GSB#2019-1869

UNION#2019-0708-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Holmquist)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE UNION

Manprit Singh Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

October 14 and November 10, 2020

Decision

1On October 14, 2020, the Union brought a motion for a declaration that discipline imposed on the grievor, Mr. Holmquist, was void ab initio because the Employer breached his representation rights under Article 30.1 of the Collective Agreement.

2The Employer responded that Article 30.1 does not apply, that even if it did the Employer’s actions would not have breached it, and in the alternative that a declaration that the discipline was void ab initio would not in any event be warranted in the circumstances of this case.

3I heard evidence and argument concerning the motion on October 14 and November 10, 2020. On November 17, 2020, I sent the following preliminary ruling to the parties, in view of upcoming hearing dates:

Having carefully considered the evidence and authorities submitted to me, I have concluded, for reasons to be set out in a decision to follow, that the actions of the Employer prior to and at its meeting with Mr. Holmquist on November 21, 2018 were not in compliance with Article 30.1 of the Collective Agreement.

I have not yet reached a decision on whether this renders the discipline of Mr. Holmquist void ab initio, or simply voidable. I will need further time to decide this.

I am mindful that the parties wish to resolve this matter, and that it has been over one year since the Employer terminated Mr. Holmquist’s employment. I propose to proceed, without prejudice to any determination that I may make with respect to the above question, with the hearing dates scheduled for November 24 and 27, 2020.

4In this Decision I provide reasons for my ruling that the Employer did not comply with Article 30.1 and a ruling on the Union’s request that I declare the discipline void ab initio.

Evidence

5Mr. Holmquist was employed as a Correctional Officer (CO) at the Thunder Bay Correctional Centre (TBCC) from February 2006 until October 28, 2019, at which time the Employer terminated his employment, alleging cause. The Employer maintains that Mr. Holmquist violated its policies and standing orders when he visited an inmate, Z.K., at TBCC on November 16, 2018. It maintains in addition that Mr. Holmquist attempted to get a co-worker to cover up or conceal that visit, failed to disclose a conflict of interest regarding the inmate in question, and was untruthful and insufficiently forthcoming in his subsequent disclosure and reporting on the events in question. Mr. Holmquist and the Union do not deny that the visit in question took place but do take issue with the Employer’s allegations of conflict of interest, cover-up, and untruthfulness.

6In November of 2018, Mr. Holmquist was on injury leave as a result of a serious motor vehicle accident in June of 2018 that had disabled him from performing his duties as a CO. He attended at TBCC on November 16, 2018. He says that his reason for doing so was to submit medical documentation in connection with the continuation of his injury leave. His visit with inmate Z.K. took place in the secure area of the female dorms. For reasons that are not relevant or in evidence at this stage of the proceedings, Mr. Holmquist left TBCC following his meeting with Z.K., without having dropped off the medical documentation in question.

7Staff reported Mr. Holmquist’s visit with Z.K. promptly to the Sargent on duty, Ms. Sharon Dunne, who in turn directed that staff members write Occurrence Reports (OR) setting out their knowledge of it. Those reports were delivered to TBCC Superintendent Karen Machado that same afternoon.

8Superintendent Machado promptly directed that TBCC managers produce a General Local Investigation Report (LIR) of the incident. In his testimony, Mr. Dave Andrusco, who was then Deputy Superintendent, Operations and is now Superintendent at TBCC, said that the LIR was initiated on November 17, 2018. According to Superintendent Andrusco, “the matter was under investigation” at this time. The LIR was submitted in evidence. It indicates that by November 19, 2018, Mr. Chris Ossandon had completed and signed Part A of the LIR form. On November 20, 2018 Deputy Andrusco, as he then was, completed and signed Part B of the LIR in the capacity of Investigating Manager. That day, Deputy Andrusco provided the LIR to Superintendent Machado, along with all materials collected in producing it, including videotape of the incident in question. In Part B of the LIR, Deputy Andrusco indicated to Superintendent Machado that a Correctional Service Oversight and Investigations (CSOI) investigation of the incident would be required. In his testimony, Mr. Andrusco said that CSOI gets involved in “any staff matter that is not just day to day operations, more serious matters”.

9Superintendent Machado had not waited for Deputy Andrusco’s determination that CSOI should get involved before reaching the same decision. On November 19, 2018 Superintendent Machado noted in an Employer/Other Information Report concerning this matter that “[a] consultation call with regional office and human resources occurred on Nov 19th it was determined that this matter will be forwarded to CSOI for review by regional office.”

10On November 20, 2018 Superintendent Machado called Mr. Holmquist. Mr. Holmquist testified that he received a voice mail from her and returned her call. Ms. Machado told him that he was not to speak with inmates and not to attend TBCC without prior permission of a senior manager. Mr. Holmquist testified that he apologized to her and said that he was not aware that he was not allowed to attend at the institution. He said that he felt that she was referring to the incident of November 16, 2018 and that he needed to explain. He said he had wanted to give his medical note to Ms. Brandy Fummerton, Deputy Superintendent, Administration, but because she was not there he had left without dropping it off. He asked Superintendent Machado if it would be OK if he were to drop off the medical documents the next day. Ms. Machado put him on hold briefly in order to speak with Deputy Fummerton, and then told him that he could drop off the documents with Ms. Fummerton at 1:30 pm the next day.

11Deputy Fummerton testified that before the meeting of November 21, 2018 Superintendent Machado asked her if she could ask Mr. Holmquist for an OR with respect to his meeting with Z.K. when she met with him to receive his medical documents. Superintendent Machado told her that she should offer him union representation at that time, out of caution.

12Deputy Fummerton testified that Deputy Andrusco attended the November 21, 2018 meeting for two reasons. First, Deputy Andrusco was the one who needed the OR, because “he was the one doing the investigation, as she [Superintendent Machado] put it”. Second, it was possible that Mr. Holmquist would request Union representation, and in that case it would be best if management had two representatives present. Mr. Andrusco confirmed in his testimony that Superintendent Machado had asked him to get an OR from Mr. Holmquist at the meeting scheduled between Deputy Fummerton and Mr. Holmquist.

13Deputy Fummerton said that she did not call the Union in advance of the meeting, but instead checked in advance to find out whether there would be union representatives on site and found out that two representatives would be. She did not speak to either one at this time. When asked about this in cross-examination she said that “we don’t arrange people’s union representation”. Mr. Andrusco did not recall informing any union officials about the meeting.

14According to Employer policy documents submitted in evidence and the testimony of each witness, an Occurrence Report serves to record the recollection of individual employees of what they observed, what actions they took, and what others were doing in connection with events out of the ordinary or usual course of business at the institution, so that observations of the “who, what, when, why and how” of such events would be recorded promptly, while memories were fresh. Like other COs, Mr. Holmquist received training on how to write Occurrence Reports and what purposes they serve. He understood that writing such reports was a duty of a CO, and that they were to be written without consulting anyone else about their contents. If a CO is asked to complete such a report while at work, the normal process would be to complete it at the earliest opportunity.

15Deputy Fummerton explained that an OR would normally be completed by the end of the shift during which in incident had been observed, and that if an employee was not at work at the time of a request for an OR it would be completed by the end of their next shift. Nonetheless, she said that if an employee was off work for a lengthy period, management would not contact them, whether by sending a letter or otherwise, but would instead wait until they saw the employee next in order to request such a report. She said that a report could be requested verbally or by email, and while such requests were often made by a Sargent, any manager could request an OR, and that she had done so frequently. She said that the Union was not involved when a manager requested an OR.

