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HomeMy WebLinkAbout2019-1252.Grievor.24-10-21 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2019-1252 UNION# 2019-0108-0013 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE David R. Williamson Arbitrator FOR THE UNION Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Katie Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARINGS August 17, 2020; March 2, May 3, May 11, 2021; March 30, April 1 and 6, August 9, November 25, 2022; January 5, June 14, July 14, September 11, 2023; June 19, and July 24, 2024. - 2 - Decision [1] In February 2019 the Grievor, a registered nurse aged 58 years at the time, was working at the Elgin-Middlesex Detention Centre (EMDC) in London when, in the course of admitting a female inmate into custody, she was physically assaulted by the inmate. At the time of the incident the Grievor had been working at the Detention Centre for approximately four months, but had twenty years of prior experience working as a registered nurse in hospital environments. Soon after the assault many guards came and restrained the inmate. The Grievor sustained injuries to her face and head, and incurred some pain to her upper body. Following the assault the Grievor was seen by another nurse at the Jail, and then made a statement and pressed assault charges against the Offender to a police officer who attended at the Jail. The Offender was subsequently criminally charged. The Grievor was then driven by a correctional officer to the emergency department at the hospital in nearby St. Thomas to be looked at, and was then driven back to the car park at the Jail. From the Jail the Grievor drove herself home. Since this event the Grievor has not worked, having received for a period of time WSIB benefits, then LTIP from August 2020. [2] The Grievor grieves that the Employer has failed to ensure her health and safety at work and that as such it has violated various provisions of the collective agreement and relevant workplace legislation. In particular, the Union makes reference to Articles 2.1, 3.3, and 9.1 of the collective agreement and Section 25.2(h) of the Occupational Health and Safety Act. The parties are in agreement that the grievance filed by the Union is to be heard first on the substantive issue of the merits and then subsequently, depending on the decision on the merits, that submissions then be heard on the matter of the Grievor claim for monetary damages. The instant decision addresses the grievance on is merits. The parties are in further agreement that in the decision on this grievance the identities of the two principal individuals in the altercation are to be anonymized, with the grievor referred to as “the Grievor” and the assailant as “the Offender”. [3] Following the receipt of opening statements by the parties a short video was shown of the response made by correctional officers and nurses following the assault of the Offender on the Grievor. This video shows the institutional response but not the actual assault itself. Testimony was then given by the Grievor herself, with this being followed by evidence given by Brandon Reeves, a Sergeant at EMDC at the time of the incident, and by Tammi Moir who worked as a Correctional Officer at the facility. - 3 - [4] The Grievor had been working as a full-time registered nurse at EMDC for just over four months at the time she was assaulted on February 1, 2019. This was her first experience working in a facility of this kind having previously worked for twenty years in hospitals in North Carolina and Ontario including the departments of cardiac care, intensive care, oncology, and emergency. It is the testimony of the Grievor that at EMDC she worked the 11:00 a.m. to 11:00 p.m. shift on rotated days and that she chose to work in Admitting and Discharge where she dealt with males 90% of the time and females 10%. The Grievor described her work in male admissions as taking place in a cell in the male admissions area after the inmate has been photographed, identified, and strip searched, and with a correctional officer close by and no more than four feet away from her at any time. The work she did with female admittees, she testified, was much more sporadic and intermittent and took place on a bench in the shower area measuring some 6 feet by 10 feet and with an opening at one end of the room. The shower area could be viewed from a room used by correctional officers that had a chest-high wall with a window above it. To go from this room to the shower area required exiting the room by a door opposite the window and following a hallway to the shower area. This office cannot be entered or exited by way of the window. [5] It is the evidence of the Grievor that at about 6:30 p.m. on February 1, 2019, she received a telephone call to go and admit an inmate who was in the shower area. It is the Grievor’s testimony that she had not met this inmate before and was told before meeting