HomeMy WebLinkAbout1995-0810WHITE99_05_25
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
,
SElTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (416) 326-13!Xi
GSB #0810/95
OPSEU #95D335
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OntarIO PublIc ServIce Employees Druon
(WhIte)
Grievor
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The Crown m RIght of OntarIO
(Mmlstry of CommunIty and SOCIal Services)
Employer
BEFORE N Imal DIssanayake V Ice-ChaIr
FOR THE Craig Flood, Counsel
GRIEVOR KoskIe Mmsky
Bamsters & SolICItors
FOR THE Dean Samaras
EMPLOYER Counsel, Legal ServIces Branch
Management Board Secretanat
HEARINGS August 20, September 15, October 15,16,23, November 14,20,21,
December 5, 1997
February 10,11, March 5 24,25,31, Apnl 7, June 1, 19,22,
September 24,25, October 2, November 11 12,13,17,27,
December 1,2, 8, 15, 1998
January 25, February 12, 17, 1999
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AWARD
This is a grievance dated May 2 , 1995 filed by Mr Jack R
White, claiming that the employer has dlscharged him without cause
The Background
The hearing into this grievance commenced on June 25, 1996
At that time the parties filed the following Agreed Statement of
Facts
AGREED STATEMENT OF FACTS
1 Mr Jack White, the Grievor, was employed at
Huronia Regional Centr~ in Orillia, Ontario,
in the capacity of residential counsellor
He was employed in that capacity from 1970 to
1984 and subsequently from 1984_to 1995
2 On or about August 3, 1993, Mr Dan Wither
("Wi ther") another residential counsellor,
made a statement to the Employer to the
effect that, on or about April 17, 1989, the
Grievor had sexually assaulted a female
resident of the Centre in the course of
employment Wither subsequently made a
similar report to the Orillia City Police
3 In response to the report by Wither, the
Employer took various action as described in
the letter of August 13, 1993 (Exhibit 1 )
4 In accordance with the employer's agreement
with the Orillia City Police if they so
requested and in accordance with the request
of the Orillia City Policy in this case, the
employer did not conduct any independent
investigation of the allegation against the
Grlevor
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3
5 On or about November 16, 1993, the Grievor
was charged with sexual assault in violation
of Sectlon 271 of the Cr~m~nal Code of Canada
In connection with the alleged lncident
reported by Wither
6 In response to the criminal charge against
the Grievor, the Employer suspended him wlth
pay, pursuant to the letter of November 17,
1993 (Exhibit 2 ) On December 9, 1993
(Exhibit 3) , the Employer transferred him to
a landscaping position where he would have
little or no contact with resid~nts, wlth no
loss of pay or change in classification,
pending the outcome of the criminal
proceedings Neither the Grievor nor the
Union grieved this suspension wlth payor the
transfer
7 A trial by jury was held before the
Honourable Mr Justice J D Bernstein of the
Ontario Court (General Division) on March 27
and 28, 1995 in Barrie, Ontari~~ The Grievor
pleaded not guilty The Grievor did not
testify and the Defence called no evidence
8 On March 28, 1995, the jury found the Grievor
guilty as charged
9 On Aprll 4, 1995 the Employer suspended the
Grievor with pay In light of the criminal
conviction (Exhibit 4 )
10 On April 10, 1995, at the request of the
Employer, the Grievor provided the Employer
with his written statement with respect to
the alleged incident (Exhibit 5 )
11 The Employer terminated the employment of the
Grievor pursuant to the letter dated May 1,
1995 and attached hereto as Exhibit 6
12 On or about May 2, 1995, the Grievor grieved
the termination of his employment, pursuant
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to the grievance attached hereto as Exhibit
7
13 On or about May 3, 1995, the Grlevor was
sentenced to a suspended sentence and placed
on three years probation
14 On or about May 31, 1995, the Grievor
appealed hls conviction The grounds for the
appeal are set out in the notice attached as
Exhibit 8
15 On or about April 23, 1996, the Ontario Court
of Appeal dismissed the appeal, with the
endorsement on the record as attached as
Exhibit 9
(Attachments omitted)
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On the basis of the foregoing facts, the parties requested
that the Board rule upon a dispute between them by way of a
preliminary decision The employer took the position that it
ought to be allowed to rely on the conviction of the grievor in the
criminal courts and the dismissal of his appeal, as proof before
this Board of the fact that the grievor committed the sexual
assault Counsel submitted that the Board should make an order
that it would not hear any evidence as to whether or not that
sexual assault occurred It was submitted that the Board should
accept the certlflcate of convlction as conclusive proof that the
sexual assault occurred, and proceed to hear evidence and
submissions as to whether such conduct constituted just cause for
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discharge and whether there were any mitigating circumstances which
should lead the Board to reduce the penalty
In the alternative, the employer took the position that if
the Board was not prepared to accept the conviction as conclusive
proof of the sexual assault, it should direct the union to proceed
first in order to establish to the Board's satisfaction why,
despite the conviction, the Board should relitigate that issue In
effect, the submission was that the conviction should be accepted
as prima facie proof that the grievor committed the sexual assault
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and that the onus ought to be placed on the unlon to rebut that
presumption The unlon submitted that the fact of conviction
should not be accepted by the Board as proof of the facts alleged
nor should it in any way alter the onus normally applied in a
discharge case The union submitted that as in any other case, the
onus should remain on the employer to prove, with due regard to the
rules of natural justice, the facts reli-ed upon as constituting
just cause for the discipline imposed
After receiving extensive submissions from the parties, the
Board ruled in favour of the union's position By decision dated
October 15, 1996, the Board held that for purposes of the
arbitration before it, the certificate of conviction would not be
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received as conclusive or prima facie proof of the fact that the
sexual assault occurred
Upon ]udlclal review of that decision the court partially
disagreed with the Board's decision In its judgement [Reported at
(1997 ) 32 o R (3d) 572] the court held that "In the particular
circumstances of this case the Board ought to have made it clear
that the convlction would be received and stand as prima facie
evidence of the sexual assault , The court left undisturbed, the
Board's decision to the extent that it refused to accept the
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conviction as conclusive proof of the sexual assault The Court
returned the matter to the Board, but eXgJessly declined to rule
"as to how the evidence at the hearing will unfold or as to the
order of evidence II
When the hearing resumed before the Board, the partles were
in dlsagreement as to the scope of the evidence that may be adduced
by the union in order to rebut the prima facie evidence that arose
from the certiflcate of conviction The employer's position was
that the unlon should be restricted to "fresh eVldence" , l e
evidence that was not available and evidence that would not have
been available to the grievor if he acted with due diligence at the
time of the trial The employer contended that the criminal court
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had decided on the credibility of Mr Wither, the informant, and
that to allow the grievor to seek a second opinion from the Board
would result in an abuse of process It was also suggested that
"issue estoppel" may apply in the circumstances In a decision
dated July 7, 1997, the Board rejected the employer's "abuse of
process" and "issue estoppel" arguments and at p 12 concluded that
"no restrictions should be placed on the sCDpe of the evidence the
union may call in its attempt to rebut the prima facie evidence
that has resulted from the grievor's conviction In the criminal
courts "
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When the hearing was reconvened, the_union agreed to proceed
with its evidence first, without conceding that any legal onus had
shifted to it as a result of the court's decision It was
understood between the parties that any dispute as to legal onus
would be addressed in the final submissions at the end of the
proceeding Seven witnesses, including th~ grievor, were called by
the union After the evidence of the seventh witness had been
completed, the union made a motion for an order that at that point
the employer should proceed with all of its evidence in support of
just cause and the appropriateness of the penalty imposed, without
requlring the union to close its evidence The union then would be
entltled to decide at the closing of the employer's evidence, what
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additional evidence, if any, it ought to call Union counsel
submitted that to avoid any preJudice to the employer, the Board
may allow the employer an opportunity to call surrebuttal evidence,
as it deems necessary This motion was vigorously opposed by the
employer
In denying the motion by the union, the Board In a further
preliminary decision dated March 16, 1998 wrote as follows at p 7-
8
In the Board's Vlew, the position taken In the
present motion by union counpel, that the conviction is
only one piece of evidence, is the very position that
was accepted by the Board, and quashed by the courts
The court made it clear that the uni~n, and the Board,
were wrong in that regard and the court's pronouncement
lS binding on the Board
Given that the union has an onus of rebutting a
presumption that the sexual assault occurred, which lS
the result of the court's judgement, if the presumption
lS not rebutted, the Board will be compelled to
conclude that the sexual assault occurred In the
circumstances, the Board concludes that the employer is
entitled to hear all of the evidence the union has to
offer In its attempt to rebut the presumption, before
it decides what additional evidence, If any, it ought
to call Union counsel appeared to draw a distinction
between the union's obligation to call evidence to
rebut the presumption and the employer's obligation to
call evidence to establish just cause However, in
light of the court's judgement there is no clear
distinction between the two The just cause asserted
by the employer is the alleged sexual assault If the
presumption arising out of the conviction is not
rebutted, the sexual assault, and therefore the just
cause, will have to be deemed proven, whether or not
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the employer adduces further eVldence to support the
existence of just cause
The appropriate evidentiary basis for determination of the rebuttal
of the presumption
As noted, the union led its evidence first Union counsel
contended that the Board should determine at the closing of the
union's evidence, whether it had met its onus of rebutting the
presumption arising out of the conviction If the Board decides
that at that point the presumption had been rebutted, it was
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suggested that the Board should treat the case as any other
discharge case, and put the onus on the_employer to prove Just
cause in the usual manner Employer counsel, on the other hand,
took the positlon that the determinatlon of whether the presumption
had been rebutted ought to be made on the basis of all of the
evidence adduced by the union as well as the employer If the
Board decides based on all of the evidence ~hat the presumptlon has
been rebutted the grievance would succeed If not, the presumption
would be confirmed
The Board finds the union's two-step approach to the issue of
rebuttal of the presumption to be inappropriate As noted earlier,
the Board accepted the union's position that no restriction ought
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to be placed on the scope of the evidence It may adduce In ltS
attempt to rebut the presumption If the unlon's approach lS
followed, it would mean that the Board would be relying on evidence
tendered by the union, without giving the employer an opportunity
to adduce any contrary or conflicting evidence That is simply
not a proper way to make the determination The Board therefore
agrees with the employer that the determination of whether or not
the union had rebutted the presumption must be made at the end of
the case, based on all of the evidence and submisslons
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The standard of proof for rebuttal of the presumption
The parties also disagreed as to the standard of proof the
union had to meet in order to rebut the presumption arising out of
the conviction Reference was made to the following passage from
the Supreme Court of Canada judgement in Regina v Oakes, (1986) 26
o L R ( 4 th) 200 at p 210
Presumptions may also be either rebuttable or
irrebuttable If a presumption is rebuttable, there
are three potential ways the presumed fact can be
rebutted First, the accused may be required merely to
raise a reasonable doubt as to its existence
Secondly, the accused may have an evidentiary burden to
adduced sufficient evidence to brlng into question the
truth of the presumed fact Thirdly, the accused may
have a legal or persuasive burden to prove on a balance
of probabilities the non-existence of the presumed
fact
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The union contended that it should be able to rebut the
presumption in this case by meeting the second of the three
possible standards described by Dickson C J C , l e by leading
sufficient evidence to bring into question the truth of the
presumed fact The employer took the position that the higher
standard in the third of the above standards should be imposed on
the unlon, by requiring it to prove on a balance of probabilitles
the non-existence of the presumed fact
The employer has acknowledged that it had the ultimate legal
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onus of proving just cause in this case as in any other case The
union opposed the third standard in Oakes~arguing that requiring
it to prove the non-existence of the sexual assault on a balance of
probabillties would be inconsistent wlth the Board's finding and
the employer's own acknowledgement that the ultimate legal onus of
proving just cause was still with the employer Counsel submitted
that applying the third standard in Oakes-would result in placing
a legal onus on the unlon, which a union does not have in a just
cause case
The difficulty with union counsel's logic is that it is
premised on a belief that the legal onus in this case has to be the
same as In "any other discharge case' Given the history of this
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case, that simply is not a tenable premise The union is correct
that the collective agreement and the Crown Employees Collective
Bargaining Act require that the employer may only dismiss an
employee for just cause The employer has the legal onus of
proving just cause for dismissal However, the eXlstence of the
certificate of conviction and the presumption arlslng from it must
make a difference as to what the employer has to do to prove just
cause In the usual arbitration the employer has to lead evidence
to establish just cause If it does not, the grievance succeeds
In the present case, the union does have an onus which unions do
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not face in the usual discharge arbitration That onus is to rebut
the presumptlon As long as the presumption remains unrebutted,
the employer can satisfy its onus of proving just cause by merely
relying on the conviction Thus, while the union is correct that
placing an onus on it changes the usual onus in discharge cases,
that is the necessary result of the eXlstence of the conviction and
the presumption arising out of it The Divisional Court has made
it clear that the Board is not entitled to treat this case as any
other discharge case In the face of the existence of the
certificate of convlction
In Hunter v Chief Constable of the West Midlands Police,
(1982) A C 529 (H 0 L ) , the court considered the nature of the
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onus on a defendant who wished to rebut a presumed fact resulting
from a statutory provision, which the court described as follows
Section 11 makes the conviction prlma facie evidence
that the person convicted did commit the offence of
which he was found guilty, but does not make it
conclusive evidence, the defendant is permitted by the
statute to prove the contrary if he can
At p 544 Lord Diplock observed as follows
This wide variety of circumstances in which section 11
may be applicable includes some in which justice would
require that no fetters should be imposed upon the
means by which a defendant may rebut the statutory
presumption that a person committed the offence of
which he has been convicted by a court of competent
jurisdiction In particula0 I respectfully flnd myself
unable to agree with Lord Denning M R that the only
way in which a defendant can do so lS by showing that
the convlctlon was obtained by fraud or collusion, or
by adducing fresh evidence (which -11e could not have
obtained by reasonable diligence before) whlch is
conclusive of his lnnocence The burden of proof of
"the contrary" that lies upon a defendant under sectlon
11 lS the ordinary burden In a civil action proof on
a balance of probabilities, although In the face of a
conviction after a full hearing this lS likely to be an
uphlll task
In the present case this Board has also ruled in a prior
deci.sion, that no fetters should be imposed upon the means by whlch
the grievor may rebut the presumption that he commltted the sexual
assault The Board concludes that, as in the case of a statutory
presumptlon as in Hunter, In the present case, the union must prove
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the non-existence of the presumed fact on the ordlnary burden In a
civil action, l e proof on a balance of probabilities
Employer counsel suggested that the Board ought not flnd that
the unlon had satlsfled lts onus unless the Board finds "an
extremely convincing and cogent piece of evidence" inconsistent
with the presumed fact Counsel relied on the comment by Lord
Diplock In Hunter (supra) that meeting the test of proof on a
balance of probabilities in the face of a conviction after a full
hearing is "likely to be an uphill task" If counsel by his
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reference to "an extremely convincing and cogent plece of
eVldence", was suggesting that a piece of physical evidence
inconsistent with the presumed fact, for instance an alibi, DNA
evidence or a retractlon by the informant, was required before a
flndlng may be made that the presumed fact is rebutted, the Board
rejects that The court very clearly states what the onus on the
defendant is It is "the ordinary burden in a civil action proof
on a balance of probabilities" The reference to "an uphill task"
by the court was not intended to deviate from that It was merely
an observation that in the majority of cases it would be very
difficult to meet the onus of proof on a balance of probabilities
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It follows from all of the foregoing that the task facing the
Board In the present case is to assess all of the evidence before
it, that is the evidence adduced by the union a well as by the
employer If the Board is convinced on the basis of all of that
evidence on a balance of probabilities that the grlevor did not
commit the sexual assault, the presumption arising out of the
conviction would be rebutted and the grievance would succeed If
the Board is not so convinced, the presumption would remain
undisturbed, and the grievance would fail
".
