PSGB# P-2018-3802

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Barnes

Complainant

• and -

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

Employer

BEFORE

Andrew Tremayne

Vice-Chair

FOR THE COMPLAINANT FOR THE EMPLOYER

Patrick Barnes (until March 30, 2021) Sandeep Bandhu (after March 30, 2021) Caroline Cohen

Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

October 15, 2020; November 29, 30, 2021; January 10, 31 and February 8, 2022

Decision

1This decision deals with the complaint of Patrick Barnes, who is contesting a 2-day suspension that he received on January 11, 2019. The suspension was for two separate incidents: one in Nov. 2016 and the other in June 2017. Sgt. Barnes has been employed by the Ministry of the Solicitor General (the “Ministry” or the “Employer”) since 2001, and he has been a full-time COM 1 (Sergeant) since 2012. At the time of both incidents, he was working in the Admissions and Discharge (A&D) area of the Ottawa-Carleton Detention Centre (OCDC) as the A&D Manager.

2The two incidents relate to the proper handling of inmates when they are admitted to or released from an institution. In November 2016, inmate O was released from the OCDC when he should not have been. He returned to the institution voluntarily less than 12 hours later. In June 2017, inmate S was admitted to the OCDC and held for about 24 hours when he should not have been.

3The Employer says that in both cases, Sgt. Barnes did not follow established guidelines and proper procedures for processing inmates and he was negligent in the performance of his duties. While other A&D staff also made mistakes, the Employer asserts that, as the A&D Manager, Sgt. Barnes should be held to a higher standard.

4Sgt. Barnes says he followed all established guidelines and proper procedures. For inmate O, Sgt. Barnes had started to complete the inmate release checklist, noticed something wasn’t right, but was called away from A&D to deal with another matter. Sgt. Barnes told the CO he was working with to hold inmate O when he was called away. He returned to A&D sometime later, but inmate O had been released. For inmate S, Sgt. Barnes admits that he did not check the back of the Warrant documents where there was information about inmate O’s intermittent schedule that would have shown he was not supposed to report to OCDC that weekend. In any event, says Sgt. Barnes, Inmate S may not have been scheduled to serve his intermittent sentence on the weekend he was admitted, but he was nevertheless unlawfully at large (UAL) because he had failed to show up the previous weekend, and it was appropriate for an inmate who is UAL to be held. For these and other reasons, says Sgt. Barnes, the Employer did not have just cause to impose discipline.

5Sgt. Barnes also argues that there was a significant and unreasonable delay between the incidents and the Allegation Meetings and that there was additional delay between the Allegation Meetings and the date he received the 2-day suspension. Overall, the Complainant asserts that the delay by the Employer in imposing discipline was so lengthy that it constitutes an abuse of process, and the discipline should be void on that basis alone. The Employer replies that delays are not uncommon in these matters, and they were partly caused in this case because the Employer needed to wait for CSOI investigations. In any event, says the Employer, there is no evidence of actual prejudice to Sgt. Barnes as a result of the delays.

6The first issue for the Board to determine is whether the Employer’s delay in dealing with these matters is sufficient to void the discipline. If it is not, the second issue is whether Employer had just cause to discipline Sgt. Barnes and, if so, was the level of discipline that he received appropriate. As in all cases involving discipline matters, the Employer bears the onus of proof on a balance of probabilities. Before dealing with the issue of delay, it is helpful to set out the events that led the Employer to impose the 2-day suspension on Sgt. Barnes.

Chronology of Events

First Incident

7Inmate O was admitted to the OCDC on Friday, Nov. 11, 2016. He was admitted on a Remand Warrant with a court date on Monday, Nov. 14, 2016. At the same time, inmate O had been serving an intermittent sentence (for an entirely different matter) that was scheduled to end on Nov.13, 2016. He was released from the OCDC on the morning of Nov. 13, 2016, because A&D staff thought that inmate O had completed his intermittent sentence. Although they were correct that his sentence was complete, A&D staff working that day did not know about the Remand Warrant, which required O to be held until he was taken to Court on Nov. 14, 2016. Information about the Remand Warrant was discovered later on Nov. 13, 2016, inmate O was contacted, and he agreed to return to the OCDC.

8There was a Local Investigation into the incident (known as a “wrongful release”) soon after it happened. The Local Investigation Report (LIR) made findings concerning Sgt. Barnes, including, among other things, that he did not follow several Ministry policies and procedures when he improperly released Inmate O and that he did not complete the Inmate Release Checklist before releasing him.

9According to the Employer, all incidents involving wrongful releases are automatically sent to CSOI, so Senior Management of OCDC requested a CSOI investigation into the matter on July 6, 2017. The CSOI investigation was completed on Nov. 8, 2017, and the CSOI report was forwarded to the Regional Office on March 6, 2018. CSOI was satisfied with the findings of the Local Investigation.

10The Employer sent a letter dated June 27, 2017 to Sgt. Barnes inviting him to attend an Allegation Meeting on July 6, 2017. Although more will be said about this Allegation Meeting, Sgt. Barnes heard nothing more about the matter after the Meeting until he received a disciplinary letter of suspension dated January 11, 2019 imposing a 2-day suspension for this incident and the second incident, which is outlined below.

11The Employer alleges that A&D staff, and particularly Sgt. Barnes, as the A&D Manager, ought to have known about the Remand Warrant and should not have released inmate O on Nov. 13, 2016.

