HomeMy WebLinkAbout1992-3352.Lounds.95-01-16O&AR/O EMPLOY& DE LA COLIRONNE
CROWNEMPLOYEEi DE L’ONTARIO
RIEVANCE COMMISSION DE
BOARD DES GRIEFS
180 DUNOAt+ STREET WEST, SUITE 2100, TOPONTO, ONTARIO. MSG iZ8
180, RUE DUNDAS.OUEST, BUREAU 2100, TORONTO ~oNTARIOJ. MEG 128
THE
BEFORE
FOR THE
GRIEVOR
FOR TEE
S. Shamie
EMPLOYER
Counsel
BEARING
TELEPHONE’/Tt;LcPHONE: (4 76) 326- 1388
FACSIMILE/TiL&OPIE : (4 76) 326- 1396
GSB# 3352/92
OPSEU# OLB035/93
IN TEE MATTER OF AN ARBITRATION I
Under
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before '
THE GRIEVANCE SETTLEMENT BOARD s
OLBEU (Lounds)
- and -
.Gkievor
I
The Crown in Right of Ontario
(Liquor Licence Board of Ontarioj
Employer
W. Kaplan Vice-Chairperson
L. Steinberg
Counsel
Koskie & Minsky
Barristers & Solicitors
Hicks Morley Hamilton Stewart Storie
Barristers & Solicitors
May 13: i994
June 9, 1994
August 5, 8, & 12, I994
September 8, 9, 20; & 30, 1994
October 13, 1994
November 6 & 24, 1994
December 14, 1994
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On January 29, 1993, Harold Lounds, a long-service Inspector employed. by
the Liquor Licence Board of Ontario (hereafter “the LLBO”), was discharged..
The termination letter reads as follows: “The position of Inspector, as you ..
are aware, demands trust and, integrity. It is our opinion, that upon a further
review of your situation; those elements have been severely breached, such
that the employment relationship can no longer be continued.” Later that 1
day, a grievance was filed and the case proceeded to a hearing in Toronto.
The backgrdund to this case can be summarized as follows. .A Toronto Star
reporter, Kevin Donovan, received a tip that the grievor was accepting
bribes from individuals seeking liquor licences. Mr: Donovan arranged. to
meet the grievor, and did so on May 22, 1992, at a location in Scarborough. ’
This meeting, and several others held over the course of the summer of
1992, was surreptitiously recorded. Another Star reporter, Phillip Mascoll, _._
was also involved, and at a meeting held on June 2, 1992, an envelope
containing $500 was passed to the grievor. A Star photographer took
pictures at this meeting, but these ,photographs are inconclusive. There is
really n’o dispute ‘between the parties that a small envelope containing
money .was passed to the grievor. The employer takes the position that the
grievor had earlier solicited a bribe, and. understood, when he received -the /
small ,envelope, that it contained money. The union takes the posit/on that
the grievor never solicited a bribe, and believed that the small envelope
contained a document necessary for the application process, namely, a
completed form letter from the Scarborough City Clerk. There is no dispute
between the parties that the grievor accepted the small envelope, without
examining its contents, and placed it inside a larger envelope containing a
liquor, licence’ application. The grievor retained the larger envelope, and,
according to the union, he later disposed of it when he determined that ‘Mr.
Donovan .and Mr. Mascoll were not serious about obtaining a liquor licence.
These and other events, to be outlined in detail later in this award, were, in
August 1992, reported in the Star. An LLBO ‘investigation was initiated and
the grievor was first suspended and, in January 1.993, discharged from ._
employment. In the. meantime, he had also been criminally charged with \
accepting a bribe. The criminal proceedings were concluding as these
proceedings were ‘beginning. Ultimately, .on June 2.2, 1994,’ the criminal
charge was. dismissed. The presiding judge indicated that. she ‘had a
“reasonable doubt” about the guilt of the accused.
AS a result of these criminal proceedings, the employer became. aware of
the allegations of .Mr. Mohammed Zak Khan. Mr. Khan alleged that he too had
given the grievor a $500 bribe, and he- was called to give evidence with
respect to this event:
The ‘parties were in agreement from the outset: this case turns. on
credibility... Who is to be believed? Mr. Donovan, -Mr. Mascoll, and Mr. Khan,
or the grievor, who denies ever accepting a bribe from anyone and claims
instead that he was merely doing his job. For its part,. the employer takes
the position that the grievor was justly dismissed for two reasons: first,
accepting a.- bribe from Mr. Mascoll; and the misconduct associated with that
event; and second, his related but prior misconduct, brought to light after
his discharge, .in accepting a bribe from Mr. Khan. For its part, the union
takes the position that the evidence does not support these allegations of
-misconduct, and that the grievor’s version of events, is not .only to be
preferred but to be believed. In making assessments about credibility, I not
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only had the opportunity to view all. the key witnesses and hear the’ir
evidence; but I also had the benefit of listening to tape recordings made at
a number of key meetings with the grievor and of reading various
transcripts of these meetings that were subsequently prepared by Mr.
Donovan, by ‘the police, and by the lawyer representing the grievor in the
criminal courts. While the quality of these transcripts is not high, the
J actual tapes were played on numerous occasions during the hearing and I
was in a position to compare the transcripts with the tapes and, insofar as
the key conversations are concerned, to’come to some conclusions about
exactly what was said.
The Employer’s Case
Evidence of Violet Demesey
Ms. Dempsey testified. A long-sewing LLBO employee, Ms. Dempsey is the
Manager of Licensing Sales Operations, and, at the time she gave her
evidence, had held that position for approximately one year. Ms. Dempsey
testified generally about the structure and organization of the LLBO, and
explained that licensing and inspections were two separate branches. The
key part of her evidence’ -however, concerned the. liquor Jicence application
process,. which she described in considerable detail. The grava.man of this
evidence was as follows! -individuals obtain application forms, complete
those forms, arrange for the submission of supporting documents, such as
the City Clerk’s form letter, submit their completed applications to the
Board, and await a decision. If there are deficiencies in the application, or
missing documents’ the applicant is notified.
This process, which has been in place since 1990, does not initially involve
Inspectors such as the grievor. Inspectors become involved only toward the
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end of the -application process on two specific occasions. ‘Some,times, for
example, if the application’ includes a request for a licence for an outdoor
area, Ms. Dempsey’s branch will contact .the Regional Manager, who will
assign an inspector, such as the grievor, to attend at the premises to
appraise the outdoor area and answer specific LLBO inquiries with respect
to it. This, inspection is referred to as the “approval phase inspection.”
Inspectors ‘81~0 become 4nvolved after the applicat?n is approved.
Applicants are then notified that an inspector will’ within seven days. of n
this notification, attend at the premises in order to conduct the “final
inspection.” At this inspection, the inspector obtains necessary compliance
letters as well as a certified cheque in the amount of the licensing fee.
Upon receiving the inspector’s final report and the supporting documents, ‘, \
’ J the licence is~ issued.
Cross-Examination of Ms. Dempsey ’
In cross-examination, Ms..Dempsey agreed that inspectors, such as the
grievor, used to work out of their homes. Ms. Dempsey was aware that some
inspectors were provided with blank copies of the application. package, but
she believed that these blank applications ‘were given to’ inspectors in
remote parts of the province in’ order to facilitate the? distribution to. .’
potential applicants..
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With respect to the application process earlier described, Ms. .Dempsey
’ testified that significant changes were made to this process in 1990. Prior \
to that time, inspectors were required to visit the premises of prospective
applicants soon after the application was received. The main change is that
inspectors, post-l 990, most often visit the premises a-fter the application
has been approved. The earlier approval phase inspection takes place
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approximately 30-40 percent of the time, usually when the application ,. 1
includes. a request for a licensed pat’io. Ms. Dempsey agreed that there was
not much an inspector could do to “grease the wheels,” given the, routine (
nature of the approval process.
Evidence of Tom Bolton
Mr. Bolton testified. He is the Director of the Inspection and Investigation
Branch, and at the time of the hearing had held that position for
approximately four years. The grievor, a member of that branch,, reported to
a Begional Manager who, in turn, reported to Mr. Bolton.
Mr. Bolton identified a lengthy manual containing the LLBO’s policies and
procedures (hereafter “the, Manual”). The grievor, like other inspectors, -
received a copy of this Manual, which defines, the approval phase inspection
as follows:
An on-site inspection of an ‘establishment, done during
the application process, onlv bv excer>tiok Both a
licence officer and an inspection manager must approve.
the request for an approval phase inspection. The
purpose of the inspection is to verify the information
submitted in a licence application, before the application
is approved. Approval phase inspections are alwaysdone
for “new sale licence” applications and. for applications
where a new “proposed licensed” outdoor area is applied . .
for”(emphasis in original).
The Manual goes on to state:
Approval phase inspections are required to resolve
issues and objections that are identified during the
evaluation of licence application and supporting
documentation.
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r These inspections are always done when the Board
receives written objections on an application, or an
application for a new proposed licensed outdoor area and
can be done on, an exception basis with the approval of
the inspection manager in other cases....
Mr. Bolton corroborated. Ms. Dempsey’s evidence with respect to the
assignment of insDectors to approval’ phase inspections. He also confirmed
her evidence that the only’other time that inspectors are involved in the
application process is when they conduct the final inspection, also referred
to as the “issuance phase inspection.” Inspectors are assigned to this task
by their Regional Manager, and it involves an inspector in collecting the
necessary supporting documentation and in verifying the contents of a
questionnaire. The inspector will, following the inspection, prepare and
submit a report. ’ ‘..
According to Mr. Bolton, prior to 1990, inspectors conducted what was then
referred to as a verification inspection. Similar in nature to the approval
phase inspection, this verification inspection required inspectors to attend
at the applicant’s premises ,at an early stage in the application process.
This verification inspection. was eliminated in 1990 as a result of. the .’
passage of new legislation which streamlined the entire application
process. Applicants were now responsible for their applications; and the
role of the inspector shifted as a greater emphasis was placed. on
compliance. These changes, which were explained to inspectors, did not go
over well with many of the more senior inspectors, who felt that the
verification inspection *should be reinstated.. Nevertheless, the new policy
was not changed.
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At the time of the events described in this award, -many inspectors, such as. :./“.; 1
the grievor, worked out of their homes. They were required to maintain
their inspection-related records in their home offices.’ They were also , .
required to keep and maintain diaries and reports which set out their daily
activities in chronological order. Inspectors were not supposed to be
involved in the actual application process, and if they got a call or a
request from a prospective applicant seeking assistance, the proper
response was to refer the caller to an appropriate official at the LLBO. In
the event that an inspector out in the field was given an application form,
Mr.. Bolton testified ‘that the proper action was to, forward that application
form to the LLBO. It would not be appropriate, in Mr. Bolton’s view, for the ’
inspector to retain the application form or to become involved with it.
Under no circumstances should an application obtained in this manner be
thrown away.
Cross-Examination of Mr. Bolton
In cross-examination,, Mr. Bolton agreed that he was not aware of any policy
‘or procedure ‘which prohibited inspectors from meeting with licence
applicants. However, it was his view that the omission .of such a policy was
not significant; what was important was that the Manual set out the
policies to be followed, and these policies did not contemplate meeting
with applicants’ other than at an approval phase inspection or ‘at a final
inspection. Moreover, he testified that inspectors have been advised on
many occasions since the 1990 changes were introduced not to meet with
applicants. Mr. Bolton, however, agreed that inspectors were given blank,
application packages to distribute to potential applicants. This was done,
he testified, as part of the LLBO’s commitment to customer service.
Inspectors were advised simply to drop the package off and, other than the
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two inspections earlier referred to, were instructed to have no contact
with applicants. .Questions were not to be answered by inspectors, but
referred to the LLBO for reply.
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During. the grievor’s criminal trial, evidence was given on his behalf by Mr.
Roger Oliver, the grievor’s : supervisor. Mr. Oliver, who also testified in
these proceedings (although initially he gave quite a different account)‘, ’
told the criminal court that it was not wrong for an inspector to throw an
application package once he or she had concluded that the applicants no
longer wished to proceed. Mr.’ Oliver also testified that he was of the
opinion that the LLBO did not process incomplete forms; he agreed that
there would be ‘no reasonfor an inspector to submit such an incomplete
form, assuming that one had been passed ‘on to him. He also told the court
that he .was aware of inspectors assisting applicants- in’ completing their
applications. Mr. .Bolton, on being advised. of this evidence, testified that he
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.did not agree with any of it, and took the position that it -did not reflect
established LLBO practices. If an. inspector was given an application and
asked to hang on to it, he,or she should decline that request. Applications,
incomplete or not, if accepted, should be promptly forwarded to the LLBO;
they should never be thrown out.
Mr. Bolton was referred ‘to the grievor’s position specification, and to a
number of duties and responsibilities indicating that inspectors have
contact with prospective applicants. In Mr. Bolton’s view, these duties
must be interpreted in context, and that context was furnished by the
limitations placed on inspectors in the application process - namely, to the
two inspections described .above. Needless to say, inspectors are entitled
to answer questions when conducting those inspections, but they should
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only answer questions directly relating to their assigned duties. Requests /!
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for further or other information should be referred to the LLBO.. Under no:
circumstances should an inspector meet with an applicant to review the
application, ‘to assess floor plans, or. to answer questions about the
application and approval process prior to submission of the application to
the.LLBO. The application package has been drafted in such a way as to be
filled out easily by the applicant, and inspectors have no role in this
process except during the approval or final phase inspection.
While some inspectors worked out of their homes, there was virtually no
possibility, in Mr. Bolton’s opinion, of a prospective applicant who called
‘the LLBO for information being referred to an inspector. -It was much more
likely that a prospective applicant would obtain the/name of the inspector
from another licensee in the neighbourhood. ‘Then the inspector might be
contacted directly, but in those circumstances, the inspector, after
dropping the. application -package off, should refer the applicant to the LLBO
if he or she had ,any’ questions or concerns.
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Mr. Bolton agreed that these new procedures represented a significant
“change in the role of the inspector, for the pre-1990 verification
inspections were conducted as early as possible during ‘the application
process. Then .it was both normal and expected that inspectors would
answer questions and provide assistance to prospective applicants at these
meetings. In 1990, however, all of that changed.
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Re-examination of Mr. Bolton
In re-examination, Mr. Bolton testified that inspectors,would be assigned to
- a verification inspection following receipt of the application ‘by the.
licensing. branch. :
Evidence of Mohammed Zak Khan
Mr. Khan testified under subpoena. He is the owner of a building located at
36 1 Yonge -Street. Much -of Mr. Khan’s evidence related to difficulties he has
had with one of his neighbours, the owner of the adjacent premises: the
Zanzibar strip bar. Mr. Khan testified to what he believes is a conspiracy
directed at preventing him from obtaining an, “adult entertainment” licence.
He believes that this conspiracy involves the owner of the Zanzibar and
.. certain .municipal politicians. At the time that he ‘gave evidence, Mr. Khan,
and his lawyer ,were facing criminal charges for uttering a false affidavit
with respect to his attempt to obtain an”adult entertainment” licence. Mr.
_’ .Khan does not have a criminal record.
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Mr. Khan’s conspiracy theory’ as well as the nature of his. business, added a
certain’ flavour to his evidence, the substance of. which was that he .offered
the grievor a bribe and this offer was accepted.
According to. Mr. Khan, he bought the Yonge Street building in .February 1989
and, after a tenant moved out, he.decided to open a bar. He applied for a
liquor licence just before Christmas 1989 or early in’ 1990. He attended at L
LLBO offices and obtained an application form.- He began renovations
directed at preparing the -premises for a bar, ‘but .was quickly.advised by the
owner .of the Zanzibar, and others, that this endeavour did- not meet with
their approval. Concerned about the influence of these individuals, which he
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believed reached right into City Hall, Mr. Khan decided he needed to even the
odds. On the advice of the owner of a restaurant on Church Street called Mr.
Tasty’s, he contacted the grievor by telephone. The grievor asked Mr. Khan ,
if he had already submitted his application. Mr. Khan said no, and, the
grievor then said “good.” A meeting was arranged and took place at Mr,
Tasty’,s in October 1990.
Mr. Khan testified that the grievor arrived at the meeting and began asking
him all sorts of questions about his proposed establishment. Among the
questions asked was whether a patio was involved, if Mr. Khan had a , ..
criminal record, the number of seats in the bar, and so on. Mr. Khan advised
the grievor that he believed he met the criteria for a licence, but that he !
wished to ensure that his application was approved without problems.. The
grievor then indicated that he had helped others out. The grievor- also ‘\
indicated that he knew the owner of the Zanzibar. This concerned Mr. Khan
because he believed’ as already indicated, that the owner of the Zanzibar
was dire‘cting a conspiracy aimed at ensuring that he not obtain a liquor
licence or an adult entertainment licence. Mr. Khan raised his concern with
the grievor, who replied, “if you take care of me, I will take care of you.”
Mr. Khan then asked how he could “take care” of the grievor. The grievor
advised him that his wife needed a new VCR., -Mr. Khan asked. whether $500
would be acceptable, and the grievor said “yes, whatever,” repeating that
expression twice. Mr. Khan had had an inkling that money might change
hands, and came to the meeting with $500 in his pocket. *The grievor then
reached behind him to a garbage receptacle/condiment display and obtained
some napkins. He opened the napkins, and Mr. Khan testified that he took the
money out of his ‘pocket and placed it inside the napkins. The, grievor then
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folded the napkins, and put them and the money inside his pocket.
It was pointed out to Mr. Khan in questioning that the evidence would
establish that it was physically impossible for the grievor to have reached
behind to the condiment display to pick up the napkins, as, that d&play was
approximately six feet away. Mr. Khan did not have an explanation for this
discrepancy..
After giving the grievor the money, the grievor told Mr. Khan to submit his
application and advised him that he would look after it. Some further
discussion about the assistance the grievor had provided to others
followed,. -and about the nature of the grievor’s relationship with the owner
of the. Zanzibar. The grievor .warned Mr. Khan not to say anything about the
bribe, and told him that. if he did he would arrange for some employees or
associates of the owner of the Zanzibar to deal with that situation. As Mr.
Khan was seeking protection from the influence of the owner of the
Zanzibar, he found these concluding comments particularly disturbing. The
meeting;‘however, was at an end. Mr. Khan’ subsequently submitted his
application, and. in March or April 1991 it ‘was approved.. ,
Mr. Khan had no contact with the grievor between the October 1990 meeting
and the application’s approval in the spring of 1991. However, for reasons
related to his inability to obtain an “adult entertainment” licence, Mr. Khan
had to seek a number of extensions of his liquor 4icence application.
Normally, an. applicant is required to open a facility within a specified time
period after receiving the licence. One day, in the spring of 1992, while
seeking this extension, Mr. Khan was sitting in the reception room, at LLBO
headquarters. The grievor approached him and asked how he was. Mr. Khari
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advised the grievor that he was seeking an extension and asked him if he ./ ,
thought it was possible. The grievor, who was sitting down beside. him at /
this point, then said “anything is~possible,” and he opened h’is. palm to .Mr.
Khan and gave him a look drawing his attention to the open palm.
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This conversation was interrupted somewhat. by the arrival of Roger Oliver,
who stayed-to chat. Mr. Oliver spoke to Mr. Khan’as if, he knew him, although
Mr. Khan testified that he had never seen him before.’ Mr. Khan came away
from the meeting with the impression that Mr. Oliver was also on the take.
And even though the’grievor had told him that “anything was possible,” Mr.
Khan did not contact him again because he was concerned about the ‘. _J
grievor’s relationship. with the owner of the Zanzibar.
According to Mr. Khan, all these events left a bad taste in his month, and he
‘considered informing the police as early as the fall‘ of 1990. After the
meeting at LLBO headquarters, Mr. Khan concluded that it might be more
effective to contact the press, and he called the Star. He met with Mr.
Donovan approximately one week,after seeing the grievor and Mr. Oliver at
the LLBO head office. After Mr. Donovan and. Mr. Mascoll were arrested, as
set out below, Mr. Khan ‘contacted Mr. Donovan a,nd told him not ,to mention
his name. In February or March 1994, after reading the Star’s report on the
grievor’s criminal trial, in particular the grievor’s claim that he had never
taken money from anyone, Mr. Khan contacted the crown attorney who was
presenting the case and advised him of these events. Mr. Khan signed, an
immunity agreement providing that he would not be charged for giving the ,
grievor a. .bribe, and later testified at the grievor’s trial.
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Cross-Examination. of Mr. -Khan :- :
Union counsel‘ began his cross-examination of Mr: Khan by. asking him some
questions about the criminal charge he and his lawyer faced. His lawyer
was charged first, on February 23, 1994; he was charged on March 3, 1994.
Mr. Khan testified that he was surprised when he was charged, and
surprised when his lawyer was charged. The charges relate to an affidavit
stating, that the grievor’s building was once used as an “adult
,entertainment” facility. This information was necessary to support the
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grievor’s application for an “adult entertainment” licence. To make a long
story short, Mr. Khan claims that he obtained an affidavit to this effect
from someone .who knew the history of the property. The person who signed
that. affadavit subsequently. signed another affidavit stating that he never
signed the first affidavit. ’ The individual involved is an associate -of the
owner of the Zanzibar. The criminal charges followed. Mr. Khan is of the !
view that all these activities, including the recanting of the affidavit and
the laying of the criminal charges, were further evidence 1 of the, conspiracy
.against him.
