HomeMy WebLinkAbout1989-1291.Union.93-09-01 . CROWN EMP6c.~,:ES DE L'ONTARIO
GRIEVANCE
B C,OMMISSION-DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
OUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1~Z8 T~LEPHONE/T/.~L~-PHONE: (4 '~6) 326- 7388
RUE DUNDAS OL/EST, BUREAU 2100, TORONTO {ONTARiO.J. MSG ~Z8 FACSIMILE/TL~L~-CC'PlE : ~4 ~6) 326-13~6
IN THE MATTER OF ~N ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Union Grievance)
Grlevor
T and -
The Crown: in Right of ontario
(Ministry of Correctional Services'
Ministry of Health
Management Board of Cabinet)
Employer
BEFORE: R. Verity Vice-C~airperson'
J.C. Laniel Member
M.' O'Toole Member
FOR THE R. Anand
UNION Counsel
Scott & Aylen
Barristers & Soliciotrs
FOR TEE M. Contini
EMPLOYER Counsel
Mathews, Dinsdale & Clark
Barristers & Solicitors
HEARING
June 20, 1990 October 15, 22, 29, 31, 1990
December 17; 1990 Ja'nuary 31, 1991
February 1, 12, 1990 March 27, 1991
April 9, 15, 18, 1991 May 7, 8, 1991
July 19, 1991 September 5, 1991
March 26, 1992 June 29, 1992
July 2.7, 1992 November 9, 10,' 1992
December 14, 1992 February 8, 9, 1993
'DECISiON
The union filed a policy grievance, dated september 5, 1~89,
which alleges "that the Ministry of Health and Ministry
Correctional Services have violated Article 18.1 by ~ontinuing to
allow persons on lieutenant governor's warrants to be housed at
Toronto East Detention Centre. These persons are particularly
dangerous because "no mandatory ~hemical intervention is allowed."
At the hearing, the union requested the following remedy:
1. A declaration that the practice of housing L.G.W.s at
Toronto EaSt Detention Centre constitutes an unreasonable.
health' and safety'risk, .contrary to the provisions of
Article 18.1 of the collective agreement.
An order that L.G.W.s be transferred'from Toronto East
Detention Centre to a psychiatric hospital within seven
daYs of a court sentence declaring an accused 'unfit to
stand trial or not guilty by reason of insanity.
3. That the Board remain seized of the matter' in the event
that the parties agree .upon an alternate remedy.
Article 18.1 of the collective agreement reads as follows:
A~C~ 18 H~L~ ~D ~FETY . ~.
18.1 ne EmpL~ shall continue ~ ~ke reasonable provisions for the safety and'health of its
e=p[~ees during the hours ~ their e~lo~ent. [t is agre~ that ~th ~he Emplo~r and th~
~nion shall co-operate to the rut[est extent ~ss~ble in the prevention of accidents and in
the ~easo~b[e prb~tion of safety and health of all eap[~ees.
An L.G.W."accused is a legal'st&tus, determined by a court of
competent jurisdiCtion, for the severely mentally disordered who
are charged with the commission of serious criminal offenses, At
the time of the filing of the grievance in September 1989, the
common practice for an accused found "not guilty by reason of
insanity" or "unfit to Stand trial by reason of insanity" was to
detain him in the "custody" of a correctional facility until the
pleasure of the Lieutenant Governor .of Ontario was known, The
'accused remained in a correctional facility pending the issuance of
the initial war~ant of the Lieutenant Governor directing the
accused to one of ten regional psychiatric hospitals in Ontario.
At ~ome later date, the accused was transferred from the
correctional ~acility to a psychiatric hospital.
The policy grievance identifies a' particula~ population of
inmates as a health and safety risk; namely, accused who have been
sentenced in the first step. of the L.G.W. system. The grievance
does not relate to those inmates suffering from a major mental
illness who do not attain the legal status of L.G.W.~
The substance of the union's case was that accused sentenced
under the L.G.W. system remain at Toronto East Detention Centre in
4
Scarborough for extended periods of time varying from 15 dayS' to
208 days (Exhibit 7) prior to transfer to a psychiatric hospital,
and that this 'practice violates Article 18.1 'by jeopardizing t~e
health and safety of employees. At issue is the appropriateness Of
placement of L.G.W.s at Toronto East, given its mandate of secure
containment, the adequacy of psychiatric treatment provided to
L.G.W.s at Toronto East, and the lack of knowledge and training of '
staff in major psychiatric disorders to enable them to comprehend
'mental illness and to take appropriate measures. The policy
grievance focused on the_ union's concern for employee, health and
safety by the practice of "warehousing". L.G.W.~s at Toronto East for
prolonged periods of time between the dates of court sentence and
admission to a psychiatric hospital. The employer con~ends that
the circumstances existing at Toronto East do no.t justify the
finding of an unreasonable health and safety risk and that,
accordingly, the grievance must be dismissed.
The arbitration hearing took the form of an exhaustive inquiry
over 25 hearing days, including eight days. in final argument. The
panel mak%s no attempt to repeat all the evidence and submissions,
but sufficiently to indicate the basis of our decisions'.