12Summary of relevant dates for the First Incident:

a. Incident (Inmate O): Nov. 13, 2016

b. Notice of Allegation letter: June 27, 2017 - 7.5 months post-incident

c. Allegation Meeting: July 6, 2017 – 8 months post-incident

d. CSOI investigation requested: July 6, 2017 – 8 months post-incident

e. CSOI investigation completed: Nov. 8, 2017 – 12 months post-incident

f. CSOI report to Regional Office: March 6, 2018 – 16 months post-incident

g. Letter of Discipline: January 11, 2019 – 26 months post-incident

Second Incident

13Inmate S received a 90-day intermittent sentence on May 29, 2017. He was supposed to report to the OCDC to begin serving that sentence on Saturday, June 3, 2017, but he did not. For some reason, his name did not appear on the “Weekend Intermittent” list of inmates who were supposed to be at OCDC for that weekend, so he was not missed. More importantly, because he was not missed, he was not declared “Unlawfully at Large” (UAL). It later turned out that inmate S thought he was to begin serving his sentence the following weekend, on June 10, 2017.

14On Monday, June 5, 2017, the Records Department at OCDC discovered that inmate S was supposed to have reported to the institution on Saturday, June 3, 2017. Although more will be said about this below, OCDC staff did not take proper steps to address the situation in the immediate aftermath of this discovery. Sgt. Barnes had no involvement in the mistakes that were made at this time.

15On the morning of Saturday, June 10, 2017, inmate S arrived at OCDC. His name did not appear on the “Weekend Intermittent” list of inmates who were supposed to be at OCDC for that weekend, but he insisted that his lawyer had told him he was supposed to be there. OCDC staff, including Sgt. Barnes, checked his name in the database, saw that he was serving an intermittent sentence, and admitted him.

16The next day, staff realized that inmate S should not have been admitted because although he was serving an intermittent sentence, he reported to the OCDC on the wrong weekend. Inmate S was released in the afternoon of June 11, 2017 soon after it was discovered that he should not have been kept in custody.

17There was a Local Investigation into the incident (known as a “wrongful hold”) soon after it happened. The Local Investigation Report made findings concerning Sgt. Barnes, including, among other things, that he did not follow several Ministry policies and procedures when he improperly admitted inmate S.

18According to the Employer, all incidents involving wrongful holds are automatically sent to CSOI, so Senior Management of OCDC requested a CSOI investigation into the matter on July 12, 2017. The CSOI investigation was completed on Sept. 20, 2017 and the CSOI report was forwarded to the Regional Office on Sept. 22, 2017. CSOI was satisfied with the findings of the Local Investigation.

19The Employer sent a letter dated April 9, 2018, to Sgt. Barnes inviting him to attend an Allegation Meeting on April 17, 2018. Although more will be below about this Allegation Meeting, Sgt. Barnes heard nothing more about the matter after the Meeting until he received a disciplinary letter of suspension dated January 11, 2019, imposing a 2-day suspension for this incident and the first incident.

20Summary of relevant dates for the Second Incident:

a. Incident (Inmate S): June 10, 2017

b. CSOI investigation requested: July 12, 2017 – 1 month post-incident

c. CSOI investigation completed: Sept. 20, 2017 – 3 months post-incident

d. CSOI report to Regional Office: Sept. 22, 2017 – 3 months post-incident

e. Notice of Allegation letter: April 9, 2018 - 10 months post-incident

f. Allegation Meeting: April 17, 2018 – 10 months post-incident

g. Letter of Discipline: January 11, 2019 – 19 months post-incident

Overview and Evidence

21Sgt. Barnes has been employed by the Ministry since 2000, first as a CO and then as a Sergeant. At the time of both incidents, he was assigned to A&D, where he was the Manager. At the hearing, many documents were filed on consent, including Local Investigation Reports (LIRs) for both incidents and CSOI Investigation Reports for both incidents. The CSOI investigations were “paper reviews” in both cases, such that CSOI inspectors received and reviewed the LIRs for the incidents but did not conduct a fresh, independent investigation. In other words, CSOI did not conduct any interviews but relied on the contents of the LIRs, which included many Occurrence Reports, Inmate Incident Reports, and other documents. Copies of notes from the allegation meetings were also filed, as were copies of various Ministry policies.

22Two witnesses testified on behalf of the Employer: CO Diotte, who was working in A&D with Sgt. Barnes at the time of the first incident; and Mike Wood, the Superintendent of OCDC at the time of both incidents and at the time of the hearing. Sgt. Barnes gave evidence at the hearing. Sgt. Frank Nolet, who acted as Sgt. Barnes’ advisor/support person at both Allegation Meetings also testified.

23With the exception of CO Diotte and Sgt. Barnes, none of the authors of the many ORs that were filed in connection with both incidents testified at the hearing. The authors of the LIRs did not testify; nor did the CSOI inspectors who “signed off” on the review of the LIRs; nor did Regina Bloskie, the Deputy Superintendent, Administration of OCDC at the time of the incidents and the Senior Manager who conducted both Allegation Meetings and who was the author of the Letter of Discipline; nor did the Human Resources Advisor who took notes in those meetings.

24While the many documents written by these individuals were filed on consent and are therefore properly before the Board, the documents are nevertheless hearsay, and caution must be exercised in deciding what weight should be given to them. At the same time, many of these documents, and particularly the ORs, were written by individuals who were much closer to the events that took place than, for example, Sgt. Wood. Most of the ORs and both LIRs were written very soon after the incidents occurred. The evidence in these documents is important because we are dealing with incidents that took place in late 2016 and mid-2017 particularly when the hearing is taking place 4-5 years later and the authors of most of these documents did not testify.