It was suggested to Mr. Khan that one of the reasons he @resented himself
to the crown attorney. prosecuting the grievor was because he knew he ._
would. soon be criminally charged, and he hoped, therefore, to avoid those
-criminal charges by ‘providing evidence against .the grievor. Mr. Khan denied
that the one event had anyth.ing to do with the other, although he agreed
that he went to see the crown attorney prosecuting the grievor a day or so
before he himself was charged. Mr. Khan insisted that the only reason.he ’
contacted the crown attorney was because he wanted the truth about the
grievor’s activities. to emerge, .particularly since the grievor was claiming
that he had never taken. a bribe. Mr. Khan agreed that in. deciding to come
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forward with his evidence, he was also influenced by the fact that the /
grievor was a friend of the owner of the Zanzibar and that he was having
difficulties with that individual.
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After Mr. *Khan approached the crown attorney, an interview was held, and
this interview was taped and a transcript subsequently prepared. Mr. Khan
was referred to a number of the questions and answers on that document, as
well as to his, questions and answers in the grievor’s criminal proceeding,
in an attempt to impeach his ‘credibility. For example, .Mr. Khan did not ever
state to the crown attorney or at the criminal trial that one reason he came
forward was because he read in the newspaper that the grievor was denying
ever taking a bribe. Another inconsis.tency involved whether Mr. Khan had
only $500 when he ‘met the grievor at Mr. Tasty’s or whether he also had
some other money in his pocket. Other inconsistencies of a similar nature
were explored, and by and large the grievor explained them by saying that
when he gave his statement to the crown attorney and when he testified at
the grievor’s criminal trial, he was not asked as many detailed questions as
he was in these proceedings. It therefore stood to reason that his
responses would be more detailed in these proceedings than they were on’
previous occasions.
Mr. Khan testified that he first heard the grievor’s name from the owner of
the Sai Woo. Mr. Khan was not sure about the name of the individual
involved, but stated that whoever it was who told him the grievor’s name
also gave him the grievor’s telephone number. That person did not tell him
that a bribe would be required. Some time thereafter Mr. Khan was in Mr.
Tasty’s restaurant, which is located close to his home, and. he asked one of
the owners about obtaining assistance in securing a liquor license. I, He was
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then referred to one of the other owners, who also provided him with the
grievor’s name and telephone number. At no time was any suggestion made
that a bribe would be required. When Mr. Khan met the grievor, he advised
him .how he had obtained his name and telephone number.
As already noted, -Mr. Khan testified ,that the grievor, immediately. after the
bribe was presented, reached behind and collected some, napkins, in which
he put the. money. The evidence, both testimantary and documentary,
establishes that this would have been impossible. Some photographs were
introduced proving that this could not have occurred in the manner
described by Mr. -Khan. The grievor would have had to get up out of his chair
and walk over to the napkin dispenser. Mr. Khan was certain that the
grievor never lefthis seat, but he testified that he did not .watch him all
the time. His attention was focused on his pocket when he reached in to get
the $SOO&rt. He was attempting to.ensure that he gave the grievor only.
$500; and so for some. time at least he was not watching the .grievor. ‘Mr.
Khan agreed that it would be physically impossible for the grievor to obtain
some napkins w.ithout leavin,g his c:hair.
According .to Mr. Khan, the grievor never explained exactly how he had
helped others, he simply repeated the claim that ‘he -had done so. He also ._
told Mr. .Khan that the inspectors were assigned to different geographical
areas, but still looked out for each-other. Mr. Khan understood this‘to mean
that even though the grievor was now assigned to Scarborough; he could ‘.
still help him out with any problems he had in downtown Toronto.
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Mr. Khan was asked why he had $500 inhis pocket, and he testified that. he
brought- it. for the grievor because he.-did not think that the grievor would do
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anything to help him out for free. He agreed that no one had told him that he / <
needed to give the grievor money; he came to this conclusion himself,
inferring from the individuals he had spoken to that giving the grievor
money would -facilitate the processing of his application. What other
reason, Mr. Khan aske‘d, wou!d the grievor have’ to drive down ,from
Scarborough to meet him? The conclusion that the grievor wanted money
was confirmed to Mr. Khan when the grievor indicated that the inspectors
looked after each other, and that if he, Mr. Khan, looked after the grievor,
the ,grievor would look .after him. When the grievor next began- talking about
his wife, and her desire for a VCR, Mr. Khan had no remaining doubts that
the grievor wanted a bribe. ,
Mr. Khan repeated’ his earlier evidence to the effect that the grievor then
obtained so.me napkins and wrapped the $500 in those napkins before
putting the package in his pocket. The grievor then advised Mr. Khan to get
the application in and said he’would take care of it. He also added that Mr.
Khan should not say anything about the bribe, and that if he did, the grievor
could arrange, because of his association with the owner of the Zanzibar,
for Mr. Khan to be taken care of.
After’ this meeting, the grievor and Mr. Khan did not meet a,gain until they c
run into each other in the lobby of the LLBO sometime in the spring of 1992.
Mr. Khan agreed that the receptionist was in a position to see him and the
grievor, and that people were coming and going out of the area. He testified
that when, the grievor opened his palm and stated that “anything was
possible,” he did not flap his hand around. Mr. Khan agreed that asking for a
bribe in the reception area of the LLBO’s headquarters was a foolhardy thing
to do, and he testified that this is one of the. reasons why he contacted the
.
Star. Such, brazen conduct- suggested to him that the problem-of bribery ,in
the LLBC was rampant, to say the least. At some point, the grievor and Mr.
Oliver whispered to each other, ‘and, along with Mr. Oliver claiming to know
him when he did not, this whispering had the effect of heightening Mr./
Khan’s already aroused suspicions. .As a relative newcomer to Canada, Mr. ”
’ Khan testified that he was ashamed that things like this would go on in this / ,- country. ’
-.
He did not, however, contact the police,. and one. reason .for not doing so was
his fear that the grievor and the owner, of the Zanzibar would turn against !
him. A tip to the newspaper could secure the same result, and could ensure
that his privacy and identity were protected. When Mr. Khan met Mr. Donvan,
he told him much of what had transpired. He then had no further contact ’
with Mr. Donovan- until the summer of 1992, .when he read in the paper that
~ Mr. Donovan ,and Mr. Mascoll had been arrested for attempting to bribe’ the
grievor. Mr. Khan contacted Mr. Donovan and asked him to keep his name out i
: “of it: ..-
Mr. ,Khan was asked a number of questions about his’ efforts to secure an
1 “adult entertainment” licence, and his conclusions, based on the failure of
these efforts and the laying of a criminal charge .against him, that there
was a conspiracy against him.directed by the owner of the Zanzibar and
involvingi various municipal politicians. Suffice it to say that Mr. Khan
could provide no direct evidence of a conspiracy. About the same time Mr. , ,
Khan learned that his efforts to obtain an “adult entertainment” licence had
been unsuccessful and that he had come under the scrutiny of the police for
allegedly forging .an affidavit; he also read in the newspaper that the
grievor was denying’having accepted a bribe, and he decided to contact the
I .!
20 ,, ; n .
crown attorney. Mr. Khan insisted, however, that these events were not --/J : /
connected.
Re-examination of Mr.. Khan
In re-examination, Mr. Khan was asked about the immunity agreement he
signed after he approached the crown attorney who was’ prosecuting the
grievor. He’ testified .that there was no discussion at that time about I
extending the immunity to any charge‘of forging an affidavit. Mr. Khan
testified that there could have/been no such discussion, as he .did not know, I
at that time, that he was going to be charged with that offence.
--Evidence of Kevin Donovan
Mr. Donovan, testified under subpoena. - Mr. Donovan,’ the winner of the 1990
National Newspaper Award, has worked for the Star for nine years and is its
full-time investigative reporter. In April 1992 Mr. Donovan received w.ord
from one of his colleagues that someone had telephoned the Star
switchboard and had. made allegations about corruption at the LLBO.
‘According’ to ‘Mr. Donovan, the Star receives thirty to forty calls a day from ~
members of the public with stories to tell, but few of these callers are ,as
definite as Mr. Khan wasabout the misconduct alleged. ‘Mr. Donovan
returned Mr. Khan’s call the day he received it, and the two men spoke on the
l telephone for, approximately thirty .minutes. In his evidence, Mr. Donovan
basically reiterated the story earlier told by Mr. Khan, with a number of /
notable exceptions.
\
According to Mr. Donovan, Mr. Khan-reported to him that he met with the
grievor twice, and that it was at the second meeting that money,*changed
hands. Mr. Khan also told Mr. Donovan that it/&as his view that this
21. ._ .:..
experience, of being forced to pay a bribe to obtain a benefit such as -a
jiquor licence, was not unique among immigrants and persons of colour. In
any event, Mr. Donovan met with Mr. Khan within a day or two’and Mr. Khan
repeated his story. Mr. Donovan testified that the story he was told at this
meeting, ,and one held at a donutshop attached to, Mr. Tasty’s the following
week, was consistent with the story told on the telephone. The ‘two men
spoke from time to time on the telephone in the ensuing months.
After meeting with Mr. Khan, Mr. Donovan dropped in at Mr. Tasty’s over the
course of several days and struck up a conversation with ttie man who
appeared to own the restaurant. Mr. Donovan told the man that he was
planning to open a bar of his own and inquired about the licensing process.
The man at Mr. Tasty’s informed’ Mr. Donovan that he knew an inspector %ho
could help Mr. Donovan out, and he provided him with the grievor’s name.
This event corroborated somewhat the story Mr. Khan had told, and Mr.
Donovan decided to pursue the story. He got the grievor’s telephone number
from the LLBO, and was also sent a package of application materials.
During a telephone inquiry to the LLBO, Mr. Donovan asked if he should, as a
prospective licensee, contact an inspector directly and he was told that he
,should not, as an inspector became involved in the process only after the
LLBO had received an application and had decided to inspect .the premises.
Mr. Donovan then conducted some background checks on the grievor, II
following which he telephoned’ him and advised him that he frequented Mr.
Tasty’s and had received the grievor’s name from “Jimmy.” Mr. Donovan
expressed an interest in opening a bar, and told the grievor that “Jimmy”
had suggested that the grievor might be in a position to help him out, The
-grievor indicated that he knew Jimmy - “a great guy” - and that he would be
i
?
22 i.
happy to help Mr. Donovan out. The two men agreed-to meet, on May 22,
1992, at a location on Warden, Avenue in Scarborough, the site of Mr.
Donovan’s prospective bar. Mr. Donovan chose this particular location for
one main reason: it did not appear suitable for a bar. Accordingly, he
thought that it might provide an inspector with an opportunity’to “help him
pt.”
The meeting took place as arranged, but unbeknownst to the grievor, Mr.
Donovan. was wearing .a “body pack” for the purpose of recording the
I discussion. As Mr. Khan had suggested that the grievor .had a habit of taking
bribes from immigrants and visible minorities, Mr. Donovan contrived a
story which had hjm going into business with an “Indian guy.” The grievor
and Mr. Donovan then inspected the proposed premises, and the grievor
provided Mr. Donovan with copies of forms to be filled out, as Mr. Donovan
had not brought the blank application package he. had earlier obtained. The
grievor then began to fill out some of the forms, and advised Mr. ‘Donovan
that he would review the application and prepare -a floor ,plan after Mr.
Donovan and his partner had completed the remaining forms. :He then went
on to state that it was not his job to provide assistance of this kind, as he
was not supposed to get involved in an’ inspection until after the application
was submitted. Some general discussion followed, and an important
conversation then occurred.
Before setting out a transcript of that discussion, some general
observations are required. The tape of this meeting, which was played
several times during the course of the proceedings, is of inferior quality
and therefore rendered the preparation ,of a completely accurate transcript
impossible. However, the grievor’s criminal defence lawyer prepared an
7
23
almost accurate transcript of what evidence can be heard. . Having listened
to the tape, I find that this transcript, insofar as the material sentences
are concerned, is accurate except in one important respect. For reasons
which will become obvious, there was a dispute between the patties as to
whether the grievor at a crucial point in the discussion said that he would
take nothing from “him” or that he would take nothing from “you” or “ya.”
The transcript prepared by the grievor’s criminal lawyer states: “Just you
tell him, I wouldn’t take nothing from him.” Having listened to the tape
several’ times; I find that it should properly read: “Just you tell him, I
wouldn’t take nothing from ya.” Except as indicated in bold below, the
.
following transcript has been copied from the version prepared by the
grievor’s criminal counsel.
Donovan: Okay, you getting anything for this? Or....
Lounds: No, you don’t have to, like. If you had big dough
or something, sure, but I’m not.
Donovan: Well this Indian guy’s got the big dough.
i.
Lounds: Well -you get it from him, tell ‘em. Just you ’
tell him, I wouldn’t take nothing from ya. If a guy,
and I . . . listen. If I had a nickel for every time -I did
somethin’ for nothin’ I’d be wealthy.‘On the other hand,
some guy, yeah, they treat me right. But I don’t do my’ job’
-for that reason. I like it to be done right.
Donovan: Yeah.
Lounds: I, honestly do (inaudible).
Donovan: (inaudible)
Lounds: You know, why, why screw it up for people,
(inaudible) That’s ‘my attitude. (inaudible) Yeah, some
guys have some dough and they (inaudible).
24, F
Donovan: What do they do?
Lounds: Well, you know, I mean. I’m treated ok
(inaudible), I never ask for anything. It’s that, that’s just
not right.
Donovan: Yeah.
Lounds: After that, I don’t (inaudible)
Donovan: What do they do? Cuz like, do you (inaudible).
Lounds: No, no, I mean just people; you know. People
that, that maybe I’ve done applications for, sure. Over
the years, with different guys there they (inaudible)
Donovan: Oh, like dinner, or shit like that.
Lounds: Well, whatever (inaudible) If I had to do that, I’d
get out of this job and get onto construction. Maybe
when I retire (inaudible). (inaudible) every place we go,
half the people you talk to, I don’t know if I’m checking
on them or their checkin’ on me.
Donovan! What, do you mean like, “Do I have to pay
someone?“; and shit.
Lounds: (inaudible)
Donovan: Like I say, well this Indian guy, like, you know,
he’s got lots .of bucks,
Lounds: I’m tellin’ you, you get the stuff. You know, go
over it with him and then, if that’s what you want. The
only thing I, I think, ‘here, the rent sure seems
reasonable.
. . . .
Mr. Donovan testifie,d that he had absolutely ‘no doubt, both during and
following this meeting, that the grievor, was soliciting a bribe, although he ,’ i
never actually came right out and asked for money. Nevertheless, Mr. -. I
Donovan was convinced, given the grievor’s comments about “big dough,” and
“get it from him,” and “people treating him right,” that he was .dealing with
i a ,public official who was accepting illegal bribes.1
Following this meeting and disc,ussions with his .editor, Mr. Donovan
involved another Star reporter, Phillip Mascoll, who was originally from ..
Jamaica. Mr. Donovan then telephoned the grievor and told h’im that the
partnership had not worked out with the “Indian guy,” but that a “Mr. ‘.
Martinez” was now involved. A meeting was arranged for June 2, 1992, at a
Lick’s restaurant near the Warden Avenue location. Mike Slaughter, a Star
photographer, took up a position in a concealed van near the outdoor patio
for the purpose of actually taking a picture of the grievor accepting money.
Five hundred dollars was placed in a small. envelope, and Mr. Mascoll put
that money in his inside suit pocket. This lenvelope, already referred to as
the “small envelope,” was a typical Consumers Gas utility bill envelope, an i
example of which was introduced into evidence. / 1
In preparation for this meeting’ Mr. Donovan and Mr. Mascoll also completed
several sections of the application form. Mr. Donovan testified that he
prepared a rudimentary bar price list’ and drew a rough and deliberately
inaccurate sketch of the interior premises to see what kind of assistance
the grievor would provide. Both Sta,r reporters were fitted with body packs,
and it was agreed that at some point during the meeting Mr. Donovan would ’ go inside the restaurant in order to give “Mr. Martinez” an opportunity, to
_ present the bribe. b
.‘
- ..-. ‘-
0
\ 26 ; 5
2 According to Mr. Do,no,van, the meeting began around 1:OO p.m. on June 2, . :
1992, and it lasted for approximately ,fifty minutes. -Mr. ,Donovan and Mr.
Mascoll had brought the partially completed application form with them, ’ .
and the grievor reviewed the documents and also filled in a large number of
the blanks, making numerous suggestions of what he considered to be an ? appropriate response. He stated that he would fix up the floor plans with
red ink where appropriate, and would also help in improving the liquor and .
soft-drink price list. The grievor volunteered to drop the application off at
the LLBO: At the assigned moment, Mr. Donovan left the table and testified
that he was away for ten to fifteen minutes. He testified that the grievor
seemed quite pleased on his return. ’ \ 1 c.
As already noted, a Star photographer was in attendance and he f
surreptitiously took pictures througout this meeting. These photographs
make it absolutely clear that Mr. Mascoll handed the small envelope to the
grievor. However, that envelope. was presented to the grievor face forward, <
and there is no reason to believe that the grievor could see. that there was
cash ins/de. The grievor did not inspect the contents of the envelope when
it was handed over; rather, he placed the envelope directly inside the larger ’
application package. While the photographs are not useful in, proving
\ whether the grievor knowingly accepted a bribe, the transcripts of the
‘meeting assist in this respect by furnishing .a context within which the
handing over of the small envelope can be assessed. Three separate
transcripts of this meeting were prepared: one by the grievor’s, criminal
defence lawyer,, one by the police, and one by Mr. Donovan. Obviously, since
Mr. Donovanwas not present during part of the meeting, Mr. Mascoll!s tape
recording was used. )
27.‘: ‘.
The following is the relevant portions from the transcript prepared by the
grievor’s defence lawyer:
Lounds: You’ve.got another couple of, things to do on your
menu.
Mascoll: Mm-hm. -_
Lounds: But everything else looks pretty good. ..-Now,, the
other thing yeh. Did you get the letter from the City
Clerk.
Mascoll: Yeah.
.. Donovan: Yes.
Mascoll: That’s all looked. after.
Lounds: Alright, alright. (inaudible)
Mascoll: Yeah. They only know the problem . . . if his’
report says anything naughty.
Lounds: No, everything. No, I’m going to . . . help with the
thing. -i’ll have to (inaudible) patio, that’s not a problem.
This looks fine. I’ve gotta pick some prices here . . . that’s
okay, and ydu gotta put non-alcoholic beverages in here,
I’ll do that: : .,
. .
. . .
I
’
’ Mascoll: And the certified’ cheque is easy.
Lounds: It’s seven hundred and seventy-five dollars.
Mascoll: Mm-hm.
Lounds: To the L.L.B.O.
‘. Mascoll: Mm-hm.
B
/
28 1 ’
Donovan: So.you’re gonna do the . . . ,g
Lounds:,- (inaudible) I’ll fix the rest of the stuff that I
have to do. And uh.
Mascoll: (inaudible), coffee or something Mr. Lounds?
Donovan: (inaudible)
Lounds: No, I’m okay. i
[Donovan now leaves the outside area and goes inside to
the restaurant;]
Mascoll: Mm. Ah, coffee. But I prefer talking to you
when he’s away, in certain things. I’m worried about
you’re report.
Lounds: It’s nothing wrong. Let, me put it to you this way.
Mascojl: Un-ha.
Lounds: What can, what can I honestly say bad. about,it. I
don’t know do I. And say, another thing. When you hear
from me you gotta (inaudible). And listen to’ me. Say you
had ten places, and they were all shit house operations.
Mascoll: Mm-hm.
Lounds: Does that mean .that the eleventh is going to be?
I don’t know that for a fact, do I.
Mascoll: Yes, yeah.
Lounds: I know people that, I mean, you gotta consider
the clientele, where they are and what . . . You know
maybe, I know some people that have some beautiful
places and they got some places that’s crap. So what you
gonna do? (inaudible).
Mascoll: I’m a businessman. I’ve been in business a long
time, but you know, urn. There are a lot of things .that
i
you do ‘to ease the process.
Lounds: Everything (inaudible) will be done and quickly: I
mean it.
Mascoll: What can I,’ alright. But bluntly, how can I
smooth it out:
Lounds: Well, urn, everything- . . . :
Mascoll: Can you look after that for me?
Lounds:, I’m telling yeh, all I need in this here . . . ’
Mascoll: Urn-hm. I
Lounds: Is a . . . is a.cheque for seven hundred and
seventy-five to the L.L.B.O.
Mascoll: Uh-hm’.
Lounds: And it has to be certified. One thing you -have to
do, when we put this in, it will have to be advertised.
They advertise in the Star.
Mascoll: Mm.hm. 2’
‘Lounds: That’s the law. Ah, they might give you a” placard
(inaudible). Again, that’s the law, so.
Mascoll: Yeh, .
Lounds: Ah, nothing I can do about that. ‘.
Mascoll: I know but. I wanna make sure that you’re
alright too, you know.
Lounds: I’m fine. If your anybody thatknows me: I got a
good reputation.
Mascoll: Alright, urn . . .
:
<
,-
30 _’
Lounds: . . . they’ll tell yeh.
Mascoll: . . . anything. Cost of doing business.
