body and head hit the door frame. She was in very close proximity to him at the point of contact and, essentially, was looking right at him. It is also a fair conclusion that OM Brandt, CO Drouillard and CO Horodyski would likely have had a clear view of the grievor’s actions and the resultant contact between inmate W and the door frame given their positions in the hallway.

94Sergeant Stricko expressed the opinion, based on his reviews of the video, that it seemed as if inmate W’s body had come into contact with the door frame. He was uncertain, however, if the inmate’s head hit the door frame, despite watching the video from several angles and at various speeds. Having considered all of the evidence at length, and having watched the video many times, I find that Mr. Ireland’s and Ms. Wright’s assessment of what occurred is to be preferred. I recognize that Mr. Ireland acknowledged in cross-examination that he could not say with one hundred percent (100%) certainty that inmate W hit his face on the door frame, and that only the inmate could say for sure. One hundred percent (100%) certainty is obviously not the standard for assessing the evidence presented in this case. From my review of the video, I am satisfied that there is clear and cogent evidence to support the Employer’s allegation that this grievor pushed or directed inmate W into the door frame causing his body and head area to come into contact with same. I reject the grievor’s evidence to the contrary.

95While it might have been helpful to hear from OM Brandt, CO Drouillard and CO Horodyski as to their observations, this is not a case where an adverse inference should be drawn against the Employer for its decision not to call them as witnesses. This is also applicable vis a vis inmate W. In the final analysis, their involvement was not necessary in view of the clear and cogent evidence captured by the video.

96I accept Mr. Ireland’s opinion that the grievor used excessive force when she pushed inmate W into the door frame of the second sally port door causing his head to come into contact with it. To reiterate, Mr. Ireland testified to the following effect: inmate W was in restraints and was compliant when the grievor arrived in the Day Room; the situation was then under control and the inmate did not pose any immediate threat; at that juncture, the need was to simply remove inmate W from the unit; and inmate W was not struggling or resisting as the escort proceeded though the sally port. His evidence on these points is confirmed by the video. As a consequence, I find that Mr. Ireland correctly determined that the only force required to escort inmate W through the sally port was hands-on control, coupled with a firm direction to proceed to the ultimate destination. I agree with his assessment that pushing inmate W into the steel door frame was inappropriate, unnecessary, unreasonable, unprofessional and disproportionate. The force used was well beyond that needed to control the situation. The possibility exists that the grievor elected to do what she did as a form of retaliation, or a means of punishment, given inmate W’s earlier assault on CO Masse. It is unnecessary for purposes of this case to make a definitive finding about her motive. The grievor’s actions were clearly contrary to the training received; the ISPPM-Use of Force, subsections 3.1.4, 3.1.5, 3.1.6 and 3.1.7; and Ontario Regulation 778, subsections 7(1) and 7(2). I note that an affirmative conclusion about the use of excessive force can be reached even in the absence of any observable or reported injury: see Lavallee and Horan.

97The seriousness of the use of excessive force is addressed in the following passages of the Esser Decision:

“[422] The use of excessive force against an inmate constitutes a serious breach of trust. It breaches a CO’s obligation to provide care and control of inmates in a safe and professional manner; brings the administration of justice into disrepute; damages the reputation of the Ministry; and subjects it to the possibility of financial liability. In my judgment the force used by CO Esser on August 31, 2011, at both locations, was fundamentally contrary to his obligations as a CO and served to irreparably compromise the employment relationship.

423The authorities relied on by the Employer speak to the breach of trust which occurs when a CO uses excessive force against an inmate. The Vice-Chair in Beltrano et al commented as follows on this point:

“The key factors in assessing the appropriateness of the penalty in this case are the seriousness of the offence and the false denial of the grievors about committing the offence. 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 ………………………………………”

(page 93)

The arbitrator in Re British Columbia Government Employees addressed the breach of trust issue from a somewhat different vantage point. He there observed:

“If a corrections officer abuses the right to use force, the likelihood is that any complaint would founder in a case where it was a corrections officer’s word against the word of an inmate. That reality gives rise to the second area of vulnerability, being the vulnerability of an inmate’s credibility. One can anticipate that where an allegation of assault comes down to the difference between the word of a corrections officer and the word of an inmate, the word of the corrections officer will carry greater weight for a number of self-evident reasons.

The very fact of that vulnerability raises in a corrections officer a significant duty of trust. The employer is entitled to treat a breach of that trust as evidence that a corrections officer does not possess the attributes essential to the proper performance of what must be seen on the evidence as a potentially frustrating and provocative role where integrity and self-control are important, even vital, qualities.”

(paragraphs 68-69) "

98As previously stated, I think it more likely than not that the grievor saw inmate W’s body and head come into contact with the door frame. As a consequence, she had an obligation to report that material fact in her Use of Force Occurrence Report. Clearly, the grievor failed to do so. In my judgment, she was trying to hide her involvement in an excessive use of force incident and was, in effect, attempting to avoid it coming to light. I accept Ms. Wright’s evidence as to the importance of completing such reports in an accurate and comprehensive manner, and as to the potential risks the Employer could face from a CO’s failure to do so. Numerous Decisions of the Grievance Settlement Board have addressed the real need for COs to complete Occurrence Reports in a professional, accurate and complete fashion, including Wild; Maude; Esser; and Lavallee. The grievor’s failure to satisfy this standard was contrary to both applicable policy and legislation. More specifically, she did not comply with ISPPM-Report Writing and subsection 7(3) of Ontario Regulation 778. The grievor’s non-compliance merits a significant disciplinary response.