In this regard it must be pointed out that there is a
significant difference between the evidence presented at the
criminal trial which resulted in the conviction, and the evidence
presented to the Board Just to illustrate, at the trial only two
witnesses were called by the prosecution The defence called no
evidence The transcript from the trial indlcates that all of the
evidence was presented before the judge and jury between 2 18 P m
and 3 39 pm, includlng a recess period of 17 mlnutes That is a
period of just in excess of one hour In contrast, the evidence
phase before the Board took approximately 29 full hearing days,
which included the taking of a Vlew of the area in which the
incident is alleged to have occurred The union called eleven
witnesses during its case and one In reply The employer called
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three witnesses The Board's findings must be based on all of this
evidence, to the extent that it regards such to be relevant
To further illustrate the contrast, during his charge to the
jury at the trial, the honourable judge described the position of
the crown to be "that you have the uncontradicted evidence of Mr
Wi th_er which describes the crime charged It is the position of
the crown, as I understand hlm, that to conclude otherwlse
would be to engage in speculation, for the evidence of the witness
was not challenged in any material particular" His honour also
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instructed the jury that it should consider, "whether or not there
has been any suggested motive for (Mr W_~ther ) to falsely C3.ccuse
Mr White" and then observed "I did not hear of any such evidence
of some reason to falsely accuse Mr White" The judge also stated
that the Jury should "conslder the delay In reportlng of the
incident" Then his honour went on to observe that whlle Mr
Wither had not fulfilled his duty to ma k-e a full report to his
employer at the time, he did report "with a comment that day to a
supervlsor to the effect that he did not want to work with the
accused who was "a sick puppy" or the like "
In the present proceeding before this Board, the employer
could not have, and did not, assert the position that Mr Wither's
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testimony was uncontradicted or unchallenged Unlike at the trial,
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the grlevor took the stand to directly contradict Mr Wither's
testimony about the alleged misconduct (hereinafter referred to as
"the shower incident") The grievor and other witnesses gave
testimony designed to contradict almost every aspect of Mr
Wither's evidence The credibility of Mr Wither's evidence about
the shower lncldent was attacked during cross-examination and his
general credibility was put into question through independent
evidence Moreover, unlike at the trial, before the Board there
was evidence led directly designed to establish that Mr Wither may
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have had a motlve to harm the grlevor by fabricating a false
accusation Mr Wither was also cross-examined at length on an
alleged motive Also, unllke at the trial, the supervlsor In
question directly contradicted the evidence of Mr Wither that he
made a comment to the supervlsor to the effect that the grievor was
a "sick puppy"
The failure to call the decision-maker
The employer did not call the member of management who made
the decision to dismiss the grievor, Mr Michael Cillis, the
Administrator of H R C The union inltlally questioned whether it
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was Mr Cillis who made the decision, and if he dld, whether he was
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the designee under the Public Service Act with the delegated
authority to dismiss the grievor The union subsequently appeared
to back-off from those positions In any event, the Board lS
satisfled on the evidence that it was Mr Cil1is who made the
decision and that he had the statutorily delegated authority to do
so
The union, nevertheless asserted that the employer could not
fulfill its obligation to establish just cause without calling the
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decision-maker to testify Union counsel asserted that "every
grievor has a right to confront the perso~maklng the decision to
deprive him of his livelihood" The Board disagrees with a general
proposition that in every dismissal case, the employer cannot
establish just cause without calling the decislon-maker Counsel
did not point to any legal authority for the "grievor's rlght to
confront the decision-maker" The Board does not find such a right
in either the collective agreement or the Crown Employees
Collective Bargaining Act The employer has the legal onus in any
discharge case to establish just cause In certaln cases,
depending on factors such as the nature of the Just cause asserted
and the role of the decision-maker in the investigation that led to
the declsion, the employer may have to call the decision-maker to
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testlfy in order to be able to meet its onus If that is not done,
the grlevance may be successful, not because of the failure to call
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the decision-maker per se, but because of a lack of sufficient
evidence to establish just cause In other cases, circumstances
may be such that the decision-maker may not have any critically
relevant eVldence to offer In support of the existence of just
cause, and it may be possible to establish just cause through other
evidence without the testimony from the decision-maker
The grievor's dismissal was effected by letter dated May 1,
... r
1995, signed by Mr Cillis It reads
On 28 March, 1995, you were convic~d under Section
271 of the Criminal Code of sexual assault of one
of Huronia Regional Centre's clients On 24 April,
1995, you were provlded wlth the opportunlty to
give additional information on this incident
I have concluded that you have violated the
Ministry's Standards of Conduct which relate to
APPROPRIATE BEHAVIOUR TOWARD MINISTRY CLIENTS
This behaviour is unacceptable -and cannot be
tolerated
By the authority delegated to me by the Deputy
Minister under section 23 of the Public Service
Act, I hereby dismiss you for cause In accordance
with Section 22(3) of the Public Service Act,
effective immediately
You have the right to grieve this action pursuant
to Article 27 of the Collective Agreement and
Article 43 1 of the Ontario Labour Relatlons Act
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From the outset, it was clear that the just cause asserted
by the employer was the conduct attributed to the grlevor by Mr
Wither, and that the employer was relying on the conviction as
proof of the fact that the conduct occurred In their agreed
statement of fact the parties have stipulated that "the employer
did not conduct any independent investigation of the allegation
against the grlevor " The existence of tust cause in this case
therefore depends solely on whether or not the shower lncident
occurred as described by Mr Wither The effect of the criminal
conviction of the grievor, as held by the Divisional Court, was
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that a rebuttable presumption carne into eXlstence that the shower
lncident occurred as descrlbed by Mr Wither In these particular
circumstances, as the Board has held previously, the employer can
establish just cause (i e that the shower incident occurred) by
simply relying on the certificate of conviction, as long as the
union does not adduce sufficient evidence to rebut the presumption
For all of those reasons, the Board does not agree with the
union that the failure of Mr Cillis to testify by itself leads to
a finding that the employer has falled to establish just cause
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Assessment of Credibility
In Re Pitts and Director of Family Benefits Branch, (1985)
51 0 P (2d) 302 (Ontario High Court of Justice, Div Ct ) , at pp
311~312, Mr Justice Reid recorrunended that members of
administrative tribunals keep in mind the suggestions with regard
assessment of credibility contained in the following charge to the
jury by a judge of the Supreme Court of Ontario
In weighing the testimony of witnesses you are not
obliged to decide an issue simply in conformity
with the majority of tne witnesses You can, if
you see fit, believe one witness against many The
test is not the relative number of witnesses, but
the relative force of .their testimony With
respect to the testimony of any witness, you can
believe all that that witness has said, part of it,
or you may reject it entirely
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Discrepancies in a witness' testimony, or between
his testlmony and that of others, do not
necessarily mean that the witness should be
discredited Failure of recollection is a corrunon
experience and innocent misrecollection is not
uncorrunon It is a fact also that two persons
witnessing an incident or transaction often will
see or hear it dlfferently Discrepancies on
trivial detail may be important, b~t a falsehood lS
always serious
In determlnlng the credit to be given to the
evidence of a witness, you should use your good
corrunonsense and your knowledge of human nature
You mi g h t , In assesslng credibility consider the
following
The appearance and demeanour of the wltness,
and the manner in which he testified Did
the witness appear and conduct hlmself as an
honest and trustworthy person? It is may be
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that he is nervous or confused In
circumstances In which he finds himself in
r the witness box Is he
a man who has a poor
or faulty memory, and may that have some
effect on his demeanour on the witness stand,
or on the other hand, does he impress you as
a witness who is shifty, evasive and
unreliable?
The extent of his opportunity to observe the
matter about which he testified What
opportunitles of observatlon did he In fact
have? What are his powers of perception? You
know that some people are very observant
while others are not very observant
Has the witness any interest In the outcome
of the litigation? We all know that humanity
is prone to help itself, and the fact that a
witness is lnterested ~in the results of the
litigation, either as a plaintiff or
defendant, may and often does, quite
unconsciously tend to colour or tinge or
shade his evidence in order to lend support
to his cause
Does the witness exhibit any partisanship,
and undue leanings towards the slde whlch
called him as a witness? Is he a relative,
friend, an associate of any of the parties in
thls case, and if so, has this created a bias
or prejudice In his mind and consequently
affected the value of his testimony?
It lS always well to bear in mind the
probability or improbablllty of a wltness'
story and to weigh it accordingly That lS a
sound commonsense test Did hls evidence
make sense? Was it reasonable? Was it
probable? Does the witness show a tendency
to exaggerate in hls testimony?
Was the testimony of the witness contradicted
by the evidence cf another witness, or
witnesses whom you considered more worthy?
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Does the fact that the witness has previously
glven a statement that is inconsistent with
part of his testimony at trial affect the
reliability of his evidence?