Lounds: That’s up to you. I never (inaudible)
Mascoll: (inaudible)
Lounds: Alright, that’s it.
Mascoll: Yeah.
Lounds: Now. Your other, okay. The only thing you have to
‘do is,get me a, cheque.
Mascoll: Alright. That’s not a problem.
Lounds: (inaudible) That’s my card.
Mascoll: Okay, good.
Lounds: And ah . . . call me.
Mascoll: Urn-hm
[More conversation follows and then Donovan returns. J
Mascoll: Alright. So it’s in good hands, Kevin. Good
hands.
More general conversation ensued, and the grievor then left the restaurant
at approximately 1:50 p.m. Mr. Donovan and Mr. Mascoll met, and Mr. Mascoll
reported to Mr. Donovan that the grievor had accepted the bribe. He also told
Mr. Donovan, incorrectly as it turned out, that he presented the small
envelope to the grievor in such a way that some of the money was sticking
out.
/
;
31 ,
Mr. Donovan testified that he did not go to the police following this event 3
because’ he is. not an .agent of the police, and he also had a source to protect. .
Moreover,. a decision had to be’made about how next to proceed. Exposing I
the grievor was.not considered at’this juncture; rather, Mr. Donovan
considered expanding the probe. However, before that could occur, a labour
, dispute at the Star .intervened and, while it was pending, neither Mr.
Donovan nor Mr: Mascoll were in a position to work on the story. The strike ,
lasted five weeks, a,nd’ when it was ‘over., Mr. Donovan called the grievor and
told him that Mr. Martinez. had had to return to Jamaica, ‘but he was ‘now
back., Mr. Donovan arranged to-meet the grievor on July-,21 ,’ 1992. The :/
purpose of this meeting was to advise the grievor that the plans .for the bar
were. back. on track. ,Mr. Mascoll also intended to’ attempt to tape the grievor
,in a more explicit ‘admission of having accepted a- bribe. .‘I
/
. .
The meeting took place as scheduled, and the grievor broughtthe
application with -him to the‘ meeting; It quickly became apparent that the ’
grievor had no information to convey with respect to .inspectors operating
elsewhere in metropolitan Toronto. A general discussion .about the Warden
.Avenue application ensued, much of it a repeat of the June 2, 1992, meeting.
As prearranged, Mr. Donovan left the table ‘.and. the following conversation,
as transcribed by -the grievor’s defence attorney, ensued:
Mascoll: Yeh: I think we’re going to. Umm, that five
hundred that I gave you, is that . . . alright? Because
there’s .more . . .
Lounds: No, no, no. I want nothing.
Upon Mr. Donovan’s return to the table, more general discussion took place,,
and the meeting ended..after the grievor again indicated that he would
32 ’ i:
submit the application as soon as he received the certified cheque.. When ../
the grievor left, he took the application package with him. Mr. Donovanand
Mr. Mascall were both concerned, in the aftermath of this meeting, that.the
grievor had “gotten on to the’m” and that this explained his unusually
subdued and restrained behaviour. Just prior to this meeting, Mr. Donovan
had interviewed a senior LLBO official and asked whether- inspectors were
taking bribes. i-le feared that information about this interview, and that
question, had somehow made its way back to the grievor.
In any event, following this meeting Mr. Donovan contacted a ,former
inspector who had been criminally convicted of taking a bribe, and an
interview was arranged. .Some other preparatory work was done, and Mr.
Donovan placed the grievor under surveillance for several days. It was
eventually decided that Mr. Donovan and Mr. Mascoll would meet the grievor I
once more, .but this’ time they would identify, themselves as Star reporters.
Mr. Donovan called the grievor on a Thursday or Friday, August 13 or 14,
1992,. and arranged to meet him the following week.
This meeting, which took place on August 17, 1992, again at Lick’s, was
also taped, and the following discussion ensued. Messrs.. Donovan and
Mascoll identified themselles. The grievor’ denied taking any money and
claimed that. he had thrown out the application package after determining
that the premises in question had been rented to a daycare centre. The
grievor was asked what he did with the money, and he replied that he threw
the package out, that he never had any money, and that although he had been
given an envelope, he kept it pending receipt of the certified cheque.
‘.
L . .
1
,33
The grievor categorically rejected the suggestion that he had received any
benefits.. When he saw the daycare-centre sign go. up, he realized that. the.
application was worthless. Had -an application fee been submitted, the
grievor stated that he would have looked in the envelope. As no cheque had
been provided, there was no reason either to look in the package or. to retain
it. The grievor also told the reporters that the only reason he agreed to help
.them was because he felt sorry for them; In’ response to a suggestion that
the grievor should never have met with them‘& all, the grievor stated th,at
he met them during lunch and coffee breaks, and that all he was trying to do
was to be helpful.
The grievor also came to this meeting wearing a body pack, although neither
Mr.. Donovan nor Mr. Mascoll were aware of this .at the time. In any event,
Mr. Donovan testified that he realized from the outset that the-grievor was
aware that they were not real applicants, for ,he showed no sign of shock
when they identified themselves as Star reporters. It :was also noteworthy
to Mr. Donovan that the first time the grievor, was asked what he did with
the $500, he answered by referring to receipt .of an envelope. The
conclusion Mr. Donovan drew was that the grievor associated ‘the envelope
and the cash and that this proved he knew what it contained.
The meeting ended by the grievor getting up to Jeave, and about ten minutes
later some police officers arrived and placed Messrs. Donovan and Mascoll
under arrest. Eventually they were informed that they would be charged
with offering a bribe. The two reporters were taken to a police station and
interrogated. A few hours later they were both released.’ The Star then,
decided to publish a story about these events, but did. not initially identify 2,’
the grievor. After the grievor was criminally charged, his identity was 1.
revealed.
Cross-Examination of Mr. Donovan
Mr. Donovan was extensively cross-examined. He agreed that .he occupied a
position of some power, and. that there were few limits on his investigative
powers. This was a responsibility he took seriously, and he testified that ‘he.
would not run a story unless .absolutely. satisfied by the evidence. He also
had to be satisfied that the story was of interest to the pub.lic and in the
public interest. In this case, Mr. Donovan believed that allegations that a
LLBO inspector was soliciting and accepting bribes met these criteria. Part
of that story, Mr. Donovan testified, was the actual, accepting of the bribe;
but the story was wider than, that, and it extended to the grievor meeting
with prospective applicants, when he knew that he was not supposed to, and
assisting them in’ the preparation of their applications.
‘Mr. Donovan was asked.a number of questions about his. involvement in these
events after the meeting ,of. August 17, 1992. To make another long story
short, Messrs’Donovan and Mascoll remained under investigation by the
police for a considerable period of time. There was a delay in obtaining
statements from them, and- part of this delay was attributable to efforts on I
Mr. Donovan’s part to protect the identity of his confidential source.
Appropriate arrangements, including an immunity agreement. for Mr.
Donovan, were eventually reached. Mr. Donovan testified that he had no
concerns about being personally charged, that he did not take the protection
of the Canada Evidence Act when he testified at the grievor’s trial, and that i
he would have testified in the absence of-an immunity agreement. What
35
concerns -he .did have during the investigatory process were directed at ,
protecting Mr. Khan’s identity from, disclosure, since ‘he had undertaken to
do so.
Some discussions also took place between the Star and the LLBO. In brief,
these discussions concerned a request to the Star from the LLBO for
information about all these events. The LLBO was advised. that any
information requested could only be obtained pursuantto a subpoena. Mr.
Donovan had one discussion with John Fournier on August 17, 1992. Mr.
Fournier was the LLBO’s Manager of Investigations and Enforcement.
Mr. Donovan was asked some questions about his meetings with Mr. Khan,. ’
and his answers established that Mr. Khan told. Mr. Donovan some things I.
about his meeting with the grievor that he did not refer to when he gave
evidence in this -proceeding. Nevertheless, insofar as the essentials of the
story were concerned, Mr. Donovan reported the same version of events .
while under cross-examination that he had reported when he-.gave his
evidence in chief. -And’ this version was consistent with the version earlier
provided by Mr. Khan, with one important exception. As already indicated,
Mr. Khan told Mr. Donovan that he met with the grievor twice, and passed the
$500 to him at the second meeting. Mr. Donovandid not know where Mr.
Khan and the grievor had sat .when the money. was exchanged; he had never
discussed that with Mr. Khan. The physical impossibility of part of Mr.
Khan’s story, once explained to him by union counsel, did not interest Mr. ,
Donovan. What interested him were Mr. Khan’s allegations about the grievor
accepting bribes, allegations. Mr. Donovan later came to .believe were true.
3
Mr, Donovan was also extensively examined about his knowledge of Mr.
Khan’s relationship with the owner of the Zanzibar. Suffice it to say that
Mr. .Donovan learned over time about these matters, and Mr. Khan’s beliefs
.with respect to them. At one point, the owner of the Zanzibar telephoned
‘Mr. Donovan and made allegations about Mr. Khan. Other events and
conversations occurred, but ultimately none of these events and i
conversations are relevant to the issue before me.
Mr. Donovan was asked about his first meeting with the grievor on May 22,
1992. The venue he chose for his bar was unsuitable for a number of
reasons, including its location and the absence of parking and a place, for a
patio. This was Mr. Donovan’s first meeting with the grievor, although he
had previously spoken to him on the telephone. Mr. Donovan agreed. that the
grievor was a talkative individual, and that much of his conversation had I
little relevance to the application process. He also -agreed that the grievor
was the type of person who exaggerated his own importance; his ability, for
example, to obtain favours. !
As noted earlier .in this award, there was a dispute between the partigs as
to. whether the grievor said, following his remarks about “big dough,” that
he would take “nothing from, you” or “nothing from him.“ Mr. Donovan
insisted that the grievor said that he would “take nothing from you,” and
this was consistent with his theory that the grievor solicited, bribes .from
immigrants and visible minorities - the most vulnerable members of
society. Mr. Donovan .agreed that if the tape recording indicated that the
,grievor said that he would take “nothing from him,” that sentence would
tend to be exculpatory, not inculpatory, with respect to the grievor and the ,’
solicitation and acceptance of bribes. However, Mr. Donovan did not hear )
.- .: ..
.: L -’
‘.
-37 . .
‘. :
the tape that way, and the word he recalled in the ..conversation was “you” or
"ya,". not "him;"
After the g?evor made these remarks, Mr. Donovan knew
that he had .his man. Indeed, even accepting for the sake of argument that
,the grievor said “him”. instead of “you” or “ya,” Mr. Donovan still believed ..
that the comments were a solicitation fcr a bribe once the entire
conversation. was considered in context, and that .meant considering the
grievor’s remark&bout .“big dough’,and being”tre,ated right.” Mr. Donovan
agreed that the.grievor never made a direct request for money from him, I
and that in this .way his “m.o.” was different from-that reported by, Mr. Khan.
On June 2, i 992, Mr. Donovan, Mr. Mascoll, and the grievor met. Mr. Donovan
agreed that the transcript of this meeting, considered, alone, was not
conclusive of the assertion that the grievor had accepted a bribe. He also
agreed thatthe. photographs, taken of this meeting did not prove that the
grievor knowingly accepted money, although they did show the grievor
accepting the small envelope, which he put into the application package..
Nevertheless, Mr. Donovan was completely convinced that the. grievor
knowingly accepte.d .a bribe, and that he knew that there was money in the
small envelope; He reached this opinion based on his. earlier discussion
with the grievor, the report of the meeting’from’ Mr. Mascoll;, and the /
transcript itself.
There was, however, an alternative explanation that union counsel
suggested to Mr. Donovan. In brief, the suggestion was made that when the
grievor accepted- a small envelope from Mr. Mascoll, he did so believing that
the letter contained a document relevant to the .ap$ication process.
Referring to a transcript of the June 2, 1992; meeting, reproduced above,
counsel pointed out where the grievor asked Messrs. Donovan and Mascoll if
.they got the letter, from the “City Clerk.” Both m.en said “yes,” and Mr.
Mascoll added “That’s all looked. after.!’ Mr. Donovan testified that the
grievor first raised the matter of obtaining such a letter at. the May 22,
1992; meeting. The purpose of ttie letter was to indictite to the,LLBOthat
the site. was suitable for a licensed establishment. from the City’s point of
view. This conversation took place shortly before Mr. Donovan left the
table, as prearranged with Mr.’ Mascoll.
Messrs. Donovan and Mascoll did not meet the grievor again until July 21,
1992. The purpose of this meeting was to discuss their application, to. see
if the grievor would take more money, and to attempt to, find.out from the
grievor whether other inspectors were involved in taking bribes. Mr.
Donovan was asked why it. was necessary to give the grievor any more
money if he was satisfied that the grievor had taken money at the June 2,
1992, meeting. Mr. Donovan testified that it would further improve the
‘case if the g.rievor accepted additional funds.. The Star reporter wanted ,a.
clear, admission of guilt,-. as the tapes and the photographs did not catch him
in the act. Mr. Donovan did not agree that the evidence they had was
“woefully inadequate? He did agree ‘that he wished additional evidence to
further support the case.
At the July 21, 1992, meeting, as at the meeting held on June 2, 1992, Mr.
.Donovan absented himself from the table at a certain point so as to provide l
Mr. Mascoll with an opportunity to discuss money with the grievor. Mr.
Donovan agreed that the grievor repeated several times on this occasion
that the certified cheque made payable to the LLBO was’ the only thing still
missing from the application. Mr. Donovan agreed that when Mr. Mascoll
offered the grievor money ,in his absence, the evidence established that the
. .
. . .
_- -39
grievor refused it. Mr., Donovan was disappointed and perplexed in the,
aftermath of this meeting: Nevertheless, he continued to believe that the
evidence established that the grievor, on June 2, 1992, knowingly accepted _j
a bribe. The objective evidence of the photograhs and tapes may not prove
it, but all the evidence considered in context established to Mr. Donovan
that the grievor had committed this act.
After reviewing the situation,- Mr. Donovan and I&. Mascoll decided that’
their next step would be to confront ‘the grievor;, and a meeting with him
was arranged for August -17, 1992. This meeting was also tape recorded.
Indeed,’ as will be set out below, the grievor was also wired. Mr. Donovan
agreed that other than admitting he [the grievor] had taken some free
lunches, the .grievor, in response to his questions, and allegations
consistently denied any wrongdoing. One of the significant events of this
meeting was when Mr. Donovan asked the grievor what he did with the $560,
and the grievor connected that, question to the envelope. What is noteworthy
‘about this event is that the grievor had the application package, and the
only thing that Messrs. Donovan and Mascoll gave the grievor was a small1
envelope with cash’ in it. When the grievor referred to an envelope in -
response to Mr. Donovan’s question, Mr. Donovan drew the conclusion that
the grievor knew the envelope had money in it. The grievor went on .to
explain that he threw the envelope out when he concluded that Messrs.
Donovan and Mascoll had no intention of proceeding with the project. Mr.
Donovan testified that it was his assumption that one of the references to
an “envelope” was to the application package, while the other reference was
to the envelope containing the bribe.
i
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I 3
Re-examination of Mr. Donovan , :’
In re-examination, Mr. Donovan was asked some questions about the City
Clerk’s letter. He identified a document similar to the one he filled out, and
testified that he filled that form out with the assistance of the grievor.
Mr. Donovan was familiar with the application materials, and they stated -
that such letters were required. Section one of this form letter was to’be-
completed and taken to the local municipal clerk, who would then either
return the completed form letter to the applicant or forward it to the LLBO.
Evidence of Phillip Mascoll
,Mr. Mascoll testified under subpoena. He has been a reporter for the Star
since 1981 and has many years of experience as a journalist.” Mr. Mascoll
testified about what he understood to be the-background of the case, and
‘provided some details about how he came to be involved. Mr. Mascoll met
Mr.r Donovan at a McDonald’s near Lick’srestaurant on June 2, l992,’ and .irJas
1 given the small envelope’ with the money inside. Mr. Mascoll placed the-
envelope in ,his right jacket pocket. After Mr. Donovan left the table, some
conversation followed, and then, asindicated above, Mr. Mascoll passed over
the envelope, saying at the time “cost of doing business.” According ;to Mr.
Mascoll, the grievor referred to needing a certified cheque for the LLBO, but
other than the reference earlier in the conversation, he never referred to
needing a letter from the City Clerk: Indeed, ‘after the money was passed, j
the grievor said that the only thing still outstanding was the certified
cheque.
Mr. Mascoll’testified that he tried to take the money out of his pocket in. I
such a way as to ensure that ‘the photographer would be ab,le to take some
pictures which clearly showed money being passed. Not only was this
. ._
? 41 .-
result not achieved, .but the manner in which Mr. Mas,coll held the envelope .’
precluded the grievor from seeing the contents. Mr. Mascoll did not say
“here js $500,” because he felt it was necessary to be .subtle; otherwise the
grievor might become alarmed.. Hence, he simply said, when passing over the
envelope, “cost of doing business.”
Another meeting was arranged. with the grievor, and it was held on July 21, r
1992. The six-week delay in following up on the application was explained,
and when, aS prearranged, Mr. Donovan left the table,. Mr. Mascoll offered the
grievor more money. The grievor declined. At the third meeting’ held on :
August 17, 1992, the grievor arrived in a completely d,ifferent mood. Mr.
Mascoll had nothing of substance to add to the events that took place that i
day. :
Cross-Examination of Mr. Mascoll
Mr. Mascoll was asked a number of questions in cross-examination. He
agreed that he had no way of knowing if the grievor could see the contents
of the,, small envelope when he passed .it over to him. Mr. Mascoll
demonstrated, on two occasions, how he passed the envelope to the grievor,
and his evidence makes it absolutely clear that there is no way of.
determining if the grievor could see ,the contents of the envelope as it was
being given to him, It is virtually certain that he could. not. The .grievor’
advised Mr. Mascoll at the start of the meeting that his eyes were
“bleeding” and ;he was not wearing his glasses. Nevertheless, Mr. Mascoll is, ’
of the opinion that the grievor could see what he was being given. Mr. .
Mascoll knew what. was inside the small envelope because he had examined
the contents. after being given the envelope by Mr. Donovan.
In Mr. Mascoll’s view,. the grievor knew, from the context of the discussion,
what the small- envelope contained; and there was no reason for the- grievor
to think ‘that it held .a letter from the Scarborough City Clerk. It did not
seem logical to Mr. Mascoll that the grievor would think that this form
letter would be given or passed over in a utility bill envelope. The grievor’s
reference to needing the certified cheque almost immediately after the
transaction suggested to Mr. Mascoll that the g.rievor associated the cash in ’
the envelope with the requirement for money in a certified cheque. Mr.
Mascoll agreed that the grievor mentioned needing the City Clerk’s letter ,.
shortly-‘before the envelope containing the cash .was passed, and he further
agreed that he had no recollection of the grievor repeating this particular
l
request after the envelope was passed. He did, however, continue to ask for
the certified cheque.
One .of the reasons for arranging to meet the grievor again on July 2 1, 1992, .
was to get him to take more money, but when the question was asked, the
grievor refused the offer of additional funds. Mr. Mascoll testified that he
offered the grievor additional monies on two separate occasions while Mr.
Donovan was away, but he was unable to indicate where on the transcript
the second offer was made. Nor could he recall the exact content of this
particular discussion. Mr. Mascoll agreed that his memory of events that
took place two years previously was far from being crystal clear. What Mr.
Mascoll was certain .about was that the grievor took a bribe from him on
June 2, 1992, and that he refused additional funds on July 21, 1992. Both of
these meetings, .Mr. Mascoll testified, took place around noon. Mr. Mascoll
agreed that in one of the post-mortems with Mr; Donovan, held after each of
these meetings, he made a comment to Mr. Donovan to the effect that the
/ grievor was “blind as a, bat” and, that he could have left “the microphone on
the table” and the grievor would not “have seen it.”
Re-examination of Mr. Mascoll
In re-examination, Mr. Mascoll was asked about the timing of the June 2,
1992, and July 21, .1992, meetings. He agreed that the did not make notes
of. either. meeting, or of the time at which they were held. Mr.” Mascoll also
testified tha.t he did not take the money .out of the small envelope, but could
see the money. inside it when he -passed the envelope to the grievor.
Evidence of John Fournier
Mr. Fournier testified. He has held the position of Manager of Investigations
and Enforcement for the LLBO for six years. Prior to joining the LLBO, he ’
served. for 28 years with the Metropolitan Toronto Police.‘ Mr. Fournier
supervises a staff of six .investigators and one secretary. He reports to
Tom Bolton. a
‘On ~Friday, August 14, 1992, around 3:50 p.m., Mr. Fournier was approached
by Roger Oliver’ the grievor’s supervisor. At Mr. Oliver’s request,. Mr.
Fournier attended a. meeting with the grievor and Mr. Oliver at. which time.
the grievor advised ,him that he had been approached about assisting in
obtaining a liquor licence for a Warden Avenue lo.cation. The grievor
advised Messrs. Oliver and Fourtiier that he had assisted in the preparation
of the application, and that at one of two meetings he had been offered a
$500 bribe.. The grievor stated that he had refused the bribe. Subsequently,
the grievor had driven by the premises and had learned that they had been
leased to a daycare centre. Accordingly,. he disposed of the application.
However, the grievor now advised management that the applicants had, again
:
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44 . .