16Mr. Holmquist testified that normally an OR would be requested by a line manager and not a senior manager like Mr. Andrusco, and that if a senior manager requested an OR this would normally be done by email rather than in person. He said that in his 15 years of experience he had never received a request for an OR from a Superintendent or Deputy Superintendent. He also said that he understood from his brother, who is a Superintendent at a jail, that senior managers would generally avoid personal contact in requesting an OR from a CO.

17Mr. Holmquist arrived at the TBCC on November 21, 2018 at around 1:20 pm. He entered the building and told the staff at the entrance that he was there to drop off some paperwork with Deputy Fummerton. Superintendent Machado then took him to Ms. Fummerton’s office and told Mr. Holmquist that Deputy Andrusco would like to meet with him at the same time. When Mr. Holmquist entered Deputy Fummerton’s office, Mr. Andrusco was there.

18The accounts given by Mr. Holmquist, Deputy Fummerton and Mr. Andrusco of their meeting differ in some respects. According to Mr. Holmquist, at the start of the meeting Deputy Andrusco asked him whether he would like union representation. He responded by asking why. Deputy Andrusco then told him that he would like an Occurrence Report regarding the November 16, 2018 incident with Z.K.. Mr. Holmquist testified that he felt blindsided by this request, because such a request for an Occurrence Report would normally have been sent by mail to an employee who was off work on injury leave. He responded by saying that he could not write such a report immediately because of injuries to his hand sustained in the motor vehicle accident. Then, according to Mr. Holmquist, Deputy Andrusco asked him if he would like to sign a waiver of union representation, and he said no, that he would like union representation. Deputy Fummerton then asked him if he had the medical paperwork. He responded that he had a disability certification from his doctor. Mr. Holmquist testified that at this point he knew he was in trouble and felt pressure to give an explanation of his actions on November 16, 2018. He said to Deputy Andrusco, referring to inmate Z.K., that she was not a friend, and “not in his circle”. He said that he had no malicious intent in meeting with her. According to Mr. Holmquist, Deputy Andrusco responded by asking if she was not an acquaintance. Mr. Holmquist answered, in his words, sarcastically that she was “hardly an acquaintance”. Mr. Andrusco then again asked Mr. Holmquist if he was going to give an Occurrence Report regarding the incident. Deputy Fummerton said that she and Deputy Andrusco “just wanted an explanation” of his meeting with Z.K.. Mr. Holmquist responded that he would, but could not write one at that time because of the injury to his hand. At that point Deputy Fummerton offered to type his report if he wished to dictate it. Mr. Holmquist responded that he would like to speak to Mr. Len Mason, a representative of the Union. Then, according to Mr. Holmquist, Deputy Andrusco left the meeting. Deputy Fummerton asked about the medical paperwork. Mr. Holmquist said that he had a disability certificate but that he hesitated to provide it because he thought it might be part of an investigation. Deputy Fummerton told him that the medical note was not part of an investigation. She said that the request for an Occurrence Report was to get an explanation of his meeting with inmate Z.K.. She nonetheless agreed that he could hand the medical note over later. Mr. Holmquist says that he then signed an insurance document and left the meeting.

19Deputy Fummerton testified that Deputy Andrusco began the meeting by asking Mr. Holmquist if he would provide an Occurrence Report on his attendance at TBCC on November 16, 2018. She said that Mr. Holmquist responded that he could not sign an OR, and that he was cradling his hand at the time. She then asked Mr. Holmquist whether he wished to have union representation. In response he said no, and that he did not want it or need it. She then told him that she had made a notation on a Waiver of Representation Form. Mr. Holmquist then gave her some automobile insurance forms, and she said it would take time to fill them in. She asked Mr. Holmquist if he had the other medical documentation that she had asked him for. He said that he did, but that he did not want to give it to her because he was not sure if it was part of an investigation. She responded that it was completely separate from the request for an Occurrence Report, and that without such documentation the Employer would have to go into a job abandonment process. Mr. Holmquist said that he would still like to talk to someone about whether it was in his best interests to provide the medical documentation. He then said that he had no malicious intent, did not know her [referring to Z.K.], that she was barely an acquaintance. Deputy Fummerton testified that neither she nor Deputy Andrusco asked Mr. Holmquist any questions in response to these statements. Deputy Andrusco then asked him if he was going to give an Occurrence Report. Mr. Holmquist said yes, but that he could not write it. She then offered to type it if he would dictate. Mr. Holmquist declined, saying that he still could not sign it anyway. She said: “fair enough”, and the meeting ended at that point. Deputy Fummerton said that she did not recall Mr. Holmquist signing an insurance paper at this meeting. Deputy Fummerton recalled Deputy Andrusco being there for the whole meeting.

20The Waiver of Representation Form was identified by Deputy Fummerton and submitted in evidence. It bears her signature and that of Deputy Andrusco. In cross-examination, Mr. Holmquist testified that Deputy Fummerton did not ask him to sign a waiver of union representation, and that she did not tell him that she would make a notation that he had waived union representation on the Form.

21Immediately after her meeting with Mr. Holmquist Deputy Fummerton completed and submitted an Occurrence Report about it. That report was tendered in evidence. It is consistent in all material respects with her testimony, except with respect to how the meeting began. In her OR, Deputy Fummerton says that at the start of the meeting she asked Mr. Holmquist whether he would like union representation, that he responded asking why we would need union representation to hand in a medical note, and that Deputy Andrusco then said that they also wanted to ask him for an Occurrence Report.

22Mr. Andrusco did not remember as many details of the meeting as either Mr. Holmquist or Deputy Fummerton. Mr. Andrusco’s evidence was that he began the meeting by asking Mr. Holmquist for an Occurrence Report to explain why he attended at TBCC on November 16, 2018. At that point, according to Mr. Andrusco, Deputy Fummerton offered him union representation. He recalled Mr. Holmquist saying that he did not need it. According to Mr. Andrusco, Deputy Fummerton had prepared a waiver of representation, but Mr. Holmquist said he could sign it because of a hand injury. Mr. Andrusco’s evidence was that Deputy Fummerton wrote on the waiver of representation form and he then signed it. He believed that this was right after Mr. Holmquist was offered representation and had declined, during the meeting. Deputy Fummerton then offered to Mr. Holmquist to type up an Occurrence Report if he wanted to dictate it, but he declined. He then said that he wanted to speak to his union representative, Mr. Len Mason. Mr. Andrusco testified that “we were agreeable to this”, referring to himself and Deputy Fummerton. Mr. Andrusco could not recall any other conversation with Mr. Holmquist at the meeting, either about Mr. Holmquist’s November 16, 2018 meeting with Z.K., or about medical documentation. He could not recall anything further about the meeting after Mr. Holmquist said he wanted to consult with Mr. Mason.

23In cross-examination, Mr. Andrusco could not recall any reasons for urgency to obtain information from Mr. Holmquist, and more specifically could not recall any concerns that by the time of Mr. Holmquist’s return to work his memories of the November 16, 2018 meeting with Z.K. would have faded.

24Mr. Holmquist testified that following the meeting he went straight to the Union’s offices. There he met with Mr. Mason.

