GSB# 2016-0135

UNION# 2016-0229-0002

Appendix A Attached

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cody et al)

Union

• and -

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

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE UNION

Christopher Bryden (Counsel for Cody et al) Ryder Wright Holmes Bryden Nam LLP Counsel

David Ragni (Counsel for Brian MacDonald) Koskie Minsky LLP Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 2, October 18, November 29, December 1 & 9, 2021; January 17, 25, 27, March 28, September 23, 29, October 11, November 3, 2022; November 14 & 28, 2023; June 12, September 19, 24 & 26, 2024

Decision

1I have before me a number of grievances arising out of unusual and disturbing circumstances which allegedly took place at the Ontario Correctional Institute (OCI), a correctional facility operated by the provincial government. The grievances have been consolidated. There are four Grievors. The three Grievors Shane Cody, Terrence Wong and Eugene Durocher, (represented by OPSEU’s counsel, Mr. Bryden and hereafter referred to collectively as “the Grievors”) accuse the fourth Grievor, Brian MacDonald, (represented by OPSEU’s counsel, Mr. Ragni and hereafter referred to as “MacDonald”), of engaging in a course of conduct over a long period of time which involved, among other things, physical abuse and threats made with a knife (or bladed tool) while at work. The Employer investigated and accepted these allegations as truthful and terminated MacDonald’s employment by letter dated October 5, 2017. Mr. MacDonald denied the allegations and filed a grievance. The Grievors also filed numerous grievances alleging, among other things, that the Employer permitted a poisoned work environment and failed to maintain a violence free workplace. All of the grievances are before me.

Overview

2The Grievors allege that Mr. MacDonald threatened, bullied and harassed them over a number of years. Each of the Grievors was unaware that the other two Grievors were the subject of MacDonald’s unwanted attention throughout much of this period. However, in or about June 2016, two of the Grievors, Wong and Durocher, had a chance meeting in which they discussed what had happened to them and they decided to make a complaint against MacDonald. Later the third Grievor, Cody, also made a complaint about various things that he alleges had happened to him, including his treatment by MacDonald and management’s failure to stop and prevent that alleged mistreatment.

3After making their complaint to management about MacDonald, the Grievors were instructed to make a criminal complaint to the police. They did so, and in July 2016 MacDonald was charged with assault, assault with a weapon and uttering threats. Following a preliminary inquiry at the Ontario Court of Justice from the Fall of 2017 to 2019 at which the three Grievors testified, those charges were referred to trial. However, the charges were ultimately withdrawn due to prosecutorial delay under the timelines set out in R v. Jordan 2016 SCC 27, [2016] 1 S.C.R. 631. The parties (including the Crown) then agreed that MacDonald be subject to a peace bond and other conditions designed, in part, to keep the parties apart. The order for a peace bond was dated August 13, 2019.

4The grievances were then referred to arbitration before a different arbitrator. That arbitrator held a number of days of hearing. The matter was then referred to arbitration before me and I started the proceedings, essentially from scratch. The parties appeared before me and led evidence about what occurred at the OCI which took many hearing days. However, they agree that I am not to determine any of the legal issues in the grievances at this point. Instead, at this stage, I am only to make findings about what occurred. These are those findings.

Background

5OCI is a correctional facility located in Brampton. During the relevant time it mainly operated as a treatment centre for approximately 200 drug and alcohol dependent offenders and sex offenders who were nearing the end of their sentences. It was a minimum-security facility. This means that Correctional Officers (“COs”) who worked at OCI were, among other things, “case managers” who guided 4-5 resident inmates through their rehabilitation process. OCI had resident support staff, like social workers, to assist residents in their rehabilitation efforts. Some residents were escorted to off site programs such as alcoholics anonymous. In addition, residents had considerably more freedom than at other correctional institutions. For example, they could sign themselves in and out of a living unit to engage in woodworking, gardening and other pursuits. It was a relaxed, relatively open-door setting. It was a unique institution in Ontario.

6Importantly, some of the staff at OCI formerly worked at Mimico Correctional Centre and only moved to OCI after Mimico’s closure in 2011. Mimico was a medium security facility for adult males which was staffed by regular COs. MacDonald was a former Mimico CO.

7An unusual aspect of this case is how old the allegations are and how long it took for them to get to arbitration. There are a few reasons for these unusual circumstances as are discussed above. In addition to those reasons for delay, the evidence also took a number of days to put in. Given the number of incidents involved (13 incidents were cited in the termination letter) and the sheer volume of evidence I heard, I find it appropriate to describe the evidence I heard with respect to each alleged incident, the arguments in relation to that evidence, and my findings of fact pertaining to each incident. I will also make findings in relation to general issues that informed my ultimate decisions.

The Witnesses

Shane Cody

8Cody became a CO in 2005, starting at Central North Correctional Centre. In 2006 he transferred to OCI and remained there until its temporary closure in April 2020 due to the COVID-19 pandemic and renovations at OCI. After OCI’s closure for renovations he was assigned to Maplehurst Detention Centre.

9Cody testified that he enjoyed working at OCI and took great pride in his job. Part of his enjoyment stemmed from the fact that did gardening as part of his duties, working with inmates. At OCI he had 4 or 5 residents under his rehabilitation supervision and conducted or attended resident group sessions.

Torance Wong

10Wong has been a CO since 2008. He started as a casual CO at OCI and became full time around 2017. At the time he testified he was a CO at Maplehurst DC.

Eugene Durocher

11Durocher started at OCI in February 2009. At the time he testified he also worked at Maplehurst DC. He became a full time CO in late 2016 or early 2017. He had a spouse and children during at least some of the incidents at issue.

Brian MacDonald

12MacDonald had very lengthy seniority, approximately 33 years with the Ministry, at the time of the termination of his employment. He started in 1984 at Mimico Correctional Centre and worked there until its closure in 2011 when he transferred to OCI and worked there until his employment was terminated on October 5, 2017, for his alleged treatment of the three Grievors. He generally worked the night shift at OCI which was from 1900 – 0700. He has been friends and a workmate with a manager at OCI, Sgt. Montgomery, for more than 30 years. Prior to working at OCI they worked together at Mimico. He had long standing relationships with several COs who had worked at Mimico and then transferred to OCI.

13There was evidence, which I accept, that there were a number of relatively inexperienced staff at OCI and a core of very experienced staff. MacDonald found some of the inexperienced staff frustrating to work with. He claimed that he minded his own business for the most part. He said he gets his work assigned and he does it. He tried to give the newer staff advice and tips but, according to MacDonald, that was not always received well. He had disagreements with both senior and junior staff, however. As a witness he had a very calm demeanour, but I heard much evidence, which I largely accept, that he was not always so calm in the workplace. A fellow CO, Barry Roy, testified that he was frequently outspoken and loud in the workplace. MacDonald disagreed with Roy’s evidence but respected his right to have that opinion. He also disagreed that he was harsh in the workplace. He did acknowledge that he was strict. He did not agree with Roy’s opinion that he could be “unpredictable”.

14MacDonald believes that the three Grievors colluded against him. In fact, he believes that Durocher brought Wong and Cody into the complaint against him against their will. However, he does not believe, and does not take the position, that the other COs who also testified, Roy, Montgomery or Tulloch colluded with the Grievors. However, he disagrees with some of their evidence.

Tom Montgomery

15Montgomery was a Sergeant at OCI. He had very lengthy seniority and was retired at the time he gave his evidence before me. He and MacDonald have been friends for a long time and worked together at Mimico.

Lisa Tulloch

16Tulloch was a CO who came to OCI from Mimico. She was at Mimico from 2006 to 2011 and transferred to OCI on Mimico’s closure. She had a good relationship with MacDonald (“friendly and cordial”) who was her co-worker at Mimico. She met Wong and Durocher when she got to OCI. They got along “fine” with each other. She had no issue with either of them. She has known MacDonald for a long time and had never had an issue with him. He has always treated her well.

Barry Roy

17Roy was a CO at OCI after starting his career at Mimico many years ago. He was also heavily involved with the Union over the course of his career. The evidence was that he had a somewhat rocky relationship with MacDonald particularly within the timeframe of the events that are before me. However, overall neither man believed that they did not have a good work relationship.

The Grievances

18There are many grievances before me. As noted, many of them relate to various incidents which are alleged to have occurred at OCI. The parties called a lot of evidence about, among other things, these incidents. The parties agree that at this stage, having heard the evidence, I am to make findings of fact without determining the legal and labour relations significance of those facts.

19I note that the witnesses have had a number of occasions to “tell their stories”. Each of them (other than MacDonald) filed one or more occurrence reports about the incidents. They all spoke with correctional services oversight and investigations (“CSOI”) investigators. The three Grievors also all testified at the preliminary inquiry regarding the criminal charges filed against MacDonald and were cross-examined by MacDonald’s criminal counsel on their evidence.

20I will describe each of the major incidents which were the focus of the evidence setting out the testimony I heard in brief. Following that, I will discuss some of the major factual issues which generally have application to more than one incident. I will then make my findings of fact regarding the various incidents. I reserve the right and remain seized to, where necessary, make further findings of fact after this decision is issued.

The Incidents

2010- Woodshop Incident (Complainant: Durocher)

21Durocher wrote in an occurrence report (“OR”) (and confirmed in his evidence) that the first time he had been assaulted by MacDonald was in the Spring or Summer of 2010. The incident took place on the night shift in front of the woodwork shop at around 9 or 10pm while Durocher was on his break. Prior to the incident, Durocher came in from his shift and MacDonald was in the control module and was supposed to open the door to let Durocher in but did not immediately do so. Durocher said something like “What took you so long to open the door?”. Durocher’s evidence is that they were joking together following that.

22Durocher then went back to his unit for his break. MacDonald came down the hall and stood behind him, put him in a headlock, pulled a knife out quickly and put the knife to his throat. Durocher saw and felt the knife. He testified that he was frozen in fear. At that time, he was relatively new to the Ministry. MacDonald said, “What are you going to do Durocher? – Don’t move”. Durocher complied.

23Durocher described the knife as a black folding knife with a black blade which was about four inches long. His impression was that the knife looked to have been sharpened many times because it was missing a part where it had been sharpened. On his evidence it was not the institution’s “911 knife” (which is to be used in emergencies). The “911 knife” had a curved blade and the blade used by MacDonald that night had a straight blade.

24MacDonald then took the knife away from Durocher’s throat and put it in his pocket and walked away. Durocher testified that this was the first time he had been seriously assaulted by MacDonald. Durocher did not report the incident at the time it occurred and there were no witnesses. His evidence was that he did not report MacDonald out of fear. He had heard many stories about MacDonald from others. He knew that MacDonald was close friends with Sgt. Montgomery and other senior COs, and he did not feel safe. He was also afraid of reprisal, such as losing his job as he was still not a permanent employee.

25Durocher’s evidence was that he had seen MacDonald with this knife before in the institution but had not reported it. He said that MacDonald liked to “brandish his knife as a showpiece” and “almost brag” that he is good with a blade.

