HomeMy WebLinkAbout1989-1062.Hyland.91-05-08 '~,~ ..... ~'-?*?~J'.,' ,'~ ~: q:~..,. -- '-:<.-. ~-..~. CROWN EMPLOYEES
DE L 'ON~ABtO
z; ~:?~:?~]'~:~ GRIEVANCE COMMISSION DE
BOARD DES GRIEFS ._. ·
180 DuNoA$ STREET WEST, SUITE 21~, TORONTO, ONTAR~. MSG l J8 TELE~HONE/T~PHONE:-(4 ;6)326-1388
180,,RUE QUNOAS OUEST. ~U~EAU 2~00, TORONTO ~OMTAR~O). ~5G 1Z8 . FAC$~MtLE/T~L~COPIE .. (4 ~6) 325-t39~
1062/89
IN THE MATTER OF AN ARBITRATION
Unde~
THE CROWN EMPLOYEES COLLECTI.VE BARGAINING ACT
Before
THE "GRIEvANcE SETTLEMENT BOARD
BETWEEN ....... " OP~EU (Hyland)
Grievor
- and-
The.Crown in Right of Ontario
(Ministry of Correctional Services)
EmPloyer
BEFORE: E.-Ratushny Vice-Chairperson
J. Laniel Member
D. Montrose Member
FOR THE D. Wright
GRIEVOR Counsel
Ryder, Whittaker, Wright & Chapman
Barristers & Solicitors
FOR THE D. Daniels ..... :" ':"~'
EMPLOYER Counsel
Mathews, Dinsdate & Clark
Barristers & Solicitors
HEARING: April 20, 27, 1990
May 25, 30, 1990
............ July ~20,..23, .25, 26, 27, 1990 .............
DECISION
Introduction:
The Grievor was dismissed from his employment as a
correctional officer at the Don Jail in Toronto because of an
alleged assault by him on a prisoner and his subsequent conduct.
The hearings in this matter extended over nine days from late April
to the end of July, 1990. It was agreed that argument would be
presented by way of written submissions. Counsel-were unable to
meet the timetable which had been established and the final
submissions were not received by the Board until early December.
However, the submissions were comprehensive and meticulous in
canvassing the issqes and we are grateful to counsel for the.care
which was .taken in their preparation.
The letter of dismissal provides a useful introduction to
this matter and it is reproduced in full:
May 24, 1989
Mr. Blair Hyland
Correctional Officer 2
'Toronto Jail
Dear Mr. Hyland:
Re: MEETING WITH THE SUPERINTENDENT
On May 10, 1989, you attended a meeting in
my office and were represented by Ms. J. Fairburn
and Ms. J. Bouldinq. Also present at the meeting
was Mr. D. Foulds, Deputy Super£ntendent (A), who
presented evidence in support of the following
allegations:
1. " You made false and misleading
statements regarding an altercation
with inmate K.D. which occurred on
February 4, 1989' These statements had
a detrimental affect on the operation
of the institution."
2. "You used unnecessary and excessive force in
dealing with inmate K.D. in the 5B segregation
unit on February 4, 1989."
3. " You failed to cooperate with M~nistry
Inspection staff by not providing a statement
to Inspector N. Gould, regarding the events of
February 4, 1989. This is c6ntrary to the
provisions of Section 22. of the Ministry of
.~ Correctional Services Act.." "
With respect to the first allegation, a revie~ of
all relevant reports does not support your contention thaf'
you were' bitten and yet you provided statements claiming
such injury. ~This assertion, given the fact that inmate
K.D. is known to have tested positively to the HIV virus,
¥'~-~sed a' major, labour disruption at the jail and
considerable media attention. Your conflicting
.statements, your failure to provide any explanations at
the meeting and the ensuing reaction leads me'to conclude
that allegation ~!o is substantiated~
In terms of allegation ~2, all documentation,
including the investigation, report-and witness statements
were reviewed.' From all reports, the statements of the
involved inmate and the inmate witness are consistent with
each otker and are supported by physical evidence. Your
version of the events is not supported by the
documentation or the physical evidence. As.you failed to
provide clarification either during the investigation.
stage or.at the meeting, I am forced to rely ~pon the
evidence available. Having reviewed tke supporting
documentation, it is my conclusion that the force used in
this incident was excessive and contrary to the provisions
of section 7 of the Regulations under the Ministry of
Correctional Services Act. Moreover, your actions in this
situation caused the escalation of a confrontational
situation and are regarded as unnecessary. Based on my
review of the documentation, it is my finding that this
allegation is substantiated.
In terms of allegation ~3, evidence was. presented
that you failed to provide Inspector N. Gould with a
statement as requi~ed du.ring an interview held on February
21, 1989. During the meeting of May 10, 1989, you
presented me with a letter from your counsel, Mr. J.K.