.
contacted him, and he felt. that the request for a further meeting was being ,-
made in order to “set him up.” He was therefore bringing the. meeting to the
attention of management. Mr. Fournier, at this time, believed the grievor’s
version of events. The grievor provided him with a written statement of
events that rhad occurred to .date.
On the following Monday, August 17, 1992, Mr. Oliver advised Mr. Fournier
that the two applicants had requested a meeting for later that day. Mr.
Fournier contacted the police, and not only was the grievor wired, but
police surveillance was arranged. The meeting took place as earlier \
described, and ended with Messrs. Donovan and Mascoll being taken away by;
the police. The grievor also went to the‘police station.
Needless to say, these and other events detailing allegations of an I
inspector on the take were reported by the Star the following day. Mr. ., _.
Fournier decided that the matter required further investigation, and he ‘,
began to gather relevant materials. He attended at the grievor’s house and
took possession of the grievor’s work-related documents. Among the
documents obtained were the grievor’s time logs. Mr. Fournier also sought
to obtain the grievor’s memo book - the document which records the
inspector’s daily activities. It is LLBO policy that these documents,
recording activities in chronological order, be kept up to date, and they are,
from time to time, revjewed by management. The grievor claimed that the I
memo book had been stolen from his car the previous day when he was
parked outside the police station. The documents Mr. Fournier obtained
were given’ to Mr. Oliver. When Mr. Fournier subsequently attempted to’ c
c
repossess these -materials he learned they were missing, and ..he testified
that he now has-reason to believe they were destroyed on Mr. Oliver’s
instructions.
On August 24,. 1992, the grievor was asked to attend at a meeting held at
LLBO headquarters. He was advised in advance of this meeting of his right
to be -accompanied by a union representative. The grievor arrived alone.
Also. present at this meeting were Mr. Fournier, Mr; Oliver, ‘and Ms. ,Heather
MacLean. MS. MacLean took notes of the meeting, which lasted just under
one hour’ and these notes were introduced into evidence. According to Mr.
Fournier, these notes, with a few small corrections he made, accurately
described what occurred at the meeting. Mr. Fournier also testified that the
grievor was confident, composed, calm, and cheerful during this meeting.
The meeting began with the grievor being given a notice of suspension .with
pay pending an investigation of “published allegations concerning -possible
bribe taking on your part....” .
,,
The grievor stated that he had done nothing wrong, and’.told Mr. Fournier and
the others that he had no idea that the small envelope had contained cash.
The grievor was Bsked‘what he thought was in the small envelope, and he.
answered that .he “Wouldn’t. know.” He also said that his memo book, if . .
found’ would. not record any of his meetings with Messrs. Donovan and
Mascoll because he thought that he was just doing them a favour. When
asked why he would not record part of his job,. he testified that he’simply-
stopped to help them while on break. He indicated that he spent only ten
minutes with them. The grievor took -the position that he did not prepare ‘the
application other than to indicate several places in red ink., ,When asked
why he did/not turn the. application in to the LLBO, the grievor replied that -.
:
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46
i, ,r’
he was waiting for the certified cheque and for the applicants to sign their P
lease: Mr. Fournier expressed the view that the grievor could have L
submitted the application at any time in the application *process. The _’
grievor also stated that he had never‘taken money from anyone, nor had’he
ever received any other benefits for doing his job. At the end of the
- meeting, Mr. Fournier no longer believed the grievor, having formed the view ..
that his version of events raised more questions than answers.
In preparation for this hearing, Mr. Fournier obtained the grievor’s
Inspector’s Activity Reports for the weeks ending May 24;.1992, June 7, ‘.
1992, and July 26, 1992. These documents, which were not obtained or’
used as evidence in the grievor’s criminal proceeding, are the grievor’s’ own \
record of how he spent his time during each of those weeks. These
documents, indicating the start and finish time of each day, the start time 1
of each inspection, travel time, and the nature of the inspection, visit,.‘or 8 ~ :
activity, ‘are completed. by inspectors based on information found in their ~ :
memo books. They represent an offlicial record of hours .worked, among I I other things. > : : L’ _ ,
The record for June 2, 1992, indicates that the grievor began work at 8:30
a.m. He spent two hours at home engaged in office duties. He then travelled
for twenty minutes by car to a‘ restaurant called January’s, where he
conducted an’inspection between 11:15 a.m. and 12:OO p.m. The grievor took
lunch between 12:OS and 12:35 p.m. .He then indicatedthat he travelled by
car for ten minutes to Max’s Cafe, where he remained between 12:45 p.m.
and 1:30 ‘p.m. He then travelled by car, to head office, taking thirty minutes
to do so, arriving at 2:lO p.m. He did not stay long at head office., He then
) travelled for thirty-five minutes to the Hyland Family Restaurant, arriving
:
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: 47
at 3:30 p.m. and remaining until 4:lO p.m. He then drove .home, taking _
twenty minutes to ‘do so,. arriving at the end of his day, 430 p.m. .It will be 1
obvious that some of the times are not exact. For example, according to
these records, the grievor should have arrived at January’s .at lo:50 a.m.
instead of at 11 :15 a.m; The explanation for part of the missing time is
that the grievor would, more than likely, have been- taking .his morning
break; !
Obviously, this Inspector’s ‘Activity Report does not indicate the grievor’s
meeting with Messrs.. Donovan and Mascoil. None of the records do.
Moreover, while Mr. Mascoll testified that the June 2, 1992, meeting took
place at noon, Mr. Donovan’s recollection, confirmed by his notes written
immediately. thereafter, was that the meeting took place between 1 :15 p.m.
and 1:50 p.m. at Lick’s restaurant. A visit to Lick’s is not mentioned in the
grievor’s Inspector’s Activity Report for July -21, .1992.’ Mr. Four&r ‘also
gave some evidence. about the time it would really take to travel some of
the -distances indicated, and the extent of those distances, Ultimately, none
of that evidence is material to the disposition of this case.
Cross-Examination of, Mr. Fournier
Mr. Fournier was asked a number of questions in cross-examination. .He
testifed that the grievor’s files were kept in the liquor storage room, but
were moved some time last year because of problems with space. At that
time they were given to Mr. Oliver. When Mr. Fournier attempted to recover
them for these proceedings, he was advised that they were no longer
‘available. Mr. Oliver had, ,in the interim, changed jobs and moved offices.
Mr. Fournier did not ask the person who.succeeded Mr. Oliver whether he
knew. what had happened to the files. He agreed, however, that they were
48 ;
important documents. He did ask other people what had happened to the
files, and learned from the Administrative Managerthat they had been
destroyed on the instructions of Mr. Oliver. Since learning this news, Mr.
Fournier had not had an opportunity to discuss it with Mr. Oliver.
-’
When Mr. Fournier first went to the grievor’s house. to seize the files, the
grievor, indicated that he wished to discuss the case. Mr. Fournier refused to
do so and, in the result, the conversation they did have was very general in i
nature. The. grievor was extremely cooperative at this meeting. The grievor
wanted reassurance, .and although Mr. Fournier did not know how ‘the matter
would end up, he testified that he did what he could to console’him.
At the August 24, 1992, meeting, Ms. MacLean took notes and Mr. Fournier
agreed that some of the things’ he recalled from that meeting were not
reflected in those notes. According to Mr. Fournier, Ms. MacLean was not
taking shorthand and only wrote down what she considered to be important.
A number of examples were given indicating this to be the case. &her parts
of the notes were also reviewed, and it is fair to say that some of the
answers attributed to the grievor do. not make a lot of sense. For example,
at one point the grievor indicates that Mr. ‘Mascoll owned the, Warden Avenue
site. There was no evidence suggesting that this was the, case, and in this
context it is somewhat difficult to understand ;why the grievor would have
made a comment of this kind, if, indeed, he made, it. The’ MacLean notes do,
however, indicate that the grievor w’as taking “nitro,” and Mr. Fournier
testified that he was aware that the grievor had a heart condition. When
Mr,. Fournier went to seize the records from, the grievor’s home, the grievor
told him that he had .gone to the doctor. Mr. Fournier did not know that the
grievor. had had a heart attack.
.
;
It was shggested to Mr. Fournier that it was the’ grievor’s understanding .
that- the LLBO would not review an application unless it was accompanied by
a certified cheque and that since- this application was not so accompanied,
there was no reason to submit it. Mr. Fournier testified that it was. the
‘.
grievor’s job to submit applications that were given to him,, and that he had
no jdea -what the Board’s policy was with respect to applications which
were not accompanied by a cheque. Hpwever, it was Mr: Fournier’s view that
the grievor ‘had a duty to submit whatever application he received to the
LLBO. Even if -the applicant asked that the application be held until ‘the
cheque was available, the inspector should submit ‘the application, because
the inspector is not involved in the application process.. Indeed, Mr.
Fournier testified that inspectors have been told not to meet with
‘applicants, and one inspector was fired .for doing so. In’ his view, there was
a direct connection ‘between meetings of this kind and bribery. He agreed,
however,, that inspectors al,so had’an opportunity. to accept bribes during
regular inspections. . .
\
/ .
Mr. Fournier described the August 24, 1992, meeting as a question and ’
answer session, not as a. cross-examinatidn session. The grievor was giveri
every opportunity to answer questions, and to indicate .when he did not
understand a question. Mr. Fournier believes that the grievor deliberately .
destroyed his memo book. However, the grievor indicated to him that he had
not recorded the meetings with Messrs. Donovan and Mascoll in his memo
book. For what reason, union counsel asked, would,the grievor not claim
that he had recorded them? Mr. Fournier agreed that it would have been
better for the grievor to state that he had recorded these meetings as that
would indicate that he .was following procedure. Mr. Fournier could not
: explain the grievor’s behaviour in this respect. ,
I 50
It was also suggested to Mr. Fournier that on August 17, 1992, the grievor
claimed that he thought the City Clerk’s letter was in the small envelope.
Mr. Fournier was asked why, one week later, the grievor in’ responG? to a
question about the contents of that envelope would not give ‘the same
response. Mr. Fournier could not answer this question. Mr. Fournier
testified that while the grievor told him that he never took any money, he
did engage in minor abuses of the system, such as, for example, accepting
free meals.
The Union’s Case
Evidence of Harold Lounds ‘
The grievor testified on his own behalf. He is fifty years old, married, with ’
three children. The grievor began work at the LLBO in October 1974 and has
always been employed as an ,inspector. Since 1989, the grievor has been
responsible for Scarborough and Markham. Between 1983. and 1989, the -/
grievor’s area of responsibility was #part of the downtown core, east from
and including Yonge Street south of Bloor and the Danforth down to the lake,
and Victoria Park. .He worked out of a home office, and he described in
general terms some of his typical duties and responsibilities.
He also stated that he has, from the beginning of his employment with the
LLBO, assisted persons interested in obtaining liquor licences, or in
transferring established licences. He has helped applicants fill in their ‘I
applications, and has instructed them generally about their responsibilities
as bar owners. In 1990 the grievor was advised about some changes in
responsibilities. In particular, inspectors were told that their job was now
more compliance oriented. However, the grievor was of the view that this !
was always his job, and he testified that he could not think of any concrete
51 -- : .-
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differences in ‘the way he did his job pre499dcompared :with;post-1990. :
While some new forms may have been introduced, the grievor does not _’
. believe that his .position specification was, in any way, changed;
Verification inspections’ were .a standard.-assignment pre-1990. Post-l 990,
such inspections still took place, except now they were done by inspectors ’
as directed. Verification inspections, he testified, are now called. approval
phase inspections. Inspectors liked the verification inspections: They were L
good “P.R.” for ,the LLBO, and they also gave the inspector a picture of the :
to-be Jicensed site. The., grievor testified that inspectors felt. that these
inspections were an. important part of the job. ,,.
As already noted, Messrs. Donovan and Mascoll were not the first
prospective applicants that the grievor has helped. He .would assist persons
who called him, and he testified that he has never been told not to do so.
The grievor was away from work sick when relevant portions of the Manual :
were first-introduced. In any event, no one in management ever reviewed the
document with him,- or highlighted important changes that had been made. 1
,He testified that; to his knowledge, there was nothing. in the Manual that
indicated he was not to meet and assist prospective applicants. : D
When Mr. Donovan called the grievor at home, having obtained his telephone
number from the LLBO, the grievor said he would be pleased to see him. -He
had a supply of blank application forms obtained from Mr. Bolton, and he
arranged to meet Mr. Donovan to discuss his application. The grievor {agreed
that he filled in parts of Mr. Donovan’s application. He testified that when
doing so he was not aware that this was prohibited. No one in management
ever told him not to do this, and he was never referred to anything in the
Manual to this effect. The grievor has, for years,. rendered assistance of
’
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52
i this kind, and one reason he has is because his job description states that
he is to assist licensees and applicants. The grievor pointed to the relevant
section of his position specification which states, _-’ “Provides direction,
guidance and advice on requirements and necessary documentation to
licensees, applicants and the public.” Another portion of the position
’ specification indicates -that-inspectors are to “interpret legislation and .,
regulations for licensees, applicants and the. public, consistent with
expressed. -Board policy.” And the position specification also states that
incumbents are to respond “verbally and in writing,- to enquiries and
complaints, from Regional Manager, licensees, other government agencies
and general public.” Mr. Donovan, in this context, was a member of the
general public,. and the grievor testified that in assisting him he was’ doing
his assigned job. _’
Indeed, the grievor understood that an application could not be submitted
untilafter the certified cheque was received, and that is why he held on to
the application package in this particular case ‘after assisting the I / ,‘I ,
applicants with the completion of the forms.( Once he ‘realized that the
application was no longer proceeding, the ‘grievor discarded it. It wa$
useless. If the applicants wished to proceed with some other application,
the forms would have’to be completed all over again. The grievor knew the
application was .worthless because he drove by the Warden Avenue premises
early in August and saw that it was to become a daycare centre. This
information was confirmed by someone, working at a garage across’ the
street. .The grievor was not aware of any policy prohibiting the disposal of
applications in circumstances of this kind. It would have been pointless, at
this stage, to turn the application in to the LLBO.< ,
Turning back to the May 22, 1992, meeting, the grievor testified that he
was called at home by Mr. Donovan, whosaid that a lad on Church Street’ had
identified him as someone who could give him some help. The grievor said
sure, ,and agreed to meet him later that day after he had completed work (he
was working a split shift, and this meeting took place on his own time). .:
The grievor testified that he did not charge for his time or mileage. It was
convenient to meet with Mr. Donovan. And because he met with Mr. Donovan
and later with Messrs. Donovan. and Mascoll on his own time, it was neither
necessary nor appropriate to document that information in his memo book.’
He had never been told to record meetings of this kind in that book.
The grievor described the May 22, 1992, meeting in some detail. The two
men toured the premises.. As. Mr. Donovan did- not have an application form
with him, the grievor provided. him._with one and the two reviewed the
different documents. -The grievor was asked about his “big- dough” comment,
set out above, .and he testified that it was a joke intended to discourage Mr.
Donovan from that kind’of approach. The grievor has made comments of this
nature on many occasions. The grievor testified’ that he would not have
ma’de that comment-if he had\known that he was being taped. And the
grievor was confused when Mr. Donovan said that the “Indian guy has the big
dough.” He testified that he did not understand what this meant, and that he
did not want anything from either Mr. Donovan or Mr. Mascoll. ,When the
grievor went on to say that “some guy[s]...treat me right,” he was not
soliciting a bribe; rather, he was simply indicating that sometimes he
would have lunch or coffee with a licensee. The reference to “Well,
whatever” after Mr. Donovan said ” Oh, like dinner, or shit like that” was a
I
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reference to dinner, lunch, or coffee. When the grievor said “you get the
stuff,” he was telling Mr. Donovan to complete the application form and
, gather the necessary documents. ‘,
The grievor knew that Mr. Donovan was, in this conversation, offering him
money, but he did not .report the conversation because he is an easy-going
guy and does not like getting others into trouble. Moreover, as far as the ’
grievor was concerned, his comments had put an end to the discussion and
the matter was over. ’
According to the grievor, the LLBO’s policy regarding .the acceptance of
benefits was’ constantly evolving. Some chairs of the LLBO, the grievor
testified, permitted- inspectors to sit down and enjoy a free lunch with a
licensee. Other chairs were more strict. It all depended. The grievor’s own
practice was simply to accept the occasional lunch or coffee. He
acknowledged that perhaps he should not have done so, but insisted that
there was a big difference between accepting a coffee and taking a bribe.
A short time after the May meeting, the grievor again heard from Mr.
I Donovan and arranged to meet him on June 2, 1992, at Lick%. According to
the .grievor, this meeting -was also held on the grievor’s own time at lunch.
The grievor was referred to his Inspector’s Activity Report for the week
ending June 7, 1994, and testified that he was well aware that these forms,
after completion, were, or could be, reviewed by members of management.
The grievor was aware that Mr. Donovan testified that the June 2, 1992,
meeting was held between 1 ?I 5 and 150. Obviously, that time is different
from the time indicated by the grievor on the form as the time when he took
his lunch. The grievor insisted that the meeting took place over his lunch
1 :
_. ‘. ‘.
55
hour, and that Mr. -Donovan. was not telling the truth. The grievor could i
recall eating his lunch at Lick’s. The grievor testified that the remainder of
his day was as indicated on the Inspector’s Activity Report.-
In any event, when he met with Messrs. Donovan and Mascoll, he reviewed
the application. The grievor examined the application so as to ensure that
the questions were answered. If a question was unanswered, the grievor, got
the answer and wrote. it in. The grievor may also have assisted the
applicants with their menu.
At some point, the grievor .indicated that he had to go and get his wife. This
was a nice way of excusing himself from the meeting. And at some point,
Mr. Donovan got up and left- the table. Around this time, Mr. Mascoil gave the
grievor a small. envelope. Thinking that this envelope contained the
necessary .form letter from the ‘Scarborough City Clerk, the’ grievor placed
it in the larger application package. The grievor had’ no need to look inside
this small envelope, could not see the contents of the envelope when it was
passed, and testified that he never knew what was inside it.
If the City Clerk’s letter was inside the small envelope, ,then, the grievor,
-believed, the application was ready to be submitted once the certified
cheque was obtained. At Messrs. Donovan and. dascoll’srequest, the grievor
held on to the application form at the conclusion of the meeting. The plan
was for them to secure their lease and then obtain the certified cheque.
The grievor never offered to speed up the approval process, and he testified
that he told both appl/cants there were no shortcuts.
56
The grievor testified that Mr. Donovan called ,him several times between
June 2, 1992, and ,July 21, 1992, in order to advise him that “Mr. Martinez” - /
was out of the country owing to a death in the family. Some time, prior to
July ‘21, Mr. ‘Donovan called the grievor and another meeting was arranged
for, July 21, 1992, again at Lick’s. The location was convenient, as the
‘\ grievor had arranged an inspection at a restaurant in the plaza. That ,l
inspection took place between 12:20 p.m. and 12:50 p.m. Just prior to that, _
between 11:45 a.m. .and 12:15 p.m., the grievor took lunch, and testified that
it was over his lunch hour that this second meeting with Messrs. Donovan
and Mascoll was held. /
; The grievor had some concerns about the Warden Avenue location, and he
raised those concerns with the two applicants. He also. asked about the
compliance letters from the Scarbourough Fire Department. He testified
that, he did not ask about the City Clerk’s letter.- There was no need to do so
because he thought he already had it. Once again, Mr. Donovan- left the table,
and soon after Mr. Mascoll asked the grievor about “$500.” The grievor : I
testified that the restaurant was noisy and that when. Mr. Mascoll first
made this comment he thought Mr. Mascoll was offering him $500.
Accordingly, the grievor said that he wanted “nothing.” After this meeting,
the grievor was still holding on to the application, and was still waiting for
the certified cheque. .
The grievor did not report this attempted bribe because he did not wish to
get Mr. Mascoll into trouble. The grievor knew that a bribe was pointless
because there was nothing that he, as an inspector, could do to assist him.
All that he .ever tried to do was to point Messrs. Donovan and Mascoll in the
right direction. In August, however, the grievor realized something was up
.’
.-
-.
‘. .’
57 I
when he drove”by the Warden -Avenue location and saw that it- was not going
to become a bar.’ When Mr. .Donovan called and said that he-was’ still
proceeding .with the application, and the grievor knew otherwise, he
realized that he better get’ in touch with his supervisor and let him know
what was going on. The grievor met later that day with :,Mr. Oliver and Mr.’
Fournier, and he basically agreed with Mr. Fournier’s description of their
discussion. ’ . . .
The following Monday, after ‘hearing from Mr. Donovan and informing Mr.
Fournier that Mr; Donovan ‘wished to meet, the grievor was wired and :
attended the meeting with Messrs. Donovan and’Mascoll., A transcript was
prepared of this meeting, and the grievor testified that ‘when he referred to
an envelope, he was referring to the application package. According to the
grievor, until Mr. Mascoll claimed he had handed him an envelope with $500
in it, he had no idea.how he was supposed to have received ‘the money. The’
grievor insisted .that he never looked in the small envelope; believing that it
contained the City Cl,erk’s letter, he had no reason‘ to do so. ‘And w.hen Mr.
Mascoll asked the grievor later in this conversation what .he thought. it’
contained, he indicated as much.
On August 3 8, 1994,. Mr: Fournier attended at the grievor’s house to seize
his files.. The grievor was not feeling well. In fact, his doctor told him that
he had suffered a heart attack. Mr. Fournier was conciliatory and
sympathetic. When the grievor met with Mr. Fournier, Mr. Oliver, and Ms.