After weighing these matters and any other matters
that you believe are relevant, you will decide the
credibility or truthfulness of the witness and the
weight to be given to the evidence of that witness
The B C Court of Appeal in Faryna v Chorny [1952J 2
o L R 354 at pp 356-358 made the following observation
"If a trial Judge's finding of credibility is to
depend solely on which person he thinks made the
better appearance of sincerity in the witness box,
we are left with a purely arbitrary finding and
~ justice would then depen~ upon the best actors in
the witness box On reflection it becomes almost
axiomatic that the appearance of telling the truth
is but one of the elements that enter into the
credibility of the evidence of a witness
Opportunities for knowledge, powers of observation,
judgment and memory, ability to describe clearly
what he has seen and heard, as well as other
factors, combine to produce what is called
credibility Raymond v Bosanquet (1919) , 50
o L R 560 at p 566, 59 S C R 452 at p 460, 17
OWN 295 A witness by his manner may create a
very unfavourable impression of his truthfulness
upon the trial Judge, and yet the surrounding
circumstances in the case may point decisively to
the conclusion that he is actually telling the
truth I am not referring to the comparatively
lnfrequent cases In whlch a witness lS caught in a
clumsy lie
The credibility of interested witnesses,
particularly in cases of conflict of evidence,
cannot be gauged solely by the test of whether the
personal demeanour of the particular witness
carried conviction of the truth The test must
reasonably subJect hls story to an examination of
24
its consistency with the probabilities that
surround the currently existing conditions In
short, the real test of the truth of the story of
a witness in such a case must be its harmony with
the preponderance of the probabilities which a
practical and informed person would readily
recognize as reasonable in that place and in those
conditions Only thus can a Court satisfactorily
appraise the testimony of quick-minded, experienced
and confident witnesses, and of those shrewd
persons adept in the half-lie and or long and
successful experience in combining skilful
exaggeration with partial suppression of the truth
Again a witness may testify what he sincerely
believes to be true, but he may be qUlte honestly
mistaken For a trial Judge to say 'I believe him
because I judge him to be telling the truth' , is to
come to a conclusion on consideration of only half
the problem In truth it may easily be self-
direction of a dangerous ~ind
The trial Judge ought to go further and say that
evidence of the witness he believes lS in
accordance with the preponderance of probabilities
in the case and, if this Vlew is to common
confldence, also state hls reasons for that
conclusion The law does not clothe the trial
Judge with a divine insight into the hearts and
minds of the witnesses And a Court of Appeal must
be satisfled that the trial Judge's finding of
credibillty is based not on one element only to the
exclusion of others, but lS based on all the
elements by which it can be tested in the
particular case
Mr Justice Stephen put it another way He said
(General Vlew of the Crlminal Law 2nd ed , p 191)
'that the utmost result that can in any case be
produced by judicial evidence lS a very high degree
of probability The highest probability at
which a court of justice can, under ordinary
circumstances, arrive is the probability that a
witness or a set of witnesses tell the truth when
they affirm the existence of a fact ' "
--
25
Similarly In Weeks v Wee ks, (1955) , 3 D L R 704 at p
709, Mr Justice O'Hallaran observed
"In such cases a Court must look for the balanced
truth in the corroborative evidence if such exists,
and in any event measure all the evidence
prospectlvely by the test of its consistency with
the preponderance of probabilities in the
surrounding circumstances /I
In assessing the credibility of witnesses in this case, the
Board will be mindful of the foregoing prlnciples
The evidence relating to the shower incident
*-
From the outset, the grievor's position has been that there
was no incident at all in the shower room _involving a resident and
Mr Wither He has consistently alleged that the whole allegation
was a fabrication on the part of Mr Wither After his conviction,
and prior to his discharge, the grievor provided a written
statement dated April 10, 1995 to the employer, alleging that Mr
Wither had concocted the story, and claimed that Mr Wither had
motives for doing so That statement lncluded the followlng
2 Wither's was aware of my involvement in the
Colin Herring Report on the treatment
proposal Wither's took umbrage to this
report Later that year of 1989 we
gathered for a staff meeting in the annex,
Dan Wither made an angry comment to me
about my involvement in the Colin Herring
Treatment Proposal I turned away to avoid
any confrontation Dan Wither then
-
-
26
concluded by saying something about my
being an ex-winky (retarded person living
.~
at the Huronia Regional Centre)
During his testimony in this proceeding also, the grievor
completely denied that there 'Nas any such incident, not even
anythlng resembling Mr Wither's story which Mr Wither could have
misconstrued His position was that Mr Wither's allegation was a
total fabrication
The grievor's convictio'1 and the subsequent discharge by
the employer were based solely on..,the report by Mr Wither that on
April 17, 1989 he witnessed the grlevor sexually assaulting, and
--
making sexual comments about, a female resident of the HRC (At
the joint request of the partles, wherever this resident was
referred to by her first or last names by witnesses or In
documents, that has been replaced by "Ms S" ) Ms S was a
severely developmentally handicapped female Because of her
condltlon she could not communicate and was therefore unable to
provide any assistance before the criminal courts or thls Board, In
determining whether or not the alleged lncident occurred
Mr Wither started worklng as a Resldential Counsellor (RC)
in May 1981 He had worked in different areas of the HRC and had
~
27
experience working with severely developmentally handicapped
residents Effective April 17, 1989 he was transferred to the
building known as Avalon 5/6, which included an area called the
annex The annex housed 5 residents, four males and a female, Ms
S All of the residents In the annex were severely handicapped,
prone to hostile behaviour, and particularly self-abusive Two RCs
worked in the annex on any given shift They were responsible for
looking after the daily needs of the residents such as feeding,
grooming, showering and medications Ms S had a particular
dislike for female staff Partly as a result of this, it appears,
.t
it had been the approved practice for a male RC to look after Ms
S's needs, includlng showering The annex included a shower room
with a shower stall
According to Mr Wither, the shower incident occurred on
April 17, 1989, the very first day he started working in the annex
following his transfer from another area - Prior to that he had
never worked with the grlevor He testlfled that besides having
seen the grlevor at some sports events and having said "hello" a
couple of times, he did not know the grievor On the day in
question when he arrived at work, he met with the Group 3
supervisor The supervisor assigned him to the annex in Avalon
5/6 When employer counsel asked who the Group 3 was that he met
-::-
28
with prior to starting, he replied that it was Leanne Taschereau
When he went to the annex, he met the grlevor They sat and
chatted for a while and then started the daily routine He said
that he and the grievor got residents up, showered them one by one,
and brought them to the living room Mr Wlther testified that
when it was Ms S's turn to be showered, the grievor said that he
would look after that Mr Wither proceeded to the living room and
sat at the staff desk to watch over the other residents
Mr Wither went on to testify as follows "Then I heard my
""
name from the shower area I quickly proceeded to the shower area
I realized that if someone hollers your __name you proceed there
because you don't know if there is a problem with a client Upon
my entering the shower area, Mr White looked at me and gestured at
Ms S He then made the statement, "Have you ever seen such a nice
body" I said "Ah, don't be such a sick puppy" or something to
that effect Mr White then said, "No really Have you ever seen
such a nice body Look at that nlce ass " I replied again, "Don't
be such a sick puppy" Then he reached into the shower stall He
grabbed her by the breast Squeezing it and lifting it up, he gave
it a little shake and said "Have you ever seen such a nice tit "
At this point I said, "You are a fucking sick puppy " I went to
the living area and sat down A little later a client was in the
-
-
29
hallway I looked down the hall Mr White had Ms S out of the
shower and was drying her off He was, in my estimation,
vigorously drying her off between her legs I sat at the table in
the sitting area Later on, Mr White entered the living area with
Ms S dressed He sat down across from me Then he looked at me
and said, "If (Ms S) didn't live here I will marry her " Then he
said he wished that he could adopt her and look after her himself
outside the facility Then we started to do our other routines "
Later during his examination-in-chief employer counsel
~-
asked Mr Wither if he recalled a discusslon that day with
Supervisor, Mr Jack Kilby Mr Wither ~eplied "Yes When Mr
Kilby carne to the annex I told him that Jack White was one sick
puppy and that I didn't want to work wlth hlm anymore " According
to him, he did not explain what he meant by saying that the grievor
was one sick puppy, nor dld Mr Kilby ask for an explanation Mr
Wither testified that he did not mention to Mr Kilby the shower
incident he had witnessed earller that day, although he was aware
that at the HRC there was a policy in effect which required
resident abuse to be immediately reported When asked why he did
not report to Mr Kilby or to anyone else what he had witnessed,
Mr Wither replied, "Because I didn't deem it to be any form of
abuse" When asked if so why he felt the grievor was a "slck
30
puppy" , Mr Wither responded, "Because I didn't feel what he said
~ and did was appropriate It was because of my strict morals I
felt it was a sick joke and I didn't appreciate it" Employer
counsel asked Mr Wither, whether he considered reporting hls
observation of the grievor vigorously drying off Ms S between her
legs He replied, "No Because everyone dries off clients
differently "
Mr Thompson testified that on August 3rd, 1993, Mr Wither
called him from his work location in Avalon 5/6 and wanted to see
.
him An appointment was set for 3 00 p m that afternoon When
they met, Mr Wither stated that he wlshed_to talk to Mr Thompson
"off the record" about the grievor, Mr Thompson responded that
there cannot be off the record discussions, because if what Mr
Wither had to say was serious, the employer must have the ability
to take action Mr Wither appeared to be nervous and anxious
Mr Thompson testified "He then said that when he had been working
with Mr White in Avalon 5/6, Mr White had called him into the
shower room in the annex and made corrnnents about Ms S such as
"Look at the body on her, she's got a body, just look at those
tits " He said that then Mr White touched one of her breasts,
moved back a bit and corrnnented "If she wasn't in here I will marry
her" Mr Wither said that he told Mr White that he was a fucking
31
sick puppy and told him to layoff He said that he had spoken to
.-' Jack Kilby but had not told him what exactly had happened I told
Mr Wither that we will have to involve the Police because in my
opinion it was a clear sexual assault I told him that Scott James
was our community policing officer and that he should speak to him
He said that he'd do that and asked if I would make the
arrangements"
Mr Thompson stated that he then asked Mr Jack Spencer,
another member of management, to join in, and in the presence of
~
Mr Thompson and Mr Spencer, Mr Wither repeated what he had told
Mr Thompson While testifying about Mr2- Wither's conversation
with him, Mr Thompson used notes he had made while Mr Wither was
repeating his information in the presence of Mr Spencer His
testimony is corroborated by those notes
Mr Wither met with constable Scott James and provided the
following written and signed statement dated August 18, 1993
I have worked at the HRC for the past 13
years, as a Residential Counsellor, level 2
I am working at the present time at the
apartments About 3 years ago I was
transferred from Cottage D-2 to the Annex of
the Avalon five and six My first day at
the Annex I worked wlth Jack Whlte I knew
of Jack over the years but was not a friend
or someone I socialized with I knew of him
32
through local sports and knew him to say
hello
,/'
The Avalon Annex had 5 clients They were
disturbed behaviour clients, uncontrollable,
and violent types, self abusive All were
male except for Ms S She is a client that
is very self abusive She punched herself
and bit herself, and usually had to be
restrained
Our shift started at 6 30 a m At about
7 00 am, the clients would be showered,
dressed and ready for breakfast White and I
were the only staff working in the area that
day One of our duties was to shower Ms S
On that day Jack got her undressed and put
her in the shower It's a closet type thing
with a stall and a cupboard on the side I
was dealing with another client and Jack
called to me to come into the shower room I
walked in and Jack was standing outside the
shower stall Ms S was inside the stall
naked Jack motioned towards her with his
hand and said, "Did you ever see such a nice
body" I looked at him and said "Don't be
such a sick puppy" and he reached into the
stall and grabbed her right breast and lifted
it up and squeezed it He said something to
the effect "That's a really nice tit, look at
it" I looked at him and said "Don't be such
a sick puppy Jack and I left the room I
went to the sitting area He came in later
with Ms S She was dressed and sat down on
a couch Jack sat down at the opposite end
of the table I was sitting at and said that
if she wasn't living here I'd marry her
tomorrow I said again that he was a sick
puppy I got up and prepared to serve
breakfast On other occasions he commented
that he would like to adopt her, take her
home and care for her At the time I didn't
report the incident because I really did not
know that what he did could constitute sexual
abuse I read in the paper that Jack had
33
been charged with sexual assault and the
incident from 3 years ago carne back to me
,-/ I reported the incident to Mel Thompson and
Jack Spencer on August 3, 1993
The transcripts of his testimony at the preliminary hearing
held on June 24, 1994 before the Ontario Court (Provincial
Di vision) , indicate that in chief Mr Wither testified that the
grievor took Ms S into the shower room and that he went out to the
kitchen area Then he is quoted as follows
Mr White called my name to corne down to the
shower area and when I stepped into the
shower area he looked at me and commented on
(Ms S' s) body and how nice he thought it
was Then he reached out and he grabbed her
by the breast, squeezing it, lifting it up
and telling me 'how nice her ti"L was' and at
this time if I am not mistaken I kind of
replied 'that he was a sick puppy' and
started to leave and which then he said,
'No, really, like she has got a nice body on
her, she has got a nice ass on her , and I
proceeded out of the area at that tlme
When crown counsel asked whether he reported his
observations at the time, Mr Wither replled
No, I didn't actually report the
actual incident What I did was made
a comment to my supervisor, , that I
didn't particularly care to work with
Mr White any more and I just thought
he was one sick puppy' , is about what
my words actually were to my
supervisor at the time and
commented on some of the other
34
remarks that he kind of made but not
the actual incident itself, no
~
When asked whether he reported to the police at the time,
Mr Wither stated
At that time I did not sir At that time I
did not constitute what Mr White had done
as an abuse type of situation I never had
any knowledge at that time about this I
kind of took it as if he was trying to
impress me or just being a jack ass
basically is what I told somebody else at
the time
The grievor's trial took place on March 27 and 28, 1995
.
before the Ontario Court (General Division) with judge and jury
The transcript contains the followin-9 from Mr Wither's
examination-in-chief
Q OK All right So you're in the
living room portion as I understand
you, and as far as you know Mr
White's down at the shower room with
Ms S Tell me what happens next,
Please?
A Well I'm sitting there and because
I've worked so many years with
disturbed behaviours and that, almost
ten years with disturbed behaviours,
I-Mr White hollered out my name and
when you're working with disturbed
behaviour as soon-soon as somebody-
one staff calls another staff's name
then you rush right, right away
because you don't know what-what is
happening You know, they could be
ripping' the place apart or whatever
-
.-
35
Q Right
A So I was goin' to what I thought was
Mr White's assistance and when I
entered into the shower room area,
Ms S was standing in the shower, In
the-kind of huddled in-in the corner,
JOU know kind a whining a bit You
know, like a moan or and that's just
normal for Ms S
Q Right
A That's nothing And Mr White turned
to me at that point and he says
"Have you ever seen a body like thls
before Like isn't that a nlce
body ,
THE COURT Just a second, please Okay, Mr
Wi ther, Yes
.:-
A At that-at that statement I kind a
said something to the effect of well
you're such a sick puppy or~omethlng
like that And then he reached out
in-into the shower staff and grabbed
Ms S by her breast, squeezed it,
lifted it and give it a little shake,
and he said "Have you ever seen such
a nice tit in all your life?"
THE COURT Just a second
MR MCCREARY Thank you, your H-onour
Q Let me ask, was Ms S wearing any
clothlng at this point?
A No, she was totally nude
Q Was the shower on or
y Yes
Q off?
A The shower was on
Q On
36
A Yes
Q Was-and did you say anything when he
made-when he did that and made that
comment to you?
A I made a rhetorical remark to him
Q What dld you say?
A I basically called him a sick puppy
or somethin' to that effect err I
might have used some slang I've
been noted for that on many times
Q sorry, you're noted for that?
A for swear in' at somebody
Q Right
A when I don't-and that's probably
what I used, is some sort of a slang
word or somethin' 4" ,
Q Okay What
A Do you want me to say pret~L well?
