Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2025 CanLII 65275

GSB# 2021-0684; 2023-01042

UNION# 2021-0248-0008; 2023-0999-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Union)

Union

• and -

The Crown in Right of Ontario

(Ministry of the Solicitor General)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Ed Holmes

Ryder Wright Holmes Bryden Nam LLP

Counsel

FOR THE EMPLOYER

Paul Meier

Treasury Board Secretariat

Legal Services Branch

Senior Counsel

HEARING

January 24 and March 24, 2025

Decision

1. These grievances relate to the assignment of “secure-to-secure” transfer work to correctional officers.

Process

2. There were three grievances before me: Grievance # 2021-0248-0008; Union Grievance # 2023-0999-0012; and Grievance # 2021-0248-0007. In the course of the proceedings, the Union withdrew Grievance # 2021-0248-0007. In relation to Union Grievance # 2023-0999-0012, the parties agreed to proceed on the basis of six examples chosen by the Union. Grievance # 2021-0248-0008 effectively became a seventh example. The parties agreed that the Union would file detailed particulars and supporting documentation; the Employer would file detailed responding particulars and supporting documentation; and the Union would specifically reply to the Employer’s responding particulars. At the conclusion of this process it was apparent that there were no material facts in dispute. The parties made oral submissions and relied on their detailed particulars, which in the case of the Employer also contained extensive written submissions. Oral submissions were completed in two days. In addition to considering the parties’ oral submissions I have considered the documentary material which they filed.

Background

3. Pursuant to the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 (“MCSA”), a person who is lawfully detained (an “inmate”) may be detained in any “correctional institution”¹ as directed by the Ministry. The correctional officers at the correctional institution are responsible for the custody, care, control and supervision of the inmates detained within that institution.

4. An inmate may need to be taken from the correctional institution at which they are detained out into the community and back to the institution. For example, an inmate may need to attend a medical appointment and then return to the same institution. Correctional officers are assigned to accompany the inmate, maintaining custody, care, control and supervision while the inmate is outside of the institution. This is referred to as “community escort” work.

5. An inmate may also need to be taken from the correctional institution at which they are detained in order to be transferred, temporarily or permanently, to a second correctional institution at which they will then be detained. The second correctional institution may be another of Ontario’s correctional institutions, a correctional institution of another province or a Federal correctional institution. Correctional officers are assigned to accompany the inmate, maintaining custody, care, control and supervision while the inmate is being transferred. The Union refers to this as “secure-to-secure” transfer. I will sometimes refer to it simply as the transfer work.

6. The assignment of community escort work has been the subject of much litigation between the parties over the years. The early litigation took the form of health and safety complaints, addressing issues such as the equipment, training and staffing complements required to ensure that the community escorts could be performed in a safe manner. Subsequent litigation focused on to whom the community escort work from a particular institution could be assigned. The parties have entered into what the Union refers to as community escort agreements within the context of that litigation which relate in part to the assignment of the community escort to correctional officers of an institution. Some of those agreements contain references to transfer work, as discussed further below.

7. Community escort work generally results in overtime, either directly or indirectly. Article COR8.2.1 of the collective agreement provides²:

In the distribution of overtime, the Employer agrees to develop methods of distributing overtime at the local workplaces that are fair and equitable after having ensured that all its operational requirements are met.

8. Prior to 2006, the “methods of distributing overtime at the local workplaces” were generally reflected in agreements which were unique to each institution. This gave rise to a variety of practices from institution to institution. In 2006, the parties entered into the “Provincial Overtime Protocol”. The Provincial Overtime Protocol has been amended several times since and is referenced in the 2018-21 collective agreement (the most recent one readily available): see Appendix COR7. While the Provincial Overtime Protocol indicates that it is a “set of principles, which must be applied in the development of a local overtime distribution system”, the principles appear to be sufficiently detailed so as to effectively prescribe the same method for distribution of overtime at each institution.

