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Home My WebLink About2002-2124.Lariviere.06-11-29 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2002-2124,2002-3017 UNION# 2002-0119-0043,2002-0119-0044 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Lari vi ere) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Nimal V. Dissanayake John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors Ferina Murji Counsel Ministry of Government Services February 24, August 30 & 31, September 2, 10 & 24, 2004; March 15 & 16, May 10 & 11, June 23, August 3,2005; May 2, June 5,6 & 29, August 8,23 & 28, September 1, 2006. Union Employer Vice-Chair 2 Decision On February 24, 2004, the Board commenced a hearing into four grievances filed by Ms. Marlene Lariviere ("the grievor") as follows: 1. GSB File No: 2002-2124, a health and safety grievance alleging a violation of article 9 of the collective agreement. 2. GSB File No: 2002-3017 a grievance alleging a violation of the Occupational Health & Safety Act. 3. GSB File No: 2002-2125, alleging that the employer had failed to accommodate the grievor's disability contrary to the collective agreement and the Human Rights Code of Ontario. 4. GSB File No: 2002-2126, alleging a violation of article 2 of the collective agreement - Management Rights. After the union had led its evidence and closed its case, by letter dated May 13,2005, the union advised the Board that it was withdrawing grievances (3) and (4) listed above, on "a without prejudice and without precedent" basis. This decision deals with the two remaining "health and safety" grievances. The grievance in GSB File No: 2002-2124 is dated October 3,2002 and states, "I grieve Article 9", and the settlement desired is, "Full redress, Restoration of time credits, to be made whole". The grievance in GSB File No: 2002-3017 also dated October 3, 2002 states, "I grieve article 25(2)(h), 27(1) and 28(2) under OHSA". The settlement desired is identically worded as in File No: 2002-2124. 3 Article 9.1 of the collective provides: 9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall cooperate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of its employees. The provisions of the Occupational Health and Safety Act ("the Act") alleged to have been contravened in grievance no: 2002-3017 are as follows: 25(2) ... An employer shall, (h) take every precaution reasonable in the circumstances for the protection of a worker. 27 (1) Duties of a supervisor - A Supervisor shall ensure that a worker, (a) works in the manner and with the protective devices, measures and procedures required by this Act and the regulations; and (b) uses or wears the equipment, protective devices or clothing that the employer requires to be used or worn 28 (2) No worker shall, (c) engage in any prank, contest feat of strength, unnecessary runnIng or rough and boisterous conduct. While the foregoing are the only provisions of the Act pleaded in the grievances, III closing submissions union counsel relied on the following additional provisions of the Act. S.27(2) Without limiting the duty imposed by sub-section (1), a supervisor shall, (c) take every precaution reasonable in the circumstances for the protection of a worker. 25(2) . . . an employer shall, (a) provide information, instruction and supervision to a worker to protect the health or safety of the worker. 4 (i) Post in the workplace, a copy of this Act and any explanatory material prepared by the Ministry, both in English and the majority language of the workplace, outlining the rights, responsibilities and duties of workers. (k) Post at a conspicuous location in the workplace a copy of the occupational health and safety policy. 26(1) In addition to the duties imposed by section 25, an employer shall, (1) carry out such training programs for workers, supervisors and committee members as may be prescribed. Union counsel acknowledged that the additional provisions of the Act were raised only during final submissions, and stated that the union was not alleging violations of those statutory provisions in this proceeding. However, he urged the Board to have regard to those provisions because, in counsel's view, the obligations imposed by those additional provisions were subsumed in the duty to "take every precaution reasonable in the circumstances for the protection of the worker" imposed on the employer by s. 25(2)(h). The two grievances before the Board arise as a result of an incident that occurred on December 13, 2001 (hereinafter "the incident") between the grievor and a co-worker, Mr. Steve Moore, during which the grievor suffered an injury. The union's position is that the employer breached article 9.1 of the collective agreement and the Act, and that the injury suffered by the grievor was a direct result of the employer's failure to comply with the collective agreement and the Act. The union alleges that if the employer had not allowed a culture at the Stratford jail where horseplay and roughhousing was common-place, Mr. Moore would not have engaged in the conduct that led to the grievor's injury. A significant amount of evidence was tendered, including the evidence of two medical professionals, with regard to the grievor's medical history and the nature and extent of the injury 5 she suffered as a result of the incident. This evidence revolved around whether or not the grievor had a pre-existing injury in the same area of her body and whether all of the disabilities and pain the grievor experienced following the incident were attributable to the incident. However, at this stage, the Board does not have to deal with that debate, which will become significant only if the employer is found liable in the first place for whatever consequences the grievor suffered as a result of the incident. For the present purposes, the issue is whether the injury suffered by the grievor during the incident, whatever its nature and gravity, was a result, in whole or in part, of a breach of the collective agreement and/or the Act, on the part of the employer. There was also somewhat conflicting evidence about the extent of the employer's efforts to assist the grievor following the incident. I will not deal with that issue either, since anything that occurred after the incident cannot support the position taken by the union in this proceeding which is to the effect that by its conduct and inaction prior to the incident the employer breached the collective agreement and the Act, and that such breach led to the incident. The December 13, 2001 incident The grievor commenced employment with the Ministry on November 5, 1990 as a library technician at the jail in Monteith, Ontario. In 1992 she became a correctional officer ("CO"). She worked as a CO at a number of institutions before transferring to the Stratford Jail in July 2001. The grievor is married to Mr. Rick Kennett, who at the time of the incident was also employed as a CO at the Stratford Jail. At the time of the incident he held the position of Chief Steward. The employer had in place a number of policies and procedures. Its policy on "Staff conduct and discipline" included the following: 6 POLICY Managers must assume a leadership role in creating and maintaInIng a work environment where unacceptable standards of conduct will not be tolerated and will be held accountable for doing so. Managers are responsible for ensuring that all employees found to have engaged in unacceptable conduct are subj ect to appropriate disciplinary penalties, up to and including dismissal. Discipline shall be applied where just cause exists to correct inappropriate conduct and to discourage its recurrence. Any discipline imposed shall be based on a fair assessment of individual circumstances following a thorough review of all the relevant facts and information. Discipline will normally be administered in a progressIve manner. Prior to the imposition of discipline, the employee shall be informed of management's understanding of the facts relating to the disciplinary problem and provided with an opportunity to respond to the allegation(s) against him/her. This policy lists a number of "Examples of unacceptable conduct", including "horseplay" and "endangering the well-being of oneself and/or others", "force used in excess of approved methods", and "assault". The grievor testified that on December 13, 2001 she was on a 7 a.m.- 3 p.m. shift. That day she had brought some fudge to work. After the pre-shift staff briefing she gave 5 or 6 pieces of the fudge to Mr. Moore, stating to him, "I know you have a sweet tooth". Mr. Moore was also a C.O. working the same shift that day. She saved the rest of the fudge, approximately 8-9 pieces, to share among the rest of her co-workers during coffee break. At around 9:40 a.m. she was in the Admitting and Discharge ("A&D") area, waiting to commence an inmate transfer. The cook at the Stratford Jail, Ms. Brenda Huitema was seated on a bench. Mr. Moore entered the area, sat down, and stated, "I am going to eat the rest of your fudge". The grievor observed that Mr. Moore had the tin containing the fudge in his right hand. She said "Don't be such a pig. Nobody else has had any yet". She went on to testify as follows: "I went over and reached for the can of fudge with my left hand. He was sitting facing the A&D area. He slapped my hand 7 away with his other hand. I said, "give me the fudge", and I reached over again with my left hand. He grabbed my left wrist with his left hand. I was standing and he was sitting. He took the can and put it in a hole in the wall. A cubbyhole in the wall to put papers in. Then he grabbed my left wrist with his right hand and put it in a bent wristlock position. I yelled, "Stop. You are hurting me". He stood up, still leaving my hand in the bent wristlock position, then put my hand behind my head and yanked me. Bent wristlock is a technique used to put an inmates hand behind his back to handcuff. He put my hand behind my head and yanked me. I felt severe pain, like a burning from the top of my head to the side, down to the wrist". On December 14, 2001 the grievor prepared notes of the incident. It reads: On Thursday, December 13, 2001 at the Stratford Jail I was assigned duty as the Admit and Discharge Officer from 0700 hours to 1900 hours. On this date I brought Christmas fudge to share with my co-workers. At approximately 0940 hours I was working at my post and I saw a co-worker take my fudge container, sit down and start eating it. I told him that he had already had five (5) pieces and that the rest of the fudge was for the remaining staff that had not had any yet. He continued to eat it. I reached with my left hand to take the container from his hand. He pushed my hand away. I called him a pig and said: "Give me the container." He said: "No". I again reached for the container and he grabbed my left arm. He deposited the container and put my left wrist in a bent wrist lock position. I yelled: "You're hurting me, stop it." He stood up and then pulled my left arm over my head increasing the wrist lock and pulled my left arm over my right shoulder with a jerking movement. I screamed: "You've dislocated my shoulder." I started to cry and I walked towards the segregation area. I held onto the grill because I thought I was going to faint. Another staff witnesses this assault. My co-worker asked me if I wanted some ice for my shoulder and I told him to get the nurse. The nurse came to my post and tried to examine the shoulder and apply some ice but the pain was so bad that she couldn't put the ice on. The nurse told me that she thought that the shoulder was dislocated. She helped me walk to the staff room. She told me that she was going to tell the Shift I/C and that I should go see my doctor. She returned with medication (Motrin) and told me that she was going to drive me to my home. She did. The gnevor testified that she did not submit an Occurrence Report because her understanding was that policy required the filing of an Occurrence Report only if requested by 8 management. The evidence is that by the time the grievor filed her grievances in October 2002 - 10 months after the date of the incident - Mr. Moore was critically ill with