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HomeMy WebLinkAbout2012-2087.Tomlinson et al.20-03-02 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2012-2087 UNION# 2012-0232-0021 See Appendix “A” attached IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Tomlinson et al) Union - and - The Crown in Right of Ontario (Ministry of the Environment, Conservation and Parks) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Kevin Dorgan (Counsel) Susan Munn (Counsel) Treasury Board Secretariat Legal Services Branch HEARING Feb. 21, 28 2014; May 29, 2014; Sept. 23, 2014; Oct. 16, 2014; Nov. 21, 25, 2014; April 2, 2015; June 16, 19, 24, 2015; July 9, 10, 2015; March 2, 2016; April 5, 12, 15, 2016; May 30, 2016; June 3, 2016; Feb. 6, 10, 16, 21, 24, 27, 2017; May 14; Oct.30; Nov. 7, 26, 2018: April 11; July 23; Sept. 17, 2019 - 2 - Decision [1] This decision follows a hearing which commenced on February 21, 2014, and concluded on September 17, 2019, after 39 days of hearing. It relates to a group grievance dated July 31, 2012 joined by nearly 100 Senior Environmental Officers (hereinafter “SEO”) in District offices of the employer across Ontario. The grievance alleges that the employer contravened article 9 of the collective agreement and s. 25(2)(h) of the Occupational Health and Safety Act (“OHSA”) by failing to provide the SEOs reasonable safety precautions when performing field work. A memorandum attached to the grievance detailed several areas of concern which formed the basis for the grievance and the redress sought. In the union’s opening statement, counsel advised that some of the allegations expressed in the memorandum were resolved through mediation and would not be pursued. As the hearing proceeded, additional allegations were withdrawn. Thus the union’s evidence and submissions were focussed on the following remaining areas of concern: (a) Training provided to SEOs. (b) Access to the Canadian Police Information Centre Data Base (“CPIC”) and the Ministry of Transportation data base. (c) Adequacy of Field Communication options. (d) Working in pairs instead of working alone. (e) The need for soft body armour. (f) Inadequacy of interaction with police. (g) Insufficiency of information provided to SEOs about incidents of assaults and “near assaults” involving SEOs. (h) Inadequacy of counselling and support to SEOs assaulted or subjected to near assaults. (i) Health and Safety concerns related to assignment of students to work in the field. It is the union’s position that as a result of shortcomings in these areas, SEOs are exposed to undue risk when working in the field. - 3 - [2] At the commencement of the hearing, union counsel acknowledged that subsequent to the filing of the grievance the employer had provided some additional precautions and made improvements in some areas. I was advised that the parties had agreed that in making my decision, I ought to take into consideration those, as well as any other safety precautions that may be implemented by the employer during the course of the hearing, if advised by counsel. Counsel advised, however, that the union’s position remains that despite those improvements, the employer is not in compliance with the collective agreement or OHSA. [3] The purpose of the SEO position is set out in the job specification as follows: To assess compliance with environment legislation, regulations, and policies by inspection, monitoring, and conducting field/technical investigations of sources of air, water, and land pollution. To provide technical expertise and advise and compliance and pollution control. To negotiate and enforce compliance through abatement programs in a District/Area Office. The SEO job, in substance, is about identifying non-compliance with environmental legislation and regulations, and taking steps to bring violators into compliance. SEOs identify non-compliance by conducting proactive inspections, primarily of industrial operations. SEOs also respond to complaints about environmental hazards from the public. These are referred to as responsive inspections. Inspections could involve operations carried on by public bodies such as municipalities and school boards, as well as agricultural operations. Scrap yards and auto body shops are often the subject of SEO inspections. [4] When an inspection establishes a non-compliance, the SEO would first attempt to get the violator to voluntarily agree to take steps to address the issue without the need for an order. If the violator does not cooperate, the SEO has authority to issue an order to implement specific remedial or preventative action to address the non-compliance. In the alternative, particularly where the issue is complex the SEO can refer the matter to the Investigation and Enforcement Branch (“IEB”) for investigation, which could result in a prosecution. - 4 - [5] The evidence is that whether the inspection leads to a voluntary agreement or an order by the SEO, almost always there is a financial cost to the violator. If the non-compliance results in a prosecution by the IEB and a conviction, the court could impose significant fines, and in rare circumstances even jail terms. UNION EVIDENCE [6] Union counsel had asserted that SEOs face more potential for violence by clients than Vehicle Emissions Officers (“VEOs”) because more severe penalties can result from SEOs’ orders than orders from VEOs. Employer counsel undertook a detailed review and interpretation of relevant legislative and regulatory provisions to dispute that assertion. However, he submitted that the premise underlying this assertion is that the likelihood of clients resorting to violence against regulatory enforcement officer is influenced by the degree of the potential penalty resulting from the officer’s actions, and that there is simply no evidentiary or rational basis offered for such