HomeMy WebLinkAboutKostadinova 16-11-28IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 548
(hereinafter referred to as the “Union”)
-and-
COTA HEALTH
(hereinafter referred to as “Cota” or the “Employer”)
AND IN THE MATTER OF A GRIEVANCE CONCERNING ANTOANETA KOSTADINOVA
ARBITRATOR: Derek L. Rogers
APPEARANCES FOR THE UNION: Ian McKellar, Counsel
Adrienne Lei, Counsel
Antoaneta Kostadinova, Grievor
APPEARANCES FOR THE EMPLOYER: Robert Hickman, Counsel
Donald Chiro, Advisor to Cota
A hearing in this matter was held in Toronto, Ontario on May 3, September 19 and
20, and October 28, 2016
DECISION
1. This case involves allegations that Cota was in breach of its collective
agreement with the Union and also of its obligations under the Occupational Health
and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) in relation to risks to which the Grievor
was exposed in the performance of her duties as a case manager.
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The Grievance
2. Ms. Kostadinova’s grievance challenged the sufficiency of Cota’s reaction to
incidents that involved two of its clients: the first, a male identified at the hearing
and here as Client A, was alleged to have sent a text message to another Cota client
in which he either threated to rape or expressed a desire to rape the Grievor, and
the second, another male designated as Client B, who assaulted the Grievor during a
home visit ten months later in February 2016.
3. The text of the grievance, dated February 26, 2016, reads as follows:
I grieve that the employer is breaching the collective agreement in
particular articles 3, 17 and the Occupational Health and Safety Act
(Ontario) . . . by failing to properly protect me from unwanted
harassment & violence in the workplace. This led to physical
violence on my person and psychological distress resulting from an
inadequate response to a text message directly threatening my
safety. Proper safety measures were not implemented when
concerns were brought to COTA’s attention by me nor was a risk
assessment completed.
4. The grievance form indicated that the settlement that Ms. Kostadinova
desired was:
Full redress including: 1. I be provided proper compensation for
lost sick days I have and will endure due to the mental stress of
dealing with harassment/violence at work. 2. Punitive damages
against COTA for failing to adequately protect my person at work
and their negligence. 3. Any other appropriate remedy or
sanction/order against COTA for breaching the CA/OHSA etc.
At the conclusion of the hearing, the Union submitted that there should be a
declaration of Cota’s breach of its OHSA and collective agreement obligations, and
awards of “general damages” referable to the period of April 2, 2015 to February 2,
2016, together with punitive damages. There was no formal objection to the
arbitrability of the grievance insofar as it related to events discovered months
before submission of the Grievor’s complaint.
5. Article 3 of the collective agreement addresses management rights and
Article 17 records the parties’ mutual desire “to maintain high standards of health
and safety in the operation” and the commitment “to cooperate in . . . the reasonable
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promotion of a safe and healthy work environment in accordance with the
Occupational Health and Safety Act”.
Background
6. Cota is a not-for-profit organization that, among other activities, provides a
range of assistance to individuals with mental health and related challenges,
including efforts to secure housing for its clients.
7. Ms. Kostadinova has completed eleven years service with Cota, and at the
material times was working as a case manager in the Hostel Outreach Program
(“HOP”) assisting homeless clients with serious mental health issues. Clients would
typically enter the HOP through facilities such as Seaton House and referrals by
probationary officers and the like. The Grievor had been one of ten case managers
assigned to the HOP when she started work in the program in 2008, but a
reorganization in January 2015 resulted in a 50 percent reduction in the number of
HOP case managers.
8. Ms. Kostadinova testified that she normally had 16 clients and she reported
to a manager, Jeannette Krueger. She would meet with her manager approximately
once very two months for a formal “supervision” session of up to 90 minutes
duration; however, as the two worked in and from the same office, they had
frequent opportunities for conversations. Case managers had team meetings every
second Tuesday, and minutes were kept of those interactions. On the opposite
weeks, the team would meet for a psychiatric consultation with a mental health
professional. Ms. Kostadinova’s evidence was that those meetings were not
minuted.
9. Case managers are expected to attend weekly drop-ins that are held for HOP
clients on Wednesdays. They also saw their clients at individual meetings they
would schedule to take place at hostels, in coffee shops, at service provider offices,
and, when the clients were housed in their own dwellings, at clients’ homes.
10. An extensive job description for the case managers speaks to their
responsibilities in connection with the assessment of clients, their goals and needs,
the provision of assistance in acquiring shelter, food, income and clothing, and in
accessing primary health and psychiatric care. The document also identified
compliance “. . . with all Health and Safety policies and procedures to ensure every
reasonable precaution is taken for the protection of workers and clients and that
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their health and safety concerns or incidents are responded to promptly” as a case
manager’s responsibility.
11. Cota has published policies that recognize issues that were relevant to the
situations raised by this grievance. Its policy entitled “Prevention of Workplace
Harassment and Violence”, in place at the material times, included the following
acknowledgement and undertaking:
Cota recognizes that many of the individuals we support live with
mental health and/or cognitive challenges which may affect their
awareness and ability to deal with matters that relate or can lead to
harassment or violence. Client action resulting in Worker
harassment or violence will be evaluated on an individual basis to
assess the capacity of the client to effectively manage and/or
control acts leading to harassment or violence. Appropriate
courses of action will be developed and implemented
Cota’s policy identified “violence perpetrated by a client against a Worker” as a
source of workplace violence and added:
By virtue of the nature of our services and the target populations
we support, it is recognized that Cota Workers may occasionally
experience harassing, aggressive and/or threatening behaviour
from clients. . . . When encountering these behaviours from clients:
• The Worker is to inform the client that his/her
harassing behaviour is not welcome, explain why
and encourage change through teaching/counseling
when possible
• When this is ineffective and the behaviour has the
potential or has escalated to aggression, threats or
violence, the Worker is to:
ü Take all necessary immediate precautions to
ensure his/her personal safety (e.g. stop
visit, call for assistance, etc.) in accordance
with service or location-specific Safety
Protocols
ü File an Occurrence Report . . . .
ü Bring the client challenges forward for team
discussion and/or consultation with his/her
manager. When warranted, service delivery
changes can be employed to
improve/safeguard management of
harassing or violent client behaviours
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12. The policy expressly addressed work refusals as follows: “A Worker can
refuse to work if he/she has reason to believe he/she may be endangered by
workplace violence” and the policy required workers “to immediately and formally
identify any known workplace hazards that may pose safety risks in relation to
harassment or violence in the workplace to their respective managers”. In
instances when “hazards presenting risks in relation to workplace harassment or
violence are identified”, the policy dictated that “managers are expected to ensure
immediate action is taken to minimize the risk (e.g. adjust schedules, increase safety
protocols)” and provided that: “Corrective action will be implemented up to and
including temporary withdrawal of support to client or possible discharge [of the
client] from service”.
13. Case managers received specific “Safety Protocols for the Cota HOP Team” in
a document that was detailed and explicit in many of the elements it addressed. Of
particular relevance to the Grievor’s issues with Client B were the following
directions:
When you have concerns about the potential for violence
against yourself or others, discuss the situation with your
Manager and evaluate whether Cota should continue to
provide service to the person.
. . .
Home visits are an integral part of the program to ensure
homeless clients succeed in new housing. Staff safety
supersedes this program expectation. To manage home
visits safely, HOP team members are expected to:
. . .
• not complete a home visit with client if
circumstances appear to be potentially unsafe (i.e.,
client and/or guests is/are using substances,
threatening or inappropriately dressed).
. . .
HOP team members are not to enter a client home or
dwelling if they feel any type of threat.
14. Cota’s case managers are required to document all of their interactions with
clients and do so by way of “case notes” that become part of each client’s record
with Cota and thus provide a resource available to any other Cota workers whose
duties necessitate their having any dealings with another’s client. Ms. Krueger’s
evidence was that she expected a case manager’s notes to “report on observations
such as client behaviour, what they are exhibiting” and that she made clear to case
managers that the notes comprised “a client chart” and “ a means of communicating
to other staff”, adding: “In the event you leave, the notes must give a clear reflection
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of what is in the file”. Ms. Kostadinova appeared to have been diligent in her record
keeping and Ms. Krueger testified that she had not raised any deficits in the
Grievor’s note taking.
