GSB# 2018-2490; 2018-2491; 2018-2492
UNION# 2018-0252-0018; 2018-0252-0019; 2018-0252-0020
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Valovich et al)
Union
- and -
The Crown in Right of Ontario (Ministry of the Solicitor General)
Employer
BEFORE
Randi H. Abramsky
Arbitrator
FOR THE UNION
Manprit Singh Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel
HEARING
September 8, 2020 (by videoconference)
DECISION
1The Union seeks, as a preliminary matter, to have the discipline imposed on the Grievors, all Correctional Officers, declared null and void because of the Employer’s delay in imposing it. The Employer opposes that motion.
Facts
2The parties proceeded by agreed facts in terms of the time-line of events, prepared without prejudice to the Employer’s position on the merits, and with the right to amend or add to the timeline if necessary. The documents referred to in the agreed facts will be referenced where relevant.
The incident leading to discipline occurred on November 16, 2016. The grievors’ ORs [Occurrence Reports] are attached.
The grievors received letters of commendation on November 18, 2016 based on the information provided by the sergeant present at the time (attached.).
3Each Grievor received the identical letter from Superintendent Kent Milligan. It states:
Re: You’re Actions on Wednesday, November 16, 2016
I would like to commend and acknowledge your efforts and actions when responding to the recent medical emergency involving inmate [AE]. Based on the accounts I have received, I will to recognize and thank you for ow you conducted yourself that morning. I am sure the event was difficult to go through and your efforts in carrying out your duties are greatly appreciated.
- A CSOI [Correctional Services Oversight and Investigations] investigation was requested on December 6, 2016. The investigation was requested not as a result of any knowledge on the part of the institution of any wrongdoing by the grievors at the time, but because a CSOI investigation is required in all cases involving the sudden death of inmates in custody.
4According to counsel for the Employer, whenever an inmate dies while in custody there is an automatic CSOI investigation and an inquest, and that this is well-known in Corrections.
The investigator was assigned on January 6, 2017 (attached).
At the time, there was a significant backlog of investigations at CSOI, specifically death investigations.
Eleven people were interviewed during the investigation. The investigator interviewed three (3) people on September 6, 2017, four (4) people on October 18, 2017, and four (4) people on November 8, 2017. Seventeen (17) hours of. Video footage was analyzed. The list of exhibits is included in the CSOI report. (Report attached).
The grievors received formal notice that an “administrative investigation” had “commenced into the circumstances surrounding the sudden death” of inmate AE on September 6, 2017 (although the letter is dated September 1st)(Devine); October 18, 2017 (Valovich) and October 31, 2017 (Curley). Devine was interviewed on September 6, 2017. Valovich was interviewed on October 23, 2017 and Curley was interviewed on November 8, 2017 (investigation letters attached).
5At the interviews, each Grievor was advised that this was an internal investigation into the circumstances surrounding the death of inmate AE and they were not the “subject” of the investigation but “rather, an employee who may have knowledge and/or information that may be helpful and relevant to this investigation.” They were also advised that “it should be understood that there may be other issues identified that may become subject to our discussion.”
- The final CSOI report was provided to Western Region on February 21, 2018 (attached).
6The CSOI report determined that the Grievors “failed to make every effort to revive inmate AE upon finding the inmate unresponsive,” that CO Devine and Valovich did not have their radios with them, that security patrols were not uniformly conducted in accordance with Ministry policy of no greater than 30 minutes between patrols, although “[t]here is no evidence that the timing of the patrols had an impact on the death or the discovery of the death.” It found that the Grievors “allowed an obstruction to hang down from the top bunk which was blocking part of their view of the inmate” and that they “failed to have the inmate remove the obstruction as required by institution Standing Orders”. It also found that the COs rotations through the module were not properly documented in the Log Book.
In preparation for the allegation meetings the Superintendent reviewed the CSOI report and findings thoroughly, watched the videos, and reviewed all Occurrence Reports and the incident package again.
The Notice of allegation meetings were sent out on May 8, 2018 (attached).