The Disputed Work

9. While the Union provided a number of different examples, the dispute between the parties can be illustrated as follows. Inmate A is detained at Institution X. Inmate B is detained at Institution Y. For some bona fide reason, the Employer decides Inmate A will be transferred to Institution Y and Inmate B will be transferred to Institution X. The Employer assigns correctional officers from Institution X to transport Inmate A to Institution Y. It also assigns the same correctional officers to then transport Inmate B back to Institution X. The Union asserts the Employer is required to assign correctional officers from Institution X to transport Inmate A to Institution Y and is also required to assign correctional officers from Institution Y to transport Inmate B to Institution X. The result, as the Employer observes and the Union agrees, would be that the correctional officers from Institution X and the correctional officers from Institution Y both drive back to their respective institutions empty.

10. The examples referenced by the Union differ in terms of the reasons for the transfers, the number of inmates being transferred, and the location and number of institutions involved. In each case, the Union argues the Employer is required to assign the transfer work to the correctional officers at the institution where the inmate was originally housed. The Union did not argue that any of these transfers were not necessitated by legitimate business or operational reasons. Further, it did not suggest that any of these Employer transfer decisions were made in bad faith, were arbitrary or were discriminatory. In these circumstances, I do not find it necessary to detail the individual examples, as the legal issues raised by the Union do not turn on their individual facts. Nor do I find it necessary to comment on whether and when decisions of the Employer are subject to review on the basis that they were made for an improper reason or were arbitrary, discriminatory or made in bad faith.

The Parties’ Arguments Summarily Stated

11. The Union argues the Employer’s right to assign the transfer work has been fettered by the community escort agreements and the Provincial Overtime Protocol. In particular, the Union argues that the Employer is required to assign the transfer work with respect to inmates originating from a particular correctional institution to the correctional officers of that institution. The Union argues its position is to be preferred when reference is made to the scheme of the collective agreement, the correctional officer job description, the escort agreements and the Employer’s hiring practices in relation to correctional officers. The Union further argues its position is consistent with: the collective agreement (in particular, Article 2 (management rights), Article COR8 (overtime) and Article 10 (compressed work week arrangements)); the Provincial Overtime Protocol; decisions of the Grievance Settlement Board; and the policies and procedures of the Employer. In particular, the Union relies upon the reasoning of Arbitrator Herlich in Ontario Public Service Employees Union (Stickle et al) v Ontario (Solicitor General), 2020 CanLII 32563 (ON GSB) (hereafter “Stickle”).

12. The Employer argues that the right to assign work is the most fundamental of management rights. Its right to assign the transfer work, and, it argues, the community escort work, to any correctional institution is unfettered. It can, for example, assign that transfer work to the correctional institution to which the inmate is being transferred. There is no provision in the collective agreement to the contrary. The assignment of work to an institution is a separate question from the assignment of that work by that institution to the correctional officers who work at that institution. The agreements with respect to how the work is to be assigned to the correctional officers at a correctional institution only come into effect after the Employer has assigned the work to the correctional institution. Community escort work is generally proximate to the correctional institution at which an inmate is housed and therefore it makes sense for the Employer to assign the work to that correctional institution. Transfer work, by contrast, typically involves two or more Ontario correctional institutions. The Employer will, therefore, generally assign the work to one of those institutions. The Employer argues the correctional officer job description, the escort agreements, and the overtime protocols are not inconsistent with its position. The Union’s argument is effectively that the correctional officers at the institution at which an inmate is housed own the transfer work related to that inmate. This rests on a factual error: an inmate who is being transferred from institution A to institution B is not housed at either institution during the transfer. Further, correctional officers do not own the work. The escort work litigation and agreements arising from it do not change this result. Stickle was wrongly decided and is not binding.

Analysis and Decision

13. At the outset I note there is an important distinction between a secure-to-secure transfer and a community escort. A community escort refers to an inmate being temporarily taken outside the correctional institution at which they are housed under escort of correctional officers and then being returned to that same correctional institution. The inmate continues to be in the custody of that correctional institution during the community escort. By contrast, an inmate being transferred from a sending correctional institution to a receiving correctional institution is not in the custody of either. Rather, the inmate is in the custody of the correctional officers conducting the transfer. Thus, this dispute is transfer work, not community escort work per se. Accordingly, I address the Employer’s extensive arguments about community escort work only to the extent necessary.