The Underlying Events
The Text Message Threat
15. The first incident raised by this grievance involved Client A, an individual
who was the client of one of the Grievor’s male co-workers, designated here as RG.
The incident was noted by RG in his case notes for Client A under the caption
“4/1/2015: v incident of texting to another client with sexual assault intent towards
a female staff”. In summary, Ms. Kostadinova’s client had received a text message
from Client A and her client displayed the text to the Grievor at the client drop-in on
Wednesday, April 1, 2015. RG’s notes included the following:
I was asked to discuss a matter with co-worker Antoaneta. It lead
to a discussion with one of her clients [redacted] who had received
a text from [Client A] a couple of days previously. I am not sure of
the exact wording but it was ‘Don’t you want to rape Antoaneta?’ I
confronted [Client A] and he indicated a friend of his actually did
the text.
16. RG initiated an Occurrence Report in which he set out the following
description of the incident: “Client . . . showed inappropriate text from another
client [Client A] to his worker [Ms. Kostadinova]. This text was threatening to do an
inappropriate and illegal act ‘rape’ of the worker Antoaneta Kostatinova [sic]”.
17. Ms. Kostadinova’s evidence was that she had been aware of Client A from his
attendances at the drop-ins, and that he had exhibited what she described as
“intimidating behaviour”. Her testimony was that the text message shown to her
read: “I’m going to rape Antoeneta”.
18. RG reported the incident to Ms. Krueger and the Grievor had a subsequent
conversation with their manager. She and Ms. Krueger testified that they discussed
Ms. Kostadinova’s reaction to the text message. Ms. Krueger’s evidence was that she
asked Ms. Kostadinova whether she felt at risk and her response was: “I don’t feel
threatened by him, I am not scared of him. He cannot do this kind of stuff”. The
Grievor testified that even though Client A had a history of being intimidating to
others, she “did not feel any immediate concern, but did feel violated by the threat”.
Ms. Kostadinova conceded on cross-examination that Cota had communicated to
Client A that his behaviour was unacceptable, that it was criminal, and that he could
be charged; however, it was also her evidence that she had expressed concern that
Cota did not have a protocol that addressed situations involving direct threats such
as that presented by Client A’s text message.
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19. Notwithstanding his excuse that the text had been sent by someone using his
device, Client A had offered apologies. RG and Ms. Krueger conferred and, in
summary, it was decided that Client A would be barred from having any contact
with Ms. Kostadinova and from attending the drop-ins. In addition, Cota involved
the Toronto Police Service by requiring Client A to meet with them and a community
relations officer. Client A was warned by the officer that the incident had been
noted and, according to Ms. Krueger, that he would be charged with uttering threats
if anything of that nature occurred again.
20. Ms. Krueger’s evidence-in-chief was delivered, on consent, as a written
statement that ran to 12 pages. In her statement, Ms. Krueger referred to a team
meeting – “(consult with Psychiatrist)” – on April 10, 2015 at which “the incident
and the outcome was [sic] discussed”. Ms. Krueger’s statement then asserted that
the Grievor had “accepted invitation to meeting” and added: “I cannot recall if she
attended”. In the following paragraph, Ms. Krueger stated:
This incident was never raised at subsequent team meetings. AK
did not raise the matter again after the April 10 team meeting. My
recollection is that this was discussed at a team meeting on April 10
and I believe AK was present.
21. On April 10, 2015 Ms. Krueger completed the Occurrence Report initiated by
RG on April 2, 2015. Her entries referred to meetings on April 2, 7 and 9, 2015, but
failed to mention any meeting or discussion of the incident on April 10th.
22. On cross-examination, Ms. Kostadinova questioned whether she was present
at a team meeting on April 10, 2015 and she responded to the proposition that the
incident was raised then by saying: “I still say it wasn’t to my knowledge”. A second
witness called by the Union, Ms. Kostadinova’s colleague MB, testified that she could
not remember whether the incident had been discussed at a team meeting.
23. The Grievor maintained that she was upset both by the incident and by the
failure of Cato to take seriously her contention that its arrangements were deficient
as it had no developed protocol to deal with the situation presented by Client A’s
text message.
24. Notwithstanding the representations that Client A had been barred from the
drop-ins, he attended on at least two occasions in May and July 2015. Ms. Krueger
was asked in cross-examination what follow up had been done to ensure that Client
A was not attending the drop-ins. Her answer was that she “assumed it would be
followed through with; no one reported that he was attending”. Ms. Krueger
confirmed that nothing came of the occurrence report regarding the threat against
the Grievor other than the directive that Client A was not to attend drop-ins.
25. Ms. Kostadinova testified that the she felt that Cota had not taken the
incident with Client A seriously. It was her view that the incident and her concern
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about the absence of a relevant protocol had been “swept under the carpet”. Her
evidence was that she was disillusioned regarding how safety was addressed, and
that she felt like a “sitting duck”. She allowed that she experienced a more
intensified anxiety reaction to events that she would otherwise see as “non-
threatening”. She had expected more action by Cota and reiterated her concern that
the matter had not been discussed at team meetings and her perception regarding
the absence of an appropriate protocol. Also, the Grievor had received a copy of the
initial pages of the Occurrence Report, but was not shown the report as it was
completed by Ms. Krueger for submission to Cota’s board of directors and was not
told of any reaction by the directors.
26. On cross-examination, Ms. Kostadinova acknowledged that she had
numerous opportunities to ask Ms. Krueger about a protocol; however, she asserted
that she “felt uncomfortable” to raise the issue again – having raised the matter once
on April 2nd, she never brought it up again and said that she “felt embarrassed to
push the issue further”. The Grievor also admitted that she had learned of Client A’s
return to Cota and involvement a “couple of months later”; however, she asked no
one about that development, did not take it up with RG or Ms. Krueger, and did not
raise the issue in any team meetings.
27. There was no evidence of Client A’s having had any contact with Ms.
Kostadinova or of her having received or been the subject or target of any threats or
inappropriate comments by him after the events of early April 2015. There was
evidence of his having made inappropriate comments about at least one other client,
of his discharge from the program, and of his subsequent incarceration for a period
of time, but none of those circumstances involved the Grievor.
The Physical Assault
28. The second incident raised by the grievance involved an individual Cota and
the Grievor took on as a new client in June 2015. Client B was then at Seaton House.
With the Grievor’s assistance, he was able to move to his own residence in January
2016. Ms. Kostadinova testified that he was psychotic, “preoccupied with his
delusions” of being an alien, beaming people into space, tearing hands off a human,
and eating people. The Grievor summed up his state as being “so delusional I
wasn’t able to provide any services”.
29. The record presented in evidence documented the Grievor’s having had
approximately 40 interactions with Client B – some by telephone, but a significant
majority in person – over the period June 2, 2015 to February 2, 2016, the day on
which he assaulted the Grievor. The notes also recorded a number of occasions on
which Client B was not present for scheduled meetings.
30. The notes made by Ms. Kostadinova are descriptive and instructive regarding
the challenges posed by Client B. The following are excerpted from the case notes
she placed on his file leading up to and including her account of the assault that took
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place when she visited Client B for the fourth time in the housing unit she had
secured for him:
• 6/25/2015: [at Seaton House]: Client presented with disorganised
and tangential though [sic] (the usual predominant themes of aliens
and the dangers of homosexuality).
• 9/2/2015: [at Seaton House]: Client presented with extremely
disorganized and tangential thoughts. Client was leaning over
writer and shouting about aliens. Writer redirected client to respect
her personal space as his behaviour could be interpreted as
aggressive. Client endorsed some visual hallucinations and asked
writer whether she can see “the small people on his hand”. . . Client
was difficult to engage as he could not stay on topic due to his
delusional believes [sic] and disorganized thought.
• 9/14/2015: [at Seaton House]: Client presented with rapid speech
and he needed to be redirected numerous times to stay on topic.
Writer had to direct client on a couple of occasions to respect her
personal space as he kept tapping her on the knee.
• 9/14/2015: [at Seaton House]: Client presented with rapid speech
and delusional thought. Client made reference to a psychiatrist and
writer asked client if he had taken medication in the past. Client
became extremely agitated, leaned over the writer and starter [sic]
pointing and yelling that “he does not need medication, the gays are
mentally ill and he is not going to be dragged into it”. Writer
deescalated client and advised that we would have to reschedule if his
behaviour continued to be threatening. Client sat back down and
refrained from approaching writer for the rest of the meeting.