her that she was in the facility for three attempted murders. It is the evidence of the Grievor that before going to meet the inmate she went into the office overlooking the shower area and asked the Correctional Officers present for the Offender’s OTIS sheet (Ontario Tracking Information Sheet), and was told that it wasn’t ready yet but that the Offender had been cooperative. The Grievor testified that she left the office and went to the shower area to meet the inmate and, while there had not been any conversation as to who of the Correctional Officers would be joining her, she just assumed someone would follow her. The Grievor’s evidence discloses she had not asked the question “Who is coming with me?” or waited for a Correctional Officer to join her. [6] The evidence shows the Grievor went to the shower area to meet and admit the inmate without having a correctional officer in attendance. It is the evidence of the Grievor that she started the admission process of the Offender because she assumed a correctional officer would follow her. She testified that she could see three correctional officers in the nearby office where she had just been and that one of them, Tracy was behind the half wall and facing the Grievor. It is the Grievor’s evidence that the admission process that day took about fifteen minutes and that the assault took place at the end of this process. It is the Grievor’s testimony that she is of the view that, when admitting the Offender, Correctional Officers should - 4 - have been right beside her so they could assess any unusual behaviour or escalation and protect her thereby from assault. [7] Upon reaching the shower area the Grievor saw the Offender sitting on the end of the bench nearest the shower entrance and the Grievor proceeded to sit on the other end and started with her admittance process. The Grievor testified that no Correctional Officer came to be present nearby the entrance to the shower area while she undertook the admittance process with the Offender. It is the evidence of the Grievor that the admittance process went very smoothly, that she had no sense of any difficulty, and that the Offender was co-operative. The Grievor testified that when the assessment process came to an end after about fifteen minutes the Offender asked the Grievor “Is your family fucked up?”. The Grievor testified this question surprised her and she stood up, following which the Offender also stood up and repeated the question. When the Grievor responded “No”, the Offender said “your face says otherwise” and proceeded to punch the Grievor in the face with her right hand fist. [8] It is the testimony of the Grievor that after being hit she fell backwards, hit the wall, fell on some crates, had a laundry tub fall on top of her, and that she believes she lost consciousness for a short while. She next remembers a voice in the overhead PA system calling for any available nurse to go to the female admissions area and that correctional officers were helping lift her up off the crates. She then got up and walked with another RN to the nearby Health Care area where she saw Sergeant Brandon Reeves who asked her if she wanted the Jail to call the Police so she could make a statement, to which she said she did. Sergeant Reeves then informed her that one of the female correctional officers, Tammi Moir, would drive her to the emergency department at the nearby St. Thomas hospital once she had finished writing her occurrence report pertaining to the incident in which the Grievor was assaulted. The Grievor testified that while waiting, RN Allingham looked in her mouth about 7:15 p.m. and suggested she start taking some antibiotic tablets, and another RN brought her a pack of ice. As such she said, she received some health care treatment at EMDC but her condition was not assessed. Her testimony is that after a while the Police arrived at the Jail and the Grievor gave her statement regarding the assault, then waited for Tammi Moir to finish her report, following which the Grievor was driven to the hospital by Tammi Moir leaving EMDC around 8:10 – 8:20 p.m. [9] It is the testimony of the Grievor that after being dropped off at the emergency department of the hospital she waited about 30 minutes to be seen, and that after being seen by medical staff she phoned Ms. Rock at the Jail, as instructed, to be picked up and driven back to the EMDC. Her evidence is that she was picked up by a correctional officer and driven back to EMDC, and that upon being dropped off - 5 - at the Jail the Grievor then drove herself home taking about 15 minutes to do so. It is her testimony that while she found this drive difficult she had not asked anyone to arrange for her to be driven home from the Jail, and that nor had anyone at the Jail offered her a ride home or asked her how she was getting home from EMDC that evening. Nor, she said, did she call for a taxi or Uber, ask the correctional officer to drive her home, or