26At the time, Durocher told his best friend and his wife what had happened. Neither of them was called as a witness to verify this evidence. Durocher also testified that he spoke to Sean Dawes, another CO, about the knife incident. Dawes told him that MacDonald had put a knife to his leg and threatened to cut the artery. Dawes was not called as a witness, so this evidence is hearsay, and I do not rely on it.

27Under further cross-examination Durocher agreed that he was a casual employee prior to late 2016 or early 2017 when he became a full-time employee. He also acknowledged that misconduct or lapses could have jeopardized his gaining full time status. He repeated that he was too afraid for his “life” and his job to report MacDonald for keeping a knife in the institution. He knew that MacDonald had a good relationship with Sgt. Montgomery. For this reason, he also did not record the incident (or later incidents) in his notebook, although he agrees he should have. He had no real explanation for why he did not record in any way what had happened to him. Even after he claims that MacDonald had pulled a knife on him for a third time, (as is discussed below) he never took a note of that or recorded it in his notebook or other document.

28He acknowledged that utility officers sometimes carried a set of keys called utility keys which open various doors in the institution. He denied that MacDonald held those keys to his throat and not a knife. He saw the knife, not keys.

29He was also cross-examined about his general relationship with MacDonald. It is clear that in general he and Macdonald got along and sometimes joking with each other. He also acknowledged that he had asked MacDonald to fix his computer hard drive, and he did so. The computer hard drive contained personal information. However, Durocher denied that he ever engaged in horseplay with MacDonald. If he did anything physical with him it was in self-defence. His evidence was that horseplay was not common at OCI and he did not engage in it at all. He did however acknowledge “razzing” MacDonald (including in a falsetto voice) some time after the time he claims that MacDonald pulled a knife on him. He also engaged in frequent verbal banter with MacDonald.

30He was questioned about why he was not afraid of MacDonald in these instances, and he answered that none of these interactions involved a knife being put to his throat.

31Durocher was also asked about his understanding of an incident that occurred prior to his working at OCI. In that instance, MacDonald had been accused by an inmate of pulling a knife on him. MacDonald had been investigated and the allegation against him was not substantiated. Durocher’s evidence was that he heard about this from five to ten different COs and they all suggested that MacDonald had actually pulled the knife as alleged by the inmate. He had not heard that the allegations had not been substantiated.

32Durocher acknowledged that not reporting that there was a knife in the institution was both a violation of his responsibilities as a CO and had the potential to put others at risk. He agreed that a failure to report could have resulted in discipline for himself and that discipline on his record could have affected his ability to be made a full-time employee.

33Under further cross-examination Durocher acknowledged that he did not report the presence of a knife in the institution as he was required to do. He again claimed he did not do so out of “fear for my life”. It was “no joke” according to Durocher. He acknowledged that as he looks back, he would do things differently. But at the time he was a junior officer without full time status who was afraid for his life and his job- “it was very scary”. He agreed that in the end nothing happened, but he thought that was because others were watching his back.

34On July 5, 2016, Durocher wrote an OR about the incident. He also told his story to the CSOI during its investigation. The OR and the CSOI notes are similar to the evidence he gave before me.

35His OR stated in relevant part:

In 2010 verbal banter insued (sic) down the back hallway in front of the [institution’s] wood shop. As we came within an arms reach of each other C.O. MacDonald pulled a knife from his right front pocket and in what seemed like an instant he had the knife against my throat with his right hand with his body facing the same direction and behind me using his left arm to brace me. At this point I was paralyzed by fear and shock.

36In his interview with CSOI investigators on December 20, 2016, Durocher descried the incident roughly as follows. The notes were taken by the interviewers and are not a verbatim record:

He had a break at 2100 hours. He was working a unit and he was the utility officer and a patrol was being done. They both ended up in a back hallway in front of the woodshop. They were walking towards each other. They engaged in regular normal verbal banter. At this time CO MacDonald grabbed him and swung behind me so we are both facing the same direction and this is the first time he took the knife out of his right pocket. He could hear it click open. CO MacDonald was wrapped his left arm around his chest and put the knife, with the blade to his throat with his left hand and said “what are you going to do now?”. He held the knife against his throat for about 5 seconds. (he did see the knife] Then CO MacDonald would voluntarily release his grip and let him go.

He froze when this occurred. He didn't say anything about of fear of reprisal. He only told his ex-wife and best friend about the occurrences.

He was junior and heard stories about CO MacDonald who is a senior officer and he was so confused on what to do as he had no witnesses and there was no video cameras to speak of the incident. He experienced an array of emotions from fear and anger and didn't know what to do so he decided to ignore him in the future. From this day forward there was no verbal banter, nothing to engage with him.

37After MacDonald was criminally charged Durocher gave evidence at the preliminary inquiry and was cross-examined on that evidence. That evidence continued to be substantially consistent with his previous recounts of what had happened.

38His evidence before me was therefore largely consistent with his OR, the evidence he gave to the CSOI investigators and to the court. This consistency is perhaps surprising given that when he testified before me, this incident had occurred more than ten years prior. However, it is also likely the case that he had the records of his previous evidence and recounts before him in preparing for his testimony in this arbitration.

39MacDonald’s evidence-in chief was this incident “never happened, none of it happened”. There was no verbal banter in front of the front desk, and he did not pull a knife on Durocher near the woodshop or anywhere else. Under cross-examination, MacDonald repeated that this incident never happened and that Durocher was fabricating the whole thing. MacDonald’s evidence was that he never had a knife in the institution.

40He also testified that on one occasion he saw Durocher with a switchblade knife in the institution, and he saw him repeatedly throw it on the floor (6-8 times) as he leaned against the credenza in the front desk area. MacDonald told him not to do that. He did not report Durocher to management.

2010 Head Butting Incident (Durocher)

41Durocher’s evidence was that he was subjected to MacDonald’s violent horseplay on several occasions over the course of his career. This included headbutts and slaps to the head and chest. MacDonald frequently engaged in this type of activity with many staff.

42Durocher claims that on one occasion, early in his career (around 2010), MacDonald went to head butt him. Rather than accept this attack, Durocher met MacDonald with his own head butt which he said in his 2016 OR “nearly knocked us both unconscious”.

43MacDonald denied that this incident occurred. He said that “it never happened” and that he would “have recalled it if it was true”. There were no witnesses called. Durocher could not recall whether anyone witnessed this incident. MacDonald acknowledges that he, like others, engaged in rough horseplay in the institution. Hie evidence was that no one ever complained about it. It was simply a way to develop camaraderie and blow off steam on the night shift he generally worked where there was a lot of downtime.

2011 - Key Press Incident (Durocher)

44Durocher alleges that in the Spring or Summer of 2011, MacDonald verbally threatened Durocher while they were both at the “key press” (a “safe” where the institution’s keys are kept) which is located in front of the Shift In Command (“Shift IC”) office. The incident started when Durocher was on duty at unit-6. He got a call from MacDonald who said, “What the fuck are you doing with the utility keys - bring them back now”. MacDonald threatened to call management. Durocher replied: “Are you the one who called Sgt. Montgomery to let him know I had utility keys out?” MacDonald said “Are you calling me a rat? Say it again and I will come down there and cut you where you stand”. Durocher testified that he was scared by this threat because MacDonald had already put a knife to his throat.

45Durocher went to the key press. MacDonald was there. Durocher said “Here are your precious keys. If you want to tell the manager, go ahead”. Durocher pointed to the manager’s office. He put the key back and MacDonald started calling him a “goof” and a “piece of shit”. Durocher walked away. Durocher believes that the on-duty Sergeant, Jim Roberts, heard the altercation at the key press. Durocher’s evidence was that the Sergeant’s office was feet away and Roberts must have heard MacDonald who was yelling, threatening and serious in doing so. Roberts was not called as a witness.

46Under cross-examination Durocher testified that he signed out the utility keys to use them to gain entrance to the institution’s gym for a workout. He acknowledged that the keys were meant for the utility officer’s use. MacDonald was the utility officer on that shift; Durocher was not. MacDonald needed the keys to do his job and Durocher did not. Durocher was asked if he agreed that if the utility officer does not have the keys, then MacDonald could not do his rounds. Durocher’s answer was that the utility officer could not get through doors but could do a round. He was then asked if the utility officer might need to get through a locked door during his shift and he agreed that was true. He also agreed that if the utility officer wanted to get into a unit, he would need the keys.

47Durocher’s evidence was that MacDonald threatened to call the Sergeant to explain what had happened. That concerned Durocher because “it was a very little issue that did not need to involve a Sergeant”. Durocher accused MacDonald of telling Sgt. Montgomery even though it was “not a huge issue”. In Durocher’s view MacDonald did not need to yell and he did not need to threaten to tell the Sergeant. It just seemed juvenile according to Durocher.

48In his evidence, MacDonald agreed that there was a disagreement between him and Durocher regarding keys. MacDonald testified that he came in for his shift and went to the shift IC office to find out his assignment which was as a utility officer. He went to the key cabinet (key press), punched in the code and found that all the sets of keys were out. The last set, #7, had been taken out by Durocher who was not supposed to have utility keys because he was not the utility officer. Because he had no keys, MacDonald could not do his job. MacDonald called Durocher and told him to bring the keys back. Durocher responded with a lot of profanity including “who the fuck are you? My boss?”. MacDonald said, “if you don’t bring the keys I will tell the Lieutenant”.

49MacDonald waited at the key press and Durocher, in an angry state, came with the keys. MacDonald said he said something to the effect of: “Eugene mad at me. Look at him. He won’t even talk to me”. Durocher responded with “why don’t you just go upstairs [where management offices were located] and rat me out?” MacDonald was asked whether he said to Durocher “If you call me a rat one more time, I will cut you where you stand”. His response was: “I did not say those words. It’s a little dramatic”. He did not recall calling Durocher a “fucking goof”. He denied yelling at the top of his lungs and said that Durocher was in his face. He said that nobody had ever complained that he was yelling at the top of his lungs during his time at OCI. However, he agreed that he probably raised his voice.

50MacDonald was advised in cross-examination that Durocher would be recalled as a witness and deny using profanity. MacDonald’s response was that “profanity is part of his vernacular” and that Durocher used it in this instance.

51Durocher was recalled as a reply witness and denied saying anything like “Who the fuck are you? My boss?”. Under cross-examination Durocher agreed that he did swear while at work although “not aggressively like that, but yes”. He was very upset by the way MacDonald was speaking with him.

September 24, 2011- Reception Incident (Cody)

52On September 24, 2011, Cody was working the night shift. He was near his break time and went to the Shift IC office to see who was going to relieve him. The office was located at the front of the institution, just inside the secure area and near the main entrance and public area (where members of the public might come to be let in for visitations etc.).

53The Shift IC that night was Sgt. Montgomery. Cody testified that, in his view, Sgt. Montgomery was “sort of a loose cannon”. Cody testified that Montgomery, on seeing him, asked Cody “what the fuck are you doing in the front area?” Cody responded that he was checking the roster and using the washroom (there was a washroom located near the front entrance). Montgomery told him to go back to his post in the living unit. Cody responded by continuing to question Montgomery’s order while not returning to his post as he had been told.