25Deputy Fummerton testified that she spoke with Mr. Holmquist the next day, November 22, 2018 when he called her by telephone. He said that he had conferred with his Union representative, Mr. Len Mason, and would now be comfortable with submitting his medical note and Occurrence Report. She recalled that he dropped the medical document off that same day.

26On November 23, 2018 Mr. Holmquist attended at TBCC and submitted to Deputy Fummerton a signed Occurrence Report regarding the November 16, 2018 incident with Z.K.. Ms. Fummerton recalled that she did not read it, but just accepted it, and then handed him some automobile insurance papers. She says that he tried to engage in some conversation about the Report. She told him that if he wanted to talk about the Report, he would have to either get union representation or sign a waiver of union representation, and that at that point Mr. Holmquist chose to end the conversation. Mr. Andrusco said he was present when Mr. Holmquist handed his Occurrence Report to Deputy Fummerton in her office. He also recalled that Mr. Holmquist wanted to elaborate, but that Deputy Fummerton said that he should not speak about it without union representation.

27The CSOI investigation was completed on May 27, 2019.

28At this time Mr. Holmquist was still on leave because of the injuries sustained in the automobile accident of June 2018.

29On October 8, 2019, Deputy Superintendent Andrusco sent a letter to Mr. Holmquist advising him that he was required to attend an allegations meeting on October 17, 2019 to respond to the following allegations:

1. That on November 16, 2018, you behaved in a manner which was in violation of your responsibilities and duties as a Correctional Officer when you attended the secure area of the Female Dorms at the TBCC and you had a personal conversation with [Z.K.]. You were off on unpaid sick leave at the time.

2. That on November 16, 2018, you attempted to get a co-worker to cover up or conceal your visit with [Z.K.] when you sent a text to CO [B] which stated, “keep that between us”.

3. That you failed to submit a Conflict of Interest declaration regarding [Z.K.], with whom you had a personal relationship.

4. That you were untruthful and failed to provide fulsome and accurate information in your occurrence report dated November 23, 2018.

The letter further advised that based upon these four allegations, it was alleged that Mr. Holmquist violated certain Ministry policies, and that as the meeting could lead to discipline, he was being offered the opportunity to bring a union representative to the meeting.

30On October 17, 2019, Deputy Andrusco and Sargent Shane Wilson held an allegations meeting with Mr. Holmquist and his union representative, Mr. Len Mason, to provide Mr. Holmquist with an opportunity to respond to the allegations set out in the letter of October 8, 2019.

31On October 22, 2019, Deputy Andrusco met with Mr. Holmquist and advised him that he was being suspended with pay pending investigation for five working days, from October 22 to October 28, 2019, in relation to the allegations. Also present at the meeting were Deputy Fummerton and Mr. Shaun Girvin, union representative.

32On October 24, 2019, Deputy Andrusco advised Mr. Holmquist by letter that he was required to attend a meeting on October 28, 2019. The letter further advised that as the meeting could lead to discipline, he was being offered the opportunity to bring a union representative to the meeting.

33On October 28, 2019, Deputy Andrusco and Superintendent Machado met with Mr. Holmquist, his union representatives, Mr. Shawn Bradshaw and Mr. Dan Sidsworth. Deputy Andrusco advised Mr. Holmquist that he was being dismissed from employment for cause on the basis that all of the allegations had been substantiated.

34Mr. Andrusco testified that the events of the November 21, 2018 meeting played no part in the investigation of Mr. Holmquist’s actions or in the decision to impose discipline upon him. He said that none of the allegations in the allegation letter relate to meeting of November 21, 2018, that nothing from that meeting was discussed at the allegation meeting, that the decision to terminate Mr. Holmquist’s employment was based on questions and responses at the allegation meeting and a review of documents and video evidence. He stated that nothing that factored into decision came up at the November 21, 2018 meeting.

35The October 8, 2019 allegation letter and the October 28, 2019 termination letter were both submitted in evidence. Neither refers directly or indirectly to events of the November 21, 2018 meeting.

Arguments of the Parties

Union Arguments

36The Union submits that Article 30.1 representation rights apply to any face-to-face meeting with management about a matter that may result in discipline. It emphasizes that such meetings need not be part of a formal investigation process. Rather, it is sufficient that management intend to further an investigation. Otherwise, maintains the Union, it would be too easy to circumvent representation rights: Re Ontario Liquor Boards Employees’ Union (Arthur) and The Crown in Right of Ontario (Liquor Control Board of Ontario) 2006 CanLII 17570 (ON GSB) (Stephens). The Union contends that the purposes of these protections, recognized in Board jurisprudence, are to make representation available when employees may not be able to act for themselves because of the stress of the moment, and to ensure that they are not placed in a vulnerable position: Re Ontario Liquor Boards Employees Union (Franssen) and The Crown in Right of Ontario (Liquor Control Board of Ontario), GSB# 1636/96, (January 27, 1997) (Mikus); Re Ontario Liquor Boards Employee’s Union (Simpson) and The Crown in Right of Ontario (Liquor Control Board of Ontario) 2002 CanLII 45786 (ON GSB) (Dissanayake). Accordingly, the potential that an employee will be placed in such a position is enough to trigger representation rights: Franssen, supra; and Simpson, supra.

37The Union notes that, consistent with such purposes, Article 30.1 requires not only that employees have the right to be accompanied and represented by a Union representative, but also that the Employer notify the Employee in advance of this right and advise both the Employee and Union in advance of the time and place of the meeting.

38The Union submits further that this Board treats provisions such as Article 30.1 as creating substantive rights, the violation of which results in discipline being declared void ab initio: Franssen, supra; Simpson, supra; Arthurs, supra; Re Ontario Liquor Boards Employees Union (LaHay) and The Crown in Right of Ontario (Liquor Control Board of Ontario), GSB# 809/94, (June 5, 1995) (Gorsky); Re Ontario Liquor Boards Employees Union (Pedneault) and The Crown in Right of Ontario (Liquor Control Board of Ontario), 2000 CanLII 20516 (ON GSB) (Briggs); Re Ontario Liquor Boards Employees’ Union (Xanthopoulos) and The Crown in Right of Ontario (Liquor Control Board of Ontario) 2002 CanLII 45761 (ON GSB) (Abramsky). It matters not, maintains the Union, whether the Employee made any inculpatory statements or otherwise incurred prejudice during a meeting at which they were denied representation rights; it is sufficient that the employee was placed in a position where they could have done so: Franssen, supra; Arthur, supra. Moreover, the failure of an employer to provide advance notice of an investigation meeting where it is required by the collective agreement is sufficient to void discipline, even where a union representative was in fact able to attend the meeting in question: Xanthopoulos, supra.

40In this case, submits the Union, the Employer intended to further an already ongoing investigation that could lead to discipline when it asked Mr. Holmquist to provide an Occurrence Report at the November 21, 2018 meeting. At this point, the Employer had initiated a Local Investigation Report, collected video evidence, requested a CSOI investigation, and knew that it might impose discipline on Mr. Holmquist in connection with his November 16, 2018 meeting with Z.K.. In fact, submits the Union, the Occurrence Report that Deputy Fummerton would write about the November 21, 2018 meeting would most likely be sent to the CSOI investigators to assist in their investigation. Despite having decided in advance to request and Occurrence Report at the November 21, 2018 meeting, management representatives did not notify either Mr. Holmquist or the Union of their intent to do so. Quite predictably, the Union notes, Mr. Holmquist was caught off guard by the Employer’s request for such a Report. He felt the need to explain his actions in meeting with Z.K., on November 16, 2018, and began to do so. The Employer knew or ought to have known that this would place Mr. Holmquist in exactly the sort of vulnerable position that Article 30.1 was intended to protect him against, and in fact, submits the Union, the Employer did know. This was why, the Union maintains, the Employer prepared a waiver of union representation for Mr. Holmquist to sign. It does not matter, the Union submits, that the Employer did not rely on his actions or statements at the November 21, 2018 meeting when it eventually imposed discipline upon him. What matters, it emphasizes, is that he was misled about the nature of the meeting and thus denied an opportunity to request representation in advance of it.