Client’s delusions were focused on being an angel, creating
radioactivity and aliens.
• 9/28/2015: [at Seaton House]: Client presented with delusional
thoughts and his body language was threatening. Client “spoke
about angels eating humans” and made a sudden strangling gesture
towards writer. Client was preoccupied with “gay people’s choices
being wrong and deserving AIDS”. Client made a reference to being
on probation some time ago and writer inquired about the charges.
Client stated that he was on probation for sexual assault (stated that
he had “grabbed a woman because she told him she is the devil”).
• 11/4/2015: [at Tim Horton’s at Dundas & Jarvis]: Client appeared
extremely agitated and presented with disorganised and delusional
thought. Client screaming about “aliens eating humans, gays, and
AIDS, women dumping their kids and doing crack”. Client was
leaning over writer in an aggressive manner and she had to push him
back away from her. Writer advised client that she cannot work with
him if he does not respect her personal space. Writer advised that his
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behaviour is threatening and we’ll have to reschedule. Client
stepped back and was able to lower his tone but continued wit [sic]
tangential thought.
• 11/9/2015: [at Seaton House]: Client presented with delusional
thought and his behaviour appeared aggressive. Client was
advancing towards the writer on a couple of occasions screaming
about aliens, homosexuals and radiation. Writer informed client that
his behaviour is threatening and she could not work with him if he
does not respect her personal space.
• 11/16/2015: [at Seaton House]: Writer redirected client a few times
when his behaviour got too erratic and he was invading with [sic]
writer’s personal space.
• 1/11/2016: [at Client B’s residence]: Client presented with
delusional and tangential thoughts and showed writer a “picture of
an angel on his wall” (a picture of a blurry spot).
• 1/19/2016: [at Client B’s residence]: Client presented with
extremely delusional thoughts and was showing writer pictures of
“angels in his unit”. Client believed he is an angel and “the true son
of god and nature” as well as friends with Lucifer. Client presented
wit [sic] rapid and tangential speech and was [sic] difficult to
redirect him or engage him on a goal related topic.
• 1/26/2016: [at Client B’s residence]: Client presented with
delusional and tangential thoughts and was [sic] difficult to redirect
him (client’s delusions had a religious association).
• 2/2/2016: [at Client B’s residence]: Client presented with
delusional and tangential thoughts and needed to be redirected
numerous times. Towards the end of the visit, client was sitting in a
chair and appeared preoccupied in a delusion about the royal
family when he suddenly got up and charged towards the writer and
pushed her in the chest (writer was standing up at the time close to
the exit). Client applied enough force for writer to lose her balance
and fall back leaning on client’s bed. Writer proceeded to leave
client’s unit and on the way out informed client that this behaviour is
unacceptable and writer cannot provide services if she is not safe.
Client stated t [sic] “OK, OK” and continued to talk about his
delusional beliefs.
• 2/3/2016: Writer discussed the incident with her manager
Jeannette Kruger. [sic] We agreed to apply for a Form 2 [that
allows the police to bring a person to a hospital for a psychiatric
assessment] with the Justice of the Peace as client has been
psychotic and presenting with persistent delusional beliefs. Client’s
behaviour has been escalating and presents a danger to others.
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Writer and her manager saw a Justice of the Peace at Old City hall
and provided an account of the incident. The Justice of the Peace
issued Form 2 which the manager took to 14 Police Division.
[emphasis added throughout]
31. Ms. Krueger had access to the case notes regarding Client B. In describing the
process she follows for the supervision meetings, she stated in her evidence both
that she reviews case notes in advance of the meetings and “I don’t have to read
every note”. She did not testify to having read the Grievor’s case notes relating to
Client B prior to the filing of the grievance.
32. The Grievor and Ms. Krueger had four supervision meetings during the
period of Ms. Kostadinova’s involvement with Client B. The case managers choose
the clients they would discuss in their supervisory meetings. Ms. Kostadinova
referenced Client B in each of the four meetings, starting on June 9, 2015 and ending
with a meeting on January 19, 2016, two weeks before the assault.
33. In addition, the Grievor raised her concerns about Client B at a number of the
HOP team meetings. He was discussed at the team’s psychiatric consultation
meeting on September 29, 2016, the day following the incident at Seaton House in
which he had made a threatening gesture towards Ms. Kostadinova and had spoken
of his having been charged with sexual assault. In the result, the specialist in
attendance suggested that he and Ms. Kostadinova would conduct a joint visit with
Client B at Seaton House. That took place on October 5, 2015. In her notes of that
visit, the Grievor remarked: “Client was mild-mannered compared to the 2 previous
visits”. She also recorded that she had sought information from him about his
previous involvement with the criminal justice system and that he could not provide
accurate information but stated that he had spent two months in jail for murder.
34. In addition to her statement of evidence, Cota submitted a compilation of
notes made by Ms. Krueger regarding the history of the incidents involving Clients A
and B and some subsequent interactions with the Grievor. Those notes were made
an exhibit in the proceeding. The following appears in Ms. Krueger’s statement of
evidence:
The expectation is that staff send Case Load Status notes . . . to me
electronically before each supervision meeting. . . . After we
complete the supervision notes I email them to case manager and
they can amend if necessary.
Did you make other notes?
Yes. If we had other interactions such as a phone conversation,
impromptu meeting or text, I would make a note in my book. I often
make notes during team meetings and consults.
Tell about the notes you made about this matter.
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I think it was the beginning of March when I pulled together notes
from supervision and any anecdotal and memory reflections. I then
put them in chronological notes and typed up a summary. I put all
those notes in file folder and cannot locate that folder.
35. The upshot of the consultation meeting on September 29th was recorded as
follows in those summary notes prepared by Ms. Krueger:
Recommendations to meet with client only with someone around,
and try to get release of information for past psych assessments.
Also, Mark Cooper agreed to do joint visit, as there was an ABI
[Acquired Brain Injury] query. Everyone agreed to support her if
she needed someone to do joint visit.
In the statement submitted as her evidence-in-chief, Ms. Krueger addressed the
September 29th consultation twice. In the first reference, she asserted:
On September 29 AK brought up Client B – she presented his
delusional beliefs, psychotic symptoms. At no time during meeting
did AK state she was personally threatened. At conclusion it was
agreed that Client B should only be seen in a joint visit. It was
agreed to do joint visit with Mark Cooper as matter of possible ABI
was raised. AK agreed to this course of action.
In the second, she responded to the question: “Did AK raise this client at any team
meetings or consult meetings?” as follows:
He was at the meeting on September 29. No risk was identified –
her concern was ABI – he was encroaching on her space – she was
told by the consulting psych not to meet him alone.
36. The Grievor acknowledged the recommendation from the September 29th
team consultation that she should meet with Client B only with someone else
present; however, she maintained that the advice was associated with his residing at
Seaton House and the “context changed when he moved to his own residence in
January 2016”. Her meeting with Client B accompanied by Mr. Cooper on October 5,
2015 was the only joint meeting she had with that client.
37. Ms. Kostadinova also agreed on cross-examination that she never asked Cota
to assign someone to work with her as a team in dealing with Client B, but she
maintained that she was “open about needing help”.
38. The Grievor testified on cross-examination that she developed serious
concerns for her safety with Client B around October-November 2015. She said that
she had been aware that the concept of work refusal was provided for in Cota’s
policies and that it had been discussed at a town hall meeting; however, she added:
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“We don’t feel we can refuse based on practices at work. We are directed to provide
services”. She also acknowledged on cross-examination that her notes recorded that
she had told Client B that she could not provide service if she was not safe and she
explained: “I knew that I could withdraw services if assaulted”. Short of an assault,
she said that the opportunity to terminate services was unclear to her based on
many discussions: “It was never an option presented”.
39. In the record of Ms. Krueger’s supervision meeting with the Grievor on
November 17, 2015 there was reference to Client B’s “very aggressive gesturing”,
the Grievor’s having to push him back, his being paranoid, and his being barely able
to have a conversation due to “pressured” and “very delusional speech”. Those
observations were followed by: “Plan to meet only at Seaton House unless joint
meeting in community”. On cross-examination, Ms. Kostadinova stated: “That was
my plan at the time”. She was then asked: “So that’s what Ms. Krueger should have
understood you to be doing?” and she answered: “Yes. I had been doing that until he
was housed”. Again, Client B acquired his own living quarters early in January
2016.
