PSGB# P-2014-2860; P-2014-2861

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Jurkus

Complainant

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANT

Andrew Camman Polishuk Camman & Steele Counsel

FOR THE EMPLOYER

Peter Dailleboust and Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 30, 2017; July 8, 2019; November 7, 2019; March 3, 2020; June 25 and 29, 2020; January 25, 2021; February 16, 2021; March 5 and 10, 2021; May 31, 2021; June 28, 2021

Decision

1This complaint, filed by Stephen Jurkus (the “Complainant”) challenges the decision of the Ministry of Community Safety and Correctional Services, now the Ministry of the Solicitor General (“SOLGEN” or the “Employer”) to terminate the Complainant’s employment as a Sergeant (previously “Operational Manager”) at Elgin-Middlesex Detention Centre (“EMDC”). EMDC is an adult correctional facility, housing in excess of 400 inmates.

2That termination from employment occurred on September 3, 2014, further to the murder of an inmate (referred to herein as Inmate K) by his cell mate (referred to herein as Inmate G) on the evening of October 31, 2013. Inmate K’s body was not discovered by EMDC until the morning of November 1, 2013. Inmate G has since been convicted of second-degree murder and given a life sentence.

3The allegations found by the Employer against the Complainant, set out in the letter of termination, are as follows:

1. You failed to respond and act on reports of brew in Unit 6 Left Cell #3 and/or the intoxication of [Inmate G] on October 31, 2013;

2. You failed to provide a detailed written description of all events related to the report of a brew as outlined in allegation #1, prior by [sic] the end of your shift on October 31, 2013;

3. You submitted an occurrence report regarding a brew on October 31, 2013 and an occurrence report regarding the medical alert on November 1, 2013 to yourself instead of your immediate manager (or manager who requested the report);

4. You failed to maintain logbooks in accordance with Ministry policies and procedures on October 31, 2013 and November 1, 2013;

5. You failed to properly perform the duties required of an Operational Manager by not ensuring the safe and secure operation of the institution for which you were responsible on October 31, 2013 and November 1, 2013; and

6. You failed to cooperate during a Ministry of Correctional Services Act, section 22 Investigation, including but not limited to, refusing to provide information required for the investigation during an interview held on June 26, 2014.

4The first day of hearing of this complaint was November 17, 2017. The hearing was adjourned pending the outcome of a criminal charge of failing to provide the necessaries of life brought against the Complainant in the context of the incident on October 31, 2013. The criminal case against the Complainant was initially stayed due to delay. That stay of proceedings was overturned on the Crown’s appeal and the Complainant was denied leave to appeal that determination to the Supreme Court of Canada. As a result, the charge went to a jury trial, resulting in an acquittal on February 5, 2019.

5In this hearing, the parties entered an agreed statement of fact, called viva voce evidence, and filed documentary materials. The lengthy Statement of Fact refers to the Complainant as the “Grievor”. The referenced footnotes have not been reproduced and it must be noted that any reference to “testifying” in the agreed statement refers to testimony given not in this hearing, but in a different proceeding(s).

6The Agreed Statement of Fact provides:

Events on Unit 6 Before 7:30 p.m. on October 31, 2013

1. On October 31, 2013, Inmate K was housed in Unit 6 (Left), Cell 3 in EMDC Level Two. Inmate K’s cellmate was Inmate G.

2. One of the Correctional Officers (“COs”) posted to Unit 6 was Mr. Gregory Langford. On October 31, 2013, CO Langford was on an 8:00 a.m. to 8:00 p.m. shift.

The Chokehold Incident & Smoking on the Unit

3. In the early afternoon, CO Langford was aware that Inmate G placed Inmate K in a chokehold in the Unit 6 living area, a serious incident (see GSB Decision, “Conclusions - Chokehold Incident”, paras. 98-108).

4. As captured on EMDC’s automated video security system, CO Langford was aware that Inmate G and other Inmates were smoking contraband in or around Cell 3 around 4:28 p.m. and again around 6:28 p.m. (see GSB Decision, “Conclusions - Chokehold Incident”, paras. 112-114].

Alcohol in Cell 3

5. Before and during the Unit 6 dinner hour, at 1700 hours [?] [sic] Inmate G and two other inmates (two Unit 6 “feeders”) consumed a “brew” in Cell 3. A brew is an alcoholic substance made by allowing fruit to ferment and thereby produce alcohol. During this time, Inmate K was in another Unit 6 cell (Cell 7).

6. At about 7:10 p.m. CO Langford locked Inmate K back into Cell 3 with his cellmate, Inmate G, for the evening. Initially, Inmate G came out of Cell 3 as CO Langford was putting Inmate K in (demanding to use the phone), but he complied with CO Langford’s direction to go back into Cell 3. CO Langford noticed impairment with Inmate G.

7. At about 7:22 p.m., CO Langford had secured all Inmates in Unit 6 into their cells to allow Nurse Wilson-Baarbe to complete her medication round. During the medication round, CO Langford noticed the smell of brew: “it was only when I came around with the meds I could smell it”. CO Langford and Nurse Wilson-Baarbe “smelled a brew in that area”.

8. Nurse Wilson-Baarbe opined that Inmate G appeared to be displaying the effects of alcohol consumption. Nurse Wilson-Baarbe believed that Inmate G was intoxicated and she told CO Langford that Inmate G was intoxicated. She would not leave any medication in Cell 3 because Inmate G appeared to be drunk. To CO Langford, “[Inmate G] was being loud and obnoxious, but happy, he seemed drunk”.

9. At 7:27 p.m., Inmate G is seen drinking something on the surveillance video. He appears to be toasting or offering some to CO Langford as he does so.

10. At about 7:36 p.m., CO Langford left Unit 6. CO Langford went downstairs from Unit 6 to the Shift IC’s Office to tell “the two Lieutenants that were on”.

Management on duty at 7:30 P.M.

11. Acting Sgt. Prestage was in charge of Level Two on the 7:00 a.m. to 7:00 p.m. shift. Acting Sgt. Prestage was off duty by 7:00 p.m.

12. CO Langford did not make any verbal report, or in writing, about the choking incident or smoking on [sic] Unit 6 during the day to Acting Sgt. Prestage. CO Langford did not report any alcohol issue in Cell 3 to Acting Sgt. Prestage. Acting Sgt. Prestage was not on duty when CO Langford conducted the medical round with Nurse Baarbe.

13. Sgt. Jurkus’ work schedule was from 9:00 a.m. to 9:00 p.m. Between 9:00 a.m. and 7:00 p.m., Sgt. Jurkus was the manager responsible for Level One. As the “Level One” Manager, Sgt. Jurkus was responsible for the Units on Level 1, being Units 1, 2 and 3. At approximately 6:20 p.m., Acting Sgt. Prestage and Sgt. Jurkus had finished dealing with two inmates who had flooded a cell on Unit 1 on Level 1 [either Cell 11 or Cell 12]. Sgts. Jurkus and Prestage had escorted the two inmates to Unit 8 on Level Three.

14. Between 7:00 p.m. and 9:00 p.m. on October 31, 2013, Sgt. Jurkus became the Level Manager responsible for Levels One and Two. Level Two's Units are Unit 4, 5 and 6. By approximately 7:00 p.m. on October 31, 2013, Sgt. Jurkus was in the Shift I/C office (see below).

15. [The parties disagree about 8:00-8:30 p.m. tour responsibility: see below]

16. At about 6:10 p.m. on October 31, 2013, Lt. Stephen Brydges commenced his Night Shift at EMDC as the Shift “In-Charge” Supervisor (the “Shift IC”). Lt. Brydges relieved Sgt. Tony Johnson, the Shift IC on the Day Shift that day. Lt. Brydges would, in turn, be relieved shortly after 6:00 a.m. the next morning (November 1^st) by the Day Shift IC, Sgt. Penny Rock.

17. Lt. Brydges’ Shift IC functions on the Night Shift “started out” as they would on the Day Shift: i.e., Lt. Brydges dealt with “administrative” or “logistical issues” in the Shift IC Office. For example, Lt. Brydges looked into whether any hiring needed to be done for the next night shift and whether escorts needed to be assigned.

18. At about 7:00 p.m., Lt. Brydges attended a muster for the Night Shift staff (scheduled from 7 p.m. to 7:00 a.m.). After muster, the Night Shift staff began to report to their posts as the Day Shift staff complete their shifts, being 7:00 a.m. to 7:00 p.m. or, like CO Langford, from 8:00 a.m. to 8:00 p.m.

19. At about 7:35 p.m. that evening, Lt. Brydges began his inmate “count”: i.e. EMDC’s various units would call in to Lt. Brydges with each unit’s counts (the number of inmates in each unit) and he would tally up that information and confirm that number against EMDC's admission count. Each unit usually calls in its count when the Unit is locked down for the evening.

20. By about 7:47 p.m., EMDC’s count was completed and confirmed.

21. Sgt. Randy Marshall was also on duty between 7:00 p.m. and 9:00 p.m. Sgt. Marshall was the manager responsible for Admitting and Discharge (“A&D”) and Level Three. Sgt. Marshall worked until 9:00 p.m. to “help cover off” those EMDC areas.

22. After 9:00 p.m., Lt. Brydges became the only supervisor on duty at EMDC and he took over sole responsibility for all of EMDC’s Levels. As Lt. Brydges stated, “so once they're gone [Sgt. Jurkus and Sgt. Marshall], anything on the Levels then becomes my responsibility... so after [9:00 p.m.] anything on the Levels is mine”.

23. Lt. Brydges stated that “managers [are] really split up” and he is “not really involved in the Levels unless there is no manager to cover off”. Lt. Brydges stated to the police:

[H]ad LANGFORD come to me 'cause he couldn't find JURKUS and reported this, then I would get hold of JURKUS and [say], “JURKUS, LANGFORD said this” ... I [pass] it off to that manager that's supposed to be carrying, taking care of that level.

24. [The parties will attempt to come to an agreed statement about the Level Manager’s title and authority and the Shift IC’s title and authority. The Employer disagrees with the “Sgt. Jurkus” and “Lt. Brydges” nomenclature used by the Grievor in this ASF]

CO Langford’s Report About the Alcohol Issue

25. At approximately 7:45 p.m., CO Langford entered the Shift IC Office. Lt. Brydges was in the office, on the telephone, dealing with the EMDC count.

26. Sgt. Jurkus was already in the Shift IC Office when CO Langford came in.

27. CO Langford started talking to Sgt. Brydges as Sgt. Brydges was on the phone. “I was still working on my count at that time which is kinda my main concern”.

28. CO Langford gave Sgt. Brydges the count for Unit 6. CO Langford stated words to the effect that “They’re all secure [the Unit 6 inmates], there's a possible brew in Cell 3, [Unit] 6 Left and anything you guys want me to do about it?” The Grievor will say that the latter part of this statement is one of CO Langford’s versions and is disputed by the Grievor.

29. Sgt. Jurkus came over and started talking to CO Langford.

30. Sgt. Jurkus told the police that CO Langford “brought forward” a “concern” that “[Inmate G] was extremely animated or giddy and suspected of perhaps being into the brew or something”. CO Langford also testified that he told Sgt. Jurkus that it was Inmate G. The Grievor will give evidence that when he made his statement days after the event, he was attempting to assist the investigation with after acquired evidence. The Grievor will say that it was not information he knew at the time of the event or prior. The Grievor will say that Inmate G was not brought up in the conversation.

31. Sgt. Jurkus knew Inmate G as “one of the more high profile Inmates in the building”. Sgt. Jurkus identified Inmate G as “intimidating size wise and intimidating vocalization and action wise”. Sgt. Jurkus had dealt with Inmate G “numerous times one on one. I've never had an issue with him”. The Grievor denies any of this information is relevant because he was not informed about Inmate G’s involvement prior to the incident. The Grievor will say that he did not know Inmate G was in the cell with the suspected brew.

32. Sgt. Jurkus told the police that CO Langford told him (Sgt. Jurkus) of a “possible brew”.

33. Sgt. Jurkus stated in his subsequent report (on November 20, 2013: see below), “I picked up on the information being passed that Officer Langford suspected that there may be possibly a brew in Cell number 3 of Unit 6 left”. The Grievor will give evidence that when he made his statement days after the event he was attempting to assist the investigation with after acquired evidence. The Grievor will say that it was not information he knew at the time of the event or prior. The Grievor will say that Inmate G was not brought up in the conversation.

34. Sgt. Jurkus responded to CO Langford’s report by advising CO Langford that there was no room in segregation and the inmates would have “to sleep it off”. The Grievor will say that the information about room in Segregation came from the morning meeting and was presumed accurate. In any event, the Grievor will say that without the knowledge of events that had transpired in the day with Inmate G, lockup was the same as segregation and the Grievor will give evidence on how it is used as a method of larger scale segregation, particularly when an entire unit is complicit in a breach of institution rules. The Employer disagrees with the assertions.

35. Sgt. Jurkus told the police (on November 4, 2013) that “we had no space in segregation”. Sgt. Jurkus told the police “we can say... don't worry about it, we’ll worry about searching the cell in the morning”. Sgt. Jurkus stated, “Sometimes they just sleep it off”. The Grievor will say that information about room in segregation came from the morning meeting and was presumed accurate. In any event, the Grievor will say that without the knowledge of events that had transpired in the day with Inmate G, lockup was the same as segregation and the Grievor will give evidence on how it is used as a method of larger scale segregation, particularly when an entire unit is complicit in a breach of institution rules. The Employer disagrees with the assertions.

36. In reply, CO Langford “was, like, OK, well you guys don't want me for anything else, I'm leaving”. The Grievor disputes the versions of CO Langford’s claims beyond that he suspected that a brew was in Unit 6.

37. Lt. Brydges did not hear all of the conversation between Sgt. Jurkus and CO Langford, but he heard CO Langford tell Sgt. Jurkus that the inmate was “drunk” and that the Inmate was “loud”:

• “I can guarantee I heard Langford say “drunk”, and I could heard [sic], Langford say “loud”. I can guarantee that”

• I heard, I heard “drunk, for sure and I heard “loud”, and

• “[loud] and drunk I can definitely say”.

The Grievor will say that Lt. Brydges may have said these things 2 ½ months after the event, but his actions demonstrate that he could not have heard what he claims. The Grievor will say that Lt. Brydges’ statement was tainted with after acquired information and a desire to assist police.

38. Lt. Brydges knew that the matter involved Unit 6 because he knew that “that's where [CO] Langford was”. Lt. Brydges did not “catch the inmate name at that time”.

39. Lt. Brydges told the police that Sgt. Jurkus and CO Langford “probably were talking about brew” because he knew that Sgt. Jurkus “was talking about searching up there the next day”.

40. CO Langford testified that “because there was a possible brew, I wanted direction from [the lieutenants]”. The Grievor will give evidence that by virtue of the nurse’s observations and the erratic and dangerous behavior exhibited by Inmate G, CO Langford should have concluded there was a brew and Inmate G was intoxicated and therefore a danger to himself and others and this should have been reported. The Grievor will say, if reported, it would have instigated a far different response from Lt. Brydges and Sgt. Jurkus.