25Sgt. Barnes retained a good recollection of the events that took place. Although the work in A&D is often repetitive and can involve processing hundreds of inmates each month, the work also requires great attention to detail. A&D staff also rely extensively on the work performed by staff in Records. There is little doubt that the two incidents were unusual. The constellation of events that led to the wrongful release of Inmate O and the wrongful hold of Inmate S is unlikely to be repeated. It is also clear that some Ministry employees other than Sgt. Barnes made mistakes, and that most of those were mistakes of omission rather than commission.

26My comments and findings with respect to the two incidents as well as the Employer’s investigation of those incidents leading up to the January 11, 2019 Letter of Discipline are as follows.

First Incident

27Inmate O arrived at the OCDC on Friday, Nov. 11, 2016. He arrived with a Remand Warrant requiring him to be held in custody until Monday, Nov. 14 at which time he was to return to Court. Inmate O was also serving an intermittent sentence for an unrelated matter, and he was scheduled to serve the last part of that sentence the same weekend and be released on Sunday, Nov. 13.

28By way of background, when an inmate is due to be released, the Records Department at OCDC prepares a “Release Package” which includes an Inmate Release Checklist. There is no dispute that at the time of the incident, staff in the Records Department were not scheduled to work on evenings, weekends, or statutory holidays and that Nov. 11 was a statutory holiday. Anticipating that inmate O would be released on Sunday, Nov. 13 (because he would have completed his intermittent sentence on that date), the Records Department prepared inmate O’s release package on Thursday, Nov. 10. At the time of the incident, the paperwork for inmates being admitted to OCDC when the Records Department was not open (i.e., weekends and statutory holidays) is placed in a drawer in A&D, to be checked by Records Department staff the next time they come into work.

29When inmate O arrived at OCDC on Nov. 11, CO Turner, who was working in A&D, processed inmate O’s admission using the Offender Tracking Information System (OTIS). CO Turner noticed that inmate O was already in the system, because he was in the process of serving an intermittent sentence. CO Turner “unscheduled” or cancelled inmate O’s intermittent schedule and admitted him to OCDC on the new charges in the Remand Warrant. It is not disputed that this was a mistake, and that CO Turner should have admitted inmate O as a new inmate when he arrived and created a new entry in OTIS based on the Remand Warrant.

30After inmate O was processed in A&D, he was given regular inmate clothing and moved to Dorm #3, where regular inmates are housed. It is not disputed that inmates serving intermittent sentences are normally housed in Dorm #2. The Remand Warrant and other documents that had accompanied inmate O when he arrived at OCDC were placed in a drawer in A&D, following the usual practice at that time.

31Sgt. Barnes was working as the A&D Manager on Sunday, Nov. 13. He was also covering another area of the institution known as “the Pod” because the institution was short-staffed that day. CO Diotte, who had received training in A&D but seldom worked there, was assigned there because the institution was short-staffed. Among other things, CO Diotte was in charge of “the Book” which keeps a running count of all inmates housed at OCDC. This was something CO Diotte had rarely done, even when he had worked in A&D.

32The A&D Manager is expected to review the Release Package for all inmates who are being released. The Release Package includes a printout of the inmate’s OTIS Client Profile and other documents, as well as an Inmate Release Checklist. The A&D Manager is expected to complete and sign the Checklist before the inmate is released. According to the Release Package prepared for inmate O, he was scheduled to be released because he had completed his intermittent sentence.

33Sgt. Barnes and CO Diotte were reviewing inmate Release Packages at the start of their shift. It is likely that the Inmate Release Checklist for inmate O had been partially completed and signed by staff in the Records Department, which was not unusual. Sgt. Barnes went through inmate O’s Package using his own system (or “signature method”, as he termed it). This includes thoroughly verifying that all of the information that appears in different places in the documents, namely the OTIS Client Profile, matches up and is correct, and looking carefully for any inconsistencies or anomalies. Using a pen, Sgt. Barnes marks a strikethrough for information that he has verified and circles information if he identifies a problem, and he did this with inmate O’s Release Package. At some point, Sgt. Barnes also signed the Inmate Release Checklist, although it is not clear when.

34As they continued to review inmate O’s Release Package, Sgt. Barnes noticed that inmate O’s housing location was Dorm #3 and not Dorm #2, where intermittent inmates would usually be housed. It was unusual for an inmate serving an intermittent sentence to be housed in Dorm #3, and Sgt. Barnes and CO Diotte realized this. Sgt. Barnes circled the part of the OTIS Client Profile showing where inmate O was being housed, indicating that he had identified a problem. He paused his review of inmate O’s Release Package at that point. He did not proceed further because there are no strikethroughs (or circles) on any of the later sections of the OTIS Client Profile, including the section that shows the aggregate number of days that inmate O had served (“Agg. Days”) or the date inmate O was to depart (“Int. D.P.D.”). Then, they were interrupted by escort staff arriving in A&D and Sgt. Barnes received a call from the Pod because something had arisen that required him to leave A&D and go there.

35What happened next was hotly disputed at the hearing. In the OR that he completed at the end of his shift on Nov. 13, 2016, Sgt. Barnes wrote that he told CO Diotte that he would “investigate further after they found out where [inmate O] was really housed.” At the Allegation Meeting on July 6, 2017. Sgt. Barnes said that he told CO Diotte that he had to go to the Pod and to “hold him until I get back” or “don’t release him until I investigate” (or words to that effect), which was also Sgt. Barnes’ testimony at the hearing. Sgt. Barnes also says although he may have signed the Checklist, he did not give inmate O’s Release Package to CO Diotte or to any other staff in A&D.