Toronto East is a maximum security detention centre which in
September 1989 accommodated some 400 to 440 inmates and a staff of
approximately 125 correctional officers. Prior to the filing of
the grievance in September 1989, the L.G.W. population at Toronto
5
East was relatively small varying from 0 t~ 5 persons. L.LG.W..s are
generally detained in segregation on Unit 2A (a 20 cell facility)
in locked cells.containing "hatchways" to limit· direct Physical
contact. Unit 2A is also used to accommodate inmates on
misconducts, inmates requiring "super-protective custody" and a
number of disfunctionally mentally ill inmates. A clipboard is
placed on each cell door to document inmate behaviour. The
practice in Unit 2A is that no cell door is opened unless two unit
officers are present. The distinguishing' feature of Unit 2~ is
that medication and meals are passed through~ the hatchways and
there are no day rooms or.common areas·on the unit. Essentially,
Unit 2A is a 23½ hour per day lock-uP.
L.G.W.s are4 fed individually through the hatchways with the
use of paper plates, styrofoam cups and plastic spoons. In sum,
the physical setting in this unit is both secure and~ barren. At
the time the policy grievance was filed, there were two
correctional officers assigned to Unit 2A during the day shifts and
two staff for the entire second floor .at night. However, in the
event of an emergency, a code system was in place at all times in
order to obtain the assistance of other officers.
We heard evidence from two expert witnesses in the field of
forensic psychiatry. Dr, Mark Ben-Aron testified for the union.
He is currently·Chief of Service for Metro·Toronto Forensic Service
(METFORS) at the ·Clarke Institute of Psychiatry. Dr. Ben-Aron
6
regularly performs psychiatric· assessments of individuals
implicated in the criminal justice system', in addition, he
provides psychiatric consultation services for certain psychiatric
hospitals and for a number of correctional facilities both federal
and provincial.
The focus of Dr. Ben-Aron·'s evidence was on the welfare of the
patient suffering from a major mental illness. ~ In his Words:
"L.G.W.s, in my opinion, should be in hospitals, ~not detention
centres", and "placing them in a jail setting continues to
stigmatize psychiatric illness". Dr. 'Ben-Aron Stressed the need
for assessment and treatment of L.G.W.s in hospital with the-
advantage of a multi-disciplinary team approach and consistency in
staffing including physicians, psychiatrists, psychologists,
nursing'staff, and Qccupational 'and rehabilitative therapists.
In examination-in-chief, Dr. Ben-Aron advanced a number of
opinions to this effect: that L.G.W.s frequently exhibit
idiosyncratic and irrational behaviour and, without provocation,
can be assaultive; that L.G.W. confinement in a correctional
facility can cause "deterioration" leading to more disturbed
behaviour and.heightened dangerousness; that without a multi-
disciplinary~team approach, the L.G.W. group is less likely to be
compliant with medical treatment initiatives offered, resulting in
deterioration·and heightened risks of assaultiveness; that in the
absence of clinical skills, correctional staff are unable to
7
predict dangerous behaviour, resulting in inCreased risk of assault
and increased stress because of skill deficiencies; ~and that
L.G.W.s should be in hospitals rather than jails· from both
treatment and health and safety perspectives. In Dr. Ben-Aron's
words: "Experts will agree on diagnosis but will disagree on the
intensity of the illness or the'extent to which the illness m~y·
affect individual judgment".
The union prapared a case book profile of 13 L.G.W.s at
Toronto East (Exhibit 6). Essentially, the profiles contained a
number of business records on each L.G~W. and, in most instances,
-an initial psychiatric assessment. Dr- Ben-Aron readily
acknowledged that he had direct involvement with only one of the
individuals profiled~in Exhibit 6. However, he reviewed each
profile and made predictions of the likelihood of dangerous or
unpredictable behaviou~ in each case study. In examination-in-
chief, Dr. Ben-Aron identified 12 of the 13 profiles in Exhibit 6
who, in his opinion, would likely be involved in future dangerous
behaviour. In cross-examination, he testified that he made the
predictions based on "the diagnosis of mental illness and presence
of psychotic state as part of that mental illness and that the
person was on at least one occasion previously aggressive or
assaultiVe". Howaver, later in cross-examination, Dr. Ben-Aron
readily agreed that many of the L.G.W. profiles in Exhibit 6 were
either not dangerous 'or that he was unable to make a prediction.
In addition, ·he readily acknowledged that medical studies suggest
that psychiatrists generally are not. skilled 'in the accurate
prediction of dangerousness. He also indicated that "ment'al
illness of itself is no indication of any increased dange~ of
assault" In Dr. Ben-Aron's words: "the more details you ~an
obtain from the patient or other sources, the more likely you are
.to be accurate in your predictions" Dr. Ben-Aron candidly
acknowledged that he had no personal involvement in 12 of the 13
L.G.W.s profiled.
Dr. Russel Fleming, Psychiatrist-In-Chief at Oakridge and
Penetanguishene Reg%onal Centre, testified for the employer. Dr.
Fleming's expertise is in the psychiatric hospital setting, based
on his 30 years experience at Oakridge and Penetanguishene. He
described the curr~ent "unique" organization at Oakridge. Oakridge
is the only maximum security psychiatric hospital in Ontario and is
a 120 bed facility for male patients including 90' L.G.W.s'
According to his evidence, the main admission criterion to Oakridge
is that "individuals be-a danger to other persons in some form"..
