GSB# 2021-0342; 2021-0348; 2021-0360

UNION# 2021-5112-0055; 2021-5112-0061; 2021-5112-0073

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Du Preez et al)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 9, 2023

Decision

1This decision relates to grievances filed by three Correctional Officers, Nicholas Du Preez, Dzenan Besic and Lhabu Tenzin (“grievors”), alleging that the employer violated article COR 14 of the collective agreement by refusing to indemnify legal costs they incurred in defending criminal charges brought against them for conduct in the course of performing their duties.

2The relevant provisions of Article COR 14 are as follows:

COR14.1.1 Subject to the other provisions of this Article:

COR14.1.2 An employee charged with but found not guilty of a criminal or other federal offence, because of acts done in good faith in the performance of his/her duties as an employee, shall be indemnified for the necessary and reasonable legal costs incurred in the defense of such charges.

COR14.3.1 For the purposes of COR14.1.2 and 14.1.3, an employee:

COR14.3.2 Shall be deemed to have been found not guilty where: he/she is finally acquitted; the charges are withdrawn; or he/she is discharged following a preliminary inquiry;

COR14.5.1 For the purposes of this Article:

COR14.5.2 The legal costs shall be deemed to have been incurred by the employee notwithstanding that the employee may have received financial assistance from the Union in respect thereof or that the Union paid or incurred the expenses directly; Costs paid by the union will be reimbursed directly to the Union by the Ministry, in accordance with this article.

COR14.6.1 Any disputes regarding the granting of legal indemnification shall be resolved by way of grievance subject to the following: a) Any finding of guilt in a statutory offence proceeding, or b) Any finding of liability in a civil action for damages Shall be determinative of the issue of guilt or liability for the purpose of any grievance proceeding in relation to this Article.

3The grievances were argued on the basis of the following Agreed Statement of Facts (“ASF”):

AGREED STATEMENT OF FACTS

INTRODUCTION

1. The Union and the Employer (the “Parties”) agree to the following statement of facts.

2. This agreed statement of facts (“ASF”) is prepared solely for the purpose, and for no other purpose, of litigating the following grievances filed by the Union:

a. Grievance of Nicholas Du Preez – dated April 29, 2021: GSB# 2021-0342 / OPSEU# 2021-5112-0055

b. Grievance of Dzenan Besic – dated April 27, 2021: GSB# 2021-0348 / OPSEU# 2021-5112-0061

c. Grievance of Lhabu Tenzin – dated April 27, 2021: GSB #2021-0360 / OPSEU# 2021-5112-0073

3. The Parties expressly reserve the right to amend, clarify, or add to this ASF by way of either documentary evidence or viva voce testimony, if necessary.

4. The Parties agree to this ASF without prejudice or precedent to any other complaint, dispute, or grievance of similar or identical nature that may currently exist or that may arise between them either now or in the future.

BACKGROUND

5. This matter relates to the application of Article COR 14 (Legal Indemnification) of the collective agreement.

6. The Union seeks indemnification for the legal fees incurred by the three Grievors in defense of criminal charges against them for conduct that occurred in the performance of their duties.

7. The Union provided financial assistance to the Grievors for the legal fees at the time they were incurred. There is no dispute that the Union may now seek indemnification from the Employer, pursuant to Article COR 14.5.2.

8. There is also no dispute regarding the hourly rate charged by the Grievors’ criminal lawyers under Article COR 14.8.

9. The Parties request the Board to remit the quantum of any remedial award to the Parties if the Board rules in favour of the Union.

THE FACTS and LEGAL ISSUE

10. The grievances arise out of a use of force against an inmate, who reported to the Toronto Intermittent Centre (TIC) on December 20, 2019. At a Sergeant’s direction force was used to move the inmate. The inmate was carried from Admitting & Discharge when he refused to walk on his own to the TIC Segregation Unit. Upon entering the cell, a struggle ensued. Physical injuries were not detected for the inmate until the next day (“the Incident”).

11. Multiple other staff were involved in the Incident but there are no other outstanding issues between the parties save the present grievances.

12. The Employer placed the Grievors on paid suspensions pending investigation of the Incident. The Grievors were charged by police with aggravated assault in March 2020. Five Correctional Officers (“COs”), including the three Grievors, and one Sergeant were charged by police. The Grievors were not charged with a criminal or other federal offence related to the conduct underlying their discipline.

