PSGB# P-2016-1344

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Lee

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE COMPLAINANT

Andrew Camman Polishuk Camman & Steele Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

HEARINGS

April 28, May 31, September 25, 28, November 10, 20, 24, 2017; January 29, March 9, April 9 and 17, 2018

DECISION

1The complainant, James Lee, was employed by the Ministry of Community Safety and Correctional Services (“CSCS” or the “Ministry” or the “Employer”) as a Sergeant at the St. Lawrence Valley Correctional and Treatment Centre/Brockville Jail (the “Brockville Jail”). His employment was terminated on August 5, 2016. This complaint challenges that decision. In submissions it was conceded that Mr. Lee engaged in some misconduct warranting discipline. At issue is the nature and extent of the misconduct and whether or not the penalty imposed ought to be reduced in all of the circumstances.

2The Employer alleged that the complainant had breached various Ministry and OPS policies and directives, the Code of Conduct and the Statement of Ethical Principles for purposes of personal financial gain, that the complainant was not truthful during the investigation process and at the formal allegation meeting, and that he failed to take responsibility for the misconduct, instead seeking to lay blame on Lori Ritchie, Relocation Coordinator, and/or on his spouse, Kerri Lee.

3The alleged misconduct can be described as the creation and filing of false receipts for the purpose of claiming reimbursement for relocation expenses, including reimbursement for expenses that were not incurred. There is no dispute that receipts filed with the Relocation Office were false in that none were prepared or provided by the respective service provider.

4The complainant asserted that he had no intention to deceive; that he did what he understood was acceptable; that he claimed no more than what was actually paid; and that he simply failed to pay sufficient attention to his relocation expense claims. The complainant put the Employer to the strict proof of its case. The lengthy evidentiary review is necessary to assess the nature and extent of the misconduct and how the complainant’s position changed as the inquiry progressed, giving insight into his credibility, the relevant findings, and ultimately, factors relevant to the issue of penalty.

5I have carefully reviewed all of the evidence in light of the potential consequences. In reaching these factual findings, I have also had regard to the parties’ submissions with respect to the conclusions that I ought to draw from the evidence. Finally, I have had regard to what is more reasonable and probable in all of the circumstances, making findings based on a balance of probabilities. Although findings are made at the conclusion of the evidentiary review of each of the three main allegations, those findings have been made having regard to the evidence as a whole.

6Through the investigation, the allegation meeting, and at the hearing, the complainant blamed others, failed to offer information, and lied. Examples are set out in the review that follows. When pressed on certain facts the complainant made certain admissions, although those remained subject to the assertions of reduced culpability outlined in paragraph 4 above. The complainant’s spouse also testified. I found her evidence troubling. Her attitude throughout trivialized the allegations. She was willing to tailor certain of her evidence to what she understood would be consistent with the complainant’s testimony, and, when that appeared unhelpful, she opted not to remember.

7In his evidence the complainant suggested a certain ignorance or misunderstanding of the Employer’s claims process and entitlements. I find that suggestion untenable. The complainant had worked in CSCS for 26 years. In cross-examination he acknowledged the need for transparency with respect to expense claims. The complainant also acknowledged that when signing the expense claim form, one is attesting to the veracity of the expenses being claimed. That form states, “this is to certify that the above expenses were incurred by me…” (emphasis added).

8At the time of his termination from employment, the complainant was 46 years old. He had 26 years of service in the OPS with CSCS. He had no disciplinary record. He had progressed through the ranks from a youth Recreation Officer, to Correctional Officer, to Sergeant and was specially trained in use of force techniques. He had worked as a lead on cell extraction and ICIT teams, had developed training and had acted as a use of force instructor and Provincial Coordinator for use of force training for the Ministry. He had acted as a resource to the Minister and the Ministry with respect to use of force techniques, providing briefing notes and expertise. He had also developed and delivered training in use of force techniques to CSOI inspectors in order to ensure that their investigations into use of force allegations could be conducted appropriately. He developed and delivered training in personal protective security and safety equipment and community escort. He was appointed as the ICIT coordinator in 2015 at the Brockville Jail. The fact that the complainant had valuable and high-level correctional skills and knowledge was acknowledged by the Employer.

9The complainant began employment with CSCS in 1991 and had worked at the Brockville Jail for approximately 6 years. He was reassigned to Central East Correctional Centre (“CECC”) in Lindsay in or about 2005 at which time he used the Employer’s relocation services. In 2015 the complainant was employed as a Sergeant at CECC. He was living with his spouse and two children in Bobcaygeon. The complainant explained that he and his spouse wanted to move back to Brockville as their extended families lived in that area. In addition, Mrs. Lee was uncomfortable remaining in Bobcaygeon as a result of employment issues she had faced with CSCS.

10In early 2015 the complainant applied for a Sergeant’s position at the Brockville Jail pursuant to a competition. A conditional offer was accepted by the complainant on June 11, 2015. In that acceptance the complainant attested that he had read, understood, and accepted the terms of employment outlined. The letter referenced various policies and responsibilities, including the Code of Conduct and Professionalism. That letter also confirmed that the complainant was entitled to be reimbursed for relocation expenses in accordance with the Employer’s Relocation Expenses Directive (the “Directive”). The job formally commenced on June 15, 2015, although the complainant attended in Brockville for some training the prior week.

11The Directive “authorizes the payment and/or reimbursement of relocation expenses” (page 3). The Directive sets out its purpose, application and scope, principles, and mandatory requirements. It details the kinds of expenses that can be reimbursed in circumstances of a permanent relocation. The Directive provides, inter alia:

4.0 Principles

The following principles guide the application of the Directive.

• Taxpayer dollars are used prudently and responsibly with consideration of accountability and transparency

• Employees are reimbursed for legitimate relocation costs incurred.

General Mandatory Requirements

6.1 General

The following are requirements for both types of relocation [permanent and temporary]:

• good record keeping practices must be observed for verification and audit purposes, including original, itemized receipts for all requests for reimbursement

• submit all expenses on the relocation expenses form

6.2 Eligibility for payment and/or reimbursement

Employees must:

• Submit original, itemized receipts for all relocation expenses that are not managed by the service provider…if there is no itemized receipt, a written explanation to explain why the receipt is unavailable and a description itemizing and confirming the expenses must be provided.

8.2 Trip to locate accommodation

Employees, and any family that will be moving with them, are eligible for reimbursement for travel expenses to find accommodation at the new location. The maximum length of the trip is seven days and six nights….

…The following will be reimbursed:

• return travel to the destination by the most economical means available

• overnight accommodation up to six nights as appropriate

• meals

• dependent care if any dependent(s) do not travel with the employee

8.6 Transitional accommodation

Transitional accommodation is the provision of up to 30 days of temporary housing at the new location. Transitional accommodation expenses will be paid and/or reimbursed if the employee has reported to work at the new location, and:

• Maintains a home at the current location for family…, or

• The residence at the new location is not available for occupancy on the date of the move

8.7 Incidental Expenses

Costs for allowable incidental expenses will be reimbursed up to a maximum of $2000. Incidental expenses are those relocation costs not specifically addressed elsewhere in the Directive.

12The Code of Conduct and Professionalism expressly identifies that correctional employees are held to a high ethical standard, not only as a matter of maintaining the public’s trust, but as an example to those individuals under their supervision. That Code also expressly provides that managers have an additional responsibility to set an appropriate example through their own behaviour.

13Defined infractions under the Code of Conduct include obstructing, inhibiting or otherwise hampering any fact finding, investigation and/or audit; wilfully or negligently making or signing a false statement in relation to the performance of duty; and failing to maintain due diligence in recording expense claims in accordance with established policies and procedures.

14The Employer’s Statement of Ethical Principles provides, inter alia:

Statement 1

Perform our duties on behalf of the citizens and Government of Ontario with honesty and integrity.

As public servants, we are accountable to the citizens of Ontario…

As such, each member of staff will:

-Respect and obey the law at all times.

-Act with propriety, honesty and fairness in the conduct of one’s duties.

-At no time, act or engage in any activities that might undermine organizational confidence in the ability or commitment to undertake one’s role with fairness, impartiality and integrity.

-Ensure scrupulous compliance with all regulations, procedures and policies relevant to professional duty.

-At no time, act or engage in any activities that misuse Government resources such as misappropriation of Government funds…

15The complainant submitted a total of nine “receipts” for reimbursement under three claim categories in the Directive. As set out below, and notwithstanding his original assertion that his spouse had created all of the “receipts”, the evidence establishes that the complainant created five of these “receipts” and his spouse created four. The complainant appropriated a business name on three “receipts” and forged a signature on another. His spouse forged a signature on each “receipt” she created. Each “receipt” purports to indicate that a service related to relocation was provided to and paid for by the complainant or his spouse in cash. According to the complainant, the object of the claims being filed in this manner was to be reimbursed as quickly as possible for their expenses.

16I have put the term “receipt” in quotes above. The remainder of this decision does not, as it is simply too unwieldy. However, I note here that a ‘receipt’ can only properly be understood as a document verifying that an amount has been paid to and received by a person or entity. ‘Verification’ requires independent validation of payment.

17The complainant understood what was meant by a receipt and reimbursement. Early in his cross-examination it was apparent that the complainant had a good understanding of his entitlements under the Directive. Certain expenses are covered directly by the Employer. The complainant agreed that in cases where the service is contracted by the employee, the employee pays for the service and then claims reimbursement. He agreed that the vendor provided an invoice, setting out the nature of the service and indicating the “when, what and how much they charged”. He further agreed that the document provided security to him, that the vendor could not claim that they had not been paid. He agreed that he was then able to take that document to the Employer to be paid out based on that original, itemized receipt. It was then put to him, “And you understood that”, and he answered yes.

18On June 10, 2015 the complainant contacted Lori Ritchie, Relocation Coordinator for the Ontario Provincial Police (“OPP”). CSCS uses the OPP Relocation Office for its relocation services. Ms. Ritchie had been employed in the Relocation Office for 23 years and had spent the last 21 years as the Relocation Coordinator, dealing with over 200 relocations a year. Ms. Ritchie reported to Cathy Richardson, Manager of Financial Services Section, within the Business Management Bureau of the OPP, and was assisted by Kristen Lee (no relation to the complainant and referred to herein as Ms. Lee, to be distinguished from the complainant’s spouse, Mrs. Lee). Their office is located in Orillia. Ms. Ritchie has the authority to approve reimbursement of the expenses outlined by the Directive. Ms. Lee does not. Should there be claims involving circumstances not clearly contemplated by the terms of the Directive, Ms. Ritchie will bring those to Ms. Richardson’s attention for consideration.

19Ms. Ritchie confirmed that the Directive requires that a claim for reimbursement of expenses requires the employee to provide the Relocation Office with original, itemized receipts. Payment is not provided in advance of incurring an expense. In the absence of an original, itemized receipt, section 6.2 of the Directive requires a written explanation as to why a receipt is not available and a description itemizing and confirming the expense. In Ms. Ritchie’s experience, that alternative was rarely required. Original receipts are mailed to the Relocation Office in Orillia where the claim is reviewed. A completed claim form is submitted in conjunction with the receipts. That form may be delivered electronically. Once approved, the claim is forwarded to a North Bay office for processing of the reimbursement payment. The original receipts are retained in the Orillia office.

20Larger costs, such as legal fees, real estate commission, hotel charges, and moving costs, are paid directly by the Employer through direct billing procedures. Those are not in issue in this case, although the complainant benefited significantly from the Employer’s payment of various costs associated with selling his Bobcaygeon home, the costs of purchasing a new home near Brockville, and the costs associated with packing, moving, and unpacking the family’s household effects.