14. The statutory basis for the distinction between community escort work and secure-to-secure transfer work is the MCSA. Section 15.1 and 16(2) provide that where a person is lawfully detained, they may be detained in a correctional institution or be detained “in the custody of a provincial bailiff or other person employed in a correctional institution” (my emphasis). Correctional officers are, of course, persons employed by a correctional institution. Section 20(2) provides that the superintendent of a correctional institution “shall receive into the institution every person delivered under lawful authority for detention in the institution and is responsible for the custody and supervision of such person until his or her term of imprisonment is completed or until the person is transferred or otherwise discharged in due course of law” (my emphasis). An inmate being transferred by correctional officers is not detained or in the custody of a particular correctional institution; they are in the custody of the correctional officers conducting the transfer.

15. The MCSA does not stipulate that the correctional officers conducting the transfer must be employees of any particular correctional institution; only that they be employees of a correctional institution.

16. The General Regulation promulgated under the MSCA, (R.R.O. 1990, Reg. 778) refers to both transfers and “escorted absence”. It does not stipulate that the correctional officers conducting the transfer must be employees of any particular correctional institution.

17. The Employer’s submissions reference a number of provisions from its “Transfer Policy” which serve to highlight that responsibility for transfer of inmates does not rest with the sending institution:

18. The Ministry has a policy that establishes guidelines for the transfer of inmates: see the Ministry’s Institutional Services Policy and Procedure Manual, “Transfer” in the “Transfers Section”, dated July 20, 2023 (the “Transfer Policy” at Tab A). Under the Policy, the “secure transfers” of inmates between correctional institutions are to be conducted by “trained correctional officers in the course of their duties”: Article 4.0.

19. The Executive Director’s Office, Institutional Services, “provides oversight for implementing this policy” given that the Policy applies to inmate transfers amongst Ontario’s correctional institutions, other provinces’ institutions (“interprovincial”), federal penitentiaries and is even international in scope: Article 5.1.

20. Institutional Services’ five Regional Offices have coordination responsibilities amongst the “forwarding institutions” and “receiving institutions”. Article 3, under “Policy”, states:

The scheduling of inmate transfers is maintained by each institution in consultation with the designated Deputy Regional Director. Each institution will prepare daily and weekly transfer lists in coordination with the respective regional office.

17. Article 6.3.2 of the Policy, under “Administration”, further states that: “The local administration will liaise with the regional office designee to coordinate with the receiving institution, and corresponding regional designee where required, regarding transfers” (and see Article 5.2).

18. Inmate transfers activate a series of Ministry actions because of the change in where reassigned inmates are lawfully detained. For example, when inmates are “transferred out” of the forwarding institution, that institution must:

a. send the inmate file and Health Care Record “to the receiving institution at the time of the transfer or, in an emergency transfer, as soon after as reasonably possible” (Article 6.4.1, “Records”);

b. ensure that the inmate’s “funds, property and personal effects will be transferred at the same time in red, sealed, numbered, property bags or, in an emergency transfer, as soon after as reasonably possible” (Article 6.5.1, “Personal Property”); and

c. ensure that “health care records and necessary medications can be prepared to accompany the inmate at the time of transfer”, if applicable and “wherever possible” (Article 6.6.1, “Medication”).

19. Inmate transfers also trigger the requirement for a special record: the “Institutional Services Inmate Transfer and Reconciliation Form” [Tab A(i)]. This form allows the forwarding and receiving institution to share “[c]ritical information regarding an inmate's security status, health care status or individual needs” in advance of the transfer: Article 6.11, “Transferring Critical Information”. Under the heading “Direction”, the Form states:

Records Department will use this form to identify all inmates who need to be transferred; will note the details of transfer (rationale= JO, Remand, Classification, Federal, Discharge Planning, Count Pressures, Disturbance, Medical Accommodation, etc.). Alerts, Security concerns, special transfer considerations, acknowledge transfer readiness (institutional and healthcare files prepared for day of transfer), and ensure transfers are posted to OTIS. This Transfer List will be sent to the applicable Deputy Superintendent to complete coordination with the receiving institution(s). The approved list will be sent by the Deputy Superintendent to the Regional Office Transfer Coordinator (ROTC) for review/approval with other scheduled trips in the region. Consultation between ROTCs will occur as necessary. Once the Regional Office confirms the transfer list, it will be returned to the Deputy Superintendent for immediate distribution to all affected areas of responsibility required to initiate the transfer including but not limited to Records, Health Care, A&O, Inmate Property, Staff Sgts., etc. This form will not be changed in any way without prior corporate approval.