cancer, and the employer was unable to interview him. The Board was advised that Mr. Moore passed away from his illness sometime in 2004 prior to the commencement of this proceeding. However, the parties agreed that Mr. Moore on his own accord, submitted to the Superintendent an Occurrence Report on the very day of the incident. It reads: On Thursday December 13, 2001, I was on duty in the Stratford Jail on the top floor on the 07:00 to 19:00 hours shift. About 10:30 hours, I was in admit and discharge area on the middle floor to use the washroom. While there officer Lariviere stated that she had brought some candy in from home. Officer Lariviere offered me some candy which I accepted. I then jokingly grabbed the entire container of candy and stated that I was going to consume the remaining pieces. Officer Lariviere reached over me, as I was sitting in the chair at the time and attempted to grab the container from me. I held the container out of officer Lariviere's reach. Officer Lariviere continued to attempt to grab the container, so I set the container into the keyway in the door frame. I then pushed officer Lariviere's arm back toward her in an upward motion. In so doing, apparently I caused an injury to officer Lariviere's left arm. I was unaware of the severity of the injury until officer Lariviere withdrew toward the segregation area in obvious pain and crying. I asked officer Lariviere what had happened. She said tat she had been seeing a chiropractor for a prior injury. I asked officer Lariviere if she wanted an ice pack, and then I informed healthcare and the shift supervisor of the situation. Both S. Morgan and L. Burford attended the area. Officer Lariviere subsequently went home for further medical attention. I regret that my action has caused officer Lariviere such discomfort and assure you that there will be no re-occurrence of this behavior. The only third party in the vicinity at the time of the incident on December 13, 2001 was Ms. Brenda Huitema. She testified as follows: "Ms. Lariviere had brought in some fudge in a little tin. Mr. Moore had the tin in his hands and he sat down on the chair. He and Ms. Lariviere were teasing back and forth about who was going to get the fudge. Mr. Moore then put the tin down in front of him and curled over it. Ms. Lariviere came over Mr. Moore's shoulder - I can't recall which side- and tried to get the tin. After a minute of that, they got up and they were twisting arms and pushing like an arm-twisting fight. Then they went through the doorway to the right of the desk with a little shuffle and the door shut. After that I couldn't see what 9 happened on the other side. A minute later the door opened and Ms. Lariviere came back to the segregation lobby with her arm stuck up behind her head." Ms. Huitema testified that the grievor was in tears and in a lot of pain. She asked if she could do anything to assist, but the grievor did not respond. The grievor gradually got her arm down on her own just as the nurse, Ms. Sue Morgan, and Ms. Lois Burford arrived. Ms. Morgan got her an ice pack. At that point Ms. Huitema went back to the kitchen. Ms. Huitema testified that she did not hear the grievor say "stop. You are hurting me", or words to that effect, during the incident. Ms. Huitema stated that she did not submit an Occurrence Report about the incident at the time because she did not think "it was that severe". It did not appear to her to be a hostile incident. Rather it was "a casual type of thing". She said "It seemed like a little play-fight, not a violent head-banging". Ms. Huitema did submit an Occurrence Report in July 2003, on the directions of management. It suffices to note that the report is consistent with Ms. Huitema's viva voce account of the incident. The nurse, Ms. Sue Morgan, testified that upon arrival at A&D area she observed the grievor holding her arm. She asked the grievor what happened. She said, "Ms. Lariviere replied that she had been holding something up over her head and that her hand had been grabbed and pulled". She asked the grievor if she was in pain and she said, "Yes". At the time the grievor was holding her arm down at her side. Ms. Morgan testified that she offered to give the grievor some Motrin and an ice pack and she accepted. The grievor seemed to be in pain, and was very quiet except for stating that her arm was very sore and that she could not move it. Ms. Morgan 10 also did not submit an Occurrence Report at the time, but did one later in November 2002 after being directed. Ms. Lois Burford testified that on December 13, 2001 she was shift manager. She was in her office sometime between 10 and 11 a.m., when the grievor entered. She looked very upset and stated that she had been hurt. When asked to explain, the grievor told her that she had a piece of candy and that Mr. Moore had tried to get it, that she had injured her arm in that exchange. Ms. Burford testified that she did not question the grievor further about the incident because she felt that the grievor did not want to get into details beyond indicating that she and Mr. Moore had been just fooling around. Ms. Burford got the impression that the grievor was not forthcoming about what had happened. When asked if the grievor had indicated that Mr. Moore had used excessive force on her, Ms. Burford replied, "absolutely not". She stated that it appeared that the grievor was reluctant to talk about the incident, because she was aware that she had participated in inappropriate horseplay while on duty, and was embarrassed by what had happened. Ms. Burford testified that shortly after the grievor left her office, Mr. Moore came in. Ms. Burford testified, "I felt he was very upset and sorry she got hurt and wished to tell me that it was his fault so to speak, and that he felt bad about the accident." He told Ms. Burford that the grievor had some candy, that he tried to get it from her, that she tried to keep it from him, and that during that exchange her arm was hurt. Ms. Burford did not note any significant discrepancy between the accounts of the incident related to her by the grievor and Mr. Moore. On cross-examination, Ms. Burford confirmed that the grievor appeared to be injured and in pain at the time she observed her. She also confirmed that Mr. Moore had stated that it was his fault that caused injury to the grievor, and that she accepted that admission. However, she 11 commented that in her own mind, Mr. Moore was not solely to be blamed, because both had engaged in the horseplay that led to the grievor's injury. Thus, she felt that the grievor was also at fault. In a report dated January 20, 2002, Dr. AB. Deathe a consultant in Physical Medicine and Rehabilitation, diagnosed that the grievor had suffered, a probable left mid cervical facet sprain, a left rotator cuff tendonitis and a left brachial plexus traction injury. Dr. Thomas Miller, also a Physical Medicine & Rehabilitation Consultant testified at the hearing. He examined the grievor in March 2002. He testified that his conclusion was that the grievor had suffered an injury, which he described as the shoulder girdle coming forward, and a traction injury to the brachial plexus. He ordered a MRI, which confirmed that the injury could not be treated surgically. He rated the level of pain suffered by the grievor to be in the 8 out of 10 range and confirmed that the pain had not decreased in the three years she had been treating her. Also testifying was Dr. Michelle Lockhart, who had been the grievor's family physician since December 2000. The grievor had not come to her with a complaint about pain in her shoulders or arms prior to December 2001. When she examined the grievor on December 14, 2001, the day after the incident, however, the grievor was in significant pain from the injury the day before. She was so tender in the left neck and shoulder area, it was difficult even to carry out an examination. Since then the level of pain had been consistent, requiring the grievor to take medications to relieve the pain. When asked whether as of December 14, 2001, there was anything to suggest that the grievor had a pre-existing injury in the left neck and shoulder area, Dr. Lockhart replied "definitely not". 12 The parties agreed that Mr. Moore did not intend to cause the grievor any injury. I find that the interaction that took place between the grievor and Mr. Moore that day falls within the phrase "rough and boisterous conduct" in S. 28(2)( c) of the Act, and the term "horseplay" which is included as unacceptable conduct in the employer policy on staff conduct and discipline. In short then, the Board concludes that an incident of boisterous conduct and horseplay occurred during which the grievor suffered a serious injury. The union does not claim that the employer is strictly or vicariously liable for the conduct of Mr. Moore. It is also agreed that neither participant was disciplined as a result of the incident. Mr. Moore's personality and past behavior Evidence was called by both the union and the employer about Mr. Moore's character and personality, and particularly as to whether he had demonstrated a propensity for aggression and use of force. The union's position is that he had such a propensity and that the employer was aware of that. It is the union's contention that the employer's failure to take action to stop that kind of behavior generally among CO's, and particularly on the part of Mr. Moore, constituted a contravention of the collective agreement and the Act, and led to the injury the grievor suffered. The grievor testified that she worked regularly with Mr. Moore since July of 2001. She described him as a big man, 6'4" tall and 180-190 lbs. She said that he had a very aggressive personality and that he "did not like female COs". When asked for the basis of that latter statement, the grievor stated that once Mr. Moore had told her that he was surprised that she had chosen to be a CO, and that he would not want his wife to be a CO. She also described Mr. Moore as "not very nice". When asked why she had that view, she explained that Mr. Moore belonged to the Cell Extraction Team (CET), which was known as "the goon squad". In 13 discussing the monthly training sessions the CET team had, Mr. Moore would explain which team member acted as the "victim", and who got hurt during the practices. She said, "It just gave me the impression that he was very comfortable with the use of force". She also stated that Mr. Moore did not enjoy being a CO and was trying to be a police officer, because he wanted to be respected, and felt that as a police officer he would get respect. With regard to her testimony that Mr. Moore did not like female COs, the gnevor admitted under cross-examination that it was only "a feeling" she had, based on Mr. Moore's comment about not wanting his wife to be a CO. She was asked why, if she was of the view that Mr. Moore was a very aggressive, "not nice" person who did not like female COs, she had brought 5-6 pieces of fudge for him, and had only 8-9 pieces for all the rest of her colleagues to share. Her only explanation was that while a normal person could only eat one piece of fudge, Mr. Moore "had an extremely sweet tooth". When asked if she had observed Mr. Moore using excess force on inmates, the grievor testified that she and Mr. Moore were once assigned to transfer a female inmate, who had psychiatric problems. The grievor testified that as soon as the inmate saw Mr. Moore, she started yelling "I hate you. Why did they send you". When the grievor handcuffed the inmate, Mr. Moore told her that it was not tight enough and tightened the cuffs. The inmate was yelling once in the vehicle. So Mr. Moore cranked up the volume of the radio as far as it would go and drove with the music blaring. The grievor testified that as the non-driver, it should have been her responsibility to handle the inmate. However, Mr. Moore took charge always no matter who he was working with. Therefore the grievor did not attempt to intervene with regard to Mr. Moore's treatment of the inmate. The grievor was cross-examined as to why she did not submit an occurrence report or otherwise bring to the attention of management the