21The Employer also offers a guaranteed purchase price opportunity to relocating employees when selling their residence. Two appraisals are obtained and a guaranteed selling price is established. Part way through the relocation process the complainant initiated that service in connection with selling his Bobcaygeon home. However, he disputed the price established and subsequently sold his home at a higher price. This evidence spoke to the complainant’s abilities to advance a position of interest.

22In an email to the complainant dated June 10, 2015, Ms. Ritchie referred the complainant to the intranet site where he could locate the Directive, the necessary forms, and general information. She identified that transitional accommodation costs would be covered for 30 days or to a maximum of $3000. That second option had been given to CSCS because, as in Mr. Lee’s case, it was not unusual for employees to receive relatively short notice of their relocation, with less opportunity to make new housing arrangements, thereby increasing the need for longer temporary housing.

23Shortly after that email was sent, the complainant phoned Ms. Ritchie, asking, among other things, about time off from work to look for a new house. She explained that time off was at the discretion of the supervisor, generally to the equivalent of 40 hours.

24On June 11, 2015 the complainant spoke to Ms. Ritchie concerning the trip to locate new housing. Her log notes that she advised the complainant that he was entitled to 6 nights accommodation and 7 days and that itemized receipts were required for reimbursement. On June 16, 2015 the complainant provided Ms. Ritchie with his offer letter, confirming that his “relocation expenses may be reimbursed as per [the Directive]”. He also advised Ms. Ritchie that he was requesting the $3000 option for transitional accommodation on the basis that he would need more time to find housing in Brockville.

25On June 17, 2015 Ms. Ritchie reviewed and completed a “transfer questionnaire” during a phone conversation with the complainant. It records details as to the employee’s personal circumstances in order that relocation services can anticipate the kinds of services and claims that are likely to be required. It also reviews with the employee the nature and scope of the relocation services and claims.

26That document records, inter alia, that the complainant advised that he owned an RV and that Ms. Ritchie advised him that transitional accommodation expenses could only be approved a month at a time. She also advised that reasonable childcare expenses were recoverable when the children did not go on the trip to locate (or “viewing” trip), or, if the employee took the children with them, costs for their meals were recoverable.

27Also on June 17, 2015 the complainant received an email from Brenda White, a CSCS employee, advising him that she had reviewed his email to Superintendent Barclay concerning his travel expenses for June 10 and 11, 2015 when he attended in Brockville for training. She advised him that, although he had provided “a written paper with the information regarding [his] accommodation that is not considered a proper receipt”. She asked him to provide a written explanation with details. In the email she copied that portion of the accommodation policy regarding stays with family or friends. Like Article 6.2 of the Directive, that excerpt notes that, in the absence of a receipt, a detailed written explanation must be provided.

28In re-examination the complainant testified that it was not until the investigation that he became aware of this option to provide a written explanation for an expense claim where no receipt was available. Ms. Ritchie had testified that she explained both options to the complainant and her evidence was not challenged. I prefer Ms. Ritchie’s evidence. In addition, and while not directly related to relocation expenses, the complainant had received this email, reinforcing to the complainant that the Employer would reimburse legitimate expenses (at least in respect of accommodation) even when receipts were not available, provided the Employer could verify the expense.

29On June 18, 2015 Ms. Ritchie had the first of two conversations with Mrs. Lee. Both conversations centred on issues around the mortgage on the Bobcaygeon residence. Ms. Ritchie confirmed to Mrs. Lee that an interest penalty to a maximum of three months was recoverable if the ‘old’ mortgage was not portable, and that written confirmation of that lack of portability was required from the lending institution. Mrs. Lee ensured that the necessary documentation was provided to Ms. Ritchie. The complainant was subsequently reimbursed for a mortgage interest penalty.

30Ms. Ritchie did not recall, and the notes in her log did not disclose any discussion of other expenses with Mrs. Lee. Ms. Ritchie confirmed that it is her practice to make a record in her log when any phone conversation is held. I accept Ms. Ritchie’s evidence regarding the completion of her log that shows only two conversations with Mrs. Lee. Although Mrs. Lee initially claimed to have had numerous conversations with Ms. Ritchie, when shown information from the log, her evidence changed, and she claimed to have overheard conversations held between the complainant and Ms. Ritchie on speaker phone. As reviewed below, the complainant’s cell phone records suggest otherwise.

31On Monday, June 22, 2015 the complainant spoke to Ms. Ritchie about the trip to locate. Mr. Lee asked if he could use family accommodation and whether he could scan and email receipts. Ms. Ritchie advised that family accommodation could be claimed at $30/night for 6 nights. She also advised that receipts were to be sent to the Relocation Office in their original form. The complainant told her that his family had taken a campsite for 30 days. She understood that the complainant intended to use the campsite as transitional accommodation, which was appropriate under the Directive.

32The complainant had to re-certify for ICIT duties. That training took place in Toronto from June 22-26, 2015. He also agreed to spend time over the June 27-28 weekend assisting the Employer in the Milton and Toronto area, with the attendant need to drive there and back.

33On June 23, 2015 the complainant again spoke with Ms. Ritchie and advised that he had an expense claim. He told her that he had paid for a campsite for the month of July and also that he had used the campsite for the viewing trip. Ms. Ritchie advised the complainant that costs for dog kennelling would have to be filed as an incidental expense and not part of the viewing trip.

The June 23, 2015 expense claim - Claims under section 8.2 (trip to locate) and section 8.6 (transitional accommodation) of the Directive

34On June 23, 2015 the complainant filed a claim for reimbursement of relocation expenses. It was received in the Relocation Office on June 30, 2015. There were three receipts and a mileage claim. The expenses were in connection with a trip to locate new housing and transitional accommodation for July 1-31, 2015.

35The first receipt filed purported to indicate that on June 16, 2015 the complainant paid $332.22 including HST in respect of a 6-night stay from June 16-21, 2015 at Pleasure Park Campground. The second receipt filed purported to indicate that on June 19, 2015 the complainant had paid a total of $1514.20 for a campsite at Pleasure Park for the period July 1-31, 2015. This cost included the campsite as well as charges for hydro and sewage and HST. These receipts appeared to come from the same receipt book and were numbered in intermittent sequence, the first receipt being #373663 and the second, ostensibly written three days later, was #373677.

36The third receipt filed in support of the expense claim was in a different form from the Pleasure Park receipts and appeared to have been written and signed by Gloria Davidson, purporting to indicate that on June 22, 2015 she received $420 from Kerri Lee for child care for the Lee’s two children for 7 days from June 16-22, 2015. The total expense claim was $2522.42.

37This claim was not relied on in the Employer’s letter to terminate the complainant’s employment. There was no objection to the relevance of the evidence and no argument that I ought not to consider this conduct as part of the overall issue. Although raised in the investigation the Employer did not pursue the Pleasure Park claim at the time as the campground was closed for the season.

38Based on those receipts, the claims were approved by Ms. Ritchie on July 6, 2015. At the time, Ms. Ritchie had no concerns as to their authenticity; the receipts were original and indicated that the expenses had been incurred. The complainant had advised her by phone that he had booked a campsite and she believed the receipts to be legitimate. From the information submitted, Ms. Ritchie understood that the complainant and his spouse had stayed at Pleasure Park without their children for the maximum 6 nights allowed for their viewing trip and that they had decided to utilize the campground for transitional accommodation in July. The campground appeared to have provided the two receipts. Ms. Ritchie also understood that Gloria Davidson had taken care of the Lee’s children while they were on their viewing trip.

39The claim for July 1-31 was paid separately as transitional accommodation and utilized a portion of the $3000 allowable cap. The June 16-22 claims were paid out in respect of the viewing trip. The funds for both claims were deposited directly to the complainant’s bank account on July 17, 2015. On July 16, 2015 Ms. Ritchie advised the complainant by email to expect the deposits, that is, $1008.22 for trip to locate expenses, and $1514.20 for transitional accommodation for the month of July 2015.

40In fact, and as admitted at the hearing, the complainant and his family stayed at Pleasure Park only from Thursday, June 18 to Sunday, June 21, 2015. It was Father’s Day weekend and they participated in an annual extended family gathering at the campground. Mrs. Lee had made the booking on May 12, 2015, prior to the complainant receiving the conditional offer of employment in Brockville. The children travelled with Mrs. Lee. Gloria Davidson is Kerri Lee’s mother. There was no evidence that she cared for the children to the exclusion of their parents over that period. Nor did Ms. Davidson testify to confirm that she received the $420 claimed. Other than an assertion, there was no evidence of house hunting over that weekend.

41In chief the complainant testified that his family had also stayed at Pleasure Park the weekend of June 26-28, 2015 and that Mrs. Lee determined that in total it reflected a 6-day stay (notwithstanding that the trip to locate claim had already been filed on June 23rd). However, they had signed a purchase and sale agreement for a new home on June 25, 2015, resulting in no further need to locate new housing at that time.

42There was no evidence as to how and when that property was located. There was also no evidence of any house viewing during the June 26-28 weekend, other than the complainant’s assertion. At one point in his chief the complainant testified that they had not charged for that weekend. A few minutes later, in response to a question as to whether the receipts claimed for services not received, he backtracked and said that they had spent 6 nights at Pleasure Park, but claimed ignorance of the cost details. Later in his evidence in chief the complainant stated that the dates on the June 16, 2015 receipt were off because they combined the weekends but that the cost should match up.

43In chief the complainant testified that Mrs. Lee had filled out the Pleasure Park receipts and that she “took over all the receipts”. He testified that the information on the Pleasure Park receipts had been obtained by his spouse from the campground’s website and he believed that she had submitted the receipts to the Relocation Office prior to July while he had completed and submitted the claim form.

44In her evidence, Mrs. Lee testified that the complainant had made the financial arrangements with the campground and that she believed that the complainant had created these receipts. She testified that “we” looked online to get the amounts, “trying to get a rough guesstimate” for Ms. Ritchie, then stated that she had created the amounts. Mrs. Lee testified in re-examination that she had not prepared the Gloria Davidson receipt. Nor did she suggest that it was her mother’s writing.

45In cross-examination, the complainant acknowledged that he was in Toronto when he submitted the June 23, 2015 claim. He subsequently agreed that he had created these Pleasure Park receipts. He initially denied having created the ‘Davidson’ receipt. He agreed in cross-examination that he had admitted to the investigator and recalled telling the investigator that he had signed Gloria Davidson’s name, but then suggested that he did not recall doing it. When pressed as to whether he had signed her name, he stated, “if I remembered then I probably would have, yes”. He testified that the receipt was not a false statement as the money had been paid. He could not verify how this amount had been paid other than to assert that his spouse had left cash for her mother.

46The complainant testified that the campground would not provide a receipt for a cash payment that enabled him to access a better campsite. The owner of Pleasure Park testified and produced his records at the hearing. Those records included copies of receipts that he provided to the complainant in respect of time spent at the campground. A receipt dated June 21 indicates that the complainant paid a total of $166.11 for a 3-day stay from June 18-21 that included 2 adults and 2 children. A second receipt dated June 28 indicates a 2-day stay from June 26-28 for an amount of $101.70 for 2 adults and 2 children. A third receipt dated July 31 indicates that the complainant paid a total of $998.91 for the period July 1-31. That charge included hydro, sewage, and HST. These dates do not reflect the date on which the receipts were written, but rather, the expiry date of the stay at the campground. The receipts are created at the outset as payment is required in advance. Notwithstanding various suggestions in cross-examination, there was nothing in the evidence from which one could reasonably conclude that these records were not true accounts of the amounts actually paid by the complainant and received and receipted by the campground in respect of those stays. Contrary to the submissions of the complainant, the sequencing of the real Pleasure Park receipts merely shows that the complainant paid for the July stay immediately before paying for the June 26-28, 2015 stay. There is nothing untoward in that evidence and it provides no basis to challenge the owner’s credibility.