Q If you-if you remember what you said,
you tell us what you sald
A I just looked at him and he says
(sic) , oh, why don't you just fuck
right off or somethin' to that effect
and started to walk out and he said
no, really like-like she's got a
really nice body like look at the ass
on her he says
Q Right
A And at that remark I looked at him
again and I repeated oh, fuck off and
I walked out of the room and up in
and sat in with the clients again
Q Right
A And there was a short-a short time
later Jack comes walkin' out and with
Ms S and Ms S went and sat down on
the couch and Jack sat down the other
37
side of the table from me and
commented on-on _f Ms S dldn't live
there or some dang thing that there
did-he-he'd like, he would like to
marry her or adopt her and take her
home and care for her or whatever and
I just klnd a blew it off at that
point, and just figured
Q Right Okey Okey What happened
next then during-during the course of
your shift this morning I mean are
you all in the living room. at this
point as you're telling him?
A Yeah, we are all in the living room
at that time That-we were goin' to
serve out breakfast and that and said
that, you know, sat at the table
I'd dish out breakfast, have the
clients come and sit at the table and
that and watch them that they're not
tryin' to steal food off of each
other
--
Q Right
A and dlfferent thlngs and
Q and then did the-the balance of your
shift just continue uneventfully or?
A The balance of the shift what went on
In normal realm, as far as I was
concerned
Mr Wither's evidence relating to his coming forward in August 1993
Mr Wither did not explaln to Mr Thompson, why and how he
came to report an incident he had witnessed 4 years earlier Nor
was he asked by Mr Thompson to explain In his statement to the
police, he simply wrote "I read in the paper that Jack had been
charged with sexual assault and the incident from 3 years ago came
-.:-
38
back to me" At the preliminary hearing, crown counsel asked him
what caused him to report when he dld HlS reply lS recorded In
the transcript as follows
Well, I kind of thought about it
periodically whenever 1 seen Jack and when 1
picked up the paper one day and I went and
read the article in the paper that Jack had
been charged with a sexual assault charge
then everything just kind of came to me all
at once and in the meantime, prior to this,
1 got involved as a volunteer at the
probation, with the Probation Office and
become a probation officer and then due to
the fact that 1 started learning about
different sexual abuses and that throughout
the office because we get people at the
probation Office on se~ual offences I read
up some articles and that and when I picked
up the paper and 1 read about Mr White it
just, like these bells just wE21t off in my
head and that and 1 just know, you know,
kind of, 1 thought "Okay, this lS it II and I
found I just couldn't, I did a lot of
serlOUS thinking about it and 1 just
couldn't live with myself to let it go by,
so this lS why 1 stepped forward and
reported it
During cross-examination, Mr Withe-r stated "1 just thought
it was him just trying to impress or joke around or whatever, that
is the way I took it and then 1 let it kind of lie after that,
Sir II
Mr Wither's testimony-in-chief on this point at the trial
lS recorded as follows
-:
39
Q Did you at some point report it?
A Yes, I dld, Slr
Q And when was that?
A I reported at a later date when I
plcked up the newspaper and I read a
newspaper I read an article in the
newspaper and all of a sudden all
these bells and whistles went off
lnto my head and that and holy gees,
you know, here could have an abuse
thing in our hands here and I went
home and I discussed it witp my wife
and stuff, and I sat and said okay I
gotta go and bring this forward
because I'm really positive we've
got, you know, this was classified as
abuse
...
In the present proceedlng, Mr Wither was asked by employer
counsel to explain what led him to repor! the incident In 1993
His reply was "I was standing in the apartment A staff came in
and pointed out an article In the newspaper that Jack White was
charged with sexual assault on a 5 year old girl Then all the
bells and whistles started to go off, as to jarring my memory over
the incident I thought about it for may be 15 minutes and then I
called Mr Thompson and asked to see him II Mr Wither identified
an article from the Orillia Packet and Times of July 29, 1993,
which had been filed as an exhibit, as the article he had read
The article in question was very brief and it read
Man charged in 1982 assault
- -
40
An Orillia man has been charged In
connection with a 1982 assault on a five-
year old girl, city policy said
Charged with indecent assault lS Jack White,
43
White is to appear In Orillia Provincial
Court, Aug 16
Then the following exchange took place
Q What do you mean bells and whistles
started to go off?
A It jarred my memory of the lncident
in Avalon S/6 with Ms S
Q You hadn't reported at the time-why?
A Because at the time I didn't deem it
to be assault
~-
Q Then why report row?
A Since then I had joined the probation
office One of my cases was a S3
year old man charged wlth sexual
assault on a girl I tried to read
up so I can help the client I got a
bit of knowledge about sexual
assault So I regarded it as sexual
assault
Q What did you read to come to that
conclusion?
A I recall a specific pamph-let or a
series of pages that had to do with
child molestation How it is kept
secret The chlld lS told to keep it
a secret An article of that nature
Mr Wither stated that he could not recall who pointed out
the newspaper item to him Later during the examination-in-chief
the following ensued
~~
-
-
41
Q Did you discuss 'tlhat you saw with
anyone before you called Mr
Thompson?
A No I didn't
Q Did you meet with Mr Thompson?
A Yes
Q How long after you called?
A Within 10-15 minutes
Q Did you discuss with anyone before
you met with him?
A Absolutely not
Later on Mr Wither was asked to explain how he could have
called Mr Thompson immediately ugon reading the newspaper article
when the newspaper was dated July 29th and he had called Mr
Thompson only on August 3 rd He replied that when it was shown to
him by the staff member, the newspaper was a few days old
Mr Wlther is the only person claimlng to have witnessed the
sexual assault in question Apart from Ms S who could not be of
any assistance to the court or to the board, the only other person
placed at the scene of the alleged incident is the grievor Since
August of 1993, Mr Wither has asserted that an lncldent occurred
in the shower room on April 17, 1989 He had the opportunity to
describe the incident on 5 separate occasions, and did so He
described the incident to Mr Thompson and Mr Spencer on August 3,
42
1993 A few days later he gave a written statement to the police
Then he described his observations during testimony at the
preliminary hearing on June 24, 1994 and at the trial on Mai:'ch 27,
1994 Finally, he testified before this Board in November of 1998
His account on each of these occasions has been set out above
The union attacked Mr Wither's credibllity on a number of
fronts A mountain of evidence was tendered in an attempt to
discredit him generally, and particularly with regard to this
alleged shower incident I will not review all of the evidence and
~-
argument presented Instead, I will only review those areas of the
evidence and argument, which I found to be relevant and of
assistance, and upon which I have relied In order to assess
credibility
The grievor commenced working at the HRC in May of 1970 as
a RCl After completing the Mental Retardation Course, in March of
1973 he was promoted as a RC2 From May of 1970 until his
discharge in November, 1993, he continuously worked at HRC except
for a period of some 4 months In 1984 A number of performance
evaluations for the grievor were filed In evidence All of them
were very positlve and gave no indication of any problems or
concerns about his behaviour, sexual or otherwise
-
-
43
The grievor testified that he first met and worked with Ms
S early In 1985 when he was assigned to Area H Then In April
1985, Ms S and several other residents were moved to the annex and
the grievor was also assigned to the annex At the time Ms S was
kept on 4-point bed restraints, which were removed only to allow
her to be fed, bathed and to be walked for exercise The grievor
testified that he concentrated on establishing a good rapport with
Ms S with the goal of getting her off the restraints It took a
while, but he was successful After relocating in the annex, Ms
S continued to improve
~
The grlevor testified that he did-1lis best to treat Ms S
with dignity On his own initiative he got a house coat at the HRC
Clothing Store and had her wear that while going between her bed
room and the shower room, so that she did not have to walk naked in
front of the other male residents He continued to care for the
annex residents until late 1989 when the employer decided to
relocate Ms S by herself to an area called the apartment The
grievor's supervisor, Mr Jack Kilby decided to transfer the
grievor also to the apartments so that he could continue to care
for her Mr Kilby testified that he did that because no one had
ever raised any question or concern about the way the grievor
--
44
treated and cared for Ms S, and he felt that the grlevor was
carlng for her very well
Mr Colin Herring was a RC2 working full time from 1981 to
1992 He testified that he worked with the grievor since he
transferred to the annex in the spring of 1985 Since then he had
amplB opportunity to observe the grievor interacting with clients
in the annex When asked to describe the grievor's style, Mr
Herring stated that the grievor addressed clients by their first
name, was respectful and caring, but firm when needed He
.,..
testified that he has never heard the grievor use profane language
towards clients or staff When asked to describe how the grievor
treated Ms S, Mr Herring said, "I felt Mr White treated her very
well, respectful the way he spoke, used her first name, his tone of
voice communicated respect and care I perceived he had a good
relationship with her " He had never heard the grievor use profane
or inapproprlate language towards Ms S He felt that when
showering Ms S, the grlevor treated her wlth respect and took
extra care to treat her wlth modesty The grievor was the only
staff to dress Ms S in a house coat, when walking her to and back
from the shower room Based on his observations, the grievor
treated all clients in a professional manner, caring but firm as
required He did not ever feel that the grievor paid undue
45
attention to Ms S as compared to other residents Mr Herring
testified that when he heard about the charges laid against the
grievor for sexual assault of Ms S, he found it "pretty
incredible" For a period Mr Herring had boarded wlth the grievor
and knew him well He testified that the conduct attributed to
the grievor by Mr Wither was totally out of character Mr
Herring testified that he had never heard the grlevor use sexual
language or lnnuendo even In humour or as a joke He had never
heard the grievor use words like "tits" and "ass" or refer to
anyone's body in a sexual way
r
The union also called Ms Jackie _~ Thompson, who had been
employed at HRC from 1964, approximately 19 of those years in a
management position as RC4 The grievor worked directly under her
for some 8-9 months In 1985 During this time the grievor cared
for several residents including Ms S She regularly observed the
grievor perform his dutles Ms Thompson was asked to describe the
grievor as an employee She responded "An excellent worker
Clients were well attended to Notes were always kept Always on
time Stayed late often Very dependable Did e,<tra work if
asked" She testified that she had no concerns and heard no
reports of any concerns about any inappropriate touching or abuse
on the part of the grievor She observed that he treated clients
46
most caringly, and always talked to them as human beings and
equals Because he respected them, they respected him She
particularly noted that Ms S trusted the grievor She stated that
she had never heard the grievor use profane, obscene, callous or
abusive language
Mr Ken O'Brien was employed with the Ministry since 1970,
working in various Ministry facilities including the HRC Between
1980 and 1992 he was a shift supervisor (RC3) at the HRC In that
position, for approximately 1-1/2 years between 1987 and March
~-
1989, he was the grievor's immediate supervisor in the annex Ms
S was a resident in the annex at the time Mr O'Brien testified
--
that the grievor had a good relationship and rapport with Ms S,
and that he had no problems whatsoever with the way the grievor
performed his duties and treated clients He testified that he
also coached hundreds of kids In baseball with the grievor Either
at work or during sports activities, he never had the occasion to
hear the grievor use obscene, profane or derogatory language
Mr Lorne Carson was also a witness testifying on behalf of
the union He was not an employee of HRC, but as a TV technlclan,
for a long time he had been visiting the HRC to repalr and malntain
the many TVs In the facility He made acqualntance wlth the
47
grievor and knew him for many years According to him, he never
heard the grievor use sexual, derogatory or disrespectful language
He never heard him swear He stated that the grievor was "very
clean about his language" and did not engage in sexual innuendo or
jokes even in situations where Mr Carson himself may have done so
Mr Gary Gorr worked at the HRC from 1967 to 1968 and then
again from 1970 until his retirement in July 1997 He worked as a
RC for a perlod, before assuming the position of Staff Training
Officer Mr Gorr testified that during his tenure as a RC, he
:
would see the grievor at work on most days When asked to describe
his impression of the grievor's interactio~with clients, Mr Gorr
stated "He cared quite a bit about the clients He was
conscientious and devoted If they had needs, he would attend to
that - about how they dress, the right size He was very concerned
about how they felt If they get excited he would attend to them
Overall a very conscientious staff - almost like a parent to them"
He sald that he had never even heard the grlevor curse He always
used proper language and taught clients to do the same and to
observe manners He never heard any negative report from other
staff about the grievor either
48
Mr Jack Kilby, a member of management as a RC4, was also
called by the union He testified that the grievor worked in the
annex under him Previously in 1971 or 1972 Mr Kilby had occasion
to supervise the grievor when the grievor worked at the HRC as a
student Mr Kilby testified that he had no problem or concerns
about the grievor's work
Mr Mel Thompson, a member of Senior Management and the
Manager of Residential Services, regularly attended this hearing as
an advlsor to counsel He testifled in chief that he knew the
'"
grievor since 1970 When employer counsel asked for his
professlonal opinion of the grievor, he ~eplied, "very reliable,
competent, very committed to the job " He testified that he had
taken the MRC course at the same tlme with the grievor, he had been
the service manager responsible for supervising the grievor, he had
regularly observed the grievor working with clients, he had
reviewed the grievor's performance eval-uations and had often
chatted with him Hls oplnlon was based on all of this experience
Mr Thompson testified that the grievor had a reputation for
working well with difficult clients
During Mr Thompson's cross-examination the following
exchange took place
-
-
49
Q Prior to August 1993 had you ever heard
of any concern about Mr White's
treatment of residents?
A No
Q Had Mr White ever given you any concern
about his dignity towards residents?
A No
Q Was your impression of Mr White in that
regard neutral or positive?
A Positive
Q When you decided in late 1989 to send
Mr White to work with Ms S In the
apartment, was it based on the rapport
he had with her?
A Yes
~-
Q Dld any member of management say "Heyl
That's not a good idea" or express any
concern whatsoever?
--
A No
Q In asslgnlng Mr Whlte to any work over
his 25 years at the HRC - ever heard of
any concern relating to residents' well-
being or dignity?
A No
Q In all the years you knew him, ever hear
him use profanity?