Dr. Fleming's evidence was to this effect: that there was
"..strictly speaking" no correlation between a not guilty by reason
of insanity finding and a suspected high risk .of misbeha~iour; that
the L.G.W. status does not indicate dangerousness without regard to
individual characteristics; that some L.G.W.s may deteriorate in a
correctional facilitY "but they don't necessarily"; that risk to
staff in a correctional facility does not increase where an L.G.W.
9
refuses medication, particularly where t~ere is consistency in
staffing day after day; that L.G.W.s are "not necessarily" more
unpredictable or dangerous than other mentally disordered
offenders; that you cannot equate "unpredictability" ~ith
"dangerousness"; that assaults by the mental!.y disordered may occur
"out of the blue" but normally are precipitated by something
someone has done or said; that,.~contrary to public perception,
there "likely isn't any correlation between the unpredictability of
psychiatric patients and the prognosis for dangerousness"; and that
psychiatrists are "inept" at making predictions of future dangerous
behaviour.
In particular, Dr. Fleming was unwilling to make predictions
of aggressive behaviour and dangerousness in any of the L.G.W.s
profiled in Exhibit 6. In Dr. Fleming's words: "psychiatrists
regularly disagree on issues of diagnosis and treatment, not to
mention the prediction of dangerousness". He candidly acknowledged
that he had no direct knowledge of the quality of psychiatric
treatment given in correctional facilities. .In Dr. Fleming's
opinion, however, correctional facilities can provide effective
psychiatric treatment "as far as they are able within their
setting".
Dr. Fleming testified extensively as.to the quality of care
given.by 353 staff at Oakridge in the assessment and treatment of
psychiatric patients. Oakridge consists of six wards, and four
units; namely, the Forensic Assessment Unit, Social Management
Unit, Behaviour Therapy Unit and Rehabilitation unit, A multi-
disciplinary team at Oakridge'provides 24 hour coverage seven ~ays
a week. Dr. Fleming stressed the need for trained staff who ~re
not threatened by the environment, and the need for consistency in
staffing· to develop patient' rapport and trust. In cross-
examination~ he. acknowledged that "universally patients don't like'
being locked up" although "occasionally" the opposite wi%l occur.
In addition to Dr. Ben-Aron, the union called a number of·
witnesses. Sheran Johnston has been a social worker in the
classification department at Toronto East since 1986. She is.
president of Local 582 and currently serves as vice-president of
OPSEU Region 5 and vice-president of the Ontario Federation of
Labour. Ms. Johnston. compiled the profiles of the 13 L.G.W.s in
Exhibit 6 from business records at Toronto Easti allegedly as a
representative sampling rather than a complete list of behavioural
incidents involving L.G.W.s. Her evidence was to this effect:.
that L.G.W.s are "more dangerous" than other inmates "because of
their unstable mental state"; that it is "unfair and inhumane" to
house L.G.W.s in a "harsh environment such as Unit 2A"; that the
procedure of "dumping" or '~warehousing" L.G.W.s for prolonged
periods of time at Toronto East was an inappropriate method of
treating the mentally ill, given the lack of training of'
correctional officers in issues of mental health; that it was not
the mandate of correctional officers to provide care for the
11
accutely mentally ill; that L.G.W.s pose an unreasonable ~ealth and
safety risk to correctional officers at Toronto East by reason of
risk of assault and unsettling behaviour such as chanting ~and
yelling, kicking cell doors, throwing urine and faeces, flooding
cells, and other hygiene concerns; and that in the ~bsence of a
multi-discipline approach, the treatment given L.G.W.s at Toronto
East was 'inadequate. In cross-examination, Ms. Johnston agreed
that the'primary remedy of removal from Toronto East within seven
days of sentencing, while "helpful", would'not entirely eliminate
the unreasonable health and safety risk posed by L.G.W.s.
Arlene Dunn is one of seven full-time registered nurses
employed at Toronto East. She has accumulated many years of
nursing experience including five years at Queen Street Mental
Health Centre. In June 1989, she was designated psychiatric nurse
at Toronto East and worked closely with psychiatrist Dr. Leonard
Ralley in addition to performing, general nursing duties. Miss Dunn
described the behaviour patterns of each~ of the 13 profiles
contained in Exhibit 6 as well as Other mentally disordered
inmates. According t~ her evidence, L.G.W. behaviour patterns ran
· the gamut from assaultive, unpredictable, verbally abusive, noisy
and unco-operative to uncommunicative and fairly quiet. She
testified that it was not uncommon to hear prolonged screaming and
consistent banging of cell doors for hours on end. According to
her evidence, many correctional officers at Toronto East were
"unable to deal with the mentally ill". In her words: "I don't
12
believe a cOrrectional officer is hired as a psychiatric care
giver" She testified that the ~delay in transfer of L.G.W.s to a
psychiatric hospital was attribu%able to the shortage of beds in
hospitals. She emphasized that medication cannot be forced upo~ an
unwilling inmate; 'however, Dr. Ralley did his best to render
psychiatric treatment two half days a week (12 to~15 patients each
half day) and one full day where some 30 to 40 inmates would be
seen. In her words:' "when looking after the mentally ill, there
is always some risk' ... you must exercise some caution and
judgment". According to Miss Dunn, .20% to 30% .of the inmate
'population at Toronto East suffers from 'some form of mental
problem.