7The allegations against COs Valovich and Devine read as follows:
Allegation 1:
On November 16, 2016, you failed ot make every effort to revive Inmate A.E. after discovering the inmate in distress; you left the day room (with another CO), to initiate the medical emergency and failed to immediately return to the cell to initiate a resuscitation attempt.
Allegation 2:
On November 16, 2016, you failed ot follow the Ministry policy on security patrols when you failed to perform security patrols at a frequency of no greater than 30-minutes between patrols.
Allegation 3:
On November 16, 2016, you failed to follow institutional Standing Orders when you failed ot have the hanging obstruction (towel) removed from your view of the inmate.
Allegation 4:
On November 16, 2016, you failed to carry a radio, as per institution procedures.
Allegation 5:
On November 16, 2015, you failed to follow logbook recording standards when you failed to document that you assumed duties for the Max Module post, and control of the Max Logbook.
8The same allegations were made in regard to CO Curley, except for Allegation 4 about the radio.
The allegation meetings were held in May 2018 (May 18, 22 and 23).
The Superintendent’s notes of the allegation meetings were sent to the regional office on June 22, 2018 (attached).
The inquest into the IM’s death took place from September 10-13, 2018.
The reasons for the delay in imposing discipline was due to a staffing crisis at NDC [Niagara Detention Centre]. The Superintendent was experiencing workload issues as he was reviewing and signing off on all packages both use of force and non-use of force. There were also labour relations issues at NDC. This was a result of implementing clock rounds in the dorms and a rise in staff discipline.
9This assertion, however, is contested, as it is the Union’s position that these issues arose in September 2017. The Employer maintains that there were significant labour relations issues in 2018.
The discipline was initially planned to be implemented in early July, but CO Curley had been off since June 22, 2018 and he was not scheduled back before a night shift on July 25th, the first day Curley was scheduled to be back at work. However, all three (3) grievors work straight night shifts, and NDC was chronically short-staffed on nights that summer. It would have put the institution at significant risk to have all three grievors off on suspension in August. The disciplinary meetings were then scheduled for August 29th, however, the decision was then made to delay the discipline until after the inquest, so the grievors would not b3 on suspension during the inquest as their attendance was required. A list of the grievors’ absences during July and August is attached.
The discipline was imposed on September 17, 2018.
10The discipline was served from September 19, 2018 to October 9, 2018.
Positions of the Parties
For the Union
11The Union submits that 671 days elapsed between the incident on November 16, 2016 and the imposition of discipline on September 17, 2018 – a period of 22 months, just short of two years. The Union argues that the Employer demonstrated no sense of urgency throughout the process – a CSIO investigation was requested on December 6, 2016, but an investigator was not assigned till January 6, 2017. Then nothing happened for eight months – until September 6, when CO Valovich was advised of the administrative investigation into the inmate’s death, with the others notified later in October, and the last interviews conducted on November 8, 2017. The CSIO report was submitted to NDC on February 21, 2018, yet discipline was not imposed for another seven months. It took three months after receipt of the CSOI report, until May 8, 2018, to issue the notice of allegations to the Grievors. The Union submits that it was not until this time, 18 ½ months after the incident, that the Grievors even became aware that their actions on the morning of November 16, 2016, were viewed as improper. Until that time, they had been led to believe that their actions had been commendable. In the Union’s view, there are no viable explanations for any of these delays – why it took the investigator 8 months to begin to conduct the interviews, why it took three additional months to complete the report, why it took the Superintendent three months to set up the allegation meetings, and once the decision to discipline was made, why it took another three months to impose discipline.
12The Union does not accept the explanation that the CSIO was backlogged, or that there were staff shortages, or workload issues for the Superintendent, and submits that the GSB has not accepted those explanations. (Sammy; Dannenberg). It further contends that the Employer should not be permitted to rely on such excuses because staffing and scheduling at both the CSOI and the NDC is fully within its control, and they were fully aware of the need to act expeditiously.
13The Union also contends that the imposition of discipline should not have been delayed for all due to the absence of one in June, nor should it be limited to when it is most convenient for the Employer. It also does not accept that waiting for the completion of the inquest was a valid basis for delay, since the discipline had already been decided upon before the inquest and nothing turned on information to be learned from the inquest.