A No
Q You consider yourself a friend of Mr
White?
A Yes
Q Still, if you had heard him use
profanity you would tell the Board?
A Yes
Q You dealt wlth Mr Whlte outslde work
also?
50
A Yes
Q You had a family member coached by him?
A Yes My son attended his baseball
clinics
Q Held in the community for children and
young adults?
A Yes
Q Have you watched Mr White run his
clinics?
A Yes
Q Ever heard him use profane language
while coaching?
A No
Q Therefore agree that- the words alleged
by Mr Wither - Tits, ass and nice body
- are wholly uncharacteristic for Mr
White?
-~
A The words "nice body" is not
uncharacteristic for anyone The other
words I've never heard him use those
words
Q The alleged physical actions - grabbing,
shaking, squeezing a breast - have you
ever seen Mr White interact with a
resident In a physically demeaning
manner?
A No
Q In your experience - do you agree that
the alleged acts are not consistent with
your experience of Mr White?
A Yes They are not
The union led evidence to the effect that around the same
time the charges relating to Ms S were lald agalnst the grlevor,
:
51
he also faced criminal charges arising out of two separate
allegations of sexual assault unrelated to his employment In one
he was accused of sexually assaulting a young boy, and the other a
young girl It was a newspaper report relating to the latter
charges, that Mr Wither clalmed led him to report hls 1989
observance to the employer in August 1993 The uncontradicted
evidence is that the grievor was acquitted of both of these
charges The union led evidence to suggest that the complaints
which led to those charges being lald were part of a consplracy
connected to the HRC More saecifically, the suggestion, as I
...
understood it, was that those accusations were made in retaliation,
because the grievor had testified for the ~own in a trial where an
ex-employee of HRC was charged with second-degree murder of a
resident It suffices to say that even if the union's suggestion
lS correct, - but the evidence does not allow for any such finding
- there is no evidence linking any of that to Mr Wither or his
allegation
The grievor testlfied about his general good character in the
community and at work By so doing he exposed his character to
attack However, as the evidence indicates, every witness who h~d
worked or was associated with the grievor had nothing negative to
say about the grievor's character Every one of them, includlng
-
-
52
members of management, specifically testified that the conduct and
language attributed to the grievor by Mr Wither were not
consistent with their own exper~ence with the grievor It was open
to the employer to call contrary evidence, but none was offered
The one exception was Mr Wither Mr Wither not only testified
about his observations during the shower incident, but on two
occasions volunteered the evidence that "everyone had a Jack White
story to tell" and specifically suggested that the grievor had a
reputation at the HRC for having a sexual or romantic attraction
towards Ms S That stands in sharp contrast to the testimony of
.:
all of the other witnesses
--
Evidence relating to a motive to fabricate
As noted, in his statement to the employer on April 10, 1995,
the grievor claimed that Mr Wlther took umbrage to his involvement
In the "Colin Herring Report" He wrote in his statement to the
employer, that in late 1989 Mr Wlther confronted him and made an
angry comment, and claimed that Mr Wlther had a motive to harm him
by fabricating a false accusation
Mr Colln Herring, a RC2 and co-worker of Mr Wither and the
grievor, testified that he had concerns about the treatment of
resldents in the annex He was troubled by the "type of staff"
::c
53
employed in the annex and about the training of staff He wrote to
the Director of Staff Training about his concerns Mr Herring
testified that many of his concerns resulted from working w_th Mr
Wither for about 2 months Mr Wlther's language and tone of voice
was ~roubling to Mr Herring Mr Wither gave directions li<:e "get
off your ass" and was disrespectful to clients He decided to
address his concerns by writing a report Mr Herring testified
that by this time he had worked with the grlevor for 3-4 years He
had a respect for the grievor's appreciation of the treatment
theory and practice The grievor by then had worked at the HRC for
s
about 20 years He had observed that the grievor had a very good
rapport with clients Therefore he felt he should lnvolve the
grievor in preparing the treatment proposal ("The Herring Report/)
The Herring Report was submitted to the then Administrator of
the HRC Ms Margaret Gallow, on September 19, 1989 It was a
comprehensive 72 page report with many attachments On the title
page both Mr Herring and the grievor appeared as co-authors Mr
Herring testified that he was the primary author of the report, but
the grievor's name appeared as a co-author "because he partlclpated
In the authorship by relatlng his experiences in a treatment
context and reviewing and commenting on the contents of the report
-
-
54
as it was written " The Report included a "Proviso" at the end
It reads in part
XIV Proviso
Since Mr Herrlng has been primarily
responsible for the ccmposition of this program
proposal, except for the first draft outline
and Mr White's contribution of vitally
significant observations, he must assume major
responsibility for the contents contalned
herein
Mr White has participated In an on-going
content reVlew during the evolution of the
document He considers its import, if not
every 'j ot and title' , to reflect his own
commitment and conviction
~.
The report received a very negative reaction from management
The employer was concerned that the reporE disclosed confidential
and personal information and was critical of workers as well as
members of management Even though no names were used, the
employer felt that a reader would be able to identify some of the
people being discussed in the report Mr Herring testified that
his supervisor Mr Kilby met with him and informed that two co-
workers, Mr Wither and Mr Wayne Murdock were personally offended
about some of the contents In the report because they saw
uncomplimentary references to them in it Mr Herring was told
that he should apologize to the two co-workers This meeting was
followed by a non-disciplinary letter of counsel to Mr Herrlng
~
55
Mr Herring testified that a few days later he received a
call at home from Mr Wither Mr Wither was very angry, dismayed
/ and agitated Mr Wither told him that he could not believe what
"You and Jack had written" and said that "everyone will recognise
it is about me" , and also said that he was "tempted to sue for
slander " Mr Herring tried to explain that he had not intended to
target Mr Wither personally, but Mr Wither abruptly hung up
According to Mr Herring, following that both Mr Wither and his
wife, who also worked at HRC, avoided him and even would not look
at him when passing by He perceived it as extreme hostility
",.
The grievor testified that sometlme_date in 1989 he was with
a client in the living room of the annex just before going for a
ward meeting Mr Wither came in and lashed out at him He
testified, "He came in and jumped on me Called me an "ass hole"
and everything I started to walk away He called me "a fucking
winkie" and said that he was going to sue- me for slander and all
kinds of stuff " According to the grievor, Mr Wither was
belligerent and very forceful and used foul language during this
verbal outburst Later, he round out from Mr Kllby that Mr
r
Wither was upset about the Herring Report, because he felt that it
made derogatory references to him
!
-
56
The evidence is that following the release of the Herring
Report, Mr Wither wrote the following memorandum dated October 21,
./ 1989 to Ms Gallow, the Administrator of the HRC
Dear Mrs Gallow,
I am writing to express my thoughts and
concerns Re A TREATMENT PROGRAM PROPOSAL FOR
HRC BY COLIN HERRING AND JACK WHITE I feel
that I have been personally attacked,
f slandered and insulted by this ctocument The
so-called proposal contains several passages
that related to myself and others that I work
with It is full of innuendo and accusations,
lies and misconceptions Also contained in
this document are several private and personal
passages about the residents in the Annex The
, authors even had the ga1l to reproduce several
~;
~ documents stamped "CONFIDENTIAL REPRODUCTION
~,
, NOT PERMITTED" All of this information being
t
'. compiled by Mr Herring durin~ his working
~
f. hours on his home computer (using electricity
~
[ at HRC) and thereby neglecting the residents he
f.
r claims to be trying to help
f.
[
, I am unable to put into words my utter
f
f disgust with these two men, and what they have
,
! done If it is possible I intend to pursue
t legal counsel to sue for slander
~
I I would appreciate your attention to this
I matter I feel that Mr Herring and Mr White
f owe myself, my supervisors, my co-workers, the
J annex residents, in fact the majority of the
people here at HRC, an apology
t
~
r
I, I anxiously await your response on this matter
t
f
!
f
~
t
r
r
,
~.
t
t
I
-
57
During his examination-in-chief, Mr Wither stated that he
reacted to the Herring Report with anger because certain sections
~ in it upset him He went on to explaln that he had related two
personal stories to Mr Herrlng Mr Wither said that, Mr Herring
had reproduced these stories in his report, but "twisted the
stories around and added false details n Also Mr Wlther testifled
that the report had an attachment critj.cizing the hiring of
"hulking ex-motor cycle-gang, aggressive personality types" at the
HRC He felt it was a reference to himself because he was big and
had been riding a motorcycle for over 30 years
..
When asked whether there was anythin~else in the report that
upset him, Mr Wither referred to sections of the report and said,
"what he is saying is that when he and Jack White were on holidays,
I and Wayne Murdock were not doing our job There's no proof of
that Its fabricated They were saying they were the only two who
can do their jobs and that the rest of us were a bunch of jerks II
Mr Wither testified that in those passages, a reader could most
definitely identify the references to him, although no names were
mentioned
Mr Wither testified that he was angry at Mr Herring and
called hlm He did not deny Mr Herring's testimony about that
-
-
58
confrontation When asked whether he also called the grievor, he
sald "no" When asked why not, he said, "Because I was not mad at
/ him But I was furious with Mr Herring " Employer counsel asked
him to then explain his reference to his "utter disgust with these
two men" in his letter to Ms Gallow He replied, "I had to do it
that way because Jack White's name appeared It said "by Colin
Herring and Jack White" If Mr White wanted to be involved, when
the shit hit the fan I had to put him down" However, later in the
testimony, Mr Wither testified that in the letter to Ms Gallow he
was expressing his disgust with Mr Herring and the grlevor, but
r. ..
said "Its different to be disgusted with someone and being angry at
someone "
--
Then the following exchange occurred
f
i Q Do you recall any discussion about the
t
report?
r
i A Yes We had a meeting in the annex to
t
, discuss certain points in the report
r
f,
~ One was that part where -they were
f
! accusing me and Wayne Murdock of not
f
~ doing our Job
[ Who are "they"?
,. Q
[
" A Mr White and Mr Herring
,
,
r
,
I
t Q What was your reaction towards them about
f
~ that part of the report?
f
f A They had no proof They didn't know what
[,
, they were talking about But I wasn't
I angry about that It happens all the
f
f
~
f
!
r
r
f
~
-
-
59
time at the HRC You discuss it and its
over with
,f'" Mr Wither was asked whether he recalled exchanging words
with the grievor about the report either before or after this
meeting He replied "I have no recollection of that " Mr Wither
testified that he had planned to "go after" Mr Herring However,
Mr Kilby informed that "the report was going to be destroyed and
that management wasn't going to take any action whatsoever" That
made him very happy, and except for his decision not to ever talk
r Herring again, "it was case closed"
to Mr
~.
Under cross-examination, Mr Wither _~reed that it would make
him angry if someone said that he should not be believed He was
then asked if it would equally bother him if someone said that "You
are lazy and lncompetent in your job" He replied "No because it
may be true Sometimes I am lazy" Union counsel pointed out that
in his letter to Ms Gallow he had referred to utter disgust about
what "these two men" did, that durlng his testimony he had made
i several statements like "they did not know what they were talking
~
l
"
~
[ about" and that "when the shit hits the fan" the grievor would be
r
I
I involved also He asked whether he was disgusted with both Mr
~
! Herring and the grievor Mr Wither agreed he was But he would
r
[
! not agree that "disgust" was a strong feeling Mr Wither denied
r
!