40. Ms. Krueger’s evidence regarding the meeting on November 17th was that she
was advised that Client B had been “exhibiting aggressive gesturing and he was
paranoid”. She maintained that she had told the Grievor “she must be careful and
she should meet him with someone else present”. She also testified about joint
visits:
Arranging a joint visit is always at staff initiative and is a common
practice. I could arrange a joint visit if the staff person or I have a
particular concern. A joint visit initiated by a staff person does not
need my approval.
41. Ms. Kostadinova met with Client B alone in his residence four times including
on the date of his assault on her. Her evidence was that circumstances changed
when she started working on accommodation for Client B, that Ms. Krueger knew
that she was working on housing for Client B, and that she believed that Ms. Krueger
would know that she was meeting alone with Client B because Ms. Krueger knew
that she was working on his housing. Ms. Kostadinova did testify that she told Ms.
Krueger that she had visited Client B “at home”, but she did not state that she had
told Ms. Krueger that she had been alone when she did so.
42. The Grievor was challenged on cross-examination that she had been in
agreement with Cota that she would engage Client B only in joint meetings outside
Seaton House and yet had engaged in “one-on-ones” with him even though the risk
was escalating. She responded to that by saying that her manager had not facilitated
joint visits and she did not feel that she had the flexibility or an option to do so. Ms.
Kostadinova confirmed that she never approached her manager to request that
someone be assigned to accompany her. Moreover, she admitted on cross-
examination that she had not called on any of her co-workers to join her for a
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meeting with Client B. She said that she had not done that “after he was housed”
and that she “didn’t think it was an option”.
43. The Grievor said that after Client B moved from Seaton House to his own
accommodation it was also not an option to meet in a public space as the
expectation was that the case managers would conduct home visits. Nevertheless,
she also agreed on cross-examination that she could have arranged to meet with
Client B at Seaton House or at Cota’s office. She was asked whether the
circumstances of her visits with Client B were “potentially unsafe” as contemplated
by the Safety Protocols for the Cota HOP Team in directing that team members were
not to enter a client home or dwelling if they feel any type of threat. Her answer
was: “That’s the concern. Yes”. When challenged further that she had acted
contrary to Cota’s policy and the Safety Protocols, in completing her last four visits
with Client B, Ms. Kostadinova responded that she read the “guidelines to apply to
visits in progress” and to direct that the case manager not complete the visit if the
situation was unsafe. That sequence of questioning ended with Ms. Kostadinova’s
statements that she believed that Client B had the potential to be a risk in any
setting, but that she faced a higher risk meeting him alone.
44. Ms. Kostadinova expressly disputed the proposition that Ms. Krueger had
told her on February 2, 2016 that she was to meet Client B with someone else
present.
45. On re-examination, Ms. Kostadinova asserted that she thought that
management would be involved if joint visits were to be arranged and that the
manager would advise the other person of the need to be involved. Her evidence
was contradicted by the Union’s second witness, her colleague and fellow case
manager, MB. First, MB testified that she served as Ms. Kostadinova’s “buddy” in
that they had arranged for phone calls so that MB could check up on the Grievor
when she was scheduled to complete a visit with Client B after he was
accommodated away from Seaton House. Moreover, MB testified that she was “on
standby if needed” in connection with Ms. Kostadinova’s visits to Client B: “I was
ready in case she would need someone if going to his place”. She also testified that if
she herself did not feel comfortable with a situation she would ask someone to join
her. MB’s evidence was that arranging joint visits was not always easy to do, but
“we try to figure it out on our own; the manager is not involved”, and “others are
available for phone calls or joint visits; we do arrange it when not feeling
comfortable”.
46. The Grievor and Ms. Krueger spoke of Client B at a supervision meeting held
on January 19, 2016. They recorded that he was housed and added: “Still very
thought disordered and uncomfortably close and aggressive manner”. Ms.
Kostadinova was scheduled to meet with Client B at 3:00 p.m. on January 19th.
Nothing was written in the supervision notes of the scheduled meeting or of the
Grievor’s plans to go alone or with a co-worker and the notes Ms. Krueger testified
to having compiled in March 2016 did not refer to any events after November 17,
15
2015 and before February 2, 2016; however, in her evidence-in-chief Ms. Krueger
concluded her reference to the January 19th supervision meeting as follows: “The
conclusion was to continue to see him as previously discussed – joint visit”.
47. What proved to be Ms. Kostadinova’s last visit with Client B was scheduled
for 3:30 p.m. on February 2, 2016.
48. There had been a psychiatric consultation team meeting that morning. Ms.
Kostadinova brought up one of her other clients for discussion, but said nothing in
the meeting about Client B. In her evidence-in-chief the Grievor had asserted that
she had spoken about being afraid of Client B until she was “blue in the face” and
that she had spoken to her manager about his being “very threatening” and having
an “unpredictable manner”. She had testified that at first she was concerned that
she would be punched by Client B and later that she would end up “in a pool of [her]
own blood”. With reference to that evidence, she was cross-examined about her
failing to say anything about Client B in the consultation notwithstanding her
professed fears and the fact that she was to see him in his dwelling that afternoon.
Her explanation was that she did not bring him up because she had spoken of him
many times with the team and with her manager in the office. She also maintained
that Ms. Krueger knew that she was always concerned about her safety and she said
twice that she “believed” that she had mentioned to Ms. Krueger her fear of being in
a pool of her own blood.
49. On cross-examination Ms. Kostadinova maintained that it would not have
been appropriate for her to have recorded her fear of ending up in a pool of her own
blood in the notes she entered for Client B.
50. Both the Grievor and Ms. Krueger testified about a private discussion they
had on the morning of February 2nd after the consultation.
51. Ms. Krueger’s notes prepared in March 2016 dealt with the morning of
February 2nd as follows:
Met for team consult 9 am – Antoaneta attended and discussed a
client but not [Client B]. After meeting she briefly came into my
office stating [Client B] still invading her personal space and that
she was seeing him only until his housing was stable. I agreed and
reminded her to ensure she meets him with someone else.
Her evidence-in-chief was more expansive:
AK approached me immediately after consult. In consult AK did not
raise Client B. At our impromptu meeting, AK advised she will be
visiting Client B that afternoon. She said Client B was invading her
personal space and she was only seeing him until he was housed
stably. She did not express concern for her safety. She said he was
16
aggressively gesturing but not towards me. She said I am
struggling because I cannot engage him. I asked her why she did
not bring Client B up at consult. She said I wasn’t thinking about it
then. I told her not to see him alone and I asked her if she wanted
the new nurse to shadow her – she said fine and we will set up
some dates.
52. Ms. Krueger’s evidence was that she believed that Ms. Kostadinova was going
on joint visits or meeting Client B in public at Seaton House once Client B had moved
into his own place. She admitted that she did not ask Ms. Kostadinova with whom
she was doing joint visits, adding, with reference to the Grievor’s experience, that
there was nothing “to lead me to believe she wouldn’t be doing joint visits”. She
insisted on cross-examination that, on February 2nd, she had not been aware that
Ms. Kostadinova was seeing Client B in his unit and that she had told her not to see
him alone.
53. Ms. Kostadinova had previously testified that after the consultation Ms.
Krueger called her in to discuss the addition of a male nurse to staff and to ask her
whether she would like to have the nurse join her on a visit with Client B. It was in
that context that Ms. Kostadinova said that she “believed” that she had mentioned to
Ms. Krueger her fear of being in a pool of her own blood and she testified that Ms.
Krueger had said “I have no words for you” and suggested that she bring the issue
up in a team meeting where, perhaps, an answer would “percolate”.
54. The hiring of the male nurse was of no immediate significance to Ms.
Kostadinova as she did not know when he would start work and the Grievor
rejected the suggestion put to her on cross-examination that she could have
postponed her meeting with Client B to await the arrival of the nurse. Ms.
Kostadinova said that she was at her wits end regarding Client B by that time; she
was considering withdrawing services as she had not been able to engage him over
the course of six months. She testified that she was “constantly afraid” and he was
so unpredictable that she was scared and could not assess her safety.