41. CO Langford estimated that his conversation with Sgt. Jurkus lasted about “a minute and a half, two minutes”. Lt. Brydges estimated that CO Langford was in the office for about “five minutes”, “at most”. Sgt. Jurkus' recollection of CO Langford’s interaction was maybe 30 seconds. CO Langford then left the building at the end of his shift.

42. Lt. Brydges was asked by CISU, “So what would be the expectations of [CO Langford] reporting somebody that's with a brew? What would be the expectations of Greg LANGFORD or any CO for that matter [indecipherable] drunk, uh, what should he do?” Lt. Brydges responded, “Well he needs to inform us and he did”. The Grievor will give evidence that he agrees with the expectations, but disputes that Lt. Brydges heard what he reported 2 ½ months later for reasons set out earlier.

[Although referred to in the Agreed Statement of Fact as CISU, the Ministry’s investigation service will be referred to by the title, Correctional Services Oversight and Investigations (“CSOI”), throughout the remainder of this decision.]

43. The Grievance Settlement Board (“GSB”) determined that CO Langford's exchange with Sgt. Jurkus was “sufficient to transfer a significant amount of the responsibility for the alcohol issue... from CO Langford to Jurkus and Brydges”. This finding was not tested by evidence from Sgt. Jurkus or Lt. Brydges and is not binding on the PSGB.

Sgt. Jurkus’ Discussion with Lt. Brydges

44. After CO Langford left the Shift IC Office, Sgt. Jurkus told Lt. Brydges that he (Sgt. Jurkus) was going to set up a search for the next day “cause that's when he was in next”. Sgt. Jurkus said to Lt. Brydges, “the guy’ll just sleep it off”. Sgt. Jurkus specifically said that there would be a search of the Unit. The Grievor will say that Lt. Brydges agreed.

45. Lt. Brydges then asked Sgt. Jurkus some follow-up questions: “like is there any issue out there that might be a health care issue”. Sgt. Jurkus replied “no, there was no issue that way”. In response to the question, “Did [Sgt. Jurkus] tell you anything more about it, other than “I'm going to search”, Sgt. Brydges stated: “No, he said things were okay upstairs and that we would set up for a search the next day”. In response to the question as to whether Sgt. Brydges had any “sense himself of what this search was going to be about the next day”, Sgt. Brydges stated: “I would have assumed a brew or a contraband of some sort, yes”. The Grievor will give evidence that the decision was made together with Lt. Brydges and Lt. Brydges had the final say as the Superintendent’s designate and because Lt. Brydges would have to deal with the consequences after the shift change with even less staff after 9PM. The Employer disputes the Grievor’s assertions.

State of Affairs at EMDC after CO Langford’s Report

46. After CO Langford’s report, no one went up to Unit 6 from the Shift IC Office to look into Cell 3 (Lt. Brydges looked into the cell when he performed his tour after midnight).

47. After CO Langford’s report, no one called up to the Unit 6 to “ask them what was going on”. No one contacted EMDC’s health care to go up to Unit 6 to look into Cell 3. No search of the Unit 6 [sic] was conducted (see below). No one from the Unit called down to the Shift IC Office. The Grievor will say that given the normal routines of the institution when covering units for the Acting Sgt. Prestage, who told Sgt. Jurkus there were no problems on his floor, there was no requirement for him to visit the Unit. The Employer disputes the Grievor’s assertion.

48. Sgt. Jurkus did not complete any report concerning the information that CO Langford had provided to him on October 31, 2013.

49. Lt. Brydges did not complete any report concerning his discussions with Sgt. Jurkus. Lt. Brydges stated to the Employer that he did not provide a detailed written description of all events related to the report of a brew because he “never regarded it as [his] issue”.

50. Health Care did not complete any report concerning Inmate G’s impairment as observed during the medical round on Unit 6 that took place around 7:20 p.m. (see above).

51. It was admitted in the criminal proceeding that there was one segregation cell available at EMDC at the material time. The Grievor’s position on this information is set out above.

52. The availability of segregation cells at or around 8:00 p.m. at EMDC could be determined by checking the computer in the Shift IC’s Office or by calling Segregation itself (“the easiest way would be to phone Segregation itself to see if anything was empty”). The Grievor will give evidence that he agrees with the assertion, but for the reasons set out above there was no reason to engage this search.

53. The cells on Unit 6 Left were not filled to capacity (i.e., it was possible to move inmates from one cell (e.g., Inmate K) to another cell within the Unit). The Grievor will give evidence that he agrees with the assertion, but for the reasons set out above there was no reason to engage this move. The Grievor will say that CO Langford could have initiated such a move, but did not.

54. Sgt. Jurkus asserted to the police that a search of a cell with an intoxicated inmate would “be, like, in the morning because we're down to a very minimal staff at [7:00 p.m.]”.

55. Lt. Brydges testified that a search could have been marshaled in or around 8:00 p.m. on October 31, 2013: “One cell, yes, staff could be put together”. The Grievor will give evidence that he agrees with the assertion, but searches are rarely done after 8PM when complement is low. The Grievor will say that the usual practice is to do searches during the day shift.

56. There were two COs posted on Level 2 (Lonsbary and Tyler) at 8:00 p.m. Lt. Brydges told the CSOI that the Night Shift was not short-staffed at 8:00 p.m.: “The level went down to two (2) which is what we go down to”. The Grievor will give evidence that he agrees with the assertion but this is a lower complement than day shift. Usual practice is to do searches during the day shift.

57. Sgt. Jurkus opined to police that addressing an intoxicated Inmate may put staff in danger more “than, um, anything else” as the situation could escalate into “a use of force”.

What Happened on Unit 6, Cell 3 between 8:00p.m. and 9:00p.m. on October 31, 2013

58. Starting at about 7:56 p.m. a surveillance camera with a limited view inside Cell 3 recorded the nearly hour-long beating that Inmate K received at the hands of Inmate G. The “Agreed Statement of Fact for Guilt Plea” in R. v. [Inmate G] states:

The door of cell #3 faces a video surveillance camera that records. The camera is pointed in the direction of cell #3 and captures a limited amount of activity that is within the cell as visible through the rectangular glass window of the cell door. The video surveillance camera was operational on October 31, 2013 and November 1, 2013 and recorded some of the conduct within cell #3. There is no audio recording.

The following occurred within cell #3 between 7:56 p.m.- 8:55 p.m. on October 31, 2013. [Inmate G] attacked [Inmate K]. Over the aforementioned time period, [Inmate G] repeatedly choked, punched, kicked and stomped [Inmate K] to death. The video surveillance shows that the attack began with [Inmate G] choking [Inmate K] and holding him to the window of the cell door. The attack escalated as [Inmate G] punched [Inmate K] multiple times in the face and head. The punching described occurred in episodes over the nearly one hour period. At one point, [Inmate K] was on the ground with his head near the inside of the cell door. [Inmate G] repeatedly punched, kicked and stomped [Inmate K].

59. Inmates in the Unit alleged that they heard a man's screams for help and the sounds of a person being beaten. Inmates in the Unit below Unit 6 (on Unit 3) also alleged that they heard the screams for help and the sounds of a person being beaten. The Grievor will call evidence that the allegations of high noise volumes were not reported to him or any other manager.

60. The last video evidence of the beating death of Inmate K comes at around 8:55 p.m.

61. Sgt. Jurkus booked off duty as of 9:00 p.m.

Discovery of Inmate K’s Body on November 1, 2013

62. The next day, on November 1, 2013, at approximately 7:00 a.m., Sgt. Jurkus came back on duty as the Level One manager working the 7:00 a.m. to 7:00 p.m. shift.

63. Sgt. Jurkus did not initiate or make arrangements for any search of any part of Unit 6. The Grievor will give evidence that body discovery circumvented plans for search.

64. At approximately 8:16 a.m., about three minutes after Unit 6, Cell 3 was unlocked, the security video shows Inmate G dragging Inmate K’s body wrapped in sheets from Cell 3, across Unit 6, and into the shower area, which is outside the view of the video camera.

65. Inmate G, as well as other inmates, engaged in various activities that “appear to be attempts to clean up and dispose of evidence relating to the assault and beating of [Inmate] K. Nothing of a notable nature happened on the unit for some time thereafter, until approximately 9:50 a.m. when a CO, conducting a regular security round, discovered [Inmate] K’s body in the shower area”. Inmate K's face was so badly beaten that it was unrecognizable.

66. At approximately 9:54 a.m. EMDC's Health Care Manager and two Nurses responded with medical equipment. A number of Sergeants also attended the Unit, including Sgt. Jurkus, followed by Deputy Superintendent, Operations, Mr. Dykstra. At approximately 10:12 a.m. Sgt. Jurkus opened Cell 3 and entered with two COs for approximately one minute. EMS and the police were contacted.

67. Emergency medical attention was provided, but to no avail. Inmate K was dead.

68. A police search of Cell 3 revealed a “mash” in the cell, which is a pulpy substance made of fermenting fruit and sugar used to make alcohol.

69. At approximately 5:30 p.m., Sgt. Jurkus prepared an Occurrence Report, stating in part that “I did enter cell #3 to possible [sic] identify a scene of attack. Officer MacCauley did notice a couple of blood stains on a sheet on the floor”.

70. There is no dispute that Sgt. Jurkus did not include any information in his November 1, 2013 Occurrence Report concerning any of the information that CO Langford had provided to him on October 31, 2013. The Grievor will give evidence that he was in a state of shock.

71. On November 4, 2013, Sgt. Jurkus told the police that he did not put in a report on Inmate G based on CO Langford’s information on October 31, 2013; it was “just in the back of my head”. Sgt. Jurkus continued that “in going back, it's something that kind of haunts me a little bit”. The Grievor will give evidence that he agrees that he made those statements and admits wrongdoing in not completing the paperwork.

72. On November 20, 2013, after being directed to do so by Deputy of Operations, Deputy Dykstra, Sgt. Jurkus submitted an Occurrence Report about his interaction with CO Langford on October 31st. In his report, Sgt. Jurkus stated that he “picked up on the information being passed that Officer Langford suspected that there may be possibly a brew in Cell number 3 of Unit 6 left”. In his report, Sgt. Jurkus asserted that he “made a mental note to pursue a possible search” of the Unit on November 1st “as I would be on duty”. The Grievor will give evidence that this report was completed weeks later and was tainted by after acquired information

73. in his Occurrence Report dated November 20, 2013, Sgt. Jurkus did not provide any details regarding his conversations with CO Langford and then with Lt. Brydges.

The Ministry’s Attempt to Investigate the Events of October 31, 2013

74. By memorandum dated December 31, 2013, Sgt. Jurkus received “official notification that an administrative investigation under the authority of Section 22 of the Ministry of Correctional Service[s] Act has commenced the circumstances surrounding the sudden death of [Inmate K].

75. Section 22 investigations “are an essential tool for dealing with many issues arising in the course of the operation of correctional institutions”.

76. The memorandum identified Sgt. Jurkus as someone who “may have knowledge/ information that may assist the ministry in reviewing this matter” based on the information that the CSOI had received to date.

77. On January 9, 2014, CSOI interviewed Sgt. Jurkus to determine what had happened on October 31, 2013 at EMDC. The CSOI Inspector advised Sgt. Jurkus that he had been “declared a witness in the investigation” based on the information that CSOI had received to date, but that new information could “take us down other paths”. Sgt. Jurkus stated that he understood his “obligation during this interview to be truthful and to provide a complete full and detailed accounting of any information [he] may possess surrounding the matter under investigation”. Sgt. Jurkus participated in the investigation process on January 9, 2014.

78. Sgt. Jurkus stated that he further understood that “the potential consequences should [he] choose not to be forthright and to provide a complete statement” was discipline, up to and including dismissal.

79. CSOI also interviewed approximately 18 other Ministry employees in January 2014, including Lt. Brydges and CO Langford, as well as a number of inmates.

80. By memorandum dated June 12, 2014, CSOI advised Sgt. Jurkus that “information garnered from the investigation has changed your status to that of a ‘subject employee’. Therefore, the need for a supplementary interview has been determined”.

81. [Sgt. Jurkus] was charged on March 5th, 2014 by the London Police Service for failing to provide the necessaries of life to Inmate K thereby endangering Inmate K’s life contrary to section 215(1)(c) of the Criminal Code of Canada.

82. On June 26, 2014, CSOI interviewed Sgt. Jurkus, putting him on notice that in the course of its investigation and its review of interview materials and documentation to date, CSOI had “a few additional questions to ask of you to seek clarification of information you provided during your first interview”.

83. In response, Sgt. Jurkus’ counsel asked to halt the interview because Sgt. Jurkus “has criminal proceedings right now”.

84. At the CSOI interview, Sgt. Jurkus stated that under advisement by his lawyer (who accompanied him at the interview), he had been advised that it would be against his Charter of Rights to participate due to a pending court proceeding. [Sgt. Jurkus] followed the advice of his criminal lawyer.

85. CSOI explained the Ministry’s need to continue its own investigation; that the Ministry had its own interests and “we're proceeding with the investigation and an important part of that is our interview with you and to have some questions answered that flow from our review of the initial interview”.

86. CSOI also alerted Sgt. Jurkus (and his criminal lawyer) to the fact that he had protections under the Ontario Evidence Act. CSOI explained that there had already been an unsuccessful Charter challenge to section 22 of the MCS Act.

87. Given Sgt. Jurkus’ non-compliance, the CSOI Inspector attempted to compel Sgt. Jurkus to provide information pursuant to his authority under section 22 of the MCS Act. Sgt. Jurkus understood that he was being required “to provide any information, full details, complete and truthful information with regard to the matter that's under investigation”.

88. CSOI explicitly warned Sgt. Jurkus of the potential disciplinary consequences of the refusal to answer any questions.

89. Sgt. Jurkus refused to cooperate, stating that regrettably he could not answer, and his lawyer shut [sic] down the CSOI interview.

90. CSOI did not have opportunity to ask further questions regarding the events surrounding Inmate K’s death: for example, including, but not limited to: Sgt. Jurkus’ own occurrence reports (Sgt. Jurkus would not even acknowledge that the reports were his), the relevant “shift supervisor’s misconduct and occurrence logs” or vacant Segregation beds.

The Ministry Terminates Sgt. Jurkus’ Employment

91. On September 3, 2014, the Ministry terminated Sgt. Jurkus’ employment. As captured in the dismissal letter, the grounds for employment termination included the following:

[see paragraph 3 of this decision wherein the 5 allegations are cited]

92. Lt. Brydges was also disciplined with 8 allegations with 5 substantiated and received a 15-day suspension.

Legal Proceedings Resulting from Inmate K’s Death

93. On February 5, 2019, the jury found Sgt. Jurkus not guilty under section 215 of the Criminal Code (a mistrial was declared in respect of CO [Lonsbary]).