14The Union also submits that the delay has caused actual prejudice to the Grievors’ ability to defend themselves, as evidenced by their inability to recall things during the CSOI investigation, It also submits that there is inherent prejudice because so many of the allegations relate to routine tasks – such as security patrols and log book entries. The case law, the Union contends, fully recognizes that a delay in regard to imposing discipline in relation routine matters may prejudice the employee’s ability to defend himself.
15The Union also contends that the Grievors have been prejudiced by the delay because the discipline is still on their record, whereas had the discipline been issued in a more timely manner, it would be off their record by now.
16In support of its position, the Union cites to the following cases: Re OPSEU (White) and Ministry of Solicitor General, GSB No. 2012-0362 et al. (Petryshen, 2020); Re University of Ottawa and I.U.O.E., Local 796-B, 1994 CanLII 18776 (ON LA), 42 L.A.C. (4th) 300 (Bendel); Re Miracle Food Mart, Steinberg Inc. (Ontario) and U.F.C.W., Local 175 and 633, 1988 CanLII 9230 (ON LA), 2 L.A.C. (4th) 36 (Haefling); Re OPSEU (Bonacci) and Ministry of Solicitor General and Correctional Services), GSB No. 1923/96 (Dissanayake), 1997); Re OPSEU (Dannenberg) and Ministry of Correctional Services, GSB No. 414/89 (Dissanayake, 1991); Re Burrough of North York and CUPE, Local 373, 1979 CanLII 3935 (ON LA), 20 L.A.C. (2d) 289 (Schiff); Re Manitoba Pool Elevators Brandon Stockyards and U.F.C.W., Local 832, 1993 CanLII 16667 (MB LA), 35 L.A.C. (4th) 276 (Peltz); Re A.B.G.W.I.U., and AFG Industries Ltd., 1998 CanLII 30077 (ON LA), 75 L.A.C. (4th) 336 (Herlich); Re OPSEU (Giraudy et al), and Ministry of Community Safety & Correctional Services, GSB No. 2004-3120 et al. (Petryshen, 2009); Re OPSEU (Frater) and Ministry of Solicitor General, 2020 CanLII 14813 (ON)(nonprecedential decision of Arbitrator Johnston).1
For the Employer:
17The Employer asserts that because there are no time limits for the imposition of discipline contained in the parties’ collective agreement, whether the Employer acted reasonably is a matter of arbitral discretion based on the specific facts of the case, and that actual prejudice must exist before a disciplinary action may be deemed to be void.
18In this case, the Employer contends that it had no knowledge of any wrongdoing by the Grievors until the issuance of the CSOI report on February 21, 2018. Therefore the delay should be measured from that date, not the date of the incident. In its view, there were legitimate reasons, including the need for a thorough review of the evidence, operational requirements and the inquest, for the delay in issuing the discipline during that period.
19Significantly, in the Employer’s view, there is no evidence of actual prejudice based on the Grievors’ interviews during the CSOI investigation which showed that their memories, with an occasional lapse, had not been impeded. Further, it submits there can be no presumed or inherent prejudice due to the passage of time because the incident involved the death of an inmate. That, it submits, was an exceptional event which crystallized the events during that shift. While it acknowledges that the Grievors were not aware that they were suspected of misconduct, they were fully aware that their actions during that shift and at the time the inmate was found would be carefully scrutinized through a CSOI investigation and an inquest. They also wrote Occurrence Reports which recorded their actions. In these circumstances, the Employer contends, there is no actual or inherent prejudice to the Grievors.