f
,
t
t
~
~
~
60
that he had any exchange with the grievor about the report He
said that the grievor's testimony in that regard was a total
,/ falsehood He agreed that at the ward meeting one of the issues
that was discussed was the allegation In the report that the
treatment of residents by him and Mr Murdock was inappropriate,
that In the report Mr Herring and the grievor were alleging that
they were not feeding clients as they were supposed to He sald
that at the meeting he made sure that Mr Herring and the grievor
knew that they in fact did the feeding appropriately and that the
accusation was a pure fabrication When asked if the report was
" ~
about who was giving good care to residents and who was giving bad
care, Mr Wither replied "They were sayi~ only they were giving
good care, that everyone else was not" He agreed that he felt
that both Mr Herring and the grievor held themselves out as
"Knights in shining armour" who could not do any wrong, and that
they put down everyone else including himself He agreed that the
report was critical of the HRC for hirlng "hulking ex-motor bike-
gang types" like himself However, under repeated cross-
examinatlon, Mr Wither was adamant that despite all of that he had
no anger whatsoever towards the grievor as a result of the Herrlng
Report Counsel pointed out that he had stated in the letter to
Ms Gallow that he had utter disgust towards "both men", and asked
if he then lied to Ms Gallow Mr Wither said he had not,
--
61
because he had dlsgust towards the grlevor, but more so towards Mr
Herring Then counsel pointed to Mr Wither's testimony at the
,- preliminary hearing, where he had said "my frustration was directed
to Mr Herring, nothing to Mr White whatsoeveru, and asked whether
that testimony then was untrue Mr Wither responded that he had
written that he was disgusted about both men, only because the
grievor was named as an author He would not agree that what he
told the preliminary hearing and what he wrote to Ms Gallow were
contradictory
.~
Mr Wither was asked whether what he observed in 1989 created
a great deal of animosity towards the gri~vor His response was,
"No I don't hate Mr White I dislike Mr Whlte I hate what he
did I feel sorry for Mr White But he has to live with what he
has done I don't feel sorry about that U He agreed that between
1989 and 1993 he had told a number of people that he did not like
the grievor When asked whether he told afrY of them why he did not
like the grievor, he said, "If I say I don't like you, I don't have
to explain U When asked why not, he said "I don't know Its not
anybody's business why I don't like Mr White Specially because
it was out of my mind to begin with U
-'
62
Mr Wither reiterated his evidence that on the day in
question after the shower incident Mr Kilby came into the annex,
,/ that he told Mr Kilby that the grievor was a sick puppy and that
he did not want to work with him When counsel asked why he did
not want to work with him, he replied "Because I just didn't want
to work with him I didn't care for him If I had to, I will work
with him It is just like others I don't like There are others
who don't like me also" When asked whether he gave a reason to
Mr Kilby for not wanting to work with the grievor, he said, "I
don't have to explain unless directly asked I wasn't directly
.,. ,-
asked So I wouldn't volunteer II
~
Mr Wither's testimony in this regard is directly
contradictory to the evidence of Mr Kilby Mr Kilby testified
that Mr Wither requested that he preferred not to work with the
grievor According to Mr Kilby it was not uncommon for one
-
employee to request that he be not scheduled with another employee
who did not get along Supervisors always try to accommodate such
requests and Mr Kilby did so in this case also However, Mr
Kilby denied that Mr Wither stated anything about the grievor
being a "sick puppy" He had no doubt that if those words were
used, he would have made inquiries from Mr Wither as to why, after
-~
63
working just one day with the grievor, he felt that the grievor was
a sick puppy
r'
Mr Wither was asked whether he agreed that he had never
previously told anyone that he observed the grievor vigorously
drying off Ms S between her legs in the hallway, and he agreed
When- as ked why he had not mentioned it to Mr Thompson or the
police, and at the preliminary hearing or trial, Mr Wither
responded, "It never came up because I was concentrating on his
comments and the incident with the breast Then I happened to
- -
recall it here and I mentioned it here n Counsel pointed out to
the transcripts, that at the trial he was specifically asked
whether the rest of the shift went normally after the shower
incident and he had replied that it did He was asked why he did
not mention the towelling lDcident then Mr Wither again replied,
"I was concentrating on the incident with the breast and his
comments n When counsel asked, "So it just popped up in your head
here out of the blue" , he replied, "Yes Just llke that, sir "
When counsel suggested that Mr Wither came up with the towelling
incident here to make the grievor look bad and corroborate his own
testimony about the shower incident, he replied, "That's false
Then I would have told about how a lot of staff laugh at Mr White
for going after Ms S, following her all over They say "there
--
64
goes Jack with his girl-friend" When Ms S went over to the
apartment, Jack was adamant that he was going with her II
V
The failure to report at the time
Mr Wither's explanation during the criminal proceedings, as
well as before this Board, for his failure to report was that at
the ~ime he did not deem what he observed on April 17, 1989 to be
"abuse" The Board has to examine the evidence to see if this
explanation is credible
f
r
i ..,.. ~
! Filed in evidence was a portion of the Ministry "Standards of
!
,
, Conduct" which were in effect in 1989 Its preamble states that
~;
~. ~
&
f
f "the standards are intended to ensure that all employees are aware
l
f, of the expected standards of behaviour In the workplace and the
,
t
t possible results of their failing to meet these standards" It
r,
r
t four step system of progressive discipline for failure
t sets out a
f
[ to meet the standards The standards of conduct were set out under
~
r two headings "Acceptable Standard of Conduct" and "Examples of
1.
[
(. unacceptable conduct" , with listing under each heading The
~ a
~. listings included the following
~
, Appropriate
[ Acceptable standard of 8
conduct behaviour toward
t ministry clients
~
,
~
65
Treating Ministry
clients with
dignity and
respect and in
/ accordance with
Ministry-approved
t r e a t m e n t
techniques
Examples of unacceptable
conduct
... -
Force used in excess of -
approved methods, assault,
degrading treatment,
neglect of clients,
failure to provide proper
service or care to
clients, and any other
form of abuse
and of any
contravention of
9 Reporting of work rules
inappropriate
behaviour toward I m m e d i ate 1 y
ministry clients reporting to the
--
66
supervlsor on duty
inappropriate
behaviour toward a
Ministry client
" d
a n a n y
contravention of
work rules
Failure to report any
contravention of work
rules_ or any witnessed
acts or suspicion of
assault, degrading
treatment, neglect and any
other form of abuse
.M ~
The disciplinary guidelines to the standards stated that
"Failure to report any witnessed acts of ~buse to resldents "
may result in "From a written reprimand up to and including
dismissal /I It also contalned the followlng definition of "abuse"
Definition of Abuse
The unwarranted and/or inappropriate use of
physlcal force, psychological stress or sexual
involvement, or any unwarranted,- inappropriate
act or omission, (including action which leaves
no physical scars, but results in emotional
damage) by staff interacting with residents,
wards and trainees
The HRC's own "Facility Policies and Procedures" which were
also in effect at the time, contained a substantially similar
--
67
definition of abuse It also included the following with regard to
reporting
~ 1 REPORTING INCIDENTS OF ALLEGED/SUSPECTED ABUSE
It is mandatory for all staff to report
any incident of Resident Abuse or
suspected abuse in accordance with PE-
0505-02 which states -
"Employees who witness an incident
of resident abuse and fail tD report
same promptly to senior supervisory
personnel are subJect to
;. disciplinary action "
A number of witnesses testified about the seriousness with
-*"
which the employer treated the issue of resident abuse The
1 grievor testified that all employees werLrequired to review the
t:
! above noted policies and guidelines and to sign to indicate that he
l
,
, had received a copy He testified that employees were required to
r
~..
~
fl be familiar with the definition of abuse The policy was posted at
~
i
r the workplace, and from time to time supervisors and group leaders
r
I brought it to the employees' attention at meetings The employees
r
f were made aware that supervisors were there to assist in applying
I
the definition of abuse According to him, the policy about the
,
,
[ reporting of abuse was kept in the wards, in the office and in the
,.
! procedure manual Employees were well aware that they were
~ required to report abuse or suspected abuse and that failure to do
~
l so would result in discipline He said that the employer gave top
t
f.
--
68
priority to the duty to report abuse That was corrununicated to
staff at ward meetings
./
Mr Herring confirmed that he was very familiar with the
Ministry and HRC policy about abuse He testified that other staff
were also required to be familiar with the policy including the
duty to report abuse or suspected abuse He stated that any
employee witnessing what Mr Wither alleged should have had no
difficulty identifying it as abuse
.....
Mr O'Brien testified that all staff had to be familiar with
the standards and guidelines relating to abuse Every 2 or 3 years
employees were required to review the policy, and the supervisor
had each employee acknowledge that he had reviewed by initialling
When asked whether employees were provided lnformation on how to
identify abuse, he said that every employee had to sign for the
policies He was sure that all staff knew what was inappropriate
behaviour Under cross-examination, Mr O'Brien elaborated that
the requirement to review and initlal the POllCY applied to all
employees and not only new employees He specifically recalled
that once or twice he was himself assigned the responsibility for
getting the staff to review and initial
--
69
Mr Gorr was the Staff Training Officer at the HRC He
testified that in that capacity he did the orientation program for
~ all new staff Both the Staff Training Officer and Human Resources
had to ensure that each new employee was familiar with the
policies He was asked what general directions were given about
what to do if there was possible client abuse Mr Gorr replied
that employees are taught that they should first check it out If
they thlnk there was possible abuse, they are required to report to
a supervisor and let the supervisor decide if it was in fact abuse
~~ -
Ms Margaret Gallow was the Administrator of HRC at the time
of the alleged shower incident She confirmed that new employees
were made aware of the policies during orientation When asked
t "what priority did you place on the obligation of employees to
~ recognize and deal with resident abuse", she stated that she was
very concerned that residents be treated wlth respect If possible
abuse came to her attention, she would -direct the head of the
department to get to the bottom of it
Union counsel put to Ms Gallow, Mr Wlther's version of what
he observed and heard during the shower incident, and asked her to
say, in light of her understanding of the policy in place and the
training staff had, whether an employee would be able to recognize
f
-
70
that as abuse Her reply was "Its inappropriate behaviour Staff
is not required to decide whether it lS abuse If they see
V inappropriate behaviour, staff has to report to a supervisor II She
said that her expectation would have been that the employee would
report to a supervisor and that the supervisor would bring it to
the attention of senior management for a decision
Mr Kilby was the supervisor of both Mr Wither and the
grievor in the annex, and as such part of management He testified
that the policies in question were available to all staff in
i -
! .,.
I binders in each area He stated that under the policy he had
i
I
i responsibility for investigating any report of abuse within his
I
i
i
i
i area According to him, resident abuse and theft had to be the top
,
! priority in terms of conduct that would not be tolerated at the
,
I
~
! HRC As Mr Wither's supervisor, he noted that Mr Wither was
I
! generally not reluctant to ask questions and seek clarification if
r,
,
I
,
,
I,
! he was unsure of something
f.
f.
~
f
r
f
,
r Mr Thompson, another member of management, testified in
~'
f.
,
~
, chief that he also would have expected that any employee witnessing
~
,
~
~
,
l what Mr Wither he to have immediately reported Under
~ says saw,
f
r
,.
I
~ cross-examination, Mr Thompson reiterated that testimony Then
t
'.
i.
f,
r the following exchange occurred
,
r
~
,
~
r
[
,
~
p
L
r
t
--
71
Q You don't qualify that answer by the
state of the employee's knowledge?
A No
V Q Because an employee seeing that should
i know that its abuse?
A Yes
,
Q You expect that an experienced employee
wouldn't have any doubt that it is abuse?
A I would have no doubt
Q An experienced employee would know it 1S
abuse?
r A Yes
[
~
[ Q Fair to say that the employer takes care
~.
, in instructing employees about expected
i
, standards?
~
v
f A Yes
....
~
,
t getting
" Q In fact you ma ke sure by every
t
f employee to sign that they ha~e read and
(,
r
l understood that?
r
f A Yes
!
t Q Tabs B-1 and B-2 are documents where Mr
t
! White has signed acknowledging that?
~. A Yes
,
!
i Q You expect that Mr Wither would also
v
~.
[ have signed similar documents?
! A Yes
r Q You get employees to sign, so they can't
~ later plead ignorance?
r
t A Yes That's part of it It is also a
[, record for us to show that it was given
"
t and discussed
~
~, Q Mr Wither has said that he didn't see
~,
l what he witnessed as abuse - given your
testimony, would you accept his professed
ignorance?
A I don't think I'd accept it
!
I
r
~
,
-~
72
Q Why not?
A If there is a situation that he is not
sure about, you still talk to someone
,,- Q Is that what you train employees to do?
A Yes
Under cross-examination, NIr Wlther agreed that an article
which appeared in the local newspaper from February 1989, some six
weeks prior to the alleged shower incident filed as exhibit #92
came from his files at home He agreed that he read it at the time
it was published and retained it because the article was of
interest to him That article was about charges laid against 3
..,.. ,
RC's at HRC for alleged assault of residents In it HRC
Administrator Ms Gallow was quoted statin~ inter alia, "staff are
under oath to report anything they feel is unacceptable" Mr
Wither agreed that he understood what Ms Gallow had stated when he
i read the article He confirmed his testimony-in-chief that when he
made his observation of the shower incident, he felt that the
f
grievor's conduct was "inappropriate" He also agreed that
"inappropriate" is the same as "unacceptable" He was asked why,
when he had read just 6 weeks earlier what Ms Gallow had said, he
did not report the conduct which he saw as inappropriate His
response was, "I probably forgot"
--
73
Mr Wither was questioned about the content of the two year
MRC course he completed in 1931 Mr Wither was adamant under
cross-examination that it did not include any instructions about
acceptable standards of conduct or what a resldentlal counsellor
should or should not do He insisted that he was not taught that
it was wrong to abuse clients When asked, "so they never told
you its not acceptable to whack a client on the head" , he said
"no" When asked whether there was any instruction about reporting
of abuse, Mr Wither replied that it did not form any part of the
curriculum, and explained that the curriculum at Cambrian College
.....
where he did the MRC, was totally different than at Georgian
College However, when counsel asked, "Then If we get hold of the
Cambrian College 1981 curriculum, it should confirm what you say?",
Mr Wither said, "Yes, or I may have missed some classes"
Union counsel put to Mr Wither, an "Employee Orlentation
Form" , signed by Mr Wither and a supervisor It included a check
list Among the items checked off by the supervisor conducting the
orientation was "Reporting of abusive incidents" Mr Wither
agreed that his signature is intended to acknowledge that he
received the policies checked off Yet, he categorically denied
that he received the policy on reporting of abuse When counsel
asked "Its checked off, you have signed it, but you say you didn't
._-
74
get that policy?", Mr Wither's reply was "Exactly" However,
under further cross-examination, Mr Wither changed his evidence
He sald that durlng orientation "I was given about 10,000 papers to
sign and I signed" He said that he did not recall whether the
policy in question was among the volume of papers he was given He
agreed that he could have received it He conceded that his
initial evidence was mlsleading, but sald, that he did not intend
to mislead
Counsel put to Mr Wither another Ministry document which he
... -
had signed, statlng "ThlS wlll acknowledge that I have read the
following NRC procedures, and they have b~en reviewed carefully "
It included a procedure on "Reports of abuse and unnecessary use of
force " Mr Wither agreed that by signing he had acknowledged that
he had read and carefully revlewed the procedure on "Reports of
abuse and unnecessary use of force " However, he insisted that he
did not read it before signing When cQunsel suggested that he
.
had then lied when signing, Mr Wither said "If that ma ke s me a
liar, then I am" Subsequently, however, Mr Wither on his own
corrected his previous evidence and conceded that it was possible
!
i he signed
l that he did receive the policy in question at the time
,
~:
i and that he was certain he had read it at some point subsequently
r
!
f
, Union counsel suggested to Mr Wither that he had changed his
,
[
i
~.
i,
~.