[Footnotes and tabs omitted.]

18. The Employer also notes the fact that an inmate is not in the custody of either the sending or the receiving institution during a transfer is reflected in the Employer’s tracking systems:

19. … in reassigning an inmate from the care, custody and control of the forwarding institution to that of the receiving institution, the Ministry’s Offender Tracking Information System (“OTIS”) logs the time that a transferring inmate is removed from the forwarding institution’s custody (along with a reason) [the “Transfer Out” date and time] and then logs the time that inmate is admitted into the custody of the receiving institution [the “Transfer In” date and time”].

20. Between the transferee’s removal from the forwarding institution’s custody and that inmate’s admission into the receiving institution’s custody, the inmate is not “housed” in any institution.

[Footnotes omitted.]

19. As noted, the Union relied on seven examples. Those seven examples related to the transfer of just under fifty inmates. There is one anomalous example which requires comment. It involves an inmate, (“Inmate H”) who was committed for detention at the Sarnia Jail but for bona fide reasons the Employer decided to “house” at the South West Detention Centre (“SWDC”) without formally transferring him there.³ As a result, while the terms “detained”, “committed”, “housed” or “on the count” were generally used as synonyms by the parties, this appears to be one instance in which the correctional institution at which the inmate was legally detained differed from the correctional institution at which he was housed.

20. Inmate H had a court date in Sarnia. The Employer assigned Sarnia Jail correctional officers the work of transporting Inmate H from the SWDC to the Sarnia Jail at the beginning of the day and back to the SWDC at the end of the day.⁴ The Employer also assigned those Sarnia Jail correctional officers to transfer an inmate from the SWDC to the Sarnia Jail at the beginning of the day and to transfer another inmate from Sarnia Jail to the SWDC at the end of the day. At no point was Inmate H “transferred” from the Sarnia Jail: rather he was always on the “books” of Sarnia Jail. Thus, the transport of Inmate H was not an example of the secure-to-secure transfer work which is the subject of the dispute before me. Rather, it appears to be an example of community escort work. Therefore, I do not consider it further for the purposes of this decision. I would note, however, that, on the logic of the Union’s argument the community escort work in relation to Inmate H was properly assigned, since it was assigned to correctional officers of the institution at which he was “detained”.

Is the Employer Required to Assign Transfer Work to Correctional Officers of the Sending Institution?

21. The Union does not dispute that the assignment of work is a management right. The issue raised by the Union is whether the right to assign the transfer work has been fettered by the “community escort agreements” or the Provincial Overtime Protocol. In particular, the Union asserts the Employer is required to assign the transfer work to correctional officers of the sending institution.

The Community Escort Agreements

22. The “community escort agreements”, also referred to as the “escort agreements”, are a product of long running litigation between the parties. I will focus on those which were the subject of oral submissions by the Union.

23. The first such agreement is the result of a decision dated April 13, 2000, under GSB File No. 1753/99, by Vice Chair Gerry Lee of the Grievance Settlement Board. The decision simply attached minutes of settlement and made them an order of the Board. The settlement itself was in relation to a decision with respect to a health and safety appeal to the former Office of Adjudication: Ontario (Ministry of the Solicitor General and Correctional Services), [1998] O.O.H.S.A.D. No. 199. The Employer notes the remedial request advanced by the Union before the Office of Adjudication was “for escorts other than simply a transfer to another institution” (see para. 78) and that the Office of Adjudication made remedial orders limited to escorts which involved “anything other than a transfer to another secured environment” (see paras. 202, 260 and 568). The minutes of settlement were with respect to training and support to be provided to “correctional officers on community escorts” at listed institutions. There is no express reference to secure-to-secure transfers. The parties subsequently entered into further settlements under the auspices of that file. I will review those relied upon by the Union.

24. Under the auspices of GSB File No. 1753/99, the parties entered into a settlement on September 19, 2003 (the “2003 Agreement”). The 2003 Agreement resolved various disputes related to “community escort" work. There is no express reference to secure-to-secure transfers anywhere in the 2003 Agreement. Paragraph 7 of the 2003 Agreement provides:

A new protocol for the assignment of corrections officers to the escort of inmates committed to their institution in the community will be developed and implemented. The new protocol will be computerized, will integrate the assignment of regular shifts, overtime duties and unclassified hours, and will provide for the assignment of escort duties and overtime to those correctional officers that indicate their availability for such assignments and commit to undertaking assignments when offered.