47The complainant asserted that the receipts filed in respect of the campground had been created in advance based on what they understood the charges would be, so as to be reimbursed as quickly as possible. Yet the complainant had one valid Pleasure Park receipt when he filed his claim on June 23, 2015 and was provided with two other valid receipts by no later than June 26, 2015, only three days after he filed the claim.

48In chief, the complainant also testified that he had incurred costs that were not claimed, including the cost of a boat slip, showers, laundry, firewood, guest visits, and babysitters, estimating that he had spent at least $1600. In making this assertion, the complainant did not turn his mind to whether any of these expenses were reimbursable under the Directive. In any event, none were documented.

49On June 23, 2015, Ms. Ritchie logged that the complainant told her he had an expense claim with receipts and she told him to mail it to the Relocation Office. There was no dispute that the complainant completed and signed the claim form. When asked if he had submitted receipts with the claim form, the complainant answered, “everything is a blur at this point”. The complainant agreed that when he completed the claim form the fabricated receipts had already been prepared as the amounts claimed correspond to the amounts on the fabricated receipts. Each claim on the form is identified as having a corresponding numbered receipt. Each receipt bore that corresponding number, suggesting that whoever completed the claim form also numbered the receipts.

50The complainant acknowledged in cross-examination that, when he filed the claim on June 23, 2015, he was aware that the claims submitted for June 16, 17 and 22, 2015 were false. He also agreed that, as of June 23, 2015, he had not paid Pleasure Park $1514 in respect of the July, 2015 stay. The complainant and his family did stay at Pleasure Park during July, 2015.

51Having regard to the evidence, I am satisfied and hereby find that the complainant both prepared and submitted false documents in respect of two Pleasure Park claims as well as the Davidson claim. In doing so, he appropriated the campground’s business name and forged the signature of Mrs. Davidson. There is no reliable evidence that the Davidson claim was actually paid. The evidence does not support a finding that the Pleasure Park claim for June 16-22, 2015 and the Davidson child care claim reflected expenses properly reimbursable under the Directive, as the evidence does not support a finding that the time claimed or actually spent at the campground during the period June 16-22, 2015 was used to locate new housing or provide related child care. There is also no evidence to support a finding that the June 26-28, 2015 stay was reimbursable under the terms of the Directive. The claims for Pleasure Park were also in excess of the amounts actually charged, both in respect of the June 16-22 claim and the July 2015 claim, and, in both cases, included claims for expenses not incurred. The complainant was aware of the actual cost of the more limited June 18-21, 2015 stay when he filed the June 23, 2015 claim. He also could have readily obtained the cost for July 2015 from the owner or waited 3 days to file his claim. The totality of the evidence supports the conclusion that the false documents were filed for the purpose of claiming monies to which the complainant was not entitled.

52Ms. Ritchie had told the complainant that paid time off for the trip to locate was at the discretion of the institution, up to 40 hours. That understanding was confirmed by Deputy Superintendent (“DS”) Boucher in an email to the complainant dated July 7, 2015. The complainant later took August 5, 6, and 10, 2015 as vacation. On August 26, 2015 he asked DS Boucher that those dates be treated as relocation leave, as he “was in the area securing new residence”. That was not true. The complainant’s new residence was ‘secured’ by July 15 and his phone records indicate that he was not in the Brockville area on August 5 or 6, 2015. The complainant testified that he used those days for “getting stuff done, buying appliances”. He later testified that, “what I meant by securing, I don’t know”. Even assuming that he was engaged in activity related to his relocation, the complainant was not on a trip to locate, the basis of any request for paid time off.

53His evidence and an earlier email on July 27, 2015 to DS Boucher make clear that the complainant treated this 40-hours off work as an entitlement. In cross-examination the complainant stated that he was “trying to get my credit back – we did all our viewing on off-hours” and that his email “was saying I [was] entitled to 40 hours”. When asked if DS Boucher trusted his statement, the complainant responded, “I trusted them to give me the time off as I needed”. His interest in obtaining his ‘entitlement’ overcame his responsibility to be forthcoming to his employer regarding the circumstances around his request and reflects more generally on the complainant’s motives throughout this period.

Claim under section 8.6 of the Directive (transitional accommodation) for August 2015

54A home inspection was completed on June 29, 2015 and that expense was reimbursed a week after the Employer received the receipt. The purchase of that property then fell through on July 2, 2015. However by July 15, 2015 another property had been found. On July 15, 2015 the complainant advised Ms. Ritchie that the closing date on their new home was August 17, 2015. That home was purchased through a private sale. Ms. Ritchie referred the complainant to her contact with the moving company. The complainant arranged to have some electrical work done at the new home. As well, he immediately contracted to have an inground pool installed in the backyard.

55The complainant agreed that, further to a conversation with Ms. Ritchie, he knew by no later than July 22, 2015 that the transitional accommodation entitlement would end as of August 17, 2015 when they closed on their new home.

56On August 6, 2015 the complainant called Ms. Ritchie. Her log records, “did not send expense claim with receipt for accomm – August 1st -17th I will email”. Two minutes later Ms. Ritchie emailed the claim form to the complainant. The complainant testified in cross-examination that the form was required for incidental expenses not transitional accommodation, but there is nothing in Ms. Ritchie’s log to suggest that there had been any discussion of incidental expenses.

57On August 7, 2015 the Relocation Office received a receipt purportedly from Pleasure Park. That receipt was in the same form as the earlier fabricated Pleasure Park receipts and indicated that the sum of $1139.04 had been paid in respect of 17 days accommodation from August 1-17, 2015 including charges for hydro, sewage and HST. That receipt was numbered 373700.

58It is not uncommon for the Relocation Office to re-do claims for their own purposes if the appropriate receipts have been filed. So for example, Ms. Ritchie had separated the complainant’s trip to locate expenses from transitional accommodation expenses, even though filed on the same June 23rd claim form. In this case the receipt reflected a sole claim for transitional accommodation. Ms. Ritchie was aware of the arriving receipt and the entitlement claimed. In those circumstances, she did not feel it necessary to delay the claim by waiting for the complainant to send in the claim form. When Ms. Ritchie received the August receipt purporting to be from Pleasure Park, she completed the claim form on the complainant’s behalf and approved it for payment. The amount was paid directly to the complainant’s bank account on August 28, 2015.

59It was admitted that the complainant and his family did not stay at Pleasure Park during August 2015. The complainant testified that the RV became too cramped and they needed to get the new house ready. This suggestion that the complainant had access to his new home prior to closing was not clarified, although it appears that electrical work was done on August 13, 2015. In any event, the RV was parked in Gloria Davidson’s driveway for that period, ten minutes from the new home, and at no charge. The complainant was entitled to claim $30 per night for that family accommodation. However, the Pleasure Park receipt reflected a claim of more than twice that amount.

60Ms. Ritchie agreed that the complainant would have reasonably understood that the Employer’s expectation was that both the receipts and the claim form were to be provided before a claim would be processed. It was the complainant’s assertion that he had not made this claim, that he had removed the item from a claim form submitted on August 25, 2015, that he was unaware that he had been reimbursed, and that he offered to reimburse the Employer upon learning of the payment in December 2015.

61The complainant filed an expense claim form dated August 25, 2015. It sought reimbursement for incidental expenses. That claim form appears to have originally included the August 1-17, 2015 claim for transitional accommodation. That item was whited-out and total amounts were scratched out and adjusted. The note “accom” is legible next to the scratched over amount of that portion of the claim, leaving reference to an “incidentals” claim. The complainant relied on this as evidence of his intention not to claim the August Pleasure Park amount.

62Had the evidence simply been as set out in the two paragraphs immediately above, it might lead to a conclusion that there had been a mistake and not overt misconduct, although it begs the question of why a fabricated receipt was created and filed at all. However, the complainant testified that he told Ms. Ritchie during a phone conversation that his family had not stayed at Pleasure Park during August, essentially asserting that he had told Ms. Ritchie that the receipt had been forwarded by mistake. He further testified that Ms. Ritchie told him not to worry about it, that is, that she would ignore the receipt. Ms. Ritchie denied these assertions on the basis that had she been told that the receipt had been sent in by mistake, she would not have processed and approved the payment. The assertions are also not consistent with Ms. Ritchie’s note of her August 6th conversation with the complainant or with her action in sending the complainant the claim form moments after the conversation. I prefer the evidence of Ms. Ritchie, corroborated by her actions, that the complainant gave no indication other than he had sent in a receipt covering August 1-17 but had forgotten to include the claim form. The Relocation Office received the receipt, understood it to reflect a further and similar claim for transitional accommodation, and processed and paid the claim in good faith.

63The complainant testified in chief that the receipt had been prepared and sent in by his spouse and that, because he had not sent in a claim form, he had no expectation that the Employer would pay the claim. The complainant also told the investigator in an email dated December 10, 2015 that, unbeknownst to him, his spouse had sent in the August Pleasure Park receipt. He testified in chief that the first time he had seen the receipt was on December 8, 2015 during the investigation. In her evidence in chief Mrs. Lee denied having sent in this receipt or knowing how it was sent.

64In cross-examination the complainant admitted to preparing the receipt. He admitted this in a manner that was clearly concessionary. It was, in my view, a sad but telling moment, for it gave light to the nature and scope of the complainant’s actions throughout. The complainant agreed that this receipt had been prepared sometime after July 15, 2015, when they knew their closing date, and while staying at Pleasure Park, but that the receipt was prepared based on information obtained from the campground’s website. He acknowledged that he had not paid separately for hydro and sewage during the July stay, yet those amounts were identified as extras on the August receipt, and at higher service levels (50-amp rather than 30-amp hydro service for example). The complainant testified that he was too busy to ask the campground owner about the costs.

65The complainant’s evidence that the receipts were based on information provided by his spouse based on her review of the campground’s website is only relevant insofar as it implicates Mrs. Lee in the fraud. It was the complainant who had signed in at Pleasure Park and who fabricated the Pleasure Park receipts. He knew that the amounts claimed in the receipts did not reflect the amounts paid and that no money was paid to Pleasure Park for the August period.

66In cross-examination the complainant continued to deny having sent the receipt in. The OPP’s Business Management Bureau mail log confirmed receipt of a Pleasure Park invoice in the amount of $1139.04 on August 7, 2015, recording that it had been sent from the complainant from 10 Wall Street, Brockville, the address of the Brockville Jail. When confronted with that log, the complainant suggested that perhaps “the envelope” had been sent in by mistake by someone at work. He provided no insight as to how such a scenario might occur. If the complainant did not send in the receipt, yet it had come from his workplace, it begs the question of how the complainant knew to call Ms. Ritchie to advise her that it had been sent by mistake - unless he also knew how the mistake had occurred. Without that information he would have had no reason to believe that it was en route to Ms. Ritchie. He had no such explanation, and his suggestion was thereby rendered even less plausible.

67In re-examination, in support of the assertion that he had not sent in the receipt, the complainant noted that he had not been at work on August 7. That was the date on which the receipt was received, not sent. It is not apparent from the mail log when the item was sent. It appears that the complainant’s prior shift was a night shift (T18) ending on July 31, 2015. The June 23, 2015 claim had taken 7 days to reach the Relocation Office by mail, suggesting that a receipt mailed on July 30 or 31 might take a similar amount of time, although the incidental expense claim appears to have been received a day after being sent from the institution. It is clear that the August Pleasure Park receipt was sent prior to the complainant’s conversation with Ms. Ritchie on August 6, 2015. Based on the totality of the evidence I find it more likely than not that the complainant mailed the August Pleasure Park receipt to the Relocation Office.