MacLean on August 24, 1994, he was still feeling the effects of his heart
attack. This explains why he responded that he “Wouldn’t know” what was in \
the sma!I envelope when, asked about it. The grievor testified that he was :
feeling- very stressed out. at the time, and was not altogether with it. Just
58 .;
the previous .week,‘ the grievor had told Messrs. Donovan and Ma&o11 that he
thought that the small envelope contained the City Clerk’s ietter. Then. he
read in the Star that it contained cash. This was all very confusing to him.
The grievor agreed that at this August 24, 1992, meeting he indicated that
he did not assist Messrs. Donovan and Mascall with the application, but, of
course, he had. The .grievor does not have any recollection of saying -that Mr. ,
’ Mascoll owned the building, as reflected in, the minutes, as he knew that
that was not the case. The grievor agreed that his statement that he spent
only ten minutes with Messrs. Donovan and Mascall did not make sense and
was not correct; The important point was that the grievor never knowingly
took money from either of them. Nor at any point prior to August 17, -1992,
was the-’ grievor aware that. there was cash in the small envelope. ‘,
The grievor was asked a number of questions about his relationship with Mr. \
Khan. He testified that he- knew Mr. Tasty’s; as .he had been the ,original
inspector assignedto it. While the grievor would eat at Mr. Tasty’s before
hockey games - it is close to M(aple Leaf Gardens - he stated that the owner
of that business was definitely not acting as, some sort of referral agency
for hjm. And with respect to Mr. Khan, he testified that. when Mr,. Khan first (
called him, Mr. Khan told him that he had been referred to him by. the owner
of the Sai Woo. The only reason that the grievor met Mr. Khan at Mr. Tasty’s
was because Mr. Khan lived nearby.
At this meeting,‘Mr. Khan told the grievor about his property on Yonge
Street and about his desire to put a restaurant in the building. The grievor
explained the process to him. The,grievor had no recollection of the
discussion. ever turning to’ the owner of the adjacent Zanzibar, and. he
I n
definitely never said that the individual in question looked after him. The .
grievor was not even aware that Mr. Khan’s building was adjacent to the
Zanizibar when they first talked. The grievor never said to Mr. Khan that if
he took care of the grievor, the grievor would take care-of Mr. Khan. The
grievor never said that he wanted a VCR. And he never said, one or twice,
“yes, whatever!’ when asked if $500 would be okay instead. Very simply, Mr.
Khan never offered the .grievor money, and the grievor never asked for or
‘accepted money from him. There was, therefore, no reaching around to get
napkins, a .feat which .would have been impossible in-any. event given the
!ayout of the restaurant.
The grievor testified that he could recall seeing Mr.. Khan one. other time -at
head office. Mr. Khan .was sitting in the waiting-room, and the- grievor came
over to say hello. The grievor asked him what he was’up to? and Mr. Khan
stated that he was there waiting to see a licensing officer; The grievor ’
never attempted to solicit more funds at this meeting; the idea was.
ridiculous, given that he would not do such a thing and that the reception
,area was a verypublic place. The grievor-could recall kr. Oliver showing up
at some point, but could not recall anything. that was’ said. The grievor
formed the impression. that ‘Mr. Oliver and the grievor knew each other.. The
grievor had no explanation why Mr. Khan would have made up this story. The
only thing hecan think of is that Mr. Khan was having .difficulties with his .’
business, or anticipated having such difficulties because?of the owner of
the Zanzibar, and so contacted the Star in the hope that someone would
write a favourable story on his behalf. ~
.
60
.g
Cross-Examination of Mr. Lounds _. )
Mr. /Lounds was asked a number of questions in cross-examination. He
‘. testified that he was -an experienced, inspector with more’ than twenty, years I
of service with the LLBO. He agreed that he worked by himself, and that he
occupied a position demanding trust, honesty,. and integrity. On September
24, 1991, the grievor signed a document acknowledging that he had received
a copy of the LLBO’s conflict-of-interest policy. A number of “prohibited
activities” are enumerated in this policy. Employees must not, among other
things: “Use public office for .private gain; Engage in conduct which would
-adversely affect the confidence, of the public in the integrity of the Agency; ’
,’ or Solicit, accept or appear to -accept any remuneration,, gift or advantage or
preference.” Employees are required to report any conflicts, and the policy
also sets out the reporting’ protocol to be followed. The grievor testified \
that he understood ihe policy when he signed it, ‘and that he always, abided I-
by it. i
The grievor ,admitted, however, that he did not abide by it in ‘one respect, as
he .would accept the’odd free lunch or cup of coffee. from ai licensee. The
grievor testified that this has been an accepted. practice from his first day
on the job. He testified that the Chair of the LLBO told him, when he first
started work, to accept lunch ,if the licensee extended an invitation. ,’
- Moreover, this’ advice ‘was subsequently confirmed by the LLBO’,s, Executive c
Director. For his part, the grievor did not consider accepting a lunch or a
coffee equivalent to accepting a benefit or preference. The grievor ,
understood the policy to mean that you should not take any money from
anyone, which; he testified, he never did. _-.
.
61
.-.
The grievor’s ‘attention was turned to hisreporting obligations under the
policy. Initially, he did not accept the suggestion that Mr. Mascoll ever
offered him a. bribe, asking in response to that question: “what was he
bribing me for?” Later,. when his evidence at his criminal trial was brought
to ‘his attention, he agreed that Mr. Mascoll did offer him a bribe. However,
this was not a conflict,‘because Mr. Mascoll did not ask him to do anything, .
for him, and the,grievor did not-offer to do anything on his- behalf. The’
grievor replied to the offer by saying that he “didn’t .want nothing.” But was
this.a conflict of interest? The grievor replied that he thought that Mr.
Mascoll was just demonstrating his gratitude. After a number of questions,
the grievor agreed that an offer of this kind might be considered a violation
of the policy requiring reporting. The, grievor took the position that he did ‘_
report this offer, although not on July 21, 1992, as he did. not realize it was
a bribe at that time, but on August 14, 1992, because, by that point, he
realized it was a bribe. Initially, the grievor. did not realize it was a bribe,
because Mr: Mascoll had no reason to bribe him. . . .
. .
The grievqr understood. that the purpose of this policy was to ensure that
inspectors did not take bribes. He also was -,adamant in his. belief that :.
accepting a coffee or’ the odd lunch was not :a violation. First of all, the
LLBO approved of it, and, second,-there was no connection between
‘1
accepting ‘a coffee and the performance of his duties. The one had absolutely
nothing to do with the other.
,The grievor agreed that licensing and inspections were two different
branches within the LLBO. He ‘also agreed that licensing officers, not -J
inspectors,. review applications to see what was missing.’ Inspectors only
become .involved in the new application process, post-l 996, after licensing
62
advises the Regional Manager, and the inspector is sent out to conduct
either the .approvaI phase or the final phase inspection. The approval phase
inspection is only conducted. on the instructions of the Regional Manager.
The final phase inspection may be conducted when the prospective Ijcensee
called the inspector and indicated that’ all the documents were in order and
\ that he or she was ready for the inspection. to proceed. The only caveat that
the grievor added was that if a prospective licensee called an inspector at
home, he or she might then assist the prospective licensee, although, he
pointed out, the inspector was n.ot required to do so.
The grievor testified that a “lot of paper was thrown at him”- and that the
Manual detailed the application process. ‘He did not, however, agree that
there.was nothing in the Manual that stated how an inspector was to assist
a prospective applicant in filling out an application. The grievor has
assisted prospective applicants, including Messrs. Donovan and Mascoll. He
did not, however, -help Mr. Khan. .While there might ‘not be. anything in the
Manual that says how inspectors are to assist prospective applicants, the,
grievor pointed out that there was nothing in the Manual that said they were
not to provide assistance. The ‘grievor agreed that in his May 22” 1992,
meeting with Mr. Donovan,the following conversation took place: _,
Donovan! I appreciate it. ‘I know...as an inspector...your-
job shou!d be inspecting.... I know it’s not your job. I
appreciate it.
Lounds: That’s right. I’m,not even supposed to know.
Donovan: Oh, really?
Lounds: At one time - this just shows you how f-d up....
We’d get asked to do the preliminary inspection and I
would....
.’ 63,-. :‘,.. .,
The grievorwould not agree, however, that this conversation indicated. his
belief that it was not his job to assist applicants. What he was saying was
that he would not normally know that applications were put in. It was his
job to assist applicants, and that was established by the references to him
doing so in his position specification. When it was pointed out that .Mr.
Donovan was not, on May 22, 1992, an applicant, the grievor stated that he
was a potential applicant ,and so was covered as well. He also took the
position that the LLBO intended him to assist individuals such as Mr.
Donovan; that is why he was provided with blank application packages, and
that is why the Board gave out his home telephone number. Helping Messrs.
Donovan and Mascoll, simply put, was part .and parcel of his. job.
Indeed, the grievor testified that the inspector’s Activity Report
contemplated meetings of this kind, ,for ‘one category of activity was
“Licensee Liaison.” This included meetings with prospective licensees. The
meetings w.ith Messrs. Donova,n. and Mascoll were not recorded because they
were held on the grievor’s own time. Given that these meetings were part
of his job, why then, the grievor was asked, did’ he not claim. them on his
Inspector’s Activity Report. The grievor’s answer was simple; It was
decent to help someone out, and since he was able to meet with them on his
own time he was pleased to do so. The grievor testified that he was simply
giving the guys a break, and that there was no evidence of deception or
dishonesty in his entire LLBO career.
Accordingly, when the grievor met with Mr. Donovan on May 22, 1992, he did ~
not record the meeting. While he thought that Mr. Donovan may have been
asking him at this meeting if he had to be paid. for assisting him, he
discouraged Mr. Donovan. from offering any money, and thought that his
64
.
comments., indicated that no payment was necessary. The grievor did not
agree that when Mr. Donovan said: “you getting anything for this?” that he ,
was referring to bribery. The grievor thought Mr:’ Donovan was making a
joke. When the grievor, made his “big dough” reinarks, he was making a joke,
and it is a joke that he has made many times in the past.. .While the grievor
went on to say “well you get it from him,” what he meant by this was that
since Mr. Donovan’s partner had money, and since Mr. Donovan had told him
that he was out of work, Mr. Donovan should get some money from his
partner. The grievor is not a suspicious person, and so, he testified, he had
no idea that Mr. Donovan was referring to a bribe.
The grievor met with Messrs. Donovan and Mascoll approximately two weeks
later, on June 2; 1992, again at Lick’s. The grievor insisted that this
meeting took place onhis lunch half-hour. He again rejected the evidence
of Mr. Donovan that the meeting took place between I:1 5 and I:50 p.m. The
.grievor agreed that if he were to describe a meeting that began at 12:05, he
would say that it began at noon, while a meeting that began at 1 :I 5 would
‘be more accurately described as a meeting that took place in the afternoon.
The grievor agreed that at his criminal trial, he testified that’ he met with
Messrs. Donovan and Mascoll in the afternoon. However, in preparing his
evidence for that’ trial, the grievor did not have access, to his time sheets.’
In any event, in his view a meeting which began after noon could be
described as a meeting that took place in the afternoon.
Whenever the meeting actually took place, the grievor agreed that he
assisted Messrs. Donovan and Mascoll in filling out their application. He did
not agree that there was anything wrong with his doing so, and pointed out ,’
that he has provided assistance of this nature on many previous occasions:
_’
/
65
The grievor agreed- that Messrs. Donovan and Mascoll told him they had
obtained the letter \from the City Clerk, and: the grievor knew from previous
experience that ,the City Clerk’ either sends the letter directly to the LLBO
or gives it to the applicant for forwarding. In his experience, most of the
time applicants. obtain and forward the letter themselves. The grievor was
shown the typical envelope used by the City of Scarborough for the City
Clerk’s letter. An example of this business-sized .envelope was introduced ’
in the evidence. The grievor was then asked to place the City Clerk’s 4etter
in the utility bill envelope earlier introduced into evidence.- While the City
Clerk’s letter fits snugly into the City of Scarborough. envelope, to fit into
the smal,l utility envelope it has to be folded over, with the result that part ’
of the letter sticks out at the top.
The grievor testified that he could not recall the size of the envelope that’ ’
he received, and he could not recall if it was, a utility bill.- envelope. The
grievor agreed that Mr. ,Mascoll testified that he passed such an envelope to
him and said, when doing so, that it was the “cost of doing business.” The
grievor, however, had no independent recollection of, when, the envelope was
passed. He did agree that Mr. Donovan was not present when the envelope <
was passed.- But no matter when it was passed, the. grievor believed that it
contained the letter from the City Clerk. The grievor had no idea what Mr.
Mascoll meant when hesaid”‘cost of doing business.” When the grievor ’
replied, “That’s up to you,” he meant that it was up to Mr. Mascoll to decide
whether he wished to apply for a licence.
The grievor next met with Messrs. Donovan and, Mascoll on July 21, 1992. He
agreed that Mr! Mascoll said:. “Umm, that five hundred that I gave you, is that
. . .
alright? Because there’s more . ..I’ And that he replied: “No, no, no. I want
,
66 ’
nothing?’ The grievor ~did not say “what $500?“-because he thought that Mr.
Mascolj’was; for the first time, offering him a bribe. He. pointed out that
there was ‘a lot of noise, and stated that he did not hear exactly what Mr.
Mascoll said. Very simply,. the grievor testified that he never heard Mr.
Mascoll say that he already gave him $500. What the grievor did hear was
an offer of money, which he immediately refused. He did not report this
conversation to the LLBO because it was not -a benefit, as he did not take it.
The grievor thought that Mr. Mascoll was simply trying to show his
gratitude.. There ‘was nothing, to bribe him about, and he did not consider the
offer a potential conflict. He decided to handle the bribe attempt
informally by simply saying no.
\
As has already been established, some time after this meeting the grievor
learned that the premises in question were to become a daycare centre, and
he then, threw the application out. He agreed that it was not his job to
determine applications, and that the licensing branch reviews and
processes ,applications. The grievor may not have been fully familiar with. ..
the application review process, but he knew from past experience that.
applications were not processed without a certified cheque. There was,
therefore: no reason for the grievor to submit’the application to the. Board,
and no reason to cont/nue ,to hold on to it once he determined that the’
applicants ,had decided not to proceed. The grievor agreed that there was
nothing in the Manual that authorized him to throw applications out, but he
pointed out that there was nothing in that Manual that ‘prohibited him from ’
doing so either.
The grievor was, therefore, somewhat surprised ,when he received a phone
call from Mr. Donovan on August 14, 1992. This telephone call aroused his
67 ‘_
suspicions, and so he went and informed Mr. Oliver. A meeting with Messrs.
Donovan and Mascoll took, place -on August 17, 1992, and this time the
grievor was ‘also wired. He ‘did not know that the previous meetings with
Messrs. Donovan ‘and Mascoll had been taped. He did not learn this until.
later that day. -It was also reported in the Star story the following day.
- .
When the grievor met with Mr. Fournier, Mr. Oliver, and Ms. MacLean on ’
August 24, 1992, he was not calm and confident. He was taking medication
for his heart, and -did not feel well. That explains why he .did not, in
response to a direct question about the contents of the small envelope,-
indicate that he thought it contained the letter ‘from the City Clerk. The
grievor told Mr. Fournier and the others that Messrs. Donovan and Mascoll
had actually completed the application’ form because, in his .mind, they had.
Moreover, whatever assistance he gave them was on his lunch, and he is
free to do whatever he wishes on his own time, and this included helping
someone out.
The three .meetingsat issue in this case lasted about thirty minutes each;
and the grievor testified that he was pleased to .assist others. It was, he
said, “a nice thing to do.” It was this impulse that led the grievor to agree
to meet with Mr. Khan. The grievor could not recall exactly when that
meeting took place, and so did not know if he was then assigned to
Scarborough or to Toronto. The grievor insisted that Mr. Khan never gave
him any money. ,
The grievor agreed that if Mr. Donovan’s evidence about the time of the ‘June
2, 1992, meeting was believed, the result of such a finding would -be that
the grievor misrepresented his activities to the LLBO on the day in question
68’
.as’was reflected by the relevant inspector’s Activity Report.. He also agreed
that he has been previously disciplined for misrepresentation .of his time, <.
sheets. On one occasion the grievor claimed that he was doing office duties,
while at the time in question he was actually attending to the repair of. his
car. The grievor has also been disciplined for failing to identify an
infraction of before-hours service and overcrowding at a restaurant. He
testified ‘that in that case he was simply giving the licensee- “a, break.”
J
Re-examination of Mr. Lounds
The grievor was asked several questions in re-examination. He testified
that even if the City Clerk’s. letter was folded over and put into a small
envelope, he could not have seen what was inside that envelope given the
manner in which it was ‘passed. With respect to the Inspector’s Activity
Report, the grievor testified that a number of his duties were not
specifically contemplated on this document. For instance, the employer
provided him with blank application packages, but there is no place on the.’
Report for him to indicate that he passed out one of these packages to a
prospective .licensee. With respect to the timing of the June 2, 1992,
meeting, the’ grievor believes that his Inspector’s Activity Report and his
evidence at his, criminal trial are entirely consistent, as the meeting, in 1
bothcases, took place after noon. When the grievor met with Mr. Fournier
and the others on August -24, 1992, he was extremely upset,‘and one reason
why he was upset was because he had read in the Star that he took an
envelope with $100 bills sticking out. And that, he said, never happened.
Evidence of Roaer Oliver
Mr.’ Oliver testified under subpoena, and claimed the protection of the
Canada and Ontario Evidence Acts and the Charterof Rights and Freedoms
69
for each question ,asked,and each answer given. Mr. Oliver is a Regional
Manager,’ to ‘whom twenty-one inspectors currently report. He began work
as an inspector in 1973, became a supervisor in 1984, and was appointed
Regional Manager in 1985. Mr. Oliver has known the grievor for years, and
testified, a feti problems aside, that the grievor was a good .inspector.
Mr. Oliver was asked whether it was against the rules for inspectors,
post-l 990; to meet with prospective applicants. He answered that it was
not established procedure for inspectors to meet applicants, as the
application process was a licensing matter. However, he noted, as a matter
of practice, that inspectors would regularly be called upon to answer
questions on different matters relating to the application process. Often
inspectors would be called at home by persons with questions of this kind.
Prior to the changes introduced in 1990, inspectors would routinely go out
and meet with prospective licensees. Mr. Oliver testified that inspectors
would use their common sense in attending meetings of this kind, and that
much of the meeting was taken up with “P.R.” work on behalf of the LLBO., It
was. not an LLBO priority for inspectors to assist applicants with their
applications, but it was d.one. Around 1990, things began tochange, and a
lot of the senior inspectors had difficulty adjusting to the’ emphasis now
being placed on the compliance role. Some inspectors continued to meet
with new applicants. Mr. Oliver testified that one inspector was ’
2 disciplined for accepting remuneration in return for doing so. Mr. Oliver
was not aware of any inspector being told that he or she could face
discipline for simply meeting with a prospective applicant. Nevertheless,
management stressed that inspectors were to focus on ‘their compliance
role.
70 2
Mr. Oliver testified that post-l 990, it was not established practice for
inspectors to assist applicants in actually filling -out the application. form.
If Mr. Oliver became aware of an inspector -behaving in this way, he would I
have documented the incident and passed on the report to his supervisor. If I
a prospective applicant simply asked an inspector a question, the inspector
could answer it provided that he -or she did not become embroiled in the
actual application process. According to Mr. Oliver, actually filling out an
application on a prospective applicant’s behalf would not be proper. Simply
answering a question would be, as that was a public service. In Mr. Oliver’s
opinion, most inspectors would have little. time for anything but compliance
or enforcement; ’ i
Mr. Oliver was aware that the grievor discarded the Warden, Avenue I
application after learning that a daycare centre and not a bar was slated for 1
those, premises. In his view, it would have been better for the grievor to I
have held on to the application, sent it in to the Board, or returned -it to the
applicants. The grievor might also have sought Mr. Oliver’s advice. Mr.
Oliver agreed. that applications are site specific, and so the application . 1
could. not have .been. re&used. He testified that if it had been’ him, he would
not have had the application in the first -place, as he would have sent it into
the Board even though it was incomplete. If the grievor had been asked by
the applicant. to hold on to it, then Mr. Oliver guessed he would have’ done so
because he .is that type of guy.
Given that the grievor was asked to hold on to it, and,given that the
premises were clearly not destined .to become a’ bar, what possible reason
was there, ‘Mr. Oliver was asked, for the grievor to retain or submit the
application? The only thing, union counsel suggested, that made sense was
‘. I.
: : . . ‘.
_’
!
. . i 71 .. _’
for the grievor to throw it out. Mr. Oliver testified, however; that it was ‘:
not his duty to throw it out, that he should have sentit in to the LLe.0,
, which would then have advised the applicants that the application, was .’
incomplete. Mr. Oliver used to think that the Board w.ould. return incomplete , ._ I
applications; ‘as a result of his -involvement’ in these .proceedings he now
knows that the Board’s’ practice is to notify the applicants of all missing :) I
.documents cr other deficienc,ies. I Still, Mr. Oliver testified that it was ,
wrong, even though’ the grievor believed that incomplete applications would
be returned, for the grievor to throw ‘it out. _.