Hayes, suggesting that you have no desire to interfere
with an investigation and asking that you be 'offered
another opportunity to participate in the Ministry
investigation. Accordingly, I wrote to Mr. Hayes and
copied you requesting ~hat you contact Mr.~Gould to make
the necessary arrangements to provide a fuil disclosure of
- 3 -
the incident of F.ebruary 4, 1989. To this date, no
arrangements have been made by you or your-counsel to
participate in this process. Your repeated failure to
participate in the investigation and your failure to
provide any 'acceptable explanation for this failure to
comply with Section 22 of the Ministry of Correctional
Services leads me to conclude t~at this allegation is
substantiated.
In summary, all three allegations have been
substantiated. Each finding is sufficiently serious, even
when viewed in isolation to warrant dismissal. Each
constitutes a serious breach of the employer/employee
relationship and your responsibilities as a Peace Officer.
As an employee o~ the Ministry of Correctional Services,
you have breached your responsibilities, abused your
authority and behaved in a manner as to obstruct the
proper investigation of a major incident.~ This incident
was extremely .serious and your actions had a detrimental
effect on the institution-at-large.' In view of these
findings, it is my decision-to dismiss you from employment
in accordance with section 22 (3) of the Public Service
Act.' Your dismissal is effective this date.
It will be necessary for you to return to the
institution all uniform and other items issued to you
including your identity card and Standing Orders before
your final paydheque may be released. You shou!d~contact
Mr. N. Thomas, to make these necessary arrangements.
~- . Yours truly,
-LDE-
L.D.'Eley
. Superintendent.
CC: Personnel.
During the investigation which led to his dismissal~ the Grievor-
was awaiting trial on a criminal charge of assault in relation to
the same incident.
The Employer must satisfy the burden of showing just 'cause
for the'dismissal of the Grievor. Although the standard of proof
is "a balance of probabilities", the authorities also speak of the
requirement of "cogent" .evidence in the context of the seriousness
of a dismissal from employment. Since t~e allegation of excessive
force is the central issue, it will be addressed first... The
allegations of making false statements and of failing to co-
operate with the investigation, then will be addressed in tur'n.
Excessive Force
On the morning of February 4, 1989, K.D. was an inmate at
the Toronto or "Don" Jail, which is a maximum security institution
in downtown Toronto. He was held in. an "isolation cell" on the
fifth floor of the building,'in an area adjacent to the Health
Care Unit for the jail. He occupied tke top bunk of the call and
the lower bunk was occupied by R.K.. On November .30, 1988, K.D.
had been diagnosed as suffering from AIDS. R.K. also had been
diagnosed as suffering from AIDS.
The cell is approximately six feet wide and eight.feet
long. The bunk covers the length of one wall except for a narrow
ladder running up the wall at the foot of the bunk. Directly
opposite the foot of the bunk is a door into the cell. In the
corner opposite the head of the bunk'(and on the same wall as the-
door) is a small sink and toilet bowl.
K.D. testified that, during %~e period in question, he was
suffering weight !oss~ could no~ digest food and was not
responding to medication. He claimed that he was emotionally very
upset. His emotional state was likely affected by his feeling
that prisoners with AIDS were not well-treated.. He was aware that
the organization, AIDS.Action Now, was to hold a'rally that day in
favour of removing inmates suffering from AIDS from segregated
cells and integrating them with the general population. The
following represents his testimony as to what occurred on February
4, 1989.
On the morning in question he refused to eat his
breakfast. He claimed that he was unable to digest solid foods
and argued with the correctional officer who had served the food
to him, claiming that she knew he could not eat it. However, he
recognized that her primary concern in wanting kim to eat was his
health. He was threatened with a misconduct charge and returned
to his cell.
Shortly afterwards, two guards came to his.cell to advise
him that he would be taken to the AIDS Clinic at the Toronto
General Hospital. He refused and was taken to see a nurse at the
jail. However, he could not be persuaded to visit the c!inic~and
insisted that he be allowed to see his own doctor, whom K.D.
considered to have special expertise in relation to AIDS.. He-
received his medication, was returned to his cell and fell asleep
on the top ~bunk.~ He was lying on his stomach with his feet
opposite the ~oor and his .head opposite the sink and toilet. His
left side was adj'acent to the wall.
The next tking ke remembers is being pulled off of the
bunk by his right ankle and falling to the 'floor. His right
shoulder and his neck at the base of his right ear glancsd off of
the stainless steel toilet bowl. He stood up but was dizzy and
unsteady from the fall. He immediately received blows to his head
from the Grievor. He received a punch to each .side of his face,
then one to his nose, followed by four or more' punches to his
stomach. The Grievor then took a step back and kicked K.D. in the
stomach, which caused him to fall and injure his right wrist.
K.D. was on his stomach and moved under the lower bunk for
protection. Tke Grievor tried to kick him while he was under the
bunk but only. grazed his right thigh since the Grievor's foot hit
the railing of the lower bunk. K.D. claims to have seen the
Grievor's foot hit the railing since his head was "right there,'.
The Grievor then kneeled on the calf of K.D.'s right, leg, which
was not under the bunk,~ but exposed. K.D. then called for someone
to press the '!Code Blue" button in the corridor which would bring
other guards to the scene. This alarm was sounded and other
officers appeared ~uickly. The Grievor then helped to drag K,D.
out of the cell and into the corridor.