36The Employer argues that there is insufficient evidence to support a finding that Sgt. Barnes gave clear direction to CO Diotte to hold inmate O and not release him until he [Sgt. Barnes] returned. The Employer notes that Sgt. Barnes did not mention that he had told CO Diotte to “hold him until I get back” or said “don’t release him until I investigate” (or words to that effect) in the OR that he wrote at the end of his shift on the day of the incident, nor did he mention it in the LIR, which he prepared soon after the incident. Rather, Sgt. Barnes raised this for the first time in the July 6, 2017 Allegation Meeting. When he was cross-examined on these points, Sgt. Barnes replied that when he wrote the OR, he had other priorities and was focused mainly on dealing with the situation and getting inmate O to return to OCDC, because, at that point, he was UAL.

37CO Diotte completed an OR about the incident on Dec. 1, 2016. It says only that he received the Release Package for inmate O from Sgt. Barnes, that inmate O had completed his intermittent sentence, and that he (CO Diotte) “released inmate O according to the information I had.” On July 31, 2017, CO Diotte filed another OR about the incident. It is identical to the Dec. 1, 2016 OR except for one sentence added at the end, which reads: “I don’t recall any conversations with Sergeant Barnes about investigating why [inmate O] was housed in a different area then [sic] the intermittent inmates.”

38At the hearing, CO Diotte testified that all of the appropriate signatures were on the Inmate Release Checklist when he released inmate O, although he could not recall whether Sgt. Barnes had signed it. Nor could he recall Sgt. Barnes telling him to hold inmate O or not to release him. CO Diotte testified that he had made a mistake when he released inmate O but would not have done so if all of the signatures had not been on the Checklist. He testified that he wrote and filed the July 31, 2017 OR after he was asked by someone in Senior Management if he remembered having a conversation with Sgt. Barnes about investigating why inmate O was housed in a different area.

39I have some concerns that CO Diotte’s evidence is not fully reliable on this point, although this is mainly because CO Diotte was not asked until more than 8 months after the incident whether he recalled having a discussion with Sgt. Barnes about investigating why inmate O was housed in a different area than the intermittent inmates. It is true that CO Diotte did not mention this in his first OR, but he did not prepare that document until more than two weeks had passed after the incident, which was itself an unusual delay. Moreover, CO Diotte had rarely worked in A&D, so it is unlikely that he was fully aware of the attention to detail required to review a Release Package thoroughly before an inmate is released. Therefore, he may not have been sensitive to the need to confirm that all of the information in the OTIS Client Profile lines up (or “balances”, to use Sgt. Barnes’ expression). In other words, the importance of investigating whether inmate O was actually being housed where the OTIS Client Profile said may not have struck CO Diotte as important at the time.

40Sgt. Barnes’ recollection of events was clear, and he was able to recall how he reviewed inmate O’s Release Package. He explained the notations that he made on the OTIS Client Profile using his “signature method”. It may be technically correct to assert that Sgt. Barnes did not mention specifically that he used the words “hold” or “do not release” in reference to inmate O until the Allegation Meeting. However, his Nov. 13, 2016 OR states, “I said I would investigate further after we found out where [inmate O] was really housed.”

41Sgt. Barnes, as an experienced A&D Manager, understood that inmate O’s housing location posed a problem that had to be investigated before inmate O could be released. I have little trouble finding that Sgt. Barnes told CO Diotte what he said he told him in his Nov. 13 OR. Whether CO Diotte fully heard or absorbed the significance of this statement is another matter, and in any event, he does not recall it. It is also very likely that Sgt. Barnes, who was working with a less experienced co-worker on the day of the incident, also used the words “hold” or “do not release” when speaking to CO Diotte in reference to inmate O and that he probably told CO Diotte to “hold him until I get back” or “don’t release him until I investigate” (or words to that effect). Whether CO Diotte fully heard this direction is another matter, and in any event, he does not recall it.

42Returning to the events of Nov. 13, Sgt. Barnes received a call from the Pod and left A&D and went there. Sgt. Barnes does not recall why he had to go to the Pod, other than there was a problem and that he was covering that area in addition to A&D (because the institution was short-staffed that day), so he had to go. There is no other evidence before the Board about what happened in the Pod that day. In any event, the incident in the Pod took longer to resolve than expected, and Sgt. Barnes got side-tracked. He forgot to return to A&D to check into the situation with inmate O. He candidly admitted this in his OR and in the Allegation Meeting. In the meantime, at approximately 9:30 am, CO Diotte released inmate O along with the other daily releases.

43Sgt. Barnes was not in A&D when inmate O was released from OCDC. It is unclear when Sgt. Barnes left the Pod and/or returned to A&D, but it is clear that he forgot about inmate O until much later in the day, at roughly 18:30h. Shortly before that time, Sgt. Barnes had asked CO Blanchette to prepare the Inmate Court Docket for the following day, which was Monday, Nov. 13, 2016. CO Blanchette reviewed all of the Remand Warrants and noticed one for inmate O. CO Blanchette discovered that inmate O had been released from OCDC earlier that day because he had satisfied his intermittent sentence. CO Blanchette asked Sgt. Barnes about inmate O, and at that moment, Sgt. Barnes remembered that he was supposed to look into inmate O’s situation earlier in the day. Steps were taken to contact inmate O, who was now in Scarborough. He agreed to return to OCDC for his Monday court date.