I
I
. . . ‘, I
At this point’ in the proceedings Mr. ,Oliver was excused, and union counsel ._ . asked for permrssion to cross-examine him$ven that the. answers he was .
giving in these proceedings were different from those given during the’.
,grievor’s criminal trial. ‘It was agreed that union counsel- would first , ‘_
establish the existence of ,a prior inconsistent statement, and’once he had’
done,so he could, if h.e still wished, cross-examine this witness. -- ~
! I
When Mr. Oliver testified: in .the criminal case, the following exchange
occurred:
Q. So there .would be nothing unusua! about an inspector, I
or anyone else, throwing away an application and the I
incomplete forms, because there is no need to file
incomplete applications at the Liquor License Board; is
there?
’ A. .Well,, if. it was sent into the Liquor License Board
incomplete, it would have been sent back anyways _
.
72 :
because they wouldn’t even entertain it if it didn’t have
the certified cheques attached, or the documents in
place.
Q. But if it hadn’t reached the Liquor License Board,
there is no. requirement of an inspector to bring it down
there to the Board and say it’s incomplete? There is
nothing improper by Mr. Lounds throwing ‘it away; isn’t
that correct? ’
A. Not, I guess, if the Board had never been notified. that
.it was -- that these peopUe were ever going to make an
application, no. I i
. . . / i
Q. So if Mr. Lounds knows it is not going, ahead because
you normally don’t have liquor at daycare centres, and
there is no certified cheque, you would agree with me
that the rest of the package is garbage to be thrown
away?.
A. I’ would think so. . . .
Q. ‘I put it to you that there is nothing improper with an
application being given to an’ inspector to be carried
down to the Board after it’s complete, as distinct from
the person applying at the Board and doing it herself; is
that correct?
A. It’s done, but it is usually sent in by - - well, they
send them in .either. by courier, or if the inspector is
going down, they bring them in.
Q. So this isn’t the first time you have heard of an
inspector assisting a proposed applicant; is that
correct?
A. No, it’s not the first time.
73,
Mr. Oliver did not disavow any of this evidence, and when the question was
again put to him, he stated that there was nothing wrong with. the grievor,
in August 1.992, in the circumstances described, throwing the application
out.
Mr. Oliver also took- the position that it was up- to the. gri.evor, in the
aftermath of the July ‘21, 1992, meeting when he was offered a :bribe, to
decide whether he wished to report that offer to manage,ment. ‘Some
inspectors may not wish to cause any waves,. Other inspectors might simply
make a notation of the incident in their memo book. If it was an outrjght’
bribe; then it probably should be reported. But ,if jt was simply the offer of
a gift for helping the person out, then the inspector might simply make a i
notation of it.
According to Mr. Oliver, it was perfectly acceptable for- inspectors to i
accept coffee from licensees.. He testified that the inspectors once
received a ,memorandum indicating that taking coffee and donuts was
acceptable. He also recalls being advised that .members of some ethnic
groups might take offence if their hospitality: was refused, so meals could
be. accepted in those instances, provided a tip. large enough to cover the cost’
.of the meal was left behind. ‘, Mr. Oliver testified that it was not the \
practice for inspectors to go. out collecting “freebies” and that. there were
consequences, one way or another, for doing so.
Cross-Examination of Mr. Oliver
Mr. Oliver was aware that the grievor had a disciplinary record, and he knew
this. when he testified at the grievor’s criminal trial. Nevertheless, he told
the court that the grievor had an “honourable career” at the LLBO. Mr. Oliver
/
I
:
74 -
.I :
did not mention the grievor’s record because he thought that it had. been
expunged pursuant to a provision in the Collecti.ve Agreement. His ,-
understanding, however, as to the terms: of that provision was incorrect.
Mr. Oliver agreed that it was up to licensing officers, not inspectors, to
review applications and to determine what was missing. Mr. Oliver is
aware that, post-l 990, the earliest an inspector would get involved in the
application process- was if and when assigned to conduct the approval phase
inspection. Inspectors also conduct the final inspection. Sometimes, Mr.
Oliver assigns the final inspection, and sometimes the inspector’ would be
called at home by the. applicant with respect to it: In .either case, the ‘
application has’ already been received by the LLBO.
In general, inspectors are not supposed to know about .applications until
after they are sent out to conduct either the approval or the final phase
inspection. They may, however, hear about applications when they are out in
the field. The reason inspectors .are not involved in the actual. application
process, is because of a concern about potential conflicts of interest. That
is why Mr. Oliver would have documented it had ‘he heard about the grievor
meeting with potential applicants. Since inspectors work alone, and have a
great dea,l of flexibility in -the management of their work, Mr. Oliver is of
the view that a high degree of’ trust. is required. Mr. Oliver agreed that it
tias contrary to the conflict-of-interest policy for the grievor,. or any other
inspector, to accept a free lunch. Mr. Oliver agreed that if an inspector was
offered money from a potential applicant, that could place the inspector in d,
a conflict of, interest. If the inspector felt as if he or she were in a
conflict, then he or she would have an obligation to report it. Mr. Oliver is
,. . .
,.’
75 ,,
‘of the view that employees, for their own protection, should report
incidents of this kind.
It was not proper, ‘Mr. Oliver agreed, for inspectors to meet with applicants,
and it was not envisaged that inspectors would assist applicants in filling
out their applications. That is why he would have reported these activities
had he been aware of them. .While improper, Mr. Oliver recognized that some
members of the “old guard” still consider meetings and assistance of this
kind as part of the inspector’s “P.R.” role. fievertheless, if Mr. Oliver
became aware of it, he would report it. The grievor should not, Mr. Oliver ’
now testified, have disposed of the Donovan-Mascoll application. Mr. Oliver,
however, qualified, his answer by saying that this answer was. based on ‘.
whathe now knows. When questioned further, he agreed that it was the job
of the licensing branch, not an inspector, to determine if and when an
application should be disposed of.
The grievor telephoned Mr. Oliver on ‘August 17, 1992, in the morning.
During that call; the grievor advised Mr. Oliver that he had disposed of the
application, and had done so because it was not complete. The grievor
mentioned at that time that one of the missing documents was either the
letter from the City Clerk or the letter from -property standards. At the :
grievor’s criminal trial, Mr. Oliver testified as follows: k.
Q- . ..my question for you, sir, is whether or not i,n this
phone call on August 17th, Mr. Lounds related anything to
else to you?
A. He advised me that - - in the Ju_ne or July, he had
given them the application, I believe, In June,. to, fill out.
I am not sure if it was in June that he had seen the,
application, or not, .but in July, apparently, the >
76
application - - they met again. The met at Lick’s, I think
he told me, and the application still wasn’t complete.
So apparently Harold - - they had given Harold the’
application and told him to hang onto it, because there
was some -municipal letters to complete, or wasn’t
completed. “We need municipal compliance from the
municipality where the license is being issued.” That,
along with some other documents that are retai‘ned in the
package to obtain a license were also apparently not -.-
it was incomplete.
i ,
.Mr. Oliver was present at the August 24; 199.2,’ meeting, but could not recall
Mr. Fournier asking the grievor what he thought the small envelope
contained. Mr. Oliver could also not recall attending a post-mortem
discussion after that meeting.
Re-examination of Mr. Oliver
In his August 17, 1992,. discussion with the grievor, Mr. Oliver formed the
impression that the grievor was asked to hang on to the application until it
was complete, but he could not recall exactly what timeframe this request
referred to. Mr. Oliver understood, notwithstanding the changes introduced
in 1990, that some of the older inspectors continued to meet with
prospective applicants. Prior to November 1992, inspectors worked out of
their homes, and applicants would often call them at home to request
assistance. Inspectors would hear about new applications by word of mouth
while on the job. When, Mr. Oliver failed to mention the. grievor’s previous
discipline during his evidence at the criminal trial, his failure was, he said,
attributable only to his misunderstanding of the operation of the relevant
provision of the Collective Agreement: He thought that the grievor’s record
had been erased. The grievor was, ,Mr. Oliver testified, a fair inspector.
:
177 I ‘.
/
From what Mr. Oliver knows; the grievor never accepted any bribes:
Evidence of Art Simoson
L Mr. Simpson testified. He is a long-serving inspector, and acted as union.
counsel’s adviser during these proceedings. Mr. Simpson testified that if a
prospective applicant. called him in 1992 and asked for a meeting, in most
cases he would meet with the person, particularly if he knew the individual *
or the person who had referred the prospective applicant to him. While Mr.
Simpson is aware that the focus of his inspection work shifted to
compliance post-l 990, he still feels that meetings of this kind are quite
important; for they keep the prospective licensee on the right path. Mr.
Simpson is aware, however, that the LLBO wishes prospective applicants to
deal with the licensing branch. Nevertheless, he still meets with Y
prospective licensees. from time’ to time. .His usual ‘advise is that they
should submit their ‘application as soon as possible; ,he follows thisadvice
by dropping by the next time he is in their .area.
,
Had Mr. Simpson been in the ,grievor’s situation in May of 1992, he would
have attended the, first meeting with Mr. Donovan. If another meeting was
requested, and Mr. Simpson felt that, the applicants were sincere ‘and needed
help,’ he would also have attended it. Mr. Simpson would never fill out a.n :
application on an applicant’s behalf; he would, however, answer specific
questions. Mr. Simpson understands that accepting free coffee and lunches
is a breach of the Board’s conflict-of-interest policy. He does not regard ! accepting coffee as a serious offence. He does not take lunches, although he
might accept a bowl of soup. He probably engages in’ this type of activity
two times per year. ‘He understands that accepting free food is not .
appropriate as doing so. may leave him feeling obliged to a licensee.
,
i’ 78 :
>
Nevertheless, the policy of the LLBO has not ‘been consistent, although it
has gradually tightened. Mr. Simpson understands that the rule -is that
inspectors’ not take anything, but he still takes a coffee from time to time.
Mr. Simpson has never been in any situation where ‘he was called upon to
hold on to an application. He could understand why the grievor might hold
on to an application’ until it was complete. As a Toronto-based inspector it
would be easy for the grievor to deliver a completed application to LLBO
headquarters. Mr. Simpson is not aware of any LLBO- policy prohibiting’
inspectors from holding on to these applications., Mr. Simpson has never
been ,in a position where he would have to dispose of an application. In this
case, he agreed that the Warden Avenue application- had no further value
after the premises’ were rented to a daycare centre. In 1992, Mr. Simpson
understood that any application submitted to the LLBO without a certified
cheque ,would be returned.
Cross-Examination of Mr. Simpson
Mr. Simpson agreed that inspectors occupy a position of trust, and work by
themselves with little supervision. He believes that the LLBO is entitled to
expect honesty from its inspectors. Mr. Simpson is aware of the .Manual and
agreed that it contemplates inspectors dealing with -applicants during the
approval and the final phase inspections. He also agreed that the LLBO was
entitled to expect its employees to comply with its policies and procedures.
Mr. Simpson does not believe that there is any potential conflict if the
inspector who assists an individual in filling o.ut an application is the same
person who is’later called upon to inspect the premises. He recognizes,
however, that the LLBO considers this to be a conflict.
1 :
79 -.
\
Mr. Simpson stated that he.. conforms with the LLBO’s policies and -.
procedures in most .of his actions,‘but he. disagrees ,with the LLBO’s attitude
with respect to other matters, such ‘as contacts between jnspectors and,
prospective applicants.. That is why Mr. Simpson -met with prospective
applicants in 1990, and that is why he continues to meet with them today. )
Mr. Simpson gives preferential treatment to prospective applicants he’ ‘. ,-
\ knows, or.who are referred to him by someone ,he knows. lje will, however,
take the time ‘to meet with any- prospective applicant who calls him up. Mr.
Simpson agreed that according to LLBO policies, the first time he should
meet a prospective licensee -is after being assigned to meet that. individual
by the Regional Manager. In another example. of non-compliance with LLF$O
policy, Mr. Simpson testified that he knew, in -1990, and continues to know,,
that accepting “freebies,” contravened and contravenes LLBO policy.
kowever, if a licensee or prospective licensee asked him to do anything’in .
return, he would say “no.”
Re-examination -of Mr. Simoson
\ ‘. In re-examination, Mr.’ S/mpson., testified that he was provided with a ‘:
number of application packages and instructed to distribute them to
prospective licensees, and others, as requested. In doing’ so, he would
obviously have to meet with them.
Employer Reply
The employer did not call any evidence ‘in reply. However, the parties . .
agreed that should the employer have called a representative from the City
Clerk’s office in Scarborough, his evidence .would have been that when the ’
City Clerk’s form letters are brought in by an applicant, for a liquor license,
they are held for a minimum of two weeks while they are reviewed by City
80 ._ .+
Council. They are then returned to the applicant or are sent directly. to the
LLBO, depending on the applicant’s stated wish. These letters are---inserted
in a normal City of Scarborough business envelope, an example of which
had already been introduced into evidence.
Employer Argument ’
Employer .counsel began his submissions by setting out the issue to be
determined: Did the employer have just cause to terminate the grievor?. ..
In counsel’s view; it did. Very simply,, the employer took the position that
the evidence established that the grievor knowingly received money from
I the Stai reporters and/or from Mr. <Khan, and that this i!legal activity,
along with his violations of established LLBO policies, constituted just
cause for dismissal. Both Mr. Shamie and Ms. Raso made. submissions. in
argument, but did not review all the evidence presented in this case.
Instead, the employer’s argument highlighted the key events -which,
counsel argued, established that its evidentiary burden had been met..
Submissions with Resoect to the Law \
’ ’ At the time of the grievor’s discharge, the employer had ‘no knowledge of
the events involving the grievor and Mr. Khan. Information about those
events only came to light during the grievor’s criminal proceedings, which
were concluding as these proceedings were beginning. The employer took
the position that the incident involving Mr. Khan constituted separate and II
additional grounds to support the grievor’s discharge, notwithstanding the
fact that this evidence was acquired after the date of that discharge. As
soon as the employer became .aware of this evidence, it notified the union ‘L
that it intended to rely upon it. Had the. employer learned of this incident
.
at any time, it would have, led to the grievor’s discharge, regardless of the
events involling the Star.
In counsel’s submission, it was well established in the jurisprudence that
employers could, in circumstances of this kind, rely on after acquired
information as separate grounds for the imposition. of discipline’ or
discharge.’ Counsel referred to a number of authorities in support of this
submission, including Re Ontario Hvdro and CUPE, Local 1000 3 L.A.C. (4th)
1 12 (Brent). Indeed, in counsel’s submission, the authorities n.ot only,
supported the use of this information as .separate grounds for discharge,,
but also allowed this information to be used as additional grounds, and it
therefore could be taken together with the evidence of Messrs. Donovan
and Mascoll, to establish that the employer, at ,the time of the discharge,
acted with just cause. Counsel referred to Re City of Saint John and CUPE,
Local. 18 4 L.A.C. (4th) 314 (Collier) in support of this proposition.
Counsel also took the position, as an evidentiary matter, that the Khan and
Donovan and Mascoll incidents can be viewed as similar fact evidence : ,
showing a pattern of conduct, and that each is therefore corroborative of ,’
the other. This similar fact evidence, in counsel’s submission, not only
established that the grievor had a method and a motive; but was of further
assistance in determining the credibility of witnesses. MacDonald et al. v.
Canada Kelp Co. Ltd. et al. (BCCA) 39 D.L.R. (3d) 617, and Re G.F. Stronq
Rehabilitation Centre and .HosDital Employees’ Union 33 L.A.C. (3d) 256
(Bird) were cited in support of these submissions. .
With respect to the legal standard to be applied, counsel candidly
acknowledged that the grievor was acquitted of criminal charges. ‘. 4
82
However, the criminal standard of proof is quite different from the civil
standard, and it is well accepted in the jurisprudence, in the employer’s
submission, that even though the civil standard required clear, cogent, and
compelling evidence on the balance of probabilities in cases. of this ‘kind,
the criminal standard is still quite different from the civil -one, and the
result, therefore, in. a criminal proceeding is not determinative or
suggestive of the result in a civil proceeding (Menzies 102/83 \
(Weatherill). Counsel pointed out that these -different standards -of proof,
with the possibility of different results, are entirely appropriate. The
acquittal at trial, therefore, has nothing to do with the determination of
the issue in this case - a determination which must be made based on the
evidence presented in these proceedings. Counsel observed that the
evidence presented in these proceedings was- quite different from the
evidence led at the grievor’s criminal .trial.
Counsel argued that much of this’case concerned credibility - who” was to.. *
be believed? In the employer’s view, the evidence. established that its
witnesses were credible and that the grievor was not. Referring to
factors such as demeanour,, candour, consistency of evidence, motivation,
and .probability, counsel took the position that the grievor’s explanation of
events was completely incredible. In the employer’s view, the grievor’s
‘, testimony was’ evasive and self-serving, while that of its witnesses was
both candid and believable. Counsel pointed out that the grievor had a
history of dishonesty, and referred to his earlier discipline in support of
this.suggestion. On one occasion, the grievor reported that he was at work
performing office duties when he was, in fact, seeing to the repair of his
car. In another example, when asked about his “big dough” comments, made
at the May 22, 1992, meeting, the grievor claimed that he was joking and
‘.
83
I
was trying to discourage Mr. Donovan from offering a bribe. Counsel
argued that this suggestion, along with his refusal in cross.-examination
to fully accept the meaning of conflict of interest, led to. only one
conclusion: the grievor did not tell the truth.
The Factual Context
Referring to the evidence, counsel pointed out that the grievor was obliged
under the conflict-of-interest policy to report to his supervisors
immediately any offer of a benefit. Certainly, he was required
immediately to report any offer of a bribe. In this case, the grievor not
only put himself into a position of potential conflict of interest but,
counsel argued, exacerbated that situation by not reporting’ it, if his
evidence was to be believed - namely, that he was offered but did not
accept money in return for providing assistance to prospective applicants.
A credible individual, in the employer’s view, would never have placed
himself in such a situation in the first place.. In this case, the grievor’s
general credibility ‘was further affected by the fact that ‘when he was,
again on his own evidence, offered a bribe on July 21, 1992, he waited
several weeks to report it. There was simply no basis, in the employer’s
view, to believe any part of the grievor’s explanation of events.
The evidence established that post-l 990, there were ‘two ways in which
an inspector could come into contact with a prospective licensee: the
approval phase inspection and the final phase inspection. ,In the first
instance,, the inspector was directed to inspect by the Regional Manager.
In the second instance, the,inspector might be instructed by management
to inspect, or might be contacted dlirectly by the prospective licensee.
Other than these two situations, the inspector was not; counsel argued, to
84
have anything other than incidental contact with prospective licensees.
This policy, and these procedures, were well known to the grievor. Yet he
continued to meet with licensees in defiance of the rules.
I
In counsel’s view, the grievor was not a dedicated public servant giving
the employer 7 10 percent. Rather, he was an individual who, was
knowingly engaged in impropriety. While the grievor claimed that meeting ‘.
with prospective applicants was part of his job, he never recorded these
meetings on his Inspector’s Activity Report, nor did he seek to be
compensated for them. This evidence, along with that of Mr. Oliver, who
testified that had he known of these meetings he would have documented
them and reported them, established that the grievor was deliberately
engaging in misconduct in meeting with prospective applicants. Indeed,
the grievor admitted as. muchto Mr. Donovan when the two met on May 22,’
1992.
There was an explanation for these meetings, and that ,explanation was not
that the grievor was a zealous and hard-working employee. The
explanation was that the grievor was seeking benefits from prospective
applicants. Why else would the grievor, in the fall of 1990, ‘when he was
assigned to duties in Scarborough, travel to Toronto to meet with Mr. khan
to discuss his. application for a licence? Counsel suggested that there was
only one answer to that question, and that answer was not that the grievor
was a hard-working and honest employee.
Counsel pointed out that the evidence, the grievor’s own evidence,
esta,blished that he met with prospective applicants. In’ this case, ‘the
grievor not only met with Messrs. Donovan and Mascoll, but -actively
.
\
85
assisted them in. the preparation of their applications. It .defied logic ‘and ‘._
credulity,, if the. grievor really believed that these activities were part of
his job, that he would not acknowledge them on, hislnspector’s Activity
Report, and would not seek to be compensated for them. The.only
conclusion that could credibly be drawn was that’ the grievor knew that.
these activities were not part of his job, and therefore sought to conceal
them from his employer. His failure to acknowledge them on either his
memo book or his Inspector’s Activity Reports provided, the employer ,
argued, more than sufficient evidence of the .grievor’s .intention to decieve
and, ultimately, to solicit and .accept bribes.
In contrast to the grievor, counsel argued, the witnesses the employer I
called were credible. Mr. Khan’s ‘story,’ counsel noted, never changed. ’ ‘I
Moreover, Mr. Khan had no motive to fabricate his account. While he did
have ‘a dispute with the owner of the Zanzibar, he forthrightly , ’ ” ~
acknowledged that dispute and his beliefs concerning it. What was
relevant, counsel argued, was not Mr. Khan’s relationship with the owner ’
of the Zanzibar, but the grievor’s decision to meet .with Mr. Khan. What
possible- purpose, counsel asked, would the grievor have had to meet with
Mr. Khan? Mr.‘Khan testified that the purpose became clear enough: the
grievor wanted some money, and Mr. Khan gave it to him. Counsel pointed
out that -Mr. Khan never wavered from his position .in thisrespect, and
while he was obviously wrong about the grievor reaching back to obtain
some napkins to conceal the money, that did ‘not alter the fundamental
fact that a bribe was solicited and accepted. Counsel pointed out that
there was evidence explaining how Mr. Khan may have made. this mistake:
he testified that he looked away from the grievor for a time-in order to i
. . retrieve the money from his pocket. Counsel urged me to accept Mr. Khan’s
version of events, and reject that of the grievor.