say to anyone that she did not feel safe to drive home. The Grievor further testified that in driving home from the EMDC that evening she did not have an accident and did not sustain any injury from driving. [10] In cross-examination the Grievor testified that she does not recall when if ever, while doing an admittance of an inmate, having asked a correctional officer to move further away from an inmate in order to give them privacy, and nor does she recall a correctional officer saying to her that their being close to an inmate is the policy and is in place for her safety. [11] At the time of the incident in February 2019 Brandon Reeves was a Sergeant at EMDC. For three years until May 2016 he had worked at Maplehurst Detention Centre as a correctional officer in the Admit and Discharge office, having worked for two years before that as a Youth Services Officer at the Sprucedale Centre. In May 2016 he began work as a Correctional Officer at EMDC to April 2017 at which time he became Acting Sergeant , and then permanent Sergeant in August 2017. He worked regularly but not exclusively in Admit and Discharge at EMDC during that time. From August 2017 he worked as a Sergeant with various front line responsibilities including Admit and Discharge in 2018 to mid 2019, then Compliance Manager from mid 2019 to mid 2020, and Security Manager from June 2020 to September 2022, following which he became Deputy Regional Director for Ontario Western Region. In as much as he was a Sergeant at the time of this incident Mr. Reeves will be subsequently referred to in this Decision as Sergeant Reeves or Mr. Reeves. [12] Mr. Reeves gave evidence and described the sequence of events in admitting an offender, including a thorough body search, placed into a cell, booked into the OTIS system, photographs taken, and then seen by a nurse. Mr. Reeves explained that all new admits must be seen by a registered nurse upon intake to gather information regarding an offender’s weight, height, medical concerns, medications, drug and alcohol history, family medical history, blood pressure, body temperature, assessment of physical state, and suicide and self-harm history. This procedure, he indicated, is a provincial requirement and stated that a correctional officer oversees this intake process and remains present for the safety of the nurse and the security of the equipment. Mr. Reeves testified that there is one registered nurse at EMDC who does both admits and discharges and who works a 12 hour day shift from 11:00 a.m. to 11:00 p.m. It is the testimony of Mr. Reeves that in the case of - 6 - male Admit and Discharge the correctional officer is to stand in the doorway while the health assessment takes place and is to remain there until an offender is back in the cell. In the case of health assessments for female offenders, testified Mr. Reeves, the correctional officer is to be at the entry point to the shower strip search area while the inmate is with the registered nurse, and is to remain there until the assessment is complete and the inmate is back in a cell. [13] Mr. Reeves was working the 9:00 a.m. to 9:00 p.m. shift on February 1, 2019 when the Grievor was assaulted around 6:52 p.m. and he gave evidence regarding the events pertaining to that set of events. It is his testimony that, as he was close by, he responded with other correctional officers to a code blue call to attend to an altercation in the female Admit and Discharge area. He testified that as the first Sergeant responding to this code blue call he became the incident manager directing the staff response, and indicated that nurses are not expected to respond to a code blue call. It is the evidence of Mr. Reeves that upon entering the female Admit and Discharge area he saw the Grievor at the rear of the shower area lying on her back on top of some crates with some bleeding and swelling on her lip. He asked her if she was O.K. to which she slowly responded “No” and he noted she seemed disoriented but did not know whether she had been unconscious at any time. The inmate was already restrained and put on the ground by correctional officers Tracy Smith and Nicole Cowan. Sergeant Reeves then called a medical alert for nurses to attend and helped the Grievor up off the crates. Three nurses then arrived and the Grievor was escorted to the health care area and Sergeant Reeves went with correctional staff to take the Offender to a holding cell, removed the constraints that had been placed on the Offender, and closed the cell door. [14] After securing the Offender, Sergeant Reeves testified that he went to the health care area to check on the Grievor who showed him the injury to the inside of her lip. He sought her permission to take a photograph of this injury, which she gave orally and then signed a consent form, and photographs of her mouth were then taken by Sergeant Reeves. These photographs show a cut to the inside of her upper lip. Next he offered to call