Inmate G ’s Criminal Conviction

94. Inmate G pled guilty to the second-degree murder of Inmate K and was given a life sentence.

Civil Proceedings

95. There were several civil proceedings brought against the Ministry as [a] result of the incident.

7The inmate conduct on October 31, 2013 has also been reviewed in a decision of the Grievance Settlement Board (“GSB”) (2017 CanLII 30327) (the “GSB Langford decision”), infra, dealing with the discipline of seven correctional officers arising as a result of the events of October 31 and November 1, 2013. Initially, five correctional officers were terminated from employment. By decision of the GSB, three of those individuals were reinstated to employment with various lesser discipline. The terminations from employment of CO Langford and CO Lonsbary were upheld by the GSB.

8The following summarizes the relevant additional viva voce and documentary evidence received at the hearing. There is an attempt to mirror the chronology established in the Agreed Statement of Fact. As regards the Agreed Statement of Fact, where it has been agreed that someone “stated” or “testified” to a certain effect, it is understood as such, not that the statement made is necessarily the truth, but that the parties agree that the statement was made.

9David Wilson, Regional Director, Western Region – Institutional Services (“RD”), testified on behalf of the Employer. RD Wilson worked as the Superintendent at EMDC from August 2014 until November 2016, following the events of October 31, 2013. In March 2014 he received the initial CSOI investigation report regarding the incident and a supplementary report was provided in July 2014. RD Wilson conducted allegation meetings regarding various staff, including the Complainant. It was his decision to terminate the Complainant’s employment.

10The Complainant began his employment with SOLGEN in May 1985 and had over 29 years of service with the Employer at the time of his termination. He had worked as a manager since 1999 and had received a 20-year exemplary service award. He had received no discipline prior to his termination from employment. The Complainant was suspended pending investigation in March 2014 and the termination occurred on September 3, 2014.

11While not commenting on the Complainant’s length of service, RD Wilson agreed that Sgt. Brydges’ continuous service date of December 1989 represented significant service.

12RD Wilson acknowledged that his information derived from others and that he had no first-hand knowledge of institutional practices at EMDC leading up to the death of Inmate K. His decision to terminate the Complainant’s employment was based on his knowledge of applicable policies and procedures. He acknowledged that because the Complainant had declined to participate in the latter section 22 interview and the allegation meeting, he did not have the Complainant’s evidence of events when he made his decision. RD Wilson drew a negative inference from the fact that the Complainant had declined to participate in the section 22 and allegation meetings and determined that the Complainant had intentionally withheld information.

13The issues relate to the Complainant’s activities during the last 75 minutes of his shift on October 31, 2013 and to certain of his actions after the fact. It is known that Inmate G engaged in the beating of Inmate K between 7:56-8:55pm that evening. No one attended the unit during that time. Nor did anyone on the night shift, including Sgt. Brydges during his night round, discover anything amiss. In this decision reference is made to the “9-9 Sergeant” as reflective of the Complainant’s shift that day and the responsibilities associated with that shift. As stated in the Agreed Statement of Fact, between 7-9 pm on October 31, 2013, the Complainant became the level manager responsible for Levels 1 and 2 (para. 14).

Other Events on October 31, 2013

14The Shift IC on the day shift had allowed a number of correctional officers to leave work early on October 31, 2013, resulting in short staffing on the units and putting EMDC on lockdown.

15The Complainant was assigned the supervision of Level 1 on October 31, 2013. The three units on Level 1 house inmates in protective custody. Institutional Training Manager (“ITM”) Marlene Lariviere agreed in cross-examination that the three units “required a lot” from the supervising Sergeant. At about 3pm on October 31, 2013, the Complainant attended at Level 1, Unit 1 for a period of time in response to a number of inmates acting out. Prior to 6pm he attended again in response to two inmates stuffing their toilet and continually flushing, resulting in the flooding of their cells and the dayroom.

16A red alarm was also triggered briefly on the unit at approximately 6pm, indicating a fire. There was no fire and, according to the Complainant, the alarm was likely activated by inmates tampering with the smoke detector.

17The Agreed Statement of Fact notes that the two inmates were removed from Unit 1, Level 1 and placed in Unit 8 on Level 3 by the Complainant and Acting Sgt. (“ASgt.”) Prestage at approximately 6:20pm. According to CO Vel’s occurrence report dated November 1, 2013 the move to Unit 8 occurred because there was no room in segregation at the time. An inmate misconduct would typically be served in segregation.

18RD Wilson agreed that the Complainant dealt with this incident appropriately.

19The Complainant completed an occurrence report regarding this incident at 8pm on October 31, 2013 while in the Shift IC Office. The Complainant testified in chief that he then returned to Level 1 to tour those units and calm the inmates who were worried about the fire alarm. There was no evidence as to whether the Complainant did or did not make a log entry in respect of the units on Level 1 at that time. In argument, the Employer referred to the Complainant’s statement to CSOI on January 9, 2014 where he speaks of having coffee with Sgt. Brydges as evidence that the Complainant was not engaged in any pressing activity between 8-9pm. That statement did not indicate the time, whether before or after 8pm. Sgt. Brydges confirmed that the Complainant did not remain in the Shift IC Office after speaking with CO Langford and completing his report. Sgt. Brydges oversaw the remaining clean-up from the flooding on Level 1 after the Complainant’s shift ended.

20Level 2 mirrors Level 1, one floor above. The Shift IC Office is near the main foyer of the institution and administrative offices are similarly in the centre area of the institution. Level 3 is at the opposite side of the building from Level 1 and the main segregation unit is between the central office area and Level 3.

Security tours and log entries by a Sergeant

21RD Wilson testified that it is the responsibility of the Sergeant to observe the COs during the lock down procedure on a random unit each evening. He also testified that the 9-9 Sergeant is to conduct a security tour (a ‘door pull’) on all cells on both Levels 1 and 2 at 8:30 pm to confirm that all inmates are in their cells and secure. According to RD Wilson that tour is mandatory independently of any identified issues or behavioural concerns and the Sergeant is required to verify each unit’s count against the whiteboard count in each unit office. After 9pm, there is only one manager in the institution during the night shift and these checks are to confirm that all movement has stopped and inmates are secure prior to moving to a reduced staffing level. This is the expectation against which the Complainant’s actions were measured.

22RD Wilson acknowledged that he had no direct knowledge of the practices at EMDC during 2013 as he did not arrive there until later in 2014. Based on the information RD Wilson received, he accepted that level managers doing a security tour at 8:30 pm was the practice at EMDC and he gauged the Complainant’s conduct accordingly. Part of that information was obtained from a statement made by CO Lonsbary at his CSOI interview on June 26, 2014. According to the synopsis of that interview, CO Lonsbary asserted that it was up to the Sergeant to deal with any possible brew after lock-up on his security tour, and that the Sergeant, identified as the Complainant, had not completed the security tour on October 31, 2013. By June 26, 2014, CO Lonsbary had also been charged criminally and the memo discussed below regarding mandatory security tours had just issued.

23RD Wilson also relied on a document filed at tab 12 of Exhibit 3 that he obtained from a Security Manager at EMDC who arrived there in 2017. There was no reliable evidence when, or if the document had ever been made available to Sergeants. The Complainant testified that he had never seen it before these proceedings. RD Wilson acknowledged that the document - a listing of Level 1 and Level 2 Manager duties - appeared to be inconsistent with his evidence in that the listing of Level 2 manager duties included the performance of door-pulls on both Levels 1 and 2 at 2000 hours. The listing of duties for the Level 1 manager makes no reference to that security tour.

24ITM Lariviere began working for the Employer in 1990 and worked at various institutions as a CO, including at EMDC. In 2012 she became an acting manager and Shift IC at EMDC and was awarded a permanent Sergeant’s position in 2014. She has worked as the ITM since May 2016.

25ITM Lariviere supported the evidence of RD Wilson that the Sergeant working the 9am-9pm shift was responsible for doing a security tour of both Levels 1 and 2 each evening prior to going off shift. She testified that she always did a count during this tour and signed the logbook and confirmed the count. She testified that she would report to the Shift IC on her way out that everything was okay. She agreed that a security tour of Levels 1 and 2 would take at least 30 minutes and up to an hour to complete, with some occasions requiring more than an hour. She also testified that when she worked as Shift IC all the Sergeants reported to her and she assumed that they were reporting that a security tour had been done. She testified that she saw it being done as a CO and that her training had taught her that a security tour had to be done.

26The Complainant did not complete a security tour of Unit 6 after lockup and prior to the end of his shift at 9:00pm on October 31, 2013. He testified that it was not the practice at EMDC for the 9-9 Sergeant to conduct security tours on a regular basis, but that they would do so if they had time. According to the Complainant, the Level 2 manager would ensure that their units were in order prior to leaving and the Level 1 manager assuming the role would be available to the Level 2 COs should something arise, provided the Level 1 manager was otherwise available.

27On June 12, 2014 then EMDC Deputy Superintendent (“DS”) Steven Glenn issued the following memo to Sergeants with the subject line “Secure Lock Down Check”:

The procedure that most of you do on a regular basis is now required to be done.

This procedure is the secure check at 2000 hours of the living areas. You are now required to insure [sic] that the cell doors are secured and the unit is in order. You will be responsible for the area you are directly supervising and in the event of a [manager] shortage the manager that is available will assume the role.

28DS Glenn has worked at EMDC for 36 years. He testified in chief that he thought the memo had been sent in November 2013, although agreed in cross-examination to the June 2014 date. There is no dispute that it was sent after the incident on October 31, 2013. He testified in chief that it should have been worded differently to indicate that security tours had always been mandatory – he stated it was “an unwritten rule that that was what you did”. He agreed that once a security tour was completed, it was to be recorded in the logbooks.

29In cross-examination he testified that he did not work 8am-8pm and had no firsthand knowledge whether COs were leaving early or whether security tours were being performed properly. He acknowledged in cross-examination that he was not aware whether managers were doing security tours. In re-examination he then re-asserted that it was the longstanding practice of managers (with this exception by the Complainant) to make sure doors and floors were secure, consistent with expectations because he reviewed the logbooks.

30ITM Lariviere agreed that if the security tours were being done, they would be recorded in each unit’s logbook.

31An excerpt from the Unit 6 logbook, for the period August 20 to November 1, 2013, was filed and reviewed in evidence. There was no suggestion that the entries would not reflect actual attendance by a manager. A careful review of this excerpt indicates that Sergeants were not performing security tours between 7-9pm on a daily or regular basis leading up to October 31, 2013. Sergeants mark their entries in red. On only approximately 26% of the days during that period is there a manager’s entry during that relevant period of time. Of those, a few occur prior to the time recorded for the unit being secure, making it difficult to know the purpose of the manager’s attendance and rendering it unlikely that a ‘door pull’ was conducted at that time. Of manager’s entries, only three tours were conducted after 7:56pm and of those three, only one was conducted at 8:30pm during that approximately 2.3 month period.

32Sgt. Brydges agreed that many policies were not being strictly enforced at EMDC at the time. He agreed with the Complainant’s description of the practice at the time – that the Level 1 manager would make themselves available when called upon to assist on Level 2 between 7-9 pm but did not regularly perform security tours of Level 2 during that time.

33I was not referred to any standing order or policy that spoke to the conduct of security tours by Sergeants. The Institutional Services Policy and Procedure Manual (“ISPPM”) - Administration, applicable to Superintendents and Deputy Superintendents provided:

6.5 Inspection of the Institution

6.5.2 The superintendent or deputy superintendent must visit each area and sign the logs in the facility at least twice weekly [added effective March 1, 2012]

6.5.3 In order to be aware of all institutional activities and ensure that routine duties are carried out as prescribed, the superintendent or institutional on call administrator will visit the institution at least once a week to observe late evening, early morning or weekend operations.

34DS Glenn was not a Deputy at the time of the incident but his reference to his review of logbooks is consistent with the policy requirements of those responsible for the supervision of Sergeants. However, it appears that the practice of Deputies and Superintendents at EMDC leading up to October 31, 2013 was also not consistent with policy.

35Had Deputies or Superintendents been reviewing the logbooks as asserted by DS Glenn, it would have been readily apparent that security tours between 7-9pm on Unit 6 were not being done by Sergeants in accordance with asserted policy expectations. Nor was there evidence of unit visits to indicate any oversight of these asserted routine duties. There is no evidence of the Complainant or other Sergeant ever having been spoken to or disciplined for failing to conduct a security tour on Level 2 while working as the 9-9 Sergeant.

36On October 31, 2013 Mr. Jurkus relied on the information he received from ASgt. Prestage that Level 2 was locked down and secure prior to ASgt. Prestage’s departure at 7pm, knowing as well that the units were on lockdown due to the shortage of staff that day. Other than CO Langford’s report at approximately 7:45pm, Mr. Jurkus did not receive any information or contact from the Unit 6 COs to indicate that anything was amiss.

CO Langford’s Report About the Alcohol Issue

What was communicated in the Shift IC Office on October 31, 2013?

37The three individuals present in the Shift IC Office when CO Langford made his report testified. It is not known whether CO McCreary was also present at the relevant time but it appears unlikely and neither party called him as a witness. There are inconsistencies as between the three witnesses in their various interviews, statements, occurrence reports and in their testimony as to what was communicated in the Shift IC Office at approximately 7:45 pm on October 31, 2013. There are also internal inconsistencies in each witness’ various accountings. It is the case that all three participants were and remain self-interested in the outcome of this and other proceedings that resulted from the murder of Inmate K. They each fully understand that the fact of an inmate dying in custody represents a failure of the highest order in correctional service. Apart from the Complainant’s obvious interest in reclaiming his employment, Sgt. Brydges’ testimony remains potentially subject to Employer scrutiny given his statements made in the course of the section 22 investigation. And, as argued by Complainant counsel, CO Langford continues to have reason to deflect from his own responsibility for the outcome on October 31, 2013 as he played a central role in the outcome of that day and the consequences that followed. I am persuaded that none of the witnesses were entirely forthcoming.

38On his visit to the Shift IC Office, CO Langford did not communicate anything to the Complainant or Sgt. Brydges concerning the chokehold incident, so-called horseplay, showing off (baiting staff), smoking on the unit that day, the presence of a ‘wick’ (any prohibited lit flammable used as a substitute for a match), the fact of there being two inmates in Cell #3 (see also paragraph 48 herein) or that those inmates were the subject of the interaction involving the chokehold, the nurse’s refusal to give meds to Inmate G, or the nurse’s assessment of Inmate G as intoxicated. That is not in dispute.

39CO Langford also did not communicate any of the events that occurred that day prior to ASgt. Prestage’s departure at 7pm to Prestage (everything up to the nurse’s visit). Nor did the nurse communicate anything to the Complainant or to Sgt. Brydges concerning her assessment that Inmate G was intoxicated. That is also not in dispute.

40In his occurrence report of November 20, 2013, the Complainant identifies that CO Langford advised of a possible brew in Cell #3 on Unit 6. He reiterated this in evidence as the extent of the information provided to him by CO Langford on October 31, 2013. In his police interview on November 4, 2013, the Complainant stated that the only concern brought forward to him was that Inmate G was “extremely animated or giddy and suspected of perhaps being in the brew or something”. The question put to the Complainant directed him to his recollection of October 31, 2013 and of what he was made aware. The Complainant was cross-examined at length about this statement compared to his assertion in evidence that the information he had been given was more limited and that he was responding to police with after-acquired information.