Similarly, in the employer’s view, there was absolutely no contest
between the’ evidence ,of Messrs. Donovan and Mascoll and. that of the
grievor. &May 22, 1992, the first time the grievor met with Mr. Donovan,
the grievor asked, counsel pointed out,’ for “big dough.” There was a * .
difference between the parties as to whether the grievor said that ,he ‘.
would not, take anything from “him” or “you,” but counsel argued that even I
if this difference was resolved in. favour of ,the grievor, the correct
answer to the question “do you get anything from this?” was “no.” The : s i
grievor’s answer, referring to “big dough” and considered in’ context,
demonstrated the method of operation of a fraudulent civil servant. In the
employer’s submission, this conversation alone, provided sufficient cause.
for discharge, for it demonstrates a clear breach of trust. The grievor’s
explanation that he was joking was, counsel suggested, laughable. No,
honest employee would ever ma’ke statements of this kind. An honest.
--- employee, in the employer’s vie& would have immediately, clearly, and
unequivocally indicated that such suggestions were unacceptable.
Turning next to the meeting of June 2, 1992, counsel took the position
that there was no dispute between the parties that -an envelope’ containing
$500 was passed. The only dispute was whether the grievor was, aware of
the contents of that envelope. Accepting for the purpose of argument that
the grievor could not see what was inside the envelope, counsel took the
position that the transcript and tapes of this meeting demonstrate that
the grievor knew that it contained money when he inserted it into the
application package.
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~87
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Counsel pointed out that some ten days earlier the grievor had’ in his
meeting with Mr. Donovan, made a reference to “big dough” and that
reference was accompanied by a suggestion, in the employer’s view, that
Mr. Donovan arrange, for his partner, “Mr. Martinez,” to provide the money.
A meeting was then arranged and Mr. Mascoll passed over the -money.
Needless to say, the grievor had an explanation, and it was that
explanation that counsel considered next.
The context must, in. the employer’s view, be established. Mr. Donovan left
‘Mr. Mascoll and the’ grievor alone. Mr. Mascoll then said that he was
worried about the grievor’s report. He then made references to easing the
process. He then told the grievor that he wished to ensure that the,grievor
was all right. The grievor said that he was fine, and Mr. Mascoll passed
the envelope, making the remark, as he did so, that it was the “cost of I
doing business.” The grievor then said that it was “up to you.” In the
employer’s view, this is not a conversation that would have accompanied
the passing over of a form letter from the City Clerk. It was interesting,’
‘counsel observed, that.the grievor carefully reviewed every other part of
the.application, but he took the enveilope and put it inside the package
without even looking inside. And counsel argued that the reason for his ;
doing so was obvious: he knew that it contained money. It was also
interesting, in this respect, that .when Mr. Donovan returned to the table,
he noticed that the grievor’s mood had changed. The employer.argued that
this evidence further established that the grievor knew that he had been
bribed.
There was an alibi,, of course. The grievor claimed that he thought the
small envelope contained the letter from the City Clerk. The fact of the
.
9
‘.
E;8 ,. . i
matter, however, was that that ‘matter had been raised and dealt with
much earlier in the conversation when the. grievor asked about the letter
and Messrs. Donovan .and Mascoll told him that it had been taken care of. If
the letter was going to be passed, it would have been passed at that time,
not later on. Moreover, by the time the bribe was. given, the. only thing ,
missing from. the -ap&ication was the certified cheque, and the grievor had
indicated as much. He did not say, in effect, “get me the cheque and the
City Clerk’s letter,” he said, in effect, “get me the cheque.” And that was
because, counsel argued, he had already been told that the- City Clerk’s
letter had been arranged. It was not because he believed that the City
Clerk’s letter had just been passed.
Under the process in place, it would have been impossible for the
applicants to have already obtained the letter from the City Clerk, given
that the City holds on to those form letters for at least two weeks. In
this case, two weeks had not passed since the grievor and Mr. Donovan
.
,.
first. me. In addition, there was no dispute in the evidence that the City
Clerk inserted its letter in regular business envelopes. The-,envelope in
this case. was a smaller utility envelope, and it would have required the
letter to be folded“in order to fit inside. The photographs were] not,.
counsel suggested; consistent ‘with the envelope containing a folded form
letter. They. were, however, consistent with the envelope containing cash.
It only made sense, counsel argued, that the grievor would have been
aware of the process in place, and this was, another reason for finding that
the grievor’s alibi could not be believed.
It was also interesting, counsel suggested, that when the grievor was
specifically asked, on August 24, 1992, what he thought was inside the
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envelope, he stated that he did not know. Later he explained his failure to
give the City Clerk response by stating that he had suffered a heart attack
and was under stress. Counsel noted that Mr. Fournier’s observations of
the grievor at this meeting were quite different.. He found the grievor calm
and composed. It was true enough that the grievor referred to his alibi
during the August 17, 1992, meeting with Messrs. Donovan and Mascoll, as
well to Mr. Fournier before the meeting with the Star reporters began. But
there was, employer counsel suggested, an explanation for that. He did not
know, at that time, that the earlier meetings were taped. Therefore, he
felt free to tell this story. By August 24, 1992, he knew that the ,’
meetings had been taped, but, obviously, he had not yet had an-opportunity
to hear the tapes.. Therefore, he could no. longer provide that alibi because
of a fear of being impeached. Only when he realized, employer counsel
suggested, that the transcripts and tapes could support -his version of
events did he again refer to the City Clerk letter alibi. .
Employer counsel suggested that there were a number of other reasons for
not believing the grievor’s version of events. Counsel referred to the
grievor’s Inspector’s Activity Report, and to the conflict in his evidence
and that of Mr. ‘Donovan about when exactly the June 2, 1992, meeting took
-place. Mr. Donovan testified that it occurred around 1:90 p.m.; and. this
time period is corroborated by the memorandum he wrote later that day.
The grievor claims that the meeting took place over the course of his
lunch, which he indicates on the Inspector’s Activity Report was taken
between 12:OS ,.and 12:35. However, the. grievor testified at his criminal
trial that the meeting took place “in the afternoon.” Counsel suggested
that Mr. Donovan had no motive. to misrepresent the exact time -of this
meeting, but that the grievor did, for if the meeting took place when Mr.
90. :
Donovan said it did, that meant that the grievor had misrepresented his
activities to his employer for that afternoon. This act of ..
misrepresentation, counsel noted, was consistent with at least one
earlier act for which the grievor was disciplined. The point, however, for
the purposes of this case was that the grievor failed to record and then
misrepresented his activities so as to conceal what he was really doing. -’
There was really no doubt, in the employer’s view, that the grievor was a’
dishonest employee, and counsel suggested that his dishonesty was again r’
proven on July 21, 1992. At that time, Mr. Mascoll asked the grievor ‘._
whether the $500 was, enough. Instead of saying “what $SOO?” -. which,,
counsel suggested would have been the response of an honest employee -
the grievor made some remarks to the effect that he wanted nothing..
Even assuming, again for the sake of argument, that the grievor understood
these comments to be an offer, for the first time, of a bribe, his response
to the offer was completely contrary to the requirements of the
conflict-of-interest policy. Counsel suggested that it did not really
‘matter, in this context, whether the grievor understood the comment to be
an offer of a bribe or gift; indeed, it did not matter if the grievor could or
could not do something for Mr. Mascoll. What mattered wa.s how the
grievor handled the obvious conflict of interest, and the .manner in which
he did so’ was contrary to the conflict-of-interest policy. and, even
considered alone, counsel argued, constituted just cause for discharge.
One reason why the grievor did not report it was that he could not report
it, given the circumstances of his previous meetings wjth Messrs. Donovan
and Mascoll. ,To have reported the remark at that stage would have been to
expose all his previous misconduct, and counsel argued that this’was a
result the grievor obviously hoped to avoid.
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Eventually, however, counsel argued, the grievor realized that he ‘had to . .~
advise his ,supervisor that something was wrong. The ‘grievor did not
report anything out of the, ordinary following the July 21; i 992, meeting;
nor did he report anything unusual when he drove past the Warden Avenue
premises and realized that it was, not destined to become a bar. lThe
grievor only reported to management following a receipt of another
telephone call from M.r. Donovan, and counsel suggested that the reason
why the grievor finally did so was because he realized that he- was in
trouble. In the. employer’s submission, the grievor’ probably threw the
application out at this point, because he- did not want it to be used as ?
evidence against him.
Counsel. argued that not much of significance occurred at .the August ;17,
1992; meeting. Both sides were wired, and the grievor was, the employer
suggested, on guard. However, employer counsel referred to one of the
gri,evor’s comments of particular interest. When the grievor was asked.
about his “big dough” remark, he- denied it. He did not know that the earlier
meetings ha,d been taped. However, if he -was truthful, he :would have said ’
something to the effect that he was only joking.. It was interesting,
counsel argued, that that explanation was not developed until’long after
the fact. It was- also interesting that the grievor claimed, at this ..
meeting, to have only met with Messrs. Donovan and Mascoll for a few S
minutes, and he rejected their suggestion that he had rendered
considerable assistance to them in filling out the application. These were
all hallmarks, in the employer’s view, of a dishonest’ person.
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Conclusion to Emolover’s Araument ‘\
In conclusion, counsel urged me to find that the employer had just cause’. ,
to discharge the grievor. In the employer’s submission, the evidence
established not only that the grievor was a distionest and incredible
witness, but that he solicited and accepted bribes, and otherwise
contravened the LLBO’s conflict of interest policy.
Union Argument
Union counsel began his submissions by setting out the issue to be decided
in this case: j Did the grievor knowingly accept a benefit or not? This case 7
was not about whether the grievor made silly comments, or took the odd
meal; or whether some discipline was appropriate for the grievor’s
mee.tings with potential applicants. This case, counsel submitted, was
about whether the grievor knowingly took money from Messrs. Donovan and
‘Mascoll, and in t,he union’s submission, the employer had failed to
discharge its burden of proof. And in that regard, counsel took the
position that the evidence in proceedings of this kind must not only be
cogent and compelling, but must reach an extremely high level of clarity.
That level, counsel argued, had not been met.
The Factual Context
Turning first to the events leading up to the grievor being discharged,
counsel argued that the only evidence was circumstantial, at best. There
was no direct evidence that the grievor ever knowingly took money from
Mr. Mascoll., All there was, and all the employer could really rely on, were c
some collateral facts which the employer believed established that the
grievor took money. This absence of real evidence, union counsel argued,
was ultimately fatal to the’ employer’s case.
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In the union’s view, the simple fact that an inspector met with some
pros&tive ‘applicants did-not mean that he or she took a bribe. The
simple fact that an inspector, as the grievor had been doing for years,
assisted some potential applicants did not mean that he took a bribe. The
simple fact that an inspector did not report an offer of money did not
mean that he or she was taking a bribe. Counsel pointed out that Mr. Oliver
testified that inspectors had some considerable latitude in deciding what
to report, and that decision would be based on what they perceived. On’
July 21, 1992, the grievor, knowing that there was absolutely nothing he
could do to assist Messrs. Donovan and Mascoll in their application for a -,
licence, .did not think he was being offered a bribe, and there was,.
therefore, no reason to report it. Certainly, his failure not to report could _
not be taken as. evidence that he had earlier received money. Once again,
there was no proof of that.
Counsel noted that the conflict-of-interest po!icy- was hardly written in ~
stone; nor was it uniformly applied. Referring to ‘the evidence, counsel
noted that there were varying interpretations about what exactly
inspectors could and could not’ do. Mr. Fournier testified that inspectors
could not accept anything; Mr. Oliver said it was all right to take coffee, ,
while Mr. Simpson enjoyed free coffee and the occasional bowl of soup.
These differing views were illustrative of the fact that flexibility in the
interpretation of the conflict-of-interest policy was not only required,
but was commonplace among LLBO employees.
All that the evidence indicated, union ‘counsel suggested, was that the
grievor agreed to assist, Messrs. Donovan and Mascoll in their pursuit of a
liquor licence. .It was true enough that the grievor eventually discarded ,
i
their application, but that, counsel argued, was neither here nor there. .
The evidence was clear that the application had become worthless, and,
that being the case, there was no point to hold on to it. Likewise, there
had earlier been no point in submitting the application because it was the
grievor’s understanding, and that understanding was shared by, other LLBO
employees, that the application would be returned by the licensing branch
without the certified. cheque. Having realized that the application was, no
longer required, and knowing that it could never be used ‘again, the grievor
threw it out. This act, union counsel argued, made perfect sense.
Certainly it could not serve to support the proposition that in discharging
the grievor, the employer acted with just cause.
Likewise, in the union’s view, the fact that the grievor assisted Messrs.
Donovan and Mascoll in filling out their forms did not prove that he was \
dishonest. As was the case with. the actual interpretation of the I
conflict-of-interest policy, counsel noted that there were different .
practices in place. Mr. Simpson testified that he would meet with I
applicants and answer their questions. The grievor actually filled in some
blanks, and that was not. really very different from advising prospective
applicants what to write down. In either situation, what the grievor did
was not illegal; nor was ‘it prohibited by the Manual.
\
Counsel noted that much of the employer’s case rested on the grievor
meeting with Messrs. Donovan and Mascoll before their application was
filed. The fact of the matter was, however, that this was a longstanding
practice, and it was particularly commonplace among inspectors of the
grievor’s vintage. In any, event, it was hardly surprising that inspectors
like the grievor and Mr. Simpson would be invited to meet with
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prospective applicants. After all, they worked out .of their homes, and
’ their home telephone numbers would be given out by the LLBO upon
request. No one had suggested that Mr. Simpson engaged in an illegal
activity by meeting with ap,plicants, and the union took the position that
there could. similarly be no such suggestion with respect to the grievor.
Very simply, the fact that the grievor met prospective applicants did not
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‘prove that- he accepted a bribe. -_
Not only did none of these “background” facts prove that the grievor
accepted money, there was no -direct evidence that the grievor, in ‘any of
his dealings, with Messrs. Donovan or Mascoll, .ever took money. Union,
counsel agreed that the May 22, 1992, meeting was important,
particularly the grievor’s references to “big dough.” There was no doubt,
in the union’s submission, that, in hindsight, the grievor might have more.
carefully chosen his words. However, the transcripts and the grievor’s
testimony in these proceedings established that the grievor talks a great
deal, and oftentimes goes on at great length. In,saying the words “big
dough,” and in making other comments, the grievor. was not, counsel
argued, asking for money; rather, he was trying to discourage an offer of
money. This was the way the grievor spoke, and that should not be held
against him. The fact that the grievor said that he would not take money
from “him,” referring to. Mr. Donovan’s partner, was ‘proof that the grievor
was simply trying to handle. an uncomfortable situation and had no
interest whatsoever in soliciting or accepting a benefit. At no time in
this conversation, the union asserted, did the grievor ever ‘indicate that
the payment of money was required.
96 ,.
Similarly, there was no evidence that the grievor, on June 2, 1992, ever
asked for or received any money from Mr. Mascoll. ,The photographs of that
meeting do not show that the grievor took money; nor do the tapes or
transcripts. What the ,evidence does show is that the grievor asked about
the City Clerk’s letter, and within a matter of moments that letter was
passed over to him, or, at least, that is what he thought. The fact that the .
City Clerk’s letter is not mentioned just before the envelope is passed, ’
while the need for acertified cheque is referred to, does not indicate that
the grievor knew that the envelope he was receiving contained cash. After
the small envelope was passed over, the grievor does not mention the City
Clerk’s letter again because there is no need for him to do so. He has it in
the application package. He is now waiting for the delivery of the
certified cheque, and he mentions that several more times: But as the
City Clerk’s letter has been received, that topic of conversation is now
closed. 1
Counsel noted that there was an assertion that the timing of the meeting
was useful in determining whether a bribe had been paid. It was
noteworthy that Mr. Mascoll testified that. the meeting was. held at 1:00
p.m. on one occasion, and noon on another. The grievor testified that the
meeting was held just after noon, and counsel pointed out that his.
Inspector’s Activity Report corroborated this testimony, not to mention
the computer-generated spot reports which had been introduced into
evidence.
One of the interesting things about the July 21,’ 1992, meeting between
the grievor and Messrs. Donovan and ,Mascoll was that there was no
discussion about the City Clerk’s letter. This was another reason to
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accept the grievor’s evidence that he believed he had received that letter -.
on June 2, 1992. The other interesting thing about this meeting was that
there was some real evidence about offering the grievor money, and this ..
evidence proved that the grievor would not accept it. W.hen asked, he said
“I want nothi,ng.“.- The grievor did not say “no more,” which would. have been
consistent with him having earlier received money. The meaning of his
words was .a clear “no.” There was, union counsel argued, no.inference to _ _
be drawn from the fact that the grievor did not say “what $500?” After
all,, the grievor testified that there was a lot of background noise, and his
answer was consistent with his, having heard an offer of money being . .
made in the present tense, not his having heard some reference ‘to an
earlier bribe. Moreover, it would not make sense, if the ‘grievor had indeed
taken $500 already, not to take a further sum. A dishonest employee !
would have said “sure.” The grievor, on the other hand, said “no.”
The grievor’ might have reported the bribe, but, counsel ‘arg.ued, ,it was far
from clear that- he was required to do so. Counsel again referred to .Mr. .
i Oliver’s evidence and suggested that it -would be,-wrong for the LLBO to )
hold the grievor. to .a higher standard than that required of his immediate
supervisor. -The grievor knew that -there was nothing ‘he could .do for. these
applicants, and. his failure to report the offer of money, which. the grievor
handled in his own way, could not and should not be used to support an
allegation that the grievor was engaged in illegal activity.
In the aftermath of this meeting, after learning that the Warden Avenue
premises were not, going to become a bar,. the grievor disposed of. the
application.’ If the application had some further use, or had there ‘been
some requirement that inspectors retain applications in circumstances of
/
98
this kind, the grievor’s actions in disposing of it might be ,problematic.
But, counsel .pointed-out, there was no evidence of this nature, and what
evidence there was - for example, the testimony of Mr,. Simpson and Mr.
Oliver that these applications .were site specific - supported the grievor’s
conclusion that the. application had become worthless. Moreover, it was
the grievor’s understanding, and that of Mr. Simpson, that the ‘licensing
branch would return applications submitted without a certified cheque. ’
There were no rules requiring the grievor to retain the application, and in
the circumstances the grievor quite properly concluded that little purpose
would have been served by retaining it. Whatever inferences can be drawn
from the grievor’s disposal of the application, the conclusion that the ’ , grievor took a bribe was not, counsel argued, one of them. --. .
August 17, 1992, was, ‘in ,the union’s view,. an important meeting. The
grievor knew that’something was wrong,’ but was not sure what. He also
knew that he was wired, and his answers to questions should be assessed
bearing that fact in mind. The’grievor was asked what he thought was in
the small envelope, and the answer he gave then is the answer he has
consistently given: the letter from the City Clerk. The grievor’s answer
was not simply a lucky’ guess. That was the grievor’s explanation in
August 1992, and the union took the position that the grievor has never
wavered in that explanation; it is the truth, and it explains why the
grievor accepted the small envelope and put it into.the larger package:
The grievor answered truthfully, and did so without knowing that a tape
and transcript would later corroborate his belief that on June 2,’ 1992, he
received the envelope moments after inquiring about the letter from the
City Clerk.
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99 .’ ‘.
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It was’true enoughthat the minutes of the meeting of August 24, 1992,
indicate that the grievor said he .did not know what the small envelope ./
contained, but counse,l argued .that that meeting also had to be ‘placed in
proper context. The grievor knew that on August 17, 19.92, he had said
that he believed that the small envelope contained the letter from the--City
Clerk. He also knew that that conversation had ‘been taped. There, was,
therefore, no reason for him, several days later, to say that he did not
know what the small envelope contained. ‘But that is what he said, and the
explanation for his doing so was the fact that he had had a heart attack,
that he was under medication, and that he was feeling a great deal of
‘stress.
Indeed, in the union’s view, the grievor assisted in the investigation and”
honestly. answered, the. questions that were asked. For example, the
grievor had lost his memo book. If he was a dishonest person, he could -
have said that the meetings with Messrs. Donovan and Mascoll were
I recorded in that book. But he did not. He had met with these men on his .
-‘own time, and he candidly said so. .Maybe the grievor; for his own’
Rrotection,.should have recorded these meetings. He chose not to do so,
and there was no requirement that inspectors record, their off-duty
conduct in their memo books. This was certainly not a basis, in the .
union’s submission, for any finding that the grievor had taken a bribe.