55. Ms. Krueger’s evidence-in-chief included the following exchange:
Have you read the notes AK made about the client [B]?
YES
Is there any indication to you in her notes that he was a threat to
her?
NO
If he was a threat what should she have written?
17
She should do an assessment and write her observations and client
status as to how client presents in visits. As an experienced person,
AK should report “client is presenting with threatening behaviour
that makes worker feel unsafe. Worker will suspend visits until
discussion with Manager”
If he was a threat what should she have done?
She should immediately disengage and report to Manager or
Manager on Call if unable to reach Manager.
Safety Protocol . . . provides:
• “When you have any concerns about the potential
for violence against yourself or others, discuss the
situation with your Manager and evaluate whether
Cota should continue to provide service to the
person”.
56. Ms. Krueger’s evidence-in-chief concluded as follows:
Did AK express to you, before the assault, that she felt that the
client was a risk to her?
NO
If she had done so what would you have done?
If she had done so, I would direct her to suspend service.
Did AK say she was afraid she would end up in pool of blood?
NO
What would you have done if you knew AK was thinking that?
I would direct [sic] to suspend service.
57. Ms. Krueger and Ms. Kostadinova exchanged messages over the evening of
February 2nd and met the following day. Ms. Krueger’s notes of that read, in part, as
follows:
Antoaneta and I met in my office at 1:30 – discussed incident, she
demonstrated situation and I empathized and stated I didn’t think
she should continue to work with him, let alone meet with him
alone.
On cross-examination, Ms. Krueger maintained that she had been shocked to learn
that the Grievor had been visiting Client B alone and that she had understood that
Ms. Kostadinova had been attending on joint visits.
18
58. Ms. Krueger’s summary notes from March 2016 also recorded a number of
statements that were not brought out in her evidence-in-chief, including the
following
Feb 5th – met with Antoaneta – provided support and discussed her
taking some time off. She felt weekend would be enough of a break
but appeared angry that she had to meet the client. I emphasised
that everyone has an option to decline, and certainly I had never
intended for her to feel she could decline [sic] seeing him. I
clarified that she was not to have contact with the client and that I
would deal with his care. I then suggested we debrief the team on
Feb 9th as its good learning for everyone. She agreed this would be
helpful. I stressed that it was important everyone on the team
know that they can decline a client if they feel unsafe.
59. The particulars Ms. Kostadinova submitted on March 21, 2016 in support of
her grievance and which were included in the exhibits addressed that circumstance.
She wrote the following and testified to the same effect:
During a discussion with the manager on Feb 5, she stated that “she
feels guilty and takes the blame for not directing me to not work
with the client after I had expressed concerns that I am
uncomfortable”. The manager stated that she thought it was
understood that I can decline work with clients if there are
concerns. This option was never presented (or implied) when I had
discussed my safety concerns.
In her testimony, Ms. Kostadinova stated that she objected to Ms. Krueger’s
statement that she thought that the Grievor understood that she could decline to
work with a client and that she told her manager that she did not agree that she had
that understanding.
60. Ms. Krueger acknowledged that the case notes concerning Client B were
available to her and that she probably should have reviewed them in connection
with her supervision of Ms. Kostadinova; however, she did not do so. Nevertheless,
she recognized on cross-examination that the November 17, 2015 supervision
meeting in which she had recorded the Grievor’s advice that there had been physical
contact – he had demonstrated “very aggressive gesturing” and “she had to push
him back – established that Client B posed a physical risk to Ms. Kostadinova.
Similarly, the supervision notes for January 19, 2016 in which she had recorded
Client B’s being “uncomfortably close” and exhibiting an “aggressive manner” could
be viewed as relating to a physical risk. Moreover, her evidence-in-chief regarding
the consultation on September 29th established that the consulting psychiatrist had
told Ms. Kostadinova that she should not meet Client B alone and Ms. Krueger
agreed that in speaking to the client’s encroaching on her space, the Grievor was
identifying a risk to her person.
19
61. Ms. Kostadinova testified to the effects of the assault and her perception that
Cota had failed to respond to her concerns regarding Client B. Her evidence was
that her sister noticed that she was more irritable and she said that she had
difficulty sleeping, was drinking more than her usual glass of wine before bed in
order to sleep, was disillusioned, distrustful and disengaged.
62. The Union submitted no medical evidence in support of the Grievor’s
testimony regarding any of the consequences she attributed to the events involving
Clients A and B.
63. The notes compiled by Ms. Krueger and submitted by Cota reflect Ms.
Kostadinova’s absence from work, meetings Ms. Krueger had with her on April 19
and 21, 2016 to discuss her return to work, as well as communications between the
two later in April 2016 -- the last of which referred to the then “upcoming
arbitration”.
Positions of the Parties
64. The Union submitted that Article 17 of the collective agreement incorporates
the OHSA and, particularly, clause 25(2)(h) identifying an employer’s obligation to
“take every precaution reasonable in the circumstances for the protection of a
worker”. The burden of the grievance was that Cota had failed to meet that
statutory standard in relation to what befell Ms. Kostadinova as a result of the
misdeeds of Client A and Client B.
65. I was urged to assign little or no weight to Ms. Krueger’s notes and,
consequently, her evidence-in-chief as that relied on those notes and was
supplemented by recollections that had surfaced after those notes had been
prepared. The Union cast doubt on the reliability of the notes given that they were
prepared after the fact and after the filing of the grievance, were said to have been
supported by original notes that had then been lost, and were indefinite as to
whether the contents were based on those lost notes or Ms. Krueger’s “memory
reflections”.
66. In the Union’s submission, the evidence established that Cota failed to
respond to “significant workplace violence concerns”. It had done nothing with
respect to the situation presented by Client A other than to instruct him to stay
away from its drop-ins. The supervision notes relating to Client B established that
he presented a risk and the Union argued that instructing Ms. Kostadinova to have
joint visits was simply not enough. In any event, the Union disputed the proposition
that Ms. Kostadinova had an understanding with Cota that she would restrict herself
to joint meetings.
67. The Union submitted that the Grievor’s conduct was not in issue. Ms.
Krueger, on the other hand, “should have been more meticulous in following up with
20
Ms. Kostadinova regarding Client A” and the Grievor had raised her concerns about
Client B repeatedly, but Ms. Krueger failed to follow up regarding joint visits and did
nothing to help in setting up a protocol for joint visits.
68. The Union asked me to note that Ms. Kostadinova had invoked a “buddy
system” in connection with Client B and also to accept that the Grievor had told her
manager on the morning of Client B’s assault that she could see herself on the floor
in a pool of blood – both being factors in demonstrating the level of her concern.
69. The Union contended that there should be a declaration of Cato’s breach of
the collective agreement and failure to meet the requirements of the OHSA; that the
Grievor’s evidence established that her reaction to the issues and her concerns – her
difficulty in going to work, drinking and sleeplessness – warranted an award of
general damages in the order of $20,000 referable to the period April 2, 2015 to
February 2, 2016; and that Cota’s failure to take adequate safety measures
constituted an independent actionable wrong that supported an award of punitive
damages, also in the amount of $20,000.
70. Cota questioned how the situation respecting Client A was properly before
me in that the Union had relied on that history as part of a pattern of events but
made clear in its submissions that it sought compensatory damages from the
discovery of the threatening text message. If Client A’s behaviour generated any
compensable harm, the time for filing a grievance had long expired before the
Grievor made any formal complaint.
71. To the extent that Cota was faulted for failing to have or introduce a protocol
to address the situation created by Client A, I was asked to note that neither Ms.
Kostadinova nor the Union had identified any appropriate change to be made to the
policies and protocols that were in place at the time. Those set out various
obligations accepted by management and, it was argued, there was no
demonstration that any of those had not been met in the circumstances.
72. As for the second situation, Cota took the position that there had been no
threat to the Grievor prior to the assault by Client B. She had had a period of
months and many visits on which to base an assessment of any risk posed by the
client. Her notes remarked on his being “in her space” and “gesturing aggressively”
on an number of occasions. He was said to have been “unpredictable”. Cota noted
that Ms. Kostadinova had an obligation, if she considered the client to present a
threat, to make notes and ensure that her assessment would be clear to her co-
workers who might refer to her notes in contemplation of dealing with Client B.