alleged use of excessive 14 force by Mr. Moore on the female inmate, when she knew that such conduct was contrary to employer policy. Her response was that she would not jeopardize her health and safety to get Mr. Moore disciplined. The grievor also testified that during the 6 months at the Stratford Jail, she had observed Mr. Moore engage in horseplay on 3 occasions. In each case Mr. Moore was wrestling, doing headlocks and tugging at another CET member, one of whom she identified as Mr. Rich Boer. The grievor testified that she did not observe any managers in the area during these incidents. However, She testified that shortly before the incident, she heard Mr. Moore and Ms. Burford talking in the kitchen. According to the grievor Ms. Burford told Mr. Moore, "I can't believe you hurt me so badly". Mr. Moore laughed and said, "Just wait till the next time - don't be the victim again." When asked whether she knew what the conversation was about, the grievor stated that all she knew was that they had just finished CET training that day. When asked whether Ms. Burford had indicated what injury she had suffered, the grievor stated that she was not sure, but believed that Ms. Burford suffered some kind of injury to her upper body. The grievor testified that since she came to the Stratford Jail she had not received any instructions from management about appropriate conduct towards co-workers. She did not find anything on that subject in the Jail's standing orders either. In contrast, while she was at the Elgin-Middlesex Detention Centre in London, significant time was dedicated towards educating COs about various employer policies. She was aware that health and safety issues were raised at health and Safety Committee meetings both at the London and Monteith jails. She had never attended a Health and Safety Committee meeting at Stratford. She believed that different health and safety issues were discussed at those meetings also, but she was not aware whether the specific issue of appropriate conduct towards co-workers ever came up. She testified that from 15 her expenence at other institutions pnor to comIng to Stratford, she was aware that roughhousing, physical horseplay and physical interchange among COs was not allowed. Under cross-examination the grievor admitted that the policies she had become familiar with at London and Monteith, which prohibited horseplay, roughhousing and physical interchange were Ministry-wide policies, and as such also applied at the Stratford Jail. When asked why she did not inform management at any time prior to grieving 10 months later, that she was of the view that her injury was a result of culpable or blameworthy conduct by Mr. Moore, she replied that the management would have been aware that Mr. Moore had assaulted her through the WSIB and other reports the employer had received. When asked which report would have that information, the grievor testified that Mr. Moore had admitted to Ms. Burford, the acting manager, that it was his fault and had made a similar admission in his Occurrence Report. In re-examination the grievor explained that she did not bring the female inmate incident to the employer's attention because in corrections there was a strict code that "You do not make derogatory reports about co-workers". She explained that "the guy you write up today may be the one you depend on to be your backup tomorrow". Those who report co-workers are known as "rats". She testified that if she had complained to the employer about Mr. Moore's conduct towards the female inmate, she may have prejudiced her own safety, as well as that of her husband. Mr. Rick Kennett, the grievor's husband, was at all relevant times, employed as a CO at the Stratford Jail. He had been Local President and union co-chair of the Joint Health and Safety Committee. At the time of the incident, he was the chief steward. He testified that prior to coming to Stratford in June 2001, he understood that employer policy prohibited horseplay and 16 roughhousing between employees. He had not observed that type of conduct at any other institution, or even at the Stratford Jail during his previous tenure there between 1987 and 1992. However, when he returned to Stratford in June 2001 he noticed that "rough-housing and physical activity" between COs was common. When asked to describe what he observed, he stated that "male COs were behaving like children." He had occasionally observed "bear hugs, pushing and play wrestling - just boisterous play like bored children". Mr. Kennett testified that prior to December 2001 he had observed Mr. Moore "play- fight" with Rich Boer, Dan Masse, Scot Bondy, Ray Lavareau and Eric Badger in the A&D area and in the kitchen. When asked for specifics, Mr. Kennett stated that approximately in September 2001, he saw Mr. Moore and Mr. Boer wrestle in the A&D area. He observed Mr. Masse pushing back and forth with Mr. Moore in the kitchen, trying to get at some butter tarts. He could not recall when he observed this. With regard to Mr. Bondy, Mr. Lavareau and Mr. Badger, the witness could not recall a date, or give any specifics, beyond stating that they were play fighting with Mr. Moore in the A&D area. He explained that all the incidents were very brief and said "you just disregard it because it happened all the time". Mr. Kennett could not recall any member of management being in the vicinity when any of the incidents he spoke of took place, but commented that "usually there is always a supervisor present when staff gather in the kitchen". Mr. Kennett testified that he was aware that Ms. Burford (a member of management) and Ms. Morgan (the nurse) had been injured by Mr. Moore prior to the incident. He testified that Ms. Burford told him while they were in the kitchen in October 2001, that Mr. Moore had injured her. When asked to elaborate, Mr. Kennett testified that Ms. Burford was a CET member and she mentioned that sometime in the past she and Mr. Moore were fooling around at CET training and that she had suffered a wrist injury. 17 Under cross-examination, Mr. Kennett agreed that, particularly because of his role as a union officer he was well aware of the Ministry policy prohibiting rough-housing and horseplay, as well as the prohibitions in the Act. He agreed that both the policy and the Act had Ministry wide application. He testified that he did not bring his observations to the attention of either the employer or the union because it did not raise a concern for him, despite his awareness of the policy and the Act. He explained that the incidents were very brief and that he had only observed the activity in passing. When employer counsel suggested to Mr. Kennett that Ms. Burford was only talking generally about the physical nature of the CET training and not specifically stating that she was injured by Mr. Moore, he disagreed and reiterated that she had stated that Mr. Moore had injured her. However, he agreed that she was not complaining that Mr. Moore had injured her intentionally, nor blaming him for her injury. He confirmed that he had known Mr. Moore since 1974, had grown up together, been roommates for a while, and were friends. Mr. Patrick Riley was employed as a CO at the Stratford Jail from 1997 to 2000. He described Mr. Moore as 6'3" tall and broad, and "happy-go-lucky, liked to have fun, joke around and to engage in mutual horseplay with co-workers". He testified that while he was not intimidated by Mr. Moore's size, a smaller person could well find him intimidating. When asked what mutual horseplay Mr. Moore had engaged in, Mr. Riley replied "He would play wrestle and show employees CET techniques on how to use force. He testified that he had seen Mr. Moore use force. When asked for specifics, Mr. Riley referred to an incident in 1998 or 1999 involving then acting lieutenant Lois Burford in the A&D area. Ms. Burford was seated on a chair and Mr. Moore was standing to her left. Mr. Moore applied "a use of force technique" on Ms. Burford's left hand. It caused her to yell and brought tears to her eyes and Mr. Moore released her hand. 18 Mr. Riley testified that he did not file an Occurrence Report because Ms. Burford was a manager. Mr. Riley did not think that Mr. Moore intended to hurt Ms. Burford. Mr. Riley testified that later in 1999, he witnessed another incident involving Mr. Moore and Mr. Dan Masse in the A&D area. Mr. Riley testified, "Mr. Moore and Mr. Masse were wrestling and Mr. Masse got pushed back into the wall. His back hit a light receptacle on the wall and he yelled in discomfort. Then Lieutenant Roseanne Allen was coming up the stairs and told them to stop horse playing, that they were acting like inmates." He referred to that as "a verbal reprimand" by Ms. Allen, and stated that the two COs immediately stopped their horseplay. Mr. Riley also testified that he had witnessed "more than once or twice" horseplay not involving Mr. Moore, particularly among the younger COso He testified that at the Stratford Jail, he was not aware of anyone being counselled or disciplined for horseplay, apart from the verbal reprimand by Ms. Allen. He personally had never been told by management that horseplay was against policy. Under cross-examination Mr. Riley agreed that he was aware of the policy prohibiting horseplay as well as the policy requiring a CO to bring to the employer's attention any contravention of policy through documentation or other means. With regard to the incident between Mr. Moore and Ms. Burford, he testified that he did not offer Ms. Burford any assistance after the incident, because he did not think she needed assistance. When asked if he viewed it to be a serious incident, he replied, "He did not intend to hurt her. But he inflicted pain. So I'd say yes". He agreed that since he was the only witness to an incident he regarded as serious, an Occurrence Report by him "could have been" important and that merely because the 19 injured party was a lieutenant, he was not exempted from the obligation to do such a report. He conceded that he did not file an Occurrence Report nevertheless. He testified that later during the shift, he asked Ms. Burford if she was "OK" and she replied that she was fine. Mr. Riley confirmed that the play wrestling he observed between Mr. Moore and Mr. Masse was mutual. He agreed that by the time Ms. Allen came on the scene they had already stopped, and that Ms. Allen would not have actually seen the physical interaction between Mr. Moore and Mr. Masse. Mr. Riley named Mr. Badger and Mr. Boer also as participants in horseplay. He stated that he himself never engaged in horseplay. He did not file an Occurrence Report with respect to any of his observations because he did not think the incidents were significant and because they were "mutual and agreed to and not like an assault". He also confirmed that he was aware that the policy prohibited horseplay and that an Occurrence Report was required to be filed by a CO who witnessed a breach of policy, whether or not one is specifically requested. In re- examination, Mr. Riley testified that the culture in jails was such that an officer complaining to management about the conduct of a fellow officer would be labelled as a "a rat", and subjected to negative treatment by co-workers. Mr. Christopher Cleave was also called by the union to testify. He worked as a CO at the Stratford Jail from October 1999 to May 2001, and again from August 2002 to March 2003, and had worked with Mr. Moore in that time. He described Mr. Moore as "a gentle giant" and "a big kid at heart", who was "a fun person to have around". He testified that horseplay/rough- housing occurred more at the Stratford Jail "when a certain group got together", during coffee and lunch breaks, mostly in the A&D area and the lunchroom. It would start in fun, like "boys being boys". However, he said that occasionally it got a little rougher than just play-fighting. Mr. Moore was part of the group. Union counsel asked whether this took place in the presence 20 of managers or acting managers. Mr. Cleave replied, "I believe it did because almost daily, managers join us for lunch, and on occasion join us for coffee in the A&D area". He stated that he believed that this type of horseplay would have occurred in front of every manager except Mr. Terry Williams. He stated that there was a consensus among staff that nothing improper should be done in front of Mr. Williams, because he was very strict. Mr. Cleave testified that he understood that horseplay and roughhousing was "unacceptable behavior" and that it was "unprofessional conduct". He stated, however, that he had "never been specifically told not to participate in it from a punitive aspect, although certain comments were directed". He explained that managers observing horseplay made comments such as, "grow up guys", "this is not a playground", and "How old are you guys". He stated that when such comments were made, the horseplay would stop for the moment, but it did not cause an overall change in the way staff behaved. He stated that female officers also participated in horseplay. Mr. Cleave testified that he was not aware of any staff officially complaining about this type of behavior. However, he recalled over-hearing a discussion among female COs to the effect that "Steve Moore didn't know his own strength". Beyond recalling that "it was warm outside" that day, he could not say when this happened. However, he did recall that the comment was made by Ms. Janet Laverty, and that Ms. Laurie Snow was one of the females present at the time. Mr. Cleave was not sure whether any manager or supervisor was present but he believed that management would have been aware because this discussion had occurred "3-4 more times". He went on that, once it happened at lunch in the kitchen and that a female CO who acted as manager, Ms. Christa Neal, "had the same concern that was addressed in the other discussion" . 