Mr. Khan’s Evidence
Turning to the evidence respecting Mr. Khan, the union suggested that ‘.
virtually none of this evidence could be believed. &counsel’s submtssion,
Mr. Khan was the incredible witness, not the grievor. Counsel noted that
Mr. Khan sat on his story for at least eighteen months before finally
100 ;
coming forward. And, in the union’s vie%, the timing of this appearance
should be borne in mind. Mr. .Khan presented himself to the crown just, ..
before he tias about to, be charged with: a’criminal offence - for forging an’
affidavit. ,That offence was inextricably wound up in Mr: Khan’s dispute
with the owner of the Zanzibar, and counsel suggested that because Mr.
Khan believed that. the grievor and the proprietor of the Zanzibar virere
somehow involved, that. it would be in his interest to implicate jthe. one in
the hope of huiting the other. In brief, Mr. Khan had developed an elaborate
conspiracy theory involving the owner of ,the Zanzibar, the grievor, and
leading municipal politicians. Not only was this story far-fetched,’ but it
also raised grave doubts whether anything Mr. Khan testified to could be,
believed. The same ‘could be said about his account of. his meeting with
‘the grievor and ‘Mr. Oliver at the headquarters of the LLBO. For some
reason, he’ left that encounter convinced that everyone.was on the take.
There were other reasons not to believe Mr. Khan, and. counsel enumerated
some of the.m. His evidence about the grievor reaching around to grab
some napkins in order to conceal the cash was physically impossible.
Nevertheless, Mr. Khan continued to insist that it-was so. Mr. Khan told Mr.
Donovan. that he met the grievor twice, but when he testified in these
proceedings he admitted that they had .only met once. This was an example
illustrating that Mr. Khan’s story was not consistent, but had changed over 1’ time. /
All this evidence, considered in context, did not establish that Mr., Khan
was a trustworthy and reliable -witness. Rather,. it proved th?at he was not
a person who could be believed. ~
101
Submissions with Resoect to the Emulover’s Arqument .‘.
Counsel made a few comments about the employer’s argument. In brief,
counsel reiterated that the. issue to be determined in ‘this case was
whether the grievor took a bribe. The grievor was not discharged for
taking the occasional free lunch .orgetting his. car fixed, the same car he
used for work. Nor was he discharged for trying to handle the July 21, I
1992, situation in his own way; Just because the grievor met with
applicants, as Mr: Simpson continues to do, does not prove that he was a
crook. Just because the grievor once made an inappropriate choice of
words does not prove that he was seeking a bribe. Just because the
grievor forgot, on August 17, 1992, that he had once used the words “big
dough” proved only that he did not recall a conversation that had taken
place several months previously. With respect to the time of. the meeting I on June 2, 1992, counsel pointed out that the grievor had no-reason to lie
about the time of that meeting, for he was aware that the employer had
access to. his-time sheets. The grievor was not evasive when questioned
by the employer. Indeed, he admitted things he did not have to, and he did
so because he was an honest ‘employee. Very simply, counsel argued,‘. the
employer had failed to prove its case.
In contrast, the union had proved that the grievor believed that the small
envelope contained the letter from the City Clerk. The fact that the City
of Scarborough held on to those letters for two weeks did not prove that
the grievor thought that the small envelope contained cash, or that .he
knew better. The grievor was not familiar with the practices of the City
Clerk, and given the. fact that only moments passed between the mention
of this letter and the’ handing over of .an envelope, it was quite reasonable
for, the grievor to conclude that the one was directly related to the other.
102 ‘, .-
Counsel did not dispute the proposition that after acquired evidence, if
proved, and ‘of the kind -led here, could be used as separate grounds to
support a discharge. However, counsel argued that the evidence of Mr. Khan
had not been proved, and so was of no assistance whatsoever. Certainly it
could not be used as similar fact evidence, since there was nothing
similar about the method said to be employed in the two different cases.
All the other evidence’was circumstantial,’ and while such evidence can
also be reiied upon, counsel argued it should be used with the greatest of
care. When the evidence was assessed in this case, it was clear, in. the
union’s view, that the only way that the discharge could be upheld was if
inordinate weight -were lent to inconclusive statements, given the
complete absence of ,any direct evidence that the grievor knowingly took a
bribe-. The employer’s evidence was not clear, cogent, and convincing. It
was ambiguous, it was unclear, and, at the end of the day, it did not prove
anything.. ‘_
Conclusion to Union’s Araument
In conclusion, counsel asked that the grievance be allowed, that the
discharge be set aside, and that the grievor be reinstated together with
full compensation for al.1 losses.
Employer Reply
Employer counsel made a few points in reply. In counsel’s view, not only
was Mr. Khan a credible witness, there was no evidence indicating that he
came forward to testify against the grievor because he was about to .face
some legal difficulties of his own. The immunity agreement he signed
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related only to the matter of\ his giving the grievor a bribe, and. had
nothing to do with the..offence for which he was subsequently charged.
Counsel also suggested that it was hardly to the grievor’s credit when he .’
admitted to some misconduct in the meeting held on August 24, 1992. By
that time he knew that the earlier meetings with Messrs. Donovan and
Mascoll had been taped, and he knew that there was evidence of such:
misconduct. Likewise’ no inference of honesty could be drawn from the
grievor’s refusal to accept more money on Jul,y 21, 1.992. Messrs.’ Donovan
and Mascoll had still not provided the certified cheque. By this point it
had .also dawned on ‘the grievor that the premises sejected might not be
the best location for a bar. Accordilngly, the the grievor would have had
every reason to proceed cautiously. ‘.
i
The fact that the grievor stated on August 17, ,l992, that he believed that
the small envelope, contained the letter from the City Clerk did not prove
that that is what he’ believed on June ‘2, 1992. Counsel pointed out that on
August 14, 1992, the grievor knew he was in trouble. He knew that he had
taken an .envelope filled with money, and he knew that he would be called
upon to explain having done so. He had the whole weekend to consider an
alibi, and he Was able to come up with one. The fact that ‘he did so’did not,
in the employer’s view, establish that .when he actually took the .envelope
he believed it contained the letter from the City Clerk, By August 24,
1992, the grievor has reason to believe that his alibi made no sense, and
this explains why he said, in response to a question from managment, that
he did not know what the envelope contained.
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Finally, ‘counsel took the position
104
that all the grievor’s activities had to be
considered in context. When they were, it was clear that the grievor was
1 engaging in activities that were properly the responsibility of another
LLBO branch. The question. that had to be asked is why? It was true enough
that inspectors were provided with applications to hand out. But it was
also true that they knew it was no longer their job to meet with
prospective. applicants. Yet the grievor continued to do so. There was only
one explanation for this conduct, w#hich the grievor first sought’
deliberately to conceal and then, when confronted, sought to minimize, and
that explanstion was not consistent with the grievor’s claim that he was
an honest employee.. Rather, that explanation, which, in the employer’s
view, was proven in the evidence, ‘was that the grievor had solicited and
.accepted bribes from Mr. Khan and Messrs. Donovan and Mascoll, and that
the employer, in, all the circumstances of this case, had just cause to
terminate him from employment.
Counsel again asked that the grievance be dismissed.’
Decision
Having carefully considered the evidence and arguments of ,the parties, I
can only conclude that the ‘grievance should be dismissed. There is really I
no dispute but that in cases of this .kind, the evidence, while subject to
the civil standard of proof, must be clear,. cogent, and compelling. In my
view, that standard has been more than met.
Having ‘heard all the witnesses, having listened on several occasions to
the tapes, and having carefully studied the transcripts and other
documents introduced into evidence, I find that the grievor and, to a
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105' ’ _.
limited and, somewhat different extent, the other witnesses. called by the .
union, insofar as the material facts of. this case are concerned, are not
credible and cannot be believed.
For his part, the grievor was evasive and argumentative. Even allowing ,
some latitude for the stress and discomfort he undoubtedly felt, his
demeanour left me unconvinced about the veracity of, his evidence. More
importantly, for reasons which follow; i cannot and do not accept his _I
explanation of events: -That explanation satisfied a criminal court judge,
in the. context .of a much ,different case, that. there, was a reasonable doubt
as to his guilt. However, -that is not the standard to be applied in these
proceedings. And, I- am satisfied, applying. the established standard that
clear,. cogent, and compelling evidence is required, to establish .just cause
‘in cases of this kind, that that standard, for the. reasons and because of
the findings set out below, has been more than met.
A few preliminary comments are in order about the other witnesses called
by the union. Mr. Oliver began his evidence testifying one way, and ended
it testifying another. He was a reluctant witness; and while he did say at
one point that it was proper for the grievor to throw away the
Donovan/Mascoll application, his testimony in this respect did not leave
me convinced. Likewise, the. evidence of Mr. Simpson leaves a great deal
to be desired.. Even though he knows that the LLBO prohbits inspectors
from meeting with applicants and assisting them with their applications,
he c,ontjnues to do so. Even though he knows that the LLBO prohibits
inspectors from accepting’ free food and drinks from licensees, he.
continues. to do so.
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In marked contrast, I found the evidence of Mr. Donovan, in particular, ’
completely ‘credible.--:- He was honest. and straightforward when he testified
. in these proceedings, and he also kept contemporaneous records which,
along with the tapes and transcripts, corroborate, and assist in proving,
his version of events. While Mr. Mascoll’s recollection of events was not
as complete as it might have been, I .find his evidence truthful. It 2
corroborates the testimony of Mr. Donovan in eve’ry materi&espect.
Moreover, ,at the end of the, day, I a’m also satisfied that Mr. Khan testified
truthfully when he’gave evidence about the grievor soliciting and
accepting a bribe. While Mr. Khan’s general evidence about a conspiracy to
prevent him from obtaining an adult entertainment licence somewhat
strained credulity, at least insofar as senior municipal politicians were
, said to be involved, I had the opportunity to hear him give evidence in
chief, and under cross, and I find his direct evidence about the
circumstances in which he gave the grievor a bribe entirely credible.
It is’ true enough,. as pointed out by the union, that one aspect of this
evidence, namely the reaching over to obtain a napkin to hold the money,
was physically impossible. And it is, also true that notwithstanding this
fact, Mr: Khan maintained that, it happened. On this point, Mr. Khan is
obviously wrong, and his mista’ke may be attributable to the fact that the
grievor, as established in the evidence,, was not always in his sight.
Whatever the e.xplanation for this mistake, if indeed there is one, the
. essential point remains that this mistake is not determinative of
anything. The main point of Mr. Khan’s evidence, and he never wavered on
this point, is that the grievor requested and then accepted a bribe.
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There were a number -of inconsistencies in Mr. Khan’s evidence-in these
proceedings when compared with the statement given to the crown’
attorney and his evidence at the grievor’s criminal trial. Moreover, there
were some discrepancies between Mr. Khan’s evidence in these proceedings
and Mr. Khan’s story as subsequently relayed by Mr; Donovan. Once again,
none of these inconsistencies and’ discrepancies, given their nature, is
material to the issue before me. Union counsel .urged me to find that these ’
inconsistencies, large and. small, together with Mr. -Khan’s general
demeanour on the witness stand, should lead ‘me to conclude that he was
not a reliable witness and should not be believed. I do not reach that ’
-conclusion.
In concluding that the .grievor was discharged with just cause, I make the. ’
following findings of fact: ,
’ .l. The grievor solicited and then accepted a bribe. of $500 from Mr. Zak
Khan in the fall of 1990.
In addition to the reasons just given for believing the evidence of Mr.
Khan, I was influenced in. reaching this conclusion by a number of other
factors. The grievor had no business reason for travelling from
Scarborough to Toronto,to meet with Mr. Khan. The grievor was not
involved in the application process and he was, in any event, assigned to
Scarborough, not to downtown Toronto. The circumstances of this meeting
are such as to indicate that the grievor accepted the invitation and then
attended the meeting with one purpose in mind: obtaining a gratuity, not. . .
the performance of his duties and responsibilities. ‘,
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This finding alone constitutes, in my view, .just cause for the grievor’s
discharge. It is not, therefore, necessary to make, any further findings,
about the ‘meeting at LLBO headquarters in the spring ,of ‘1992.
2. I find that on May 22, 1992, the grievor solicited a bribe from Mr.
Donovan.
This finding alone constitutes, in my view, just cause for the grievor’s
discharge.
As noted in the body of this-award, I concluded that the grievor said to Mr.
Donovan that he would not take any money from “ya” as opposed to “him.”
However, what is important about this conversation, in ‘my view, is not a
dispute over thisone word. For even if I had been .persuaded that the word
was “him” and not “ya” or.“you,” I would still have found that this
conversation, considered in context, was a solicitation of a bribe. I
The grievor was asked if he was “getting anything for this,” and there
should .have been only’ one answer to that question, and that answer was
“no.” Instead, the grievor went on to solicit money by stating that if Mr.’
Donovan had “big dough or something, sure, but I’m’ not.” Then,. after being
advised that the “Indian guy” had the money, the grievor invited Mr.
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Donovan to “get it from him.” He then said that he would not take anything I I
from Mr. Donovan, but, I find, that he would take money from the “Indian I
guy.” However, as already stated, this finding, that the grievor did not say ~
“him” but “ya” .or “you” is ultimately immaterial to my final conclusion, for
the conversation goes on and as it does the grievor continues to solicit a
bribe. He refers to being treated properly and makes a final reference,
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when asked if he meant “dinner, or shit ‘like that,” to “well, whatever.” It
is hardly’surprising that Mr. Donovan left this meeting convinced that the
grievor was. on the take. As Mr. Mascoll observed, soliciting and accepting
a bribe must necessarily be a subtle thing.
Moreover, in finding that the- grievor solicited a bribe on May 22, 1.992, I .’
was influenced by’ the fact that the grievor, while claiming that it was his
job-to meet with-prospective applicants and assist them, failed to, record .
this lengthy meeting in either his memo book or his Inspector’s Activity
Report. His failure. to do so leads me to the conclusion that’ the ‘grievor
sought to conceal this meeting from management because he knew that’ his
activities- in this respect were improper. For whatever this observation is
worth, Mr. Oliver testified that if he had known about any of..these-
meetings, he would have written a report. I find that the grievor was well
aware that, except for incidental meetings with prospective applicants,.
Such as for the. purpose of handing-out a blank application package, he was
not- to meet with them’ or’ be involved in any way with the application.
process.
3. I find that on June 2, 1992; the grievor_knowing!y accepted a bribe from
Mr. Mascoll.
This finding alone constitutes, in my view, just cause for the grievor’s
discharge.
The photographs do not indicate that the grievor could see there was
money inside the small envelope when he. took it and put it into the larger
application package. If they did, these proceedings would likely have been
unnecessary. However, the evidence of this meeting, considered in its
totality, is conclusive that the grievor knew he was taking a bribe.
Less than two weeks earlier, the grievor suggested to Mr. Donovan that the
“Indian guy” come up with the money. “Mr. Martinez” was now on the scene,
and Mr. Donovan left the table leaving him alone with the grievor. Their
conversation, reproduced in the body.of this award, leaves no doubt that *
Mr. Mascoll, in a subtle but nevertheless obvious way, was preparing the
ground.for offering the grievor funds. He began by setting the mood. He
had something to talk to the grievor about, and he wished to do so when-
Mr. Donovan was not around. He then referred to his concerns about the
application process, and about his knowledge that things. could be done to
ease the process. He then stated that he wished to ensure that the grievor
is “aIright,” ‘to literally .quote the transcript, and, when passing the
envelope containing the cash stated that it was the “cost of doing
business.” There can be no doubt, and there is no doubt, that the grievor
had to know that money was being exchanged. No other explanation makes
sense.
In reaching this conclusion, I am influenced by a number of factors.
Obviously, the’ previous meeting. with Mr. Donovan when the grievor
solicited money is significant. Also significant is the fact that the
grievor again concealed this meeting, which I find he did, preferring the
evidence of Mr. Donovan to that of the grievor, from management on his
Inspector’s. Activity Report. Moreover, the fact that the grievor actively
assisted Messrs. Mascoll. and Donovan, having already indicated that he
was not even supposed to know them, is a further ground for finding that
the grievor took the.money, .and did so in exchange for this improper
service.
It is true that the grievor later presented an explanation to the effect that
,.he thought the small envelope. contained the form letter from the
Scarborough City Clerk. ‘The transcript and tape of the June 2, 1992, ”
meeting does not bear this claim out. The reference to the City Clerk’s
letter was some time in advance of the exchange. Moreover, Messrs.
Donovan and Mascoll advised .the grievor that. the. City Clerk’s letter had
beentaken care of. When the small envelope was finally exchanged, the
City Clerk’s. letter was a finished’ issue. The only matter outstanding ,was-
the certified cheque. And, in this context, itshould be noted that itwas
agreed by the parties that the practice of the Scarborough City Clerk’s ,I
office was to hold’on to the form letter for two weeks and then either
return it to the applicant or mail it directly to the. LLBO. -’ I
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There is no way of knowing ‘whether the grievor was familiar with the
procedures of the Scarborough City Clerk. He did, however, have a good
knowledge of the. application process, so much so that he advised Messrs.
Donovan and Mascall in detail with respect to- it. Moreover, he had been
working in the field for a great many years. And while the photographs of
this meeting do not show cash in the small envelope, they also do not
appear to show a folded-over form letter, as was demonstrated in these
proceedings.
In my view, the fact that-.the grievor subsequently threw out the
application -pac.kage is. another reason for rejecting his explanation with
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respect to- the contents of the small envelope. : It is true that the .p,ackage-
was, by the beginning of August, worthless, in the sense that it could not
be used to apply for a liquor licence for the Warden Avenue location.
However, the package was still, important for another reason: it i
confirmed that the grievor had met with the applicants and assisted them . .
in preparing their application. More importantly, production of the
application package could have proven that the grievor did not knowingly
accept. a bribe, but only if the money. was still inside. One reason for i
throwing the application package out would be that the money was gone
thereby confirming that the grievor knowingly accepted a bribe.. It’ is also
noteworthy that the grievor carefully reviewed every other part of the
application, but ‘merely ,accepted this envelope, containing an essential
document, without looking at it or in some way ensuring that it was
complete. .Once again, the .inference is irresistible that the grievor knew
that the small envelope contained a bribe.
4; I find that ‘a direct offer of additional funds. was made to the grievor on I
July 21,. 1992, and that he failed to report this offer to the employer as he I
was required to do.
This finding alone constitutes, in my view, just cause; for the grievor’s
discharge. .
The conflict-of-interest guidelines are clear. The grievor should have
reported this offer, but did not do so. In my view, he did not do so because
he knew that doing so would expose all his other activities, and that those
activities were prohibited by the. LLBO. There can be no doubt thatan
honest employee would have responded to the suggestion about bribes,
even assuming for the sake’ of argument that this was the first time such
a suggestion was ‘made, by making -it absolutely clear that discussion and
conduct. of that kind was’ unacceptable. An honest employee would
immediately report offers of this kind to his or her superiors. The grievor
did neither. The fact that the grievor indicated that he wanted “nothing,” -
does not, in my view, alter the fact that he had al.ready been bribed.
It is possible that. the grievor’s refusal to accept money resulted from a
concern that the applicants were not legitimate. After all, he was still
waiting for the certified cheque, and he appears to have belatedly realized
that the location of the proposed bar did not make sense. In any event, his
response to the question, and. his failure to report .the attempt in -a timely
way, was contrary to his reporting obligations under the
conflict-of-interest policy.
Final Observations
A few final observations are in order. I do not find, for .whatever this
‘observation is .worth, that the grievor’s statements to Messrs. Oliver and
Fournier,, both before and after the meeting of August 17, 1992, with
respect to outstanding application materials and his knowledge of the
contents of the small envelope, to be of any real assistance in making the
factual determinations in. this case. By August 14, 1992, the grievor knew
that his conduct was under scrutiny. He had an opportunity over the
course of the weekend to consider previous events and to devise an
explanation for them. While there was a. conflict in the evidence with
respect to what the.,grievor told Messrs.] Oliver and Fournier before and ’
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after,. the August 17, 1992, meeting, it is not necessary to resolve that I
conflict for the .purposes of this award. ’
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Moreover, in all of the circumstances; I cannot attach much significance
to anything that was said at the August 17, 1992 encounter between th.e
grievor and Messrs. Donovan and Mascoll. The discussion which took place
certainly does not support Mr. Donovan’s contention that the grievor
connected the word “envelope” to the earlier receipt of a bribe., The facts
make it perfectly clear that everyone was on guard. at this meeting and, in
the result, no’ real significance can be attributed to the discussion. that
took place. I \ .L
In the aftermath of this meeting and all of the these events, the grievor
had’s heart attack, and jt is hardly surprising, given that occurence and I
the stress associated .with this matter over the course of the latter part
of August 1992 considered generally, that there may have )been some * /I
inconsistencies in his statements to his employer. Therefore, I do not
attach any real significance to the various inconsistencies which are,
apparent when some of the grievor’s earlier statements are compared to I
d his comments made at the meeting held on August 24, 1992. It should als,o
be. noted that some of the information in the employer’s record of that ,.
meeting is clearly inaccurate, whatever its source.
Finally, and for whatever this observation is worth, while there was an
allegation that the grievor singled out immigrants and visible minorities
for the solicitation of bribes, there was no evidence presented to me
establishing this allegation to be true. /
Ultimately, I am satisfied, for the reasons and, findings given above, that
the employer had just cause to terminate‘ the grievor. .The grievance is,
therefore, dismksedl
DATED at Toronto this 16th day of January 1995. i :
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William Kaplan
Vice-Chairperson
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