68An email dated August 28, 2015 was sent to the complainant confirming a deposit of $1139.04 to his bank account in respect of transitional accommodation. The complainant testified that he had no internet service at this time as a result of the move and that he conducted his banking online, so never noticed the payment. According to Exhibits 24, 25, and tab 2 of Exhibit 8, the email was sent to, and received in his workplace email account. The complainant had ongoing access to that account and on August 30, 2015, when he next returned to work, the complainant opened a number of emails received in and around the same time. He responded to an email from Ms. Lee also sent on August 28, 2015 regarding missing information from the receipts for his incidental expense claim. It is highly improbable that he missed this email advice.

69Banking records indicate that online payments were made from this bank account on August 28, 2015. Those actions were attributed to Mrs. Lee and the complainant testified that he did not recall her telling him anything about receiving a $1139 payment. Mrs. Lee correctly identified an “EFT credit Ont” as an electronic funds transfer from the Employer. The complainant also testified that his banking records were lengthy, having close to a hundred entries each month, in support of his assertion that he had not noticed the payment. The complainant’s banking records show only 11 deposits to the account in August 2015 (56 entries in total) and only three deposits in excess of $1000; two being payroll deposits and the third being this reimbursement payment. This evidence shows the complainant’s willingness to exaggerate in support of his assertions.

70In re-examination the complainant attempted to distance himself from his evidence, stating that he knew nothing other than that the claims were “so not significant in my life”, “just something I didn’t pay enough attention to”.

71Ms. Ritchie was motivated by her interest in ensuring that the complainant receive reimbursement for his costs as quickly as possible. Her job is to help ease the transition of relocation. I have no doubt that it never occurred to Ms. Ritchie until quite late in this process that the complainant might be trying to obtain payment for costs not incurred or that the receipts tendered had been created by the complainant or his spouse. This is the first time that she has had to make use of her log in a proceeding. She trusted the complainant. The complainant was aware that Ms. Ritchie tried to be helpful and, according to Mrs. Lee, Ms. Ritchie “always” acted quickly in processing their claims.

72Based on the totality of the evidence, I am persuaded and hereby find that the complainant fabricated and filed the August Pleasure Park receipt intending at that time to make a claim for transitional accommodation for August 2015. I do not accept that he notified Ms. Ritchie of any mistake in its filing. I further find that it is more likely than not that the complainant thereafter became aware that he had been reimbursed the amount of the fabricated claim and that he failed to advise the Employer of the fact that he was not entitled to this amount until December 8, 2015 when he was under investigation.

Claim under section 8.7 of the Directive (incidental expenses) – Part I

73On August 24, 2015 the complainant spoke with Ms. Lee from the Relocation Office. Ms. Ritchie was off work that day. He advised Ms. Lee that the purchase and sale of both his properties was complete. The sale of the Bobcaygeon home had closed that day. The complainant asked whether the mortgage discharge fee and interest could be included in the billing process rather than having to come out of their home equity and then be reimbursed. Ms. Lee advised that such was not the norm, but referred the complainant to their contact at Transferease, the relocation service that dealt with those issues. I note this evidence as it shows that the complainant was actively and creatively thinking about how best to meet his financial needs.

74As noted earlier, the complainant filed an expense claim form dated August 25, 2015, seeking reimbursement for incidental expenses. Mrs. Lee admitted to creating four receipts in support of this claim and forging signatures on each.

75The question of who had filed the receipts was in issue. The complainant initially testified that he did not recall mailing in the four receipts and that he had never seen them before a copy was sent to him by the Relocation Office on September 1, 2015. The complainant also asserted that the individuals had provided the services indicated and were paid the amounts claimed.

76Mrs. Lee testified in chief that she thought she had submitted these four receipts to Ms. Ritchie because the complainant was away at the time. In cross-examination she claimed to be fairly certain that she had sent them in directly, based on her assertion that when the complainant later got a copy of the receipts back from the Relocation Office he hadn’t seen them before. In cross-examination Mrs. Lee agreed that the complainant knew that she had created the receipts.

77The assertion that the complainant was away at the time was not supported by the evidence. The complainant’s phone records indicate that his cell phone was used to make calls from the vicinity of their new residence over the period August 24-28, 2015. When this was pointed out, Mrs. Lee backtracked from being “fairly certain” that she had submitted the receipts, to testifying that she had stated from the outset that she couldn’t remember. She could provide no explanation as to how the complainant could fill out the claim form with its degree of detail without having seen the receipts. She then claimed not to know whether the complainant had seen the receipts.

78The complainant testified that Mrs. Lee must have provided him with the details to enable him to complete the claim form. As noted, that hypothesis was not supported by Mrs. Lee’s evidence. The complainant told the investigator that his spouse had put the receipts in an envelope and that he “then I just, kind of I just claimed to it and sent them in and then forgot..”. At the very least, this was an assertion that he had sent the receipts in without looking at them. In cross-examination he denied sending them in, stating that had he done so, he would have included a fifth receipt for a dog kennel expense.

79The complainant testified that he signed the claim form on Tuesday, August 25. The form is dated accordingly. He was not at work that day. On August 26, 2015 the complainant called Ms. Ritchie from the Brockville Jail asking for the address of the Relocation Office. The complainant agreed that the claim had been sent from work. He agreed that he had enough information to be able to complete the claim form, including dates and amounts, although he denied having seen the receipts. The package was received in Orillia the following day on August 27, 2015, and, according to Ms. Lee who received it, it included four receipts. The next morning Ms. Lee emailed the complainant concerning certain missing information on those receipts. She also noted that no receipt for dog kennelling had been received although it was claimed.

80Based on the totality of this evidence I am satisfied that the four receipts were sent in by the complainant when he submitted the claim form. In any event, the evidence establishes that when he filed the claim, the complainant was aware that his spouse had fabricated the receipts that were filed in support of the claim.

Evidentiary issue and ruling

81In the context of Kristen Lee’s testimony, the complainant took objection to the Employer calling hearsay evidence of the information obtained from purported service providers without the Employer calling those individuals as witnesses. (I note that, although hearsay, Ms. Lee’s evidence as to what she was told is admissible to explain the basis of the Employer’s subsequent actions.) It was further submitted that the complainant was prepared to stipulate that the receipts had been created by him or his spouse on an understanding acquired from Ms. Ritchie that such was appropriate, and that all of the amounts had been paid as set out but for Pleasure Park where those amounts had been established from the campground’s website. It was asserted as unfair to the complainant to present evidence through Ms. Lee without the Employer being required to call those witnesses. An unfairness was also asserted with respect to the resources available to pursue the matter at hearing.

82The Employer did not agree to the stipulation, arguing that it had taken the position from the outset that the complainant had fabricated receipts and had submitted those receipts as legitimate claims, conduct it asserted fell within a definition of deceit and dishonesty providing sufficient cause for termination. The Employer took the position that, to the extent that the complainant sought to defend himself based on the assertion that the amounts had in fact been paid, it was incumbent on the complainant to establish that fact, referring to the Divisional Court’s decision in Utilities Kingston, infra, further arguing that it was not incumbent on the Employer to prove a negative.

83The complainant argued that the Utilities Kingston case, while dealing with fabricated receipts, did not deal with the issue of whether the services were in fact provided for the amounts claimed. It was the position of the complainant that he did incur the expenses. He objected to the Employer calling evidence about whether the expenses were incurred from a source not before him for cross-examination. It was also argued that the complainant could not put the service provider’s explanation or view of their phone conversation with Ms. Lee to her in evidence, because the complainant did not have an investigator to meet with the service provider, creating a fundamental unfairness.

84I ruled that the Employer could call evidence of what Ms. Lee was told when she contacted service providers. I further ruled that I was bound by the Divisional Court decision in Utilities Kingston that found whether an expense was incurred was a matter for the defence to substantiate. I found no substantive distinction between the question of whether an expense had been incurred and the question of whether a service had been provided for the amount claimed, and that the Employer was not required to prove a negative. To the extent that there was an imbalance in resources that could be addressed, the Board noted that it could convene the hearing in a location closer to the witnesses or utilize processes that proved more economical. Neither suggestion was pursued by the complainant and none of the individual service providers represented by the fabricated receipts testified.

Claim under section 8.7 of the Directive (incidental expenses) – Part II

85The four receipts created by Mrs. Lee and filed to support the August 25, 2015 claim for incidental expenses included a signed receipt from ‘DWD Maintenance’ purporting to confirm yard and pool maintenance services on the Bobcaygeon home from June 20 to August 17, 2015 for a cash payment of $600. Signed receipts from ‘Go Green House Clean’ and ‘Cameron Cleaning’ both purport to confirm house cleaning services. The receipt for ‘Cameron Cleaning’ indicates a cash payment of $500. The ‘Go Green House Clean’ receipt indicates ‘paid’ and suggests a payment of $300 in cash. A signed receipt from ‘Cathy’s Care Centre’ purports to confirm having received a cash payment of $300 for daycare services for the Lees’ children from August 17-21. The styles of these receipts are different from each other in terms of numbering, colour, style, and size.

86Mrs. Lee created fake business names and signed on behalf of the purported service providers. “DWD Maintenance” was a friend’s son. “Go Green House Clean” was Gloria Davidson, the complainant’s mother-in-law. “Cameron Cleaning” was a family friend. “Cathy’s Care Centre” was an individual who provided child care services. When asked about the business names, Mrs. Lee testified that she “just made them up”, because she thought that was what Ms. Ritchie had asked her to do. She also asserted that in some cases they had paid more but had limited the claim because of the $2000 cap on incidental expenses. The claim for incidental expenses totalled $2200.

87While the complainant testified that his spouse had actually made the payments (with the exception that he left cash in the fridge for his mother-in-law), Mrs. Lee testified that they had both made various payments at different times, giving the example that whoever picked up the children paid for child care that day. When contacted, the caregiver confirmed to Ms. Lee that she had cared for the children for the week claimed, but indicated that she had charged a weekly rate that was less than the amount claimed. The caregiver subsequently told the investigator that she had been paid the amount claimed and that Mrs. Lee had told her that she would prepare a receipt. There was no suggestion that the caregiver was unable or unwilling to provide a receipt for the period claimed.

88Mrs. Lee dated the receipts based on when they were at each house. She asserted that this method was part of the conversation with Ms. Ritchie, although that was not put to Ms. Ritchie during her evidence. In relation to the cleaning of the Bobcaygeon home, Mrs. Lee testified that there was “no way I can verify what days she was there – between three locations and with two little kids”, stating that the “information on these receipts has no bearing to when the services were done”, because the “issue was having a paper trail”, so “not a lot of thought gone into these and that was my fault and my bad”.

89At the hearing the complainant was unable to provide details as to dates of service or payments. In re-examination the complainant was asked why the names mattered. He responded, “they just needed a paper trail”, ignoring the more fundamental question of whether the expense had been incurred and in the amount claimed. The complainant also testified that Ms. Ritchie “just needed a receipt”, reiterating that these were “just not significant” and asserting that he’d take better care next time. This ignores the fact that he was able to, or did get a receipt in respect of the Pleasure Park and the caregiver claims, yet still chose to fabricate receipts in respect of those claims.

90In the investigation the complainant admitted that he made no attempt to obtain receipts from the service providers. The complainant’s evidence repeatedly referred to the fact that these service providers were not ‘businesses’ and did not provide receipts. He testified that he would not ask “anyone who works under the table to prepare [a receipt]”. That unwillingness does not relieve the complainant of his responsibility to provide verification that an expense had been incurred in order to claim its reimbursement. It also assumes that the service providers were unwilling to provide verification, a question he did not ask. In any event, he had the choice to use the alternate form of verification, use another service provider, or forego claiming the expense.