[My emphasis.]

I note that inmates being transferred are not “committed” to any institution.

25. Under the auspices of GSB File No. 1753/99, the parties entered into a further settlement on July 11, 2004 (the “2004 Agreement”). It applies to correctional officers employed by the Ministry at all of its correctional institutions. Most of the terms of the 2004 Agreement relate to providing “community escort” training to classified and unclassified correctional officers and the obligation of trained correctional officers to perform community escort work. The 2004 Agreement does contain a reference to secure-to-secure transfers. Specifically, paragraph 8 of the 2004 Agreement states:

Secure to secure transfers shall be performed by trained community escort officers.

I note that if secure-to-secure transfers formed part of community escort work, this sentence would be unnecessary. I conclude, therefore, that “secure-to-secure transfers” is not part of the community escort work which trained correctional officers otherwise perform pursuant to the 2004 Agreement.

26. Appendix A to the 2004 Agreement, also sometimes referred to as the “Protocol”, provides: “To ensure a consistent and fair method in the assignment of community escorts, institutions must utilize the following sequence”. It then sets out the sequence in which community escort work will be assigned to the on-duty and off-duty “classified” (i.e. regular) and “unclassified” (i.e. fixed-term)⁵ correctional officers by operational manager of “the institution”. That sequence includes a reference to following “the local overtime protocol to hire classified correctional officers”. Appendix A does not contain an express reference to secure-to-secure transfers.

27. Appendix A has been incorporated into the Ministry of the Solicitor General’s Institutional Services Policy and Procedure Manual (“ISPPM”) in a “Section” on “Transfers and Transportation”, “Sub-section: Transfers”, dated “March 2011”. Notwithstanding the section and sub-section titles, the document itself is concerned with “Assigning Community Escorts” and reproduces language from Appendix A to the 2004 Agreement.

28. For the purposes of administering Appendix A, the Employer tracks “Hours Escort Assignment Totals”, or “HEAT” hours. While the Employer denies Appendix A requires it to do so, hours spent conducting secure-to-secure transfers are included for this purpose. I note that there is no allegation that the assignment of the transfer duties in the examples before me gave rise to any error with respect to the calculation of HEAT hours.

29. In its written submissions, the Employer asserts:

the Protocol (and now the ISPPM’s “Assigning Community Escorts Duties”) never purported to override the Employer’s decision-making on when, where, and how to make community escort work assignments, based on its operational needs, in the first place.

[The Employer’s emphasis.]

I note again that the issue before me is the assignment of transfer work, not the assignment of community escort work. Thus I need not and do not determine whether the 2004 Agreement serves to fetter the Employer’s ability to assign the community escort work.

30. The Union also filed seven “Questions and Answers - escort policy” documents which were issued in relation to the 2004 Agreement. The first such document was issued on September 22, 2004. The last (“Questions and Answers - escort policy - 7th Edition”) was issued on April 4, 2007. None of these documents contains an express reference to secure-to-secure transfers.

The Provincial Overtime Protocol

31. As noted above, Article COR8.2.1 provides:

In the distribution of overtime, the Employer agrees to develop methods of distributing overtime at the local workplaces that are fair and equitable after having ensured that all its operational requirements are met.

As also noted above, the Provincial Overtime Protocol effectively prescribes the same method for distribution of overtime at each correctional institution.

32. I agree with the Employer that the assignment of work to a correctional institution is a separate question from the assignment of that work to the correctional officers at that correctional institution. Article COR8.2.1 is expressly concerned with the distribution of overtime “at the local workplace”, which, at least for present purposes, means at a particular correctional institution. Article COR8.2.1 does not require the Employer to assign overtime work to the institution in the first place. The Provincial Overtime Protocol is an agreement with respect to the assignment of overtime work at a correctional institution. Since secure-to-secure transfer work either directly or indirectly gives rise to overtime, if transfer work is assigned to a correctional institution the resulting overtime is subject to the Provincial Overtime Protocol. For the purposes of administering the Provincial Overtime Protocol, the Employer keeps track of “Hours of Opportunity Totals”, or “HOT” hours. I note that there is no allegation that the assignment of the transfer duties in the examples before me gave rise to any error with respect to the calculation of HOT hours.