54MacDonald showed up on the scene, saw what was going on and, according to Cody, started verbally attacking him. Cody’s evidence was that MacDonald called out his name, walked up to him and, began yelling in his face, calling him “a fucking rat” and a “fucking goof”. He recalled that he told him, “Cody you are a fucking goof. Get back to your fucking unit”. “You better do what Montgomery tells you to do”. MacDonald’s face was very red, and his fists were clenched, and his voice was loud. When MacDonald told Cody that he was a fucking goof and rat he said it from close proximity. In Cody’s view MacDonald, who was much taller than him, was looking down on him, yelling in his face. He also said, “your time is coming” and “you better watch your back”. Cody took MacDonald’s statement to “watch his back” as a threat.

55Cody told MacDonald that he was nothing but a “blue shirt”. What he meant was that he was a regular CO and not a member of management and he could not tell him what to do. COs wear blue shirts as part of their uniform. Sergeants and other more senior management employees wear white shirts.

56Cody then went to his unit, “Unit 6”. He went to see another CO who had witnessed the confrontation and said, “that was so fucked up”. The other CO’s advice to Cody was to not do anything (like report MacDonald) and if he did, to not include him. That CO was not called as a witness.

57Cody returned to the front area and saw MacDonald there hanging out with other COs; they were all laughing as if a good joke had been told. Later that night he saw Sgt. Montgomery in the hallway and told him “I want to be the bigger man, and I want to apologize”. His evidence was that Montgomery replied that it was “not about being the bigger man” and that Cody was in the wrong. Cody’s evidence was that he said, “how can I be in the wrong given the actions of MacDonald?”. Sgt Montgomery replied that MacDonald “is just pissed off with all of the self entitled younger staff”. Cody replied that he was not self entitled. Montgomery said that “if Cody ever pulled anything like that again, he would be out of the institution so fast it would make his head spin”.

58According to Cody, Sgt. Montgomery had a loud voice, and he was yelling at him. Cody felt vulnerable because he was still a casual/part-time employee and he was therefore of lower status than other full-time COs. Cody said it was very scary and in fact he is still scared of MacDonald. He believed that MacDonald had a reputation of beating up inmates. He had heard a rumour and believed that MacDonald had brandished a knife at an inmate in 2007.

59At the end of the shift Cody returned his keys to the key press. When he did so, Roy, another CO who was working in the control module that night, told him to “keep his chin up”.

60Sgt. Montgomery gave evidence about this incident. In this instance he was in charge of the shift. Around shift change time he saw Cody lingering in the lobby area when he should have been waiting in the unit (where he was assigned) for his relief. He told Cody that “we don’t do relief in the lobby”. He told him to return to the unit at which point Cody started to argue with him. At that point Sgt. Montgomery was sitting in his office (the Shift IC office) which was located just off the lobby area. He got up from his desk and noticed that another staff member, Jim Bonham was there. Cody told Sgt. Montgomery that he had come up to use the lobby washroom. Cody asked Sgt. Montgomery why he was “picking on him”.

61MacDonald appeared on the scene and said to Cody “Do what the Lieutenant told you to do!” Cody responded to MacDonald with “You are a blue shirt” which Sgt. Montgomery understood to mean that they were both of the same rank and that MacDonald had no authority over him. However, Sgt. Montgomery noted that MacDonald was considerably senior to Cody and that the institution relies on senior employees to give directions to more junior staff. Cody kept repeating “blue shirt, blue shirt”. Eventually, Sgt. Montgomery ordered Cody to go back to his unit, and he did so.

62After Cody left, Sgt. Montgomery testified that he called MacDonald into his office and said that he appreciated that he was trying to help but it would be better to do it in a different way. MacDonald replied that he was concerned that a lot of the newer staff had trouble following directions and Sgt. Montgomery agreed with him. He told MacDonald to “do better” and sent him back to work. He saw no need to reprimand MacDonald further. This was consistent with his personal philosophy which was that it is not his job to discipline people.

63Later in the same shift Sgt. Montgomery was in the living unit area and he saw Cody who said to him: “I was wrong. I am sorry for what I did. I won’t do it again”. Montgomery accepted the apology and told Cody it “was over and done with”.

64MacDonald’s evidence was that he was doing patrols when he came near the reception/foyer area of the institution and heard raised voices. He saw that Cody and Sgt. Montgomery were in a bit of an argument which was not heated. He heard Sgt. Montgomery tell Cody to return to his unit and Cody argued with him. He could tell Sgt. Montgomery was not happy.

65MacDonald then told Cody “Do what you’re fucking told - it is that easy”. Cody yelled “Blue shirt. Blue shirt”, which MacDonald understood to mean that he had no right to tell him what to do as he was a CO, not a manager. Sgt. Montgomery then told Cody to return to his unit and Cody “stormed off”. MacDonald denied calling Cody a “goof” or a “rat”. He also denied saying “your time is coming” and “you better watch your back”.

66MacDonald called Roy as a witness to this event. Roy testified that he was located in the control bubble which is located near the shift IC office and could see and hear what occurred. His evidence was that he had normal co-worker relationship with Cody (although it was clear he did not care for him as a CO) and they frequently worked on the same shift. Roy had worked with MacDonald and Sgt. Montgomery at Mimico. He was also the president of the local union at that time and had been a steward and held other union positions from time to time.

67He became aware there was a dispute when he heard Cody speaking loudly with Montgomery, but he could not hear the words because the control office was glassed in. He saw MacDonald come onto the scene and heard Cody yell “Blue Shirt! Blue Shirt!”. They were communicating with each other loudly enough that he could hear them through the glass. He heard McDonald yell at Cody “Do what you are told”. Things were serious and Cody moved towards MacDonald.

68In Roy’s view, MacDonald was sometimes harsh with staff that did not do their jobs properly. He put MacDonald’s conduct in this incident in this category. He also believed that MacDonald did not necessarily follow the rules himself all the time. While Roy was collegial with Cody, he had a poor view of him as a CO. He believes that he is an opportunist.

69Sometime after the incident occurred on March 27, 2012, Cody filed an OR about the incident. In it he stated in part:

After about 2 minutes of standing by the front desk OM16 Montgomery, Tom noticed me and asked me what I was doing. I found it odd that I was being asked so I responded by saying that I was waiting for C/O Mills to relieve me to which OM16 Montgomery told me that I can't do a shift-change over at the front desk and that only general duty officers can do that. I said I wasn't doing a shift change-over at the front desk and that I was simply waiting for C/O Mills. OM16 Montgomery once again told me that I can't do a shift-change over at the front desk and told me to get back to my unit. I looked at C/O Bonham who was still standing at the front desk and then looked back at OM16 Montgomery who was telling me that a shift change-over can not be done there. I didn't understand why OM16 Montgomery was noticing me and not the other person who is standing right before him so asked OM16 Montgomery why is it that he notices me and not C/O Bonham, is it because I'm a casual and not full-time? OM 16 Montgomery told me that I'm being converted into full-time and I should act like one. He also said I'm getting close to being insubordinate and that I should get to my unit now.

As I was leaving the shift I/C’s office to go back to unit-6 I heard someone call out, “Cody you’re a fucking goof” in a very loud voice. I turned around just outside of the shift I/C’s office door to see C/O MacDonald, Brian coming around the corner from the staff lounge hallway. C/O MacDonald was red in the face and his fists were clenched as he approached me. He repeatedly called me a fucking goof while he got into my face/personal space. I looked over at OM16 Montgomery who was still sitting at his desk and ask him how is this behavior was acceptable when standing at the front desk wasn't? When I said this, CO MacDonald came in closer to me and started shouting even louder in my face telling me that, “Your time is coming!” and that I was “a fucking goof”. I said to OM16 Montgomery that this is unreal and I can't believe that this is actually happening to me right now. I then turned to walk back to unit-while C/O MacDonald was yelling at me saying that “You better watch your back” and that “Your time is come you fucking goof!”

I was relieved from unit-6 by C/O Mills about 5 minutes later. When I arrived at unit-3 I was overwhelmed with grief and was sick to my stomach. C/O Bonham was waiting for me there and when I saw him I felt like I was going to break down and cry. C/O Chander, Harish was also in the unit-3 office and I really didn't feel like telling him what just happened but C/O Bonham was telling me to remain calm so this sparked interest. I told C/O Bonham that I wasn't going to stand for this kind of treatment and what C/O MacDonald did was wrong and very frightening so I was going to write a report. C/O Bonham told me to calm down and to think before I act, that I didn't want to mess with C/O MacDonald. C/O Bonham told me I was wrong in the first place for being there to which I said that he was there as well and why is that a casual gets noticed before a full-timer? Why is that I'm wrong when someone like C/O MacDonald could say and do the things he did in front of a manager and nothing happened but yet I was the one who was getting close to being insubordinate? I said this is crazy and it only was able to happen because OM16 Montgomery and CO MacDonald are longtime friends. C/O Bonham said this is right and that's why I should tread lightly with what just happened. I told C/O Bonham that I’d at least go for a walk and try to cool down before I do anything.

70Later, as described above, Cody met Sgt. Montgomery in the hallway. He reported the following (among other things) about their encounter:

At this moment I felt even lower and incredibly invisible and I knew that this could not continue so I said to OM16 Montgomery that I want to be the bigger man and apologize for my actions. OM16 Montgomery turned towards me and said this has nothing to do with being the bigger man and that I was wrong and if I ever questioned him again, he'd walk me out of this place faster than my head could spin. I said that's fine but I told him he better speak with C/O MacDonald because what he did was outright unwarranted and was very frightening.

OM16 Montgomery said that C/O MacDonald wasn't angry at me but at the situation and how the Ministry is going. I asked OM16 Montgomery what he meant by this comment to which he answered by saying C/O MacDonald is tired of all the self entitled younger staff who think they can do whatever they want. I told OM16 Montgomery that I'm not one of those people and that I'm simply on edge because of the upcoming roll-over [where he would be converted to a full time employee with all of the benefits that entails] and I'm wondering if it will actually happen. I told him I was tired of living a life that was in constant limbo as a casual and then I apologized once again for my earlier behavior. OM16 Montgomery said it was water under the bridge and we shook hands but I had to remind him once again to please speak with C/O MacDonald to which he said he would.

Aftermath

71Cody’s evidence was that he did not want to create problems at work. However, he later realized that he was incredibly naïve. After the interaction with MacDonald, he was in a “dream like state” and could not believe what had happened to him. His evidence was that the word “goof” in a correctional institution had a special meaning. It is a “go” word. If one inmate calls another inmate a “goof” that results in a fight between the two instantly. Cody’s view was that MacDonald was calling him a goof as an instigation to fight.

72He was aware that Sgt. Montgomery and MacDonald were long time friends (“two peas in a pod”, according to one witness) who had worked at Mimico together. He was given advice from other COs that filing a report would be a bad idea. Accordingly, he decided not to file a report. On September 24, 2011, Cody and MacDonald shook hands. Cody thought their feud was over. However, on his evidence, that was not to be the case.