41At the time of his first CSOI interview on January 9, 2014, the Complainant was identified as a witness and although warned that might change, a reading of the transcript of that interview and the tenor of his answers suggest that he did not consider himself to be in any jeopardy and was responding with the information he was aware of. Most of the questions related to events on November 1, 2013 and the discovery of Inmate K’s body.

42At his CSOI interview on the same day, Sgt. Brydges was identified as a subject employee, an indication that he was considered by the investigator to have had a more direct involvement in the incident. On his night round, Sgt. Brydges did not identify anything amiss on Unit 6. Nor is there evidence that he made any inquiries of the COs on the unit as to the state of the ‘drunk’ and ‘loud’ inmate in Cell #3.

43The Employer accepted the statement of Sgt. Brydges that CO Langford identified that inmate G was “drunk” and “loud” as evidence requiring a different response from the Complainant. That statement was made by Sgt. Brydges for the first time in his CSOI interview on January 9, 2014 and the quote that appears in the Agreed Statement of Fact is from Sgt. Brydges’ police interview on January 13, 2014. The Complainant denied that CO Langford gave that description on October 31, 2013.

44In his CSOI interview, Sgt. Brydges identified these descriptives of “drunk” and “loud” in response to questions about what information he “has” related to the incident, allowing for the possibility that he responded with after-acquired information. Sgt. Brydges’ police interview on January 13, 2014 was conducted directing him to what he heard at the time. In evidence before this Board, Sgt. Brydges agreed that he had not lied in those interviews but testified he could not recall when he heard those words, whether it was at the time or after the fact. In his occurrence report dated November 4, 2013 concerning the events of October 31, 2013, Sgt. Brydges made no mention of CO Langford having attended the Shift IC Office or of anything said at the time. He was not asked to provide an addendum to that report.

45The police synopsis of Sgt. Brydges’ police interview on November 12, 2013, notes that he stated he was not made aware of anything on Unit 6L on October 31, 2013 and that he knew the Complainant “was talking to somebody about brew but not anything in particular as far as I was aware”. This is not a transcription and is technically hearsay. I refer to it only to note that there is no indication from the synopses of both his November 7 and November 12, 2013 police interviews that Sgt. Brydges provided any details to the police other than this statement. The Complainant was more forthcoming in his police interview on November 4, 2013.

46It would have been in CO Langford’s interest to include everything that he had said in the Shift IC Office in his occurrence report, so as to confirm that he had conveyed the relevant information to effectively pass responsibility to the manager. In his occurrence report of November 1, 2013 CO Langford stated only that he attended the Shift IC Office to speak to Sgt. Brydges and advised him of “a possible brew in cell 3”. Although he described Inmate G in that report as seeming “drunk, animated, very loud and happy”, CO Langford does not report that he conveyed those words, or the words “drunk and loud” to those in the Shift IC Office. It is not apparent from the decision of the GSB that CO Langford testified in that forum that he said anything beyond a possible brew in Cell #3.

47In an addendum dated November 19, 2013 to his November 1, 2013 occurrence report, CO Langford reiterated that he informed Sgt. Brydges of a possible brew in Cell #3 and added that he “also talked to Steve Jurkus OM16 because he was sitting in the office with Steve Brydges”. CO Langford did not appear to have been concerned or aware that the Complainant was the 9-9 Sergeant and thereby his direct supervisor at the time.

48The evidence as to whether CO Langford identified Inmate G is not compelling as reports and recollections by the witnesses either support a conclusion that Inmate G was not identified or were largely qualified. The Complainant’s responses in his police interview suggest that CO Langford identified Inmate G in the Shift IC’s office. In his testimony, the Complainant denied being so advised.

49Nor did CO Langford indicate that there were two inmates in Cell #3. Although paragraph 34 of the Agreed Statement of Fact references the Complainant responding that “the inmates” would have to sleep it off, the footnotes acknowledge that CO Langford variously referred to the Complainant as having said, “he’ll have to sleep it off” and “they’ll have to sleep it off”. No other evidence supports a conclusion that the Complainant or Sgt. Brydges was then aware or made aware that there were two inmates in Cell #3, a fact that CO Langford, as an experienced CO, would have understood to be particularly relevant to report given the events of the day and his understanding of the state of Inmate G at the time.

50Having carefully reviewed and weighed all of the transcripts, interviews, and the evidence before me, on a balance of probabilities, I find that CO Langford communicated that there was a possible brew on Unit 6 in Cell #3, as well as words to the effect that the inmate was giddy or animated, and that he might be drunk. I make this finding largely on the basis of the Complainant’s responses to the police in his November 4, 2013 interview where he explains that he was in the middle of doing paperwork during the conversation. The grammatical structure and tenor of those subsequent responses indicate that the Complainant was speaking to what he had heard on October 31, 2013. Not only were the events still fresh in his mind, that interview proved to be more forthcoming than subsequent interviews that occurred after the Complainant realized that his conduct was under question.

51I am not persuaded on the evidence that inmate G was identified by CO Langford. However, even had inmate G been identified, I am satisfied that that additional piece of information did not change the tenor of the report made by CO Langford. I am also persuaded that the Complainant responded with words to the effect that the inmate would have to sleep it off as there was no room in segregation, a response consistent with having been told that an inmate might be into a brew.

52Regardless of the precise words used, I have no doubt that the report was communicated in a tone, manner and intention that conveyed there was no issue whatsoever regarding the inmate’s personal well-being or the safety of those housed in the unit. If anything, the communication reflected that the inmate, even if drunk, was in a good mood and there was no suggestion that any behaviour was disrupting the unit. Nor was the communication framed definitively, such that CO Langford was advising that the inmate was drunk, as the reference was to a possible brew. Whether there was other contraband or other triggers was not discussed.

53CO Langford testified that he had noted the possible brew in Cell #3 on the Unit 6 whiteboard. He could not explain why that entry was not there the following morning. Had he made such an entry it is more probable than not that other COs on the unit would have seen it, as that is the whole purpose of such a notation. There would be no reason for the night shift COs to have removed it, as at least CO Lonsbary acknowledged that CO Langford had advised him of a possible brew verbally. There is no evidence corroborating CO Langford’s statement and I am disinclined to accept it absent such corroboration given CO Langford’s conduct in failing to make any other report of the events that day, either in writing or verbally, other than his limited communication in the Shift IC Office.

54I have no hesitation in concluding that CO Langford did not hold himself out in the Shift IC Office as ready to do anything that might be required. Nor was he interested in receiving “direction from the Lieutenants”. There was no dispute that he was in a hurry to leave and had arrived at the Shift IC Office, situate in the lobby of the institution, with his coat and that he then left the institution. That is consistent with the tone used in his communication. He made no effort to communicate with his direct supervisor; it was happenstance that the Complainant was in the Shift IC Office when CO Langford arrived. I am satisfied that CO Langford had no interest in or intention of raising any concern that might require him to remain at work that evening.

The Complainant’s response to CO Langford’s Report

55According to RD Wilson, knowing an inmate was loud and intoxicated was not routine and required an immediate response. RD Wilson testified that on being advised of a brew he would expect the Sergeant to make inquiries as to where, who, the inmate’s condition, location relative to other inmates including whether there was a cell mate. He also expected the manager to attend the unit and assess the situation – he described “an expectation that there would be some action taken”.

56RD Wilson described that the Complainant had an obligation to attend the unit and assess the situation by interviewing Inmate G and removing him from a shared cell and checking for any further alcohol. Depending on the inmate’s reaction, RD Wilson testified that various forms of restraint up to and including calling in the ICIT team could be utilized. There was “no way”, according to RD Wilson, that an intoxicated inmate would be left in a cell with another inmate.

57In terms of conducting a search, RD Wilson testified that the only information required was a location, following which one pulled together the staff needed (a minimum of two) and the search could be ordered, if necessary, retaining staff beyond the end of their shift, and that a search would be warranted to determine the presence of intoxicants. According to RD Wilson, indicating that the inmate could sleep it off was a “totally unacceptable” response and constituted taking no action at all. The evidence disclosed that the Complainant indicated that the inmate “would have to” sleep it off, not that he “could” sleep it off.

58RD Wilson expected the Complainant to deal with the issue right away and inform Sergeant Brydges as to what he had done and whether anything further needed to be done. According to RD Wilson if a search needed to be done, do it, and if it needed to be done the next day, the ‘why’ and ‘when’ needed to be documented. In either event, submitting an occurrence report was required, testified RD Wilson, referring to this scenario as “a drunk inmate, not possible brew”. According to RD Wilson, hearing the information ‘drunk and loud’ was enough to initiate a search, as a manager has a duty “to respond to issues that are contentious or potentially contentious”.

59RD Wilson acknowledged that the transfer of information from the CO to the Sergeant was “extremely important” as “without the knowledge the manager can’t react to the situation and rectify it”.

60Alcohol is contraband. It can pose both a serious security and health threat in an institution. The ISPPM - Incident Reporting indicates intoxication as a Priority 2 incident, requiring an Inmate Incident Report (“IIR”) by the end of the Sergeant’s shift. That report is to include not only a record of the issue but is also a record of the information obtained through an investigation and the action taken as a result. According to RD Wilson that report should be as comprehensive as possible so as to tell the reader all known facts, including when the information came forward, where it occurred and the names of everyone involved.

61None of CO Langford, Nurse Wilson-Baarbe, the Complainant, or Sgt. Brydges completed even an occurrence report regarding Inmate G and a possible brew or intoxication in Cell #3 prior to the end of their respective shifts that day. Nor did CO Langford make a log entry of any of the events between these inmates that day. Nurse Wilson-Baarbe did not report her observations to anyone other than CO Langford, as she apparently felt that any intoxication was a security rather than a medical concern. That is consistent with the Complainant’s understanding as he conveyed it to Sgt. Brydges in their brief discussion after CO Langford left the Shift IC Office (as noted at para. 45 of the agreed facts). There was no evidence that IIRs were completed on any kind of regular basis at EMDC, a report that is expected to be more detailed and specific than an occurrence report.

62The Complainant dealt with a brew on Level 1 on November 1, 2013, the day following the incident. Brews were a common problem at EMDC in 2013. That evidence was not contradicted. Implicit in the evidence was that they received a lower priority given other issues. Sgt. Brydges confirmed that a report of a possible brew would not have triggered a search before the next day and similarly, a report of a drunk inmate would likely also not have triggered a search before morning. The evidence of Sgt. Brydges and the Complainant, that the practice in the institution was that a search in response to a report of a possible brew would not be conducted until the following day, was not contradicted. As noted in the agreed facts, Sgt. Brydges also acknowledged in his testimony that “we could have [done a search of one cell], and he went on to say, “but we just didn’t in those days”.

63Sgt. Brydges testified that there was no conversation between him and the Complainant regarding the words “loud” and “drunk” in the Shift IC Office. Sgt. Brydges recalled some discussion with the Complainant concerning a search for the following day. Both Sgt. Brydges and the Complainant testified that Sgt. Brydges made a written note about a search. Typically, the Night Shift IC would notify the incoming Day Shift IC as to the need for a search. According to Sgt. Brydges he knew there was a possible brew and had heard the words “loud” and “drunk”. He testified in his CSOI Interview on January 9, 2014 that he raised whether “we needed to get health care to look at this person”. When asked in cross-examination why he did not check it out himself, he answered there was “no reason to go up”, because there would be a search the next day.

64Searches were not conducted at EMDC after 7pm as staff coverage was reduced from the day shift. Coverage was at complement on the night shift on October 31, 2013, but a search, while possible, was not probable as it would require pulling staff from other units leaving those units short. I am satisfied that as between the Complainant and Sgt. Brydges, it was mutually understood that, to the extent that CO Langford had raised any issue of a brew or drunkenness, it did not give rise to a medical concern and was a matter that would be dealt with by the day shift, and that this response was consistent with the practice in the institution given the reduced staffing levels in the institution after 7 pm. and the prevalence of brews.

65According to both the Complainant and Sgt. Brydges, segregation was often referred to as ‘full’ during the day, even when a cell was available, so as to keep a cell available should something happen on the night shift. Nor would someone be moved to segregation based on a report of a possible brew, according to Sgt. Brydges. The Complainant noted that such a transfer could result in a higher security risk than leaving the inmate in place. RD Wilson acknowledged that an inmate engaged in misconduct may be left on their unit instead of being moved to segregation, depending on the misconduct.

66It was acknowledged by RD Wilson that he later learned that the shift changeover procedure was not being done according to policy. Rather than the outgoing and incoming staff meeting on the unit to report and complete a Shift Changeover Certificate to be submitted to management, COs would meet at the elevator and provide a verbal report and no certificate would be completed. That practice was open and must have been known to the Employer as it was not receiving the certificates from the units. One of the allegations for which Sgt. Brydges received discipline was that he had failed to ensure the completion of Shift Changeover Certificates.

November 1, 2013

67The Complainant did not raise the issue of a search in Unit 6 at the managers’ morning meeting on November 1, 2013. Nor does it appear that Sgt. Brydges conveyed any information to the Day Shift IC regarding the need for a search or updated the schedule to accommodate a search the following day. RD Wilson testified he expected the Complainant to raise the issue if he intended to have a search conducted that day. Sgt. Brydges testified that the search would likely be conducted after breakfast, at around 9am. Initiating a search typically requires coordinating staff from different units to provide sufficient staff for the search and to ensure coverage. The morning meeting occurred at 9am and typically lasted a half hour. According to the Complainant, searches were typically conducted around 12:30 pm, once the inmates were locked down after lunch. Inmate K’s body was discovered shortly after the morning meeting and, in the result, police conducted a search.

68RD Wilson also testified that any information as to a search should have been recorded in the Complainant’s Occurrence report completed on November 1, 2013. That occurrence report addresses the Complainant’s actions during the day as a result of finding Inmate K’s body. RD Wilson assumed that the Complainant was by then aware of the inmates involved and their connection to CO Langford’s report the previous evening. That assumption was not established as fact. The Complainant testified that by the time of his police interview on November 4, 2013 he was aware of those details.

69The ISPPM - Searches stipulate that at a minimum, routine searches of a unit are to be conducted every two weeks. Unit 6 at EMDC had not had a search conducted for six weeks prior to the incident, lending credence to evidence concerning short-staffing and the practices at the institution.

The Section 22 Investigation

70Participation in section 22 investigations was important according to RD Wilson as that is the mechanism used by the Employer to obtain information about an incident and develop a response, either corrective action or a legal response, whether civil, criminal or an inquest.