13. The Employer’s Correctional Service Oversight and Investigations (“CSOI”) unit conducted its own investigation while the criminal investigation proceeded. CSOI made findings against the Grievors but did not conclude that any of them used an unreasonable degree of force on the inmate. The Employer agrees that the Grievors acted in good faith in the physical application of force. The CSOI determined:

a. The force used by CO Besic on the inmate was deemed to be justified and reasonable;

b. The force used by CO Du Preez on the inmate was deemed to be justified and reasonable;

c. The force used by CO Tenzin on the inmate was deemed to be justified and reasonable;

d. The force used by CO R. on the inmate was determined to be unnecessary and excessive when he struck the inmate in the face causing serious injury.

14. The Grievors received disciplinary sanction from the Employer based on the CSOI findings in April 2021. The basis for the discipline was that the Grievors engaged in “Code of Silence behaviour” with respect to the Incident. The Union grieved the disciplinary sanction. The Parties executed Memoranda of Settlement in relation to the grievances on a without prejudice and precedent basis.

15. The Grievors sought indemnification from the Employer for their legal fees in defense of the criminal charges against them. The Employer did not grant the requests. The grievances at issue in the instant matter were filed challenging this decision.

16. In June 2021, one of the other staff involved in the Incident pleaded guilty and was convicted of assault causing bodily harm for his/her role in the Incident. The criminal charges against the Grievors were withdrawn at this time.

17. The Union now seeks reimbursement for the legal fees it incurred on behalf of the Grievors on the basis that the charges against the Grievors were withdrawn.

Union Submissions

4Counsel pointed out that it is agreed that the alleged aggravated assault occurred while the grievors were performing their duties as correctional officers; that the grievors incurred legal costs in defending charges of aggravated assault; and that the union had assisted the grievors financially at the time. The dispute is as to whether the grievors met the conditions set out in article COR 14.5.2.

5Union counsel pointed out that while another employee of the ministry pleaded guilty to the same charge and was convicted, the charges against the grievors were withdrawn by the crown at that time. There was no trial and no judgement from the court with regard to their charges. He referred to article COR 14.3.2 which provides that where charges are withdrawn, it “shall” be deemed that there was a finding of not guilty.

6Counsel submitted that the union has also clearly established that in performing the duties that led to the criminal charges the grievors had acted in good faith. Pointing to para.13 of the ASF, he stated that the employer’s own investigations, conducted by the Correctional Service Oversight and Investigations (“CSOI”), did not conclude that any of the three grievors used an unreasonable degree of force on the inmate. To the contrary, the CSOI determined that the force used by each of them was “deemed to be justified and reasonable”. Moreover, in the ASF at para. 13 the parties have also agreed that “The employer agrees that the grievors acted in good faith in the physical application of force”.

7Counsel submitted that, therefore, the only issue for the Board to decide is whether the grievors were found not guilty of the criminal offence, “because of acts done in good faith”. Counsel submitted that the words “because of “ are key. On a plain reading of the article, those words are linked to acts for which the employee was charged but found not guilty. In this case the only acts for which the grievors were charged and found not guilty were “aggravated assault” by use of force of an inmate. In other words, the grievors were found not guilty because the Court concluded that the grievors used force on the inmate in good faith.

8Counsel submitted that for purposes of indemnification under COR 14.1.2, whether or not the grievors acted in bad faith in relation to any conduct other than the acts for which they were charged is irrelevant. For example, if an employee, who had been charged with assault and found not guilty had also violated employer policy/procedure by failing to submit an occurrence report with regard to the incident, that would be irrelevant in determining entitlement to indemnification under article COR 14.1.2, because he/she was not charged for that conduct. If the employer considers that the failure to follow policy was culpable conduct it would be entitled to respond by exercising its management rights, including the right to discipline, subject of course to the employee’s right to grieve. In this case the employer in fact acted in response to the grievors’ code of silence behaviour by disciplining them, and the grievances filed challenging that discipline were settled by the parties. (ASF para. 14). Those alleged violations of employer policy/procedure are matters not within the court’s jurisdiction and were properly dealt with under the grievance procedure set out in the collective agreement. Counsel submitted that to interpret article 14.1.2 any other way would be to ignore the words “because of”.