2012 Knife Incident (Wong)

73Wong was asked in examination-in-chief whether there were other incidents where MacDonald was physical with him. Wong testified that in 2012 he heard a knife opening and felt a sharp, thin metal blade against his neck. He heard a click sound as the knife opened. He believed that MacDonald opened the knife with one hand. MacDonald denied this incident occurred.

March 14, 2012 Sidewalk Incident (Cody)

74Cody gave evidence about another incident between him and MacDonald which took place in March 2012. Cody was leaving the institution to go to the parking lot; MacDonald was coming into the institution from the parking lot on the same path as Cody. As they passed each other on the path MacDonald made solid contact with Cody (“shoulder checked” him). He did not say anything; he did not apologize. Cody also did not say anything. Cody’s evidence was that the body check was strong enough to “move his upper body” although he did not fall down. He recognized that the feud with MacDonald was not over.

75In his testimony MacDonald agreed that he and Cody made contact while they were walking on the sidewalk towards each other as MacDonald was leaving the parking lot coming to the institution. As he walked past Cody he felt a sharp blow against his shoulder. Cody walked away and MacDonald thought nothing of it; he just worked his shift. He reported this incident in an occurrence report filed much later.

76Cody went on vacation and thought about what had happened. He decided he needed to report MacDonald. On March 27, 2012, Cody went to management’s offices to file an OR about the path and Montgomery/MacDonald incidents with the institution. It was headed: “Bullying/ Poisoned Work Environment”. He went to the Union office and was going to share it with the Union but the Union official was on the telephone when he got there. Accordingly, he went to the office of the deputy superintendent, Don Chillman. Chillman read the OR while Cody was there in his office and afterwards told him that he had to sign it before submitting it. Cody’s evidence was that Chillman also told him the police should be notified since this was an assault that took place at work. However, Cody advised that he did not want that. He was concerned about repercussions in the workplace and was just writing it down in case more things happened to him, which he was afraid of.

77Cody testified that the fact that he had been called a “rat” heightened his concerns. It raised the spectre that he would not be backed up if he got into a physical altercation with an inmate. Cody testified that all COs know that there is a Code of Silence in corrections under which COs do not report other COs. Breaching the “Code” by “ratting out” a fellow CO could lead to consequences for him. He testified that there was a phrase he had heard: “snitches get stitches”. He nevertheless decided to sign and file the OR.

78He did not hear anything for some time, although he believed that MacDonald and other COs sympathetic to MacDonald deliberately and openly shunned him. The police were, to his knowledge, not called. Eventually, Deputy Superintendent Roddy Brazier came to him and asked if he wanted to drop the OR. He followed up two more times with the same question. The Local Union president also asked him the same thing on a different occasion.

79Eventually, according to Cody, he succumbed to the pressure. On April 13th 2012, Cody wrote another OR which stated:

On Friday April 13th, 2012, about 0642 at the Ontario Correctional Institute, I was working 0700 - 1900 on unit 6 when I was informed of some stressing information. This is my first shift back to work since I handed in my report on Friday March 30th, 2012 titled “Bullying/ Poisoned Work Environment” and I've already heard from a coworker, CO Pinnock, Mark that OM16 Cuncins, Ed was talking about my report with him and said that I'm stupid for handing it in, that I'm only making things worse for myself and that OM16 Montgomery doesn't care about what happened because he can retire at anytime.

I know this is hearsay but I find it disturbing nonetheless. I feel that I have suffered greatly with what has happened to me and with the idea that I had to relive it over by writing down the events that had taken place on Saturday September 24th 2011 and then on Wednesday March 14th 2012. In my report, “Bullying/ Poisoned Work Environment” I spoke of my fears, my anxiety and my feelings of gaining a negative label among the people I work with, all to hear that a manager, OM16 Cuncins is continuing this cycle of a Poisoned work environment by speaking with people have nothing to do with the situation.

To the best of my ability I do not remember OM16 Cuncins being anywhere near OCI on the dates that my stressful events had taken place so I don't know why he had taken it upon himself to make comments about them? If OM16 Cuncins had taken it upon himself to speak with one person who has told me of the conversation, then how many other people has OM16 Cuncins spoken to that haven't told me as of yet? I am in distress with the thought that now OM16 Montgomery's boys are looking for retribution and this could be the beginning of a greater, “Bullying/ Poisoned Work Environment” for me.

80Cody testified that he recalled the conversation with Pinnock, “but barely”. What he testified he remembered is the information that was set out in his OR. He found it unsettling that people were talking about his business, especially given that ORs were supposed to be confidential. His evidence was that “Montgomery’s Boys” referred to all the managers since they were a tight knit group”. When he filed the OR with Brazier he was given no words of encouragement.

81As noted previously, on April 14, 2012, Cody and MacDonald shook hands and agreed to put their differences in the past. On May 13, 2012, Cody wrote another OR confirming their understanding. The email concluded with the sentence: “This has been a taxing experience and I am thankful to put it to rest but more so, I am thankful that we work in a place where conflict can be resolved in a diplomatic way”. His evidence was that he did not really believe his problems were over despite what his OR stated.

2012- Knife in the Break Room Incident (Durocher)

82Durocher wrote in his OR dated July 5, 2016, and testified before me, that in 2012 he was sitting in a chair in the breakroom when MacDonald came up to him and put a knife to his neck from behind.

83His evidence at the criminal preliminary hearing was that there was banter between the two of them; they were “chirping” each other back and forth. Durocher’s evidence was that he was sitting in a big lounge chair. Suddenly, MacDonald came around behind him, put his arm around his chest and then put the knife to his neck. He did not see the knife because he was looking forward. He heard the knife “click lock”. He felt the knife on his neck for two to three seconds. MacDonald then let go and went away. MacDonald said something like “don’t move Durocher”, or, “what are you going to do now?”.

84MacDonald’s evidence was that incident did not happen; none of it happened.

2013 Incident (Cody)

85Cody’s evidence was that in 2013 MacDonald put him in a headlock. At the time both men were located in the Foyer area. MacDonald denies doing so. His evidence was, in essence, that he did not trust Cody enough to engage in that kind of horseplay with him.

May 2015 Incident (Wong)

86Wong testified that in May 2015 he was alone in the jail’s breakroom lounge at about 9:30 pm watching television. MacDonald entered the lounge and peered over a partition to where Wong was sitting. Wong heard the click of the knife opening and then MacDonald used his left hand to push Wong’s hands away from his neck and then put a knife to his neck for 10-15 seconds. The steel was cold. MacDonald told Wong, “I got you. Don’t move. What are you going to do now? You know it would be your fault if you moved and you get cut.” No one else was present. Wong did not resist; he did not do or say anything for fear of MacDonald taking it further and exerting more force. Wong testified that he had tunnel vision.

87Wong was in tears as he gave this evidence which included the testimony that MacDonald stopped holding the knife to his neck and walked away with a look of enjoyment about him. Wong did not report this incident or speak to anyone about it. He testified that he thought that he was the only victim.

88He confirmed this incident to the CSOI investigators in much the same terms as he testified before me although there were added details. He spoke of a cloth privacy partition which MacDonald ducked down behind and then he told the investigators that he “heard the familiar click of a knife”.

89He also testified about this at the preliminary inquiry. He told the court “he rushed up upon me when I was sitting down in the chair and he pushed my –again, he pushed my chin over to my left shoulder, exposing my neck, and again placed the knife on my neck”. He did not see the knife; in fact, his evidence is that he has never seen the knife. He felt the cold, sharp blade upon his neck. Before the court he testified that the incident happened at 1:30 am.

90MacDonald denied that this incident occurred and asserts that it is completely inconsistent with the fact that they had a good working relationship. MacDonald’s evidence was that he called Wong “the Wonginator”. He did that because Wong was going to the gym a lot, “boosting himself” and he wanted to raise his morale to encourage him. Wong just laughed when MacDonald called him that. MacDonald claims to have had no issue with Wong and would not and did not put a knife or any other item to his throat.

September 10, 2015- Val Montgomery Incident (Cody)

91Cody testified that on September 10, 2015, there was another incident involving Val Montgomery who was Sgt. Montgomery’s wife. She works in the institution as a stores clerk. Cody went to her to get some items, and she called him a “jackass” under her breath. He responded, “that was inappropriate”. She said, “I did not say anything I just sneezed”. She told him not to say anything. Cody made a report on that day and submitted it to the security manager who supervised Ms. Montgomery. Ms. Montgomery did not testify.

92On or about December 22, 2015 Cody agreed to mediation between himself and Ms. Montgomery and asked for an outside mediator to be appointed. His evidence was that the problems with their working relationship were not “long resolved” and he wanted nothing to do with her. Cody was upset by his understanding that the assigned government mediator had been in touch with Ms. Montgomery but not with him. In fact, his evidence was that the mediator never spoke to him. All he wanted was for her to apologize to him. He filed a grievance because his complaint was not taken seriously. By March 2016 Cody had given up on trying to reconcile with Ms. Montgomery because in mind too much time had passed, and he had lost confidence in the process.

93With respect to another issue, the “pens issue” Cody agreed that he had mimicked what Ms. Montgomery said to him. He also agreed he chastised her in front of residents which he agreed was not appropriate.

94On March 22, 2016, Cody received a non-disciplinary letter of expectation with respect to the complaint he made against Ms. Montgomery. The letter noted that his complaint that she called him a jackass was not substantiated. The expectation was that he should take an active role in developing positive working relationships with his co-workers including Ms. Montgomery. On April 16 Cody filed a grievance with respect to the circumstances surrounding the letter of expectation. His evidence was that after he filed the grievance, he started to receive unwelcome attention from MacDonald of the same nature that he had received before.

September 2015 Incident (Wong)

95Wong testified that he was working on the night shift at around 1:45 am and MacDonald came up quickly behind him. Wong heard the click of a blade. The next thing he knew, MacDonald reached over and pulled Wong’s neck to the left side and held the blade to his neck. Wong recognized MacDonald’s voice but did not see the knife. He recognized the sound of a knife opening in a single-handed motion. He felt a sharp thin metal blade against his neck.

96MacDonald asked Wong, “what are you going to do now?” Then he said “Don’t move. You know it is your fault if you move, and you get cut”. Wong found it terrifying; his body was shaking. At the time Wong was giving this evidence he was again in tears.

97Wong’s evidence was that he was afraid to file a report or make a complaint. He wanted to keep his job and was concerned that he would be subjected to retribution for reporting a fellow CO. This was especially the case since he knew that MacDonald had worked with and had long time relationships with a number of COs who came from Mimico, including managers. He was concerned that any complaint would come to nothing and would be covered up.

98In his evidence before the preliminary inquiry, he testified that the “first significant incident” was around February 2016. That incident is discussed below. However, he later described this alleged incident in much the same terms as his testimony before me. He was asked how he knew it was MacDonald, and he answered, “because he said the same lines like he always says”. Things like: “Don’t move. If you move, you are going to cut yourself. It will be your fault”.