The Grievor's version of the incident was very different.
He testified that the inciden% arose out of a routine search of
the cell i~ question. As he entered the cell, he called "Search
Up" a number of times. His partner or "back-up" ~for the search
was Correctional Officer Eva Picketing, who. remained 'near the
entrance to the cell. R.K. began to get ready for the search but
K.D. remained lying on the top bunk with a sheet over him. The
Grievor reached over with his left hand to the foot of K.D.'s
mattress and lifted it an inch or two in order to draw a response.
This left the Grievor's head close to K.D.'s feet and, without
warning, K.D. kicked him on ~he left side of his'head in the area
of his forehead and temple. The Grievor concluded from the force
of the blow that K.D. must have been lying on his side with his
back to the wall and his knees drawn up to some degree.
Tbs Grievor staggered back and K.D. immediately jumped off
of the top bunk and attacked~him with Punches and kicks. K.D.
spat at the Grievor. as he came off of the bu~k and appea~ed to be
trying to kick him in the groin. A number of kicks were la~ed on
the Grievor's upper thighs. The Grievor a~So received bruises on
his arms from holding up his' hands to block the punches.
Eventually, he gained control of K.D.'s forearms and pushed him
backwards agains~the ~wall-between the toilet and the bunk.--He.
then exerted all of his weight and forced K.D. to the floor. (The
~Grievor is approximately 6'3" tall and weighs 220 pounds while
K.D. is approximately six inches shorter and was aPproximately 70
R.K. ~estified tha~ on'the morning of February 4, 1989', he
was lying on his back on the lower bunk and K.D. was lying on the
top bunk. They were waiting 'for breakfast when the Grievor
entered the cell with gloves on and said "Here's your breakfast".
He then grabbed KoD.'s mattress and' pulled it partly off the bunk
causing K.D. to fall towards the Grievor and to hit himself on the
corner of the foot of .the lower bunk. The Grievor then began
punching K.D. in the nose and punched him approximately ten times.
K.D. said: "I'm going to sue you guys."
.R.K.. said: "what's going on, you guys?" then moved off of
his bunk and past the Grievor to the door so that.he would avoid.
being hurt. He said: "Why? Guy's AIDS. Give him a break". .The
Grievor replied: "You fuck off".
K.D. then fell and his 'head h~t'the' toilet. While R.K.
could not remember the exact sequence of events,, he does remember
that K.D. was under the bunk at one time. The GLievor also pushed
K.D. into the corner of the lower bunk and~ punched him there.
'There was blood on K.D.'s Chin from a bleeding nose. The Grievor
did not kick K.D. but only punched him~ K.D. did not hit, bite or
spit on the Grievor.
Eva Pickering testified that, since she had the keys to
the cell, she opened the door and called "Search" and the Grievor
entered the celt. She was outside the threshold to~ the cell but
heard the Grievor say "Get Up. Search." and saw.him touch either
the mattress or K.D.'s toe. She saw K.D. throw off th~ sheet,
kick the Grievor in the forehead, slide off the bunk and "jump"
the Grievor. K.D. was "jumping, shouting and swearing"
Pickering ran -out -in'to .the corridor to press the "Code-i.B~ue?
button and then returned to the cell area. When .the response was
'not immediate, she left to press it a second time.
She added that even if K.D. did kick the Grievor, he
should have left the cell immediately to obtain assis.tance rather
than trying to deal with the matter himself. Of course, if the
Grievor's testimony is accepted, that was no{' possible since he'
was initiai%y stunned by the blow and immediately found himself
fending off an attack.
K.D.'s~ testimony contained a number' of assertions which
were highly improbable in light of the other evidence~ For
example, he stated that: since he had occupied the-cell in
question, it never had been searched in the presence of inmates;
the Grievor never indicated that he wished to conduct a'Search; it
was K.D. who requested that the "Code Blue" button be pressed,
and; no other words were spoken by either K.D. nor the Griavor
during the entire incident. There are also a number of
inconsistencies betwe6n K.D.'s testimony and other statements
given by him. For example, 'in his'statement of February 6, he
stated that he heard the Grievor say "Natasha, push the button"
There also were in. consistencies between his testimony and
that of R.K.. K.D. insisted that he was pulled out of the top
bunk by his right ankle and that it was not possible for the
mattress to come off of the bunk. In contrast, R.K. testified
that the Grievor had grabbed the mattress, causing K.D. to fall
and hit his head. This-inconsistency was apparent
initial statements and from the "Accident/Injury Report" which was
signed by K.D. shortly after the incident, adopting the words:
"Officer said 'search up' then pulled on my 'foot. Pulled me out
of bed..." This is a major discrepancy on a key element and
detracts from the crsdibilit¥ of both inmates in comparison to the
more consistent versions given by the Grievor and Picketing. K.D.
also testified before us.that he had been pulled off of_%he bunk__
by his right ankle.
R.K. was not an impressive witness. He was confused and
had to be led to be able to understand the questions put to him.