9Counsel submitted that the Board’s decision in Re Wild, 2011-2731; 2011-2808 (Harris) supports his interpretation of article COR 14.1.2. In a previous decision on the merits of that termination grievance, (Reported at (2015) 256 L.A.C. (4th) 103), Vice-Chair Harris had found that the use of force of an inmate by grievor was excessive and unnecessary, and upheld the termination of his termination. However, in the criminal trial for the same conduct, the court found that the grievor had acted in good faith in applying the force on the inmate and found him not guilty. The employer rejected the employee’s claim under COR 14.1.2 for indemnification of the legal costs he incurred in successfully defending the criminal charge against him. He grieved. Vice-Chair Harris concluded that despite his earlier finding that the employer had just cause to terminate the grievor for his use of the same force on the inmate, he was entitled to indemnification under article COR 14.1.2. Union counsel submitted that I should accept Vice-Chair Harris’ interpretation and reasoning and allow the instant grievances.

Employer Submissions

10Employer counsel acknowledged that the only issue that determines this motion is whether the grievors meet the good faith condition in article COR 14.1.2. He also accepted that the grievors were disciplined for engaging in a “code of silence behaviour” following the incident of use of force on the inmate, and not for the use of force itself. He submitted that the grievor’s code of silence behaviour was a serious breach of trust and that the Board should find that the grievors were not acting in good faith when they engaged in that conduct. Counsel submitted that, therefore, the union has not established the acting in good faith condition in article COR 14.1.2. and urged the Board to dismiss the grievors’ claims for indemnification.

11The employer cited the following authorities in support of its position:

OPSEU (Wild) v Ontario (MCSCS), 2017 CanLII 30323 (ON GSB); OPSEU (Gillis et al) v Ontario (MCSCS), 2018 CanLII 26249 (ON GSB); OPSEU (Collin) v Ontario (MCSCS), 2007 CanLII 11300 (ON GSB); OPSEU (Esser) v Ontario (MCSCS), 2015 CanLII 90136 (ON GSB); Vancouver Police Board and VPU (Indemnity) Re, 2007 CarswellBC 3741; South Coast British Columbia Transportation Authority v COPE Local 378, 2012 CarswellBC 1150; British Columbia and BCGEU, Re, 1998 CarswellBC 3581; Hamilton-Wentworth Police Services Board and Hamilton-Wentworth Police Assn (Chrysler) Re, 2000 CarswellOnt 8921.

12Counsel submitted that the requirement of good faith by employees in article COR 14.2.1 is distinct, and in addition to the requirement that they be found not guilty of their criminal charges. Relying on the authorities above, employer he submitted that the requirement of good faith is in regard to how the grievors acted in performing their duties during the “whole transaction” around the incident, not merely the use of force which led to criminal charges. He submitted that the weight of arbitral authority is to that effect.

13Employer counsel argued that in any event the decision in Re Wild is distinguishable because there the criminal court had concluded in its judgement that the grievor had acted in good faith when use of force was used on the inmate. The Board considered bound to accept that judicial finding. In contrast, the charges against these grievors were withdrawn by the crown. There was no trial and no findings by the court. Therefore, whether the grievors acted in good faith when using force remains an open question. Counsel referred to para. 38 of the Board’s decision in Re Wild, where Vice-Chair Harris states that in the absence of a finding of good faith by the criminal court, there may be lack of clarity on the issue of good faith and that the “the Board might have to consider drawing inferences from what is before it.” He submitted that this is a situation where in the absence of any judicial finding there is a total lack of clarity on the issue of good faith, and the Board should therefore make its own finding on that issue based on all of the facts before it.

Union’s Reply

14Counsel pointed out that in Re Wild the Board noted the difference in the wording used by the parties in the OPSEU collective agreement compared to the police collective agreements in the decisions the employer was relying on. The Board found in Re Wild that generally the grievors had acted in bad faith and upheld their disciplinary terminations. However, the Board noted the words “because of” in article COR 14.2.1 in the OPSEU collective agreement, not found in the indemnification articles in the Police collective agreements, and concluded that in article COR 14.2.1 the requirement of good faith only applied to the acts for which the grievor was charged. Since the judge had found, based on proof beyond a reasonable doubt, that the grievor had acted in good faith in engaging in the conduct for which he was charged, the use of force on the inmate, the grievor’s claim for indemnification of legal costs under article COR 14.2.1 was upheld. Union counsel submitted that the Board’s interpretation of article COR 14.2.1 as well as its reasoning is sound and should be followed in this case.