First Incident – Allegation Meeting

44The Employer sent a letter dated June 27, 2017 to Sgt. Barnes inviting him to attend an Allegation Meeting on July 6, 2017. The letter set out three allegations:

• That on Nov. 13, 2016, you violated the Ottawa-Carleton Detention Centre Standing Orders and a number of Ministry policies, including but not limited to The Ontario Correctional Services Code of Conduct and Professionalism Policy (COCAP) - Institutional Services Policies and Procedures (Discharge and Improper Release) when you improperly released [inmate O] from custody.

• That on Nov. 13, 2016, you violated the Ottawa-Carleton Detention Centre Standing Orders and a number of Ministry policies, including but not limited to Institutional Services Policies and Procedures (Discharge) when you failed to follow the Guidelines for Admission and Release Documents and improperly released [inmate O] from custody.

• That on Nov. 13, 2016, you failed to complete the Inmate Release Checklist prior to releasing [inmate O] from custody.

45Deputy Superintendent (“Dep. Super.”) Bloskie conducted the Allegation Meeting. A Human Resources Advisor took notes. Sgt. Barnes attended with Sgt. Frank Nolet, a co-worker who acted as Sgt. Barnes’ advisor/support person.

46The meeting began awkwardly because the Employer had not given Sgt. Barnes a copy of the Inmate Release Checklist (which he was alleged to have failed to complete), and Sgt. Barnes had to argue with Dep. Super. Bloskie before it was shown to him. Sgt. Barnes pressed Dep Super. Bloskie for specifics about precisely which policies and guidelines he had failed to follow when he improperly released inmate O, and Dep. Super. Bloskie struggled to explain exactly what Sgt. Barnes had done incorrectly.

47Sgt. Barnes denied the allegations. He pointed out that he was not present when inmate O was released, so the allegation that he had done so improperly did not make sense. He emphasized that he had noticed that something was not right with inmate O’s housing. He had told CO Diotte he would investigate and to hold and not release inmate O until he returned from the Pod. Sgt. Barnes also noted that he was working with staff who were not fully trained in reviewing Release Packages and that he was covering two areas that day due to a shortage of staff.

48Sgt. Barnes heard nothing more about the matter until he received a disciplinary letter of suspension dated January 11, 2019, imposing a 2-day suspension for this incident and the second incident. The letter states that the Employer had determined that the allegations regarding the first incident, which were identical to the ones in the June 27, 2017 Allegation Letter, were substantiated

Second Incident

49By way of background, on May 29, 2017, inmate S was sentenced to 90 days, to be served at OCDC intermittently on weekends beginning on Saturday, June 3, 2017 and every second weekend after that. At that time, the practice for an inmate living out of town (inmate S lived in Cornwall) who was to serve an intermittent sentence was that they would be processed (i.e., entered into the system at OCDC) on the first day of their sentence. The holding documents for inmate S (i.e., the Warrant of Committal with the details of his intermittent sentence) were sent to the Records Department at ODCD shortly after he was sentenced on May 29.

50The second incident that led the Employer to discipline Sgt. Barnes took place on June 10, 2017. However, the events that led to that incident were set in motion roughly one week earlier and did not involve him.

51Inmate S did not report to OCDC on June 3 as he was supposed to. However, because he had yet to be processed, and because at that time, there was no mechanism in place at OCDC for the Records Department to let A&D know that they should be expecting inmate S, nobody at OCDC realized that this was a problem. As a result, the fact that inmate S had failed to present himself at OCDC on June 3, 2017 to start serving his intermittent sentence was not fully appreciated until Monday, June 5, when staff in the Records Department returned to work.

52Various steps were taken at OCDC to record that inmate S had not reported to OCDC on June 3 as he was supposed to. This included booking inmate S into OTIS, releasing him as Unlawfully at Large (“UAL”) one minute later, and adding a comment to the effect that the entry was “OTIS movement only” and that inmate S had not actually stepped into custody. No information was entered into OTIS about inmate S’s intermittent sentence, however. No ORs were completed at this time, and the Ottawa Police were not informed that inmate S was UAL. In fact, no meaningful steps were taken to figure out what had happened and rectify the situation for more than a week, and not until after inmate S came to the OCDC for the first time the following weekend. These were mistakes that ended up having unintended consequences for Sgt. Barnes and other A&D staff who were working the following weekend.

53Inmate S arrived at OCDC on the morning of Saturday, June 10, 2017. He told staff that he was there to start serving his sentence. Sgt. Barnes was on duty as the A&D Manager. CO Blanchette told Sgt. Barnes that inmate S had reported for his sentence but that no paperwork for inmate S could be found and there was nothing in OTIS. Sgt. Barnes was also told that inmate S was saying that his lawyer had told him to report to OCDC that day. Sgt. Barnes checked OTIS, but the only information he could see about inmate S was that he was UAL. Sgt. Barnes went to the Records Office (it was the weekend, so Records staff were not there), found inmate S’s file in the UAL section, and brought it to A&D.

54Sgt. Barnes looked at the Warrant of Committal for inmate S but did not see anything that indicated he should be reporting to OCDC on June 10 for his intermittent sentence. Sgt. Barnes told A&D staff to bring inmate S in and process him as a “recapture” based on the information in OTIS, which said he was UAL. It was later discovered that the schedule for inmate S’s intermittent sentence was written on the back of the Warrant or on a back page attached to the Warrant. Neither Sgt. Barnes nor any other staff in A&D who were working at the time inmate S was admitted noticed the intermittent schedule at the time, however.