There are a number of other inconsistencies between hiS'testimony
and his earlier statements and between~ both of those and the
.evidence of K.D.. There is little point in documenting these in
detail.
In contrast, Picketing was a direct and forceful witness
who could not be shaken on cross-examination. As with almost
every witness who testified, there were minor inconsistencies in
~er testimon~ ~'and statements. For example, ~she referred in her
testimony to the Griever touching K.D.'s "tOe'` or the mattress.
In an earlier 'statement she had said his "leg" or the mattress.
In addition, there were some discrepancies in relation to the
sequence of events. However, these were insignificant in
comparison to the powerful manner in which she reinforced the
testimony of the Griever. it is true that she left the call area
on two occasions to cross the hall and press the "Code Blue"
button. However, these absences would each involve a matter of
only a few-seconds and do not detract from her ~haracterization of
the incident as- involvi'ng K.D. attacking the Griever and' the
Griever Using reasonable force to subdue him.
There also were some problems with the testimony of the
Griever. The most serious .discrepancy was in relation to the
relative position of himself and K.D. at the time that.the other
guards entered the area. The Griever had testified that he was on
top of K.D.'s upper 'b~y which was near the head of the bunk with
K.D.'S head a few inches under the bunk. He said that McMurray
had forced his way past on the Griever's left and took over K.D.'s
upper body while the Griever took hold of his legs. In contrast,
McMurray testified that the Griever was closer to the door of th'e
cell trying to control .K.D.'s legs. The positioning of ~'.D.'S
body was not significantly different in these two versions except
that'McMurray".recalled part of the upper body as 'well as the head
being under the bunk. The major difference was that the Grievor
recalled being.over K.D.'s upper body and sliding back to his legs
only after McMurray arrived,~ and McMurray recalled the Grievor
being at K.D.'s legs at the outset. This discrepancy provides
slight support for K.D.'s version that he moved under the bed to
seek safety. However, it does not support the allegation that the
Grievor was standing and kicking at him while K.D. was under the
bed.
It was suggested that the Grievor had attempted to
intimidate Picketing or at least ~o influence ~er testimony.
While Picketing was away on holidays, the Grievor was informed by
the police that she was'not supporting his version of the events.
When she retu=ned, he contacted her by telephone and asked her
about this. This action on the part of the Grievor is equally
consistent with him ·being surprised that she would take a
differe·nt approach. Such surprise would~"be a natural reaction if
the' Grievor were telling the %.ruth and a phone call to her also
would be a natural reaction in view of his working relationship
with he~. Indeed, the witness, Pickering, appeared to be immune
to intimidation or influence.
In our view, the evidence of the Grievor and ·Pickering in
relating the facts of the incident in question was clearly more
credible than the evidence of K.D. and R.K.. K.D.'s credibility
was further undermined by a lengthy criminal record including
offenses involving honesty. However, a major factor~T in the
Employer's.rejection of the Grievor's'account, in favour of that
of the inmates was the physical evidence of the nature of the
injuries involved. ·
Superintendent. E!ey testified that K.D.'s inj~e_~___~_..
more 6onsistent with him being attacked while those of the Grievor
.indicate that he was the attacker. K.D. suffered a sore wrist and
right leg, bruises to his shoulder and neck, a. laceration on his
leg and a bloody lip. In addition, he experienced problems with
his left ear which manifest themselves a few days laterl The
Grievor experienced swelling of his right wrist which was. a
recurrence of an earlier injury, bruises on his arm and right hand
and on a finger of his left hand. ' in addition he suffered a
laceration to his shin and a bruise on his temple which manifest
itself a few days later.
We have difficulty in characterizing these injuries as
identifying either party as the aggressor or the victim of the
aggression. Indeed, under cross-examination, E!ey conceded that
K.D.'s injuries were equally consistent with a person being
restrained. In our view, the injuries are slightly more
consistent with the kind of struggle which the Grievor described.
That involved K.D. trying to strike blows with his hands which
were warded off by the Grievor's hands and arms and then the
Grievor struggling to grasp K.D.'s moving wrists, forcing h£m
backwards into a Wall~ and then forcing him down with pressure on
his upper body in the vicinity of the toilet and lower bunk.
In particular, K.D. would have sustained more severe
injuries if he had been yanked from the upper bunk onto the tile
floor and hit his head on the stainless steel toilet bowl on the
way down. He also would have experienced far more serious damage
to his face if he had received a series of facial.punches from the
Grievor as he alleged. This conclusion is reinforced by the
evidence of Dr. Pearce, who testified that'if blows of significant
force had struck the facial area, some evidence of scratches,-cuts
or bruises would be expected.
"?he Employer appeared to place considerable weight upon
the absence of'any bruise on the Grievor's head 'when he was
examined by the nurse at the jail or by a ~doctor shortly
afterwards. Dr. Pearce testified that the Grievor's head and
temple showed no objective evidence of being kicked. He would
have expected to see at least some swelling in the area three
hours later if there were a blow.of great force to that area. He
had difficulty in understanding how a bruise mark could appear
more than three hours after the trauma although, on cross-
examination, he conceded that it was possible. On re-examination
he stated %hat it was highly unlikely ....