Conclusion

15I first turn to the issue of good faith. The issue is whether the grievors are required to establish on a balance of probabilities, not only that they acted in good faith when they used force on the inmate which led to the criminal charge of aggravated assault, but also that they acted in good faith when they engaged in the code of silence behavior.

16The Board in Re Wild distinguished the language used in the indemnification provisions in the decisions relied upon by the employer. At paras 34 - 36 it contrasted the language of article COR 14.1.2 as follows:

34There is no disagreement between the parties that the application of the indemnification clause has as its first condition that the employee has been charged with but found not guilty of a criminal charge and that that condition has been met here. The disagreement is as to the effect of the words "because of". As stated in the analysis above, other cases considering an indemnification clause have not in any way constrained the arbitrators from properly engaging in an analysis of whether or not a standalone requirement of good faith, proper performance etc. of duties has been discharged. Here, however, the parties have chosen to link the reasons for the legal finding of not guilty to entitlement for indemnification. The issue here is whether the not guilty conclusion reached by the Criminal Court was because of the acts having been done in good faith. That is, was the finding of good faith part of the reasons for the grievor's acquittal. The plain and ordinary meaning of the sentence requires this conclusion. The question is not whether as a matter of labour relations law, on the balance of probabilities, the grievor acted in good faith. Rather, the question is whether the trial judge's not guilty conclusion, based on proof beyond a reasonable doubt, was driven by a consideration of whether it was because of acts done in good faith in the performance of the grievor’s duties as an employee.

35There can be no doubt in this case that the judge's view was that the grievor had acted in good faith. Further, there can be no doubt but that that finding is part of the judge's reasons.

36The employer here raised the argument that such an approach could lead to absurd results in that the result hinges on the verbal formulation employed by the trial judge. However, there can be no getting around the parties' choice to indemnify members who were found not guilty for reasons that the parties have specified, being, because of having acted in good faith.

17The Board in Re Wild then referred to several arbitration decisions to the effect that where an employee is charged with a criminal offence but is found not guilty, there would be an assumption and even a rebuttable presumption in almost every case that the employee acted in good faith. The Board then wrote at para. 28 “Here, I need not consider inferences or presumptions, because of the clarity of the trial judge’s reasons. However, it may be that in situations lacking such clarity, the Board might have to consider drawing inferences from what is before it”.

18I conclude, as the Board did in Re Wild, that by using the words “because of” in article COR 14.2.1, the parties intended to link the requirement of good faith to the conduct that led to criminal charges. Therefore, to establish entitlement to indemnification under article COR 14.2.1, the union is required to prove only that the acts that led to the criminal charges and the subsequent not guilty finding were engaged in good faith.

19I agree with employer counsel that the instant case is distinguishable from Re Wild, in that here the Board has no finding of good faith by the criminal court or any other authoritative body. Therefore, the Board has to make its own finding based on the evidence before it, whether the acts for which led to the criminal charges against the grievors were engaged in good faith.

20However, in this case also there is no need to resort to assumptions or presumptions because there is no lack of clarity even in the absence of a finding of good faith by a court. The material before the Board is conclusive that the grievors’ use of force on the inmate which led to the criminal charges were engaged in good faith.

21First, there is agreement that the employer carried out its own investigation into the incident of use of force through the CSOI (ASF Para.13). It is agreed that the CSOI “made findings against the grievors but did not conclude that any of them used an unreasonable degree of force on the inmate.” The CSOI found that another correctional officer used force on the inmate which was unnecessary and excessive. However, it determined that the use of force on the inmate by each of the three grievors was “deemed to be justified and reasonable”. If that finding by the CSOI is not compelling evidence of good faith, the employer itself has agreed that to be the case. Thus the ASF at para. 13 explicitly states that, “The employer agrees that the grievors acted in good faith in the physical application of force”.

22In light of the above, I have no hesitation finding that the union and the grievors have met their onus under article COR 14.2.1. They have established on a balance of probabilities that they acted in good faith when applying force on the inmate.

23I allow the grievance and find that the grievors are entitled to be reimbursed for the legal costs they incurred in defending the charges against them. It is so ordered.

24The Board remains seized with any disputes that may arise in the implementation of this order.