71The Complainant participated in his first section 22 interview in January 2014. He attended the section 22 interview on June 26, 2014 with his then legal counsel. At the outset of that interview, there was discussion between the investigator and counsel as to the fact of the outstanding criminal charges against the Complainant and a request to adjourn the interview based on counsel’s assessment of the Complainant’s rights. When advised that section 22 had already been subject to an unsuccessful Charter challenge, counsel asked to be informed of the decision, stating his concerns regarding changes to the Evidence Act. At all times, the Complainant’s stated position was that he was willing to cooperate with the Employer but wanted to ensure that his rights were protected in respect of the criminal proceedings. The Employer declined to provide the Complainant with the case information relevant to the section 22 Charter challenge and declined to grant a limited adjournment of the interview so as to allow counsel time to consider this new information. No reason for that decision was given. The Inspector proceeded to advise the Complainant that he was compelling the Complainant’s response, making it clear that he was invoking and relying on section 22 of the Ministry of Correctional Services Act. The Complainant declined to answer, understanding that it could have implications with respect to discipline.

72The failure of the Complainant to act on the report of intoxication and/or brew was identified by RD Wilson as a major driver in the decision to terminate the Complainant’s employment. From the Employer’s perspective, the Complainant had received a report of a possible brew in the cell which required him to act. The Employer also had evidence that the Complainant had been told that the inmate was drunk and loud, further requiring him to act on that report. Finally, the Employer determined that the Complainant failed to identify the information he had received that evening when he became aware of the death the following day. The Employer concluded that the Complainant had deliberately omitted that information from his November 1, 2013 occurrence report. According to the Employer, the Complainant had the opportunity to prevent the incident and he had failed to act on the information he received. The Complainant’s decision not to participate in the second section 22 interview also played a significant role in the Employer’s decision.

The Aftermath

Other Proceedings

73Sgt. Brydges was disciplined for having failed to conduct security tours as required. The allegation in his case reflected the deficient nature of his tour, not that he failed to conduct the Shift IC’s nightly tour. He was found to have failed to address a covered light in Cell #3, Unit 6 and he acknowledged that he went through the unit too quickly and did not conduct ‘door pulls’.

74The Complainant was charged criminally in March 2014. Initially CO Langford was charged as well. Those latter charges were withdrawn and CO Langford subsequently testified for the Crown in joint proceedings against the Complainant and CO Lonsbary.

75As noted in the agreed facts, the proceedings against CO Lonsbary ended in a mistrial. CO Lonsbary, assigned to Unit 6 on the 7pm-7am shift, was found by the GSB to have failed to investigate noise he heard on the unit at approximately 7:55pm on October 31, 2013. The GSB also found that he failed to properly supervise inmates when he closed the unit office door between 20:18 and 20:50 and engaged in a personal phone call for approximately 17 minutes during that period. According to the synopsis of his CSOI interview, CO Lonsbary acknowledged that CO Langford had told him of a possible brew on the left side of the unit.

76The Complainant was acquitted of the criminal charges following the joint four-week jury trial. The Complainant was represented by criminal counsel throughout. He estimated the cost at approximately $750,000. He received no support, financially or otherwise, from the Employer.

77The impact on the Complainant of the criminal proceedings and the termination from his employment has been profound. The Complainant expressed that he thinks about Inmate K every day and that he is haunted by the belief that had he received a more fulsome report from CO Langford, his response would likely have been different and Inmate K might have survived. He testified that he was diagnosed with PTSD following the incident, suffers from depression and isolation, and has been able to work only intermittently or part-time. He testified that his family now relies on his wife’s income and that, instead of an anticipated comfortable, dignified retirement, his retirement funds were used to pay his legal costs of the criminal trial. He expressed that whereas he had been proud to be employed by the Ministry and felt that he was contributing value to other’s lives, he is now mistrustful of the Employer; holding that the Employer unfairly and inappropriately held him to an expectation that did not accord to expectations in the institution at the time. He acknowledged his resentment at being subjected to criminal proceedings when CO Langford was not. This evidence was not challenged or contradicted.

Staffing

78Staffing of Sergeants has increased since this incident. DS Glenn testified in January 2021 and agreed that there were about three times as many managers working at EMDC as there were in 2013. While asserting that managers still had an obligation to do the job on a daily basis, he agreed in cross-examination that managers in 2013 were trying to do all the jobs that three times that number are currently doing. In re-examination he asserted that the 2013 complement was sufficient at that time and that new programs had since been implemented so new positions had been created. However, notwithstanding that seeming contradiction, he did specifically identify and confirm that, between 7-9 pm, Levels 1 and 2 now have two managers, sometimes three and stated that areas are now “more supervised”.

79ITM Lariviere also acknowledged that there is no longer a requirement by the Level 1 manager to cover Level 2 between 7-9 pm, given the increase in staffing of Sergeants.

80In addition, the position of Staff Sergeant was implemented at EMDC, the intermediary management position between Sergeant and Deputy Superintendent. While Sergeants retain direct responsibility for their assigned area, the Staff Sergeant is responsible for overseeing the institution in the absence of a Deputy or Superintendent.

81When asked who was in charge of the institution at 8pm on October 31, 2013, RD Wilson testified that the Shift IC was not responsible for the institution, but that each Sergeant was responsible for their assigned areas until 9pm in the absence of a Deputy Superintendent or Superintendent being in the building. This implies that level managers would have been expected to contact the on call designate directly and vice-versa for issues affecting their areas, with no onsite oversight of the institution as a whole. That seeming gap has since been rectified with the introduction of the Staff Sergeant.

SUBMISSIONS

82I was referred to and have reviewed the following decisions: OPSEU (Fitzgerald et al) v Ontario (SOLGEN), 2020 CanLII 39020 (ON GSB); Gronski v Ontario (MCSCS), 2015 CanLII 67988 (ON PSGB); Bazger v Ontario (MCSCS), 2017 CanLII 25423 (ON PSGB); Keating v Ontario (MSCSC), 2009 CanLII 15648 (ON PSGB); OPSEU (Bisaillion) v Ontario (MCSCS), 2016 CanLII 48167 (ON GSB); and OPSEU (Langford et al) v Ontario (MCSCS), 2017 CanLII 30327 (ON GSB)(the “GSB Langford decision”).

Employer Submissions

83In summary, it was the position of the Employer that the Complainant’s evidence with respect to what he was told (or not told) in the Shift IC Office was not credible given what he told police shortly after the incident. That statement generally aligned with the evidence of CO Langford, argued the Employer, and ought to be preferred over the Complainant’s testimony some seven years after the event. CO Langford’s evidence was also generally consistent throughout, argued the Employer, and he had nothing to gain from misrepresenting the events in this proceeding. The Employer relied on the decision in Bazger, supra, in support. The Employer submitted that its decision rested on statements made by the Complainant to police on November 4, 2013.

84The oversight and supervision of the lock-up by doing door-pulls is a fundamental duty that the Complainant failed to perform, argued the Employer, a duty eclipsed only by an emergency or the most exceptional circumstances. That check is fundamental to the safety of inmates and staff as coverage is reduced on the night shift to a skeleton crew, argued the Employer, a move predicated on the knowledge that inmates are safe and secure in their cells.

85The fact that the Complainant was aware, at a minimum, that there was a possible brew on Unit 6 elevated the need for his attendance on the unit, argued the Employer, particularly as his other actions before his shift ended were of less import. Given his service, argued the Employer, the Complainant ought to have known that a report of a brew carried some notoriety and he ought to have taken the effort to ensure that the staff he was managing actually undertook the obligation they claimed to undertake. While it could not be said that the Complainant would have interrupted an incident that led to such a tragic outcome, acknowledged the Employer, the point was to fulfill the obligation and do the best to ensure the safety and security of the inmates for whom he had responsibility.

86The Employer argued that the Complainant did in fact have more information than simply a possible brew, which additional information simply heightened his responsibility to attend the unit, check out CO Langford’s report, and ensure that the inmates were safe and secure, independently of any obligation to conduct a security tour. The Employer argued that on a balance of probabilities, the Complainant knew that there was an intoxicated inmate on Unit 6 and that it was Inmate G, known to the Complainant to be a ‘player’.

87However, argued the Employer, even on the undisputed facts, the Complainant failed to meet the primary function and obligations of a manager, referring to the decision in Fitzgerald, supra. The Complainant knew an inmate was giddy and that there was a possible brew. Provided Inmate G was not causing a ruckus, argued the Employer, the Complainant chose to act in a completely negligent fashion by not attending the unit to check on that report, notwithstanding his awareness of the significant hazards of contraband and its potentially massive impact on an institution, as evidenced by the outcome in this case.

88The Complainant also failed to report and record that day any of what he learned from CO Langford, argued the Employer. The Complainant’s failure to cooperate in the section 22 investigation, even on advice of counsel, remains a fundamental obligation of managers in an institution, argued the Employer, relying on the decision in Keating, supra. The Complainant similarly refused to provide any information during his allegation meeting, noted the Employer, and argued that, if the Complainant had nothing to hide, there was no downside to cooperating in circumstances where the Employer required the information as to what had occurred in order to respond to police, inquests, or civil claims, and to learn from mistakes and act to prevent the same from happening again.

89The Employer argued that the termination of the Complainant’s employment should be upheld. In terms of penalty, the Employer referred to the decisions in Gronski and to Bazger, both supra. The Complainant was complacent and negligent in not performing the fundamental duties of his position in light of his fundamental obligation to ensure the care, custody, and control of inmates for the health and safety of those inmates and the staff, argued the Employer. As a manager, argued the Employer, a core goal was also the oversight and supervision of staff in pursuit of maintaining the safety and security of the institution. A gross dereliction of duties, particularly in light of the outcome, does not require a warning, argued the Employer.

90The Employer argued that the GSB decision involving the COs was focussed on the idea of management condonation of COs not properly performing their work, confirming that the role of the Sergeant is to watch over staff. The Employer argued that COs were reinstated because it was found that there had been no oversight of their duties by the Sergeant. However, the Employer argued, the GSB’s decision also recognized that the heart of the role is maintaining security and that one did not need a policy to know that the safety and security of inmates is paramount. The Employer argued that the same premise applied to Sergeants and that the onus ought to be much higher for managers as the risks to individuals were too high to do otherwise.

91The Employer argued that the Complainant had consistently deflected responsibility for what had occurred. There was no doubt that CO Langford could have done more, acknowledged the Employer, but having received the information he did, the Complainant also had an obligation to engage and attend at the unit. The Complainant did not acknowledge that he made any error or got distracted, argued the Employer, and has not learned or acknowledged any liability for his inaction. While the Complainant may have become complacent and stopped worrying about safety, it did not diminish the importance of stopping the use of contraband.

92Although acknowledging that the GSB finding was not binding on this Board, the Employer argued that the GSB’s conclusion that the information communicated was sufficient to transfer a significant amount of responsibility to the Complainant and that the manager then assumes responsibility for how to respond, is not irrelevant and is one that should be adopted.

93The Employer argued that sustained employment was simply not reconcilable with the seriousness of the misconduct, the Complainant’s failure to accept responsibility and his lack of candour. Nor did the Complainant trust the Employer, it argued, a further indication that the employment relationship was irrevocably broken.

94In the alternative, the Employer argued that if termination was determined to be too severe a penalty in the circumstances and reinstatement was being considered, then given the failure to cooperate in the CSOI investigation and in the allegation meeting, those circumstances warranted a determination that the Complainant be reinstated without back pay.

Complainant Submissions

95Counsel for the Complainant agreed that credibility was an issue to some extent in that there were conflicting statements, but argued that in resolving those concerns, it was appropriate to look at actions, as actions spoke louder than words. He also argued that the onus was on the Employer to establish its case, including its assertions as to credibility.

96Counsel reviewed the Complainant’s employment history and record as a loyal employee and manager with no discipline and in his 29^th year of service. To suggest that the Complainant could not return to work and do a good job belied all of that evidence, argued counsel.

97On October 31, 2013 the Complainant was doing his job and not ‘drinking coffee’, argued counsel, reviewing the evidence of the flooding on Level 1, the red alarm, speaking with inmates on Level 1 and noting that the flooding had not been fully dealt with by 9pm as Sgt. Brydges oversaw the final clean-up. That fact supports a conclusion that the Complainant was busy, argued counsel.

98If one were to consider the records closest in time to the incident, then CO Langford wrote in his occurrence report on November 1, 2013 only of telling Sgt. Brydges of a possible brew, corroborating the Complainant’s evidence, argued counsel. On November 19, 2013 he wrote an addendum that reinforced a conclusion that CO Langford provided only that limited information.

99The Employer’s witnesses testified as to how they wanted things to be, not how they actually were, argued counsel, and as a result gave dishonest testimony, noting the firm evidence of ITM Lariviere and DS Glenn asserting a known policy for completing daily security tours after lockdown being contradicted by the memo and entries in the logbooks showing that on only two occasions could it be confirmed that a Sergeant’s asserted daily ‘fundamental duty’ of pulling doors had in fact been done.

100CO Langford had told ASgt. Prestage none of what had transpired on Unit 6 on October 31, 2013 prior to Prestage’s departure at 7pm, noted counsel, yet the Employer asks the Board to believe that CO Langford conveyed more information than that identified by the Complainant. CO Langford knew that if he had advised ASgt. Prestage, the Complainant, or Sgt. Brydges of any of the details, he would have been required to return to the unit and participate in a search and then file a written report in circumstances where he admitted to being in a hurry and was intent on leaving the building. To the extent that the Employer argued that CO Langford had “no stake left in the game” counsel argued that CO Langford’s failure to convey the appropriate and full information regarding that day’s events resulted in people losing their jobs and the death of Inmate K. CO Langford, argued counsel, had to get up every day and say it was the Complainant’s fault that he wasn’t made to go back upstairs, and so still has reason to lie to both himself and to the Board.

101Counsel argued that those who have the most influence in changing how a jail operated had a duty to speak up and address those issues instead of scapegoating individuals. Counsel noted that the Superintendent of EMDC at the time of the incident did not testify. He noted that RD Wilson could not testify to whether the purported list of Level 1 and Level 2 manager duties was available in 2013 or before, having received it from a Security Manager who did not testify and who was not in the institution in 2013. Yet he proffered it as reliable evidence in support of his conclusion that the Complainant had failed in his duties, argued counsel, and relied on it without regard to practice.

102Counsel argued that DS Glenn asserted that his memo had been sent in November 2013, arguing that he had intended to suggest that the Complainant was the only one not pulling doors, as well as asserting a policy for Sergeants to pull doors, assertions that did not accord with the facts. In June 2013, counsel argued, when the memo was actually sent, the Complainant had been suspended for three months and his name was not included on the memo.

103ASgt. Prestage did not testify to dispute that he told the Complainant that all was secure on Level 2 when he left, or dispute that the Complainant’s understanding that a further check was not required was misplaced, argued counsel. Nor was there any report, investigation, or evidence from CO McCreary, who CO Langford identified as having been in the Shift IC Office when he arrived, argued counsel.