the police if she wished to make a statement and lay charges, and she said that she wanted to do this. He testified that he then explained the WSIB workplace injury process and paperwork to the Grievor, and then both he and correctional officer Tracy Smith who had witnessed the assault completed the WSIB report. It is his evidence that the Grievor was lucid, responded to questions, and that the Grievor’s swollen and bloody lip looked to be the sole distressing item. He testified that after he had completed the required paperwork he contacted London Police to inform them of the assault and that the Grievor wished to lay charges, to which they responded that they would attend at the Jail but there would be a delay as they were backed up. He then relayed that information to the Grievor who said that although she wanted to have outside medical assistance she wanted to wait for - 7 - the police to arrive first. It is the evidence of Sergeant Reeves that the police arrived some 45 minutes later and took the Grievor’s statement after which correctional officer Tammi Moir drove the Grievor to the hospital in St. Thomas. It is the testimony of Sergeant Reeves that the Grievor chose to wait for the police before going outside EMDC for medical care, and that going to the hospital in St. Thomas was the choice of the Grievor. [15] It is the further testimony of Sergeant Reeves that during the time he worked as Manager in Admit and Discharge at EMDC that he had on a couple of occasions had correctional officers report to him that when working with the Grievor she had tried to move correctional officers away from being close to where she was doing an assessment, and that she was very insistent on the matter. He said that she had told the Officers that she is discussing medical information and correctional officers are not to hear that. As a result, testified Sergeant Reeves, he had two conversations with the Grievor in which he explained to her why correctional officers are posted close by. In his testimony he said he told her it is both for her own physical safety, as well as the safety of inmates that nothing is taken from the cart in the assessment area, and that he re-iterated to her that a correctional officer will remain close by while she is doing inmate admissions. In the first conversation said Sergeant Reeves, the Grievor was argumentative and not agreeable to being compliant. Sergeant Reeves testified that after the second conversation the Grievor was more co-operative and less argumentative, and he noted that these concerns were not raised with him again by correctional officers. As such, he concluded the Grievor was now compliant and that this issue was resolved. Sergeant Reeves emphasized that these conversations did happen and that any contention made to the contrary is simply false. He testified that the purpose of the correctional officer’s presence is to serve as a deterrent to violent behaviour and not just to react to it. As such, the need is for the correctional officer to be close to the nurse. [16] Tammi Moir is a Correctional Officer who has worked at EMDC since 2006. On the day of the incident in February 2019 she worked the 7:00 a.m. to 7:00 p.m. shift. In her testimony Ms. Moir said she is trained on the inmate admittance process and then described the health care admitting process of a female inmate that is carried out in the shower area by a registered nurse, and said she has worked with the Grievor on a number of occasions. It is her evidence that during this process a correctional officer is to be close by the nurse and inmate, around two to three feet, and with a second correctional officer stationed on the other side of the counter doing computer and paperwork and who could quickly come around into the shower area if needed. Ms. Moir testified that while the nurses in general ask many personal questions and some seek a degree of privacy, she as a correctional officer needs to be close by in case something happens and she has to respond quickly. In relation to the Grievor in particular, it is the evidence of Ms. Moir that the Grievor seeks to - 8 - have privacy when speaking with an inmate and, as such, likes to have significant spatial separation from a correctional officer. [17] It is the evidence of Tammi Moir that at 6:55 p.m. on the day of the incident she was in the staff lounge preparing to go home at the end of her shift when she responded to a code blue alert for the female admitting area. Upon entering this area Ms. Moir testified she saw the Grievor on the ground in the shower area and with two correctional officers also on the ground restraining the Offender. Ms. Moir then said she told the correctional officers she would get restraining leg irons, which she did, and upon her return helped put them on the inmate and assisted securing the Offender in a holding cell. It is the evidence of correctional officer Moir that the Grievor then left the area and she heard