33. The question is whether the Provincial Overtime Protocol also, either expressly or by necessary implication, requires the assignment of overtime work associated with transfers to a particular correctional institution.

34. The Union relies upon several decisions of this Board which address issues of overtime in relation to the community escort work. For the reasons stated above, a transfer is not a community escort. Nonetheless the nature of the work performed by a correctional officer during a secure-to-secure transfer is much the same as the work performed during a community escort. Further, as noted, the community escort agreements provide that correctional officers performing transfer work shall have community escort training and the Provincial Overtime Protocol applies to transfer work assigned to a correctional institution. Accordingly, I turn to review the decisions referenced by the Union. I shall do so in chronological order.

35. In Ontario Public Service Employees Union (Megahy et al.) v. Ontario (Ministry of Community Safety and Correctional Services, GSB# 2002-2130, unreported decision dated September 12, 2007, (Brown) the issue was whether the use of police to perform community escort work in relation to inmates from a correctional institution breached a June 13, 2001 memorandum of settlement between the parties. Vice Chair Brown concluded that the June 13, 2001 settlement “obligated the employer to refrain from using police as escorts without first making reasonable efforts to determine whether classified correctional officers were available to do this work, including those officers who had not submitted a sheet indicating a willingness to perform all types of work on overtime”.

36. Megahy was concerned with the assignment of work by the correctional institution. There was no dispute that there was community escort work at the correctional institution. That is, Vice Chair Brown did not address whether the Employer was required to assign the work to the institution in the first place. There was no reference to secure-to-secure transfer work at all. I do not find the case to be of assistance.

37. In Ontario Public Service Employees Union (Charles et al) v Ontario (Community Safety and Correctional Services), 2011 CanLII 60316 (ON GSB) (Herlich), Arbitrator Herlich described the question before him and the positions of the parties as follows (at para. 5 and 6):

…. Where the employer requires COs to perform community escort and where in that quest, [sic] it has exhausted all COs who have indicated their availability to work overtime, is it obliged to then canvass (potentially all) other COs within that institution before looking to other means to satisfy its operational needs.

To oversimplify, the union says the answer is always “yes”; the employer asserts that it has a discretion to canvass COs who have not indicated their availability but [has] no obligation to do so (and certainly no obligation to canvass all such COs) before considering other options.

At paragraph 20, Arbitrator Herlich observed:

The community escort issues clearly overlap, to some extent, with issues of overtime writ large, in particular since a community escort assignment invariably means (whether directly or indirectly) an overtime assignment.

38. Like Megahy, the 2011 Charles decision was concerned with the assignment of work by the correctional institution. There was no dispute that there was community escort work at the correctional institution. That is, Vice Chair Herlich did not address whether the Employer was required to assign the work to the institution in the first place. There was no reference to secure-to-secure transfer work at all. I do not find the case to be of assistance.

39. In Ontario Public Service Employees Union (Charles) v Ontario (Community Safety and Correctional Services), 2014 CanLII 48011 (ON GSB) (Herlich), Arbitrator Herlich framed the issue before him as follows (at para. 3):

The question is whether the employer was obliged to canvass all classified COs, i.e. including classified COs who had not signed up for overtime, for available escort shift duties.

[My emphasis.]

40. Like the 2011 Charles decision, the 2014 Charles decision was concerned with the assignment of work by the correctional institution. There was no dispute that there was “available” community escort work at the correctional institution. That is, Vice Chair Herlich did not address whether the Employer was required to assign the work to the institution in the first place. There was no reference to secure-to-secure transfer work at all. I do not find the case to be of assistance.

41. Stickle was an expedited decision made pursuant to the mediation/arbitration process described in Article 22.16 of the collective agreement (commonly referred to as a “22.16 decision”). Therefore, as the Employer notes, it is without prejudice or precedent, as stated in Article 22.16.7. Put differently, it does not bind me. The fact that the decision is not binding, does not mean, however, that its reasoning is not worthy of consideration.