99On my reading, the facts of this case are distinguishable from Maude. In that instance, the Vice-Chair found that the CO did not see his colleague strike an inmate and, as a consequence, was not obligated to report it in his Occurrence Report. He further observed that the CO could not be disciplined for failing to report an excessive use of force that he did not see.

100I accept, on the evidence, that there was an understanding at the EMDC that COs would be provided with relief to enable them to complete Occurrence Reports. Clearly, Sergeant Stricko’s response to the grievor’s request for relief on both January 27 and January 29, 2015 was consistent with the existence of such a practice. On the former date, he asked the Shift I.C. to provide relief. On the latter date, he made arrangements for another CO to relieve the grievor so she could complete the Use of Force Addendum Report. I note that paragraph #8 of the twelve (12) point plan contemplates the provision of relief for this purpose.

101It is apparent that no relief was provided on January 27^th despite the grievor’s request for same. If it had been provided that day, the grievor could have accessed a computer at another location, or could have handwritten the Use of Force Addendum Report. Sergeant Stricko did not arrange for relief on January 28^th, the day he was away from the institution. Additionally, no reliable evidence was presented to challenge the grievor’s statement that CO Blakely was unable to provide relief on January 29^th due to a lockdown on his unit. CO Blakely was not called to dispute the aforementioned statement or to confirm that the grievor told him his assistance was not required. If relief had been given on any of these three (3) days, it is more likely than not that the Addendum would have been completed. Put another way, there would then have been no good reason for the grievor not to finish the report.

102The grievor testified that OM Brydges advised her at the end of shift on January 29^th that it would be permissible for her to complete the Use of Force Addendum Report on her next shift in, namely January 31^st. Sergeant Stricko and Ms. Wright both agreed that OM Brydges had the requisite authority to allow for this delay or, alternatively, to have required the completion of the document prior to the grievor leaving the EMDC on January 29^th. OM Brydges was not called as a witness to address his exchange with the grievor on this subject. In all of the circumstances, I accept that OM Brydges did inform the grievor that she could submit the Addendum Report on her next shift at the institution. I concur with the submission of Union counsel that it would be unjust to impose discipline with respect to this issue when the grievor received approval from a person in authority to defer the provision of the document until January 31^st. As stated, given the sequence of events, the grievor never did have a next shift at the EMDC. All of this amounts to a valid reason, and not an excuse, for the failure complained of. I note that following the grievor’s suspension on January 30, 2015, she was never directed by management to return to the institution to complete and file the Use of Force Addendum Report.

103For all of the above reasons, I have been persuaded that the grievor’s failure to provide the Use of Force Addendum Report, requested by Sergeant Stricko, does not constitute a ground for discipline.

104I am satisfied from the clear and cogent evidence captured on the videotape that the grievor used excessive force against inmate W on January 13, 2015. I have further determined that she more likely than not observed his body and head collide with the door frame, but failed to report same as required. I think it significant that the grievor did not assume any responsibility for her actions, or display any remorse, at the hearing in this matter. Instead, she provided explanations surrounding both the use of force and the failure to accurately report the incident, which I do not find to be credible. Had the grievor accepted responsibility for her actions and shown some remorse, the result in this case might have been different. I accept that the length of the grievor’s seniority and her clear disciplinary record are factors standing to her credit in the assessment of whether to substitute a lesser penalty. Ultimately, I have decided that these factors do not support the imposition of a reduced disciplinary sanction. Like Ms. Wright, I have not been persuaded that misconduct, of the nature which occurred here, will not be repeated in future. In summary, I find that the grievor’s excessive use of force and the failure to properly document the incident in her Use of Force Occurrence Report constituted just cause for the Employer to terminate her employment as a CO. In view of this finding, it is unnecessary to address the Union’s alternative submissions relating to remedy.

105On my reading, the Employer’s decision to “forfeit” the grievor’s fourteen (14) vacation credits from 2014 on December 31, 2015 is consistent with the wording and intent of article 46.5 of the collective agreement. Pursuant to the article, employees are “required to reduce his or her accumulation to a maximum of one (1) year’s accrual by December 31 of each year”. The provision on its face does not seem to contemplate any exceptions. I understand that the grievor could not use her remaining 2014 vacation credits by December 31, 2015, due to the fact she was off on suspension as of January 30, 2015. I consider it material, however, that the grievor did not suffer any pecuniary loss in 2015, given that her suspension was with pay. Ultimately, I am satisfied that the Employer’s approach to the calculation of the grievor’s entitlement with respect to vacation credits, as described in the stipulated facts, was compliant with article 46.5.

106For all of the above reasons, the grievances of April 5, 2015 and October 3, 2016 are dismissed.