41The Union also maintains that Mr. Holmquist did not decline union representation, and in fact requested it as soon as it became apparent to him that he might be under investigation. The Union submits that Mr. Holmquist was capable of signing a waiver, and in fact signed an insurance form at the November 21, 2018 meeting. The waiver of representation form filled out by Deputy Fummerton, and signed by Ms. Fummerton and Deputy Andrusco does not, in the Union’s view, provide a true account of what happened in Ms. Fummerton’s office.

42Accordingly, the Union requests that the discipline imposed on Mr. Holmquist be declared void ab initio.

Employer arguments

43The Employer does not dispute that Article 30.1 creates substantive rights but maintains that it does not apply to the November 21, 2018 meeting with Mr. Holmquist. This is because, the Employer maintains, asking for an Occurrence Report is simply a regular part of doing business at correctional facilities: employer policies require employees to fill them out whenever something out of the ordinary occurs at such a facility; any member of management can ask for an Occurrence Report, in person or by email; all employees are trained in how to write them; ordinarily they must be completed by the end of an employee’s shift; and the Union is not involved in the writing of such reports. Had Mr. Holmquist been on a shift on November 16, 2018, he would have been required to complete and Occurrence Report before he left the workplace. The fact that Mr. Holmquist was on leave at the time of the request, submits the Employer, does not mean that Union representation is now required. If this were so, the Employer notes, it would be expressly stated in the Collective Agreement. Given the frequency of Occurrence Report requests, maintains the Employer it would simply not be practical to have a Union representative present every time one was made.

44Further, the Employer maintains, there is no evidence that it was investigating Mr. Holmquist at the November 21, 2018 meeting. It submits that neither Deputy Andrusco not Deputy Fummerton asked questions of Mr. Holmquist at that meeting, nor did they put any allegations to him. Rather, the Employer says, they simply asked him for an OR. When Deputy Fummerton offered to type his report if he would dictate it, she was simply offering him an accommodation in light of his hand injury, and not trying to put pressure on him. The Employer maintains that this sort of initial fact-finding request should be distinguished from an investigation: Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2019 CanLII 23860 (ON LA) (Slotnick). It also points out that the collective agreement wording in the decisions cited by the Union was different than the wording at hand: rather than using the term “investigate”, as does the relevant subclause of Article 30.1, the agreement in those cases refers to “discussing” matters that could lead to discipline. The plain and ordinary meaning of the term investigate, the Employer submits, is to examine by systematic inquiry. That is not what happened, says the Employer, at its November 21, 2018 meeting with Mr. Holmquist. Moreover, it maintains, the fact that some other information had already been collected did not turn a fact-finding meeting into an investigation.

45In any event, submits the Employer, Mr. Holmquist was offered the right to Union representation on more than one occasion at the meeting in question, and declined it. Mr. Holmquist at first agreed to provide an Occurrence Report, the Employer notes, and only after that asked to see a Union representative, changing his mind. Further, he left without providing an Occurrence Report, and was able to seek Union representation.

46Finally, the Employer submits, even if its actions did not comply with Article 30.1, the remedy should not be to declare the discipline void ab initio. The Employer maintains that each of the decisions cited by the Union is dated, and that more recent case law treats the discipline as voidable, rather than void: Limestone District School Board v. Ontario Secondary School Teachers’ Federation, 2008 CanLII 63992 (ON SCDC); Hamilton Health Sciences v. Ontario Nurses’ Association, 2010 CanLII 35848 (ON LA) (Surdykowski); Labatt Breweries Ontario Canada (Lboc) Division of Labatt Breweries of Canada LP (London, Ontario) v SEIU Local 2, 2020 CanLII 14440 (ON LA) (Levinson); Conair Group Inc. v. International Union of Operating Engineers, Local 115 (Gordon Grievance), [2010] C.L.A.D. No. 248 (Korbin). Under this approach, in order for discipline to be declared void, the Employer contends, the Union must demonstrate actual prejudice to the grievor. The Employer submits that I should take note of this approach in interpreting the Collective Agreement, giving its wording a meaning consistent with their ordinary meanings and surrounding circumstances known to the parties at the time of the formation of the contract: Bruce Power LP v Society of Energy Professionals, 2017 CanLII 94612 (ON LA) (Surdykowksi), at para 38. In this case, submits the Employer, the grievor did get union representation before he submitted his Occurrence Report. When he tried to engage Deputy Fummerton in conversation about the contents of his report she advised him that he would need a union representative if he wished to discuss those matters. Further, notes the Employer, nothing said at the November 21, 2018 meeting formed any part of the decision to terminate Mr. Holmquist’s employment. In fact, says the Employer, his comments at the meeting were innocuous, and were in any event later repeated in his Occurrence Report, and at the allegation meeting. Moreover, Mr. Holmquist had Union representation at both the allegation meeting and termination meeting. Accordingly, submits the Employer, if there was a breach of the Collective Agreement, the remedy should be determined following a full hearing on the merits of the case, as was done in the cases that it cites.

47The Employer sought to distinguish the cases presented by the Union on their facts, for the reasons that follow. In Franssen, submits the Employer, the employer handed over a notice of intention to discipline at the meeting in question. The matter was thus much further down the line of investigation. Moreover, the manager in question insisted upon a response to questions, which was not the case here. In LaHay, submits the Employer, the facts were similar to Franssen, and police were also present at the meeting. The Employer notes that in Pedneault, the meeting was called to investigate the conduct of someone other than the grievor, the arbitrator found that management should have stopped the meeting in question when the grievor unexpectedly admitted fault, and that if the employer had stopped the meeting there and informed the grievor of his rights there would have been no violation. In Xanthopoulos, the meeting was for the purpose of interrogating the grievor, and a notice of intent to discipline came directly out of it. In Simpson, the grievor was confronted with a set of allegations, putting him in a difficult position.

Union Reply Argument

48The Union responds that while the Union representation might not be required ordinarily for submitting an Occurrence Report, in this case he was asked for a report at a formal meeting, an investigation was already underway, and the matter had already been referred to CSOI, indicating that it was serious.

49Further, the Union submits, on Mr. Holmquist’s evidence Deputy Andrusco asked him a follow up question when he began to volunteer information at the November 21, 2018 meeting, and Deputy Fummerton explained the request for an OR by saying that she and Deputy Andrusco “just wanted an explanation” of his meeting with Z.K..

50The Union also maintains that there is no difference between fact-finding and an investigation, and notes that in any event Mr. Holmquist’s Occurrence Report did form part of the investigation when he eventually provided it.