Nevertheless, two days later, the Grievor was examined by
another-doctor who found a bruise over his left forehead. Dr.
Anglin had no hesitation in accepting that the bruise in question
could have been caused by a kick-in the head and could have
developed, well after a three hour period from the. trauma. He
testified that bruising may take some time to develop since the
blood has to break down to produce the discoloration. Indeed, he
related a recent personal experience where he fell on some ice
and, two days later, 'a' bruise appeared which measured two inches
by four inches. Dr. A.nglin 'is better qualified and more
experienced as a medical doctor than Dr. Pearce and we have no
hesitation in accepting his testimony in relation to the bruise.
It provides some physical corroboration of the Grievor's testimony
that he had received a kick in the head from K.D..
The most controversial injury was on the front of the
Grievor's right leg just above his ankle. It consisted of a
small, round "puncture" wound and a "scrape" wound in the-fo~m, of
a narrow line running vertically above the puncture wound and
another similar line running below it. The Grievor testified that
he only noticed this wound after the altercation. He did not see
how it occurred. However, since K.D. had spat on him and tried to
bite him during the altercation, the Grievor concludedr that it
must have been the result o'f a bite. The evidence is overwhelming
that the Grievor never claimed to have direct know!edg~_o~T~9~ng
bitten but only that he had~ drawn this inference from the
.surrounding circumstances.
The statement given by R.K. shortly after the incident
said that K.D. had rolled under the bed and that K.D. was kicking
at him. In the statement adopted by· K.D. after the incident, he
said: "officer kicked me while I was on the floor." In his
testimony, K.D. claimed that he actually Saw the Grievor's leg
strike the bunk railing and that his head was right near the point
of impact. This is simply not believable. If K.D. had rolled
under the bed to escape from the Grievor's kicks,' his head would
be expected to be as far away as possible from the source.of the
kicks. Moreover, this was not mentioned in his statements of
February 6 or February 14.
Nevertheless, the two statements made by the inmates
shortly after the incident were consistent in relation to the
kicking and they were made without the opportunity for
collaboration- The Employer concluded that since there was no
other logical explanation for the Grievor's'leg wound, it must
have occurred from a kick against the railing, -and that this was
consistent'with the accounts of the inmates that the Grievor was
kicking K.D. while he was on the floor and under the bunk. The
Employer ha~ ruled out the possibility that this wound had
occurred from a bite.
Dr. Pearce examined the Grievor approximately, three hours
after the ·incident. He testified that the Grievor told him he
"thought he might have been bitten on the shin". He stated that
the wound was similar to a bite but would be very unusual for a
human bite"'since other teeth marks would'be expected in ·addition
to the puncture wound. Nevertheless, he prescribed antibiotics to
counter a human bite since it would pose a high risk of infection.
Dr. Pearce also discussed with him the manner in which the HIV
virus could be transmitted.
Dr. Pearce also thought that it would be unusual' for this
type of wound·to occur from the leg striking a bunk railing. More
-'16 -
side bruising than vertical scraping-would be expected if that had
occurred. While-both explanations were unlikely, he. stated that
the wound was probably less likely to have occurred from a bite
than from striking the bunk railing.
Dr. Anglin noted that Dr. Pearce had observed in his
medical report that it was a possible human bite and that
antibiotics were prescribed for such a bite. Dr. Anglin concluded
from his examination of the wound that it was quite consistent
with a bite, particularly since it couid have been a glancing
laceration and through clothing. (The evidence indicated that the
blood from the Wound must have stained the Grievor's sock since
there was no blood inside the pant leg and the .socks were not
tested during the forensic investigation). He considered it to be
unlikely that the injury occurred from"/striking the bunk railing
since the scraping was-vertical rather than transverse.
The conclusion of the Employer that this wound must have
been caused by kicking the bunk railing simply is not born out by
the medical evidence which was subsequently presented to us. The
forensic evidence adds little. It indicated that small spots of
blood consistent with that of K.D. were found on the exterior .of
the Grievor's lower pant leg. This is consistent with blood being
emitted from K.D.'s mouth (cut lip) while he was on the floor and
K.D. was kicking at him. However, it is also consistent with it
being spat while the Grievor wrestled him to the floor' and brought
his leg close to K.D.'s mouth.
We are troubled by the early and consistent evidence of
the two inmates that the Grievor kicked K.D. while he was lying on
the ftoor. ~ The concern of the Employer in this respect is
understandable. .However, it is not sufficient ~_to mee~ the_
standard of cogency required in this case. -The credibility of the
-in~ates is simply too weak and the direct testimony of the Grievor-
and Picketing is simply too strong.
Moreover, there is a broader context to the .incident in
question° The Grievor had a very serious concern about the danger
of receiving the AIDS virus 'from infected inmates. Although this
concern was exaggerated (and, indeed, irrational) on the basis of
current medical knowledge, it was shared by other correctional
officers, It is highly likely that this concern on the part of
the officers would be communicated to the inmates suffering from
AIDS by the manner'i~ which the officers related to them.