CorrectiOnal officer Bill Lee is currently secretarY-treasurer
of the union local. The thrus't of his evidence was that misconduct
reports are hot filed'on inmates who are mentally ill, and that
such conduct frequently includes spitting, throwing, food, abusive
ranting and raving, and excessive noise for'prolonged periods. In
his experience with the mentally ill, "a problem can happen with no
warning and for~ no apparent reason".' According to Mr. Lee,·
"someone who is mentally ill is far more dangerous than someone in
the general (inmate)'population". ~r. Lee testified that he works
in Unit 2A approximately four times a year for two week periods.
Correctional Officer Robert Megahy Works in Unit 2A on a
r~tational basis. He testified as to the tension created by the
unbearable smell of an L.G.W. who refuses to attend to hygiene.and
of an incident in March 1990 where he was assaulted by an L.G.W.
when he turned his back on the inmate in the admitting departmgnt.
As a result, Mr. Megahy suffered a split lip and broken dentures.
Megahy's practice was not to submit misconduct reports on L.G.W.s
unless it involved~an'actual assault.
Correctional officer Greg Hunter has worked, at Toronto East
since June 1987. He has chosen to work the' majority of his shifts
on Unit 2A, although he considers that L.G.W.s pose a greater risk
to health and safety. In his words: "although there are
exceptions, I treat them at al.1 times as completely unpredictable".
While 'agreeing ~that not all L.G.W.s~ are violent, correctional~
officer Hunter testified that, in his experience, many of them
were. He gave evidence of a number of incidents Of aggressive
behaviour including the retrieval of a razor from the rectum of an
inmate profiled in Exhibit 6. Mr. Hunter testified that he enjoyed
working with L.G.W.s.. However, he contended that consistency in
staffing on Uni~ 2A and meaningful staff training would assist
greatly to reduce the risk.
It is significant, we think, that none of the three
correctional officers who testified before us had received any
training in issues of mental illness or in the proper handling of
psychiatrically disturbed inmates.
14
Allan Dvorak, acting senior assistant superinten~dent at
Toronto ~East from June to November 1989, was the employer's second
witness. He has served as a U.S. marine, a member of the Chicago
police force, and at Metro East as a correctional officer from 1978
to 1982, floor supervisor in 1982, shift scheduling manager in
1984, and' shift supervisor in 1987. Mr. Dvorak has extensive
experience in all aspects of the institution, including Unit 2A
which he visited on a dai.ly basis during "superintendent's rounds"
in 1989. He commented on each .0f the L.G.W.s profiled in Exhibit
6 as well as on an additional five L.G.W.s referred to in Exhibit
7.. His evidence was to the effect that Unit 2A was no more
dangerous than any other area of the institution and that none of
the L.G.W.s at Toronto East posed an unreasonable health 'and safety
risk. In his words: "I tre'at the unpredictable as predictable and
I would be on my guard". He candidly acknowledged that this
approach would not assist in situations of verbal abuse or in
situations of' unhygienic behaviour. Like Nurse Dunn, Mrl Dvorak
testified that shortage of beds was the cause of delay in the
transfer of L.G.W.s to psychiatric hospitals.
we do not intend .to repeat the able submissions of counsel,
except in summary form.
UNION ARGUMENT
Counsel for the union contended that in determining whether
there has been a violation of Article 18.1, reference should be
made to the principles set out in 0PSEU'(W~tts/Kin~) and Ministry
of Correctional Services 1367/90, 1368/90 (Kaplan); namely~ (1)
that proof of actual injury or harm is not necessary to establish
a health and safety risk; and (2) that a health and safety risk
will be held to be unreasonable if it is unnecessary or avoidable
in the circumstances. Applying the above principles to the case at
hand, counsel argued that housing L.G.W.s at Toronto East creates
a risk to the health and safety of correctional staff, that this
risk is avoidable and, therefore, that it ~is an unreasonable risk
within the meaning of.Article 18.1. Relying in large measure on
the evidence of Dr. Ben-Aron, it was the position of the union that
the risk to health and safety of staff arose from a .number of_
factors.
~yDical Psychiatric Profile of an L.G.W.: .All L.G.W.s suffer
from severe mental illness usually accompanied by behavioural
· symptoms that make them idiosyncratic, .Potentialiy dangerous and
unpredictable, such as paranoia, withdrawal, and verbal and
physical assaultiveness. L.G.W.s can only be treated effectively
by a multi-disciplinary team approach consisting of clinical
professionals having a complete array of treatment resources,
including mandatory chemical intervention, none of which is
provided in a correctional facility. .In the absence of such
treatment, their condition usually deteriorates in a correctional
facility. Based on the foregoing, 12 of the 13 L.G.W.s referred to
in Exhibit 6 were potentially dangerous, according to Dr. Ben-Aron.
Physical Setting: The primary mandate of the correctignal
system is to provide a secure setting for the custody and contYol
of inmates. This has resulted in the practice of confining L.G.W.s
at Toronto East to their cells for 23% hours per day. Such
extensive confinement has a deteriorating effect on their mental
state making them more dangerous.
Training of S~aff: At the time of the grievance, correctional
staff received no training in the handling of.mentally ill inmates.