42. In Stickle, the parties put the following question to Arbitrator Herlich (see para. 4):

Once an inmate is admitted to hospital, is the employer required to assign the escort function to [Correctional Officers (“COs”) from] the [correctional] institution within which the inmate is housed (or “on the count”) OR does the employer have a management right to assign the escort function to COs from any institution?

[The statements in square brackets above were inserted by Arbitrator Herlich.]

Arbitrator Herlich held the employer was required to assign the escort function to correctional officers from the correction institution within which the inmate is housed. His reasons for doing so were as follows:

8One of the assertions advanced by the union was that many, though not all, escort duty assignments involve overtime hours. This was not disputed by the employer. …

14The distribution of overtime (which can include escort duty assignments) is indisputably a matter of local administration. And the overtime work to be distributed is work that pertains to the care, custody and control of the inmates of the local institution. And while the parties argued about whether or not inmates being escorted to and monitored at other locations remained “on the count”, there was no dispute that such inmates remained under the care, custody and control of the local institution housing them. Indeed, it was also not disputed that the place where one would find the bureaucratic trace of that inmate’s presence would be in the “master escort logbook” – a record kept locally for each institution. In my view, to directly assign work that pertains to the care, custody and control of inmates of a particular institution to COs of a different institution is (barring possible exceptional circumstances not here evident) entirely inconsistent with the scheme of the collective agreement and local overtime protocols.

[My emphasis.]

43. As discussed above, an inmate being transferred from one correctional institution to another is not “under the care, custody and control” of either correctional institution. Rather, the inmate is under the care, custody and control of the correctional officers conducting the transfer. Accordingly, I do not find it necessary to express an opinion on Arbitrator Herlich’s reasoning in Stickle as it simply has no application to the issue before me.

The Job Description for Correctional Officers

44. The Union notes correctional officers are hired to work at a specific institution. The Union argues that absent the agreement of the parties a correctional officer cannot be assigned duties at another institution absent an approved lateral transfer pursuant to Article 6 of the collective agreement. The Union argues this is consistent with the job description for a correctional officer which provides in part:

45. Purpose of Position:

To perform a full range of duties related to the care, custody, control and supervision of offenders for a correctional facility on an assigned shift.

2. Duties and Responsibility [sic]:

Within an assigned internal/external area of the facility and through rotational positions, the position:

6. Provides institution/community escort duties for offenders (e.g. visits, transfers between institutions, hospitalization, medical appointments, court attendance, temporary absences) to ensure the safety of offenders, staff, visitors and the public.

7. The Union notes that the duties and responsibilities listed in the correctional officer job description give transfers between institutions as an example of community escort duties. Further, the Union notes that the prefatory words to the duties and responsibilities indicate they are “within an assigned internal/ external area of the facility”.

8. The Union notes by contrast that the job description for the provincial bailiff position included responsibility for “ensuring the care, custody and control of offenders when transporting between provincial/federal institutions”. From 2015 to 2019, the Employer used bailiffs in the Offender Transfer Operations Unit (“OTOU") for this purpose. Thereafter, the Employer elected to disband the OTOU and revert the secure-to-secure transfer function back to the institutions. In the result, the Union argues, the secure-to-secure transfers can only be done by the correctional officers at the institution from which an inmate originates.

9. The Employer does not contest that correctional officers are hired to work at a specific institution, but argues it is irrelevant. The Employer argues the job descriptions do not form part of the collective agreement and thus do not circumscribe management rights. In any event, it argues that the job description of a correctional officer recognizes that the duties of a correctional officer include community escort and “transfers between institutions”. There is no need for a correctional officer to be transferred to another institution in order for the correctional officer to perform transfers of inmates involving that institution.

10. I accept that correctional officers are hired to work at a given institution. They are not, however, hired to only work within that institution: community escort work itself takes place outside the institution. I agree with the Union that the job description does refer to transfer work as an example of community escort duties. This reference does not change the fact that a transfer is fundamentally different from community escort: the inmate being transferred is not housed in any institution. If, as the Union argues, only correctional officers at the correctional institution at which an inmate is housed can be assigned work in relation to that inmate, and if correctional officers can only be assigned work in relation to inmates housed at their correctional institution, then no correctional officer can be assigned the transfer work since the inmate being transferred is not housed at any institution. I do not, however, read the job description as narrowly as the Union does. Transfer duties are an example of community escort duties in the sense that the same training is required, the task is similar, and correctional officers of an institution may be assigned to perform this duty, not in the sense that transfer duties are community escort duties. Further, the job description refers to other duties as assigned. Transfer work is such a duty.