91Mrs. Lee agreed in cross-examination that she could have created the four receipts from one receipt book but “that would not make sense if all different companies and for auditing purposes”. That is, she created the receipts using different receipt books and sequencing to make it appear that the receipts had come from different service providers and to give them more credibility.

92Mrs. Lee’s cross-examination continued with her agreeing that she had “come up with” the amount of $300/month to attribute to the yard work. Mrs. Lee’s demeanour, particularly through this portion of her cross-examination was extremely troubling. She engaged counsel for the Employer as if the examination were a game, giving no indication of remorse, guilt, or concern of any kind over her conduct or her testimony. At the same time, it is clear that she is intelligent and well understood what was available under the Directive. Mrs. Lee’s actions are not the subject of this hearing. However this review of her evidence indicates that very little, if any weight can be placed on her evidence where it conflicts with more reliable evidence. It is also instructive in terms of the complainant’s personal environment.

93Both the complainant and his spouse spoke to the demands on their time during this period. In cross-examination Mrs. Lee testified that “there was so much going on it was outrageous”, although it is apparent that some time was spent preparing the various receipts. Records indicate that over the summer the complainant was not at work from July 6-21, July 31-August 13, and August 16-20, 2015, a period of some five weeks, with additional intermittent days off during the period. Time taken from his work schedule was also paid time, using various credits including leave specific to the relocation. While a relocation requires work and it is expected and understood to be a stressful time, the evidence shows that the complainant had significant time away from his employment in which to accomplish the move.

94On August 28, 2015 Ms. Lee reviewed the four receipts and noted that none provided contact information of any kind and that at least two receipts did not include the date of payment and/or the date on which the receipt was created. She emailed the complainant asking for more information (the same day that the complainant received email notification of the $1139.04 payment). On September 1, 2015 the complainant spoke to Ms. Ritchie. As a result, Ms. Lee emailed a copy of the receipts to the complainant. Ms. Ritchie described the receipts in their totality as unusual. They were all handwritten and the amounts in some cases seemed high based on her experience. They also lacked the information identified by Ms. Lee. At the time, Ms. Ritchie assumed that the signature on each receipt was that of the person who had provided the service.

95On September 3, 2015 the complainant emailed Ms. Ritchie and Ms. Lee, attaching the scanned copy of the receipts with hand written names and phone numbers added at the side of each receipt. He also added dates to the receipts that purported to indicate the date on which the receipt had been completed or payment had been made.

96In that email the complainant also advised that the dog kennelling receipt had been mailed in. That receipt purported to confirm that Matt Davidson had provided kennel services for the Lee’s two dogs from June 20 to August 17, 2015 for $500.00. Mr. Davidson is the complainant’s brother-in-law. That receipt provided a name and phone number. It was marked ‘paid’ but was not signed. Although in chief the complainant testified that his spouse had created this receipt, he acknowledged in cross-examination that he had told the investigator that he had prepared the receipt and testified that the earlier response was more likely correct. Later in cross-examination he agreed that he had created and filed this receipt. A comparison of the receipts confirms the use of various stylings (for example, the term “paid” or “pd”, or the number 7 written with a line through it) specifically attributable to either the complainant or his spouse. The dog kennelling receipt is consistent with the stylings used by the complainant and the form of the receipt is consistent with the form used for the Pleasure Park receipts (being numbered 373686). Having regard to all of the evidence, I find that the dog kennelling receipt was created and submitted by the complainant.

97In explaining in cross-examination why they had not stayed at Pleasure Park in August, Mrs. Lee testified that having two dogs and two kids in a 32-foot RV got to be too much. In re-examination and after it was pointed out that the complainant had claimed dog kennelling costs for the entire June 20 to August 17, 2015 period, she testified that the dogs had been with them only for a week or two and had then gone to her brother until they took possession of their new home. In the result, the evidence does not support a valid dog kennelling claim for the period identified.

98In his email response on September 3, 2015, the complainant did not identify to the Relocation Office that the receipts for incidental expenses had been created by him and his spouse, although he acknowledged in cross-examination that he was aware at the time that his spouse had created four and by then he had created the dog kennel receipt. The complainant also acknowledged that he was aware at the time that the business names were false. He testified that the business names seemed funny to him at the time but that he was busy at work and wasn’t paying attention. He claimed both that he regretted not paying more attention to the receipts and that “too many times I put my job above this”.

99Contrary to his assertion of being too busy at work to pay attention to the receipts, emails from the day before, exchanged during the complainant’s night shift at work, indicate that he was in communication with his spouse concerning their new pool, the children, daycare, and writing a letter to a new school, which he acknowledged writing while at work. On September 3, 2015 when dealing with these receipts, he was at work on the night shift. There was no evidence of any untoward or particularly busy activity in the institution on either shift.

100In cross-examination when asked if the receipts as constructed were deceptive, the complainant answered “is it deceptive, yes, I guess… [but] is it deceitful…it’s the money put out”; an answer that provides significant insight into the complainant’s thinking. He went on to assert that there was “not an intent” and that they had paid the money indicated. Other than the assertions made by the complainant and his spouse, no other evidence supports a conclusion that these service providers were paid what was claimed for services properly reimbursable under the Directive. Having regard to the totality of the evidence, including clear evidence of having claimed in excess of what was paid to Pleasure Park, I do not find the assertions of the complainant and/or his spouse to be reliable evidence in support of a finding that the payments claimed were actually made. Information provided to the investigator by the service providers remains untested.

101In a staff meeting on September 17, 2015, Ms. Lee, Ms. Ritchie, and Ms. Richardson discussed their concerns about the receipts. It was determined that Ms. Lee would investigate and follow up with respect to the kennelling receipt and two others. They withheld approval of the incidentals expense claim pending that inquiry. Ms. Lee first conducted an online search to locate the business names provided but none were found. Her call to the person connected with ‘Go Green House Clean’ was blocked and the phone number provided for ‘Cameron Cleaning’ appeared to be disconnected. She left a voicemail message for the dog kennelling claim and did not receive any response.

102The complainant had earlier advised Ms. Ritchie that he had a ‘yard company’ with respect to his Bobcaygeon home. Ms. Lee called DWD Maintenance on September 17, 2015 and learned that it was a young man. In her phone conversation, the young man confirmed that he had cut the Lees’ lawn a few times, walked the dog a couple of times, and cleaned their pool. He was unable at that time to confirm how much he had been paid or over what period. He did confirm that he was not a ‘business’.

103The complainant called Ms. Ritchie the same day. He had been contacted by the young man. He complained that Ms. Lee had called to question ‘DWD Maintenance’, describing that he was “an 18-year old kid”. The complainant disclosed nothing further to Ms. Ritchie concerning the work or the receipt.

104On September 22, 2015 Ms. Lee spoke with the caregiver who confirmed that she had taken care of the Lees’ two children between August 17-21. However, according to Ms. Lee’s notes, the caregiver advised that she had charged $250 for the week and that she had not provided a receipt as she provides receipts at year-end. The fabricated receipt claimed $30/day for each child for a total of $300 for the 5 days.

105Later that day, the complainant again called Ms. Ritchie complaining that Ms. Lee had scared the caregiver by calling and saying she was from the OPP. Nothing was disclosed by the complainant concerning the filed receipt.

106On September 23, 2015, based on the information learned to date, Ms. Richardson emailed her supervisor to seek direction in dealing with what she described as the submission of fraudulent receipts. As a result of the information obtained, the Employer commenced an investigation.

107On October 6, 8, and 13, 2015 the complainant contacted Ms. Ritchie looking for an update with respect to his claim for incidental expenses. He was advised that they were still being reviewed. When he called again on October 16, 2015, Ms. Ritchie advised him that she had no further information and that it was out of her hands.

The assertion that the complainant was acting in accordance with what he understood was Ms. Ritchie’s advice

108Early in his evidence the complainant asserted that he was simply following Ms. Ritchie’s advice in preparing receipts for those persons who had performed services for them but were not businesses. He then took the position that he had misunderstood Mr. Ritchie’s direction as to how to account for such services for purposes of reimbursement.

109First, neither explanation accounts for the fabricated receipts filed in respect of Pleasure Park or the August caregiver as both either did or could have provided receipts in the normal course of their operations.

110Early in his evidence in chief, while describing an alleged phone conversation between his spouse and Ms. Ritchie about incidental expenses and the people who had been providing them with cleaning and yard services for years, the complainant testified that Ms. Ritchie said that she wouldn’t expect those individuals to go out and get a receipt book. The complainant then said, “so I understood – go get a receipt book, have them put down that they’d done the service” (emphasis added).

111In cross-examination it was put to Ms. Ritchie that she had had a conversation with the complainant (not Mrs. Lee) wherein he advised her that the people taking care of the Bobcaygeon house were not registered businesses and didn’t provide receipts; that one was a cleaning lady and the other was a 17-year old boy. Ms. Ritchie acknowledged this and further agreed that she told the complainant that the Employer was not interested in going after people for income tax purposes but that the Employer needed to be able to verify that the service had been provided and was paid for by the complainant. Ms. Ritchie further acknowledged that she talked with the complainant about obtaining a receipt book and filling out the necessary information. She acknowledged not specifically advising the complainant that those service providers were required to sign the receipt. Complainant counsel did not ask Ms. Ritchie when this conversation occurred.

112In re-examination Ms. Ritchie testified that this conversation must have occurred in or after September, 2015, after Ms. Lee had made inquiries about the receipts. The only notation in Ms. Ritchie’s log concerning a discussion of ‘receipt books’ is on November 3, 2015. The only other conversation logged that referred to yard work occurred on August 4, 2015. Ms. Ritchie’s log indicates that that conversation concerned the entitlement to claim for yard work done on the Bobcaygeon property in order to maintain it until it was sold, the entitlement to claim dog care for both the trip to locate and the move under incidental expenses, and the entitlement to claim child care for the move under incidental expenses, not how to verify a claim for those entitlements. There is no mention in Ms. Ritchie’s log about cleaning.

113I am satisfied that it is more likely than not that the conversation occurred after the complainant had already filed the fabricated receipts. However, regardless of when this conversation occurred, the complainant’s evidence in chief confirms that he understood Ms. Ritchie’s instruction was to have the service provider verify receipt of payment. That understanding is sufficient to end any argument of reliance on Ms. Ritchie and the asserted belief that fabricated receipts were acceptable.

114Nothing in the Directive expressly prohibits relocating employees from utilizing friends or family to provide eligible relocation services, although Ms. Ritchie testified that cleaning done by a family member would not be eligible for reimbursement. The complainant’s testimony attempted to divert the issue to a confusion around eligibility, rather than the fact of his having filed fabricated receipts in support of his claims. There is nothing about the issue of eligibility that would affect the complainant’s understanding of whether or not he had to provide verification that an expense had been incurred.

115Mrs. Lee testified in chief that, in preparing the receipts, she was trying to come up with a way to give Ms. Ritchie the information she needed, knowing that the individuals were not registered businesses; that they “troubleshooted” with Ms. Ritchie regarding how to provide the information and that she understood Ms. Ritchie to suggest they get a receipt book, fill it out on behalf of the service provider, sign it, and tell them what they’d done. Mrs. Lee testified that she told the service providers that she had created and signed a receipt on their behalf, although the evidence suggests that, if she did tell anyone, it was only after questions arose about the receipts that had been filed.

116Mrs. Lee also testified in chief that this alleged conversation was not lengthy, implying that Ms. Ritchie would not remember giving this information as it was so insignificant. She testified that she realized her misunderstanding only when Ms. Ritchie testified. In cross-examination Mrs. Lee reiterated that it had been a “very casual conversation for a paper trail and not a big production”.