21 Ms. Cleave was asked by union counsel ifhe was aware of any other information to show that management was aware of this concern among female COso He stated that on one occasion he raised with Ms. Laurie Snow, the union representative for unclassified COs, of concerns he had about unfair treatment of unclassified officers, by full-time COSo Ms. Snow met with the then Superintendent of the jail, Mr. Harry Bartz to discuss those concerns. Shortly after that meeting had ended, Mr. Bartz asked Mr. Cleave to come to his office. During that meeting Mr. Bartz asked him whether he had "any issues with Steve Moore". Mr. Cleave replied that he did not. Even though he had not discussed with Ms. Snow about Mr. Moore or horseplay at all, from the question Mr. Bartz asked him, he concluded that Ms. Snow had also discussed concerns about Mr. Moore when she met with Mr. Bartz. Mr. Cleave testified that he suffered an injury during an incident with Mr. Moore in late fall 2000. Mr. Cleave and Mr. Moore had finished their shifts, and were waiting by the Sally port in the main hall. He stated, "One of us started poking the other. Next it turned into a full arm wrestling match in a playful manner. At some point I cut my thumb on Steve's metal watch. It took a chunk of skin off. I went to the nurses' Office and wrapped a paper towel because it was bleeding. Then I left." According to Mr. Cleave this incident occurred "right in front of the manager's office". When asked if a supervisor witnessed the incident, Mr. Cleave said, "Mr. Gary Sanderson, the Operations Manager was sitting at his desk in the office". He said that Mr. Sanderson would have "partially" witnessed the incident, since he and Mr. Moore started wrestling at one end of the hallway and moved to the other end, and would have passed in front of Mr. Sanderson's office. Mr. Cleave said that there would have been a noise because he and Mr. Moore were banging into walls. Mr. Cleave testified that from his office Mr. Sanderson made a general comment like "grow up guys", but did not come out of his office. On his way 22 home, Mr. Cleave stopped at the local hospital to get "steri-strips" for his thumb because the paper-towel was blood-soaked. Shortly after he got home, he received a call from Mr. Sanderson, who asked him why he had told the hospital that the injury was not work related. He replied that he did that because the injury happened after his shift had ended. Mr. Sanderson instructed him to submit a report confirming that the injury was not work related. He did that, but did not retain a copy. Mr. Cleave said that besides that, no manager spoke to him about the incident. Nor was he disciplined. He was not aware of any CO being disciplined for horseplay/ rough housing in the period October 1999 to May 2001. Under cross-examination, Mr. Cleave was asked to name the male and female officers who he had stated engaged in horseplay. He replied that he could only recall Mr. Moore and Mr. Dan Masse from the male group, and only Ms. Christa Neal and Ms. Janet Laverty among females. Employer counsel pressed Mr. Cleave to provide specific incidents when the horseplay got "rougher". He said, "I can't give an exact incident. But I can say I hated being poked and people knew it. So when they poke me, I'd push them or poke back harder". He said the "two females" poked him, but because they were females he would not react as with males. Counsel pressed him for specifics about what the two females did. He replied that it was summer, and Christa Neal "would poke me in the ribs with a finger as she walked by, and she would giggle". When asked what he did in response, he said "Nothing really. I'd use some language in a light hearted manner." Employer counsel again asked Mr. Cleave for specific incidents when it got "rougher". The only information Mr. Cleave provided was "we had a pseudo-wrestling match near the holding cells, me, Steve Moore and Dan Masse." When asked for specifics about managers witnessing horseplay, Mr. Cleave stated that the more serious incidents did not happen in front of managers. However, he referred to one 23 incident that "stood out". He said "Lois Burford had a skin rash. She was upset about it. I know it was from play fighting. But I didn't witness that". When asked for examples of horseplay he had witnessed happening in the presence of managers, he said he "could not recall any off the top". Employer counsel asked Mr. Cleave for specifics about which managers made comments upon witnessing horseplay. He replied "pretty much all them". When pressed for names, Mr. Cleave referred to Jamie McAlpine, Gary Sanderson, Rozanne Allen, Bruce McNall, Christa Neal and Lois Burford. When asked for specifics about when and what each manager said, Mr. Cleave replied that he could not recall anything specific with regard to any of the managers he had named. However, he stated that Ms. Neal and Ms. Burford were among 4 or 5 females who he overheard "discussing about Mr. Moore's strength". When asked who the other females were, Mr. Cleave named Ms. Laurie Snow, Ms. Julie McLeod, and Ms. Janet Laverty. He said that it was mainly male officers who participated in horseplay. He said "To us it was just good clean fun." Mr. Cleave testified that the concern Ms. Snow and Ms. Laverty had about Mr. Moore was that he did not understand his own strength when play fighting. However, he conceded that the two officers did not express such a concern to him. He had only overheard them talking about it. Mr. Cleave stated that the managers' comments such as "grow up guys" were made in response to "little things" like poking, teasing, flicking of ears and messing up hair. When asked for details about the pseudo-wrestling match with Mr. Moore, Mr. Cleave could only say it was between 1999 and 2001. He described pseudo-wrestling as "pushing and shoving and trying to use wrist locks and arm bar tactics that we are taught." He said that this rougher horseplay did take place in the presence of managers. When asked for specific incidents where managers left the area upon observing horseplay, Mr. Cleave said, "one occasion was when we were in the kitchen and the CO's start. If the OM has finished eating he will say, "I don't want to be a part 24 of this" he would leave. Even then its said in a light-hearted manner. Not being punitive". Employer counsel asked whether such an incident actually happened. Mr. Cleave's response was "Stuff like that was daily. That was the environment." When again asked for a specific incident when a manager left the room in that manner with the manager's name and a date, Mr. Cleave's response was, "They'd all do that. Except Terry Williams. He won't put up with that. May be Rozanne Allen also. The rest are friendly and they'd just laugh with us." When counsel suggested that officers did not wrestle in front of managers, Mr. Cleave said that they did and explained "If! am poked and I push him away, I call it wrestling". Mr. Cleave confirmed that he had not made any complaint about his observations of horseplay. When employer counsel suggested that any physical interaction between CO's he had observed was consensual, Mr. Cleave agreed that it would start that way, but that often when things got rougher, "some guys" would continue the horseplay, even though the other person had asked that it stop. When asked who did that, Mr. Cleave named Mr. Moore. Mr. Cleave testified that this has happened to Janet Laverty and Laurie Snow. He stated that he "specifically recalled talking to those two and that they had said "That guy is so rough and doesn't know his own strength" and that "he is like a teddy bear who likes to play". He said that Julie McLeod and Christa Neal had also told him that. Mr. Cleave stated that these comments were never made "in a negative or angry manner", but only in general conversation about Mr. Moore. Counsel pointed out to Mr. Cleave that he had previously testified that he only happened to overhear Ms. Laverty and Ms. Snow make the "he doesn't know his own strength" comment, and clearly testified that they had not spoken to him about that, but now he had contradicted himself. Mr. Cleave explained that he had misunderstood the question, and confirmed that he had only overheard, and stated that he had overheard that discussion "on a regular basis". 25 Counsel pointed out that he had previously testified that he had overheard 4 or 5 times. Mr. Cleave responded that for him even "once or twice" is regular. Employer counsel put it to Mr. Cleave that Ms. Snow would testify that Mr. Moore always stopped when asked to, and further that she had no concerns about Mr. Moore's conduct. Mr. Cleave insisted that his testimony was correct, and again referred in support, to Ms. Snow complaining to Mr. Bartz about Mr. Moore's play fighting. He agreed that he was not privy to what Ms. Snow discussed with Mr. Bartz since he was not present, but insisted that it was not a reasonable deduction from the fact that Mr. Bartz had asked him shortly after whether he had any issues with Mr. Moore and play fighting. Mr. Cleave was asked for the basis of his testimony in chief that "all females had issues with Mr. Moore". He replied that it was based on their general conversations he had over-heard. He insisted that those conversations took place, even though counsel put it that Ms. Burford, Ms. Laverty and Ms. Snow will deny that. When asked why he did not submit an occurrence report or otherwise complain to management, particularly when Mr. Bartz had specifically asked him whether he had any issues about Mr. Moore, he replied that it was not his place to complain on behalf of female officers, and also because he did not think that the females were "overly concerned" . With regard to his thumb injury, Mr. Cleave estimated that the interaction with Mr. Moore lasted about one minute. When counsel suggested that while interacting with Mr. Moore, Mr. Cleave would not have been paying attention to what was going on around him, Mr. Cleave agreed, but added "but I know Mr. Sanderson was just coming in the door or was already in the office." Counsel pointed out that in chief, Mr. Cleave had clearly testified that he had observed 26 Mr. Sanderson seated at is desk with the office door open, as they scuffled past the office. Mr. Cleave explained that he may have said that because that was where Mr. Sanderson was when he said good bye to him later. He stated that he did not know if Mr. Sanderson came out