Without such training, staff tend to perceive the idiosyncratic.
behaviour of L.G.W.s as thr.eatening and stressful with the result
that correctiona.1 officers often resort to physical measures to
control behaviour. Unfortunately, these measures usually
exacerbate the behaviour they are intended to stifle, creating a
situation of heightened risk for staff. Lack of training also
makes staff less able to deal with inmates who are unco-operative
with treatment or otherwise disruptive which, in turn, leads to an
increased risk of assault and stress for staff.
Staffing Practices: The medical evidence indicates that
consistency of staff observations of and interaction with L.G.w.s
is important to secure their co-operation to treatment. However,
there is no consistency in the staffing of the unit where L.G.W.s
are housed. As a result, Staff are less able to deal with
17
treatment refusals and this, in turn, increases the risk of staff
safety. Correctional staff have no access to the information in
the medical or corporate files of. inmates. Without ~uch
information, they may inadvertently trigger assaultive or other
disruptive behaviour.
Presuming the above factor, s make L.G.W.s a risk to the 'health
and safety of staff, counsel turned to an assessment of whether the
risk wes avoidable. This involves a balancing of interests of the
staff, the L.G.W.s and the institution. The interests of the
L.G.W.s and the staff clearly, favour treatment in a hospital
setting. Moreover, given that the mandate of the institution is
secure containment, which is quite different from assessment and
treatment, the institutional interest is not really opposed to the
other interests.
Considering that all three interests are aligned against the
housing of L.G.W.s in a correctional setting, and that the reasons
for the Unavoidability of so housing. L.G.W.s are within the
knowledge of the employer, counsel argued that the onus is on the
employer to prove'that the risk from L.G.W.s is unavoidable. Mr.
Anand argued that the employer failed to adduce any such evidence
and that what evidence there was from the union's witnesses
regarding a bed space problem in hospitals was speculative.
Accordingly, the Board was urged to draw the appropriate adverse
inference from the above failure and find that such evidence, if
adduced by the employer, would have supported the case that the
housing of L.G.W.s at Toronto East is avoidable and therefore
constitutes an unreasonable health and safety risk to staff.
The union contended that in addition to a declaration that the
employer had violated Article 18.1, the appropriate remedy for
avoiding the risk was an order requiring that L.G.W.s 'be
transferred from Toronto East to a psychiatric hospital· within
seven days from the date of sentence by a'court. The union also
requested that the Board remain seized to afford the parties an
opportunity tO investigate and implement, if necessary, an
alternative solution based in part on legislative changes to·the.
Criminal Code which came into force on~ February 4, 1992. In
support, the union cited the following authorities: oPSEU (Union
Grievance) and Ministry of Correctional Services 0311/88 (Watters);
· 'OPSEU (Leeanan) and Ministry of Correctional Services 1268/88
(Roberts)·; OPSEU (Un$°n Grievance) and Ministry of Community and
Social Services 1190/89 (Stewart); OPSEU .(Watts/King) and Ministry
of Correctional'Services, supra~ Fleming v.· Reid by his litiqation
quardian, the Public Trustee; Fleming v. Gallaqher (a.k.a.
Gallacher) by his litiqation quardian, the Public Trustee, (199i)
40.R. (3d) 74 (Ont. C. of A.); Ontario Public Service Employees
Union and Anderson et al. v. The Oueen in Right of Ontario as
re~resented by the Ministry of Natural Resources and the Crown
EmQloyees Grievance Settlement Board, (1990) 75 0.R. (2d) 212 (Ont..
Div. Ct.); OPSEU (Joseph ~rlek et al) and Minist.r¥ of Correctional
19
Services 1466/87 (Dissanayake); OPSEU (Allan Dvorak, et al.) and
Ministry of Correctional Services 113/83 (Saltmani; Khan v. St.
Thomas Psychiatric Hospital and.~Komer; Adv0cac¥ Resource Centre, for
the HandicaDDed, amicus curiae, (19'92) 7 0.R. (3d) 30'3 (Ont. C '~of
A.); Re Steinber~ Inc. and Commercial Workers Union, Local 486
(t984), 16 L.A.C. (3d) 171 (Fraser); Re Weltand District
~ASSociation for Retarded Inc. and Canadian Union of Public
Employees, Local 2276 (1982), 5 L.A.C. (3d) 315 (Devlin); Levesque
et al. v. Comeau et al., (1970) 16 D.L'R. (3d) 425 (S.C.C.);
Attorney-General for Ontario v. Bear Island Foundation et al.;
Ports et al. v. Attorney-General for Ontario, (1984) 49 O.R. (2d)
353 (Ont. Div. Ct.); and Re The Crown in Right of Ontario (Ministry
of Government Services) and Ontario Public Ser~vice EmDloyees Union
(Kimmel/Leaf) (1991), 21 L.A.C. (4th) 129 (Kaplan).
EMPLOYER ARGUMENT
Counsel for the Employer contended that the risk of violence
by inmates is inherent in the occupation of correctional staff. It
was therefore conceded that the housing of L.G.W.s at Toronto East
does pose a risk to the health and safety of staff. However, it
was submitted that this risk is not significantly higher than the
risk posed by other inmates. Accordingly, the employer contended
that the risk is not "unreasonable" within the meaning of Article
18.1.