20In support of its position, the Employer cites to: Brown and Beatty, Canadian Labour Arbitration, Section 7:2120; Re OPSEU (Dannenberg) and Ministry of Correctional Services, GSB No. 414/89 (Dissanayake, 1991); Re OPSEU (Bonacci) and Ministry of Solicitor General & Correctional Services, GSB No. 1923/96 (Dissanayake, 1991); Re OPSEU (Sammy et al.) and Ministry of Correctional Services, GSB No. 0224/01(Harris, 2002); Re OPSEU (Giraudy et al.) and Ministry of Community Safety & Correctional Services, 2009 CarswellOnt 10404 (Petryshen); Re CUPE, Local 79 and Toronto (Municipality), 1997 CarswellOnt 6585 (Starkman); Re CUPE Local 79 and Metropolitan Toronto (Municipality), 1999 CanLII 35953 (ON LA), 78 L.A.C. (4th) 1 (Simmons); Re Toronto Transit Commission and A.T.U., Local 113, 2008 CarswellOnt 6646, 173 L.A.C. (4th 97 (Saltman); Re O.S.S.T.F., District 25 and Ottawa-Carleton District School Board, 2003 CanLII 89632 (ON LA), 2003 CarswellOnt 5897, 121 L.A.C. (4th) 405 (Chodos); Re OPSEU (Grievor) and Ministry of Natural Resources, 174 L.A.C. (4th) 225 (Jackson); Re World Kitchen Canada (EHI) Inc. and U.S.W.A., Local 9045, 2007 CarswellOnt 7394, 165 L.A.C. (4th) 377 (Roberts); Re OPSEU (White) and Ministry of the Solicitor General), GSB No. 2012-0352 et al. (Petryshen, 2020).
Reasons for Decision
- The Principle that Discipline must be imposed in a timely manner.
21The principle that an employer must act to impose discipline in a timely manner is well-established, both at the GSB and in general arbitration cases. As stated by Arbitrator Petryshen in Re OPSEU (White), supra at par. 34:
Arbitrators have long held that discipline should be imposed in a timely way and a failure by an employer to adhere to this principle could lead to the voiding of the discipline. It is important to consider the reasons for the delay because the delay may very well have been reasonable in the circumstances, even if there was a significant delay in imposing discipline. However, the presence of unreasonable delay, by itself, is not sufficient to deem the discipline void. The most important fact for consideration is whether the delay has been unfair or prejudicial to the grievor or the Union in that the delay has had a detrimental impact on their ability to respond to the allegations.
22The reason for the importance of prejudice is found in the rationale behind the principle that discipline may be void due to unreasonable delay. As stated in Brown and Beatty, Canadian Labour Arbitration, at 7:2120, Timeliness: “The purpose of the arbitral principle against unreasonable delay is to ensure that employees are not prejudiced by an employer’s procrastination in exercising its disciplinary powers.”
- When does the clock start – the date of the incident or the date of the CSOI report?
23The parties first dispute when the clock for measuring the delay starts – is it the date of the incident, as asserted by the Union, or the date of the CSOI report when the Employer became aware of the alleged misconduct, as asserted by the Employer?
24In many cases the two dates will be the same. For example, in a case of an alleged assault of an inmate by a Correctional Officer, or an inmate escapes and the Correctional Officer is suspended pending investigation. But in some cases, as in this case, the two dates will differ.
25Where an investigation is conducted by an outside agency or entity, and the Employer has no independent knowledge of the misconduct (and therefore has no knowledge that it could/should be doing its own investigation), the date that the Employer learns of the alleged misconduct should start the clock. In that case, the Employer has no control over the timeliness of the investigation or the resources allocated to the investigation. For example, in Re OPSEU (Grievor), supra, part of an 11-month delay in the investigation was due to the fact that a criminal investigation had been undertaken. In contrast, where the investigation is internal, as it was here, I conclude that the clock should start with the date of the incident. The CSOI is part of the Ministry of Community Safety and Correctional Services. The Ministry controls its staffing, funding and resources. While the divisions may be completely separate, they are still part of one entity, and the Ministry cannot dissociate itself from the actions of the CSOI.
26The GSB has included delays in the imposition of discipline based on the completion of the CSOI (or other investigation) report, in analyzing whether there has been unreasonable delay. In Re OPSEU (Giraudy), supra, the Union argued that a delay of 5½ months in one case, and seven months in two others was unreasonable. That delay included the completion of an investigation by CISU and then consideration of the appropriate level of discipline by the Superintendent.