of the office at the time of the incident. Then asked, "So you are not sure if he saw", Mr. Cleave replied "I don't know", but said that he assumed that Mr. Sanderson would have heard because he and Mr. Moore were not quiet. During cross-examination Mr. Cleave testified that after he cut his thumb on Mr. Moore's watch, he got "a bandage or two" from the Nursing Office. When it was pointed out that in chief he had said that he only got some paper towels and that he had to stop at the hospital on his way home to get bandages because the paper towel was soaked with blood, he said he may not have got bandages from the nursing office. Mr. Cleave was asked if he recalled asking Ms. Snow to make an appointment to see Superintendent Bartz about his injury. Mr. Cleave replied that he did not think he would have done that because he took the incident "light-heartedly" and had no complaint. However, he stated that he was not saying that Ms. Snow was fabricating her testimony that he did make such a request, and that either he or Ms. Snow may be confused. Mr. Cleave also agreed that it was possible that he had told Ms. Snow that the incident with Mr. Moore occurred in the A&D area and not in the hallway in front of the manager's office and that he may have got the details inaccurate during his testimony. However, he then again stated that he was sure that most of the incident occurred in the hallway, although what led to the incident may have started in the A&D area. 27 During re-examination, Mr. Cleave confirmed that he had seen one CO wrestling another to the ground, but was not sure if that had ever happened in front of a supervisor. He was asked what his response would have been if Mr. Bartz had asked him whether he was aware of any concerns or issues other staff had about Mr. Moore, Mr. Cleave replied, "I would've said no". The nurse Ms. Morgan testified in cross-examination that she had not heard of any concerns from female COs about Mr. Moore not knowing his own strength. In re-examination Ms. Morgan stated that apart from the grievor she could not recall anyone coming to the nursing office with an injury caused by Mr. Moore. Mr. Richard Boer worked as a CO at the Stratford Jail from May 2001. He testified that ever since he started employment as a CO in 1998, he understood that the policy at all institutions, whether "by policy, standing orders, code of conduct or whatever", did not tolerate horseplay and rough-housing. He stated that he had not engaged in such conduct. However, Mr. Boer testified that he became a CET member in 2002. He said that COs generally, and CET members in particular, were encouraged to practise the restraining and take down techniques whenever possible, and that COs would practise during down time. He stated that those techniques were useful for all COs, not only CET members. He practised his skills mostly with Mr. Dan Masse, but also did so with Mr. Moore occasionally. He said that most of the practising occurred in the A&D area during down time after lunch. When asked if managers were aware that staff practised their skills in this manner, Mr. Boer replied that he could not recall seeing any particular manager, but added that there was no reason for COs to hide it because they were encouraged to practise. 28 Counsel put to Mr. Boer that witnesses had testified that they had observed him engage in horseplay/rough-housing. Mr. Boer replied that he did practise his CET skills frequently and that it was possible that anyone who happens to observe may interpret that as horseplay/rough- housing. He insisted that what he did was not horseplay or roughhousing because he was acting professionally practising a skill required for his job. Mr. Boer testified that he had never seen Mr. Moore engage in horseplay/rough-housing. He had never heard of a sentiment among female COs that Mr. Moore did not know his own strength. He described the Stratford Jail as "a quiet small town jail with a pretty lax atmosphere where staff enjoyed working". Compared to Hamilton, where he had previously worked, at Stratford it was unusual to have an incident requiring inmate restraint and the staff at Stratford generally got along well. Under cross-examination, Mr. Boer agreed that CET members are gIven scheduled periods for practicing. He also agreed that when managers encouraged COs to practice, they may have expected that it be done on the COs' own time, and that they had not been specifically told that they could practise at the jail during down time. He emphatically reiterated that besides practising his CET skills, he had not at any time engaged in horseplay/rough-housing. He agreed that during practice someone may get thrown on to the floor or banged against a wall, and that someone seeing that may see it as horseplay or roughhousing. When asked if a participant can get injured while practising, Mr. Boer stated that while all possible precautions are taken to avoid injury during practice, like in any sport there was the potential for injury. Mr. Richard Campbell became superintendent of the Stratford Jail in July 2001 and held that position at the time of the incident on December 13, 2001. That day he was away from the 29 jail. On December 14th Ms. Lois Burford filed an OR and also spoke to him. He learned that the grievor sustained an injury the previous day during an incident involving Mr. Moore, that the grievor had refused an offer to be taken to the Stratford hospital and that arrangements were made for Ms. Morgan to drive her home. Shortly after he also received an OR submitted by Mr. Moore. He testified that he had been unsuccessful in his attempts to locate Ms. Burford's OR. Mr. Campbell testified that Mr. Moore's OR did not cause him any concern, and as usual he initialled and filed it. However, he spoke to Mr. Moore the following week. Mr. Moore stated that he was sorry the incident had occurred and showed concern about the grievor. Mr. Moore's version of the events was consistent with Ms. Burford's. Based on those, Mr. Campbell concluded that the injury was a result of an accident. While he was very much concerned about the grievor's condition, he had no concern that needed to be investigated or addressed by discipline, because Mr. Moore had admitted his involvement. Since Mr. Moore admitted responsibility, he exercised his discretion not to impose discipline. He concluded that it was an accident because he believed Mr. Moore when he said that he was merely teasing and joking with the grievor, showed concern for the grievor, and said that he was sorry for what happened. He did not receive an OR from the grievor. He did not direct her to file one, because he had received ORs from Ms. Burford and Mr. Moore, had seen the WSIB Form 7, and was satisfied that he had enough information. After he spoke with Mr. Moore, Mr. Campbell decided not to oppose the grievor's WSIB application because the information indicated that an accident had occurred at the workplace. Mr. Campbell testified that following the incident, he spoke to the grievor or her husband approximately once a month to inquire about her medical condition. He had no idea that the grievor viewed the incident as anything more than an accident, until late October or early November 2002 when she informed him that she intended to grieve that the 30 employer had failed to protect her health and safety. By then Mr. Moore had gone off sick with cancer and he had no opportunity to speak to him before he passed away. Mr. Campbell's testimony was that he had never received a complaint about Mr. Moore's conduct from anyone as of the date of the incident. Nor had he seen or been made aware of, horseplay/rough-housing on Mr. Moore's part. He did not believe that roughhousing was a general occurrence at the Stratford Jail. He reiterated that Ministry policy prohibited such conduct and that the Stratford Jail followed that policy. He stated that he was not aware that COs practised CET techniques at the workplace during their downtime. Under cross-examination, Mr. Campbell admitted that upon reading Mr. Moore's OR and talking to him, he was aware that the grievor's injury was caused by Mr. Moore's actions, that her injury was serious, that Mr. Moore's conduct amounted to horseplay, and that horseplay was unacceptable and contrary to policy. He conceded that since taking over as Superintendent in July 2001 until the incident, he had not taken any specific steps to re-affirm the Ministry policy against horseplay/rough-housing, but rather trusted that the employees knew what was acceptable conduct. Nor did he specifically inquire from managers whether the staff was complying with policy. He also confirmed that following the incident, he had not made any inquiry as to whether there had been prior incidents of horseplay/rough-housing at the Stratford Jail. Ms. Lois Burford was the Operational Manager at the time of the incident. She disagreed with the proposition that horseplay was rampant at the Stratford Jail, but stated that occasionally - 4 or 5 times a year - she did observe COs engage in horseplay. She described the horseplay she observed as "fooling around, having fun, animated discussion and playful arguments". 31 When asked for specific events, she said she could not recall any but said, "In general it was people joking around during down time. I picture two people arguing and one pushing the other to make a point." She stated that such behavior was typical in a correctional environment because staff spend long periods working together and confined to the building with no "alone time". Therefore, unlike in an office setting, out of boredom and need for releasing stress, such conduct was human nature. She stated that she was not stating that horseplay of that nature was acceptable, but in her opinion it was inevitable. Ms. Burford testified that when she observed such horseplay, her general response was to give the participants a verbal warning, which she described as the first step of progressive discipline. She had not observed an officer who had been verbally warned repeat the conduct. She stated that the verbal warnings were made with respect to activity such as "animated conversation, teasing each other, maybe a little push or one grabbing the others arm". She had never observed conduct more serious than that. There was never "an aggressor" and "a victim". In each case she observed both participants were having fun. She sometimes made a note for herself, but she had never done an OR for any incident she had observed. She estimated that she issued 3 to 4 verbal warnings a year for this type of horseplay and emphasized that she was not aware of any injury resulting from horseplay prior to the grievor's incident. Mr. Burford testified that on occasion she had observed Mr. Moore engage in horseplay, but not when she was in the capacity of a manager. Therefore, she had not issued any verbal warning to Mr. Moore. She recalled an incident when she was a CO where she and Mr. Moore had an argument in the A&D area, which got animated and went back and forth. Each was trying to prove a point. It was about a political or personal issue. During this interchange Mr. Moore pinched her under her upper arm. She said that it was like a brother and a sister doing little things to irritate each other. She yelled that it hurts and Mr. Moore stopped. She did not 32 categorize that she suffered an "injury" in that exchange. Ms. Burford stated that she also observed Mr. Moore and Mr. Masse engage in a similar animated argument in the A&D area, again before she became a manager. She could not recall any more detail but believed that at the time the two officers were on break on a CET training day. Ms. Burford was a CET member herself. The team consisted of 4 persons and Mr. Moore was the team leader. Mr. Moore was proud of that role and he took it very seriously. He had been chosen leader by the rest because he was very professional, was very good with techniques and had the ability to keep calm in difficult situations. When employer counsel put to Ms. Burford the testimony by union witnesses that she had been overheard stating that Mr. Moore had acted aggressively towards her during CET practice, she