51The Union points out that none of the Employer’s authorities are decisions of this Board. It reiterates that as of 2006 this Board did not require actual prejudice before declaring discipline void ab initio. It contends that the Toronto Transit Commission and Labatt Breweries cases were about meetings at which discipline was actually imposed, rather than investigation meetings, and that the Hamilton Health Sciences case also dealt with a different issue, namely a failure to provide written reasons, which engaged procedural rather than substantive rights.

Decision

52Article 30.1 of the Collective Agreement provides, in part, as follows:

Where a supervisor or other Employer representative intends to meet with an employee…

(b) to investigate matters which may result in disciplinary action…

the employee shall have the right to be accompanied by and represented by a Union representative. The Employer shall notify the employee of this right and advise the employee and the Union of the time and place for the meeting. If no union representative is reasonably available to meet at the time established, the Employer may set a meeting within the next twenty-four (24) hours taking into consideration, to the extent possible, the union’s availability.

When an employer representative intends to meet with an employee to investigate matters which may result in disciplinary action, Article 30.1 thus requires: (1) that the employee have the right to be accompanied and represented by a Union representative; (2) that the Employer give the employee notice of this right; and (3) that the Employer give notice to the employee and to the Union of the time and place of the meeting.

53It is clear, in light of both the construction of Article 30.1 and its purposes, that both notice the meeting and notice of right to be represented must be given in advance of the meeting itself. Notice of the time and place of a meeting is necessarily in advance, and advance notice of representation rights is required to make them fully effective. On the terms of Article 30.1, the right to be accompanied and represented arises in advance of the meeting, when an employer representative “intends to meet” with an employee for the purposes in question. Advance notice of representation rights enables the employee to exercise them as they arise, by securing representation, briefly preparing for the meeting with a representative, and by having the benefit of representation from the outset of the meeting: Xanthopoulos, supra, at page 15. It does this by communicating to the employee that the subject matter of the meeting is potentially consequential, and by confirming that the employee may arrive at the meeting accompanied by a Union representative and be represented by that person without raising any questions about their reasons for doing so or their right to do so. Since the Employer is not required to disclose in advance the purpose of the meeting, the only way to ensure that the employee will know in advance of the meeting that they have representation rights at the meeting is to the require the Employer to tell them so.

54In this case, Deputies Andrusco and Fummerton intended to meet with Mr. Holmquist on November 21, 2018, at the direction of Superintendent Machado, to ask for an Occurrence Report with respect to his meeting on November 16, 2018 with Z.K.. The Employer provided no notice to the Union of the time and place of this meeting. It provided no advance notice to Mr. Holmquist of any representation rights. Mr. Holmquist arrived that the meeting thinking, on the basis of what Employer representatives had said to him, that its sole purpose was for him to deliver a medical note. He was, not surprisingly, unaccompanied and unrepresented.

55Moreover, even once the meeting began, neither Deputy Fummerton nor Deputy Andrusco notified Mr. Holmquist that he had a right to be accompanied and represented by a Union representative. Instead, they asked him if he wished to have Union representation. Asking an employee if they wish to have Union representation is not the same thing as notifying them that they have a right to union representation. It effectively puts the onus on the employee to admit that they see the meeting as one in which Union representation might be advantageous. Here, the question effectively called upon Mr. Holmquist to acknowledge that in asking for an Occurrence Report the Employer was asking for information that might get him into trouble. By contrast, advising him that he had a right to Union representation would have simply communicated that because of how the Employer saw the meeting, he would be fully within his rights if he sought Union representation.

56For all of these reasons, if the November 21, 2018 meeting was “to investigate matters that may result in disciplinary action”, the Employer’s actions could not have been in compliance with Article 30.1.

57The Employer contends that it did not investigate Mr. Holmquist at the November 21, 2018 meeting. The Employer submits that the plain meaning of the word “investigate” is “to examine by systematic inquiry”, and that the simple requests by Deputies Andrusco and Fummerton for an Occurrence Report did not rise to the level of such an inquiry. The Employer maintains that because neither Deputy Andrusco nor Deputy Fummerton insisted upon the request for an Occurrence Report or sought to interrogate Mr. Holmquist, their actions should not be considered as investigation.

58I accept that the ordinary meaning of “investigate” is to examine by systematic, or at least sustained, inquiry. But the purpose of the Employer’s request for an Occurrence Report at the November 21, 2018 meeting was to advance such an inquiry. On November 16, 2018, soon after Mr. Holmquist’s visit with Z.K., the Employer became aware of information suggesting that Mr. Holmquist may have engaged in conduct that may be subject to disciplinary action. It received Occurrence Reports that same afternoon regarding the incident. By November 17, 2018 Employer representatives had begun compiling a Local Investigation Report. In his testimony, Mr. Andrusco said that “the matter was under investigation” by this time. By November 19, 2018 Superintendent Machado had decided to that a CSOI investigation would be required. According to Mr. Andrusco’s evidence, a CSOI investigation indicates that the matter is a serious one. This directly implies that Mr. Holmquist’s actions could be subject to discipline. By the time on November 20, 2018 that Superintendent Machado asked Deputy Andrusco and Deputy Fummerton to request the Occurrence Report from Mr. Holmquist, Deputy Andrusco had collated video evidence of Mr. Holmquist’s actions and reviewed Occurrence Reports on them. That an investigation was underway is further confirmed by how Deputy Fummerton described part of her conversation with Superintendent Machado that day. Explaining why Deputy Andrusco needed an Occurrence Report, Deputy Fummerton said that “he was the one doing the investigation, as she [Superintendent Machado] put it”. Both Deputy Andrusco and Deputy Fummerton understood that obtaining the Occurrence Report was for the purpose of advancing an investigation that was already in progress. Their attempt to gather factual information cannot be separated from the investigation that it sought to advance. It does not matter that they did not interrogate Mr. Holmquist. Interrogation is but one means of advancing an investigation. I can see no textual basis for narrowing the application of Article 30.1 so as to cover only such means.

59In fact, doing so would be contrary to purposes of representation rights articulated by this Board. This Board has found that the purposes of representation rights at meetings with employer representatives include ensuring that employees are fully advised of their rights by an advisor who is likely to be in a better mental state and more able to cope with the issues raised at the meeting (Franssen, supra, at page 8); and ensuring that the employee is not placed in a vulnerable situation with the possibility that inculpatory statements may be elicited (Simpson, supra, at page 11). The Board has recognized that employees will feel pressure to explain themselves when faced with a suggestion by their employer that they may have engaged in wrongdoing, and that this places them in a vulnerable position even where managers are only briefly present with the employee in question: Simpson, supra, at pages 11-12. The Board has consistently ruled that whether the employee volunteers inculpatory information or not is irrelevant to whether representation rights are breached. It is sufficient that an employee be placed in a position where such statements might be elicited in the absence of union representation: Franssen, supra at page 9; Simpson, supra at page 11.

60That is what happened here. The actions of Deputies Andrusco and Fummerton quite predictably placed Mr. Holmquist in a vulnerable position. Mr. Holmquist found himself surprised and unrepresented in the presence of two senior managers who were evidently concerned enough about his actions on November 16, 2018 to seek in-person an Occurrence Report about them, and to ask him if he wished to have union representation when he did so. He testified that he felt pressure to volunteer information. He felt that he needed to explain his actions on November 16, 2018. He did in fact volunteer some information in an attempt to do so.