104The Complainant never said that door-pulls were not important or that he was not prepared to manage - he looked after his level, assuming correctly, argued counsel, that Level 2 was secure, and that if he were needed, ‘Prestage’s people’ would contact him. That evidence was fully corroborated by DS Glenn’s memo, argued counsel. Nor did the Complainant say that brews were not important, argued counsel. He testified that they were prevalent, so prevalent that EMDC had developed an approach to dealing with them that was not contradicted by the evidence. Rather, that evidence was corroborated by the actions of Sgt. Brydges who acknowledged that he was the Superintendent designate that evening and responsible for the institution yet did not overrule the Complainant regarding his decision to conduct a search in the morning or direct the Complainant to attend on the unit, argued counsel.

105The Complainant was remorseful, argued counsel. He thinks of Inmate K’s family and lives with his death every day. Nor would some healthy mistrust be misplaced on a return to the workplace as a manager, argued counsel. The fact that the Complainant may not trust the Employer and feels like he was scapegoated, cannot found a conclusion that the relationship is irrevocably broken, argued counsel. The Complainant is willing to abide by the rules provided the Employer tells him what those rules are at any given time and if the Employer wants them enforced, to give the Complainant the authority to do so, argued counsel.

106By November 19, 2013 the Employer was aware that the Complainant had been in the Shift IC Office, yet it allowed him to continue working until March 2014. The Complainant never considered that the information he provided to police to assist their murder investigation would be taken as evidence by the Employer as to what information he had on October 31, 2013, argued counsel.

107The allegations against Sgt. Brydges were similar with the exception of the section 22 allegation, argued counsel, yet the Employer decided that Sgt. Brydges was not in charge and was suspended for only 15 days. Sgt. Brydges filed no occurrence report regarding October 31, 2013 and appears not to have been asked to provide one, noted counsel.

108Counsel took no issue with the finding in the GSB decision that using common sense care was required, however, he argued that the decision found that the evidence demonstrated that policies and procedures were ignored by all, including Superintendents, for so long that EMDC was acting on its own set of rules until RD Wilson arrived. The Employer is responsible for the tenor of that institution and its core values, argued counsel, and those findings made by the GSB are persuasive here, argued counsel.

109Sgt. Brydges and the Complainant sat in the office and decided that a search would be done in the morning and had no qualms about making that decision, argued counsel. If the Complainant is to be disciplined for that, argued counsel, it had to be because it was a violation of an existing policy, the accepted policy or practice. The Complainant does not determine those policies, argued counsel, and in fact EMDC was at a point, argued counsel, that due to staffing and other issues, unless there was an obvious and unreasonable risk, the Employer treated reports of brew or intoxication as a risk to be dealt with the next day.

110The Complainant did participate in the first section 22 interview, argued counsel. Unlike in Keating, supra, argued counsel, once charged criminally, the Complainant was looking at a potential 7 years in jail if convicted. After he was charged, he refused to participate in a second interview on counsel’s advice. The Complainant acknowledged that there should be a consequence in the result, but that the consequence should not be losing one’s job.

111In reviewing mitigating factors and referring to the decision in Keating, supra, counsel argued that the Complainant did not act out of spite or other inappropriate motive, there was no premeditation, he did what he did because that’s how things were done, and if anything, he did it in collaboration with Sgt. Brydges. He had a clean record of almost 29 years and at the time of hearing submissions in this hearing he was 59 years old. There was nothing to suggest that he would not cooperate with a change in practice, argued counsel. The economic impact on the Complainant has been devastating, argued counsel, and he is under medical care with no assistance from the Employer. It would be difficult for the Complainant to say that he was remorseful for not following up on CO Langford’s comments, argued counsel, as he did what he understood he was expected to do. There was no evidence that others would be unable to work with the Complainant or that he would draw untoward notoriety, argued counsel. The Complainant sought reinstatement with compensation.

112In reply, the Employer urged the Board to be cognizant of the agreed facts and to ensure that, having advanced litigation, the Complainant did not seek to change the narrative. No adverse inference can be drawn from the fact that ASgt. Prestage did not testify, argued the Employer, as the agreed facts make clear that the Complainant was in charge of Level 2 after 7pm. The Employer understood that CO McCreary had left the Shift IC Office by the time CO Langford spoke with the Complainant. RD Wilson made the decision, not the prior Superintendent and DS Glenn did testify, having been present at EMDC throughout, noted the Employer. The Employer disputed the ability of this Board to rely on findings made by the GSB and denied any suggestion that the Employer’s evidence had not been given in good faith. The Employer argued that the remedial response in Keating, supra, was to be distinguished as it involved off-duty conduct. In this case, argued the Employer, it was important that the Employer know what had happened in order to prevent it from happening again and there was no evidence for the Employer to rely on other than the Complainant’s unwillingness to cooperate in the section 22 investigation.

DECISION

Cause for discipline

113It was acknowledged by the Complainant that the Employer had cause to discipline him for certain of his conduct. The issue is to determine the scope of that cause and to assess whether the penalty of termination is appropriate in all of the circumstances.

114In terms of assessing the evidence I have considered that the Employer has the onus, on a balance of probabilities, to establish the allegations it relied on in support of its decision to terminate the Complainant’s employment. The Board’s statement in Keating, supra, is relevant here:

9…this case involves a grievor who was employed as an Operational Manager, the first level of management outside the bargaining unit. This Board has held that the legal standard employed by the PSGB in regards to discipline of a managerial employee is the same as in other areas of labour and employment arbitration, i.e. the disciplinary action has to be established on the balance of probabilities, on clear and cogent evidence, and viewed in the context of the job requirements and expectations of a manager, which are legitimately higher than those of the average bargaining unit employee. See Glenn Morrison v. The Crown in Right of Ontario (Ontario Human Rights Commission), December 8, 1998, PSGB #0037/94, 0037/95 (Lynk). The Supreme Court of Canada has recently affirmed that there is only one civil standard of proof, i.e. proof on the balance of probabilities, and that "evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test." The context and the serious nature of allegations and consequences are relevant, but do not change the standard of proof. See F.H. v. McDougall, 2008 SCC 53.

(emphasis added)

115Both parties referred me to the GSB Langford decision, supra, and argued that various findings by that arbitrator were persuasive. While that decision provides additional context leading up to the murder of Inmate K, I have not relied on evidentiary findings from that proceeding in making factual determinations in this case.

116At the outset, it must be acknowledged that virtually all of what the Employer argued as important in the management of a correctional facility and the risks associated with contraband and inmate misconduct cannot be challenged. Maintaining the safe and secure custody of inmates while also maintaining the safety of staff and the public and being accountable requires significant time, effort, dedication, and resources. The ISPPM details the extent to which attention is required in order to comply with best practices. That level of attention requires time and human resources. A key issue here is whether EMDC was operating in accordance with best practices as described by SOLGEN’s policies and procedures or under some lesser standard, and what if any impact the answer to that question has on assessing the conduct of the Complainant.

117As a general comment, I have some difficulty with reliance on the term ‘negligence’ in the context of an employer assessing an employee’s conduct for employment purposes, as that term presupposes a tort against the third party, not the Employer. Any issue of negligence with respect to the Complainant’s duty of care towards inmates, independently of its contractual commitment to the Employer, is an issue for the courts, not this forum. The employment relationship is contractual and is subject to contractual standards that the Employer creates and/or allows in its workplace (apart from those to which it is legally subject). In assessing the employment relationship, an employer is considering whether an employee has neglected their employment duties relative to those contractual standards set by the employer. To the extent that an employer allows known practices to exist and continue in the workplace, those practices come to reflect the contractual standard. That is why practice, subject to obvious and unreasonable risks is the test determined by Arbitrator Stephens as the appropriate measure of the workplace conduct (see paragraph 75 of the GSB Langford decision, cited below).

118The evidence before me confirms that the relevant practices at EMDC at the time did not reflect adherence to policy and procedure. Certain of the Employer’s evidence was of the “one doth protest too much” character; an attempt to try and persuade that the institution was being managed more effectively than it was.

119The Employer’s decision to terminate the Complainant’s employment was based on expectations reflecting strict adherence to policies and procedures, rather than the practices and expectations actually in effect. Its decision was also driven by the outcome, the tragic death of Inmate K.

120The fact that Sergeants are members of management and can be held to a higher standard than COs does not detract from the approach taken by Arbitrator Stephens in the GSB Langford decision with respect to the Employer’s ability to discipline for breaches of policy and procedure:

38… before an employer can discipline an employee for a violation of a policy, it must be clear that the policy is consistently enforced. This is obvious and trite labour relations law, and it is also common sense... If implementation of a written policy has lapsed, the employer is required to give a warning to all employees that the policy will once again be enforced and that breaches may lead to discipline.... It would not be appropriate to uphold discipline against an employee for a failure to adhere to a policy that has not been “consistently enforced” by the employer.

75…Employees should not be disciplined for breach of unenforced policies, except where the violation of the policy entails an obvious and unreasonable risk to safety. At the heart of the role of the Correctional Officer, indeed the entirety of that role, is maintaining the security and safety of individuals committed to Ontario’s jails. During the night, that role is largely focussed on security rounds through the units… for the CO to do a circuit of the unit and engage in a meaningful investigation of the area, including each cell, to determine to the extent possible that the people in the unit are secure and safe. A CO does not need a policy to establish or explain this purpose – it is self-evident.

76As with any task performed by an employee, there is a range of thoroughness and attention that the employee can apply in carrying out the task. When it comes to the task of ensuring the safety of other human beings held in state institutions, it is my view that the people of Ontario have the right to expect a high degree of attention from Correctional Officers. The individuals under their care are almost entirely dependant upon the CO's for their safety, and the duties of a CO must be performed with this central fact in mind. As the tragedy of the current case demonstrates, the risks to individuals in the institution can be sudden, violent and life-threatening. In addition, and to the same extent, preserving the security of the institution is important for the health and safety of the people who work there.

83I have concluded that the employees may be subject to discipline for failure to conduct adequate security tours. That being said, any discipline related to such a failure must be weighed against the employer’s failure to uphold higher and clearer performance standards in this area, given the open and well-known manner of conducting tours, the fact that the employer must have been aware that the tours were not generally adequate, and the lack of prior disciplinary action in this area.

(emphasis added)

121While acknowledging the higher standard applicable to managerial employees, this Board reached the same conclusion in its decision in Gronski, supra:

90…I have carefully considered all the case law provided by counsel. Although none of those authorities deal with facts similar to those before me, they set out the principles to be applied, which can be briefly summarized: a higher standard is expected of both health care professionals and managerial employees than other employees. Nonetheless, unless the misconduct or deficient performance is so serious as to justify summary dismissal, such employees are entitled to notice of the employer’s dissatisfaction and a chance to improve. Progressive discipline is the usual mechanism for achieving this end, but what is sufficient notice of the employer’s dissatisfaction depends on the facts of each case. As well, if the employer has condoned the conduct in issue, or unreasonably delayed in imposing discipline, the employer is generally not permitted to rely on it as the basis for summary dismissal. Further, as discussed by the Supreme Court of Canada in McKinley, cited in the appendix to this decision, the entire context of the employment of the person in question is to be considered in order to determine whether summary dismissal is proportional to the misconduct in question.

(emphasis added)

122To the extent that the Employer argued that the Complainant was not credible given his self-interest, it must be said that the Employer was and is also self-interested. This incident gave rise to more than simply an employment issue as between the Complainant and the Employer. The Employer’s conduct has also been subject to review in a variety of external forums. An inmate under its care and custody was brutally murdered.

A review of the individual allegations

Allegation #1 - You failed to respond and act on reports of brew in Unit 6 Left Cell #3 and/or the intoxication of [Inmate G] on October 31, 2013.

123This allegation is two-fold. The Employer asserted that the Complainant failed to conduct the mandatory security tour following lock-up between 8-9pm on October 31, 2013. However, the evidence does not support a conclusion that security tours after 8pm by a Sergeant were considered to be mandatory at that time or that they were being performed on any kind of regular basis by Sergeants at EMDC, at least on Unit 6. That fact was not hidden (as reviewed in paragraph 30 above) and would have been apparent to the Deputy Superintendent charged with reviewing the logbooks. The fact that logbooks for other than Unit 6 were not provided implies that a negative inference can be drawn that they would reflect a similar conclusion. The evidence concerning the memo also supports that conclusion as it was not until June 2014 when the Employer issued the directive to Sergeants that security tours at 2000 hours were “now required”. The evidence before me leads to a finding that security tours by Sergeants after lock-up were not required.

124The Complainant cannot be disciplined for failing to conduct a security tour on the basis that it was a mandatory duty when it was not mandatory at the time. Thus, any allegation that he failed to conduct a mandatory security tour between 8-9pm after lock-up is dismissed.

125The second aspect of this allegation is that the Complainant should have attended Unit 6 to make his own assessment based on CO Langford’s report. The Employer is correct that the assessment provided by ASgt. Prestage could be subject to change and reflected the state of affairs at 7pm. The Complainant also had an assessment from CO Langford. That assessment also indicated that Unit 6 was secure, although the Complainant received the further information that there was a possible brew in Cell #3 and words used giving some indication of behaviour of an inmate in Cell #3 that suggested intoxication.

126Contrary to RD Wilson’s evidence, the Complainant did not fail to respond. He responded by relying on CO’s Langford’s report that the unit was secure and that there were no issues requiring his attention. He trusted CO Langford to provide him with relevant and sufficient information and did not question CO Langford as to whether he was providing a full, or even a sufficient report. Based on the information he received, the Complainant determined that it was appropriate to leave the inmate in his cell and defer any search for a possible brew until the following day. In the absence of any requirement that he conduct a security tour, the question is whether that response reflected such a failure of judgment so as to warrant discipline.

127RD Wilson acknowledged that the nature of the information conveyed was “extremely important” as it was on that information that a Sergeant would act. The Complainant relied on the information he received from CO Langford, an experienced CO. That report was wholly deficient given the circumstances known to CO Langford. Apart from not saying anything about any of the events on Unit 6 that day, CO Langford gave no indication that Cell #3 housed more than one inmate. CO Langford’s description of the status of Unit 6 was intended to convey that no action was required on the part of the Sergeants, as any such action would have required CO Langford to remain at work, either to answer questions or to return to the unit.

128CO Langford’s report was made at approximately 7:45pm. Unlike in CO Lonsbary’s case, the evidence does not support a conclusion that the Complainant was not engaged in work during the period 7:50-9pm on October 31, 2013. Rather, there is evidence that he completed an occurrence report concerning the flooding on Level 1, Unit 1 at 8pm. His evidence that he then returned to the units on Level 1 was not contradicted by any absence of a unit log entry for that period, even though he could not recall details of his activities. Although the inmates causing the disturbance on Level 1 had been moved, there was evidence that cleanup activities continued in connection with that incident past 9pm. The issue is one of gauging priorities as between performing that work versus acting further on the report received from CO Langford regarding a possible brew and the description of inmate behaviour on Unit 6.