99MacDonald denies that any of this occurred.

2015 or 16 Incident (Durocher)

100Durocher’s OR stated that in the winter of 2015/16 in front of the control module MacDonald put a knife to his throat. Durocher says that he quickly responded: “Why do you need a knife at work you coward?” According to Durocher, MacDonald turned around and “looked at him very seriously” and said, “shut the fuck up!”.

101Durocher stated in his OR that after that time, there were no major incidents between the two men. However, Durocher was still afraid because of the threats with a knife that he had received. Moreover, MacDonald would still occasionally head butt him or slap his forehead. Durocher said that anytime he was alone with MacDonald he would inflict pain on him. He poked him, grabbed him, slapped and “juked” him. He does not recall the dates when those things happened.

102On one occasion at the key press MacDonald went to head butt Durocher, but Durocher met his head butt with a head butt of his own. His evidence was that was the last time MacDonald ever tried to head butt him.

103Durocher was asked whether the word “goof” has a meaning? He answered “not to me. But it was something the inmates said to each other to produce a fight”.

104Durocher did not file an OR about any of the incidents in or around the time they took place. He said he did not do so because he did not want things to get worse. He hoped it would just stop. He did not want MacDonald on his bad side.

February 2016 Incident (Wong)

105Wong testified that in February 2016 he was assigned to unit-1 of the institution on the overnight shift and was returning from a break. MacDonald was in the unit office and MacDonald had arrived and was waiting in the office for him. He motioned him into the office, but Wong refused and stood outside. Wong’s evidence was that he thought MacDonald was going to do something bad to him. MacDonald told him “Come on in. What are you afraid of?”

106Wong’s evidence was that he walked into the office and MacDonald pushed him up against the wall face first so that he could not see what he was doing. He heard the click of a knife. MacDonald held the blade against his neck (Wong did not see the knife) and “said what he always said”: “What are you going to do? I got you now. Don’t move. You know it is your fault if you get cut”. Wong did not say anything, and MacDonald left.

107Wong believed he and MacDonald were alone during this incident. However, an hour or so later, a fellow CO, Tulloch, called him and asked: “What is going on?”. Wong responded, “what do you mean?”. She said “I saw what happened with MacDonald. What is going on”. Wong replied that “he has done it before”. Tulloch then offered to go with Wong to management. Wong told her that he wanted to think about that. In the end he decided not to take Tulloch up on her offer and he did not go to management. No one else saw the incident.

108There is no dispute that MacDonald was on his rounds leading up to the incident. The institution has a CO patrol tour system which confirms that COs do their rounds as required. Doing rounds involved taking a small handheld “wand”, which the COs generally refer to as the Diester, and waive it or touch it at various locations which have a black roundel which the COs call Diester “pucks”. The Diester records the touch and is proof that the CO was at that location at that time and thus was doing his/her rounds. Wong testified that what he felt on his neck was not the Diester. It was a knife.

109Tulloch was summonsed and gave evidence before me. She said that on the night of the incident, she was doing break relief on all of the treatment units including unit-1. She could not recall what unit she was on at the relevant time, but she was relieving Wong while he took his break. He returned from break after 11pm. Shortly after he arrived, MacDonald, who was doing rounds, also arrived. COs perform rounds every 30 minutes from 11pm to 7am.

110She saw Wong and MacDonald together bantering. She thought they were joking around. She then heard MacDonald say softly to Wong “Don’t make me do it” or “Don’t make me do this”. Her evidence was that those words caught her attention because of the tone of MacDonald’s voice. The way he was talking made her think it was a bad situation. She saw MacDonald standing at the door and he had a “little knife in his right hand”. He was far from the Diester puck. She described the knife as “like a pocketknife”. It had a silver blade which was about two inches long. It was not very big. Counsel asked if she was sure it was a knife. She responded, “I am pretty sure”. She did say that she did not think it was a Diester or a stapler. Prior to this incident Tulloch had never talked to Wong about MacDonald having a knife.

111Tulloch then left the area without saying or doing anything. In July 2016 management required her to file an OR about the incident. The reason that she did not file one immediately is that she spoke by telephone with Wong a short while after the incident on the evening that it occurred. She called because she believed that she saw MacDonald with a knife, something which she had never seen before. She asked Wong- “Did he really have a knife? Is that what I saw?” He responded “Yes. This is not the first time”. He did not want her to do anything. He told her he had everything under control, and he was handling it. Therefore, she did not report it to anyone at that time.

112Tulloch agreed in cross-examination that it was “possible” she was mistaken about whether MacDonald was holding a knife. However, she indicated that she saw a thin silver blade which was 2-21/2 inches long. It was a blade, not a key fob, she said.

113She then did not hear anything about it for quite a long time. Someone brought up some similar issues; she thought it was Durocher. He told her that he and MacDonald had gotten into an argument. Durocher was upset and he told her he did not know what he was going to do. Shortly after that she received a call from Peel police. It was unexpected. However, she had never witnessed anything untoward between Durocher and MacDonald. She was supposed to testify but the whole thing was dropped.

114She testified that MacDonald wore big silver rings. She thought maybe one of them was in the shape of a skull. Under cross-examination by Mr. Bryden, she testified that she did not think the item she saw could have been the institution’s 911 knife. She said that “In my mind, the thing I saw was straight while the 911 blade is curved”.

115In his evidence MacDonald was asked about whether he said to Wong “don’t make me do this” and agreed it was possible he said that. He was asked why he would say something like that and he answered because “he likes to joke around”.

116He was also asked about Wong and Tulloch’s evidence that he was holding a knife. His answer was that maybe he had the Diester in his hand and she saw that and believed it was a knife. He also speculated that it could have been a stapler, the fob and key for the institution’s Volkswagen car, or some other office tool. He vehemently disagreed with the accusation that he had a knife. In cross-examination, he agreed that it could not have been the fob because that was not available at the time of the incident. In the end, while MacDonald asserted that he did not have a knife on this occasion he had no recollection of what it was he did have. Tulloch saw him holding something, which he does not deny, and he has no memory of what it was.

117MacDonald was asked in examination-in-chief about Wong’s testimony that he asked Wong to come into the office and said “Come on. What are you afraid of’? His response was that he did “not recall this event”. He denied putting a blade to Wong’s throat and asking him “what are you going to do?”. However, with respect to Tulloch’s evidence about the incident he claimed to have “no specific recollection” about the event. Nevertheless, his evidence was that he did not doubt Tulloch’s veracity. He noted that she assumed they were joking around and his evidence was that this assumption was correct. In this respect “don’t make me do it” was said jokingly. She could not have seen a knife and suggested that she may have seen the Volkswagen fob with its key extended. It was about the length she described it. However, he later acknowledged that it was unlikely to have been the fob.

118MacDonald had no explanation for why Wong would make an accusation like this if it was not true. On MacDonald’s evidence the two of them got along fine. He said that Wong had no problem approaching him and that Wong ordered Chinese food for him to be eaten at OCI. In his mind they had a cordial relationship.

June (or July) 8/9, 2016 (Durocher)

119Durocher wrote in his OR that on June 8, 2016, he was working the night shift and was tired and not feeling well at about 5am. He sat in a chair and reclined and closed his eyes. MacDonald was on patrol duty and came in the office where Durocher was resting and said: “What the fuck do you do at home when you should be sleeping? Then you come in here and just fucking lay around”. Durocher replied: “Why do you feel the need to comment every round you make? Why don’t you just sign the book and drift?”. His statement was that MacDonald then came up to him and grabbed his head at the temples very hard in a “claw grip”. Durocher, in pain, slapped his hand away. MacDonald then left.

120The evidence that Durocher gave before me was largely consistent with his OR. Durocher’s evidence was that he was on the night shift at approximately 5am and sitting in a chair, not feeling well. MacDonald was doing rounds and came up to him and said to him “Don’t you sleep at home?” and the “what do you do at home when you should be sleeping?”. Durocher said to him “can’t you just sign the book (to show that he had been there on his round) and leave? You always have a comment. Just sign the book and drift”.

121According to Durocher, Macdonald “postured up” (puffed up his chest) and said “what?”. MacDonald then grabbed Durocher by the head with one hand as if he was “palming” a basketball. He squeezed his temples. Durocher then jumped from the chair, thinking he was going to be assaulted “or worse”. He yelled “Get your hands off me. I am not your little brother”. MacDonald told him to stop yelling; you are going to wake up the entire unit”. Durocher replied, “I don’t care if I wake up my unit. Keep your hands off me”. MacDonald then shut the door and left the unit.

122Durocher was asked how he felt about what had happened. His response was that “this was the last of his assaults by MacDonald. It left him heated”. He was tired of being “assaulted, bullied and manhandled at work”. He would tolerate it no longer.

123Durocher testified at the preliminary inquiry to much the same story. However, there were added details as can be seen from the following excerpt from the transcript of his testimony:

He's a big guy. He's got-big hands. He liked palmed my- my, my head like a little basketball basically and squeezed my temples, and at 5:00 in the morning when I already wasn't feeling well, and I just- it just- and I truly thought that he was gonna put that knife to me again and I felt like I was in like the -total position of disadvantage, I sprung to my feet and I remember saying, I'm not your little brother, keep your fucking hands off me and I yelled that like full out yelled that to him, and he told me shut the fuck up Durocher, you're gonna wake your whole unit, and I said I don't, I don't care, no wonder nobody likes you and, then he said, oh nobody likes me eh? And I was like, yeah nobody likes you. I was like-and then I don't- maybe a couple of other things got said, but he had- grabbed his Diester and came- and then left the unit.

124MacDonald’s evidence was that at approximately 1:50am he was at the front desk and told the Staff Sergeant that he was going to do his rounds. He ended up at unit-4 where Durocher was situated. He saw Durocher lying in his office chair. He was wearing a hooded shirt which was cinched up tight so that only his eyes were showing. He appeared to MacDonald to be sleeping. MacDonald says he asked him “what do you do all day that you cannot sleep at home?”.

125His evidence was that Durocher stuck out his right arm and “flicked” his groin. He then dropped his feet to the floor and said “get the fuck away from me”. Durocher then used an open palm to shove him back in the rib cage area and said, “don't ever touch me again”. They exchanged further words and stayed away from each other for the remainder of the shift. MacDonald denied that Durocher slapped his hand away because, he said, his hand was not there.

126After the June 8, 2016, incident, Durocher went off work. He says he had trouble sleeping. He had to decide what to do about his situation. He was under a lot of stress and duress because if he reported the situation, he knew it would involve the police and there would be years of “arduous meetings and hearings”. Prior to making a decision, he spoke to Wong, and two other COs, Terrance Thomas and Rob James, who also worked the night shift.

127Durocher asked James whether he should come forward or confront MacDonald with his assault allegation. James, who was not called a witness, said “no”. He had also given Wong similar advice.

128Durocher also had a conversation with Thomas who had worked with MacDonald in Mimico. He also said that Durocher should not confront MacDonald or come forward to make a complaint. Durocher was a casual employee at the time, and it was suggested that coming forward might affect his chances of becoming a full-time employee. He had already been casual for 8 years and he had young children. He also noticed that casual COs are treated differently than full-time COs.