agreed that such conversations may have occurred more than once about Mr. Moore as well as Mr. Masse, who was also a CET member. She explained that one CET member acts as "victim" during practice. The victim wears protective padding and the other member is supposed to strike the victim using special techniques. Since Mr. Moore and Mr. Masse were significantly bigger than her, Ms. Burford found it difficult when it was her turn to be the "victim". During practice, they are supposed to strike with all the force to make it real. Ms. Burford testified that she had volunteered to be on the CET team knowing what it entailed and stated that Mr. Moore and Mr. Masse were only doing what they were supposed to do. However, she did not ever feel that Mr. Moore was using excessive force on her. If anything he was using less than his full force because he realized the difference in size and did not want to hurt her. She stated that if Mr. Moore or Mr. Masse had used their full force, she would have fallen flat on her back. Ms. Burford recalled that she had discussed with Mr. Moore and/or Mr. Masse that she was finding it hard when she had to be the "victim". They would tell her that they were 33 supposed to use full force because an inmate in a real situation would not take it easy on her just because she was built small. Ms. Burford testified that she had not complained to anyone about Mr. Moore's use of force during CET practice. However, if someone asked how CET practice went, she would describe how she found it difficult to be the victim with the big men striking her with force. Ms. Burford testified that she had not been injured at any time in interacting with Mr. Moore. She could only recall two or three pinching incidents and she was not injured during that. According to her she never complained to anyone about the incidents, all of which probably took place when she was also a CO. Ms. Burford denied that she had ever said anything derogatory about Mr. Moore to the grievor or her husband, Mr. Kennett. She stated that she had no negative opinion about Mr. Moore anyway. She liked him and respected him very much. She stated that she barely knew the grievor. However, she considered the grievor's husband to be a friend and was aware that he and Mr. Moore were good friends and had been college roommates. Thus, she would not have felt comfortable criticizing Mr. Moore with him anyway. Ms. Burford described Mr. Moore as, "very intelligent, hard working, had very high values and morals, had tremendous love, respect and loyalty to his wife and family, fun loving, social and life of any party and had a great sense of humour". She said Mr. Moore was "really a great person and that it was tragic that he died so young". She stated that having worked with and supervised hundreds of CO's, she regarded Mr. Moore as one of the better CO's she had seen. He took his job seriously and did it well. She had never observed Mr. Moore use excessive force against an inmate. She summed up stating that Mr. Moore was "all in all a well- rounded professional". According to Ms. Burford, Mr. Moore got along very well with his colleagues. The only exception was that he and Mr. Riley did no appear to like each other. If they had the option they chose not to work together. 34 Ms. Burford strongly disagreed that Mr. Moore disliked female CO's and said "he was pretty much the opposite of the old correctional environment where women were not accepted. He treated women as equals". She stated that in fact Mr. Moore would be the first one to defend women, when other males argued that women are not suited to be CO's. Ms. Burford agreed that Mr. Moore had a goal of making a career in the police, and as many others did, he was using the CO job as a stepping-stone. However, she strongly denied that that he disliked being a CO. Under cross-examination Ms. Burford could not recall whether she documented any of the verbal warnings she had given with respect to horseplay. If she did, those would have been shredded at the time she moved. Ms. Burford stated that she did not investigate the incident. The superintendent did not direct her to, and she did not feel an investigation was necessary since she saw it as a relatively minor incident, based on what Mr. Moore and the grievor had told her. At the time she thought the grievor had suffered a strained or pulled muscle, and Ms. Burford transferred to Maplehurst shortly after. Ms. Burford agreed that the horseplay she had observed prior to the incident sometimes involved physical interaction, including on occasion pushing and wrestling. Ms. Burford explained that in her mind writing an Occurrence Report in a case where discipline is intended, makes that report a written warning. Thus writing an Occurrence Report for a first offence would be contrary to progressive discipline. A verbal warning in her view was not supposed to be documented and no one other than the employee and the supervisor giving the warning ought know about it. Ms. Burford could not recall getting any specific training related to horseplay as acting manager. Nor did she recall any discussion about horseplay with either of the two superintendents she had worked for. 35 Ms. Janet Laverty worked as a casual CO at the Stratford Jail from February 1998 to August 2001. She testified that in that period she had observed horseplay such as pinching the arm and flicking of ear lobes among COso Ms. Laverty was a CET member. She testified that on occasion CET members, Mr. Moore, Mr. Masse, Mr. Dan Grover and herself, would practise CET techniques in the A&D area during down time. She stated that while she had not observed any manager watching, management had to be aware that CET members did that. Ms. Laverty had worked regularly with Mr. Moore. She said that he looked like a "big brute" but was a very sincere and genuine person and a very good CO. He was very direct and stern with inmates, but she had never observed him use excessive force against inmates. He had never acted aggressively towards her. Ms. Laverty testified that she has had "consensual pinching battles" with Mr. Moore. Either could start pinching and then they pinched back and forth, but it never got any more serious than that. She said that they had an understanding that when one says "that's enough" the other backs off. When asked if she ever felt that Mr. Moore did not know his own strength, Ms. Laverty replied "absolutely not" and explained that when she played the role of victim at CET practice, Mr. Moore would not take her down with the same force as he would with a male. She stated that she had never seen Mr. Moore act inappropriately or unprofessionally. Ms. Laverty vehemently denied that Mr. Cleave could have overheard her complain about Mr. Moore to Ms. Snow or Ms. Neal because she never felt Mr. Moore ever crossed the line with her and had no complaint about him. She had never heard any male or female COs complain about Mr. Moore. She described Mr. Moore as "a big kid", who could be serious or funny depending on the situation. He was liked by everyone. Under cross-examination, Ms. 36 Laverty stated that she had absolutely no knowledge about casual COs voicing any concern to Ms. Snow or anyone else about Mr. Moore's being too aggressive. Ms. Laurie Snow had worked as a CO at the Stratford Jail since December 1996. She served as an elected union steward for a period. She agreed that horseplay occurred at the Jail as in any typical workplace, but disagreed that it was rampant or a problem. She stated that prior to December 2001, activity such as pinching matches, or someone poking or faking a shoulder hit as he or she walked by, occurred almost daily. She stated that on one occasion she had engaged in pinching with Mr. Moore and that she had also done the fake shoulder hit with him. On another occasion Mr. Moore jokingly challenged her to arm wrestle. She declined and he did not pursue it. Ms. Snow testified that as a CO and as a union official, she did not ever feel that the type of horseplay that went on was inappropriate because none of it was rough. It was all done in fun, and when told to stop it always did stop. Mr. Moore always did that. Mr. Moore had never used excessive force against her. The only time Ms. Snow could recall of a manager observing horseplay was when Mr. Moore had Mr. Masse in a headlock. Mr. Gary Sanderson told them to "knock it off'. They said they were practising their CET moves and they both stopped. The only complaint Ms. Snow had heard about Mr. Moore was about him calling casual COs names as part of a group of full-time COso Some casuals approached her and she spoke to the superintendent on their behalf. The superintendent instructed that if it happened again casuals should ask the full-timer to stop. She conveyed that to the casuals and when the casuals followed that advice, the name-calling stopped. 37 Ms. Snow vehemently denied that she had ever discussed with Ms. Laverty or Ms. Neal that Mr. Moore did not know his own strength. She stated that Ms. Neal is very unlikely to say anything derogatory about Mr. Moore because they were good friends and even socialized outside work. Ms. Snow had never heard female CO's complain about Mr. Moore. She categorically denied that she had approached Superintendent Bartz to raise concerns on behalf of female COso She stated that Mr. Moore was one male CO who treated all co-workers, male or female, equally. She was not aware of any female CO who did not treat Mr. Moore as a friend. Ms. Snow agreed that Mr. Moore was using the CO experience as a stepping-stone to get into the Police force. She said that many COs do that. However, he not only enjoyed his CO job, he also got his co-workers in a better mood. He was stern with inmates, but never rough. Ms. Snow was not aware of any female CO, other than the grievor, who had been injured by Mr. Moore. The only time she had approached management about horseplay was when she accompanied Mr. Cleave who wished to speak to Superintendent Bartz about the incident with Mr. Moore during which he cut his thumb. Ms. Snow testified that she was certain that Mr. Cleave had said at the time that the incident took place in the A&D area, not in the front hallway. Mr. Cleave did not ask Mr. Bartz to take any action against Mr. Moore, but merely wanted to be assured that the incident will not be repeated. Mr. Bartz assured that he will speak to Mr. Moore as well as the managers, and Mr. Cleave seemed to be happy with the outcome. She said that Mr. Cleave's denial during testimony that he had met Mr. Bartz in her company was "an out and out lie". She stated that she even clearly recalled making notes about the meeting and giving a copy to Mr. Cleave. Under cross-examination, Ms. Snow stated that the only time she observed interaction which may be characterized as "wrestling" was the incident between Mr. Moore and Mr. Masse. 