However, it argued, there was nothing in the notes or in the supervision sessions to
communicate the view of Client B’s being a physical threat to her or another case
manager.
73. Cota’s submission assigned blame to Ms. Kostadinova for having failed to
withdraw services and for having failed to conduct joint visits with Client B. As to
21
the latter, there was no evidence that the Grievor had attempted to arrange joint
visits, notwithstanding that her co-worker’s evidence was that she was ready to
provide that assistance. Cota maintained that, knowing that she was supposed to
conduct joint visits, the Grievor’s case reduced to a complaint that Ms. Krueger had
failed to make sure that she was complying with that requirement.
74. The Grievor’s recorded comments to Client B and to Ms. Krueger confirmed
that she knew that she could withdraw services and if she did envision herself in a
pool of blood she would not have visited Client B alone on four occasions. The
reality, in Cota’s submission, was that her decision to continue as she did indicated
that the situation was not at all as she attempted to make out after the assault.
75. Cota submitted that there was no evidence on which to base the Union’s
claim for general damages. The Grievor had referred to her sister’s observation, but
the sister did not testify. There were no medical reports, no counseling records, no
notes of any events or suffering, or any supportive documentation. The claim was
made for the full period from April 2, 2015 to February 2016, but there was no claim
processed in 2015 regarding Client A and, Cota argued, her unassisted recollection
in October 2016 was not a sufficient foundation for a claim associated with Client
B’s behaviour.
Analysis
76. The central core of the Union’s case is the proposition that Cota breached its
collective agreement by failing to meet the obligation imposed by clause 25(2)(h) of
the OHSA in relation to the threat attributed to Client A and the assault committed
by Client B.
77. While so saying, the Union did not attempt to persuade me that Cota had any
means to prevent a person such as Client A (or the unidentified and probably
fictional friend who allegedly borrowed his device) from sending an offensive and
grossly threatening text message to another individual. Cota has no opportunity to
police the conduct of its clients away from its precincts and no opportunity to
monitor and intercept their private communications so as to preclude a repetition of
the conduct attributed to Client A.
78. Accordingly, there simply were no precautions reasonable in the
circumstances that Cota might have taken to protect Ms. Kostadinova from the
frightening impact of the crude text message that was brought to her notice on April
1, 2015. In that context, no one would sensibly suggest that the parsing of the exact
words of the text message might have had any ameliorating effect. One would
expect anyone to be dramatically and negatively affected on learning that another
person had expressed either a desire or a threat to rape them.
79. In prosecuting this grievance, Ms. Kostadinova repeatedly voiced her concern
and complaint that Cota had no protocol to deal with the situation created by Client
22
A’s text message. She maintained that the absence of the protocol contributed to or
perhaps even caused her to experience angst that affected her life in the period after
she learned of the text message. Having regard for all of the evidence, however, I am
not satisfied that the Union established that the absence of a responsive protocol –
rather than the threatening text message – occasioned any pain and suffering for
which the Grievor sought general damages associated with the first incident.
80. In my view, the position advocated by the Union and the Grievor is defeated
by their failure to identify any protocol that was necessary, available and effective in
the circumstances and that was not implemented by Cota. Client A was taken to
task and appropriately cautioned that his conduct exposed him to the possibility of
criminal proceedings; he was brought before a community relations officer who
reinforced that message; he was given instructions regarding his behaviour,
including being told to have no contact with Ms. Kostadinova; and he was barred
from attending the drop-ins at which case managers would normally be present.
Neither the Union nor the Grievor identified any additional precautions that Cota
might have taken to meet its obligations, and the repetition of the Grievor’s
complaint for which no solution was proposed is of no assistance to me or, with
respect, to the achievement of workplace health and safety improvements.
81. That is not to say, however, that Cota acquitted itself as it should in
addressing its obligations to the Grievor and other case managers. Having identified
the barring of Client A from the drop-ins as part of its response and its means of
protecting potentially exposed workers, Cota failed to ensure that Client A heeded
the injunction and stayed away until advised that he might return. The evidence
established that he attended at the drop-ins on at least two occasions shortly after
the exclusion was imposed. In the result, Cota failed to protect its workers by
enforcing one of the precautions that it had deemed reasonable in the
circumstances.
82. There was no evidence that Cota’s lapse regarding Client A’s attendance at
drop-ins in 2015 occasioned any direct or indirect harm to the Grievor or any of her
co-workers. There was no suggestion that he misconducted himself towards staff
while in attendance contrary to the direction that had been given. There was no
evidence that Ms. Kostadinova encountered Client A at the drop-ins or at any time
after April 2015. She learned, after the fact, that he had been in attendance and
stated, in connection with discovering that he had been present in February or
March 2016 – possibly after the commencement of the Grievor’s absence following
the February 2, 2016 assault – that she had been traumatized by his presence or as a
result of learning that he had been present; however, I regard that as a late
discovery following from the production of documents in this proceeding and give it
no weight in assessing the Grievor’s claims or entitlement.
83. In the result, I am not satisfied that anything that Cota did or failed to do in
responding to the offensive text message justified an award of damages. I am not
persuaded that the anguish for which Ms. Kostadinova claimed damages flowed
23
from any act or omission of Cota rather than the impact on her of the text message.
To the contrary, the fact that no contemporaneous grievance was filed to challenge
Cota’s handling of Client A and the text message stands as a clear indication that the
arguments made so long after those facts were not identified as concerns in 2015.
84. The evidence of both Ms. Kostadinova and Ms. Krueger in relation to the
circumstances leading up to and following the assault by Client B was problematic in
several respects.
85. As noted above, Ms. Krueger was responsible for a compilation of a set of
notes that supplied the substance of much of her statement of evidence. The notes
purportedly reflected both notes that she had made in the ordinary course of her
duties (in connection with supervision sessions and other exchanges) and “memory
reflections” that typically were not identified as such or distinguished from
reporting based on notes. She said that she pulled those notes together at the
beginning of March. She also referred to notes that she had made in her book.
When she completed typing the summary or compilation of notes that was
introduced in evidence, Ms. Krueger explained the failure to produce documents by
attesting that she “put all those notes in file folder and cannot locate that folder”.
She also acknowledged her familiarity with the grievance submitted February 26,
2016. That is to say, Ms. Krueger compiled and “typed up the summary” in
connection with the grievance filed days earlier and, notwithstanding that she made
notes in her book, then “put all those notes in file folder” that she could not locate
for the hearing.
86. That is far from convincing evidence and does not suffice to explain Cota’s
failure to substantiate the sources or the content of some of the statements recorded
in Ms. Krueger’s summary notes and given in evidence. It is also of concern that Ms.
Krueger stated that she pulled these notes together shortly after the grievance was
filed – “beginning of March” – while the document includes entries for April 19, 21,
22, 26, and 27, 2016 and closes with a reference to the “upcoming arbitration” that
commenced on May 3, 2016. When, in those circumstances, did the witness lose
control of the file folder?
87. There was an internal inconsistency in Ms. Krueger’s statement of evidence
in that she stated in one paragraph that she could not recall whether the Grievor
attended a team meeting on April 10, 2015 at which, she said, the incident involving
Client A was discussed. In the following paragraph, she described her “recollection”
that the situation was discussed at the April 10th team meeting and added: “I believe
AK was present”. Those variations do not inspire confidence in the validity of Ms.
Krueger’s observations.
88. Furthermore, Ms. Krueger directly compromised her credibility with the
astonishing statement in her evidence-in-chief that, having read the notes that the
Grievor made about her interactions with Client B, it was her evidence that there
was no indication to Ms. Krueger in the notes that Client B was a threat to Ms.
24
Kostadinova. Notwithstanding that she revised her position on cross-examination,
in my view the statement was absurd and contributed to the identification of Ms.
Krueger as an unreliable witness.
89. An objective and fair reading of the notes excerpted above from June 25,
2015 through February 2, 2016 would lead any reasonable person and competent
supervisor to conclude that Client B posed a threat to the safety of any case manager
with whom he came into contact. Those notes included references to Client B
“leaning over writer”, “shouting about aliens”, invading her personal space “as he
kept tapping her on the knee”, becoming “extremely agitated”, leaning over the
Grievor, speaking about eating humans and making “a sudden strangling gesture
towards [the Grievor]”, referring to having been on probation in connection with
charges of sexual assault of a woman, “leaning over [the Grievor] in an aggressive
manner and she had to push him back away from her”, being told by the Grievor that
his behaviour was threatening and that he does not respect her personal space,
“advancing towards [the Grievor] on a couple of occasions screaming about aliens,
homosexuals and radiation, invading the Grievor’s personal space, and, finally,
charging the Grievor, pushing her forcefully in the chest, and causing her to lose her
balance.