129With respect to Wong, Durocher was walking past Wong’s unit and asked him if he had heard about his experiences with MacDonald. He explained that he had one a couple nights before and it was really stressing him out. Wong replied that he had not heard of it. Then Durocher asked Wong if he had seen MacDonald’s knife. Wong replied “yes-many times”. Durocher then told Wong that MacDonald had put a knife to his throat and Wong replied that he had done the same to him. Durocher’s evidence was that he realized that he was not alone at that point. This conversation occurred in the parking lot as they were leaving (it is unclear how this adds up with the earlier evidence about where the conversation took place). This was the same weekend as the assault; one of his last shifts before he went on leave. Shortly after that conversation he filed his OR. His leave ended up being 5-6 months. He was on leave when he submitted his OR.

130On June 29, 2016, Durocher contacted Roy off duty. Roy’s evidence was that Durocher was in a “very emotional state”. Durocher asked for advice and direction. He spoke to Roy because at that time Roy was Union president and also Durocher’s friend. He told Roy that he had been assaulted for years. Roy had worked with CO MacDonald for many years at Mimico. Durocher inferred from Roy’s comments that he (Roy) had a duty to put in a report about their conversation if Durocher filed a report. Durocher trusted him. Roy advised that if Durocher did not put in a report, he would not file a report about their conversation. Durocher claimed that he had been the subject of abuse, physical bullying and being threatened with a knife by having it placed against his throat. Durocher told Roy that he feared for his safety and life. Ultimately Roy’s assistance was limited by the fact that he was friends with MacDonald. Durocher asked Roy to write an OR explaining their conversation but that he should wait until July 4, 2016, to file it. Roy agreed to do so and also strongly suggested that Durocher contact the Employee Assistance Program.

131On June 30, 2016, Durocher submitted an OR about the incident. Roy did not hear back from Durocher but filed his own OR on July 4th, 2016. Roy assumed Durocher had filed his own OR by then but did not know for sure. Roy testified that he vaguely recalled the contents of his OR. On July 5, 2016, Superintendent Kasha directed Durocher to write another OR which would describe any other incidents he had experienced with MacDonald. He wrote the report that day. He started out by describing that MacDonald had a long history of slapping him in the back of the head, slapping his forehead, “palming his head” and head butting him. He described that he felt pain every time MacDonald did these things.

132Durocher’s OR dated “June 30, 2016” referred to this incident as occurring on July 8, 2016. There is no dispute that Durocher got one of the dates wrong. Given that Roy’s OR was dated July 4, 2016, it seems that Durocher’s report was dated correctly but the final incident took place on June 8, 2016, not July 8, 2016, as the OR states. In any event, the evidence given by Durocher before me very closely matched what he wrote in the OR.

133After filing his OR Durocher spoke to Superintendent Kasha on the phone, and she told him to call Peel police which he did. Tulloch testified that after MacDonald was arrested, she heard talking about the fact that Durocher was “not solid”.

MacDonald Arrested

134On July 8, 2016, Peel police arrested and charged MacDonald with assault, assault with a weapon and uttering threats under the Criminal Code. On July 17 Cody provided a statement to the police after being contacted by them. Wong also spoke with the police.

Ongoing Allegations 2016 (Cody)

135Cody was on stress leave from July 22 to October 11, 2016.

136In August 2016 Cody filed an OR about the events that had occurred since he had made his police report, including the various Facebook posts made by co-workers in support of MacDonald. He paid specific attention to Montgomery’s comments which he said supported workplace violence by implication in that he used the word “karma”. He also alleged that the Employer had allowed these behaviours to continue for a long time. “These individuals were witnesses when C/O MacDonald belittled, yelled, swore and threatened me while in the workplace on September 24, 2011…” Cody also filed a grievance in relation to the social media post made by Sgt. Montgomery. A copy of the Facebook message board was put into evidence.

137On September 18, 2016, while he was still off work, Cody wrote the following email to Robyn Kasha the superintendent of the institution at the time:

I have been off work “sick”/stress leave since July 22, 2016 because I was assaulted/threatened /bullied by C/O Brian MacDonald for almost 5 years of my career in Corrections.

I have a question with regards to what has the Employer done to insure [sic] that the Occupational Health and Safety Act and all other Acts/Ministry Policies are upheld with regards to a safe working environment for hen [sic] I and the other victims return to the workplace.

It should be noted, that I tried in 2012 to report C/O Brian MacDonald for his Assaultive, Aggressive, threatening behaviour and the Employer did not take any action on my behalf.

So please, if you could tell me/us, what has the Employer done to make our return to the workplace a safe one? It would be appreciated.

138On his return-to-work Cody felt excluded and ostracized. He believes he was subjected to “victim shaming”. On October 20, 2016, through an OR, Cody requested compassionate leave under Article 75 of the collective agreement. In his request, he referenced the Facebook posts made by MacDonald, Montgomery and co-workers in which they openly supported MacDonald.

139On October 24, 2016 Cody submitted an OR which raised a concern about co-workers giving him the “silent treatment” and that a request he made for vacation time was denied for no reason. He noted that he asked another manager for the vacation time, and it was granted.

140On December 20, 2016, Cody wrote another OR following his return to work after being off work on WSIB benefits. In the OR he alleged that a co-worker resisted the accommodation he was provided on his return to work and made negative comments about him and harassed and bullied him.

141In May 2017 he had a conversation with a fellow CO. The CO said, speaking of MacDonald, “you guys really fucked him”. Cody replied, “no he really fucked us by doing what he did”. That CO was not called as a witness, so I do not rely on this evidence as it is hearsay.

Preliminary Hearing Criminal Charges

142The Court conducted a preliminary hearing of MacDonald’s criminal charges on October 3, 2017, in Brampton before Madam Justice Martins. Wong, Durocher and Cody all testified at the preliminary inquiry and the matter was referred to trial. However, as described above, due to delay the charges were withdrawn.

CSOI Investigation

143The CSOI conducted an investigation of MacDonald between the Fall of 2016 and 2017. It interviewed Durocher, Wong, Cody, MacDonald, Tulloch, Roy, Sgt. Montgomery, and two others who were not witnesses before me (Bonham and Davis). The evidence was largely the same as the evidence given before me. The CSOI found as a fact that MacDonald had engaged in many of the activities and conduct that are before me for my determination. The Employer relied on the CSOI’s report to terminate MacDonald’s employment.

Decision

144In coming to my findings of fact, I have carefully considered the evidence presented, both oral and documentary and the parties’ arguments. In the circumstances I have not found it necessary to describe all of the evidence I heard or set out the parties’ submissions.

145Credibility is central to a determination of what occurred in the many incidents about which I heard evidence. Unfortunately, I find that nearly every witness that appeared before me was not fully candid. It also seemed likely that, given the passage of time, many witnesses were not testifying from memory but were instead relying on recent readings of the numerous documents that were written several years ago. I note that even at that, many of those documents were written long after the events described in the documents (such as ORs) had occurred. In these circumstances, it is hardly surprising that the witnesses’ evidence was consistent with what they had stated before even though the events they were describing were, in some cases, more than ten years old.

146I also observe that the three Grievors had the opportunity to substantiate their evidence by calling as witnesses, people they told about certain events but for the moist part they did not do so. For example, Durocher testified that he told his wife and best friend about having a knife being put to his throat but neither of them was called as a witness to verify this evidence.

147In addition, Durocher and Wong each acted in ways that were arguably inconsistent with their testimony regarding their fear and loathing of MacDonald. With respect to Wong, the evidence was that he often made Chinese food orders on the night shift and often asked MacDonald if he wanted in on it. In addition, MacDonald and Wong had conversations about Wong’s workouts during which MacDonald called him nicknames. In addition, Wong asked MacDonald to take a look at a malfunctioning electronic device in the hope that he could fix it. He trusted him enough that he gave him the device which included personal information on its hard drive.

148Durocher also gave evidence which I find troubling. For example, he acknowledged that he sometimes teased MacDonald. When asked about this, his assertion that he felt safe to do so because MacDonald did not have a knife in his hand does not ring true. Durocher’s evidence that horseplay at OCI was not common and that he never engaged in it is also problematic. I heard evidence from many witnesses that horseplay was common at OCI. Indeed, part of the Union’s case in support of the three Grievors is that MacDonald frequently engaged in physical horseplay.

Did MacDonald Carry a Knife in the Institution?

149I heard a great deal of evidence about this issue given that MacDonald's alleged use of knife in several incidents is central to the Employer’s case against him. If I were to find that MacDonald did not have a knife in the institution and did not use it in interactions with employees, as is alleged, the Employers discharge case against him would be seriously weakened.

150Several of the incidents involve claims by the two of the three Grievors that MacDonald threatened them with a knife. However, in addition to that specific evidence, there was more general evidence that MacDonald carried a knife with him in the institution, at least on occasion. MacDonald takes the position that he never carried a knife in OCI and, in particular, never in the secure part of the institution. He acknowledged that he did carry one when he worked at Mimico, but that knife did not have a blade, as it broke off. He acknowledged that he did carry a multi-tool at OCI. However, the multi-tool did not have a knife blade. Moreover, he kept it in a duffel bag that he had in his locker. He used it to repair electronics for his fellow COs. He denied ever doing repairs while he was on duty. The multi-tool was approximately 4-5 inches long.

151He also acknowledged that he sometimes carried around the “911 knife”. As noted, the 911 knife is a tool located at OCI for the use of staff in emergencies, particularly involving residents who may have hung themselves as sometimes occurs at correctional institutions. The 911 knife has a curved blade. MacDonald’s evidence was that he sometimes carried it around while doing his rounds because he had a previous experience where a resident/inmate hung himself and he was not able to save him in time because he did not have the knife to cut him down.

152In addition, the evidence was that MacDonald sometimes joked around with the 911 knife in the institution. Its blade was curved so he sometimes pretended to be a pirate and the 911 knife was the hook which “replaced” his hand. MacDonald did not deny that this had occurred.

153In his evidence MacDonald repeatedly and vehemently denied ever carrying a knife in the institution. In fact, he denied that he owned a knife resembling the ones described in the evidence.

154As I understand the evidence, the three Grievers do not allege that MacDonald threatened them with either the multi-tool or the 911 knife. Instead, they allege that McDonald used a small buck knife or switchblade. The three Grievors all testified that they saw MacDonald with a knife in the institution either as they were being threatened/assaulted with it or otherwise.

155Sgt. Montgomery, who was a former ICIT team leader at Mimico, has known MacDonald for 30 years. They are friends. He thought he saw MacDonald with a small Swiss army knife on a key chain. The blade tip was broken off and he used it as a screwdriver when fixing electronics. In Montgomery’s mind, MacDonald was a responsible CO. He had no concerns with him using the knife to fix electronic devices. To his knowledge he kept the knife in the pocket of his civilian pants which he kept in his locker. He has never seen him damage the floor with the knife as some witnesses suggested.