27In Re OPSEU (White), supra, an investigation into time theft on twenty occasions in August and September of 2013 was undertaken in September and completed in late October of 2013. The employee, however, had almost immediately went off on sick leave from September 26, 2013 to May 26, 2014 during which time the Employer held off on issuing discipline. But on her return, due to reports of further unrelated violations, the Employer elected not to hold an allegation meeting with her and to explore whether an additional investigation was warranted. It decided that a CSOI investigation was warranted which began on July 22, 2014. That investigation was not completed until December 2016. Consequently, the employee was not aware that she might be disciplined for what occurred in August and September 2013 until she received the allegation letter on January 24, 2017. The Board’s analysis of this delay included the time that the CSOI investigation took which lead to a delay of over 2½ years.
28In Re AFG Industries Ltd., supra at par. 18, the time frame for determining delay was the time between the “alleged improper conduct and the consequent imposition of discipline…”
29Consequently, based on the facts of this case, I conclude that the “clock” starts to run from the November 16, 2016 incident.
- Was there Excessive and Unreasonable Delay in this Case?
30In all, there was a 22-month delay between the incident on November 16, 2016 and the imposition of discipline on September 17, 2018. That is excessive given the nature of the investigation and discipline involved.
31In this case, the amount of time that the CSOI investigation took is substantial. There was a one-month delay between the request for an investigation and the assignment of an investigator, but given the Christmas and New Year’s holidays, that may be understandable. But what is not understandable is the delay of eight months before the first interviews were arranged. The only reason given was that the CISO was “significantly backlogged, with death investigations” at the time. In Re OPSEU (Danneberg), supra, a five-month delay to complete the investigation due to other investigations was deemed unreasonable. Similarly, in Re OPSEU (White), supra at par. 34, the arbitrator did not accept that the CSOI investigation delay was reasonable, stating:
I appreciate that Inspector McVeig had a number of important matters to deal with, but the delay from July 22, 2014, when he started the investigation, until September 18, 2015, when he notified Ms. White of an interview date, was not reasonable. As noted in OPSEU (Dannenberg), supra, the fact that the investigator had other investigations to conduct was not an excuse for a 5-month delay.
32No evidence was presented that the investigation here was particularly complex or time-consuming. All of those interviewed – 11 in all - were employees still working for the Ministry. 17 hours of video tape was reviewed, standing orders and policies. Certainly, there may be investigations that, for very valid reasons, take a very long time. But here, there was no action taken for over eight months, and the final report was not issued till February 21, 2018 – more than a year after the investigation commenced, and 15 months after the incident.
33The process did not speed up once the CSOI report was received. I appreciate that the Superintendent took the time to thoroughly review the report and the evidence, and that he was facing significant work pressures. As stated by the Board in Re OPSEU (Bonacci), supra at p. 9: “As a general rule, employers must be encouraged to proceed with caution before making allegations and subjecting employees to investigations.” This was not something to be rushed, but three months to initiate the allegation letters and meetings was a long period. It was not until then that the Grievors were on official notice that their actions on November 16, 2016 were viewed as improper, and were given an opportunity to answer the allegations.
34Finally, there was another delay once the decision to discipline had been made. The GSB has held that it is appropriate to wait to impose discipline when an employee is off work due to illness or leave. Re OPSEU (White), supra. That would apply to the situation of CO Curley, but it does not explain the delay in imposing discipline on CO Valovich or CO Devine. There may be a valid reason why the three had to serve the discipline at the same time, but there is nothing in the record to support that determination.
35In terms of the operational issues that would be caused by all three officers being off on nights, during the summer while the institution was experience staffing shortages, I find that to be a valid consideration. But, again, no reason was provided why all three had to be off at the same time.
36Finally, imposition of the discipline was further delayed from August 29 to September 17 due to the inquest into the inmate’s death scheduled for September 10-13. The decision to discipline had already been made, and there was no evidence that the Ministry was awaiting information that might be learned from the inquest. Further, the emails reveal that the delay was to avoid paying the Grievors to attend the inquest, while they were on a disciplinary suspension. As stated in one email dated August 27, 2018:
Due to employee vacation, the suspensions were going to be issued on August 29th. However, last week I was informed that the 15-day suspension would fall over the period of time that the employees were required at the inquest, which would be paid duty. That is why I made the decision to postpone the suspensions….