Correctional Office~ Snowden testified that two days
before the incident in question, K.D. was scheduled to go to court
but refused. When he and two or tkree other officers attempted to
put' handcuffs and leg irons on him, K.D. became violent. He
jumped on a bench, raised his fists and said: "Come and get me.
I'll give you AIDS as quick as you want." kccordin~ to Snowden,
in such circumstances, an inmate simply would be overcome by
force. However, because of his fear of AIDS, he refused to
"endanger" kimself by attempting to restrain an AIDS patient and.
simply withdrew. Superintendent Etey as well as Pickering and
Snowden testified as to KoD.'s defiant and aggressive nature. We
do not place undue reliance upon the incident described by Snowden
or on the evidence as to K.D.'s nature. However, they are factors
which reinforce our earlier conclusion as to the relative
credibility.of the respective versions of ~he facts given by K.D.
and Hyland.
Tkese factors weigh against, the Grievor instigating a
fight and in favour of K.D. doing so. K.D. was frustrated and
depressed on the morning of the incident. He did no't receive the
meal which he felt he required. He was not able to see his
personal doctor. He was also aware that a demonstration would be
taking place outside the jail later that day in favour of better
treatment for inmates suffering from AIDS. These factors weigh in
favour of K.D. instigating the incident, possibly even after
~discussing it with R.K. with a view'to establishing a consistent
version~ of .... the facts, which Would draw sympathetic public
attention to their perceived ill-treatment. However, we need not
speculate as to the underlying motivation or background which may
have gene.rated K.D.'s conduct. It is sufficient to conclude that,
on balance, the evidence of K.D.'s version of the incident is not
as credible as the evidence of the Grievor's version.
False and M±sleadin~ Statements:
The Employer ·argued that_an~employee breaches his duty to
his.employer when--he-makes statements which adversely affect his
employer and which show a "reckless disregard for ~he truth" In
other words~ intentional dishonesty is not required.
Superintendent Eley testified that the concern of the Employer was
not that the Grievor WOuld speak to journalists but that correct
facts be given. Implicit in her testimony was her conclusion that
the Grievor had known that the injury to his leg occurred when he
kicked the bunk railing so that he knew it could not have been
from a bite. She had drawn this~ conclusion from the various
statements and reports which were generated during the
investigation of the incident and without the benefit of the
medical and other testimony presented at this hearing.
However,- as we have pointed.out, the medical evidence
which was presented to us does not support that conclusion. In
these circumstances, and in the absence of any other possible
explanation for the wound, we cannot conclude that the Grievor
acted unreasonably, le~' al~e recklessly, in concluding ~-~.D.
had bitten him. The Grievor was consistent in stating throughout
that he did not see a bite occurring. Rather, he noticed the
wound after, the.incident and was conscious of K.D.'s_..attemp~s__to
bite him. He could draw no other inference than that the wound
· had been caused by a bite.
As a result, we cannot conclude that the Grievor
recklessly made a false and misleading statement. Therefore, it
is not necessary to consider whether the statements in question
"had a detrimental effect upon the operation of the institution"
Non-Compliance with Section 22:
Standing Order Number 9, governs the writing and
submitting of occurrence reports at the Toronto Jail. This order
specifies that a certain form be used, that the date and time be
included, that reports be addressed to the Superintendent and that
other requirements be met. Superintendent Eley testified that the
Grievor's occurrence report of the incident did not comply with
this order since it was not true. In view of our findings of fact
in relation to the incident, this position no longer can be
sustained. She also testified that two other requirements of the
Standing Order were not met by the Grievor, namely:
(d) Ail reports must clearly bear the printed
name plus the signature of the author.
and,
(h) If your report fails to address or properly
answer the subject of enquiry, or is
unacceptable in some other way, you may be
,~--~ .... required to submit an addendum which will
be attached to the original report received
by the appropriate Supervisor or re-submit
your report in total.
The report was not signed by the Grievor. With respect to
requirement (h), the Grievor was not informed that his report was
inadequate or unacceptable. Nor was he requested to submit an
addendum or to re-submit his report. Nevertheless, Superintendent
Eley testified that it was obvious that the Grievor would not be
prepared to comply .with this requirement.
Section 22 of the Ministry of Correctional Services Act
provides that:~ .~ - '
The Minister may designate any person as an
inspector to make such inspection or investigation
..as the Minister may require in connection with the
administration of this Act, and the Minister may
and has just cause to dismiss any employee of the
Ministry who obstructs an inspection or
investigation or withholds, destroys, conceals or
refuses to furnish any information or thing
'required by an inspector for the.purposes of the
inspection or investigation.
The Ministry of Correctional Services has issued a policy directive
in relation to this provision. The "Policy" is stated to be as
follows:
Ministry employees are required to furnish all
information requested by an inspector in connection
wi~h an investigation conducted under section 22
of the Ministry of Correctional Services Act.