90. Ms. Krueger’s bald dismissal of the foregoing as failing to indicate to her that
Client B posed a threat to Ms. Kostadinova is to be assessed in the context of Cota’s
Safety Protocols. There, case managers for HOP are advised that if they have “any
concerns about the potential for violence” against themselves they are to discuss the
situation and “evaluate whether Cota should continue to provide service to the
person”, that they are not to enter a client dwelling ”if they feel any type of threat”,
and that they are not to complete a home visit with a client “if circumstances appear
to be potentially unsafe”. The Grievor’s notes demonstrate that there were threats,
there was the potential for violence, and she was potentially unsafe during most of
the last five months of her involvement with Client B.
91. Moreover, Ms. Krueger’s assessment of the threat disclosed by the Grievor’s
case notes is in direct contrast to the evidence relied upon by Cota to defend its
position. The consultation on September 29, 2015 resulted in the psychiatrist’s
counseling that the Grievor was not to see Client B alone and Ms. Krueger, while
maintaining that Ms. Kostadinova had not stated that she was personally
threatened, confirmed that “it was agreed that Client B should only be seen in a joint
visit”. Then the supervision session on November 17, 2015 produced what Cota
relied upon as Ms. Kostadinova’s agreement “to meet [Client B] only at Seaton House
unless joint meeting in community”. That is to say, Ms. Krueger, having been told,
on her evidence, that Client B had been “exhibiting aggressive gesturing and he was
paranoid” advised the Grievor that “she must be careful and she should only meet
him with someone else present”. Finally, notwithstanding her evidence that the
Grievor’s notes would not have indicated to her that Client B was a threat to his case
worker, Ms. Krueger gave testimony that she had cautioned Ms. Kostadinova at the
January 19, 2016 supervision meeting “to continue to see him as previously
25
discussed – joint visit” and, on the morning of February 2nd, she had “reminded [the
Grievor] to ensure she meets him with someone else”.
92. Simply put, why would the psychiatrist and Ms. Krueger have cautioned Ms.
Kostadinova as alleged if Ms. Krueger’s assessment was in any way valid or
deserving of consideration? The statement in Ms. Krueger’s evidence-in-chief was
so inordinately contrived that her evidence is necessarily suspect. Clearly, Cota was
concerned for the Grievor’s well being and her safety in dealing with Client B. The
advice to the Grievor plainly demonstrated that Cota recognized that Client B, as
described by Ms. Kostadinova in her notes and to the team meetings, put her safety
at risk.
93. Also on that score, as pointed out by counsel for the Union, the statement of
Ms. Krueger’s evidence-in-chief added to the summary notes in at least one
surprising and questionable detail. The summary notes included no reference to a
period of several weeks and, in particular, made no mention of the supervision
meeting on January 19th. Furthermore, the document produced from that session
made no mention of any advice to Ms. Kostadinova or any conclusion regarding the
need “to continue to see him as previously discussed – joint visit”. Ms. Krueger
offered no explanation for her omission of that detail in preparing the notes
“beginning of March” that were largely relied upon for the statement of evidence
submitted in October 2016. Similarly, the statement of evidence regarding the
discussion after the psychiatric consult on February 2nd was expanded by the
addition of indications that the Grievor did not express concern for her safety and
had said that while Client B was aggressively gesturing it was not towards her. It is
noteworthy that the expansions on the notes compiled in March were uniformly
negative to the Grievor’s position.
94. Ms. Krueger’s summary notes included reference to an exchange she had
with the Grievor on February 5, 2016. The note for that date and Ms. Kostadinova’s
note regarding that discussion suggest strongly that, prior to the initiation of the
grievance, Ms. Krueger had acknowledged a degree of responsibility for failing to
ensure that her subordinate was aware of her opportunity to take protective steps
to avoid harm at the hands of her client.
95 . Aspects of Ms. Kostadinova’s evidence with respect to her involvement with
Client B were equally troubling and suspect. The Grievor is an educated person, she
demonstrated intelligence, and she has had a significant amount of experience with
Cato and in dealing with difficult clients. It was manifestly her position in this
proceeding that Client B posed a real threat to her health and safety. I regard her
contemporaneous case notes to be reliable as they, unlike the notes proffered by Ms.
Krueger, were written in the ordinary course, without a litigious context, and, until
February 2, 2016, without the knowledge that Client B would in fact commit an
assault or other dangerous act. Even then, Ms. Kostadinova’s description of the
event and her reaction was, in my estimation, measured and objective.
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96. Nevertheless, I cannot accept the Grievor’s explanation for having attended
at Client B’s unit alone – notwithstanding what I consider to be her entirely justified
concerns for her safety and the direction that she had received and agreed to in
September and November 2015, if not more recently as alleged by Ms. Krueger.
Simply stated, Ms. Kostadinova’s contention that the plan and injunction to see
Client B only at Seaton House unless in a joint meeting in the community and not to
see him alone applied only while he was resident at Seaton House and ceased to
have effect when he moved into his own private quarters was nonsensical. Ms.
Kostadinova‘s insistence on maintaining that position put all of her evidence under a
cloud of incredibility.
97. Secondly, I cannot accept that Ms. Kostadinova so subordinated her interests
in her wellbeing that she proceeded as if Cota’s published policies and safety
protocols for the HOP team, as well as her statutory right to refuse unsafe work,
were in some fashion trumped and neutered by an imperative to furnish services to
a troubled population.
98. The only evidence that underscored that concern more than the Grievor’s
failure to ask her manager for assistance in meeting the requirement that she
conduct joint visits with Client B, was her admission that she had failed to ask any of
her colleagues to join her and her co-worker’s evidence that she was aware of the
issue and prepared to respond positively to any request for assistance.
99. Ms. Kostadinova testified that it would be too difficult to secure assistance
from co-workers as they had their own caseloads and quotas to meet. That position
was simply untenable. The Grievor could not succeed in maintaining the
impossibility of securing assistance as her co-worker testified that she would have
supported her if she had been asked. That is significant as it points to the adequacy
of Cato’s protocols even though case managers might have been left to make their
own arrangements. The Grievor also asserted that it was Cato’s responsibility to
schedule others to allow for her joint visits; however, she did not ask for that
assistance and she did not tell Cato that she was not engaging in joint visits.
100. Ms. Kostadinova contended that Cato should have known that she was
proceeding alone because Client B was no longer an inmate of Seaton House. That
position was patently illogical. Only the Grievor interpreted (or purported to
interpret) the requirement to see him at Seaton House or with a companion as no
longer applying when Client B had private quarters in which she would be visiting
him.
101. The Grievor’s position was puzzling. On the one hand she appeared to be
genuinely and justifiably concerned about her safety with Client B and she was a
person with experience and intelligence. She struck up a “buddy” arrangement with
her co-worker MB. Yet she never asked anyone for assistance in scheduling joint
visits when she had arranged to meet this frightening individual in his unit. Why
would she not make any effort if she were truly concerned?
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102. I cannot accept the Grievor’s evidence that she came to envision herself in a
pool of her own blood at the hands of Client B. I note that she twice said that she
believed that she had communicated that to Ms. Krueger; however, as concerning as
her notes were, nothing in what she had written intimated that degree of fear. More
significantly, there was nothing in what she was attempting to do with and for Client
B or that she was obliged to do in fulfillment of her duty to Cota that could ever
explain a rational person’s believing that she was required to provide service to a
person she believed to be capable of harming her to such an extent, if not
committing her murder.
103. The Grievor’s position ignored entirely the protocols established in the
evidence and quoted from above. Ms. Kostadinova complained that the policies
were too general and did not address specifics such as the tipping point for a case
manager’s decision to withdraw from a session or to decline service. Having had the
benefit of hearing of the challenges confronting the Cota case managers I can
appreciate that any attempt to develop an encyclopedic catalogue of situations and
correlated solutions would be doomed to failure – either because the project would
never be completed or because the objective could not be achieved as situations that
the drafters did not foresee and did not address would almost inevitably arise. The
situation of Client A comes to mind as the Grievor acknowledged that it was a one-
of-a-kind circumstance in her history with Cota.