20
In support of that submission, Counsel relied primarily on a
number of admissions by Dr. Ben-Aron in cross-examination together
with statements made by Dr. Fleming in his testimony. These arg.as
follows:
Tv~ical Psychiatric Profile of L.G.W.: Dr. Ben-Aron admitted
that the following are generally accepted principles in forensic
psychiatry: (1) prediction of dangerousness is not only difficult,
but essentially unreliable in the sense that psychiatrists will be
wrong more often than they are right; (2) reliable prediction is
not pOSsible without the gathering o£ exhaustive information about
the patient and this can take weeks; (3) reliable predictions of
dangerOUsness cannot be made on the basis of mental illness alone;
and (4) mentally, ill inmates are not necessarily more dangerous
than the general population of inmates.
Counsel argued that the effect of the foregoing admissions was
to undermine seriously Dr. Ben-Aron's evidence-in-chief that
L.G.W.s in general are potentially dangerous, as well as the
specific predictions of dangerousness he made with regard to 12 of
the 13 L.G.W.s referred to in Exhibit 6.
In his evidence, Dr. Fleming supported the above principles.
In addition, he offered the following opinions: (1) dangerousness
and unpredictability cannot be equated in the sense that a patient
can be unpredictable .without being dangerous; (2') there is no
21
correlation between mental illness and dangerousness; the mentally
ill actually commit assaults at a rate lower than the general
population; (3) the information in Exhibit 6 is too limite~ to
permit any reliable prediction of dangerousness from any of ~he
L.G.W.s referred to therein; (4) confinement in a correctional
facility will not necessarily cause the mental condition of L.G.W~s
to deteriorate in the sense that some L-.G.W.s do very well in such
a setting; and (5) treatment refusal 'by 'an L.G.W. will not
necessarily lead to a heightened risk of 'dangerousness, and may
even be followed by improvement. ~,,
Counsel for the employer sought to minimize the health and.
safety risks posed by L.G.W.s by reference to the following
additional factors:
No Evidence of Significant Assaultive Behaviour: Counsel
stated that during the period covered by the. evidence, namely
September 1988 to July 1990, four assaults on staff were committed
by four of a total of eigh'teen L.G.w.s. Only two of'the incidents
occurred prior to the filing of the grievance On September 5, 1989.
None of the incidents of assault resulted in any 10ss of time or
serious injury. Further, .only one of the four incidents was
confirmed by viva voce evidence. The only proof for the remaining
assaults were the documents in Exhibit 6 which, in the opinion of
Mr. Contini, are purely hearsay and therefore could not be
subjected to cross-examination. Thus, the alleged seriousness of
these incidents could not be effectively scrutinized with the
result that no weight should be accorded to Exhibit 6. The
cumulative effect of~the foregoing was to establish that there~was
no significant assaultive behaviour by L.G.W.s at Toronto EaS~ at
the'relevant time.
.Adequacy of Treatment: During the period covered by the
grievance, L.G.W.s were seen regularly by psychiatrist Dr. Leonard
Ralley. Although. Dr. Ralley had a heavy'patient case load, the
focus of his treatment was on the control of behaviour in the short
term and the prevention of deterioration. Given this limited
focus, Dr. Ralley's case load did not prevent him from providing-
effective treatment. Indeed, Dr. Ben-Aron was of the view in
cross-examination that five or six of. the L.G.W.s in Exhibit 6
appeared to be receiving safe and effective care at Toronto East.
~ Training of Staff: 'Counsel conceded that staff received no
training on issues of mental health, but argued that this was not
needed to ensure the safe handling of L.G.W.s on Unit 2A. In
support of this argument, Mr. Contini relied upon the testimony of
Dr. Fleming, Ms. Johnston and Miss Dunn about the importance of
common sense, patience and empathy' in dealing with L.G.W.s.
Counsel also noted that any stress caused by the handling of
L.G.W.s has not resultedin any significant absenteeism or turnover
of staff at Toronto East. Accordingly, he argued that the lack of
training presents no serious stress problems to staff.
23
Physical SettinQ: There are usually only one to three L.G.W.s
at Metro East at any one time. Ironically, at the time of the
filing of the grievance, there' were no L.G.W.s at Toronto E%st.
The total inmate population is' normally around 400 to 450.
Considering that the L.G.W.s are a small fraction of the total
inmate population, it is difficult to conclude that they constitute
a serious health and safety risk, particularly on the evidence that
they are locked in cells for 23½ hours per day.
In the alternative, presuming that the presence Of L.G.W.s at
Toronto East gives rise to an unreasonable health and safety risk,
counsel argued that the grievance cannot succeed unless the primary
remedy sought by the.union will effectively avoid th~ risk. That
remedy is the removal of L.G.W.s from Toronto East within seven
days of sentencing by a court. Even if the remedy were granted,
counsel noted that L.G.W.s will still be detained at Toronto East
prior to a Court sentence. Such detention can be for lengthy
periods of time. Dr. Ben-Aron conceded that offenders who attract
the label of L.G.W. present the same risks before and after the
L.G.W. status attaches. Accordingly,'counsel argued that the above
remedy would not be effective in avoiding the risk and therefore
should not be granted.