129In light of the evidence of practice regarding searches, I have no hesitation in finding that a report of a possible brew in Cell #3 would have resulted in a decision to defer any search to the following day and that such a decision would have been entirely consistent with considered practice at EMDC at the time. Sgt. Brydges’ evidence that “we just didn’t do it then” is entirely consistent with the lower staff coverage in the institution after 8pm and the corresponding higher security risk in conducting a search. RD Wilson testified as to all of the possible responses to a report of a brew, up to and including calling in ICIT. That listing of responses was informative for its completeness. However, it did not reflect EMDC’s actual expectations in October 2013 based on the report of a possible brew, and in that regard was highly exaggerated.

130It is only the indication of some inmate behaviour – ‘drunk” and ‘loud’, or “giddy and animated” – whatever words were used, that might distinguish this situation from simply a report of a possible brew. Could the Complainant have followed up on the report of inmate behaviour before his shift ended? Of course. Should the Complainant have followed up? Had he been acting ‘by the book’, calling or attending the unit would be expected. Security tours were not regularly being conducted and were not required, resulting in reliance being placed on CO reports that units were safe and secure after lock-up. Should CO Langford’s report have caused the Complainant to conclude that there was an obvious and unreasonable risk to safety requiring him to take additional action before the end of his shift other than to decide that a search the following day was appropriate?

131The information provided gave no indication of any of the events on the unit that day or that the subject inmates shared a cell, or even that there were two inmates in the cell. Nor was the tenor of the information conveyed so as to raise any concern. The Complainant was already aware, based on the morning meeting and his recent transfer of inmates from Level 1 to Level 3 on misconduct that there was no room in segregation. That a room in segregation was generally held open for the night shift was not contradicted. The Complainant was aware that attempting to move an inmate to another cell in the institution could be unproductive unless the inmate was causing issues on the unit and that it might also give rise to security issues during the move. CO Langford’s report did not indicate that the behaviour was causing disruption on the unit. The Complainant was not provided with the singular fact that another inmate was housed in the same cell as the inmate exhibiting the behaviour, a fact that could and would reasonably be expected to be included in any sufficient, if not fulsome, report.

132The Employer relied on Sgt. Brydges’ evidence of hearing the words “drunk” and “loud” to find that the Complainant should have responded differently. Having said that he clearly heard those words and implying a corresponding concern as a result, Sgt. Brydges apparently asked the Complainant whether medical needed to be called, indicating that he was participating in that conversation to a greater extent than his original reporting and his evidence suggested. Notwithstanding hearing the words that RD Wilson testified required a different response, Sgt. Brydges accepted the Complainant’s conclusion that a search the following day was appropriate and sufficient, even though he would potentially have to deal with any inmate behaviour over the night shift. That decision would also have left Sgt. Brydges with the understanding that the Complainant did not intend to visit the unit before the end of his shift. Any decision as to the appropriateness of a search would otherwise have been deferred until after that visit.

133The Complainant had a responsibility to act on the report received. Much of the IIR requirements arise once the existence of a brew has been established by means of a search for that contraband. The accepted practice at EMDC was to defer that determination until the search the following day. There is no evidence to support a finding that the Complainant was intentionally violating policy. As noted in the GSB Langford decision, this is not a finding that this is a best or even good practice. But the evidence establishes that it was the practice at EMDC on October 31, 2013.

134Sgt. Brydges confirmed that he made a note about a search on Unit 6 for the following day and the Night Shift IC can convey that information to the Day Shift IC at changeover or make scheduling adjustments to accommodate a search. There was no dispute that the Complainant did not raise the search at the morning meeting. There was also no reason for the Complainant to believe that Sgt. Brydges had not conveyed the relevant information to the Day Shift IC.

135The Complainant did not respond to the report of possible brew and inmate behaviour in Cell #3 other than to determine that a search the following day would be warranted. Sgt. Brydges confirmed that discussion and there is no basis on which to find that the Complainant intended otherwise. The circumstances provided to the Complainant would not and did not present as an obvious and unreasonable risk to safety or security in the context of how EMDC was being managed at the time. Absent its tragic outcome, I have significant doubt as to whether any discipline against the Complainant would have followed had his actions on October 31, 2013 become known to senior management. I would expect that CO Langford would have been disciplined for his failures to report relevant and important information, both in writing and verbally, but a decision to search the following day and the corresponding decision by the Complainant not to attend the unit that evening but relying on the CO’s report, would not have seemed untoward given the accepted practices and procedures at EMDC at the time.

136I am therefore unable to conclude that the decision of the Complainant not to call the unit or to attend the unit before he left at 9pm was so improper as to attract discipline in all of the circumstances. I have no doubt that the Complainant regrets not having attended the unit that evening. However, the Complainant exercised his judgment based on the information with which he was provided in light of the existing practices in the institution. Was there too much reliance placed on what was reported? If so, that reliance and any resulting complacency was endemic to EMDC at all levels.

137I recognize that this finding may be unpopular. Nor is it one that I make easily or without recognition of the outcome in light of the fundamental duty of correctional service regarding the care, custody, and control of those who, having been incarcerated, rely on the institution and its staff to keep them safe and secure. Had the Complainant attended or called the unit, the possibility that such intervention might have saved Inmate K’s life is a factor impossible to ignore and one that has and will trouble many, including this adjudicator. This decision should not be taken as condonation of the practices at EMDC at the time. Yet the overwhelming nature of the evidence is that the Complainant completed his work and made relevant decisions no differently from how he had done so for years and there was no indication that the Employer had considered the manner in which he worked and the quality of his decision-making to fall below expectations. Holding the Complainant to a higher standard as a managerial employee cannot and does not create an expectation that he conduct himself beyond the standards actually put into effect by the Employer. I reiterate that these practices did not reflect best practice. However, the Employer’s expectations at EMDC at the time and for whatever reasons, did not accord with written policy.

138Having regard to all of the circumstances, I find that the Complainant acted in accordance with practices established and/or condoned by the Employer in not undertaking an immediate search or otherwise responding to Unit 6 on the evening of October 31, 2013. To the extent that the Complainant exercised his judgment in making that decision that exercise was in accord with practices at the institution at the time and I am unable to find that the Complainant should have determined that there was an obvious and unreasonable risk based on the information provided to him and given the circumstances in the institution at the time. His reliance on CO Langford to provide a sufficient report was not unreasonable in the context of existing practices. Nor did the Complainant misinterpret or ignore that report. In the result, the Employer did not have cause to discipline the Complainant with respect to this allegation. This allegation is therefore not substantiated.

Allegation #2 - You failed to provide a detailed written description of all events related to the report of a brew as outlined in allegation #1, prior by [sic] the end of your shift on October 31, 2013.

139It is not apparent that condoned practice would have required an occurrence report from the Complainant on October 31, 2013. However, the fact that the Complainant had to be asked to file an occurrence report once he became aware of what had transpired on Unit 6 and was aware that there was a police investigation, is sufficient to substantiate this allegation. Occurrence reports form part of the official records of the institution and, as set out in the ISPPM – Report Writing, are to be prepared and forwarded “as soon as a serious, contentious or potentially contentious matter involving inmates and/or staff occurs” (s. 3.3). Once the murder of Inmate K was discovered, and, whether or not the Complainant was immediately aware of the names of the inmates involved, it should and would have been apparent that any and all activity on Unit 6 and/or involving Unit 6 on the evening of October 31, 2013 would come under scrutiny and that any and all such information should be reported. The Complainant was so aware by the time of his police interview on November 4, 2013.

140This allegation is therefore substantiated in part. I find that the Employer had cause to discipline the Complainant for failing to provide a written report of the events of October 31, 2013 forthwith upon learning of the incident on Unit 6.

Allegation #3 - You submitted an occurrence report regarding a brew on October 31, 2013 and an occurrence report regarding the medical alert on November 1, 2013 to yourself instead of your immediate manager (or manager who requested the report).

141This allegation was acknowledged by the Complainant. He signed his November 1 (medical alert) and November 20, 2013 (regarding a brew) occurrence reports as both the reporting officer and as the manager reviewing the report. Although the Employer argued that this constituted an attempt by the Complainant to withhold or hide information, there was no evidence that the reports were not filed and available in a timely way. The Complainant filed his October 31, 2013 report concerning the flooding on Level 1, Unit 1 in the same manner and there was no suggestion that the Complainant was attempting to hide anything in that regard. The Complainant acknowledged in his January 9, 2014 CSOI interview that this had become a habit, using an auto-fill option on the report. It was not hidden. However, it was in violation of policy and, more to the point, the Complainant ought to have been and was aware as a matter of common sense that he was not the appropriate individual to whom to submit a report for review in respect of a report that he had written.

142This allegation is therefore substantiated.

Allegation #4 - You failed to maintain logbooks in accordance with Ministry policies and procedures on October 31, 2013 and November 1, 2013.

143The Allegation Package specifies a number of alleged missing entries with respect to the unit logbooks for Level 2, Units 4, 5 and 6 for October 31 and November 1, 2013 as the responsibility of the Complainant. A number of those alleged missing entries relate to matters that occurred on October 31, 2013 prior to the Complainant becoming responsible for Level 2 at 7pm (e.g., a lockdown of Unit 6 at 4pm; whether inmates on Unit 4 remained confined to cells after dinner). Such entries were not his responsibility.

144CO Langford and Nurse Baarbe-Taylor made no log entries concerning the events that transpired on October 31, 2013 leading up to CO Langford’s report at the Shift IC Office. That evidence supports a conclusion that logs were not generally maintained in accordance with policy. The logbooks are available on the units for review and would show security tours not being conducted or a lack of information having been recorded. Those practices were open and known to the Employer. The Complainant did not make a log entry concerning the information he obtained from CO Langford. That he communicated the information he received from CO Langford to Sgt. Brydges, the Night Shift IC, who made a note of a search for the following day, reflects the practice at the time.

145The allegations that relate to the Complainant’s period of responsibility for Unit 6 on October 31, 2013 relate to his failure to log various matters based on having completed a security tour and allegations that relate to shift changeovers and 1900 hour counts. The Complainant did not conduct a security tour of Unit 6 on October 31, 2013 and so made no log entry. There being no requirement at the time to conduct a security tour as asserted by the Employer, there can be no corresponding failure to maintain a log in that regard.

146It was not apparent from the evidence who bore the responsibility for shift changeover entries, although the ISPPM – Institution Logs appears to indicate that it is the responsibility of the “employee assuming duty” (s.6.3.5) to complete the Shift Changeover Certificate. The lack of log entries regarding shift changeovers is consistent with the fact that Shift Changeover Certificates were not being completed. As evidenced by CO Langford’s departure on October 31, 2013 and the evidence before me confirming that the outgoing shift made its report verbally to the incoming shift at the elevator, it is apparent that shift changeover procedures were not being followed. The Complainant’s evidence that shift changeovers were not being done as per policy because of ongoing disputes with bargaining unit staff was not contradicted. Those procedures would have required COs to remain on their assigned unit until relieving staff arrived on the unit (extending work time). The departure from that expectation would have been known to the Sergeants, as well as senior managers charged with reviewing the logs and/or receiving the certificates for compliance purposes, or anyone observing staff at the elevator at shift change. There was no evidence of any Sergeant being disciplined or spoken to for a failure to ensure that shift changeovers were being completed according to Ministry policy and procedure until raised in the context of this incident.

147This allegation is therefore not substantiated.

Allegation #5 -You failed to properly perform the duties required of an Operational Manager by not ensuring the safe and secure operation of the institution for which you were responsible on October 31, 2013 and November 1, 2013.

148This is a general allegation and incorporates and references the specific matters raised by the other allegations. All duties for which a Sergeant is responsible operate with the goal of ensuring the safe and secure operation of the institution. A finding that the Complainant failed to perform the duties required of him does not add a component of culpability further to this allegation independently of a finding with respect to the other allegations.

149This allegation is therefore substantiated to the extent that other allegations have been so found.

Allegation #6 - You failed to cooperate during a Ministry of Correctional Services Act, section 22 Investigation, including but not limited to, refusing to provide information required for the investigation during an interview held on June 26, 2014.

150The Ministry of Correctional Services Act, RSO 1990, c. M.22 provides:

22 (1) The Minister may designate any person as an inspector to make such inspection or investigation as the Minister may require in connection with the administration of this Act, and any person employed in the Ministry who obstructs an inspection or investigation or withholds, destroys, conceals or refuses to furnish any information or thing required by an inspector for the purposes of the inspection or investigation may be dismissed for cause from employment. 2006, c. 35, Sched. C, s. 71 (2).

151The Complainant declined to participate in the second section 22 interview conducted on June 26, 2014. This allegation was acknowledged, although the Complainant sought to include the context that he declined on the advice of legal counsel, given the outstanding criminal charges.

152It is the case that by virtue of his failure to participate in the second section 22 interview and the allegation meeting, the Complainant left the Employer to make its determination without the benefit of the Complainant’s information and understanding of the events. This is not to say that the Employer could not have otherwise obtained relevant and accurate information about practices in the institution. However, based on the information it had from CO Langford and Sgt. Brydges, both of whom I am persuaded downplayed their roles, the Employer went ahead and made its decision.

153In Keating, supra, the Board summarized its conclusions as to the requirement to participate in section 22 investigations as follows:

38As I do not view the investigation carried out in this matter as a criminal or penal investigation, the answer to the question: “Did Mr. Keating have a Charter right to remain silent in the face of Inspector McGillis’ questions?” is “no”. Quite apart from the fact that the case law from the courts on this question is clear, the opposite conclusion, … would run the risk of reinforcing the Code of Silence so eloquently described in the recent decision of the Grievance Settlement Board in Ontario Public Service Employees Union (Gillis et al.) v. The Crown in Right of Ontario, (Ministry of Community Safety and Correctional Services) (May16, 2008), GSB# 2003-1520 et. al., 2008 CanLII 26249 (ON GSB). This is not a question of trying to change the culture in the institutions at the expense of managers whose legal bills are not paid by the union or the Ministry, as argued by grievor’s counsel. Rather, it is an acknowledgment that s. 22 investigations are an essential tool for dealing with many issues arising in the course of the operation of correctional institutions.

39With that said however, I accept the proposition advanced on the grievor’s behalf that failing to answer all an investigator’s questions does not necessarily justify discharge…

154That summary was not without qualification, both with respect to penalty as noted at paragraph 39 of the decision cited above, and with respect to confirming the nature of a section 22 investigation:

34… There is no doubt that an employee who may be aware of both the potential flow of information to the police, and of the fact that job loss is a possible result for failing to provide information required for a s. 22 investigation, is in a very difficult position. It might well enhance the chances that an employee and his counsel would worry less about self-incrimination if some assurances were given. There is nothing on the record which suggests that any effort was made to assist the grievor or his counsel in providing the information sought without fear of compromise of his right not to incriminate himself in regards to the criminal charges.

35… There was no evidence one way or the other about the circumstances under which information is shared by the Ministry with the police. However, if for instance, the fact is that the Ministry does not share information from employee statements taken under s.22 with the police once a criminal investigation has started, it is possible that letting someone in the grievor’s position know that fact would make it more likely the employee would answer more of the inspector’s questions. And, if it ever were the case that the inspector was acting as a criminal investigator, on behalf of the police, for instance, the case law stands for the proposition that full Charter rights apply, and that the inspector would be required to give the appropriate warnings, making it clear that the investigation was no longer a s. 22 investigation.