~.
r
I
~
--
75
previous testimony because he was concerned that he had to admit
that he had lied when he signed the form Mr Wlther disagreed
V According to him, he had made an honest mistake and wanted to
correct it when he realized it Mr Wither was asked whether In
April 1989 he was familiar with the definition of "abuse" in the
guidelines, and he said that he was not When asked again, he said
"I probably had it but probably forgot wha~ it said word to word II
i
I
i
i
!
i THE DECISION
I
i
I
, On a review of all of the evidence, I have concluded that the
I
I ... -
union has more than adequately established on a balance of
i
,
! probabilities that the grievor did not ~engage in the conduct
f
;
~ attributed him by Mr Wither The union has thereby rebutted
~ to
,
,
! the presumption that arose as a result of the grievor's conviction
~
!
~
! The determinative issue was credibility On the basis of the
I
finding
~ evidence, I would have had no hesitation making the that
(
i the alleged conduct did not take place, even if the union had been
~ held to a standard higher than the civil onus I found Mr Wither
[
~ to be not credible in the extreme In numerous respects his
,
~
r specific testimony was not believable I shall review the major
r
'c reasons which led me to this conclusion
[
!
~
~
f
t
~.
~
,
r-
,
!
r
~
f
f
!
~.
~,
!
r;
--
76
First, I turn to the issue of motive Mr Wither was not
believable when he took the position that he held no anger or il-
./ will at all towards the grievor, as a result of the grievor's role
in the Herring Report If Mr Wither's only concern about the
report related to the personal stories which he had related only to
Mr Herring, his anger would have been directed solely towards Mr
Herring However, that was not the case The Report was critical
of Mr Wither's work performance and attitude In fact, it
questioned his suitability to be employed at the HRC Mr Wither's
testimony, as well as his demeanor while testifying, made it
....
obvious that he was very angry, even 8 years later, about the
f
criticism in the report of his competency and his sUltability to be
a RC Mr Wither gave no reason why he would attribute these
r criticisms to Mr Herring alone In the proviso to the report, it
l
f was clearly stated that while Mr Herring was the primary author,
f
,
, the of the reflected Mr White's "commitment
~ contents report own
[ and conviction"
1
~
~
f
L
! Before the criminal court, Mr Wither testified that he had
r
r
f no frustration "whatsoever" toward the grievor However, this is
~
! contradicted by all of the other evidence tendered before this
r
" Board Soon after the release of the report, Mr Wither wrote to
t
the HRC administrator that he felt he had been "attacked, slandered
t
[
!
f
--
77
and insulted by this document" He went on to state "I am unable
to put lnto words my utter disgust with these two men" (Emphasis
,/ added) Mr Wither in fact contradicted himself repeatedly on
this On the one hand he was saying that he wrote of utter disgust
"with these two men" only because he felt that he was technically
required to cite both named authors Yet he admitted that he was
in fact with the grievor also, although drawing a distinction
r,
between "disgust" and "anger" He admitted that he did not like
the grievor and had told several people so However, he explained
i that in fact he hated what the grievor did to Ms S, but did not
~ ..,..
hate the grievor He insisted that there was a distinction between
the two
-
,
:. In any event, Mr Wither's anger and hostility towards the
~.
, the
i grievor was clearly demonstrated during his testimony before
l
"
I' Board In an angry tone, he repeatedly made statements such as
i
,
~
r "They did not know what they were talking about" , and "Its
[
1.
l fabricated They were saYlng they were the only two who can do
l
r their jobs and that the rest of us were a bunch of jerks" In the
,
f
f
,
l
[ face of the visible anger he exhibited on the stand, his position
t
f
~ that criticism of his work performance does not bother him is not
~
r
r credible I conclude that Mr Wither harboured ill-will towards
~
[
f
r the grievor as a result of the grievor's role in the Herring
t
"
~
~
~
I
f:
f
--
78
Report In this regard, I accept the grievor's testimony about Mr
Wither confronting him in late 1989 That is very consistent with
"" the uncontradicted evidence that the Mr Wither also confronted the
other author of the report around the same tlme
On five separate occasions Mr Wither described what he
alleqedly heard and saw on the day in qu~stion His account on
each occasion has been set out in this declsion His story has
varied on each occasion These inconsistencies are not on
incidental or unimportant detail They are on the very acts which
....
the grievor is accused of For example, in his report to Mr
Thompson, Mr Wither only stated that the grievor "touched" Ms S's
breast There was no allegation of lifting, squeezing or shaking
Then in his statement to the police and at the preliminary hearing
he alleged that the grievor "lifted" and "squeezed" Ms S's breast
At the trial and before this Board, Mr Wither claimed that the
grievor also gave Ms S's breast "a little ~hake" In terms of the
derogatory comments attributed to the grievor, no mention
whatsoever was made to Mr Thompson or in the police statement that
the grievor commented about Ms S's "ass" That particular
accusation was first made at the preliminary hearing Mr Wither's
accounts also vary in terms of what comments he made to the
i
,
t
i
,.
e
-
-
79
grievor, how many times he made the comments, and the sequence of
the comments
/
Particularly troubling is the allegation Mr Wither made for
the first time before this Board, that he observed the grievor
vigorously drying off Ms S between her legs out in the hallway
There is no question in my mind that when he testified about this
act, Mr Wither intended to make an allegation of further
misconduct by the grievor It is simply not believable that if Mr
Wither had in fact observed such misconduct, he would not have
~~
raised it on the four previous occasions he had to describe what he
saw that day His explanation that he suddenly remembered it out
of the blue while testifying before the Board is not credible
Mr Wither has attributed to the grievor sexually derogatory
and inappropriate language That is completely inconsistent wlth
all of the other evidence Every witness who was as ked, including
three members of management, unhesitatingly testified that that
kind of language was totally out of character for the grievor The
employer did not call any witness who had ever heard the grievor
use any kind of inappropriate language For over the 25 years the
grievor had worked as a RC He had no prior discipline in that
period Over this period, he had worked with many co-workers For
~
80
several years he had cared for Ms S His duties included
showering her Not one individual, management or employee, had
~ anything negative to say about the grievor's behaviour towards Ms
S or any other resident or employee No one had ever heard him
use any kind of inappropriate language at work or outside
Particularly, there is no evidence to suggest that there had been
any sexually inappropriate conduct or lang].lage On the contrary,
the evidence is that the grievor had a reputation for treating
residents including Ms S with dignity and respect and that he took
extra care to treat Ms S with modesty and that he always used
.~
proper language
--
How probable is it, particularly wlth that kind of a
background and reputation, that the grievor committed the alleged
act? Mr Wither was a virtual stranger to the grievor that day
He was working with him for the first time Yet, according to Mr
Wither, the grievor called Mr Wither in -to witness him sexually
assaulting a helpless woman It is highly improbable that the
t grievor would do that not knowing how Mr Wither might react The
I grievor knew about the policy requiring that abuse be reported
immediately He was aware that abuse can attract severe discipline
including discharge Why would anyone take the risk of calling in
a stranger to wltness the commisslon of a crime? This allegation
i.
~
-
-
81
is even more improbable, because according to Mr Wither, before
the grievor committed the sexual assault, he had twice indicated
his dlsapproval of the grievor's sexual comments Yet, Mr Wither
/
would have the Board believe that the grievor persisted and went on
to sexually assault the woman right in front of him
As noted, this allegation was raised by Mr Wither in August
of 1993, some 4 years later His only explanation for not
reporting earlier has been that until August 1993 he did not know
that what he saw was abuse or sexual assault In my view, even
."
without any specific tralnlng, It lS not believable that an adult
of average intelligence would fail to recoqQize the act of lifting,
shaking and squeezing the breast of a helpless and vulnerable woman
while making sexually demeaning comments about her body to be
f abuse That is not a border-llne act of abuse It is a flagrant
I
f
~
r act, which would be recognized as abuse by anyone
~.
f.
r
~,.
v
f
, Mr Wither ordinary He professional
, was no person was a
,
;.
r
1; tralned and experlenced In caring for developmentally handicapped
f
~
!'
~ I do not accept his testimony that unlike at Georgian
r persons
! College, at the MRC course he completed at Cambrian College he was
I--
r:
r
f
f not told at all that abuse has to be reported Several witnesses,
f
!
~. including management, testified that the requlrement to report
f
~.
t
[
,
r
I
f
t
I
[
--
82
abuse was a fundamental part of a RC's training, and also that the
employer took partlcular care to ensure that employee's were aware
r" of that obligation
After initially denying that he had received the employer's
policy on abuse, Mr Wither subsequently changed his evidence and
agreed that he may have received it The definition of abuse
therein includes "unwarranted and/or inappropriate sexual
involvement , An example of unacceptable conduct includes
"degrading treatment and any other form of abuse " Given the
...
overwhelming evidence that the employer laid great emphasis on
prevention of abuse and the reporting ~f abuse, Mr Wither's
professed ignorance is not credible Every witness as ked,
including employer witnesses, had no doubt that with his training
and experience, Mr Wither would have known that what he witnessed
was abuse which had to be reported The testimony in this regard,
of Mr Thompson, a member of senior management is significant Mr
Thompson testified that as soon as Mr Wither described to him what
he had allegedly seen, he formed the opinion that it was a "clear
sexual assault", and that the police had to be involved
When it was pointed out that he had reprimanded the grievor
and called him a "sick puppy" etc , Mr Wither reluctantly conceded
~
83
that he knew that what the grievor did was "inappropriate" The
policy required "Immediately reporting to the supervisor on duty
lnapproplrate behaviour toward a Ministy client" Thus even if he
"r
did not know that what he observed constituted "abuse", Mr Wither
would have known that he was obliged to report the ianppropirate
conduct he had witnessed The evidence indicates that just six
weeks before the alleged incident, eMs Gallow, the HRC
Administrator, was quoted in the local newspaper stating that any
"unacceptable conduct" must be reported by HRC employees Mr
r Wither had not only read this article at the time, but had filed it
-
away at home He agreed that "unacceptable" was the same as
"inappropriate" His explanation that he ~robably forgot" what he
had read 6 weeks earlier is not credible
i
r Mr Wlther contradlcted himself repeatedly about his state of
f
!
r mind between April 1989 and the reporting in August 1993 He said
f:
f
I,
~ on several occasions that the incident was "out of my mind" Yet
r
~
f.
~'
r he testified that he hated what the grievor did and that whenever
,
I
f
f. asked
! he saw the grlevor he recalled the lncident When to
f
f
~i explain the contradictlon, he said that although he recalled the
1
(
r
,- incident he did not "dwell on it" Even if Mr Wither only had the
r
f.
r
~ incident in the back of his mind, there were several events that
r
,
~
r reasonably should have ralsed and caused him to revisit
r concerns
[
,
I
1
t
I
f
f
I
I
~
--
84 ~
----
what he observed For example, shortly after the alleged incident
the employer declded to transfer the grievor to the apartment to
care for Ms S by himself Despite the incident, and various
v
"stories" he had heard about the grievor's sexual attitude towards
Ms S, it did not cause Mr Wither to raise any concern about the
employer's decision
Again, in the Herring Report released a few months after the
i
!
! alleged incident, the authors had severely criticised Mr Wither's
i and questioned his suitability
I work performance to be a RC Mr
i
I
~ ..
i Wither was clearly upset and angry that Mr Herring and the grievor
!
! had portrayed themselves as "Knights i~Shining Armour" , while
,
1
,
! putting down Mr Wither Yet, Mr Wither did not take the
1
~
!
1. opportunity to point out to the employer that the grievor was not
(
!
f, a "Knight in Shining Armour", by bringing to light what he knew to
I be inappropriate behaviour on the part of the grievor
I
I The evidence relating to the circumstances under which Mr
!
Wither finally decided to report what he had witnessed some four
I
! years earlier is even more troubling Firstly, the Board received
f no credible explanation as to what caused Mr Wither to realize in
f
~ 1993, that what he witnessed in 1989 was an incident of "abuse" or
f
! sexual assault His testimony before the Board, as well as before
f
(
t
r
r.
!
f-
,
~
85
the court, was that when he read the newspaper article about the
grievor being charged with sexual assault of a 5 year old girl,
"bells and whlstles" went off His explanation for not reporting
",-
at the time, it should be recalled, was that he did know that his
observance - the grievor lifting, shaking and squeezing Ms S's
breast while making sexual comments - constituted abuse Under
repeated cross-examination, Mr Wither Gould not explain what
information in the newspaper article caused him to change his mind,
because the brief article (supra 37) had no information that would
assist anyone identify what may or may not constitute abuse or
,
sexual assault Mr Wither also testified that he had read some
leaflet articles at the probation offic~_which had provided him
with knowledge about sexual assault which he did not have in 1989
!
, However, when asked what knowledge he acquired from reading those,
,
!
!
!. he said that one artlcle was about "child molestation" It had
~
~
~;
! information about how child molesters entice children into
!
!
! secluded places and how they always tell a ~hild that what happened
,
!
