GSB# 2019-1201
UNION# 2019-0252-0018
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Haist)
Union
- and -
The Crown in Right of Ontario (Ministry of the Solicitor General)
Employer
BEFORE
Brian McLean
Arbitrator
FOR THE UNION
Kamal Bakhazi Koskie Minsky LLP Counsel
FOR THE EMPLOYER
Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel
HEARING
April 1 and 19, May 17 and 19, 2021; February 14, March 21, October 12, November 14, 2022; January 9, April 3, May 18 and 26, 2023
Decision
1This is a discharge grievance. At the time of his discharge the Grievor was a correctional officer (CO) working at Niagara Detention Centre. He was represented in his employment relations with the Employer by the Union. On or about May 4, 2019, he got into an altercation with an inmate (“Inmate T” or “the Inmate”). In the altercation, the Inmate assaulted him and the Grievor used force to attempt to subdue the Inmate. Eventually other COs arrived on scene and the Inmate was subdued and taken to an isolation cell. While the Employer has other grounds for discipline and discharge, one of the central issues in this case is whether the Grievor used excessive force in attempting to subdue the Inmate. The Employer called witnesses to describe what had occurred and to speak about training and appropriate use of force methods. There was also Employer video evidence which was heavily relied on by both parties. The Union relies on the cross-examination of those witnesses and oral evidence given by the Grievor. This decision determines the grievance of the discharge.
The Facts
2In setting out the facts, I rely on the oral and documentary evidence before me. In addition, as noted, important evidence in this proceeding were videos which show, without sound, much of what occurred in the incident which led to the termination of the Grievor’s employment. However, some of the most important events (including, most importantly, some of the force used by the Grievor against Inmate T) are not so clearly seen on the videos as the view of the camera is both awkwardly placed and partially or wholly obstructed by the bodies of people involved in the incident.
3The Grievor has been a CO since May 2016, starting at Hamilton Wentworth Detention Centre. He moved to Niagara DC in or about March 2019. He spent the first period of his employment at Niagara DC shadowing other COs to understand and get used to his new workplace. Niagara DC is a maximum-security correctional facility.
4The events which led to the Grievor’s discharge took place in a dayroom in 1 wing (the maximum-security wing) in the institution. The dayroom has several tables and chairs which are fixed to the floor. Inmate T was sitting on a tabletop with his feet on a chair. There were a few other inmates standing and lounging around the area. At the time, the maximum-security unit was a “special needs” unit which housed more vulnerable inmates who were effectively in protective custody and who would be at risk of being victimized in other units. Inmate T was one of the inmates with special needs.
5The Grievor gave evidence that in the morning he and Inmate T had a disagreement. It started when Inmate T began complaining vociferously about another inmate. Apparently, the other inmate had mental health issues or was under stress and had been placed in the unit the day before and kept Inmate T up much of the night by making loud noises. Inmate T’s complaints were so severe, and according to the Grievor so aggressive, that the Grievor decided to confine him to his cell for the remainder of the morning so that he could calm down. The Grievor testified that in this period Inmate T repeatedly asked what the Grievor’s name was and where he lived. The Grievor did not tell him. Although inmates often know the names of COs, because the Grievor was relatively new to the institution, his name was not known. The Grievor testified that he was disturbed by the request for his address because in his mind that could only mean the Inmate was up to no good. However, he did not report his concerns.
6The Grievor took lunch and afterwards spoke with Inmate T to see if he had calmed down. The Grievor believed he had calmed down and was ready to come back to the dayroom with the other inmates, so he let him out. Until the incident, there was no suggestion that Inmate T was acting up after being let out of his cell. Prior to the incident, Inmate T can be seen on the video sitting on a table talking with another inmate.
7The Grievor is required to conduct rounds of the unit every 30 minutes. Rounds involve walking through the dayroom, looking in each cell, and making contact with an electronic device(s) at the far end of the dayroom to confirm the round has been completed. The incident took place as the Grievor was completing a round. During the round, there were no other