117In cross-examination Mrs. Lee acknowledged that she had forged the signatures on the four receipts, claiming that she was following Ms. Ritchie’s instructions. She testified that it did not make sense to her to sign her name because she hadn’t done the work. Although the complainant argued that he and his spouse had misunderstood what was required, when pressed, Mrs. Lee reverted to the claim that she was following Ms. Ritchie’s instruction.

118Suffice to say that Ms. Ritchie was upset to learn that it was being put forward that she had even so much as implied that forged receipts were acceptable. To find that Ms. Ritchie made such a suggestion or gave such direction, even implicitly, simply flies in the face of her years of experience in the job. However, according to the complainant, her direction was to provide a receipt book if necessary but have the service provider fill out the information. Had he done so, the Employer might never have uncovered the fabricated Pleasure Park receipts. But therein lies the problem. The complainant had already filed fabricated receipts. There was no evidence that Ms. Ritchie had made any comment, misunderstood or otherwise, prior to the filing of the June 23, 2015 claim.

119Having regard to the totality of the evidence, I find that the complainant fabricated a receipt in respect of dog kennelling services which he filed along with four receipts that he knew had been fabricated by his spouse, along with his signed claim form for incidental expenses, intending the Employer to act on that claim. The evidence does not support a finding that the amounts claimed were all in respect of eligible expenses or were actually paid. Finally, I find the assertion that the complainant was acting in accordance with what he understood was Ms. Ritchie’s advice to be untenable, and that, in so asserting, the complainant attempted to deflect from his own culpability for having created and filed fabricated receipts, and evidenced an ongoing failure to take responsibility for his choices.

The Aftermath

120On November 2, 2015 CSOI sent a letter to the complainant advising that he was the subject of an investigation. On November 3, 2015 the complainant contacted Ms. Ritchie to ask whether the investigation was specific to the claim for incidental expenses. She thought so. He then advised her that the receipts came from “us”, as the service providers did not carry receipt books and he needed to account for the cash he had paid them. Ms. Ritchie understood the complainant to be telling her that he and his spouse had created these receipts. This was the first time that the complainant identified to the Employer that the documents submitted had not been created by the service providers. The admission was specific to the claim for incidental expenses. The complainant did not disclose that the service providers were family and friends. Nor did he disclose anything about the receipts filed for the trip to locate or the transitional accommodation expenses.

121The complainant was interviewed by CSOI on December 8, 2015. He acknowledged in cross-examination his statutory obligation under section 22 of the Ministry of Correctional Services Act (R.S.O. 1990, c. M.22, as amended) to be truthful in a CSOI investigation and the potential consequences for concealing information.

122The August Pleasure Park receipt was raised in the investigation. On December 10, 2015 the complainant emailed the investigator, advising that, after checking his bank account, he was acknowledging reimbursement of $1139.04 in respect of the August Pleasure Park claim. He stated that he was unaware that he had been paid for this claim and asked how the Employer would like to proceed with respect to repayment. Other than repeating the offer to repay at the allegation meeting, there was no evidence that the complainant had taken any action to reimburse the Employer this amount.

123In that email the complainant also told the investigator that Mrs. Lee had “reminded him” that she had created the Pleasure Park receipts early on, and had submitted them in order to be reimbursed as quickly as possible. He stated that he had not realized that she had sent in the August receipt. As set out earlier, the evidence at the hearing did not support a finding that Mrs. Lee had created any of the Pleasure Park receipts or that she had been responsible for sending them in, leading to a conclusion that the complainant lied to the investigator.

124The complainant was subsequently suspended with pay pending an allegation meeting for cause. That allegation meeting was held on July 7, 2016.

125Notes taken at the allegation meeting by DS Boucher were filed. There was no suggestion that those notes did not reflect what was said during that meeting. At the allegation meeting the complainant asserted that his spouse had created the receipts and that he had not seen them until he was asked to provide more information. He asserted that Ms. Ritchie had effectively approved this form of receipt. He noted that he had complained about how individuals who had provided services had been contacted, indicating that providers had been badgered and bullied and been asked for personal information. He blamed Ms. Lee for not asking for signatures when she contacted him for further information about the receipts, on the basis that the policy did not identify who was to create the receipt. He stated that he was now paying dearly for what he implied were others’ shortcomings. He reiterated that there was no intent to mislead. I am satisfied that these responses from the complainant constituted an attempt to shift the time frame for consideration of his actions to the period following Ms. Lee’s questions in an attempt to deflect from his own responsibility for filing fabricated receipts.

126The complainant stated at the allegation meeting that Ms. Ritchie and Ms. Lee had different standards and referred to a subsequent email from Superintendent Barclay in January 2016. That email confirms that the complainant could use family and friends to provide childcare and snow removal services in the event that the complainant was required to remain in the institution during an anticipated strike. While it states that the complainant can provide a receipt book to those service providers, it is also clear that the required receipt is to be completed and signed by the individual providing the service.

127In reaching his decision to terminate the complainant’s employment, based on the information gathered in the investigation, Brian Patterson, then CSCS Deputy Regional Director (“DRD”), Eastern Region, accepted that the service providers had provided the incidental services for the amounts claimed. DRD Patterson considered the complainant’s breach of trust in filing fabricated receipts and an attempt at financial gain (in respect of the August Pleasure Park claim) as the two key features of the complainant's misconduct. He testified that it is a manager’s job to find these violations, not to commit them. He expected honesty. DRD Patterson did not pursue the first two Pleasure Park claims, given the fact that the campground was then closed. In the result, he had less information as to the complainant’s conduct, a matter of interest to the complainant evidenced by his asking Ms. Ritchie whether the investigation was specific to the incidentals claim. DRD Patterson noted that the complainant did not come forward when he claimed to have seen the receipts for the first time. He felt that the complainant had not taken responsibility for his actions and had continued to deflect responsibility to others, although he believed that the complainant had shown some remorse.

128At the close of his examination in chief the complainant was asked whether he felt remorse. While claiming to be remorseful, he reiterated that his spouse had created the receipts, that it was not her fault, and that he had not been motivated by gain. It was submitted that in referring to his spouse’s role, he was merely taking account of the facts. However, at the time, the complainant was asserting that his spouse had created all of the receipts, a claim he knew to be untrue. One cannot show true remorse while remaining dishonest as to one’s involvement in the matters about which one claims to be remorseful.

129All of the information regarding the complainant’s service and expertise with the Ministry was considered by DRD Patterson in reaching the decision to terminate the complainant’s employment. That decision was then reviewed by his superiors. DRD Patterson had known and worked with the complainant and described making and communicating the decision to the complainant as “probably the toughest thing” he’d had to do in 32 years.

Other relevant factual information

130In 2014 Mrs. Lee and five co-workers were charged criminally with fraud under $5000 for allegedly making false log entries in order to claim overtime pay. The criminal matter was resolved on May 8, 2015 when Mrs. Lee pleaded guilty to an offence under the Highway Traffic Act of falsifying a commercial log book. She was fined a total of $2500. This ruling was given less than seven weeks before the complainant filed the first fabricated Pleasure Park claim on June 23, 2015.

131The complainant attended court and was present when the judge rendered his ruling. There was some issue as to the amounts involved, but the complainant confirmed in cross-examination on November 24, 2017 that, in the court’s oral ruling, the judge noted that he was less concerned with the amounts than the fact that the accused had knowingly made false entries. The complainant initially sought to backtrack from that evidence in his cross-examination on January 29, 2018 but then agreed that he was aware of the judge’s stated concern. Although in chief, in describing the allegations, Mrs. Lee testified that she and her co-workers “thought it was a joke”, she also did not dispute that the judge’s expressed concern had been the fact that false entries had been made.

132This issue and the resulting local media attention was largely the reason that the complainant and his spouse wanted to relocate in the first place. The move to Brockville provided them with that opportunity, an opportunity that also came with an entitlement to claim from the Employer a significant contribution for the associated cost.

133At the outset of the hearing and during the cross-examination of DRD Patterson, counsel for the complainant put forward certain alleged difficulties faced by the family, including allegations of depression suffered by Mrs. Lee as a result of her workplace issues. That claim was not corroborated by medical evidence.

134The complainant and his spouse testified about certain serious health issues, a car accident, surgeries, and maternity leave that left the family in difficult financial circumstances. Those events were described to have occurred in 2007-08 and were indicated as the cause of credit limitations that the family faced. The complainant testified that they entered into a consumer proposal in 2010 and had it paid off in three years but that they had to wait for credit. Mrs. Lee testified that at the time of the move their finances were “strapped”. There was no independent evidence corroborating an ongoing lack of credit in 2015. The bank record filed shows a payment to a credit card and use of an available overdraft in August 2015.

135DRD Patterson noted that the complainant did not raise these issues during the investigation or allegation meeting.

136In his examination in chief, the complainant described that he has since had to cash out his pension and that he and his spouse were now working for the same company but that it was due to close within two years. Mrs. Lee described that she did not like their new home, after leaving their “dream” home in Bobcaygeon.

137At the same time, the complainant testified that they had done well with the sale of their Bobcaygeon home and had invested some of the proceeds. The complainant described the stay at Pleasure Park for the month of July as “awesome”. There was evidence that the Lees owned an RV and a boat and that, upon purchasing their new home, they immediately had an inground pool installed in their backyard. That installation was complete by September 2, 2015 and the complainant estimated the cost at $40,000-50,000. Putting in a pool at their new home was described by the complainant as a priority.

138The complainant spoke to other issues. One of the children had an ongoing health issue that was diagnosed only more recently, leading to surgery, but that caused lost sleep, pain, and family anxiety. He asserted that one of the children was diagnosed with scarlet fever, although the time frame for that illness was not clearly or independently established and it is not apparent that it occurred during the relocation. The complainant drove his car to Brockville for training in early June at the behest of the Employer. He testified that, although he would have been reimbursed had he rented a car, he was unable to claim mileage. There was no evidence that he spoke to the Employer about any inability to rent a vehicle or that he made a claim for mileage that was denied.

139The couple had problems with the real estate agent they retained in Bobcaygeon who wanted to list their home for less than the guaranteed price and for significantly less than the actual sale price. They also lost out on the purchase of a new home at the beginning of July 2015. Their unconditional offer took second when an earlier offer met its conditions. The couple determined that it would be too expensive and untimely to challenge that transaction. The Directive allowed for the payment of one home inspection, which was used up in this exercise. Then there was a claim for commission on their eventual house purchase even though the agent had not been involved in finding that new property. They spent $2119.94 having some electrical work done on the new house in August 2015. The complainant asserted that he could have claimed that amount (to the maximum $2000) for incidental expenses. However, there is no basis from which to conclude that the Employer would reimburse this renovation expense under the terms of the relocation policy. A series of emails between the complainant and his spouse on September 2, 2015 reflect some tension and fatigue.

Summary of the Parties’ Positions

140The Employer referred me to and I have reviewed the following decisions: 1425445 Ontario Ltd. cob Utilities Kingston v. I.B.E.W., Local 636, 2010 ONSC 1946 (Div. Ct.); W.C.I. Mfg. Co. (Franklin Mfg. Division) and I.A.M., Local 1246 (Balogh), (1988) 10 C.L.A.S. 64 (Hunter); Kingston (City) and CUPE, Local 109 (Cooper), 2017 CarswellOnt 4319 (Nyman); Rahim and Deputy Head (Correctional Service of Canada), 2016 PSLREB 121 (Shannon); Jones v Ontario (CSCS), 2013 CanLII 74166 (ON PSGB); OPSEU (Bijowski) v. Ontario (CSCS), (2012) 226 L.A.C. (4th) 205 (Dissanayake); Northeast Mental Health Centre v. OPSEU (Raymond), [2007] O.L.A.A. No. 294 (Nairn); Toronto Transit Commission v. CUPE, Local 5089 (Smith), [2014] O.L.A.A. No. 489 (Sheehan); Toronto (City) and TCEU (Pugliatti), (2017) 275 L.A.C. (4th) 419 (Slotnick); and Corporation of the City of Peterborough and CUPE and its Local 126, unreported decision of Arbitrator Springate dated February 13, 2001.