that she had gone to the health care area. Ms. Moir herself, testified that she then spoke with the officer in charge, Ms. Penny Rock, about 7:23 p.m.to advise she was going to the lounge to write her use of force report and enquired how the Grievor was doing, to which Ms. Rock said she was going to go to the hospital to be checked out. In response Ms. Moir informed Ms. Rock that if the Grievor was going to the hospital in St. Thomas she could drive her there as she lived in or near to St. Thomas, and Ms. Rock said she would let her know. It is the evidence of Ms. Moir that upon handing in her use of force report to Ms. Rock about 7:45 p.m. she was asked if she was still O.K. to take the Grievor to the hospital in St. Thomas to which she replied in the affirmative. Ms. Moir was then informed by Ms. Rock that the Grievor was presently making a statement to London Police and that when this was concluded she would let Ms. Moir know. It is the testimony of Ms. Moir that she then went to the staff lounge to wait for a phone call to take the Grievor to the hospital in St. Thomas. [18] Ms. Moir then drove the Grievor to the emergency department at the hospital in St. Thomas, which took about 17 minutes to get there. At no time, said Ms. Moir, did the Grievor ask to be taken to Victoria hospital in London. It is the evidence of Ms. Moir that when staff are injured, and not too seriously, they tend to go to St. Thomas as outpatients are generally seen much faster. Ms. Moir testified that the Grievor told her that she had a headache and possibly a loose tooth but was otherwise fine, and that Ms. Moir did not see any injuries to the Grievor’s face, and nor did the Grievor need any help in walking to Ms. Moir’s car. Upon arrival at the hospital Ms. Moir testified she offered to stay with the Grievor in the hospital triage and that, upon this offer being declined by the Grievor, Ms. Moir told her to call Ms. Rock at EMDC when she was ready for a ride back after she had been assessed. It is the further testimony of Ms. Moir that, after dropping off the Grievor at the hospital, she phoned Ms. Rock to notify her of this and to advise her that the Grievor would call for a ride after she had been assessed. The evidence shows that the Grievor later received a ride which took her from the hospital back to her car in the parking lot at EMDC from where she then drove home without incident. - 9 - [19] Referenced provisions of the Collective Agreement include: Article 2.1 For the purpose of this Collective Agreement, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed these rights are subject only to the provisions of this Collective Agreement. Article 3.3 The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome. Article 9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. [20] Relevant provisions of the Occupational Health and Safety Act R.S.O. 1990, c. O.1, as Amended, include: S. 25.2(h) …..an employer shall take every precaution reasonable in the circumstances for the protection of a worker. [21] It is the position of the Union that the Employer has in three areas failed to provide care and protection for the Grievor. First, that it failed to take reasonable precautions to prevent the assault. Second, that there was undue delay in taking the Grievor to the hospital for proper medical care with the medical care initially provided at the Jail cursory. Third, that upon return from the hospital the Grievor was dropped off at her car at the Jail in the late evening and left to drive herself home alone for 15 minutes without anyone ensuring she could safely drive. As such, the Union contends the Employer has violated the provisions of Articles 2.1, 3.3, - 10 - and 9.1 of the Collective Agreement and Section 25.2(h) of the Occupational Health and Safety Act. [22] In support of its submission and argument the Union made reference to the following arbitral authorities: Re OPSEU (Anger et al) and The Crown in Right of Ontario (Ministry of Community and Social Services) (2008), GSB# 2004-1321, (Watters); Re United Food & Commercial Workers Canada, Local 175 v Hazel Farmer, Inspector (2020), OLRB Case # 0746-20-HS, OLRB; Re The Ontario Provincial Police Association and The Ontario Provincial Police (2018), 2018 Can LII 82193 (ON LA) (Abramsky); Re The Crown in Right of Ontario (Ministry of Labour) v Royal Ottawa Health Care Group, (2016), ONCJ 456; Re OPSEU (Grievor) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2017), GSB# 2013-2085, (Carrier); Re Her Majesty the Queen v Bombardier Incorporated and Ronald Lacroix (2003), Ontario Court of Justice, 2003 CarswellOnt 10401; and to the Ontario Occupational Health and Safety Act, R.S.O. 1990, c. O.1 as Amended. [23] It is the position of the Employer that it took all reasonable precautions to minimize an incident happening and that, even if a Correctional Officer was in close proximity to the Grievor a swift assault could not be prevented. Before meeting with