61I cannot accept the Employer’s attempt to characterize the actions of Deputies Fummerton and Andrusco as initial fact-finding separate and distinct from an investigation. An investigation was already underway. The request for an Occurrence Report was for the purpose of advancing the fact-finding process of that investigation. Any investigation of a matter that may lead to discipline necessarily includes fact-finding. Of course, an Employer may do some initial information gathering before deciding whether to investigate a matter that comes to its attention. But once an employer is aware of information suggesting that an employee may have engaged in conduct that could result in disciplinary action, and has decided to make inquiries into the matter, any fact-finding that the employer does to further those inquiries cannot be meaningfully separated from the subsequent investigation. In this case, the attempt to gather information by obtaining an Occurrence Report from Mr. Holmquist was not “initial” in the sense of being prior to or in any way separate from the Employer’s ongoing investigation. Article 30.1 provides notice and representation rights when the Employer intends to meet with an employee to investigate matters that may lead to discipline. The Toronto Transit Commission decision, cited by the Employer for the proposition that an initial fact-finding meeting is not covered by representation rights, is of no application in this matter. In Toronto Transit Commission, the collective agreement provided representation rights only once an employee was being disciplined or was being interrogated with a view to being disciplined, and directly permitted the employer to meet with an employee without a union representative present for an “initial fact-finding interview”. Article 30.1 does not make directly or imply any such division within the investigation process.

62The Employer argues that requesting an Occurrence Report is simply a regular part of doing business at correctional facilities, one that is codified in policy and well-understood by Correctional Officers, and that does not engage Union representation rights. It points out that had Mr. Holmquist been on a shift on November 16, 2018, the Employer could have asked him to file a report before he went home. Therefore, it contends, the request by Deputies Andrusco and Fummerton at the November 21, 2018 that Mr. Holmquist provide an Occurrence Report is not covered by Article 30.1. I do not agree that this conclusion follows. I accept, as did the Union in its submissions, that not every request for an Occurrence Report engages Article 30.1’s representation rights. However, this is simply because not every request for an Occurrence Report occurs in or makes a meeting one that is “to investigate matters which may result in disciplinary action”. First, such a request can be made outside of any meeting, by mail or email, for example. Second, not every request for an Occurrence Report is to investigate matters which could result in disciplinary action. Obviously, some requests have nothing to do with such matters. Others may seek information before there is a “matter which may result in disciplinary action”. As noted above, for there to be such a matter, the Employer must be aware of information suggesting that an employee acted or failed to act in a manner that could be subject to disciplinary action. For there to be an investigation, the employer must initiate a systematic or sustained inquiry into the matter. A request for an Occurrence Report may occur before an employer is aware of such information, or before any decision has been made or action taken to initiate an investigation. But where a request for an Occurrence Report does occur in a meeting between an employer representative and an employee, and is to investigate such a matter, the fact that requesting an Occurrence Report is ordinarily a routine action cannot exempt it from Collective Agreement requirements.

63I therefore conclude that Deputy Andrusco, with the aid of Deputy Fummerton, met with Mr. Holmquist on November 21, 2018 at the direction of Superintendent Machado to investigate a matter that at that time was one that “may result in disciplinary action” against him.

64I turn to the Employer’s contention that Mr. Holmquist waived his rights to union representation in the course of the November 21, 2018 meeting. Mr. Holmquist denies that he declined Union representation, while Deputies Andrusco and Fummerton say that he did. For the purposes of deciding upon this motion, I need not determine which version of events is correct. I have concluded that even if Mr. Holmquist said what Deputies Andrusco and Fummerton say he said at the outset of the November 21, 2018 meeting, his statements could not have amounted to a waiver of his Article 30.1 rights.

65First, any such waiver would not have addressed the Employer’s failure to provide notice in advance to the Union of the November 21, 2018 meeting, or its failure to provide notice in advance to Mr. Holmquist of his right to be accompanied and represented by a Union representative at that meeting. This Board has found that rights to advance notice are distinct substantive rights: Xanthopoulos. Any possible waiver by Mr. Holmquist would not have covered them. At most, he would have declined an offer of Union representation made to him after he arrived at the meeting.

66Second, even if Mr. Holmquist initially said that he did not wish to have Union representation, as discussed above, he would have done so without having been told that he had a right to it. That is different from knowingly waiving a right.

67Third, I would not in any event attribute the voluntariness necessary to establish a waiver of rights to Mr. Holmquist’s statements and actions. If he declined Union representation, he did so briefly, in a state of surprise, under the pressure of meeting alone with two representatives of senior management apparently interested in whether he had engaged in misconduct; and within moments he changed his mind. On all witness accounts of the November 21, 2018 meeting, Mr. Holmquist was asked to provide an Occurrence Report before he understood why he was being offered Union representation. Mr. Holmquist says that he felt blindsided by the Employer’s request for the Report. In the circumstances, this is entirely believable. The Employer had asked him for medical information and had agreed to his request to meet with Deputy Fummerton to provide it at the time and place in question. It had given him no indication whatsoever that the meeting would serve any other purpose. Mr. Holmquist found himself, to his surprise, in a meeting with two senior managers asking instead for an Occurrence Report about an unrelated matter. The situation conveyed in a very obvious manner that the Employer viewed the subject matter of the Report to be of considerable interest and importance. When he was asked if he wanted Union representation, Mr. Holmquist thus found himself not only surprised but also required to choose between declining Union representation or confirming to two senior managers, by requesting it, that this might be the kind of meeting at which Union representation would be advantageous. Nonetheless, after some brief exchanges with Deputies Fummerton and Andrusco, Mr. Holmquist declined to provide any written information, even the medical note that he had originally intended to drop off, until he had had an opportunity to speak with Mr. Mason, his Union representative. Mr. Holmquist explained that he did this once he realized that he might be under investigation. Deputy Fummerton’s Occurrence Report on the November 21, 2018 meeting confirms as much. It notes that Mr. Holmquist asked her and Deputy Andrusco to confirm that he was under investigation, just before saying that he wished to consult with Mr. Mason before submitting any documentation to the Employer.

68Finally, it would be inconsistent with the purposes of Article 30.1’s protections to treat Mr. Holmquist’s actions as a waiver of representation rights. Under Article 30.1, he had the right to advance notice of his right to representation. Article 30.1’s protections anticipate that an employee should not put in the position of having to decide whether to exercise or waive representation rights in a state of surprise and vulnerability.

69Taken in its entirety, the evidence does not support a finding that Mr. Holmquist consented knowingly, voluntarily, or on the basis of information to which he was entitled under Article 30.1 to waiving his rights under Article 30.1.

70I therefore conclude that the actions of the Employer in connection with the November 21, 2018 meeting with Mr. Holmquist were not in compliance with Article 30.1 of the Collective Agreement.

71I turn to the question of remedy.

72As both parties acknowledged in their submissions, Article 30.1 rights are substantive. This Board has consistently ruled that both rights to representation and rights to notice such as those found in Article 30.1 are substantive rights: LaHay, Franssen, Pedneault, Simpson, Xanthopoulos, Arthur, supra. A party having proven a breach of a substantive right is generally entitled to a remedy that will make them whole.