A procedure is established under this directive whereby the
inspector is required to show a copy of the directive to the
employee and to provide an opportunity to make a voluntary
statement~ The third requirement is as follows:
If the employee refuses or does .not wish to make
a statement or fails to attend an interview when
so requested, the inspector has authority under
section 22 of the Ministry of Correctional.Services
Act to insist that the employee provide "any
information or thing required by the inspector for
the purposes of the inspection or investigation"
The employee shall be cautioned that failure to
comply with the request-of the inspector may give
the minister just cause to dismiss the employee.
The phrase "any information or thing" in the policy is simply a
'direct quote from section 22.
After the incident occurred, the Grievor was first treated in the
health care unit of the jail. Before proceeding to the hospital
for further treatment, he attended at ~the office of Deputy
Supervisor Hind and gave him an oral account of the incident. He
then intended to complete an occurrence report but was still very
shaken and suffering from a sore wrist. ~.Another correctional
officer, Sharon Nesbitt, suggested that he dictate the report to
her and that she would write it down for him. This was done and
she signed the document. The Grievor then left for the hospital.
When he returned, an investigati'on was being conducted by
Reg Smythe, who was then a security officer at the jail. Since
Smythe was occupied .with other interviews at the time, the Grievor
met with Assistant Superintendent C~t~ and, again, generally told
him what had occurred4 Smytke testified that he then met with the
G'rievor and a union steward and went through the occurrence report
w~hich had been prepared for the Grievor by Nesbitt. Smythe
testified that he ?cleared up some ambiguities" and then made
further inquiries of ~he Grievor about his report. At the
Grievor's request, Smythe reported the matter to the police and two
officers L'arrived, who indicated that they would be referring the
matter to their detectives. Smythe then reported to Cote that he
had completed his investigation and that he would be submitting his
report in due course.
Thus the Grievor dictated an occurrence report to Nesbitt
and related the.entire event separately to both Hind and cSt~. He
subsequently went over his report with Smythe and answered further
questions in relation to it as well as additional questions. In
other words, ke co-operated fully with this investigation. N° one
had expressedJany concern about the adequacy of his occurrence
report or about the absence of his signature on it. We find that
while ~here may have been a technical breach of Standing Order
Number~ 9,. the absence of his signature was not significant and
-could have been easily remedied by ~a simple request of the
Employer. In fact, the police investigator had asked-th~.Grievor
to verify the occurrence report.by signing a copy and he did so
without hesitation.
Norm Gould is an inspector for the Investigation Branch of
the Ministry of Correctional ServiceR. The objective of this unit
is to provide an investigatory body which is independent of the
institution where the incident occurred. He was assigned to this
matter. Approximately two and one-half weeks after ~h~ incident
in question, he met with the Grievor who was accompanied by his
legal counsel. By then, the Grievor was facing a criminal charge
of aSsault.arising out of the incident.
There was differing evidence as to what actually occurred
at this meeting. Gould claimed' that he had asked for a voluntary
statement but was informed that, in view of the pending criminal
charge, the Grievor woul'd not respond. Gould then gave legal
counsel the policy directive referred to above (at p.20) and
explained that if the Grievor continued to refuse to provide a
statement, he would have to report the refusal to his own
supervisor and to the superintenden~.-pf the jail. Gould was aware
of the Grievor's statements to C~t~ and·Smyth~i-and he had a copy
of the Grievor'$ statement which was s.igned by Nesbitt. Gould also
had taken.a Tstatement from Nesbitt. .He felt that he made'it clear
that he was making a demand under section+22 of the Act.
One of the Grievor's legal counsel, wko attended the
meeting, testified that, apart from actually reading the'section,
Gould did not specifically warn the Grievor that~ i~ he did not
give a statement, he would face dismissal. On cross-examination,
Gould agreedL that he never told the Grievor ·that--he-~wou~d~ be
subject to being fired if he did not give a statement. The
'Grievor's lawyer also testified that when Gould was informed that
the Grievor would not respond because of a pending criminal charge,
Gould said: "Off the record, I wouldn't say anything if I was
facing criminal charges." Gould testified that he did not recall
making such a comment but that he could not deny making it.
Counsel for the Grievor subsequently wrote to Gould
confirming that, at the meeting:
You were reminded that Mr. Hyland has previously
made complete statements to his superiors at the
Don Jail, at the time of the occurrence, and later
to the police. He has cooperated fu!ly~with the
authorities.
Subsequently, Superintendent Etey wrote to the Grievor requesting
that he attend a meeting in her office to inquire into the three
matters which ultimately formed the basis for dismissal (quoted
above at pp. !-2). The third matter is the allegation that the
failure to provide a statement to Gould constituted a breach, of
section 22 of the Ministry of Correctional Services' Act.
In his reply to' Superintendent Eley, counsel for the
Grievor stated:
It remains our position that Mr. Hyland immediately
provided the relevant authorities ~ with any
information reasonably required of him by the
authorities. No one has advised Mr. ~yland or
either of his counsel as to what further
information may be required in addition to that
which he has already provided.