38 She stood by her position that the only complaints she had raised with management were about the casual officers' complaint about name-calling, and Mr. Cleave's concern following his thumb injury. In re-examination, she described the horseplay that occurred almost daily as people joking around like messing up someone's hair or untying shore laces. She had not observed rough conduct such as "wrestling, smashing on to walls or rolling on the floor". Based on all of the evidence, there is no doubt that the grievor suffered a serious and lingering injury as a result of the incident on December 13, 2001. Employer counsel asserted that the evidence does not clearly establish whether or not all of the disability and pain the grievor is enduring is attributable solely to the injury suffered that day, or whether a pre-existing injury was a contributory factor. While "contributory negligence" and/or "thin-skulled plaintiff' may become issues if an apportionment of damages is required, at this stage it suffices to record that a serious injury resulted from the incident, whatever the precise degree of that injury may have been. Neither party disputed that the interaction between the grievor and Mr. Moore constituted "horseplay". The major point of contention, however, was whether that interaction was consensual. The union contends that it was not, based on the grievor's testimony that despite her yelling, "Stop! You are hurting me," Mr. Moore continued to use force. Union counsel pointed out that the whole incident started with Mr. Moore taking property - the tin containing fudge - which belonged to the grievor. The grievor had a right to take back her fudge, and in attempting to exercise that right, had not consented to any use of force against her. The evidence is clear that Mr. Moore was joking and teasing the grievor by taking possession of the fudge and telling her that he was going to eat it all. While the grievor did have a legal proprietary right to the fudge, she resorted to self-help to get it back, by physically going after Mr. Moore who was 39 much bigger than she was. There is no doubt that the physical contact was initiated by the grievor. The overwhelming evidence before me is that Mr. Moore did not engage anyone in horseplay unless that person was a willing participant. Every incident the Board heard about, from employer as well as union witnesses, was consensual in nature. The employer argued that the grievor's claim that Mr. Moore's physical horseplay had continued despite her pleas to stop is not credible, because all other witnesses testified that Mr. Moore always stopped when asked to. However, even if Mr. Moore had not stopped the moment the grievor asked him to, that does not make the incident as a whole non-consensual. If retrieving the fudge was that important to her, the grievor had other options besides physically going after Mr. Moore. The fact that she had a legal right to the fudge does not detract from the fact that she initiated the physical interaction, which unfortunately resulted in her injury. I find that the interaction was consensual. The unfortunate fact is that both Mr. Moore and the grievor were joking around and neither would have anticipated that such interchange could lead to a serious injury. The next issue is the nature and extent of horseplay that had taken place at the jail prior to the incident. Apart from two incidents, all of the evidence in this regard fall within one of two categories. The first is what I would call teasing or irritating conduct engaged in fun between two consenting persons. Thus the Board heard about flicking of ear lobes, messing up hair, untying shoe laces, poking, ducking or faking a shoulder hit while walking by, and pinching matches. The overwhelming evidence is that this activity occurred very frequently during breaks and down time, and that it was always consensual. Also the evidence is that generally, and specifically on the part of Mr. Moore, if the teasing crossed the line or caused discomfort or pain, and one told the other to "stop" or "that's enough", the activity stopped. There is no evidence of anyone suffering any injury as a result of this activity of which Mr. Moore was a main 40 participant. There is no evidence that anyone raised any concern about this type of activity, leave alone complain to management. The second category of "horseplay" the Board heard about had to do with CET members practising techniques used in cell extraction during their down time and breaks. This involved grabbing, wrestling and restraining by use of different types of holds. The evidence is that these are techniques taught to the 4-member CET team. While CET members were encouraged generally to practise these techniques as often as they could, there is no evidence that permission was sought or granted to do that at the workplace during breaks or down time. This activity took place only among CET members and it was always consensual. The evidence establishes that since the practising of CET techniques involved rough physical exchanges, there was a potential for injuries. However, consistent with the consensual nature of the activity, there is no evidence of any concerns or complaints being raised. Several witnesses testified about their observing play fighting and wrestling. Since the participants were CET members, I am satisfied that at the time of the observations, they were in fact practising CET techniques. The two incidents which do not quite fit within the two types of horse-play reviewed above occurred between Mr. Moore as one participant, and Mr. Cleave and Mr. Steve Guylee respectively, as the other. The only evidence about the incident involving Mr. Moore and Mr. Cleave was tendered by Mr. Cleave. Mr. Moore as well as the shift supervisor Mr. Gary Sanderson, who Mr. Cleave alleged witnessed the incident, had passed away. Mr. Guylee did not testify. Mr. Bartz, the Superintendent at the time, was called by the union to testify about this incident. He testified that at a managers' meeting it was brought to his attention that while Mr. Moore and Mr. Guylee were walking along the side-walk leading from 41 the jail to the parking lot following the completion of their shift, there had been some "fooling around" between the two. He was told that Mr. Moore had got hold of Mr. Guylee's hand or a finger and twisted it. He was advised that it was a mutual exchange engaged in good fun and that no injury resulted. Mr. Bartz testified that subsequently he met with Mr. Guylee, who told him that it was a minor incident, and appeared to be very embarrassed that the superintendent was even raising it with him. He did not want anything at all to come out of it. Mr. Bartz also spoke to Mr. Moore. Mr. Moore immediately admitted the incident, and basically corroborated what Mr. Guylee had told him, that it was a minor exchange engaged in fun and that they both laughed and went on their way. Mr. Bartz testified that he felt Mr. Moore had the right attitude because he acknowledged what he did. He considered that fact, as well as the fact that the incident occurred after shift and outside the building, and determined that the incident did not contravene the Ministry policy on horseplay. In the circumstances he decided that no disciplinary action was warranted. He was in any event doubtful that he had authority to discipline because the incident occurred after work in a public area. Therefore he made an informal caution to Mr. Moore to the effect "Steve, don't get involved in stuff like that." Mr. Bartz testified that subsequently Mr. Moore and Mr. Guylee got along well. Having reviewed the nature and extent of horseplay that occurred at the Stratford Jail preceding the incident, the next issue is to what extent was management aware of this activity. Employer counsel pointed out, correctly in my view, that much of the evidence about employer knowledge was very general and lacked specificity, and at other times the evidence was based on hearsay. Nevertheless, I am satisfied that there is sufficient evidence to conclude that shift supervisors would have been aware of the fact that the two main types of activity - the teasing and the CET practising - went on. The evidence is that these types of activity occurred very 42 routinely. There is also evidence that at least on a few occasions managers made cautionary statements and/or verbal warnings upon observing the activity. In the total context of the circumstances it is not reasonable to conclude that the management had no knowledge of this type of activity going on. With regard to the Guylee incident, it is clear that management became aware of the incident and I have reviewed the action taken by management. With regard to the Cleave incident, I do not find that Mr. Sanderson witnessed the incident. I did not find Mr. Cleave to be a credible witness. He tended to exaggerate and gave contradictory evidence. In chief, he related clearly that as he and Mr. Moore went down the hallway past the Manager's office, Mr. Sanderson was sitting at his desk, and that from the office Mr. Sanderson made a comment. However, under cross-examination he said that during the incident Mr. Sanderson "was either coming in or already in his office". Moreover, Ms. Snow insisted that when Mr. Cleave spoke to her at the time, he had told her that the incident and the injury occurred in the A&D area. Mr. Cleave was evasive when this evidence was put to him. All of the foregoing leads the Board to conclude as follows: The employer was aware that employees were engaging regularly in teasing activity such as pinching matches, poking, messing up hair, untying shoe laces, faking should hits or ducking as you walk by. The employer was also aware that CET members practised their CET techniques at the workplace during their down time. The employer took no disciplinary or other significant action against either type of activity. The only evidence is that on some occasions managers issued non- disciplinary cautions upon observing the activity. Similarly, with regard to the Cleave and Guylee incidents the only action the employer took was to informally caution the participants. No disciplinary action was taken. 43 The issue then is whether the manner in which the employer responded to the activity and incidents it was aware of prior to December 2001 amounted to a contravention of its duty under article 9.1 and/or S. 25(2) of the Occupational Health and Safety Act, and if there was such a contravention, whether that contributed in whole or in part to the incident on December 13, 2001. The grievor to be successful must establish first that prior to the incident the employer failed to comply with its duty under the collective agreement and/or the Act, and second, that such non- compliance caused or contributed to the incident. The union's position was that even if the horseplay which resulted in injury to the grievor was consensual, it would not have happened if the employer had complied with the law, rather than allow horseplay and roughhousing to routinely take place in the workplace. Citing various provisions of the Act which require employers to train, provide explanatory material etc., union counsel argued that the Act contemplates that an employer would take steps necessary to prevent the occurrence of acts which pose a health and safety risk, including "rough and boisterous conduct". Counsel submitted that these steps include the imposition of discipline in appropriate cases. Union counsel relied on the following passage from Re Watts/King, 1367/90, 1368/90 (Kaplan) at p. 26, in submitting that the union is not obliged to show that employees had been seriously injured in the past as a result of horseplay, provided a potential for such injury exists: The employer has an obligation to take reasonable precautions for the safety and health of its employees. Like other panels of this Board, we are of the view that "reasonable" does not mean "every". And we are also of the view that what is reasonable will depend greatly on the facts of each case, and must involve a balancing of interests of the employees and the employer. In the instant case, the fact that no employee has been attacked or injured while conducting a patrol is 44 neither here nor there in the same way that the concerns raised in the Stockwell case had not taken place. It is obvious that the potential for injury exists. Counsel also urged that I adopt the reasoning in the racial harassment case Re Chan, 1990/90 (Dissanayake) at p. 45, with regard to employer knowledge: The Board agrees with the employer to the extent that under either article Al or article 18.1 there are no absolute guarantees on the part of the employer. There is no strict liability on the employer, in that merely because an employee racially harassed or put another employee at a health or safety risk, the employer is not thereby exposed to liability. The employer's liability depends on its knowledge of the offensive conduct and its response to it. However, in considering the employer's knowledge the test is not purely subjective. If the employer lacked knowledge because it showed a lack of interest or did not have a reasonable system for detecting and monitoring of offensive conduct, that does not exonerate it. To hold otherwise would be to make the obligation imposed on the employer by the collective agreement provisions meaningless. The employer would be able to circumvent that obligation by merely closing its eyes and