55On Sunday, June 11 in the afternoon, Sgt. Winters was reviewing Warrants for new inmates who were serving intermittent sentences and due to be released the next day. Reviewing inmate S’s documents, Sgt. Winters noticed the intermittent schedule and realized that there was nothing in the documents that said that inmate S should be in custody for the weekend of June 10-12. Calls were made, including to the on-call Deputy superintendent and the on-call Records Clerk, who came into OCDC to review the documents first-hand. It was decided that there was no legal basis to hold inmate S in custody based on the Warrant documents. The Ottawa Police were contacted and asked if they wanted to arrest inmate S for any reason, including the UAL charge from the previous weekend. It was determined that inmate S had not actually been reported UAL to the Ottawa Police, so they had no basis to arrest him. Inmate S, who continued to insist that his lawyer had told him to report to OCDC that weekend to start serving his sentence, was released a few hours later and told to return on June 17.

Second Incident – Allegation Meeting

56The Employer sent a letter dated April 9, 2018 to Sgt. Barnes inviting him to attend an Allegation Meeting on April 17, 2018. The letter set out five allegations:

• You violated the Ottawa-Carleton Detention Centre Standing Orders and a number of Ministry policies, including but not limited to The Ontario Correctional Services Code of Conduct and Professionalism Policy (COCAP), and Institutional Services Policies and Procedures (Admitting), as well as the Guidelines for Admission and Release Documents when you improperly admitted [inmate S] into custody without the correct holding documents when he reported to the institution to serve his intermittent sentence.

• You failed to check the Offender Tracking Information System (OTIS) Intermittent Schedule screen prior to admitting [inmate S] into custody.

• You failed to complete the Inmate Release Checklist form for [inmate S]'s release from custody, in accordance with the Discharge policy in the Institutional Services Policy and Procedures Manual.

• You failed to contact the Records' On Call person to verify whether or not [inmate S] was to report to the institution to serve his intermittent sentence.

• You failed to inform the institution's On Call Administrator that [inmate S] had reported to the institution to serve his intermittent sentence, and was processed as a recapture.

57Dep. Super. Bloskie conducted the Allegation Meeting. A Human Resources Advisor took notes. Sgt. Frank Nolet, Sgt. Barnes’ co-worker, who had also attended the Allegation Meeting for the first incident, acted as Sgt. Barnes’ advisor/support person.

58At the Allegation Meeting, Sgt. Barnes accepted that he had admitted inmate S improperly on June 10, 2017. He had looked at the Warrant of Committal and had seen that inmate S was serving an intermittent sentence, but he did not look at the back page that showed the schedule. He noted that the incident occurred on his first day back after he had been away from A&D working on another project at OCDC and admitted that he was a bit rusty. Sgt. Barnes questioned how the Employer came to believe that he had not checked OTIS. He had checked OTIS, but there was no information there about inmate S’s intermittent sentence or the schedule. Sgt. Barnes denied that he had failed to complete the Inmate Release Checklist because although he had started it, he was not present when inmate S was released. Sgt. Barnes agreed that he had not called the on-call Records Clerk or the on-call Deputy Superintendent but said there was no reason for him to have done so.

59At the hearing, Sgt. Barnes testified that, in hindsight, it was not a mistake for him to have admitted inmate S to OCDC because on June 10, 2017, inmate S was UAL, having failed to report to OCDC on June 3. Staff who were on duty when inmate S failed to report to ODCD had not made any meaningful entries in OTIS until after June 10, nor was inmate S reported UAL to the Ottawa police until June 12. Sgt. Barnes said that on reflection, it was better for him to have erred on the side of caution and admitted inmate S than to send him away.

60Sgt. Barnes heard nothing more about the matter until he received a disciplinary letter of suspension dated January 11, 2019 imposing a 2-day suspension for this incident and for the first incident. The letter states that the Employer had determined that the allegations regarding the first incident, which were identical to the ones in the April 9, 2018 Allegation Letter, were substantiated

Submissions of the Parties

The Employer

61Regarding the merits of the Employer’s case for discipline, the Employer’s position is that Sgt. Barnes’ conduct justified the relatively low disciplinary suspension of 2 days. Sgt. Barnes is a manager, and the Board has consistently held that managers should be held to a higher standard of conduct. In both incidents, Sgt. Barnes has tried to deflect blame to others and has failed to take responsibility for his mistakes, submits the Employer.

62For the first incident, Sgt. Barnes blamed his subordinates for his own negligence, argued the Employer. There was insufficient evidence that he told CO Diotte to hold inmate O or told him not to release him. Sgt. Barnes signed the Inmate Release Checklist as if he had completed it, but he had not. Even if Sgt. Barnes did not actually release inmate O or was not present when it happened, he was responsible and accountable for the mistake, argued the Employer.

63As to the second incident, Sgt. Barnes admitted that he did not check inmate S’s Warrant of Committal carefully. He admitted it in his OR and in the Allegation Meeting. If he had reviewed the Warrant of Committal documents properly, argued the Employer, he would have seen the intermittent schedule, and he would have realized that OCDC did not have any document allowing it to admit or hold inmate S on June 10, 2017. The intermittent schedule was there because Sgt. Winters noticed it on June 11, when he was preparing the release packages. The Employer argued that at the hearing, Sgt. Barnes tried to go back on his admission and instead blamed staff who were working the previous weekend. He tried to say that he was correct to hold inmate S because he was UAL, but that was not his thinking at the time. He also failed to contact any of the on-call resources as he should have, argued the Employer.

The Complainant

64The Complainant argued that the delay by the Employer in imposing discipline on him for these two incidents was extreme and constituted an abuse of process. The Letter of Discipline was not issued until 26 months after the first incident and 19 months after the second incident, and the Complainant noted that Boards of Arbitration have consistently found discipline to be void after much shorter delays.