Counsel objected to the arbitrary nature of the remedy sought
in the absence of any consideration for individual circumstances of
L.G.W.s. Mr. Contini maintained that this remedy was'
24
inappropriate, as L.G.W.s are not a uniform group but a collection
of individuals suffering from different problems. To be effective,
Mr. Contini contended that any re'medy must allow for th, ese
differences and the remedy proposed does not do so. '~
Counsel also.argued that the employer had the exclusive right
under s.18(1)(a) of the Crown Employees Collective Bargaining Ack
to determine its organization~ and that the granting of this remedy
would directly encroach upon that right.' -He therefore submitted
that the remedy was beyond the jurisdiction of this Board.
Mr. Contini noted that the proposed.remedy was to operate as
of the date of the court sentence rather than the date of the
issuance of the warrant. 'Under the practice in existence at the
time of the grievance, the usual order by the court at the time of
sentencing was to remit the offender to the custody of TO~onto East
until the pleasure 'of the Lieutenant Governor was known. Under the
procedure contemplated by recent legislative amendments, Toronto
East may still be ordered by a court to retain custody of an
offender from the date of sentencing until final disposition.
Having regard to the foregoing, counsel submi{ted that if the above
remedy were to be granted, it would force the employer to breach
court' orders, and for that reason the remedy would be
inappropriate.
The employer made reference to the following authorities:
25
OPSEU (G. Walker, et al) and Ministry of the Solicitor General
863/85 (Kirkwood); OPSEU (Union Grievance) and Ministry of
Correcti6nal Services 69/84, 70/84 (Samuels); Douqlas L19¥d~
ComDlainant, v. The Crown. in Right of· Ontario (Ministry'~ of
Community and Social Services), Respondent, [1988] OLRB Rep.
January 50, and OPSEU (Allan Dvorak, et al.) 'and Ministry of
Correctional Services, supra.
The issue before us is whether, on the particular facts of
this grievance, by housing L.G.W.s at Toronto East Detention Centre
for extended periods of time, the employe~ has failed "to make
reasonable provisions for the safety and health of its employees..
during the hours of their employment", contrary to the provisions
Of Article 18.1 'of the collective agreement.
There is, of course, a body of arbitral jurisprudence which
has evolved under Article 18.1. We would adopt the rationale of
Vice-Chairperson Kaplan in the Watts/Kinq decision, supra, where in
a case involving a health and safety risk to correctional officers
at the Niagara Detention Centre, the panel stated at pp. 26-27:
...To be sure, risk is part of the job. However, unnecessary risk is not.
The employer has an obligation to take reasonable precautions for the safety and health of its
empLoyees. Like other panets of this Board, we are of the view that "reasonable" d~ea not ~an
"every." And we are also of the view that what is reasonable will depend greatly on the facts of each
case, and must involve a balancing Of interests of the employees and the employer. In the instant
case, the fact that no employee has been attacked or ~njured whi Le conducting a patrol is neither hera
nor there in the same way that the concerns raised in the StockweLL case (176~i/87, ~/iLson) had not
taken place. It is obvious that the potential for injury exists.
In our view, it is not unreasonable in a case where the union has demonstrated some degree of risk to
the safety and health of employees to require the employer to explain, if not justify, the necessity
and reasonableness of that employer-imposed risk ....
In the instant grievance, we had the benefit of .hearing
lengthy testimony' from two distinguished Ontario f0reqsic
psychiatrists. The thrust, of Dr. Ben-Aron's evidence was the
welfare of the patient and his concern that placing L.G.W.s in'jail
"continues to stigmatiZe psychiatric illness". Dr. Fleming
testified as to the multi-disciplinary team approach at Oakridge.
According to his evidence, contrary to public perception, there
"likely isn't" any correlation between a major mental disorder and
the ~propensity for dangerousness. Dr. Fleming went on to state
that "psychiatrists are inept" in predicting future p~ognosis for
dangerousness for patients suffering from a'major mental illness.
However, both psychiatrists stressed the need for consistency in
staffing and the4 advantages of a trained multi-disciplinary team
approach. Essentially, there was little disagreement between the
approaches of the two psychiatrists, although Dr. Fleming adopted
a more cautious approach in his Unwillingness to comment on the
"dangerousness" of any of the 13 L.G.W.s profiled in Exhibit 6. We
found the evidence of both Drs. Ben-Aron and Fleming informative
and helpful on a complex and difficult set of issues.
On the evidence, we must conclude that it is difficult, if not
impossible, for psychiatrists to predict future dangerous conduct
of L.G.W.s with any degree of certainty. .We also find on the
evidence that correctional facilities and psychiatric hospitalS are
in identical positions on the issue of consent to treatment.
27
Patient. consent to treatment was first introduced into Ontario in
the 1978 ~ental Health Act and in subsequent amendments to that
Act.
Dr. Fleming has no direct knowledge of psychiatric treatment
provided in correctional facilities. Although Dr. Ben-Aron has
experience in both federal and provincial correctional facilities,
he has had limited exposure to the treatment given at Toronto East.
Unfortunately, the Board heard no evidence of a medical or
psychiatric nature from any .psychiatrist involved in the delivery
of Psychiatric treatment at Toronto East. We do know, however,
that at the time of the filing of the grievance in September 1989,
Dr. Leonard Ralley was providing, psychiatric services one full ~day
and two half days'a week at the institution. In our view, evidence
from Dr. Ralley regarding the quality of the psychiatric treatment
at Toronto East would have been helpful. As a result of the
failure to call Dr. Ralley, or any of his successors, the Board is
left with some uncertainty as to the ~quality of psychiatric
treatment given L.G.W.s at Toronto East.
