GSB# 2015-2885

UNION# 2016-5112-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Brunet)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

March 6, 2019

DECISION

1This decision pursuant to article 22.16 of the collective agreement relates to a grievance dated December 22, 2015, filed by Ms. Rita Brunet, a correctional officer employed at the Toronto South Detention Centre. In essence, it alleges that the employer violated article 9 of the collective agreement and s,. 25(2)(h) of the Ontario Health & Safety Act, by not taking steps to prevent inmates setting a series of five fires on December 2, 2015, and also by failing to take steps to mitigate the spreading of the resulting smoke and to promptly put out the fires. The employer maintains that there was no violation of either provision.

2At the direction of the Board the grievance was argued on the basis of the documentary record. There is no dispute that five fires were set by inmates in the Special Handling Unit, (“SHU”) at 10:05 a.m., 10:20 a.m., 12:05 p.m., 12:36 p.m., and 1:58 p.m. on that day, and that the grievor, who was working in another area of the institution, responded to a Code Red that sounded for the 12:36 p.m. fire. It is also agreed that the grievor, among others, was transported to a hospital, treated and released. There can be no dispute that the grievor suffered an injury due to smoke inhalation, because her application for WSIA health and loss of time benefits was approved.

3The documentary evidence most relevant to this grievance consists of two investigation reports relating to the fires obtained by the employer. The first is “Local use of Force Investigation report” by the Risk Management Team, and the second a report by the Correctional Services Oversight Investigation Unit. These reports make substantially similar findings. Union counsel relied on numerous findings in these reports as evidence of management failures that caused or contributed to the fires, resulting in injury to the grievor. These findings include the following:

• In late November the employer received reports from staff that inmate behaviour in the SHU Area was becoming increasingly negative towards staff and the level of discontent was reaching an “alarming stage”, and that “the need to deal with the on-going issues is imperative. Failure to do so will have serious security implications”, and further that, “inmates would resort to more destructive means to gain attention …” from management,

• The investigation report concluded that “no attempts were made in response to reports … to deal with the concerns raised re inmate behaviours and concerns leading up to Dec. 2nd.”

• “All meal hatches remained in the open position during meal service which is in contravention to the institutional standing orders and led to the ability to throw objects into the dayroom.”

• “Staff and Sergeants were aware of large amounts of contraband being thrown into the dayroom and did nothing. The garbage was left in place and was used to create 5 fires.”

• ICIT had been spoken of yet never activated even though the tensions were high, there was no compliance and there was contraband in the cells.

• “No attempts were made to search the cells or remove the instigators throughout the fires or days leading up the fires. The inmates obviously had excessive amounts of contraband in their cells which allowed them to feed the fires.”

• “Issues with the air handling system allowed the smoke to travel throughout the A tower as well as the A&D area and main hallway. Several staff were attended to by EMS and several required outside medical attention.”

• “Lack of direction to the staff to clean up the debris and implement a plan to deal with the inmates during the numerous fires throughout the day.”

4Based on this evidence, union counsel submitted that the employer had failed to meet its obligation under article 9 and s. 25(2)(h) of OHSA.

5The employer submitted that the obligation under the collective agreement and OHSA is one that applies to the employer, the union, as well as employees. He submitted that while pointing out failures on the part of management, union counsel did not refer to failures on the part of employees. He pointed out that on December 2, 2015 one member of management (a sergeant) and three Correctional Officers (“CO”) were assigned to the SHU. The COs could, and should, have prevented the fires by closing the meal hatches, cleaning up the debris piles inmates had collected etc.; the same failures the union now puts the whole blame on the management. The COs had the obligation to act even in the absence of direction by management.

6Employer counsel agreed that in hindsight, the employer should have taken some of the steps they failed to take as found in the investigation reports. However, at the time it would not have been reasonably foreseeable to management that a series of five fires would be lit, that smoke would spread and that the grievor would be injured if those steps are not taken. Counsel urged the Board not to play, “Monday morning quarterback” in these circumstances.

7Counsel also asked the Board to find that, at most, the grievor would have been exposed to smoke from only two of the fires; the second fire when she reported to the SHU due to a Code Red alert and the last fire which was the biggest one, and the only one that resulted in smoke spreading to areas outside the SHU.

8This proceeding is not one where the Board is called upon to determine whether any employees violated their collective agreement or statutory obligations. Assuming that the employees also failed to comply with their obligations, that does not exonerate or excuse the employer. Management present observing unsafe conditions are under a duty to take the “reasonable precaution” of directing employees to take the necessary steps to deal with unsafe work conditions. This was not done.

9I also find that what occurred on December 2, 2015 was, or ought to have been, foreseeable to the employer. It had been forewarned that tension was high in the SHU, that “destructive” action by the inmates was possible; and that failure to deal with this situation “will have serious security implications”. Even though it may not have been specifically foreseeable in advance that the destructive conduct may come in the form of setting five fires, which would result in exposure of staff to smoke inhalation and injury, the employer should have been vigilant, and proactive as soon as first signs of problems were observed. After the first fires were set, it should been clearly foreseeable that the situation was deteriorating. Yet even after the first few fires were set, reasonable steps were not taken. It led to the largest fifth fire. It is simply not plausible that further fires were not reasonably foreseeable after the first, second or third fires. Had the employer taken appropriate action after the first, second or even the third fires, the fourth and fifth (largest) fires would not have taken place. These are the fires that caused the grievor’s injury.

10On the basis of the evidence before me, I conclude that the employer failed to take reasonable precautions for the safety of the grievor. The grievance of Ms. Brunet is upheld. The Board declares that the employer contravened article 9 of the collective agreement and s. 25(2)(h) of OHSA. The Board had previously ruled by decision dated March 4, 2019, that the grievor, and others, were not entitled to monetary damages or compensation, by reason of the application of the “Monk Principle”.