37There was no evidence, however, why the discipline could not have commenced, with the three-days of the inquest replaced by three subsequent shifts that were unpaid.
38Of course, both the investigation process and the discipline process must be allowed time to develop. In this case, however, both were slow and, in combination, excessive and unreasonable in the circumstances.
39Under the GSB’s decisions, however, delay alone, is not determinative, even excessive delay. Re OPSEU (White) supra. In Re OPSEU (Sammy et al.), supra, Arbitrator Harris rejected the Union’s contention that delayed discipline should be voided because the Employer is required expeditiously to sanction an employee for behavior considered inappropriate, even if there is no demonstrated prejudice to the individual. He stated at p.5:
I disagree. In my view, that is much too bald a statement to the effect of the principle. The Union has failed to appreciate that prejudice may be demonstrated by evidence of the fact or by inference due to the inherent prejudice.
40Delay alone, then, is not sufficient to void the discipline. Prejudice must be shown and prejudice may be shown by evidence of actual prejudice, or prejudice may be deemed inherent in the situation. The concern is the effect that the delay may have on the ability of an employee to defend or answer the allegations made against him, or her.
41The case law recognizes that the nature of the specific allegations may be a factor in the employee’s ability to answer the charge. Where the allegation relates to routine matters, performed on a regular basis, a prolonged delay may have a negative impact on the employee’s ability to recall the specific incident. For example, in AFG Industries Ltd., supra, the grievor’s job was to separate good glass from bad glass, to identify or “pick off” bad, broken pieces. It was alleged, four months after the event, that he had been observed on two occasions improperly smashing good glass. The arbitrator concluded at par. 32: “I have no hesitation in concluding that to ask the grievor, over four months after the fact, to recall the two specific transactions out of the many in the interim, to ask him, for example, to recall whether the breakage involved bad, or as alleged, good glass is simply unfair and prejudicial.”
42The arbitrator distinguished unusual cases (as well as cases in which video was available to refresh one’s recollection). He stated at par. 33:
If we ask someone: “were you hit by the truck four months ago?” or “did you rob the bank four months ago?”, we do not anticipate a response such as: “I might have, I don’t recall – why didn’t you ask me sooner?” There are some events one simply does not forget…. But where, as here…, the stale allegations relate to a variant of a function which an employee performs over and over both daily and from day to day, it should come as no surprise that a prolonged delay in bringing a specific and impugned transaction to the employee’s attention will have a growing negative impact on the employee’s ability to recollect what transpired at the relevant time.
43The same distinction is present in other cases. E.g., Re OPSEU (Sammy et al.), supra.
44Another aspect recognized in the case law in regard to delay is condonation. In Re OPSEU (Dannenberg), supra at pp. 5-7, the Board stated that “where, by unreasonably delaying discipline, the employer leads an employee to reasonably believe that his conduct has been forgiven or condoned, the Employer may be barred from imposing any penalty.” On the facts there, the Board concluded that the grievor “was at all times aware that an investigation had taken place and that the investigation report had not yet been released.” Accordingly, ‘in all of the circumstances, despite the delay, the grievor could not reasonably have concluded that his conduct had been forgiven or condoned.”
45In Re OPSEU (Bonacci), supra, the Board noted at p. 7, that “the arbitral principle established in the case law is based not upon the delay per se, but the potential impact of the delay on the grievor, who may be led to believe reasonably because of the inaction that the employer was no longer pursuing the allegations.” In that case, although the Board found that the Employer could have acted with more dispatch, it was “not a question of evaluating the employer’s efficiency in conducting an investigation”; instead, “[t]he test to be applied…is whether in the particular circumstances the grievor was reasonably led to conclude that her conduct had been forgiven or condoned or that the employer had somehow dropped the matter. …” See also, Re OPSEU (Grievor), supra at par. 167 (11 month investigation did not mislead the grievor to conclude that he was not going to be disciplined).
46Both claims in regard to delay are at issue in this case.
- Did the delay cause prejudice to the Grievors – actual or inherent?
47As noted, in terms of prejudice, the case law distinguishes between routine, ordinary, everyday events for which the passage of time would likely impact the employee’s ability to recall the event and defend themselves, and unusual, out-of-the ordinary events which an employee is likely to remember.