65The Allegation Meeting for the first incident was held 20 months after the events took place, and the Allegation Meeting for the second incident was held 10 months after those events took place. Until he received the Allegation Letters, the Complainant noted, he had no reason to think he had done anything wrong. The allegations were vague, and Sgt. Barnes was not given key documents until he asked for them.

66The Complainant argued that he responded to the allegations as best he could, given the passage of time and the inability of the Employer’s representative to clearly explain precisely which policies and procedures he had not followed. Many more months passed after the Allegation Meetings, during which time Sgt. Barnes heard nothing and, he argued, had no reason to suspect he would be disciplined.

67As to the merits of the Employer’s case for discipline, the Complainant argued that the Employer cannot expand the grounds for discipline beyond the allegations in the Letter of Discipline, and those allegations must be read strictly. He argued that he did not release inmate O from custody. He was released by others when the Complainant was not there. The Employer had failed to demonstrate that Sgt. Barnes completed the Inmate Release Checklist prior to inmate O being released. The errors with the handling of inmate S all stemmed from mistakes made by other staff the weekend before Sgt. Barnes was working as the A&D Manager. Sgt. Barnes had no reason the contact the on-call Records Clerk or the on-call Administrator, he argued.

Decision

68It is generally accepted that if an employer is going to impose discipline, it must be reasonably expeditious in doing so. The “clock” starts once an employer has information about an employee’s conduct that could lead to discipline. Excessive delay in imposing discipline can render the discipline void. While the overall burden of establishing that the delay alone justifies setting aside the discipline remains with the party alleging excessive delay, the employer is faced with an evidentiary onus to account for and explain the delay.

69The basis for many of the rulings against untimely discipline is summarized in A.B.G.W.I.U. v. AFG Industries Ltd. (Re), 1998 CanLII 30077 (ON LA) (Herlich). In deciding whether there has been an unreasonable delay, Arbitrator Herlich lists three considerations: the length of the delay, the reasons for the delay, and the prejudicial effect of the delay. A delay measured in months will almost always trigger scrutiny. As to the reasons for the delay, some amount of delay may be justified if an employer is simply unaware of the employee’s conduct or does not have all of the facts necessary to decide whether discipline is an appropriate response. Prejudice most commonly arises when the ability to defend against allegations is compromised due to fading memories, lost opportunity to gather exculpatory evidence, and similar considerations.

70Arbitrator Herlich hastened to add that none of these factors is necessarily determinative and that prejudice resulting from delay can be inferred or presumed. Confronting an employee many months later with an allegation about a matter to which the employee may have attached no significance at the time or an allegation about a routine function that an employee regularly performs has often been found to be inherently prejudicial. Another way of framing the principles underlying the rule against delay is that discipline must be imposed within a reasonable time, and what is reasonable depends entirely on the facts in a given situation.

71Other factors have been proposed as to why discipline may be void if an employer waits too long. These include procedural fairness (see, for example, Metropolitan Toronto (Municipality) v. C.U.P.E., Local 79 (Dalton) (Re), 1999 CanLII 35953 (ON LA) (Simmons); OPSEU (White) and Ontario (Ministry of the Solicitor General), 2020 CanLII 63535 (ON GSB); and Chopra v. Canada (Attorney General), 2014 FC 246. Another factor is that if an employer delays imposing discipline, the employee may have assumed that there were no concerns about their conduct. An employer may thus be found to have condoned the behaviour (see Re: Corporation of the Borough of North York and C.U.P.E., Local 373, 1979 CanLII 3935 (ON LA).

72Here, Sgt. Barnes received a 2-day suspension on January 11, 2019, for incidents that occurred on Nov. 13, 2016 and June 10, 2017. I find that these delays, of 26 and 19 months respectively, cry out for an explanation.

73For the first incident, the Local Investigation Report (LIR), which included the ORs, IIRs, and all other relevant documents, was completed within days of the events of Nov. 13, 2016. However, the Allegation Meeting for the first incident was not held until 8 months later. No reasonable explanation was advanced by the Employer for this delay.

74Also, it was not until after the Allegation Meeting that someone in Senior Management asked CO Diotte if he remembered having a conversation with Sgt. Barnes about investigating inmate O’s housing arrangements. CO Diotte wrote that he did not recall any such conversation.

75In my view, the 8 month delay between the time of the incident and the Allegation Meeting was highly prejudicial to Sgt. Barnes. It was clear from Sgt. Barnes’ OR, which he wrote at the time of the incident, that before being called to the Pod, he had said he needed to investigate further. The Allegation Meeting was the first opportunity Sgt. Barnes was given to clarify this fact, which he did when he said that he had told CO Diotte he would investigate and that inmate O was to be held and not released until he returned from the Pod. It was only after the Allegation Meeting that CO Diotte was asked about his recollection of that conversation. If the Allegation Meeting had been held sooner, CO Diotte might have had a clearer recollection of the first incident, but the 8 month delay deprived Sgt. Barnes of that possibility.

76A CSOI report was also requested 8 months after the first incident. It took 4 months for CSOI to complete its work, even though it was a “paper review” of the LIR and no interviews were conducted or other fresh investigative steps taken. It took another 4 months for the CSOI report to go to the Regional Office. It was now March 2018, or 16 months after the incident.

77Even assuming that it can be considered appropriate in the circumstances for the Employer to wait until it received the CSOI report before proceeding further, the Letter of Discipline was not issued until January 11, 2019. As of March 2018, the Employer had all the facts it needed to make a decision about whether Sgt. Barnes should be disciplined for an incident that had occurred on Nov. 13, 2016. Yet the Employer did not issue the Letter of Discipline for another 10 months. No reasonable explanation was advanced by the Employer for this further delay.