156He had also seen MacDonald with a butter knife or similar cutlery using it to slice fruit at the front desk. Other staff also used cutlery to eat their meals. Tools were readily available to residents during the day, so he had no issue with the way that staff acted with their cutlery even though, strictly speaking, metal cutlery was not permitted. Montgomery testified that he never saw him with a buck knife, pocketknife or “flick” blade.

157Roy’s evidence before the CSOI and me was that he had seen MacDonald with bladed/edged weapons in the institution. One was a multi-tool which was silver in colour which he used to fix computers. Every witness confirmed this. Roy testified that he would not describe it as an edged weapon. However, he also testified that MacDonald had a “buck knife” which was 3-4 inches long with a “flick” blade which he openly used in the reception area. He believed it was a brown walnut buck knife and that a lot of COs had seen him with it. However, he had only seen MacDonald use the knife when the residents were locked up at night. He once saw him use it to peel and eat an apple. He had never seen MacDonald threaten anyone with the knife or pull the knife out in front of management and had never seen MacDonald with the 911 knife.

158Under cross-examination MacDonald denied Roy’s evidence. He said that he never peeled an apple with the knife as Roy testified he saw him do. He disagreed with Roy’s specific description of the knife as he never had a knife at all. He claimed that he “never had” a folding knife. He “disputes” Roy’s evidence that he openly displayed the knife in OCI’s reception area. I observe that it was MacDonald who called Roy as a witness.

159Tulloch’s evidence was that she had never seen MacDonald with a knife prior to the incident she witnessed.

160The three Grievors each testified that they had seen MacDonald with a knife on occasion. MacDonald’s evidence was that he never had a knife, but saw Durocher with a new knife in the institution on one occasion which he was showing off. He repeatedly threw the knife into the linoleum flooring near the front desk. MacDonald did not report Durocher.

161After careful consideration of all the evidence I find it more likely than not that MacDonald sometimes carried a knife in the institution. In this regard, Roy’s evidence was particularly notable. There is no dispute that Roy and MacDonald had known each for a long time and, despite some ups and downs in their relationship, were friendly. MacDonald described them as having a cordial working relationship. It was cordial enough that MacDonald called him as a witness in this case. Roy has been consistent in his position that MacDonald had a buck knife in the institution, which was not the 911 knife, and he openly displayed it in the reception area and nonliving areas. I have no reason to think Roy was not truthful in his evidence or, given the nature of it, was somehow mistaken. It is true that Roy did not ever see MacDonald with the knife in the units; however, MacDonald denied ever having a knife at all anywhere at OCI other than the 911 knife. I do not accept MacDonald’s evidence in this regard.

Code of Silence

162There is no doubt that the “Code of Silence” played a significant role in the circumstances before me. The Code of Silence is a shared ethos among many COs that they are not to report on each other (“rat each other out”). The Code of Silence is enforced through the implicit or explicit threat of adverse consequences for a CO who reports a fellow CO. Adverse consequences are known to include ostracization and the threat that the CO will not be backed up in an emergency situation. In my view, the Code of Silence was among the reasons why the three Grievors did not report these incidents right away as they should have done. I believe their evidence that they were afraid to do so out of fear of some kind of retaliation, including possibly the loss of their jobs.

163In cross-examination Mr. Bryden asked MacDonald about the Code of Silence. MacDonald claimed not to be aware of this concept except that he had heard that it had been raised in GSB proceedings which he heard other COs talking about. He was asked if he was familiar with the Code. His answer was “I have heard of it”. He claimed not to know who the Code pertained to. It was suggested that the Code meant that COs don’t “rat each other out”. He answered that he had never heard it described in that level of detail. He said the Code did not apply to him.

164I reject MacDonald’s testimony. It would be one thing had he claimed that he did not follow the Code of Silence. However, his claims to ignorance about the Code of Silence are just not believable. The evidence before me, which I accept, is that MacDonald was an “old school” CO. He had 30 years service in corrections. It is not believable that a CO like that would be so ignorant of the Code of Silence. It is also not believable that he only learned of the Code through others talking about GSB cases. Dealing with the Code has been central to the Employer’s efforts for years and it is reflected in Ministry policy. MacDonald would surely have been aware of it and was more likely than not an adherent of it.

Use of words like “rat” or “goof”

165MacDonald’s evidence was that he never or rarely used words like “rat” or “goof” and attached no special “jailhouse” meaning to them. Roy testified that MacDonald demanded a certain standard and was infuriated by the new COs. He held them to account if the standard was not followed. Montgomery testified that he did not recall him using those words. I cannot accept MacDonald’s evidence on this point. I hear evidence from numerous witnesses that the words “rat” and “goof” have special importance in a correctional setting. In fact, the Board has repeatedly found as a fact that this the case. MacDonald’s evidence on this point is not believable as a veteran CO who must have known that in a “jailhouse” special meaning attached to those words.

Skull Ring

166Witnesses repeatedly gave evidence that MacDonald liked to wear jewelry. Included among that jewelry, they testified, was a skull ring. It was said that if he punched an inmate it would leave a skull impression in the skin. MacDonald denied that he owned such a ring and that he never wore such a ring. He was “absolutely confident” in his evidence. I do not accept MacDonald’s evidence and find it more likely than not that he sometimes wore a skull ring in the workplace. There was no suggestion why anyone would make up such evidence.

MacDonald Physical Contact with COs

167MacDonald acknowledges that he occasionally engaged in horseplay with fellow COs. However, the Grievors allege that he did so frequently, and it went beyond horseplay.

168Sgt. Montgomery testified that he had seen MacDonald put people in headlocks. He never received any complaints about it. He also testified that MacDonald was not the only person who engaged in physical horseplay. He called it “boys being boys” and believed that it was a good stress reliever. In this regard, he saw MacDonald and Durocher play fighting or goofing around. Sometimes Durocher would walk by MacDonald and give him a poke. On Montgomery’s evidence almost all the COs did things like that to relieve stress and boredom. He also saw Durocher do the same thing to other people. He did not discipline Durocher for this because he saw it as a harmless stress reliever.

169Sgt. Montgomery also testified that MacDonald had put him in a headlock at work. Given the nature of their relationship, there is no chance that Sgt. Montgomery was lying about this. Nevertheless, MacDonald disputed Sgt. Montgomery’s evidence. He also disputed the evidence of other witnesses that say they saw him put coworkers in headlocks.

170In the end to the extent there is a dispute about horseplay, in my view, I am satisfied based on overwhelming evidence that MacDonald frequently engaged in physical horseplay with several of his co-workers. This is an example of how I believe MacDonald gave his evidence. I am satisfied that he decided that the best chance he had in being successful in this grievance was to deny almost anything that might lead to discipline or make it seem likely that he had assaulted the three Grievors. This strategy extended even to disputing evidence given by his friends.

The Incidents - Findings

February 2016 Incident (Wong)

171This is the only incident, other than the first Cody incident, where there was a witness to at least some of what occurred. However, neither Wong nor MacDonald knew that Tulloch could see them. Tulloch is a neutral witness. She got along with both men. In a correctional facility, like OCI, there would be strong incentive for her to not report a fellow CO even if she did not believe in the Code of Silence. The reason she did so in this case is likely that she was disturbed by what she saw which was completely out of the ordinary. MacDonald does not claim that she was dishonest in her testimony, only that she was mistaken. I accept her evidence as truthful. The question is: what did she see?

172Based on her evidence, I am satisfied that Wong and MacDonald were in the unit office together on the night in question. MacDonald had something in his hand while he told Wong “Don’t make me do it” on two occasions. While Tulloch at first thought the two men were joking around, she came to believe that there was something more sinister occurring. It was both what MacDonald said and the way he said it. She felt tension in the air after at first assuming he was joking.

173What is really in dispute is whether MacDonald had a knife in his hand and put it to Wong’s throat. Tulloch’s evidence was that she was “reasonably sure” that MacDonald had a knife and that it had about a two-inch blade. On cross-examination she agreed that she was not certain of that fact. MacDonald claims that he does not remember what he had in his hand but was certain that it was not a knife. Wong testified that MacDonald held a knife to his throat on this night. Although he did not see the knife he felt the sharp edge on his skin.

174It is important to keep in mind what occurred here. She then looked over at MacDonald. She saw that he had a little knife in his right hand. Later she said she “saw something like a pocket knife” and that she “saw a silver blade”. It was not very big. She did not say anything and then left the area. Prior to MacDonald saying “don’t make me do it” she thought they were joking around. MacDonald does not recall the incident but asserts there was no knife, and they must have been joking around. There was, however, no evidence of any laughter. When Tulloch called Wong, he did not say that MacDonald was only joking around. Instead, he said that MacDonald had a knife and that this was not the first time.

175I am satisfied that on a balance of probabilities MacDonald put a knife or bladed weapon to Wong’s throat and that what Tulloch saw in his hand was a knife or bladed weapon. I do not accept that Wong and MacDonald were just joking around as MacDonald asserts. That conclusion is not consistent with the evidence. In particular, it is plain that Wong was not joking around and did not take MacDonald’s actions as a joke. He said nothing of the kind when Tulloch called him to express her concern and offer her assistance. Instead, he said that MacDonald had done it to him before which is consistent with his evidence about other incidents.

176Importantly, the evidence is that when Tulloch called Wong, she did ask him something to the effect of “Did MacDonald have a knife?”. She instead asked something to the effect of “did I see what I think I saw?”. Whatever doubts she claimed to have when she gave her evidence were not present when she spoke with Wong. I find that she saw a knife or bladed weapon and could not even bring herself to acknowledge it openly to Wong. But she was willing to go to management to help Wong.

177MacDonald’s overall theory in his defence is that the three complainants, led by Durocher, all got together and concocted stories in order to, presumably, get him out of the institution. Presumably, under that theory, Wong made up this incident after speaking with Durocher. That makes little sense given what occurred in this incident. What occurred here is that Tulloch was alarmed about what she saw and contacted Wong to see if he wanted her to go to management with him. Rather than accept that offer, as one would have anticipated had Wong had it in for MacDonald, Wong told her that he would handle it by himself, and she did not hear from him again. If his goal was to use MacDonald joking around with him as a pretext, why did he not immediately accept her offer? Furthermore, there is no evidence on which I could conclude that Wong only decided to conspire with Durocher to implicate MacDonald months later.

178It is a challenge to determine what actually occurred in this incident. However, on a balance of probabilities I find it more likely than not that MacDonald threatened Wong with a knife or bladed weapon on the night in question. In coming to this conclusion, I have carefully scrutinized the evidence before me. In doing so, I have taken into account my finding that, despite his denials, MacDonald carried a pocketknife in the institution.

179Of course, it is possible that MacDonald was not holding a knife in his hand. However, he has no concrete recollection of what he was holding that was not a knife. He suggested several possible items, but it is clear that if it was not a knife the most likely alternative would be the Diester. However, Tulloch clearly knows what a Diester is. It is difficult to believe that she concluded that the Diester was a knife and reacted as she did. Wong also knows what a Diester is, he similarly testified that it was not a Diester.