48In the instant case, the Employer asserts that because the inmate died, all of the events surrounding that incident on November 16, 2016 should be viewed as extraordinary. It also asserts that the events were crystallized for the Grievors because they wrote Occurrence Reports at the time, and were aware that there would be both a CSOI investigation and an inquest.
49I agree that, due to the highly unusual event of the inmate’s death, some of the events at the time would fall into the extraordinary category, but I am not persuaded that such a conclusion applies to all of the events that day. The fact that the Grievors wrote occurrence reports at the time does not crystallize everything that occurred. Occurrence Reports are a very common thing to write at a correctional institution. The OR records and memorializes what it contains, but it does not crystallize everything that occurred during a shift, so that it remains fresh. In this case, until the 06:00 rounds, the shift was routine and unexceptional.
50Nor am I persuaded that the fact that the Grievors knew that there would be a CSOI investigation and an inquest would have crystallized all that occurred on the shift. At the time, they were advised that they had done a “good job”, and received a commendation note. While they knew that they had not tried to resuscitate the inmate, there is no indication, from the ORs or from the CSOI interviews, that they understood that to have been improper in the circumstances. CO Valovich and Devine knew that they had failed to have their radios with them, and knew that was improper. But they did not know there was an issue about a towel, an issue with the timing of the security patrols, or an issue with the logs. Consequently, under these circumstances, the fact that they knew their actions would be scrutinized through an CSOI investigation and an inquest, does not lead to conclusion that they would remember everything that occurred during the shift.
51In my view, a closer look at the specific allegations needs to be undertaken – to determine whether the delay has caused actual prejudice, or inherent prejudice.
52Some of the allegations in this case apply to routine, everyday occurrences, such as the security patrols and the log book entries. There is also evidence about prejudice through the Grievors’ CSOI interviews. In relation to those two allegations, I am persuaded, on the balance of probabilities, that the delay has impeded their ability to recall why certain rounds (and even who performed them) were done with at 23, 25 or 27 minute intervals while others were at 33, 34, 35 or 37 minute intervals. The same is true for log book entries.
53In this regard, the CSOI notes of the interviews with the Grievors are informative. None of the Grievors were questioned about the log books. Of the three Grievors, only CO Valovich was questioned about the security patrols and the thirty-minute requirement. He was advised the Inspector had a sheet that showed “most of them are more than 30 minutes apart.” .CO Valovich explained that at 21:00 when the inmates are locked up, there are no rounds done. He was then asked, “what about 20:00?” to which Valovich answered, “20:00, I… I don’t recall what I was doing at 20:00.” The Inspector later stated: “you more or less did your rounds. You know, they…they were late but you did the rounds….” In fact, of the 19 security rounds done that shift, ten were over 30 minutes (all but two at the beginning of the shift were done between 33-39 minutes), and nine were 30 minutes or under.
54In the interview with CO Devine, the transcript states:
Inspector: … okay. I think I’ve hit all the areas. I’ve seen…some pretty fair clock rounds here, pretty consistent and somewhat…the half hour issue…. type thing but it’s not that big a deal.
55The topic was not further addressed with CO Devine – he was asked no questions about it. The subject was not discussed at all with CO Curley.
56In my view, the routine nature of the issues and the CSOI interviews persuade me that the delay would, on the balance of probabilities, likely impede the Grievors’ ability to explain why certain security patrols exceeded the 30-minute requirement, or who did them. The situation is akin to the situation in Re OPSEU (White) supra at par. 36:
The prejudicial effect of the delay is significant for allegation 10 – whether she left the institution without permission on the 20 relevant shifts. This is a subject that concerns normal every day work events. Not surprisingly, Ms. White could not recall what her assigned duties were for those shifts…. She was unable to recall who her unit manager was…. Given the excessive delay, Ms. White was put in a position where it would have been very difficult to recall the kinds of matters necessary to convincingly support her claim that she left those shifts with permission. It would therefore be unfair to permit the Employer to discipline Ms. White for allegation 10 because of its delay in initiating the disciplinary process.