104. In my view, and noting that the Union did not propose any different or
additional provisions, the protocols put into evidence afforded the concerned case
manager ample scope for self-protection. Dealing specifically with home visits and
recognizing the over-arching protection of the worker’s right to refuse work she or
he considered to be unsafe, Cota’s protocols stipulate that: staff safety supersedes
the program expectation that home visits are an integral part of the program to
ensure that homeless clients succeed in new housing; HOP team members are not to
enter a client dwelling if they feel any type of threat; and the case managers are not
expect to remain on the scene “if circumstances appear [to them][ to be potentially
unsafe”. The general nature of those directives is clearly to the benefit of the
worker. They afford the concerned individual a wide scope of discretion to the
extent that Cota could not have challenged Ms. Kostadinova had she declined to
attend on Client B on February 2, 2016 given the history she had documented in her
case notes and discussed with her manager and colleagues.
105. Counsel for the Union contended that Cota was guilty of “victim blaming” in
connection with these matters. No one blamed or could blame her for the text
message from Client A or the assault by Client B. However, when the Union argues
that Cota’s protocols are inadequate and that it failed in its statutory obligation, it is
appropriate to consider the extent to which – if at all – those protocols failed the
worker for reasons over which Cota had no control. Given that Ms. Kostadinova
considered herself to have been at risk and regarded Client B as posing a threat, the
protocols quoted above provided certain protection: she felt threatened by reason
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of Client B’s behaviours and the Safety Protocol stated without equivocation that in
that circumstance she was not to enter Client B’s unit. Had she followed that
directive on February 2, 2016 Client B could not have assaulted her as and where he
did. Similarly, but less certainly, if she had seen Client B at Seaton House or on a
joint visit with a colleague, there might have been no assault; however, an assault
could have occurred in those circumstances as was evident from Client B’s
behaviour towards the Grievor when the two met at a Tim Horton’s coffee shop.
106. As it was, the Grievor’s course of action was comparable to that of a mechanic
in an industrial setting who not only fails to lock out a piece of equipment that is to
be repaired, but proceeds with the repair while the dangerous machine is operating.
Just as the mechanic ignores protocols that would require the equipment to be shut
down and locked out, Ms. Kostadinova ignored the direction to stay out of Client B’s
dwelling based on her perception of a threat, and proceeded to meet with him in
private without the benefit of a co-worker’s presence.
107. In the result, I conclude that Cato was made aware of the Grievor’s justifiable
concerns that Client B posed a threat. Cato had protocols in place that afforded Ms.
Kostadinova precautions reasonable in the circumstance for her protection and it
added to that the advice and requirement that Ms. Kostadinova was to see Client B
only at Seaton House or on joint visits.
108. In that context, however, Cato interacted with the Grievor through Ms.
Krueger and that interaction, in my view, was quite inadequate. First, the
subsistence of policies and published protocols is not dispositive in a situation such
as this. Ms. Krueger did not invoke the protocol that would have directed Ms.
Kostadinova to decline to meet Client B in his unit. Rather, and putting her evidence
at its highest, she said nothing to suggest that the Grievor might or should decline to
conduct visits, but reiterated advice given in September 2015 that the Grievor
should not see Client B alone.
109. Ms. Krueger maintained that she did not know that Ms. Kostadinova was
going to see Client B alone. Yet she testified that she addressed the issue on January
19 and again on February 2, 2016 – in both case simply reiterating the advice that
the Grievor should not go alone. In my view, it beggars belief that Ms. Krueger had
such conversations without once asking for assurance that the Grievor was
complying or without asking where the meetings were to take place and which of
the very limited number of case workers was accompanying Ms. Kostadinova.
110. The conversation that Ms. Krueger had with the grievor on February 2nd took
place immediately after a team consult and only hours before the Grievor was to
visit Client B. Common experience precludes my accepting that in such a situation
Ms. Krueger, as a competent manager with appropriate concern for the wellbeing of
a subordinate involved with a patently disturbing client, would not have asked Ms.
Kostadinova about her arrangements for the afternoon visit.
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111. In all of the circumstances, I conclude that Ms. Krueger did not ask and likely
did not tell. She was content to assume that matters were proceeding as they
should.
112. The publication of protocols without inquiring to determine that they are
being used or followed is not sufficient to meet Cato’s obligations when it failed,
through its manager, to make any inquiries regarding the application of the
protocols or adherence to their dictates. Moreover, by relying on the advice that
Client B was to be seen at Seaton House or on joint visits Cato varied its established
framework for statutory compliance and it cannot be said to have been taking every
precaution reasonable in the circumstances for the protection of Ms. Kostadinova in
her dealings with Client B when it failed to make any inquiries as to her compliance
with its direction.
113. Cato established an approach to the provision of services to Client B that very
well might have been sufficient to protect Ms. Kostadinova. The Union did not
convince me that the approach as identified to the Grievor was necessarily
inadequate. Cato’s obligations, however, were not extinguished by the proclamation
of the appropriate safeguards to be applied in dealing with Client B. Having regard
for the workplace norm testified to by Ms. Krueger, the evidence of MB regarding
her willingness to assist and the general success enjoyed by case workers in
establishing consensual arrangements, and the failure of Ms. Kostadinova to make
any effort to comply with the direction to conduct joint visits away from Seaton
House, it is my conclusion that, again, Cato’s sole failing in relation to its obligations
under the collective agreement and clause 25(2)(h) of the OHSA was in failing to
ensure that its designated precaution was complied with by the Grievor.
114. Having so found, I am obliged to allow the grievance to the extent of
declaring that Cato failed in both instances to meet its obligations under clause
25(2)(h) of the OHSA; first by failing to enforce the exclusion of Client A and
secondly by failing to ensure that the Grievor was adhering to the direction given
about her meetings with Client B.
115. I reject the Union’s claim for an award of general damages attributable to the
breach associated with Client B. I am not satisfied that the Union established that
the Grievor endured any pain and suffering that was attributable to Cato’s failure to
police its direction to her more diligently. The evidence I did receive was anecdotal
and lacked any independent support or documentation.
116. Furthermore, the Grievor’s explanation for her failure to follow the dictates
of common sense, Cato’s formal protocols, and the direction that she was not see
Client B alone outside Seaton House was unworthy of her intelligence and at best an
impoverished after-thought. Unlike Ms. Kostadinova, the employees involved in the
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cases cited to me by the Union1 had done nothing to create or contribute to the
situations that led to their being awarded general damages in response to their
employer’s violation of the Human Rights Code, R.S.O. 1990, c. H.19. The school
board employer in those cases was solely responsible, though its supervisory or
managerial employees, for the harm that was occasioned those grievors and that
had been found to have offended the statute. The grievors, unlike Ms. Kostadinova,
had no ability to avoid the wrongdoing of their employer and the consequential
harm. Here, as between Cota and herself, the Grievor’s contribution to the outcome
was truly overwhelming and negates any potential entitlement she might have had
to general damages.
117. In support of the Grievor’s claim for an award of punitive damages, the Union
submitted the headnote of the decision of the Supreme Court of Canada in Whiten v.
Pilot Insurance Company, 2002 SCC18, 2002 SCC 18 (CanLII). The headnote records
the Court’s directions that “punitive damages are very much the exception rather
than the rule, imposed only if there has been high-handed, malicious, arbitrary or
highly reprehensible conduct that departs to a marked degree from ordinary
standards of decent behaviour”. The evidence in this matter does not admit any
possibility of an award of punitive damages as Cato’s conduct conformed to none of
those indicia.
118. The Union and the Grievor are entitled to the declaration referred to above
and the grievance is allowed to that extent alone.
Dated at Toronto, Ontario this 28th day of November 2016.
_________________________________
Derek L. Rogers
1 CUPE, Local 4400 v. Toronto District School Board (Mossissey Grievances), 2016
CanLII 26730 (ONLA) and Ontario Secondary School Teachers’ Federation, District 12
v. Toronto District School Board (Lazar Grievance), [2015] O.L.A.A. No. 61, 252 L.A.C.
(4th) 39.