Please be advised that Mr. Hyland remains willing
to discharge his obligations pur.suant to Section
22. Mr. Trudell and myself are quite prepared to
discuss with Mr. Gould what further information he
may require and to cooperate with him in this
regard in a manner which will'protect both the
legitimate interest of the Ministry in this matter
and Mr. Hyland's equally important right to a fair
trial.
We would be pleased~ to hear from you at your
earliest convenience and suggest respectfully that
this be done prior to any consideration by the -
Ministry as to possible disciplinary action.
[Emphasis added]
Superintendent Eley's response included the following:
... what is required is that Mr. Hyland provide a
full, frank, forthright statement to the Inspector.
The Ministry is not prepared to negotiate the
questions to be asked, the format of the interview
or the manner in which the Inspector is to proceed.
Simply stated, Mr. Hyland will not be treated.
differently than any other employee.
The Grievor's counsel wrote once more and stated:
We have not asked to negotiate anything with the
Ministry. We do believe it reasonable, given the
circumstances, to ask what fur~her~information is
.required or' some indication as to.how his prior
statements are said not to be "full, frank" or
"forthright" In view of the written statements
already provided...and,~ in view of the pending
criminal trial, Mr. Hyland is not now. in the
position of "any other employee".
...we do not understand why the Ministry will not
simply tell Mr. Trudell and I' at this time
specifically what else is required. We would then
be able to assist our client to fully discharge his
statutory objection [sic] ... without unduly
compromising his own rights which we are
professionally and ethically obliged to protect.
[The word "objection" was probably intended to read
"obligation"]
Superintendent Eley concluded that the failure of the Grievor to
attend upon 'Mr. Gould to make a general statement' constituted "a '
breach of section 22.
It is difficult to appreciate what further purpose woul'd
be served by requiring the Grievor to give another general
statement. -The content of the statement given by the Grievor .to
Smythe is similar in form to the statements given by others to
Gould. In taking these statements Gould's questions tended to be
very general in nature. For example, he asked R.K.:
Can you describe in your own words, events you
witnessed or took part in surrounding the
incident/matter which is the subject of this
investigation?
Did you witness any persons biting each other?
Do you have anything else to add to this statement?
The first and last questions to K..D. were identical and, in
addition, he was asked to show his injuries and whether he recalled
being interviewed by C~t~ and the Toronto police. Picketing was
asked the same first and last questions. She was also asked
whether she observed the injuries of the Grievor and K.D', whether
she gave information' to th'e news media and whether she was called
by the Grievor after returning from vacation.
Gould had stated that he wished to obtain sworn statements
from all- of the-persons interviewed. However, the obligation
created by section 22 does not extend to giving a sworn statement.
The Grievor's unsigned statement to Smythe was easily verifiable
by Nesbitt. Moreover, he signed the statement when asked to do so
by the police. He was not asked to do so'by Gould.
In the circumstances of the pending criminal Charges, the
position taken by the Grievor, through his lawyers, was reasonable.
He was prepared to co-operate but, since he had already given oral
statements 'to Hind and C~t~, a written statement to Nesbitt and
clarification of that statement to Smythe, he wanted to know what
further information was required. The ci~c~umstance of a pending
criminal' Charge justified the Grievor's lawyer in wanting to
provide any such information in a manner which would not jeopardize
the criminal trial.
This approach finds support in the language of section 22.
The relevant phrase is:
...refuses to furnish any information or thing
required by an inspector...
In' the context of the Grievor having given a full statement and
facing a criminal charge, this provision must be interpreted as
justifying the Grievor in asking the inspector to indicate what.
further information was required before furnishing it. We do not
find the Grievor to be in contravention of section'22.
Extensive arguments were presented by counsei' as to the
constitutional Validity of section 22. In view of our
interpretation of its application to the facts of this grievance,
it is not necessary or desirable for us to address that issue.
We have ~been conscious of the seriousness of allegations
of this nature by inmates. There is both a legal and a moral
obligation to treat inmates with as much dignity as the
circumstances of ·incarceration will permit. We recognize the
difficulties faced by inmates in sustaining complaints of
mistreatment where it has occurred. For example, we did not give
a great deal of significance to K.D.'s criminal record in assessing
his credibility. Otherwise, every inmate alleging mistreatment
would be at a serious disadvantage.~ while some aspects of this
matter continue to be troubling, we have concluded that~ on the
evidence presented before us, the Employer has not established, on
'a balance of probabilities, any of the three grounds for dismissal'
whi'ch were relied upon.
We note, once more, that all of the evidence which was
presented at tkis hearing was not available to Superintendent Eley
when 'she was required to interpret the incident in question. There
is not the slightest indication of bad faith on the par~ of the
Employer.
The grievance is allowed and the Grievor will be reinstated
with pay from the date of dismissal and interest. We will remazn
s~ized in the event that there is any difficulty i~..~implementing
this award.
DATED at Ottawa, Ontario, this ~th day of" May , 199i.
D. MONTROSE, Member