I-
I sho~ld be "our secret" He said that he also read a report that a
f
,
f professor ln a unlversity had been reprimanded for "leering at a
~ girl's crotch" while swimming in a pool However, Mr Wither could
~.
t
! not explain how that information helped him realize that what he
r,
~
f: "abuse" or a "sexual assault" Besides,
, had witnessed in 1989 was
~
r he was asked why he did not report the shower lncident when he had
r
v
f,
t
f
,
~,
!
r
~
f-
[
r
--
86
acquired that knowledge by reading the articles His response was
that because those articles did not mention the grievor's name, it
dld not occur to him that what he saw was a sexual assault It was
>"."1i'
only when he saw the grievor's name in the newspaper that bells and
whistles went off
During cross-examination, Mr Wither was asked seven separate
times whether he was absolutely sure about his evidence that after
reading the newspaper article he did not discuss with anyone prior
to reporting the shower incident to Mr Thompson He repeatedly
'" -
i specifically
said that he was absolutely sure of lt, and
volunteered that he had no discussion eveILwith his wife He said
that he was so sure about his testimony that anyone suggesting
anything else was a liar and that he would bet union counsel $
100 00 on lt Union counsel then pointed to Mr Wither's testimony
at the trial, where the transcript records him giving the following
testimony
I reported at a later date when I picked up the
newspaper and I read a newspaper I read an
artlcle in the newspaper and all of a sudden
all these bells and whistles went off into my
head and that and holy gees, you know, here
could have an abuse thing in our hands here and
I went home and I discussed it with my wife and
stuff, and I sat and said okay I gotta go and
bring this forward because I'm really positive
we've got, you know, this was classified as
f abuse
!
[
--
87
This was followed by Mr Wither's testimony about contacting
Mr Thompson Mr Wither, however, refused to acknowledge
y
repeatedly that at the trial his testimony was to the effect that
after reading the newspaper article he went home and discussed with
his wife and then contacted Mr Thompson He repeatedly refused to
accept that that was the sequence on any reasonable reading of the
above-quoted testimony He read the passage to mean that he
discussed with his wife only after the meeting with Mr Thompson
While this sequence of events is not particularly relevant to the
~~
merits of this case, I found Mr Wither to be clearly dishonest on
the stand on this issue, when he continuallY pretended to read the
clear description of the sequence in the transcript in a manner
consistent with the testimony he had given before the Board The
transcript can only be read one way That is that Mr Wither went
home and discussed with his wife and decided that he had to "bring
this forward" and then he contacted Mr Thompson
An issue also arose as to how Mr Wither came upon the
newspaper article which caused "bells and whistles" to go off
During direct examination, Mr Wither testified that a HRC employee
came to him with the newspaper and pointed out the article to him,
while he was standlng ln the apartment one day Under cross-
--
88
examination he confirmed that evidence Union counsel then
reviewed with Mr Wither his report to Mr Thompson, his statement
to the Police, and his testimony at the preliminary hearing, and
;/
the trial, none of which mention that anyone pointed out the
article to him On those occasions Mr Wither had said that he
"picked up the paper and read" the article When asked to explain
the discrepancy, Mr Wither stated that on those prior occasions he
had forgotten that an employee had pointed out the article He
said "periodically I recall things later, which I didn't recall
earlier" When asked who the employee was, Mr Wither could not
.,.
recall When asked whether if it was a man or a woman, he could
not recall that either I find it incredible that Mr Wlther would
clearly recall where he was standing at the time, and even recalled
that the newspaper was a few days old at the time the employee
showed it, yet he had no clue as to whether the employee was a man
or woman The only inference to be made is that Mr Wither found
himself in another contradiction and was attempting to get out of
it any way he could
Mr Wither testified before the Board that even when he went
to Mr Thompson after reading the newspaper article he was unsure
whether what he witnessed in 1989 was abuse This evidence is in
clear conflict with his own testimony at the trial set out above,
!
--
89
that after going home and discussing with his wife "I sat and said
Okay I gotta go and bring this forward because I'm really positive
we've got, you know, this was classified as abuse"
~
I found Mr Wither to be generally not credible I have
already made reference to many examples His demeanor on the stand
confirms my conclusion about his lack of credibility He was
extremely evasive He was reluctant, and at times refused, to
answer very simple and clear questions put to him in cross-
examination He told counsel "that's a trick question" He warned
"" -
counsel not to try to "snow-ball" him and not to play "lawyer's
games" with him He was belligerent to th~point that his language
on the stand got increasingly profane and vulgar, that I had to
r
caution him about that Rather than answering clear and direct
questions put to him to the best of his ability, he was more
I "
concerned about what the union counsel was "trying to get at He
prefaced his answers at times with statements like "I know what you
are trying to do here" and "I am not going to fall for that one "
I was convinced that, Mr Wither was willing to state anything as
a fact, where he felt that it was in his interest to do so For
example, during his examination in chief, Mr Wither narrated what
occurred when he arrived for his 7 00 a m shift on his first day
of work in the annex, April 17, 1989 He said that when he arrived
--
90
at Avalon 5/6, he met with the Group 3 supervisor, who gave him
certain instructions and assigned him to the Annex When counsel
asked who the Group 3 was, without hesitation or qualification, Mr
,
Wither stated that it was Leanne Taschereau During cross-
examination union counsel asked Mr Wither to confirm that evidence
and he did so Then counsel put to Mr Wither the attendance sheet
for the day in question which showed that Ms Taschereau was off
sick that day, and suggested that Mr Wither could not have met
with her that day Faced with the documentation, Mr Wither
without hesitation stated "obviously, then it was the next day I
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met with her" Counsel asked if he met with her the next day and
he sald he dld Then counsel produced the attendance sheet for
Aprll 18th, which showed that Ms Taschereau did not report to work
until noon, and pointed out that Mr Wither could not have met with
her that morning either With no hesitation, Mr Wither replied
that lt was at noon that he met with her that day This does not
make any sense, because the whole point of Mr Wither's testimony
in the first place was to describe what happened when he arrived
for his morning shift on his first day in the annex The
supervisor could not have assigned Mr Wither to the annex at noon
on April 18t\ because by then he had already worked there for 1-1/2
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I also found Mr Wither to be reluctant to admit to even an
ObV1OUS fact, if he felt that it would not be in his interest to do
so For example, during cross-examination union counsel asked him
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if he found it strange that the grievor would invite a virtual
stranger llke himself to come and witness the commission of a
sexual assault Mr Wither replied that it was not strange Counsel
then suggested that most people committing a sexual assault would
be secretive and would not want witnesses to the crime Mr Wither
repeatedly would not agree with that proposition When counsel
asked why he was refusing to agree to an obvious fact, Mr Wither
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said that he would not agree because he had not seen statistics on
how many people want someone to witness the commission of a crime
and how many do not
I cite another example of Mr Wither's lack of credibility
He had testified that during the shower incident he had twice
called the grievor a "sick puppy" and that he found what the
grievor did to be inappropriate He had also testified that he
hated what the grievor did According to him he told his
supervisor Mr Kilby that the grievor was a sick puppy and that he
did not want to work with him Yet he testified that in the
afternoon the same day in the annex he sat at a table with the
grievor and taught the grievor a magic trick Counsel asked how
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Mr Wither could be teaching the grievor magic tricks when just
hours earller he had wltnessed the grlevor commit an inappropriate
act which he hated and he was upset enough to not even want to work
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with him any more His response was "That's the kind of person I
am" At another point during cross-examination counsel pointed out
inconsistencies in Mr Wither's evidence on a certain issue and
asked if he expected the Board to believe him Mr Wither retorted
angrily "until you prove me wrong, I have to be believed You
prove me wrong Then no one has to believe me"
;
Having carefully reviewed all of the evidence, I find Mr
Wither to be extremely unreliable gener~J:ly as a witness His
testimony about what he allegedly witnessed, why he did not report
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1 at the time, and what led him to come forward four years after the
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~ fact, is so full of inconsistencies and improbabilities that it is
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t simply not believable I not only find that Mr Wither held ill-
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~ will towards the grievor, but that he was also dishonest in denying
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[ that
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f On the other hand, the grievor's credibility rema-ined
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t unchallenged by any witness other than Mr Wither The only issue
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, on which the grievor was contradicted by another witness was when
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i Mr Kilby denied that he had instructed the grievor to apologize to
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Mr Wither for the grievor's participation in the Herring Report
I would not lightly reach a conclusion which is directly opposite
to the verdict reached in the criminal courts However, this is an
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extreme case, where the evidence is overwhelming and drives me to
the conclusion that the presumed fact does not exist In other
words, the evidence before me has the effect of rebutting the
presumed fact that the grievor engaged in sexually inappropriate
conduct towards Ms S As a result the employer had no just cause
to discharge the grievor and this grievance is allowed
,
REMEDY
The parties are ln dispute in sev~al respects as to the
extent of the appropriate remedial order It is common ground that
upon his conviction the grievor received a suspended sentence and
was placed on probation for a period of 3 years The grievor
successfully completed the probation on May 3, 1998 One of the
two conditions of probation was as follows
[.
"Not to associate or hold any communication
directly or indirectly with children under (16)
f sixteen years of age or persons requiring and
receiving supervision and care by anyone by
reason of mental handicap, except in the
presence of an adult over twenty one years ,
Citing this condition of probation, Employer counsel argued
that even if the grievor had not been discharged, the grievor would
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94
not have been able to work as a RC2 wlthout vlolatlng the terms of
the probation order because that job necessarily involved being
alone with mentally handicapped persons Therefore, it was
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submitted that his compensation, seniority and benefits should be
limited to the perlod from May 3, 1998, when his probation ended,
to the date of reinstatement It was argued that that was the
extent of the grievor's actual loss
I do not agree with that reasonlng It is true that the
terms of the probation order as issued would have likely prevented
~~
the grievor from performing his normal duties as a RC However,
the grievor could have taken steps to attempt to circumvent the
harsh consequences of that For example, as the unlon pointed out,
the grievor could have moved before the court to attempt to vary
the terms of the order that would have permitted him to earn a
living as aRC, subject to different terms acceptable to the court
We do not know whether or not the grievor would have been
successful However, the fact is that the employer's action of
discharging him deprived him of that opportunity to try
Similarly, the grievor through his union, could have attempted to
negotiate with the employer to permit him to contlnue as an
employee of HRC in some capacity which would not run afoul of the
probation order For example, pending the criminal trial the
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95
employer allowed him to work in a landscaping position He could
have negotiated a demotion to such a position Because of hlS
dismissal, the employer did not have the opportunity to consider
/
whether such an arrangement was acceptable In the circumstances,
it is not appropriate in effect to penalize the grievor, when the
party breaching the collective agreement was the employer
The employer also argued that even if the grievor was
otherwise entitled to full compensation, he should still be denied
compensation for the period from November 17, 1995 to June 25,
~~
1996 The evidence is that the hearing of this grievance was first
scheduled before the Grievance Settlement Board for November 17,
1995 The union requested that the hearing be adjourned until the
t grievor's appeal from his conviction was disposed of The employer
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~ agreed to this adjournment request Following the dismissal of the
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f grievor's appeal, the hearing before the Board commenced on June
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f 25, 1996 It was the employer's position that the employer should
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~~ not be held responsible for lost wages and beneflts for the perlod
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I of delay caused by the adjournment
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l I disagree with this argument also The adjournment was made
~. on mutual consent It was open to the employer to attach a
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f, condition to its consent Had it done so, the union would have had
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to decide either to agree to the condition or to withdraw its
request for an adjournment Alternatively, it could have gone
before the Board and argued that the Board should grant an
adjournment despite the employer's objection The union had no
opportunity to do any of this because the employer agreed to
r adjourn without condition Having done so, it is not entitled to
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, now lay the sole blame on the union for the delay
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{ The other contentious issue on remedy is the union's request
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r for an order for a posting by the employer, similar to postings
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~: ordered regularly by the Ontario Labour Relations Board where
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~ findings are made of unfair labour practic~s See Re Valdi, [1980]
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f OLRB Rep Aug 1254 Assuming, without finding, that this Board
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i has the power to make the order requested, I am of the opinion that
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! it is not appropriate to exercise that power in this case As the
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t reasoning in Re Valdi indicates, one of the primary objectives of
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t a OLRB posting order is to counter the "chilling effect" of an
~ unfair labour practice Here the Board's task is to provide a
remedy to an individual who has filed an individual grievance
I There is no evidence indicating that a posting is required to make
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the particular grievor "whole" Union counsel referred to the fact
that the grievor's reputation at the workplace had suffered
However, any loss of reputation would have resulted from the
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97
grievor's conviction, which was reported ln the media and became
common knowledge at the workplace It is hard to imaglne that hlS
subsequent dismissal would make any difference in that regard The
employer cannot be held responsible in any way for the process that
led to the grievor's conviction The employer played no role in
that regard, except to cooperate with the Police investigation
In OLRB cases where postings are order~d, usually there is a
finding of an unfair labour practice which involves an anti-union
animus While the employer here has been found to have violated
the collective agreement by discharging the grievor without just
""
cause, there can be no doubt that it acted in complete good faith
when it relied on the conviction There ~as no "animus" against
I the grievor or the union Indeed, before this Board the employer
presented its case in a most objective manner It was quite
striking that all of the members of management who testified{ some
called by the union and some by the employer, testified candidly
and honestly even in circumstances where it was apparent that their
evidence would benefit the union's case In these clrcumstances,
the Board denies the union's request for a posting order
The Remedial Order
In light of all of the evidence and submissions and the
findings made, the Board orders as follows
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(1) The grievor shall be reinstated forthwith in the position
of RC2 at the HRC, without loss of service or seniority
(2) He shall be fully compensated for all lost wages from the
date of his discharge to the date of reinstatement, at the RC2 rate
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as escalated pursuant to the collective agreement, together with
interest thereon
(3 ) The grievor shall be fully compensated for all lost
benefits
(4 ) Compensation payable to the grievor shall be "grossed up"
in accordance with the principles set out in the Board's decision
....
in Re Grenius, in order to address the adverse tax implications for
the grievor -'~
(5 ) All records and documents maklng reference to Mr
Wither's allegation against the grievor shall be removed from all
files, and no reference shall be made to the same for any
employment related purposes, except where required by law
The Board remains seized in the event the parties disagree
upon the proper implementation of any of the remedial orders
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Dated this 25th day of May 1999 at Hamilton, Ontario
~~g-:y------
Nimal V Dissanayake
Vice-Chair
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