36On a related point, the Court made clear in R. v. Jarvis, cited above, that although simultaneous regulatory and criminal investigations may continue, the criminal or penal investigators are not permitted to avail themselves of information obtained from a regulatory audit obtained after the commencement of the criminal or penal investigation. This supports the argument advanced by counsel for the Attorney General, that the grievor’s protection lay in the area of what use could be made of any statements he made in the criminal trial, in light of the doctrines of use and derivative use immunity, not because of any right to remain silent in the s. 22 investigation.

155The Employer argued that it required information from the Complainant in order to ensure that such an incident not happen again and that it was entitled to proceed with the investigation. RD Wilson testified that the information was necessary to respond to legal proceedings, and he referenced both civil and criminal proceedings and an inquest. That reference to criminal proceedings raises a concern as to whether the distinction between a section 22 investigation and acting as a Crown agent in the criminal matter is maintained or understood. That concern arises even while the subject employee’s protection against the use of information obtained in an interview, convened pursuant to section 22 and conducted accordingly, is through the courts and not through declining to participate.

156Section 22 drives home the expectation for honesty and integrity on the part of those engaged in correctional service in the express requirement to take responsibility and be accountable for one’s actions and trust that those actions will be assessed according to the appropriate standard. That expectation applies to everyone engaged in correctional service and requires that the Employer assess its employees with that same level of honesty and accountability with respect to its own actions and having regard to actual standards and expectations so as to engender and maintain that trust. However, had the Complainant fully participated in the s.22 investigation and/or at the allegation meeting about the events of October 31, 2013 and the reasons for his decision not to attend Unit 6, the evidence of actual practice might well have come to light sooner with perhaps different attendant results.

157The Complainant’s decision not to participate was not an instance where the Code of Silence had any bearing. The Complainant had earlier cooperated and wished to cooperate. He acted on the advice of his then criminal counsel and the transcript of the interview confirms that counsel requested but was denied a short adjournment to consider the Employer’s position. The Complainant had been charged with a serious criminal offence with a potential 7 year sentence on conviction and took the position solely for the purpose of trying to ensure that his rights in that forum would not be jeopardized. The Complainant was aware that the Employer was also facing potential liability arising from the same incident and that it would be in the Employer’s interest for the Complainant to be found to have been acting outside the scope of his employment. Unlike in Keating, supra, where the criminal charges involved off-duty conduct, here the criminal proceedings arose as a direct result of alleged misconduct in the course of employment.

158Was the Complainant entitled not to participate in the section 22 interview on June 26, 2014? Based on the evidence, the answer is no. Nor did the Complainant assert in this hearing that he was entitled not to participate. He acknowledged that the Employer had cause to discipline him for declining to participate. However, the circumstances outlined above are relevant for purposes of assessing the appropriate penalty.

159This allegation is therefore substantiated.

Summary re cause

160Allegations #3 and #6 have been established. Allegation #2 has been established in part. Allegation #5 is therefore established to that same extent. Allegations #1 and #4 have not been established.

Appropriate Penalty

161Having determined that the Employer has established certain of the allegations, it is the case that the Employer had cause to discipline the Complainant. The remaining issue is whether termination from employment is the appropriate penalty. The factors to be considered in assessing the appropriate disciplinary penalty for a managerial employee were reviewed in Keating, supra, as follows:

66…There are a number of non-exhaustive lists of criteria in cases such as Re United Steelworkers of America, Local 3257 and the Steel Equipment Co. Ltd. (1964), 1964 CanLII 984 (ON LA), 14 L.A.C. 356 (Reville), Wm. ‘Scott & Company Ltd [ 1977] C.L.R.B.R. 1 (Weiler) and Canadian Broadcasting Corporation and CUPE, (1979)1979 CanLII 4015 (CA LA), 23 L.A.C. (2d) 227 (Arthurs). These are convenient summaries of significant and appropriate considerations for the exercise of arbitral discretion, which I view in the same light as the following quotation from the CBC case, cited just above, at p. 231:

... these factors, while helpful, are not components of a mathematical equation whose computation will yield an easy solution. Rather, they are but special circumstances of general considerations which bear upon the employee's future prospects for acceptable behaviour, which is the essence of the whole corrective approach to discipline. How well or badly the grievor had behaved in the past is some indication of his likely future behaviour. How aggravated or trivial was the offence is some clue to the risks the employer is being asked to run if the grievor is reinstated in employment. And how seriously the discharge will affect the grievor is at least one (but not the only) measure of whether a reasonable balance is struck between the other two considerations

Although any of the lists can be used, it is convenient to use the one set out in the Wm. Scott case, which starts with the central issue of how serious the behaviour is, and which the PSGB has previously referred to as useful in reviewing discharges for cause. See, for instance: Hardy v. Ontario (Ministry of Health), 1997 CanLII 10280 (ON PSGB) (Leighton). Those are the following:

(i) How serious is the immediate offence of the employee which precipitated the discharge?

(ii) Was the employee’s conduct premeditated, or repetitive; or instead, was it a momentary and emotional apparition, perhaps provoked by someone else?

(iii) Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history?

(iv) Has the employer attempted earlier and more moderate forms of corrective-discipline of this employee which did not prove successful in solving the problem?

(v) Is the discharge of this individual in accord with the consistent policies of the employer, or does it appear to single out this person for arbitrary and harsh treatment?

90… Other considerations appropriate to take into account on the question of whether discharge was excessive include:

• the economic impact of discharge in view of the grievor's age, personal circumstances, etc.

• the frank acknowledgement of his misconduct by the grievor;

• future prospects for likely good behaviour

• The remaining Millhaven criteria:

• Whether the grievor’s behaviour renders the employee unable to perform his duties satisfactorily

• whether the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him

• whether the behaviour places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.

162The Employer has not established that it had cause to discipline the Complainant with respect to his response to the report of a possible brew and/or intoxication of Inmate G on October 31, 2013. This was a fundamental allegation against the Complainant and was a major factor in determining that discharge was the appropriate penalty.

163In making his decision, RD Wilson accepted information consistent with his expectation that security tours were mandatory, accepting the reports of the Security Manager and the ITM that security tours by Sergeants between 8-9pm were being conducted in practice. RD Wilson acknowledged that he did not review logbooks or inquire further concerning the practices at EMDC.

164RD Wilson concluded that the Complainant had engaged in intentional or wilful complacency, a view that negatively affected his assessment of the Complainant. However, the Complainant did not hide the fact that he did not call or attend the unit or conduct a security tour on October 31, 2013. He did inappropriately fail to submit an occurrence report with respect to the information he had concerning Unit 6 until being subsequently asked. He participated in the police interview on November 4, 2013.

165The only conduct that was established as premeditated was the Complainant’s decision to decline to participate in the second section 22 interview. That decision is serious. As noted above and in Keating, supra, it was also not without consequence. It fueled the Employer’s concern about the Complainant’s role in the events of October 31, 2013. The Complainant acknowledged that he understood there would be consequences for declining to participate, albeit having made the decision based on the advice of counsel.

166The Complainant had 29 years of service with no discipline and had received a 20-year exemplary service award. RD Wilson acknowledged that the Complainant’s handling of the Level 1 incident on October 31, 2013 had been appropriate. It is the case that the Complainant expressed his lack of trust in the Employer. However, there was no indication of any kind that the Complainant harboured any intention or interest in undermining the Employer should he be returned to work. There was no evidence to suggest that the Complainant would not conduct himself professionally, in accordance with the Employer’s current expectations were he returned to work, or that a more moderate form of discipline would not be successful in having the Complainant model his behaviour in accordance with current Employer expectations. Absent such concerns, that lack of trust does not reflect an irreparable employment relationship. If anything, it is more likely to ensure greater compliance with policy and procedure on the part of both the Complainant and senior management.

167Nor is it likely that others would be unwilling to work with the Complainant were he to be reinstated. His experience has likely been a wake-up call for many as to the potential risks, and the need for greater vigilance in correctional service with respect to both inmates and staff. He would also not be placed in the same situation as he would no longer be required to cover two levels between 7-9pm given the increased managerial staffing. He may not trust COs reporting to him to the same extent, but again, that can act against institutional complacency to ensure consistent implementation and enforcement of policies and procedures.

168As compared with its decision regarding the Complainant, I am troubled by the Employer’s imposition of a 15-day suspension against Sgt. Brydges. Sgt. Brydges was found to have conducted a security tour on Unit 6 during the night but failed to address a covered light in Cell #3. There appeared to be no dispute that the Shift IC’s nightly round was mandatory. However, it was deficient. Nor did Sgt. Brydges make any inquiry of the COs on Unit 6 while being aware that the report of possible brew and identified inmate behaviour originated there. The Employer gave no weight to the role of Shift IC between 7-9pm and relied on the assertion that no one onsite had overall responsibility for the institution during that period. Yet CO Langford reported to the Shift IC intentionally. Sgt. Brydges acknowledged that he made a note of the need for a search of Unit 6 the following day. It was not contradicted that the need for a search was something regularly communicated as between outgoing/incoming Shift ICs. While the Complainant was responsible for Level 2 between 7-9pm on October 31, 2013, the evidence does reflect some lack of clarity regarding the assigned responsibilities as between the Sergeant and the Shift IC. That has since been rectified by the increase in both level manager staffing and the introduction of the Staff Sergeant’s position, but I am not inclined to ignore the level of discipline imposed on Sgt. Brydges in considering the appropriate penalty here.

(Although not part of the consideration above, I note that while the Employer urged reliance on the finding in the GSB Langford decision that CO Langford’s report transferred a significant amount of responsibility to the Complainant, that finding stated that responsibility transferred “from Langford to Jurkus and Brydges” (para. 123 of the GSB Langford decision).

169The impact of termination on the Complainant has been particularly significant, in light of his personal circumstances that include the criminal proceedings. The Complainant was only a few years away from retirement and his inability to make a living as a result of having to face both the criminal charges without any support from his Employer of 29 years and the fact of being terminated from employment following the death of an inmate have been profound.

170The Complainant acknowledged that certain of his actions warranted discipline. The Employer determined that the Complainant refused to take responsibility for his conduct. I disagree. In my view, the Complainant was attempting to provide context to the circumstances, as discussed in the GSB Langford decision:

87…I do not find it improper that the grievors relied on the history of the practice in the workplace to explain why they did what they did, in response to allegations such as the failure to complete a shift change certificate, or the way they made use of the logbook. As set out above, I have agreed with the grievors and the union on many of these points. I did not perceive such evidence as an attempt to blame management, but as part of a reasonable attempt to provide context around the discipline imposed on them.

171The Employer’s unwillingness to consider context suggests a greater interest in penalizing the Complainant than assessing whether the employment relationship has been irreparably harmed. Furthermore, it is not appropriate in the circumstances to characterize the Complainant as complacent unless the Employer is willing to adopt that characterization for itself. There was no evidence to suggest that the practices ongoing at EMDC were anything other than long-standing and well-known by all. Sergeants are frontline managers. They do not set policy or the tone in an institution.

172I am satisfied that discharge was an excessive penalty in all of the circumstances, including that one of two main allegations against the Complainant was not made out on the evidence.

173The Employer argued that even if reinstatement was appropriate, no compensation should be ordered given that, by failing to participate in the second section 22 interview, the Complainant left the Employer to make its decision without his input, and that typically, suspensions pending criminal proceedings are without pay.

174On the first point, the decision of the Complainant not to participate in the second section 22 interview did not preclude the Employer from ascertaining the practices at the institution at the time and assess those in the context of the Complainant’s conduct. RD Wilson was aware practices were an issue and inquired about them. However, he effectively accepted evidence that was either hearsay or was not tested, and in any event, was inclined to focus on the strict application of policy, given the various pressures facing the Employer. At the same time, the Complainant did nothing to assist the Employer in obtaining better information.

175As to the assertion that suspensions pending the outcome of criminal charges are typically unpaid, I was provided with the decision in Keating, supra. The Complainant’s criminal proceedings took almost six years to be resolved. While he was no doubt involved in decisions that contributed to that length of time, the charges arose from actions he undertook in the course of his employment and on behalf of the Employer and for which he was acquitted after a jury trial. There is an element of benefit to the Employer in that acquittal. There is also an argument to be made that, following an acquittal for conduct occurring in the course of employment and on behalf of the Employer, the Complainant is entitled to be compensated for time lost that can be attributed to those charges being determined.

176Keating, supra, involved criminal proceedings arising as a result of off-duty conduct. In terms of criminal charges such as theft or fraud where the employer is also the victim, I would agree that any suspension in that context would be, absent exceptional circumstances, unpaid. However, the Employer is not a victim here; not in the context of the allegation that resulted in the criminal charge. That charge was failing to provide the necessaries of life and was directed at the Complainant’s conduct reflected in Allegation #1. Nor was the Employer an innocent bystander concerned that its reputation and business would be negatively affected by the conduct of one of its employees “going off on a frolic of his own”. The Employer’s decisions over a long period of time to allow the practices at EMDC to develop and become entrenched contributed significantly to the fact that the Complainant faced criminal charges.

177Apart from any other, it is for that reason that I am persuaded that compensation is appropriate as the Employer ought to be required to share the burden of its actions (or inactions). I have considered whether that compensation ought to predate the date of acquittal in the circumstances and am of the view that such argument may have merit. However, I have balanced that consideration against both the Complainant’s responsibility regarding the decision not to participate in the s. 22 investigation, the period of time taken to release this decision, time for which the Complainant will be compensated, and the likelihood of the Complainant having otherwise retired during this period. Overall and on balance, I am persuaded that the following order is appropriate.

178I therefore find and direct as follows:

Disciplinary record:

1. The Complainant is to be reinstated to employment as a Sergeant effective immediately. His record will reflect a 1-year disciplinary suspension from September 3, 2014 until September 2, 2015. This period of suspension arises as a result of those allegations found to have been established by the Employer. The most significant factor in arriving at this length of suspension is the decision of the Complainant to decline to participate in the second section 22 interview and, in conjunction with the limit on compensation ordered below, should act as a sufficient deterrent to others contemplating a similar decision.

Compensation:

2. The Complainant is to be compensated by the Employer for all wages and benefits lost (subject to mitigation) as of February 6, 2019, the date of his acquittal, going forward.

3. The Complainant is also entitled to full recognition for ongoing service with the exception of a period of unpaid leave, that being the period between September 3, 2015 until February 5, 2019 inclusive.

179I will remain seized with respect to any issue arising out of the interpretation and/or implementation of this award.

180This proceeding has given witness to the secondary effects of Inmate K’s murder and the profound impact it has had. The death of Inmate K has weighed on this determination throughout and the conclusions ultimately reached here should not be taken as suggesting that Inmate K’s murder in custody was not preventable. That outcome can only have resulted in profound grief for his family and friends. While these proceedings can provide little solace, I offer my sincerest sympathy to Inmate K’s family and friends for their loss.

181This Complaint is hereby allowed in part.