141In very brief summary it was the position of the Employer that the complainant had deliberately and knowingly submitted false and fabricated documents, intending the Employer to act on them, and that, beyond an issue of document compliance, the complainant had perpetrated a fraud against the Employer that properly warranted his termination from employment. The motive was gain, money had been paid out for expenses not incurred, and the acts were premediated, argued the Employer. The Employer argued that the complainant also misled both the Employer and the Board through the inquiry and at the hearing, continuing the deceit, such that the breach of trust in his relationship with the Employer was complete, particularly so as the complainant was in a managerial correctional position, factors that required complete trust.

142The Employer referred to the standards set out in the Code of Conduct and the complainant’s failure to act with integrity and honesty. The complainant was made aware of the Directive, argued the Employer, and he had used the relocation services before. In any event, argued the Employer, one does not need a policy to say that forging receipts for fraudulent claims is wrong. It was beyond dispute, argued the Employer, that the complainant was aware that he was required to submit valid, original receipts.

143Nor had the complainant come forward to disclose his misconduct even after being asked for more information, argued the Employer, speaking to both the motive behind the conduct and the extent of the breach of trust. In addition, argued the Employer, the complainant filed this complaint seeking $500,000 in damages and reinstatement to a position outside CSCS; a position not consistent with offering an apology for the behaviour, but implicitly acknowledging the complete breach of trust and resulting inability to ever return to CSCS. The complainant had not acknowledged that his conduct warranted discipline, argued the Employer. Nor was he so naïve as to believe that his conduct was acceptable, argued the Employer.

144There were no factors mitigating against termination, argued the Employer, reviewing the factors and similar circumstances in City of Peterborough, Toronto (City), City of Kingston, and Rahim, all supra, noting that the terminations from employment in those cases were all upheld. The Employer argued that long service was insufficient to overcome the lack of remorse and sense of entitlement, as evidenced in the Board’s decision in Jones, supra, when the complainant claimed and received short term sick benefits when she was in fact attending school. The Employer noted that these circumstances are of the complainant’s own making, as was also recognized in WCI Franklin, supra.

145The Employer asked that the application be dismissed.

146The complainant referred me to and I have reviewed the following decisions: Constable Darlene Reilly and Brockville Police Service, 1997 CanLII 22045; Jones v Ontario (CSCS), supra; Amalgamated Transit Union, Local 1587 (Savaryn) v. Ontario (Metrolinx-GO Transit), 2014 CanLII 80976 (ONGSB); and OPSEU (Lunario) v. Ontario (CSCS), 2015 CanLII 60425 (ONGSB).

147Counsel for the complainant acknowledged that there had been wrongdoing in the falsification of receipts and that, regardless of who had created the receipts, the complainant was responsible, a responsibility that he asserted the complainant accepted early on. However, argued the complainant, in context that conduct was not worthy of termination from employment.

148The complainant reminded the Board that assessing the circumstances involved understanding the human condition. No adverse inference could be drawn from the failure to call witnesses, he argued, as the investigation report confirmed that everyone performed the service and got paid, a conclusion accepted by DRD Patterson.

149The complainant argued that the evidence supported a conclusion that the receipts were created as a matter of convenience and not in an attempt to obtain something to which the complainant was not entitled or as a calculated plan to steal. Counsel pointed to the whiting-out of the August Pleasure Park claim as clear proof of having no intent to make that claim, for otherwise it made no sense. He described the evidence around the fake receipts as confusing, noting that the evidence of all the Pleasure Park expenses including laundry and firewood reflected an amount close to what had been claimed on those receipts. If the receipts were part of a plan to steal, it was woefully inept, argued the complainant.

150The complainant argued that the receipts provided by Pleasure Park were problematic, as they were out of sequence. The individual service providers all reported having received the money claimed, noting that only Pleasure Park suggested that the amounts paid did not conform to the receipts, and further noting that the onus was on the Employer. The assertion that the complainant was operating from a cash basis was confirmed, counsel argued, based on the fact that, even according to the Pleasure Park receipt, the complainant paid almost $1000 in cash for their July stay, a sum that he would be unlikely to carry with him if he had credit available. The problematic Pleasure Park receipts are the only evidence that suggest that the complainant took money to which he was not entitled, argued counsel, and the onus requires that one has to rule out all other possibilities before concluding that an allegation has been substantiated.

151Counsel argued that the complainant was kept in the workplace for some time after these events and questioned why DRD Patterson ‘went after’ the complainant in circumstances where the complainant had a long-standing and stellar record, yet knew nothing of the Pleasure Park owner or how he conducted business, suggesting that the reasons for termination did not conform to DRD Patterson’s view of the complainant’s record and character. Counsel also relied on the complainant’s long and productive service, his clean record, and his significant contributions to CSCS as both mitigating factors and evidence of his ongoing value to the Employer.

152In terms of the assertion that the complainant was trying to maximize his gain from the relocation, counsel argued that it was clear that the benefits offered did not cover typical expenses and that maximizing one’s claim in those circumstances did not make the complainant any more or less guilty. The complainant was stupid, not greedy, argued counsel. The complainant was not avoiding responsibility by pointing out that his spouse had created the receipts, argued counsel. It was only later when, looking at the receipts, he thought that maybe he drafted a receipt when earlier he thought his spouse had. Those inconsistencies reflect the unthinking nature of the conduct, argued counsel. He pointed to the email from Superintendent Barclay to argue that the concept of getting a receipt book and filling it out had some rational basis.

153All of this was done against a backdrop of an incredibly debilitating set of personal circumstances, argued counsel. He suggested that the Ministry was taking advantage of Mrs. Lee’s circumstances to inflict pain on loyal employees in circumstances of a variety of illnesses suffered by all family members, financial woes, and a very rushed relocation. These factors mitigate the conduct, argued counsel.

154Counsel referred to the complainant’s responses in the investigation where he acknowledged that he should have, and regretted not having paid more attention, that it was a crazy time, and that there was no intent to deceive. Clarity as to how things should have been done comes with time, argued counsel, and this was not given priority.

155The complainant argued that more serious consequences flow from the termination of a correctional officer’s employment as the skill set is less transferable. He referred to the decision in Brockville Police, supra, that summarized a number of earlier cases. In that case the officer was reinstated notwithstanding a criminal finding of fraud. Referring to the decision in Jones, supra, the complainant argued that the law required the Board to determine whether there was room for rehabilitation and whether the individual can continue to be productive and provide value to the Employer.

156The complainant argued that reference in the Jones decision (at para. 51) to a Supreme Court of Canada decision noted that court’s direction that there must be proportionality, recognizing that work is a fundamental aspect of a person’s life. Since that decision, argued the complainant, there had been growing recognition that people make mistakes and it is not appropriate to simply throw them into the street. Reference was also made to the decision in Hamilton Health Sciences, cited at para. 77 of Metrolinx-Go Transit, supra, to argue that termination was a last resort and appropriate only if necessary to protect the legitimate interests of the employer. Similarly, the complainant referred to the decision in OPSEU (Lunario), supra, where, in reinstating an employee who had failed to disclose a criminal record, an assessment of the employer’s conduct and its legitimate business interests was also conducted in determining the proportionate response. If the complainant can be returned to work and be a productive and valuable employee he ought to be reinstated, the complainant argued. In terms of general deterrence it was suggested that by imposing a long suspension the complainant could act as the ‘poster boy’ for what happens when one violates policy.

157The complainant sought an order that included his return to work.

158In reply, the Employer noted the complainant’s evidence at the end of his chief when speaking about remorse. It noted that, after pointing to his spouse as having created the receipts, the complainant stated that he “should have done it myself”, when, the Employer noted, he had done it himself, arguing there was ample evidence to show deceit. The Employer argued that there is something wrong with trying to maximize one’s entitlements if that means claiming amounts to which one is not entitled.

159The Employer argued that there was no basis on which to challenge the Pleasure Park receipts. They were in appropriate sequence and were signed by the complainant, highlighting his dishonesty in claiming that he was unable to obtain receipts from the campground because it was a cash arrangement. The Employer also argued that the complainant knew that making false statements was enough for a judge to have found his spouse guilty of an offence with the attendant consequences.

160The Employer relied on paragraph 34 of the Utilities Kingston decision to argue that it was open to the Board to draw an adverse inference based on the failure of others to testify. In terms of the other caselaw, the Employer distinguished the cases on their facts and referred back to its argument in respect of the decision in Jones. It argued that whether someone was likely to commit more fraud was not the appropriate consideration as an employer ought not to be required to bear that risk. The conduct was not off-duty conduct as in the OPSEU (Lunario) case, nor was it watching porn as in the Metrolinx-GO Transit case. It argued that the harm to the Employer was not trivial, in that the complainant was a manager, the conduct constituted a fraud on the Employer, and it comprised more than a single incident. As to the role and consideration of the complainant’s personal circumstances, the Employer referred to the decision in Northeast Mental Health Centre, supra.

Decision

161The outcome of this application fundamentally rests on its facts.

162The findings herein go beyond the information relied on by the Employer in coming to its decision to terminate the complainant’s employment. The Employer had not pursued the June and July Pleasure Park claims at the time of its investigation. There was no suggestion that I was unable to rely on that evidence as evidence of additional wrongdoing. If I am wrong in considering that evidence for that purpose, that evidence is relevant as it informs the nature of the complainant’s actions on which the Employer did rely, and I rely on it for that purpose.

163Contrary to the complainant’s assertion, DRD Patterson did not accept the campground owner’s word over that of the complainant. There is no evidence that DRD Patterson spoke to the owner prior to making his decision. He relied on the complainant’s admission during the investigation that he had not stayed at Pleasure Park during August.

164In summary, and having regard to the findings at paragraphs 51, 72, and 119 herein, the complainant fabricated five receipts and filed those documents in support of claims for reimbursement under the Relocation Directive. The fact that he did not add a signature on each of four of the documents he created does not limit or reduce his culpability. He also did forge another’s name to one document and appropriated the campground’s business name, and submitted four receipts that he knew had been fabricated by his spouse, all of which included forged signatures.

165The complainant claimed and received payment for expenses that he did not incur. The June and July Pleasure Park claims both exceed the amounts actually paid to the campground, even assuming (and specifically without finding) that the June stays reflected eligible trip to locate expenses. The assertion that the complainant expended amounts on eligible items not claimed is irrelevant. In any event, the evidence does not support a reliable finding that those asserted costs (laundry, firewood, etc.) were actually paid, or if they were, to what amount.

166The complainant also received payment for the August Pleasure Park claim, an amount to which he admitted he had no entitlement. At no time during these proceedings was I informed that the complainant had acted to repay the Employer that amount. Repayment would not have otherwise detracted from his defence given his admission in December 2015 that he had no entitlement to the amount.

167In the circumstances I am persuaded that it is appropriate to draw a negative inference from the failure of the five individuals to testify as to what work they performed in connection with the relocation and what amounts they actually received from the complainant or his spouse. In all cases, their responses to the investigator remain untested. In particular, the information obtained by Ms. Lee from the caregiver as to the amount paid was not consistent with the amount claimed by the complainant. The caregiver subsequently told the investigator that she had received monies from both the complainant and his spouse and in the amount claimed. This inconsistency remained untested. There is no reliable basis on which to find that the amounts claimed in the ‘Davidson’ child care receipt and the five incidental expenses were actually paid and/or paid in the amounts claimed.