78There are a number of other considerations which seriously undermine the utility of imposing discipline for the first incident more than two years after it happened and that directly impact the assessment of whether the Employer had cause for discipline. The incident occurred when the institution was short-staffed. This directly affected Sgt. Barnes, who was covering two areas and had to leave A&D to deal with an incident in the Pod. It also meant that staff with minimal experience working in A&D were deployed there. There was evidence at the hearing that other contributing factors, including that Records staff were working only “regular office hours” in an institution that operates 24/7, and about institutional weaknesses in the communication channels between A&D and the Records Department. Both of these concerns have since been addressed, at least to some extent. If the fundamental purpose of discipline is to correct an employee’s behaviour, it is extremely difficult to see how a long-delayed disciplinary response to Sgt. Barnes’ conduct in this instance, when seen in its full context with all of its complexities and nuances, can accomplish that objective.

79In any event, I am satisfied that regardless of which theory is advanced to support the principle that discipline imposed after an unreasonable delay is void, the cumulative delay by the Employer in dealing with the first incident is excessive and unreasonable. Even allowing that 8 months of the delay may be attributable to a lack of responsiveness by one branch of the Employer, CSOI, subtracting that amount leaves nearly 18 months of delay for which the Employer is also accountable and for which no reasonable explanation has been given. As a result, for all of the reasons set out above, the discipline Sgt. Barnes received for his conduct in relation to the first incident is void. All record of it is to be removed from Sgt. Barnes’ file.

80The second incident occurred on June 10, 2017. Many of the ORs and IIRs were not completed until days or even weeks later, and the LIR was not completed until June 26, 2017. It is of particular concern that little if anything was done by OCDC staff in the immediate aftermath of inmate S’s June 3, 2017 “no show” and that concrete steps were not taken to address the situation until June 12, 2017.

81Nevertheless, things began to move forward reasonably quickly for a brief period. The CSOI investigation was requested 1 month after the incident and the CSOI Report was sent to the Regional Office 3 months after the incident. However, the Allegation Meeting for the second incident was not held until April 9, 2018, which was 7 months later and 10 months after the incident. No reasonable explanation was advanced by the Employer for this delay.

82The Employer had the CSOI report. As of September 22, 2017, the Employer had all of the information and feedback it needed to make a decision about whether it had cause to discipline Sgt. Barnes for his conduct on June 10, 2017 except a response from Sgt. Barnes. The Allegation Meeting was not held until April 17, 2018. The Letter of Discipline was not issued until January 11, 2019. No reasonable explanation was advanced by the Employer for these delays. I am satisfied that the cumulative delay by the Employer in dealing with the second incident is excessive and unreasonable.

83As with the first incident, there are a number of other considerations which seriously undermine the utility of imposing discipline for the second incident more than one and a half years after it happened. Records staff were working only “regular office hours” in an institution that operates 24/7, and a mechanism to let A&D know when a new intermittent inmate is expected to report to OCDC was lacking. These concerns have since been addressed, at least to some extent.

84However, unlike the first incident, the (mis)handling of inmate S on June 10, 2017 was the direct result of a series of highly unusual events and a cascade of mistakes by other staff that started more than one week before Sgt. Barnes became involved. Between the institutional failures, the mistakes of others, and a constellation of events that is unlikely to be repeated, it is extremely difficult to see how a long-delayed disciplinary response to Sgt. Barnes’ conduct in this instance, when seen in its full context with all of its complexities and nuances, served any purpose.

85It also stands to reason that if the first incident had been dealt with in a more timely manner, the second incident might not have occurred. Although the incidents were different, they both relate to the proper handling of inmates when they are admitted to or released from an OCDC. Concerns about the working hours in the Records Department and communication protocols between Records staff and A&D were revealed in the first incident, providing an opportunity to reduce the likelihood that problems might arise when dealing with other inmates, such as inmate S. When the Employer delayed its handling of the first incident, it delayed addressing those systemic issues, which prejudiced Sgt. Barnes because it deprived him of the benefit of those changes and, crucially, the opportunity to learn from that experience and improve his performance.

86As a result, for all of the reasons set out above, the discipline Sgt. Barnes received for his conduct in relation to the second incident is void. All record of it is to be removed from Sgt. Barnes’ file.

87Having determined that the disciplinary response in both instances is void, the suspension in its totality is to be removed from the Complainant’s file, and he is to be reimbursed for the loss of two days’ pay.

Costs

88At the conclusion of the hearing, the Complainant argued that this was an appropriate case for the Board to award costs. Despite the relatively small number of decisions by the Board that have directly addressed the issue of legal costs, the approach has been clear and consistent. That is, awards of cost are reserved for the most egregious examples of Employer misconduct. While the Board is not necessarily obliged to follow prior decisions, it is generally accepted that where the issue is similar, an earlier decision should be followed for the sake of consistency and predictability. In this case, the Employer’s delay in imposing discipline has been found to be excessive and unreasonable. However, the Employer’s conduct did not rise to the level where it can be said to have been malicious or in bad faith. As a result, it would not be appropriate for the Board to award costs in the circumstances of this case.

Summary and Disposition

89The cumulative delays by the Employer in each of the incidents for which Sgt. Barnes was disciplined are excessive and unreasonable. Having considered the facts in both cases in their complete context, for the reasons set out above, the discipline is void. All record of it is to be removed from Sgt. Barnes’ file, and he is to be fully reimbursed for the 2 day suspension.

90I will remain seized should there be any issue arising from the implementation of the terms of this award.