73In a series of cases decided between 1995 and 2006 interpreting a collective agreement between the Liquor Control Board of Ontario and the Ontario Liquor Boards Employees’ Union, this Board ruled that the remedy for a breach of representation rights, including breaches of advance notice rights, is to declare the subsequent discipline to be void ab initio: LaHay, Franssen, Simpson, Xanthopoulos, Arthur, supra. The only suggestion in this line of cases that another remedy may sometimes be appropriate is found in Pedneault, supra, at page 22, where Arbitrator Briggs, noting that reinstatement was the usual remedy for breach of representation rights, nonetheless considered whether the case was an exceptional one involving sufficiently grave wrongdoing on the grievor’s part that an award of damages would be appropriate. In the end, she concluded that it was not. In Arthur, the most recent in this line of decisions, Arbitrator Stephens, having considered the Board’s jurisprudence, expressed the view that: “[t]he precedents are clear that the appropriate remedy for a breach of Article 26.3 [the representation rights clause at issue] is a declaration that the discipline is void ab initio.” (Arthur, supra, at page 8). This conclusion is consistent with similar statements in Simpson at page 12, and Xanthopoulos, at page 19.

74However, in 2008 the decision of the Divisional Court in Limestone District School Board, supra, shifted the approach in Ontario to remedying breaches of rights to representation. In that case, a unanimous Court overturned on judicial review the decision by an arbitrator to declare void ab initio both the disciplinary action imposed during a meeting at which an employee had been denied rights to union representation, and subsequent disciplinary action taken by the employer in response to the employee’s intemperate reaction to the initial discipline. The important part of that decision, for present purposes, is that the Court found the arbitrator’s ruling that violations of representation rights necessarily render discipline void ab initio to be unreasonable. In the following passage, the Court emphasized that arbitrators should exercise their discretion with respect to remedy in such cases, taking into account surrounding circumstances including the extent of prejudice to the employee and the merits of the employer’s claim that discipline was warranted:

[49] … Clearly, there is ample jurisprudence justifying the revocation of all discipline as an appropriate remedy for an employer’s breach of a union representation clause: Brinks Canada; London (King St.) Purchaseco Inc; Ontario (Liquor Control Board) v. O.P.S.E.U., Liquor Board Employees Division, [2007] O.J. No. 952 at paras. 22-23 (Div.Ct.); Medis Health and Pharmaceutical Services v. Teamsters, Chemical and Allied Workers, Local 424, [2002] O.J. No. 571 at para 14 (Div.Ct.); Toronto (City) v. C.U.P.E., Local 79 (1997), 1997 CanLII 17809 (ON SCDC), 147 D.L.R. (4th)548 (Div.Ct.). However, that does not mean that every time there is a breach of a union representation clause, that is the remedy that must be applied, or even that there must always be a remedy for every breach.

[50] Reasonable decision-making, particularly in the consideration of remedy, requires the application of legal principles to the particular facts of a case. There is no absolute rule that a breach of a union representation clause renders all discipline void. That determination must be made on a case by case basis by the Arbitrator; it cannot be a formulaic response.

[51] A five-member panel of the British Columbia Labour Relations Board examined this issue in British Columbia (Public Service Employee Commission) and B.C.G.E.U., [1995] C.C.L.R.B.D. No. 233, 27 C.L.R.B.R. (2d) 161. The central issue in that case was whether an employer can “re-dismiss” an employee where an earlier termination has been declared void because of a breach of a union representation clause in a collective agreement. However, the Board also considered the inter-connected issue of whether the remedy of void ab initio is mandatory upon finding a breach of representational rights. Because of the importance of the issue, the Board extended invitations of intervenor status to a number of interested business and labour organizations and engaged in its decision in an extensive analysis of the principles involved. In the result, the Board concluded that once a dismissal has been set aside by an arbitrator for breach of representation rights, an employer cannot re-dismiss the employee for the same cause. In the course of coming to that conclusion the Board disapproved of a “presumptive” or “usual” remedy which does not account for the merits of a particular dispute, stating at para 47:

We observe in passing our discomfort over describing something as a “usual remedy”. Such a presumptive approach borders on an a priori remedy which is inconsistent with an arbitrator’s statutory duty under the Code. Further, we do not find the terminology “void ab initio” to be particularly helpful or appropriate in this labour relations context. As we have stated above, where arbitrators set aside a discharge based on a breach of representational rights, they are really finding that the employer has lost authority to impose discipline, and cannot proceed to prove just and reasonable cause.

[52] A similar conclusion was reached by the British Columbia Supreme Court in Purolator Courier Ltd. v. Public Service Alliance of Canada, 1998 CanLII 1283 (BC SC), [1998] B.C.J. No. 336, 156 D.L.R. (4th) 357 (B.C.S.C.) In that case an employee was suspended, then later dismissed, for having contravened the employer’s cash management policies. Prior to the imposition of the initial discipline, the employer failed to provide notice to the employee and union that discipline might be imposed. Both the union and the employee filed grievances. The Arbitrator concluded that a breach of representational rights “must result in a determination that any action taken against the affected employee is void ab initio”: Purolator Courier, para. 13. This arbitrary approach was found to be patently unreasonable by the British Columbia Supreme Court on judicial review. Pitfield J, held, at paras. 25 and 29:

25. While the arbitrator construed the notice provision as conferring a substantive right on the employee and requiring a mandatory course of conduct on the part of the petitioner, it is evidently unreasonable to conclude that any departure from the notice requirement will render all disciplinary proceedings a nullity. Non-compliance with the notice provision must be considered in conjunction with the merits of the petitioner’s claim that the employee’s conduct provided cause justifying the employer’s actions. The arbitrator must weigh the factors against one another and decide whether, in all of the relevant circumstances, the dismissal was justified.

26. To conclude otherwise could lead to absurd results. For example, if the arbitrator’s approach to jurisdiction were to prevail when an employer failed to give the Article 13.11 notice to an employee whom it dismissed when the employee had been convicted of fraud practiced upon the employer over a period of time, the employee would be reinstated because the disciplinary proceeding was a nullity. The employer would be precluded from renewed disciplinary action or “re-dismissal”. The employer would be deprived of a suitable remedy and would be compelled to continue to employ an individual in untenable circumstances.

[53] Likewise, in BPB Canada v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge D274, [2005] M.G.A.D. No. 47 (Graham) the Arbitrator adopted a balancing approach in a situation where there had been breach of a union representation clause, rather than merely voiding the discipline once the breach had been proven. The Arbitrator observed (at para 78) that declaring discipline causally connected to a breach of an employee’s representation rights to be void ab initio was “problematic” and “in some cases will lead to unfair and unreasonable results.” He held, at paras 80 and 81:

80. Accordingly, I cannot accept that in all cases, any discipline imposed after a breach of an employee’s representation rights, which is causally connected to the breach, will be null and void. Such a result will be appropriate in some cases, but not in all.

81. An arbitrator should have the discretion to consider the circumstances of the case, including the nature of the statements or information given by the employee, and the impact of such statements or information on the employer’s disciplinary decision, and the other information on which the disciplinary decision was made, before determining the consequences of an employer’s breach of an employee’s representation rights…

[56] Accordingly, in my view… it was not reasonable for the Arbitrator to automatically impose the drastic remedy she did merely upon finding the breach and without considering that breach within the context of all the surrounding circumstances. In doing so she acted arbitrarily, not reasonably.

75In his 2020 award in Labatt Breweries, supra, arbitrator Levinson reviewed the development of jurisprudence on this issue over the past two decades. He noted and discussed the line of case law standing for the proposition that breach of a representation clause requires a declaration that discipline is void ab initio. I note that the decisions in that line of cases all predate 2010. He then discussed case law treating discipline in such cases as voidable rather than void ab initio. This line of cases stretches back into the 1990s but includes numerous post-2010 decisions. At paragraph 41 of his decision, he concluded that:

[w]hile a breach of article 13.03 [the representation rights clause at issue] can potentially void a dismissal, it is not an automatic consequence. Rather, consideration must be given to all the material circumstances surrounding the breach, when determining the appropriate remedy.