168In the result, and as found at paragraphs 51 and 119 herein, the complainant has not established as part of his defence that the amounts claimed were in fact paid. This also assumes, without finding, that the services claimed were in fact properly reimbursable under the Relocation Directive.

169The misconduct was also intentional and deliberate in that the complainant knowingly fabricated receipts, knowingly received fabricated receipts from his spouse, and knowingly filed those fabricated documents, intending the Employer to act on them. That intention is overtly evidenced by the fact that the complainant also submitted signed claim forms in respect of all but the August Pleasure Park receipt. In that latter regard I am persuaded that the complainant filed the fabricated receipt intending at that time that it be paid, subsequently became aware of the payment, and failed to notify the Employer in a timely manner of having received a payment to which he was not entitled.

170The intention behind the complainant’s conduct in creating and filing false receipts is not diminished by a lack of attention or an interest in being reimbursed as quickly as possible. In Utilities Kingston, supra, the Divisional Court reviewed the Supreme Court of Canada’s decision in R. v. Theroux, which examined the elements necessary for a finding of fraud. The Divisional Court applied it to the case before it as follows:

26 …In addition, the [Supreme Court of Canada] held (at para 24):

…I return to the offence of fraud. The prohibited act is deceit, falsehood, or some other dishonest act. The prohibited consequence is depriving another of what is or should be his, which may…consist in merely placing another’s property at risk…The fact that the accused may have hoped the deprivation would not take place, or may have felt there was nothing wrong with what he or she was doing, provides no defence… The personal feeling of the accused about the morality or honesty of the act or its consequences is no more relevant to the analysis than is the accused’s awareness that the particular acts undertaken constitute a criminal offence.

27 …To constitute the offence of fraud, there must be proof of a deceitful or dishonest act. Forging restaurant receipts and submitting them as if they were legitimate receipts issued by a restaurant easily fits within the concepts of deceit and dishonesty. Next there must be proof that the employee was aware that the likely consequence of his deceitful act was that the employer would pay the claim. This too is easily established. The whole purpose of fabricating the receipts and submitting them is to obtain payment. It does not matter that the employee thought he was entitled to the money or that he wasn’t actually doing anything dishonest, even if that could be established…It is obvious that forged receipts are not valid receipts and that if the employee received payment based on a forgery, he was receiving money to which he was not entitled.

28 An analysis of whether these actions would meet the test for the civil cause of action yields a similar result. To constitute fraud there must be: a false representation; knowledge that the representation is false; an intention that it should be acted upon by the plaintiff; and the plaintiff must have acted on the representation and sustained damages…Applying those principles in this case, the employees forged restaurant receipts, which is a false representation; they knew the receipts were fabricated; they submitted them to the employer intending for the employer to act upon them; and the employer did act upon them, paying the employees for expenses for which they were only entitled to reimbursement upon presentation of a valid receipt. That is fraud.

(emphasis added)

171At paragraph 51 the court confirmed that the dishonesty arose the moment the grievors fabricated receipts. That decision was considered and applied in Jones, supra. The awareness of dishonesty was also noted in City of Peterborough (at page 15), where the grievor’s claim that he believed he had done nothing wrong was rejected given the extensive steps taken to conceal the fact that receipts were fabricated. In this case, the use of different receipt books, attention to numbering, and the appropriation and/or use of false business names, all indicate that the complainant attempted to conceal the true nature of the documents, consistent with his admission that his actions were deceptive, and sufficient to find that they were also deceitful.

172In W.C.I. Mfg. Co. (Franklin Mfg.), supra, the termination from employment of a 19-year employee with no record was upheld in circumstances where he engaged in a premeditated and sustained attempt to defraud the employer, even though the claim was only $50. In Jones, supra, long service was not enough to excuse the breach of trust by the complainant in receiving short term sick benefits while she was in fact in school. In considering whether to mitigate the penalty, this Board noted:

128 …However, the lack of remorse and insight into what is clearly dishonest behaviour and Ms. Jones’ attitude of entitlement…lead me to conclude that the chance of her re-establishing the employer’s trust are nil…

173The decision in Rahim, supra, speaks to both a lack of true remorse and a failure to accept responsibility as factors weighing heavily against a conclusion that trust can be restored and that rehabilitation is possible - see particularly, paras. 78, 81 and:

83 A critical issue when assessing whether the employment relationship has been irreparably severed is whether the grievor truly recognized and acknowledged his wrongdoing such that it can be concluded that he would not engage in such misconduct in the future. He has not accepted responsibility for his actions; nor does he recognize the impact that they had on the employment relationship…He actively pursued the benefit and participated in deceit to ensure that he would receive it. When an employee is guilty of such deceit, the jurisprudence recognizes discharge as an acceptable penalty…

174The same may be said with respect to this case. The circumstances before me are also akin to those considered in Toronto (City), supra, where, in upholding the termination, the arbitrator stated:

55 The union asked me to consider why a long-term employee, in his late 50’s… with a secure job that supported his family, would participate in this type of fraud. Unfortunately the answer is simple and obvious: he was given an opportunity that he thought would enrich him by about $2000, and thought that he could get away with it…

56 As the city correctly points out, reinstatement where theft or fraud has been established is virtually unknown where a grievor has not admitted or shown remorse for the misconduct.

175In this case the complainant claimed to be remorseful. However, he was not candid and, during the hearing, continued to deny the scope of his actions until pressed. Rather than take responsibility for having knowingly filed fabricated receipts, he asserted that he had failed to pay sufficient attention and did not make these claims a priority because he was otherwise busy and stressed. He continued to assert that he was entitled to the amounts claimed. His responses only recognize inattention and stress, not a failure of honesty. And he makes those claims notwithstanding prior clear direction from a court that the act of making false entries is contrary to law. That is the fundamental problem with considering reinstatement in the circumstances. There is no basis to believe that the complainant accepts any responsibility for his fundamental dishonesty.

176The arbitrator in Toronto Transit Commission, supra, upheld the discharge in that case, making the same point:

78 That conclusion is directly related to the failure of the grievor to “come clean” and acknowledge the true nature of his actions…The grievor’s continued insistence that he did not act in an intentional and fraudulent manner with respect to the entries set out in his Memorandum Book suggest a continued act of dishonesty and lack of integrity on his part that only serves to underscore that the trust that is crucial to this particular employment relationship cannot be revived.

177As well, in Northeast Mental Health Centre, supra, the grievor’s personal circumstances were found not to be a mitigating factor as the grievor had failed to ‘come clean’ with the employer or at the hearing, and there was no basis from which to conclude that those circumstances had had an impact on the impugned behaviour. While any relocation will be stressful, the evidence does not establish that his circumstances rendered the complainant unable to provide the Employer with valid and appropriate claim information. That can be contrasted with the decision in Brockville Police Service, supra, where psychiatric evidence was admitted to show that the impugned act of shoplifting was a function of the appellant’s state of mind at the time and that the circumstance was very unlikely to repeat. Unlike that case, the complainant’s actions do not reflect a singular act of human frailty supported by evidence of acknowledgment and medical treatment.

178In OPSEU (Lunario), supra, although delayed, the grievor did admit her misconduct prior to the employer becoming aware of the problem and she claimed full responsibility for that conduct, evidenced by treatment and a full apology. In Metrolinx-Go Transit, supra, the employee was found to have exhibited bad judgement in accessing porn on his workplace computer. At the hearing, and unlike here, he admitted both to his behaviour and his dishonesty during the investigation. Nor does the nature of the misconduct fundamentally speak to the employee’s honesty.

179No written policy is necessary to establish an expectation of honesty in respect of workplace expense claims and this matter can be determined on that basis alone. However, this Employer’s policies and the Directive establish clear expectations of honesty and integrity in recognition of the duty of all public servants to properly manage public funds as well as the public trust. This Ministry has also legitimately and reasonably established a high ethical standard of conduct for managers in a correctional environment in light of the nature of that work and their responsibility for the inmates under their supervision and to the public. The complainant committed at least one defined infraction under the Code of Conduct. He also lied to a CSOI investigator.

180In assessing the evidence I have repeatedly asked myself why or how someone would consider throwing away a 26-year career in a job they claimed to love and for which they appeared to hold significant expertise for so relatively little, unless it was by some unintended mistake. However, as the hearing unfolded and as I heard and have subsequently reviewed the evidence, it became clear that the only reasonable explanation for the complainant’s actions was as the Employer asserted – the complainant simply felt entitled. He did not see his entitlement under the Directive as the reimbursement of legitimate relocation expenses incurred. Rather, he saw the capped amounts on various claims and felt he was entitled to those maximum benefits.

181That view was captured in the investigation (at page 18 of the transcript) when the complainant was asked about submitting the ‘Davidson’ receipt for seven days of child care in June 2015. The complainant responded, “…when we’re, we’re doing relocation we’re, we’re allowed to submit our seven days of looking for a house” (emphasis added). Much like his spouse’s claim to have been entitled to overtime, leading her to make false log entries, the complainant felt he was entitled to seven days of trip to locate expenses and $2000 for incidental expenses regardless of what was actually spent. Nor did he seem to think that this was enough, failing to recognize that he had chosen to relocate, which means accepting responsibility for all costs associated with that decision, except for those that properly fell to the Employer under the Directive. It was also apparent in his claim to DS Boucher that he felt entitled to 40 hours of paid time off during the relocation, notwithstanding that he had been told that time off was at the Employer’s discretion in connection with the trip to locate. Nor was it important to the complainant to explain or verify the details – he was claiming what he felt was his due. Whether he looked for a house on different dates and it was cumbersome to keep track of that information, it wouldn’t matter, because he felt entitled to make the full claim. When he didn’t want to use vacation credit for time off, he lied to his superior that he was “in the area securing new residence” in order to have that time paid. Acting pursuant to that sense of entitlement does not render his actions any less deliberate or dishonest. Nor does this behaviour constitute a failure to pay attention. The complainant is in this predicament not because of any mistake or inattention, but because of choices he made.

182In addition to choosing to engage in the misconduct, the complainant also chose to lie, implicate others in his stead, and, at least initially, impugn the character of Ms. Ritchie and the owner of Pleasure Park as a means of avoiding responsibility for his choices. I have little doubt that his spouse felt the same way and it appears that neither learned anything from her court appearance shortly before these events.

183Dismissal in these circumstances is a proportionate response. The misconduct is serious in both its nature and its extent. The surrounding circumstances do not mitigate the fundamental acts of dishonesty for which there has been no real acceptance of responsibility by the complainant. Given the fact of the misconduct in creating and filing fabricated expense claims, and the complainant’s continued attempts through the hearing to downplay the nature and quality of that misconduct, I have no basis from which to conclude that the complainant is in any position to re-build the trust that is required of a manager in this Ministry, or be able to properly perform his managerial and modelling role. The Employer is entitled to be able to reassure the public that its funds are being used and accounted for appropriately. It is also entitled not to be put in the position of having to assume an ongoing risk with respect to the complainant’s behaviour.

184The only factor mitigating against the Employer’s decision to terminate the complainant’s employment is his long and skilled service. However, that factor also exacerbates the injury in the circumstances. The complainant took his employment and his Employer for granted. I have no confidence that the complainant understands and appreciates the nature and extent of the breach of trust inflicted on the Employer. While purporting to express remorse he continued to obfuscate during the hearing in what could only be an attempt to minimize his culpability, providing clear evidence of his ongoing failure to take responsibility for the misconduct.

185Having regard to all of the above, I find that there is no proper basis on which to interfere with the Employer’s decision to terminate the complainant’s employment. This complaint is hereby dismissed.