the Offender the Grievor had been told the inmate was in the detention centre for three attempted murders. The Employer notes that the Grievor had elected to proceed with admitting the Offender without a Correctional Officer being in close proximity, and that she had been previously spoken to about asking Correctional Officers to move further away when she was doing an inmate admittance, and that it had been made clear to her what the policy was and the risks of not following the policy. On the second matter of undue delay in the Grievor receiving medical care following the assault, it is the Employer’s position that the area needed to be secured first and that a visit to the hospital was delayed by the Grievor’s request that the police be called so she could give a statement before the hospital trip. On the matter of the third issue, it is the position of the Employer that it was the Grievor’s choice to drive herself home from EMDC, and that there is no evidence or indication that the Grievor had asked to have someone drive her home with such request denied. In regards to this drive home, the employer submits that it made reasonable provisions and took reasonable precautions to ensure the health and safety of the Grievor. [24] In support of its submission and argument the Employer made reference to the following arbitral authorities: Re OPSEU (Union Grievance) & The Crown in Right of Ontario (Ministry of Correctional Services), GSB# 1929/91, August 24, 1994 (Barrett); Re OPSEU (Lariviere) v Ontario (Ministry of Community Safety and Correctional Services), GSB# 2002-2124, 2002-3017, 2006 CanLII 42759 (ON GSB), November 29 2006 (Dissanayake); Re OPSEU (Brunet) v Ontario (Ministry - 11 - of Community Safety and Correctional Services), GSB# 2015-2885, March 11, 2019 (Dissanayake); Re OPSEU (Tomlinson et al) v Ontario (Ministry of Environment, Conservation and Parks), GSB# 2012-2087, March 2, 2020 (Dissanayake); Re OPSEU (Martin et al) v Ontario (Ministry of Natural Resources and Forestry), GSB# 2011-3796, 2012-0167, 2019 CanLII 97224 (ON GSB), dated September 13, 2019 (Dissanayake); Re OPSEU (Press) v Ontario (Ministry of Health and Long-term Care) GSB# 2003-1461, October 9, 2007 (Mikus); Re OPSEU (Danbrook) v Ontario (Ministry of Transportation), GSB# 1494/89, January 2, 1992 (Stewart); and to Re OPSEU (Mohamed) and Ministry of the Attorney General, GSB# 2017- 3672, November 5, 2021 (Petryshen). [25] The evidence, the submissions of the parties, the jurisprudence, and the arbitral authorities placed before me have all been carefully considered. The matter for determination is the contention of the Union that the Employer failed in three ways to provide for the safety and health of the Grievor. First, that it did not take reasonable precautions to prevent the assault. Second, that it did not provide proper medical care in a timely manner and, third, that it left the Grievor to drive home alone after returning from the hospital without ensuring she could safely drive. [26] As noted, supra, Article 9.1 of the collective agreement addresses the matter of an employee’s health and safety while at work in the following way: Article 9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. (emphasis added) And S. 25.2(h) of the Occupational Health and Safety Act, as referenced supra, also addresses the safety of an employee stating in part: S. 25.2(h) ….an employer shall take every precaution reasonable in the circumstances for the protection of a worker. (emphasis added) In accordance with the foregoing, the standard by which the Employer’s conduct is to be assessed is one of taking reasonable precautions and making reasonable provisions, and not the higher standard of having in place all possible precautions and provisions. In this regard, as noted in the OLRB case #0746-20H-S of Re UFCW Local 175 v. Hazel Farmer, Inspector (2020), (supra): The purpose of the section is not to eliminate hazards but to take reasonable precautions to protect workers from them. ….. There cannot - 12 - be a complete absence of risk and danger and the Act is not aimed at achieving an impossible standard of a risk-free workplace. …. It is not every precaution that must be taken but every reasonable one. Additionally, the Institutional Services Policy and Procedures Manual of the Ministry of the Solicitor General sets out that a nurse is not to undertake the admit process alone, but must have a Correctional Officer present. It states: “When nurses are conducting intake assessments, examining inmates or providing treatment, a Correctional Officer must be in the area in the event that assistance is required.” (emphasis added) [27] We turn to the first matter raised in the Grievance, namely, that the Employer did not take reasonable precautions to prevent the assault. The evidence shows that the Grievor received a call around 6:30 p.m. to go to the shower area in the female area and do the medical admit process with the