57In contrast, the first allegation – that the Grievors failed to attempt resuscitation – falls into the extraordinary category. As one would expect, all three were able to recall, in some detail, what actions they took at the time. Both CO Valovich and CO Devine also recalled the absence of their radio. Consequently, for those two allegations, I cannot find any actual or inherent prejudice caused by the delay.
58I would have thought that the towel issue – the alleged obstruction – would have fallen into this same category, as something tied to the discovery of the inmate. But based on the CSOI interviews, I am persuaded that the delay has likely caused prejudice to CO Valovich and CO Devine. Only CO Curley mentioned the towel in his OR. His OR states: “I could see a portion of Inmate [AE] because this inmate had a towel covering the end of his bunk.” CO Curley was not further questioned about this during his interview. Both CO Valovich and Devine, however, were questioned about it and their interviews indicate that neither could recall whether there was a towel present. CO Devine had this interchange about it, after a discussion about “obstructions” of his view of the inmate:
Inspector: Yeah. But, I…originally I meant you had a good view, there was no obstruction?
Devine: Mm…yeah. I believe there’s nothing there.
Inspector: You sure about that?
Devine: Not one hundred percent, no. It’s… it’s been a long time.”
CO Valovich was also questioned about a possible visual obstruction:
Inspector: Okay. How about obstructions in the cell? Any…any obstructions to actually looking in?
Valovich: No, I had a clear view of him. Uh, he was on…like I said, he’s on the bottom bunk, and I believe he just had, uh…the sheet might’ve been up to his knees maybe, and the rest of him was exposed. No shirt on, and laying on his back, so I had a decent view of him.
Inspector: Any other obstructions? Anything hanging?
Valovich: Not that I recall.
Inspector: Possible?
Valovich: Possible.
He was then advised that “someone said there was” and CO Valovich responded: “Okay…I…there might have been. I don’t recall.”
59Based on these exchanges, and their inability to recall the presence of the towel, I am persuaded, on the balance of probabilities, that the delay likely has impeded the Grievors’ ability to respond to this allegation as to CO Valovich and Devine. In regard to CO Curley, I am persuaded that the allegation can proceed. Although it troubles me that he was not questioned about it during the CSOI interview, it is clearly mentioned in his OR, and that should be sufficient to refresh his recollection on the issue.
60In my view, therefore, this is not a situation where all of the allegations of misconduct must be dismissed due to the delay in imposing the discipline in this case. As in the White case, based on the same set of facts, it may be appropriate to dismiss some allegations but not others. I reach the same result here.
- Was there condonation due to delay?
61Two days after the incident, the Grievors received a letter of commendation for their actions on November 16, 2016. In the Employer’s view, these were “generic” letters aimed to boost morale after a traumatic event. The Union submits, however, that even if “generic”, they led the Grievors to believe that they actions were not in question.
62In the absence of a required CSOI investigation and an inquest, I would agree that the letters of commendation would reasonably lead an employee to believe that his or her conduct was well-regarded and would not be the subject of potential discipline. But as with any sudden inmate death, a CSOI investigation and an inquest are required. Consequently, the Grievors knew, from the outset, that all of their actions on the shift would be closely scrutinized through the CSOI investigation and the inquest. They knew that this situation was not over with the letter of commendation. They could not reasonably have believed that all of their actions during the shift would not potentially be the subject of discipline. While they were not the “subject” of the CSOI investigation, they were advised that “there may be other issues identified that may become subject to our discussion”, which is what occurred here.
63In these circumstances, where the Grievors were aware that their actions would be further scrutinized through a formal investigation and inquest, I am unable to conclude that this is a situation where they would have been led to believe no disciplinary action might be taken.
Conclusions
64For all of the reasons set out above, the motion to dismiss is granted in part and denied in part.
65The allegation that the Grievors failed to resuscitate the inmate may proceed for all three Grievors. The allegation that CO Valovich and CO Devine failed to have their radios with them may proceed. The allegation that CO Curley did not remove an obstruction visual of the inmate may proceed. All of the other allegations, however, are dismissed due to delay.
Dated at Toronto, Ontario this 28th day of September, 2020.