ears. The parties could not have intended that. Counsel conceded that in the instant case the union is not asserting that the employer is liable vicariously for the actions ofMr. Moore. Nor is strict liability asserted. However, counsel argued that the employer must explain what steps it took to prevent the safety risks which came to its attention. Counsel argued that the employer's failure to rein in horseplay generally, and with respect to Mr. Moore particularly, was a breach of the Act and the collective agreement, and that such failure directly resulted in the incident. Counsel pointed out that the evidence indicated that supervisors nor COs had received any specific training or briefing about the unacceptability of horseplay. The evidence on the contrary established that horseplay routinely occurred at the workplace. Counsel pointed out that in response to the incident between Mr. Moore and Mr. Guylee, superintendent Bartz gave Mr. Moore a very mild admonition. He submitted that Mr. Bartz should have, but did not, investigate whether it was an isolated incident or "only the tip of an iceberg". Nor did he issue a general 45 directive reinforcing the policy against horseplay. Similarly no significant action was taken when Mr. Bartz became aware of the incident involving Mr. Moore and Mr. Cleave. Neither employee was disciplined. Counsel submitted that as a result, employees would have naturally drawn the conclusion that horseplay was acceptable. Counsel went on to argue that allowing CET members to practise their techniques in the workplace also "fed the culture that horseplay was acceptable." Employer counsel submitted that while the evidence indicates that Mr. Moore had habitually engaged in minor physical exchanges with willing participants, there is absolutely no evidence that he had a propensity to assault or injure others. On the contrary, the overwhelming evidence is that he was a caring and respectful individual who took precautions not to injure. Generally, the only evidence of horseplay in the past, except the incidents involving Mr. Guylee and Mr. Cleave, were of the most trivial nature, such as poking, pinching and messing of hair. Employer counsel submitted that such conduct does not attract article 9 of the Act. Counsel urged the Board to take a realistic view of the type of conduct an employer is obliged to regulate in the context of the particular workplace. Employer counsel argued that the duty imposed by the Act and the collective agreement is a joint one. She submitted that the union had greater knowledge of the activity that went on than the employer. If the union had concerns, it took no steps to address, or at least to bring those to the attention of the employer. Yet the union now asserts that the same activity was a violation of the Act and the agreement. Counsel submitted that the Board should consider the union's inaction to be a contravention of the union's obligations under the Act and the agreement. 46 Decision I agree with the union that there is no evidence that the employer had taken any steps to specifically train supervisors or COs and had not provided any briefings or directives to emphasize that horseplay was an unacceptable safety risk. However, the evidence is that the employer had promulgated a policy which included a clear prohibition of horseplay. Whatever the employer had done or not done, all witnesses, called by both parties testified without exception, that they were aware that horseplay was not acceptable. No witness testified to the effect that the employer had, by any actions or inactions, led him/her to believe that horseplay was acceptable and would be tolerated. The Act and the collective agreement, it is fair to say, looks upon horseplay as potentially posing a safety risk. However, neither document defines what constitutes "horseplay". In my view, considering that the term is used in documents designed to eliminate unreasonable health and safety risks, they do not purport to prohibit all physical interaction between employees. The conduct deemed unacceptable is only that which potentially poses undue risks. In other words, only "horseplay" which poses a potential risk of injury is prohibited by the Act and the collective agreement. In considering the type of horseplay that would pose such risk, the appropriate test should be that of reasonable foreseeability. Thus in Re Wilson, 2855/91 (Gray) at p. 27 the Board observed: "Determining whether the employer has taken "reasonable provisions" in respect of a particular risk requires an objective review of the relevant circumstances including the remoteness of the alleged risk and the nature of the work and the workplace in which it arises" . The test must be applied in the context of all of the circumstances of each particular case. Applying that test to the evidence before me, one has to ask whether it was reasonably 47 foreseeable that the type of conduct that took place at the Stratford Jail, such as the pinching, poking, messing of hair etc. could result in injury, particularly injury of such seriousness as the one suffered by the grievor. The answer must clearly be in the negative. Even the witnesses called by the union did not see such interchange as nothing more than irritating conduct engaged in mutual fun to pass the time. While the absence of evidence of prior injuries from this type of conduct is not determinative, it supports the conclusion that this type of minor and consensual activity is not the focus of the legislation or the collective agreement. None of the employees or managers saw this type of consensual activity as a cause for concern. Considering that the activity was consensual, the fact that no one saw any concern warranting a complaint to the employer, and that no adverse impact resulted from the activity, the Board cannot agree that the employer contravened the Act or the Collective Agreement by not taking more action than informal verbal admonitions. Indeed, given that the employer may only discipline for just cause, it is highly improbable that discipline could have been sustained in those circumstances. The only incidents of a more serious physical nature the Board heard about were those involving Mr. Guylee and Mr. Cleave. In the former, neither Mr. Moore nor Mr. Guylee were injured. The incident was consensual and occurred outside work hours and outside the jail building in a public area. It is to be noted that the duty under article 9 applies to employees only "during the hours of their employment". In the latter incident, Mr. Cleave who suffered a minor injury, was the initiator of the consensual horseplay. The superintendent, considered the totality of the circumstances in each case, used his judgment and discretion, and decided that nothing more than an informal verbal admonishment to the participants was warranted. Considering that the employer was bound by a just cause standard for discipline, and in light of the nature of the 48 horseplay, the fact that it was consensual and that all parties involved were happy with the superintendent's response, it is not reasonable to conclude that the employer was non-compliant with its duty by failing to impose discipline. In most cases that come before the Board, particularly involving correctional institutions, in deciding whether the employer had complied with its duty to "make reasonable provision" for the health and safety of its employees, the Board is called upon to balance the risk posed by the particular activity and the employer's legitimate interest in such activity from an operational point of view. In the present case, the employer has no such interest in the activity (i.e. the "horseplay") from an operational point of view. However, several COs testified that the so- called horseplay between colleagues such as pinching, poking etc. is harmless fun, which served a useful purpose. They pointed out that in correctional institutes such as the Stratford Jail colleagues spend long 12-hour shifts together, often on consecutive days. They felt that the collegiality they enjoyed by engaging in verbal and physical activity afforded a harmless means of stress relief and escape from the boredom. I have no expert evidence as to whether the activity has any psychological/therapeutic value. Therefore I make no finding in that regard. Nevertheless, I do find that to the extent that it was not reasonably foreseeable that the consensual activity in question could potentially result in injury, there was no safety risk posed by such conduct, and that the employer did not violate the Act or the collective agreement by not taking more serious action against the participants. In so finding, I have attempted to balance the need to protect employees from undue risk of injury due to horseplay, with their freedom to consensually interact with colleagues in a spirit of friendship and to enjoy the time they spend together at work. The kind of activity that went on in the present case is tilted in favor of the latter interest in that the risk of injury from such activity is minimal and extremely remote. 49 Turning to the evidence that CET members practised their techniques at the workplace during breaks and downtime, I find that such activity does not fit at all within the category of horseplay. Horseplay, as commonly understood, involves rough and boisterous conduct without a legitimate purpose. Practising techniques which are a necessary part of one's job does not constitute horseplay. This is not to say that the employer may never be found to be in breach for allowing that activity. If it can be established that it is reasonably foreseeable that such activity in a particular case poses an unnecessary safety risk, the employer may be liable. However, that liability will not be on the basis of allowing horseplay or "rough and boisterous conduct" as contemplated in the Act. The employer may expose itself to liability by allowing employees, for example, to play ball-hockey in the jail's hallway. Allowing CET practices is no different. Any liability would not have anything to do with the prohibition against horseplay and therefore has no relevance to the horseplay that led to the grievor's injury. In Re OPSEU Union Grievance, 1929/91 (Barrett) the Board observed as follows at p. 10: Article 18.1 of the collective agreement requires the employer and the union to cooperate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. Unreported violations of standing orders would appear to contravene the union's obligation in this regard. In saying this, we make the assumption that if these occasional violations of standing orders had been reported to management, management would have taken steps to ensure there would be no recurrence. Although employer counsel suggested that the Board find that the union had violated its duty under Article 9, there is no grievance alleging such a violation. Nor do I have evidence or submissions to substantiate such a finding. Nevertheless, the evidence that the union nor any employee considered it necessary to report the horseplay that went on routinely is not without significance. In the circumstances, the reasonable inference to draw, is not that the employees 50 and/or the union failed to comply with their respective duties under the collective agreement and the Act. Rather, I draw the inference that such activity went unreported because at the time, neither the union nor the employees considered the activity as posing a safety risk contrary to the provisions of the Act or the collective agreement. The grievor's situation evokes a great deal of sympathy. During the course of a very routine, innocent, and friendly interchange with a co-worker, she has suffered a disability, which may potentially be permanent. Nevertheless, there is no evidence which justifies a finding that her injury was the result, in whole or in part, of a contravention of the Act or the Collective Agreement, on the part of the employer. Accordingly the grievances are hereby dismissed. Dated this 29th day of November 2006 at Toronto, Ontario. ~..... ',~., F ,-' "L' ....' .' k"" ,. . ...., ':J:':"Z':::;:W . IS a . . _ ~<<:'. ~, ..)>- . I _ .. ...... . .. . VIC - ..' ", .'.