Offender. On the way she went to the nearby C.O.’s office to view the Offender’s OTIS sheet and was told it was not yet ready. She was informed by the three C.O.’s in the office that the Offender was detained on three murder charges and had been co-operative. The evidence shows that the Grievor did not wait for the OTIS sheet to be ready or enquire of the C.O.’s who was going to accompany her and be present during the admit process. Rather, she just left the office without waiting for a C.O. to go with her and she entered the shower area alone where she met the Offender seated on a bench. [28] The Grievor had not been directed by the employer to go into the shower area to meet the inmate and start the medical assessment process without having a Correctional Officer present. The evidence shows the Grievor elected to start the 15 minute admit process without a C.O. being close by for her protection and she proceeded to sit on the bench with the Offender. In my view she did so at her own peril. This conduct was not at the direction of the employer and was contrary to the institutional policy. Indeed, in cross examination the Grievor stated that she understood the policy provided that a nurse is not to be alone with an inmate without a correctional officer being present. While it is the Grievor’s testimony that she assumed a C.O. would follow her from the office, she did not wait for that to happen and she entered the shower area alone, unguarded, and proceeded to undertake the admit process by herself. This action is found to be contrary to the policy of the employer which states that an intake assessment is to be done in the presence of a Correctional Officer stationed nearby, and it is at the end of this admit process some 15 minutes later that she was assaulted by the Offender. [29] As set out above, this foregoing conduct of the Grievor was at her peril and contrary to the practices of the employer. While this foregoing conduct of the Grievor was at her peril it cannot be found to have been unintended, accidental, or uninformed. The - 13 - evidence of C.O. Moir, who has worked with the Grievor on a number of occasions, discloses that the Grievor liked to have privacy when admitting an inmate and wanted to have a C.O. keep some distance from her during this process. Further, it is also the testimony of Sergeant Reeves that he had spoken twice to the Grievor about the need to have a correctional officer nearby during the Admit process. While the Grievor testified she had no recollection of two conversations she had with Sergeant Reeves when he asked her to refrain from pushing back a C.O. when she was doing an intake assessment, the positive recall and detail of Sergeant Reeves is preferred over the absence of any recall by the Grievor. As such, it must be found that the Grievor, in proceeding to admit this inmate for fifteen minutes without having a C.O. close by, was thereby knowingly contravening the policy and practices of the institution. The Grievor elected to both commence and then proceed with the Admit process without having a correctional officer close by. [30] Accordingly, and for all the foregoing reasons, it must be found that the assault occurred as a result of the contravention by the Grievor of institutional policies or procedures, and not because the Employer failed to have in place reasonable provisions or precautions to guard against assault by an inmate. As such, it is not possible to find a contravention by the Employer in relation to the above-referenced matter of either Art. 9.1 of the collective agreement or Section 25.2(h) of the Occupational Health and Safety Act. [31] The second part of the grievance alleges there was undue delay in taking the Grievor to the hospital for proper medical care. In particular there is the allegation that the Grievor had to wait for C.O. Tammi Moir to complete her Use of Force report before she could be taken to the hospital in St. Thomas. It is the evidence of Ms. Moir that about 6:55 p.m., when she was starting to get ready to go home at the end of her 7:00 a.m. to 7:00 p.m. shift, that she responded to a code blue call in relation to the assault on the Grievor. Following this and around 7:15 p.m., RN Allingham looked in the Grievor’s mouth, saw a cut and swelling on the lip, had another nurse bring some ice, and recommended antibiotics. At 7:23 p.m. Ms. Moir told the Officer in Charge, Ms. Penny Rock, that she would be able to drive the Grievor to the hospital in St. Thomas on her way home and then went to the lounge to write her Use of Force report. At 7:45 p.m. Ms. Moir handed in her report to Ms. Rock, was informed by her that her offer to drive the Grievor to hospital was accepted, and that the Grievor was presently with the police and making a statement. The Grievor had earlier stated she wished to wait in order to make a statement to police that day. [32] The evidence shows Ms. Moir and the Grievor left EMDC somewhere between 