11. I note in passing that the Union also relies upon the job description for the bailiff position. The duties of bailiffs include secure-to secure transfers. In 2015 the Employer created the “Offender Transfer Operations Unit” to oversee transfers. The Unit assigned transfers to bailiffs. In 2019, the Employer decided to abolish the Unit and assign the transfer work to correctional officers. In my view, this does little to advance the Union’s position. The dispute is not about the fact the transfer work was assigned to correctional officers as opposed to bailiffs. The dispute is with respect to which correctional officers the Employer may assign that transfer work.

Compressed Work Week Agreements

50. The Union’s submissions (both written and oral) in relation to Compressed Work Week Agreements (CWWA) were as follows:

51. The Parties have agreed, pursuant to Article 10 of the C/A, that each institution may enter into a CWWA to address hours of work and overtime at the Local level. Every institution has executed a CWWA. The C/A sets out a model CWWA for the institutions to follow;

52. CWWA’s set out the posts and shifts associated with each institution. Each post has shift lines associated with the post. The shifts are identified by a letter reflective of the hour length of the shift and a number reflective of the start time of the shift. The CWWA is specific to an individual institution;

53. These posts and shifts are posted as part of the eRoster / HPRO computerized system that each institution utilizes for the purpose of integrating the assignment of regular shifts, overtime opportunities, assignment of escort duties and allocation of FXT hours and assignments. The assignments are specific to the employees of that institution. Correctional Officers employed at one institution are not listed on the eRoster for another institution and are not allowed to be available for or sign up for shifts associated with an institution at which they were not hired for;

54. When an institution assigns escort duties to correctional officers they are required to follow the Memorandum of Settlements executed in relation to escorts;

55. When an institution assigns overtime to a Correctional Officer they are required to follow the Provincial Overtime Protocols executed by the Parties;

[My emphasis.]

51. In my view, this does not assist the Union. For the reasons stated above, transfer work is not “associated” with an institution until the Employer assigns the transfer to the institution.

Conclusion

52. Based on the above review, I conclude the Union has not established that the Employer’s management right to assign the transfer work to a particular correctional institution is fettered by the escort agreements, the Provincial Overtime Protocol or the correctional officer job description or the Compressed Work Week Agreements.

53. For clarity, I note again that there is no allegation that any of the assignments in issue were for an improper motive or that they were arbitrary, discriminatory or in bad faith. There is no allegation that the correctional institution to which the work was assigned then breached the escort agreements or the Provincial Overtime Protocol in its assignment of the transfer work to correctional officers at the institution.

54. Accordingly, for all of the foregoing reasons, the grievances are dismissed.

Footnotes

1. 1The term encompasses correctional facilities, jails and detention centres.
2. 2Article COR15.1.2, which is applicable to regular part-time employees, contains identical language.
3. 3The decision to house the inmate at the SWDC arose from the fact that Inmate H had a mobility issue which made use of an elevator desirable: the Sarnia Jail does not have an elevator; the SWDC does. The decision not to transfer the inmate apparently arose from the Employer’s desire to keep financial costs associated with the detention of Inmate H on the books of the Sarnia Jail: costs incurred by the SWDC were journaled back to the Sarnia Jail.
4. 4The Municipal Act (2001) states that municipalities are responsible for transporting inmates between correctional institutions and courts. The court in Sarnia is connected to the Sarnia jail by a tunnel. Inmate H was transported to the Sarnia Jail by the correctional officers and transported from the Sarnia Jail to the Sarnia court by municipal police.
5. 5The terms “classified” and “unclassified” employees were used under the Public Service Act, RSO 1990, c. P. 47 to refer to what would be referred to under the Public Service of Ontario Act, 2006, SO 2006, c. 35, Sch. A (“PSOA”) as “regular” and “fixed-term” (“FXT) employees respectively. The Public Service Act was repealed and replaced by the PSOA, which was proclaimed in effect in 2007.