180Moreover, Tulloch’s evidence was that the knife had a silver blade. While she agreed in cross-examination that it was possible she was mistaken, that is not likely given her evidence about what the knife looked like. MacDonald had no concrete explanation for what she could have seen that resembled a silver blade. He suggested the Volkswagen key fob but that was not likely and there was no evidence that he had used the car that night. It also could not realistically have been a hole punch or some other office tool. MacDonald tried to explain what Tulloch saw in his hand; perhaps it was a stapler, or a hole punch he said. None of those suggestions bear real resemblance to what Tulloch saw. MacDonald also had no explanation for what Tulloch heard him saying to Wong.

181While Wong did not see the knife (or edged weapon) he felt it against his throat. Even if I am wrong and it was not a knife, whatever it was, MacDonald intended for Wong to believe that is what it was, in order to terrify him.

Decision- 2010 Woodshop Incident (Durocher)

182There are a number of aspects of Durocher’s evidence that are troubling to me. Included among these is that he waited 5 or 6 years to make this allegation. That may be understandable given what happened and that he was new on the job at the time of the alleged incident. What is less understandable is the Union’s failure to call as witnesses his wife and best friend who he claims to have told after the incident is said to have occurred.

183On the other hand, MacDonald’s evidence is also problematic. Much of his defence is based on the assertion that he never had a knife at OCI. There was plenty of evidence to the contrary. In particular, Roy’s evidence was that he had two edged tools in OCI. One was a “Leatherman” which I take to be the multi-tool that MacDonald acknowledged he used to fix electronics. The other was a “buck knife” which had a “flick blade”. Roy’s evidence was that “for years” he openly used this in the reception area after the inmates were locked up. Given MacDonald’s denials about his knife use in OCI, plus my findings with respect to the Tulloch incident, I find it more likely than not that this incident occurred much as Durocher testified.

Decision- 2010 Head Butting Incident (Durocher)

184In my view Durocher exaggerates this incident. I do not accept his claim that he met MacDonald’s headbutt with his own so hard that it “nearly knocked them both unconscious”. There was no suggestion that either man was injured by this violent collision which surely they must have been if the blow was as hard as Durocher suggests. I find it more likely than not that this was simply a continuation of MacDonald’s ongoing horseplay.

Decision- 2011 Reception Incident (Cody)

185Much evidence was led on this incident but there is surprising consistency in the evidence about what occurred. Cody decided to use the public washroom in the reception area near the time he was going to be relieved for break. After using the washroom, he waited at the reception desk for his relief. Sgt. Montgomery questioned why he was doing that (as the proper procedure was for him to wait at his post in his unit). Rather than returning to the unit, as he should have, he questioned why another CO, who was also present, was being permitted to remain. In doing so Cody was insubordinate.

186There is no real dispute that MacDonald intervened in a verbally aggressive manner. Even at this stage MacDonald was, on the evidence, angry at many of the newer COs who, in his mind, did not respect authority and the rules, both written and unwritten. While Cody disputed that he was the kind of CO that the old hands (especially those that had come from Mimico) found deficient, it is clear that he had the opposite reputation among the witnesses I heard from. In MacDonald’s mind, this was an instance of Cody flouting authority, and he sought to put him in his place.

187In my view it is important to consider the context of this particular workplace as a correctional facility. Montgomery’s evidence was that it was not his practice to discipline staff. Instead, he would speak to them and correct them that way. This was normal, certainly in the time prior to this incident. It is reflected, in all likelihood, in the way in which staff advised Cody throughout these events. For example, he was repeatedly cautioned against filing an OR against a fellow CO.

188I will now turn to the remaining incidents. Given my findings so far, I will be less detailed about my assessments. However, if any party wishes further reasons on any incident I will provide them.

Decision- 2011 - Key Press Incident (Durocher)

189I am satisfied that this incident occurred as Durocher reported. Durocher decided to take a set of utility keys so that he could open the gym door where he would work out. He did not return them. Rather than acknowledging that his actions inconvenienced MacDonald, he accused him of reporting him which, given what he knew about MacDonald, he must have known was going to make him very angry and that is in fact what occurred.

Decision - 2012- Knife in the Break Room Incident (Durocher)

190The facts regarding this incident must be determined solely on credibility. While, as I have expressed, I have concerns about Durocher’s evidence, I do not find MacDonald is credible at all. I find that this incident occurred in much the way that Durocher described.

Decision- 2012 Knife Incident (Wong)

191I accept Wong’s evidence on this point. I am satisfied that Wong was a frequent recipient of MacDonald’s unwanted attention on the overnight shift. This included multiple occasions where MacDonald put a knife to his throat. In coming to this conclusion, I rely on Wong’s evidence. I also rely on Tulloch’s evidence about her conversation with Wong after the incident she witnessed. In that conversation she asked Wong whether she saw what she thinks she saw. He replied yes “and it wasn’t the first time either”.

192There is also no evidence before me that Wong had it in for MacDonald so much that he would make up stories about his behaviour. MacDonald’s view is that the two of them actually had no issues between them. In these circumstances, and given the facts of the Tulloch incident, I am unable to accept MacDonald’s denials.

Decision- March 14 2012 Sidewalk Incident (Cody)

193There is no dispute that Cody and MacDonald collided while walking towards each other on the sidewalk/pathway leading from the parking lot to the institution. The Union’s position is that the contact was deliberate on the part of MacDonald as an effort to intimidate him.

194MacDonald’s position is that he was distracted by his phone, and it was just an accidental collision, that neither of them were hurt, neither of them said anything and they both just continued on their way. MacDonald’s evidence was that he did not think anything of it.

195I do not find on a balance of probabilities that MacDonald’s actions in this instance were deliberate. The Union put some emphasis on the fact that MacDonald did not apologize but I note that Cody did not say anything either. In my view, at most, the two men played chicken with each other and neither of them gave in, causing the contact.

Decision- 2013 Incident (Cody)

196Cody’s evidence was that in 2013 MacDonald put him in a headlock. At the time both men were located in the institution’s foyer area. MacDonald denies doing so. His evidence was, in essence, that he did not trust Cody enough to engage in that kind of horseplay with him.

197I do not find, on a balance of probabilities, that this incident occurred. Perhaps, Cody was mistaken about the date of the incident, but I find it unlikely that MacDonald would have had any deliberate physical contact with Cody given what had transpired and that Cody had already complained about MacDonald to management. MacDonald did not trust Cody and likely would not have run the risks entailed with making physical contact with him. I note that there must have been co-workers present for this given that it was in the reception, but no one was called as a witness to corroborate Cody’s story.

Decision- May 2015 Incident (Wong)

198Despite the concerns I have already addressed about Wong’s dealings with MacDonald not necessarily being consistent with seriously adverse treatment by MacDonald, I am satisfied that this incident occurred. I prefer Wong’s evidence over that of MacDonald for the reasons stated above. In fact, at the time he gave the evidence before me, Wong appeared to me to have been traumatized by his recalling of MacDonald’s actions. There was no suggestion in cross-examination that Wong was fabricating his emotional state while giving his evidence.

Decision- September 10, 2015, Val Montgomery Incident (Cody)

199It is somewhat unclear whether the parties wish me to address these allegations given that Ms. Montgomery was not called as a witness. However, in the absence of her testimony, I find that Ms. Montgomery called Cody a “jackass”.

Decision-September 2015 Incident (Wong)

200For the reasons already set out in other Wong/MacDonald incidents, I find it more likely than not that this incident occurred. In the absence of a detailed denial of what happened (MacDonald claims simply that this incident did not occur) I find that incident occurred as alleged.

Decision- 2015 or 16 Incident (Durocher)

201In my view this allegation has not been substantiated. I find it unlikely that at some point in 2015 or 2016 MacDonald put a knife to his throat while they were both in front of the control module. I also do not believe that Durocher responded: “Why do you need a knife at work you coward?”.

202I do not accept that MacDonald would take the risk of putting a knife to Durocher’s throat in a place so open and potentially public as near the control module. In this regard, I note that the other incidents which are before me and which involved a knife took place in much more private locations. His reaction, a sudden statement and movement, is also inconsistent with the fear of getting cut that he described in other interactions with MacDonald.

June (or July) 8/9, 2016 (Durocher)

203This is the alleged incident that Durocher says caused him to finally go to management about MacDonald. There is little difference between the evidence of the two men. MacDonald was doing his rounds and came upon Durocher who was either asleep or resting in a chair. MacDonald testified that Durocher was wearing a “hoodie” with the draw strings cinched up tight so that only a small part of his face weas showing. Durocher alleges that MacDonald grabbed his head with one hand and squeezed it hard. Durocher then yelled at him to stop.

Conclusion

204I wish to thank the parties for their patience. I remit the matter back to the parties so that they can consult about next steps. I remain seized.

Dated at Toronto, Ontario this 5th day of September 2025.

Appendix A

Grievor

Union Grievance Number

Grievance Date

GSB File

Cody, Shane et al

2016-0229-0002

03/20/2016

2016-0135

Cody, Shane

2016-0229-0004

03/29/2016

2016-0265

Cody, Shane

2016-0229-0008

05/20/2016

2016-0690

Cody, Shane

2016-0229-0012

08/07/2016

2016-1216

Durocher, Eugene et al

2016-0229-0022

08/24/2016

2016-1356

Wong, Torance

2016-0229-0023

08/24/2016

2016-1357

Durocher, Eugene et al

2016-0229-0024

08/24/2016

2016-1358

Wong, Torance

2016-0229-0025

08/24/2016

2016-1359

Cody, Shane

2016-0229-0017

08/28/2016

2016-1364

Cody, Shane

2016-0229-0018

08/28/2016

2016-1365

Cody, Shane

2016-0229-0019

08/28/2016

2016-1366

Durocher, Eugene

2016-0229-0020

08/24/2016

2016-1367

Wong, Torance

2016-0229-0021

08/11/2016

2016-1368

Cody, Shane

2016-0229-0027

09/06/2016

2016-1440

Durocher, Eugene

2016-0229-0029

09/20/2016

2016-1509

Durocher, Eugene

2016-0229-0030

09/20/2016

2016-1510

Wong, Torance

2016-0229-0031

09/29/2016

2016-1531

Wong, Torance

2016-0229-0032

07/20/2016

2016-1532

Wong, Torance

2016-0229-0037

10/05/2016

2016-1720

Cody, Shane

2016-0229-0039

11/08/2016

2016-1911

MacDonald, Brian

2017-0229-0025

09/14/2017

2017-2242

MacDonald, Brian

2017-0229-0026

09/14/2017

2017-2243

MacDonald, Brian

2017-0229-0027

09/14/2017

2017-2244

Durocher, Eugene

2017-0229-0028

10/11/2017

2017-2328

MacDonald, Brian

2017-0229-0033

09/16/2017

2017-2382

MacDonald, Brian

2017-0229-0034

10/24/2017

2017-2383

Wong, Torance

2017-0229-0064

10/10/2017

2018-1311

Cody, Shane

2017-0229-0065

10/10/2017

2018-1411