8:10 p.m. to 8:20 p.m. and arrived at the Emergency Department of the hospital in St. Thomas between 8:27 p.m. and 8:37 p.m., some 17 minutes later. A review of these time frames shows that Ms. Moir was ready to drive after handing in her report at - 14 - 7:45 p.m. at which time the Grievor was providing a statement to the police, and that she and the Grievor subsequently left EMDC for the hospital between 8:10 p.m. to 8:20 p.m. As such, it was the Grievor’s engagement with the police that, as the last item, delayed the process and the departure for the hospital and not the Grievor waiting for C.O. Moir. The Employer is found to have acted reasonably in providing for the Grievor’s health following the assault. The allegation that there was undue delay in taking the Grievor to the hospital for proper medical care due to institutional paperwork cannot be sustained and is dismissed. [33] After receiving medical care at the hospital in St. Thomas, the Grievor called Ms. Penny Rock at EMDC, as planned, to arrange a return ride. Subsequently she received a ride back from a C.O. who drove her from the hospital to the parking area at EMDC and from where she drove herself home. The third part of the grievance contends that the employer has violated both the collective agreement and the Occupational Health and Safety Act by not taking reasonable steps for the Grievor’s safety by letting her drive home alone that evening. We turn to consider this matter. [34] It is the evidence of Sergeant Reeves that the Grievor sustained a cut and swollen lip, and C.O. Moir testified that on the way to the hospital the Grievor told her that she had a headache and possibly a loose tooth but was otherwise fine. Ms. Moir added that she did not see any injuries to the Grievor’s face and that the Grievor did not need any help in walking to Ms. Moir’s car. In this situation of what appeared to be fairly limited injuries, and after receiving medical care at a hospital, the Grievor elected to drive herself home from the EMDC car park, and there is an absence of evidence that anyone forced or urged her to do so. Nor is there any evidence before me that the hospital had indicated to her that she should not drive, or that the Grievor had made a request of anyone to be driven home and been turned down. While the employer did not extend an offer to drive the Grievor home from EMDC, I agree with the employer submission that in the circumstances the absence of being proactive does not necessarily constitute a failure by the employer to take reasonable precautions for the Grievor’s health and safety. [35] This foregoing situation can be contrasted with the case referenced by the Union of R. v Bombardier Inc. (supra), where the Grievor in that case sustained a fractured leg at work and was not offered transportation to hospital and was forced to drive himself to Emergency, where his leg was later put in a cast. In that case the employer was found to have “failed to take a reasonable precaution of providing appropriate medical attention to an injured worker at a workplace and or providing transportation for the injured worker to a hospital”. Compared to this, the Grievor’s injury was relatively minor and the employer provided transportation for medical care at a hospital. That case is found to be not on all fours with the present matter. - 15 - [36] In the instant matter I find that the employer acted reasonably in delivering health care and providing transportation for the Grievor. However, options were available to the Grievor if she felt unsafe at the prospect of driving home, such as asking Ms. Rock to find a driver or have the driver of the car she was in take her home. Alternatively, the Grievor could have asked Ms. Rock or her driver back from the St. Thomas hospital to call a taxi or an Uber. However, these things she did not do and the Grievor drove her own car home and without incident. I find that it is not possible to reach the conclusion that the employer acted unreasonably in the manner with which it provided the transportation that it did. [37] As such, and for all the foregoing reasons, it is found that the grievance cannot succeed and must be denied. By way of summary, it is found that the assault on the Grievor arose out of the situation of the Grievor deviating from the policies and procedures of the institution, and not because the Employer failed to have in place reasonable provisions or precautions to guard against assault by an inmate. It is also found that the Employer acted reasonably and without undue delay in delivering health care and transportation for the Grievor to and from the hospital. Additionally, it is found that the Employer acted in a reasonable manner by not impeding the Grievor from then driving herself home that evening from the EMDC car park. [38] Accordingly, the grievance is denied. Dated at Toronto, Ontario this 21st day of October 2024. “David R. Williamson” David R. Williamson, Arbitrator