The focus of Article 18.1, however, is not on the welfare of
the inmate or patient. It is important to recognize that the
mandate of a correctional facility is secure'containment as opposed
to the mandate of a psychiatric hospital which.is assessment and
treatment.
28
The 13 L.G.W. profiles in Exhibit 6 contained employer
business records including incident.reports, A.I.S. cards, and
psychiatric assessm'ent reports. Although the employer objecte~ to
Exhibit 6 as "hearsay", we are satisfied that it constitu'tes
business records which are admissible under s.35(2) of the Ontario
Evidence Act, R.S.O. 1990, c.E.23. Dr. Ben-Aron.ackn0wledged that
he had limited knowledge of the variables in each of the profiles
presented; however, he was able to identify basic characteristics
of the L.G.W. populations. These characteristics are said to
include a major mental illness, the need for a multi-disciplinary
~team apProach provided in a psychiatric hospital, the possibility
of deterioration without these ~amenities, the effects of-
deterioration in the sense of conflict with other inmates and
staff,, and idiosyncratic behaviour which may be both unpredictable
and aggressive.
On the evidence, there Were relatively few incidents of
physical assaults upon staff causing bodily injury either~during a
reasonable period of time before or after, the filing of the
grievance. Indeed, the relatively few incidents of physical
assaults came as a surprise to Dr'. ~Ben-Aron. In his words: "I
would say it doesn't add up; I would expect more".· It maY well be
that the small number of physical assaults is directly related to
the maximum security setting on Unit 2A, including the requirement
of a 23% hour lock-up in the cells.
29
On the exhaustive evidence and submissions before us and in
balancing the interests of both the employees and the employer, we
are persuaded to strike the balance in favour of employee health
and safety at Toronto East. After careful and · sustaihed
reflection, we find that there was an unreasonable health and
safety 'risk to employees at Toronto East Detention Centre on
September 5, 1989, and that the risk ~could have been avoided.
The avoidable risk isrthe total absence of staff training on
issues of mental illness at this institution and the lack of
consistency of staffing on Unit 2A. The evidence established that,
at the relevant time, there was no staff training in the nature of.
the causes and manifestations of major mental illness and the range
of appropriate actions that should be taken by staff. ~In the
absence of ·training, it is understandable that correctional
officers would feel ill-equipped to deal effectively with
idiosyncratic behaviour such as threatening, constant verbal abuse,
persistent 'chanting and banging o~f cell doors~ smearing of fasces,
refusal to shower and other hygienic related problems. It is
inevitable that, in the absence of training, these types of
behaviour are viewed by staff as threatening and stressful. In
making that finding, we accept the evidence of Dr. Ben-Aron, Ms.
Johnston and the three correctional officers who testified at the
hearing. We also accept.the evidence of Toronto East psychiatric
nurse Arlene Dunn that the environment on Unit 2A is "quite
frightening" to some correctional officers and that her aduice as
30
to the proper handling of L·.G.W.s is not always accepted. With
resPect to the matter of staffing, Dr. Ben-Aaron and Dr.~ Fleming
emphasized the importance of consistency· in securing the co-
operation of L.G.W.'s with treatment and thus reducing the risk, of
assault and stress for staff. The evidence regarding staffing
practices, however, established that there was little, if any,
consistency in the staffing of correctional officers on Unit 2A.
· In our view, greater consistency in the staffing of correctional
officers who work on Unit 2A, together with more meaningful
training for ·such officers on the issues of major mental illness
would be ~n effective method to alleviate misunderstanding and to
reduce, if not eliminate, the avoidable risk to staff with respect
to L.G.W.'s.
By way of remedy, there shall be a declaration that as of the
date of the filing of this grievance, the Ministry of Correctional
Services has violated the health and safetY provisions of Article
18.1 of the collective agreement.
We have been advised by the parties that as a result of the
judgment of the Supreme Court of· Canada in Reqina v. Swain (1991,
/
63~ C.C.C. (3d) 193, there have been extensive legislative
amendments to the Canadian Criminal Code as of February 4, 1992
which affect the operation of the Lieutenant Governor's Board of
Review in Ontario. There was no evidence.before us as to the
effect of these-legislative changes and the procedural changes
which were subsequently introduced at Toronto East in September of
31
1992.
The Board is in serious doubt as to whether we have the
jurisdiction t'o grant the seven day transfer remedy Sought by the
union or the appropriateness of such a remedy. It appears to us
that a court having made an initial L.G.W. sentencing, order or the
Lieutenant Governor's Board of Review retains jurisdiction until
the L.G.W. 'is transferred from Toronto East to a named psychiatric
hospital.
Accordingly, we remit to the parties the issue of' remedy in
light of the legislative changes on February 4, 1992 and the
subsequent procedural, changes at Toronto .East. together with the-
findings and declarations of'this award. In the event that the
parties cannot'agree upon an appropriate.remedy, the issue may be
brought'before the Board for final determination. In that event,
· the. parties shall have the right to introduce evidence as to the
nature and effect of legislative changes~and the circumstances at
Toronto East as a result of amendments to the Criminal Code of
Canada and any other relevant legislation.
DATED at Brantford, Ontario, this 1st day of September, 1993.
.... : .....
M. O'TOOLZ - M~MB~R