In reaching this conclusion, he found Limestone District School Board to be instructive. In addition, he found, among others, the Hamilton Health Sciences decision, supra, to be persuasive, noting at paragraph 32 of his decision that in that case:

The arbitrator disagreed with the assertion in cases that stand for the proposition that noncompliance with the article in issue or provisions like it categorically void the discipline in issue. He considered such an approach to be far too draconian in the modern labour relations world. In the circumstances of a particular case where the collective agreement does not specify the consequence of a breach, he reasoned an automatic voiding of the discipline may be out of all proportion and result in greater injustice than the collective agreement violation. He was satisfied that the violation in issue may but does not automatically void the discipline imposed. He reasoned that whether discipline is void will depend on the circumstances. He posed the question about the extent, if at all of the grievor and the union being prejudiced by the hospital’s failure to comply with the article in a timely way, and what remedies are appropriate whether or not there is any prejudice. In that case, the arbitrator was not satisfied that either the grievor or the union were prejudiced in any material way that could not be remedied. In that regard, he found the hospital’s violation did not prevent or inhibit the filing of a grievance, that there was no evidence the violation unduly interfered with the grievance process or prejudiced the grievor’s right to a fair hearing.

76Like Arbitrator Levinson in Labatt Breweries, I find the Court’s Decision in Limestone District School Board instructive, and that the reasoning in Hamilton Health Sciences provides persuasive labour relations considerations that are supportive of the Court’s instruction. In light of those decisions and the jurisprudence that is canvassed extensively in them, I conclude that where a collective agreement’s terms do not mandate a particular remedy for a breach of representation rights, whether to declare discipline void should depend upon circumstances such as: (1) the extent of prejudice to the grievor (see Hamilton Health Services, supra, at para 45; Labatt Breweries, supra, at paras 43-45; Limestone District School Board, supra, at para 53, citing BPB Canada v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge D274, [2005] M.G.A.D. No. 47 (Graham)); (2) the merits of the Employer’s claim that discipline was warranted (See Limestone District School Board, supra, at para 52, citing Purolator Courier Ltd. v. Public Service Alliance of Canada, 1998 CanLII 1283 (BC SC), [1998] B.C.J. No. 336, 156 D.L.R. (4th) 357 (B.C.S.C.)); and (3) whether the employer acted in good faith and made an innocent mistake: (see Labatt Breweries, supra, at para 42, and Hamilton Health Services, supra, at paragraphs 38 and 39.

77Article 30.1 does not stipulate a consequence for breach of representation rights, directly or by implication. Further, there is no evidence or argument before me that, on the basis of surrounding circumstances when they negotiated Article 30.1, the parties had any particular understanding as to the consequences or remedy that would flow from a breach of it. Limestone District School Board states, at paragraph 50, that “[t]here is no absolute rule that a breach of a union representation clause renders all discipline void”. In the absence of clear language, evidence, or circumstances of which I may take notice indicating a shared understanding to the contrary, I cannot conclude that the Collective Agreement established such a rule.

78The discipline imposed upon Mr. Holmquist should therefore be treated as voidable rather than void ab initio. In deciding upon the appropriate remedy, I will be guided by factors identified above and by the following considerations. Representation clauses have long been understood to be central to the due process rights provided under a collective agreement: Re Saville Food Products and U.F.C.W., Local 1105-P, 1985 CanLII 5353 (ON LA), 1985 CarswellOnt 2625, 20 L.A.C. (3d) 114 (Brandt; ) Re Hickeson-Langs Supply Co. and Teamsters Local 419, 1985 CanLII 5449 (ON LA), [1985] O.L.A.A. No. 3, 19 L.A.C. (3d) 379 (Burkett), both discussed in Labatt Breweries, supra. Accordingly, any remedy must be sufficient to make the grievor whole and to discourage future violations of the rights in question, consistently with sound labour relations. Where there is substantial prejudice, this may call for declaring discipline void ab initio. In keeping with the fundamental importance of representation rights, employer good faith and innocent mistake would carry relatively little weight in such cases. A declaration that discipline is void ab initio may be made prior to proof of an employer’s case on the merits of discipline, where on its face an employer’s claim that discipline is warranted is outweighed by the prejudice incurred by the grievor. Conversely, where prejudice is limited and can be remedied without such a declaration, or where such a declaration would be out of proportion to the breach in light of the merits of the employer’s claim that discipline is warranted, other remedies including, but not necessarily or necessarily limited to monetary compensation may be appropriate: Hamilton Health Sciences, supra; Conair Group Inc., supra.

79Mr. Holmquist found himself surprised, unrepresented, and uninformed as to his rights when the November 21, 2018 meeting began. In his words, he felt blindsided. This was at a potentially critical juncture in his employment. He had a right not to be put in this position. The Employer’s actions violated rights under the Collective Agreement and prejudiced the due process and employment security interests that they serve to protect.

80Further, I have concluded that the Employer consciously chose a course of action that paid insufficient attention to Mr. Holmquist’s representation rights. Superintendent Machado told Deputy Fummerton that she should offer him union representation when she asked him for an Occurrence Report, out of caution. Deputy Fummerton brought a waiver form with her to the meeting. Such a form serves to record a waiver of rights. She must therefore have considered the possibility that Mr. Holmquist had union representation rights. There is no evidence indicating that any Employer representative decided or had any reasons to decide that he did not. When asked why she did not call the Union in advance of the meeting, Deputy Fummerton said simply that “we don’t arrange people’s union representation”. The Employer’s evidence offered no further explanation. But if Article 30.1 applied, the Employer’s course of action clearly would not have been sufficient to respect its requirements. On its face, Article 30.1 requires both notice of the meeting to the Union and notice of the right to be represented. Having adverted to the possibility that Mr. Holmquist had representation rights that would be triggered by the November 21, 2018 meeting, the Employer either did not inquire into or chose not to conform to their requirements.

81Nonetheless, there is no evidence indicating that Mr. Holmquist suffered continuing prejudice after November 21, 2018, either during the investigation or in subsequent disciplinary proceedings, as a result of the Employer’s breach of Article 30.1, and the Union has not argued that he did. The Employer did not rely on Mr. Holmquist’s statements or actions at the November 21, 2018 meeting when it eventually imposed discipline. Deputy Fummerton subsequently declined to discuss the matter under investigation with Mr. Holmquist in the absence of a Union representative. The Employer complied with Article 30.1 in respect of both the October 17, 2019 allegation meeting, at which Mr. Holmquist had an opportunity to respond to the specific grounds upon which discipline was eventually based, and in respect of the eventual discipline meeting on October 28, 2019.

82Further, the allegations against Mr. Holmquist are serious, including conflict of interest, dishonesty, and attempting to have a colleague cover up his actions.

83Having carefully considered the matter, I am not satisfied that voiding the discipline imposed on Mr. Holmquist would be an appropriate remedy at this stage of the of proceedings. I will reserve my decision with respect to remedy until I have heard the evidence and arguments on the merits of the Employer’s claim that the discipline imposed on Mr. Holmquist was warranted.