an assumption. I agree. There is no explanation of how a client can avoid or even reduce the potential legal sanctions by resorting to violence against an officer. Therefore, I will not review the submissions made in that regard. [7] The evidence is that the Soil, Water, Air, Team (”SWAT”) existed from 2000, and in 2006 became the Sector Compliance Branch (“SCB”). SWAT officers had additional safety tools and processes which SEOs did not. However, with SWAT transitioning into the SCB, those were removed. The undisputed evidence is that presently SCB EOs and District SEOs have the same health and safety protections. Given the parties agreement that the Board ought to consider the present safety precautions, including those provided after the grievances were filed, I do not consider it appropriate or necessary to compare the safety precautions District SEOs have now, with what other groups may have had in the past. In any event, on the basis of the evidence, I find that the additional safety precautions including training, were not provided to SWAT EOs on the basis of a need to protect their safety. Rather, by regulation, once the politicians decided that SWAT officers should project a police-like image, including uniform, those - 5 - became necessary by regulation. When it was decided in 2006 that the zero tolerance approach would no longer be followed, the uniforms were done away with, together with the additional safety tools, training and processes that came with the uniforms. Incidents relied on by the Union [8] The union led evidence relating to five specific incidents described by the union as assaults or “near-assaults” on SEOs. The Dana Woods Incidents, February 15, 2012 [9] Ms. Woods was employed as a SEO at the Ministry’s Sudbury District Office since January 2010, and was responsible for an area North of Sudbury, including Manitoulin Island. Ms. Woods testified that in December 2011 her Area Supervisor Ms. Celeste Dugas informed her that the water in Lake Wolsey on Manitoulin Island had signs of nutrient contamination and instructed her to try to identify the source of contamination. Ms. Woods reviewed satellite imagery, did a drive-by and determined a property owned by L, as the likely source of nutrient run-off to the lake. She left a number of voicemails on L’s answering machine, and also sent a letter, requesting him to contact her in order to schedule an inspection of the property. There was no response from L. She wrote a letter to L advising that she would be attending on February 15th to conduct an inspection of the property. Ms. Woods testified that she believed that L did not reside at the property and did not expect him to be there on February 15th. The property was in a rural area, which had very limited cellular phone coverage, and police presence was very limited on Manitoulin Island. [10] On February 15th she drove to the location and parked on the side of the road near the driveway which was approximately 20 to 30 metres in length. She walked up to the door and knocked. When the door opened three men and a woman came out. None of them spoke but proceeded to walk in a circle around her, cornering her to the side of the house. As a result, her route back to her car - 6 - was blocked. She identified one man as L, and the woman was introduced as L’s wife. The other men were introduced as N a neighbour, and J a reporter. [11] Ms. Woods testified that her Ministry vehicle had the Ontario logo on its side, which would have been visible from the house. She was wearing navy blue official pants, matching vest, ministry issued coat and hat. The coat and hat also displayed the Ontario logo. She testified that the people, therefore, would have known who she was and why she was there. Ms. Woods testified that while J stood about a metre away from her, the others were within “arms reach”, as they stood between her and her vehicle. Ms. Woods testified that as soon as she started to talk, L interrupted and asked her whether she had a warrant to be there, and she said “no”. Then the others also started to pose questions such as, why she selected L’s property for inspection. Ms. Woods testified that she was aware that N owned the property next to L’s property; that he operated a fish farm and processing plant which was “very contentious”; and that he had a history of violence against Ministry staff. Therefore, in order not to inflame the situation, she told them that they should talk to her supervisor about those questions, and that she could arrange for them to meet with the Ministry. She handed to N a Ministry booklet and her business card, and managed to get away. Ms. Woods drove about 40 minutes to Espanola, where cell phone coverage was available, and called Ms. Dugas. At the time she was “shaken up and upset”. When Ms. Dugas asked if she was “OK”, she replied that she was. Following that call she went home. [12] Union counsel asked Ms. Woods how she felt when she was cornered by the four people and unable to leave. She replied, “I felt very threatened. From his body posture, I was concerned L was going to hit me. He kept clenching his hands. He was very red. I could see his neck veins bulging. He was very tense. The body posture was in a fighting position”. She testified that, while circling her, L, his wife and N were recording her with electronic devices, while J was taking notes. The wife at one point held the camera about a foot from her face. - 7 - [13] Ms. Woods testified that prior to this incident she had witnessed N come into the Ministry office one day, and in an aggressive and threatening manner said that the Ministry “had no business being on his lake”. She said that she had also been aware that on another occasion N and his staff had confronted a SEO and a scientist who were in a boat in the lake, and had used boats to chase them off the lake. Ms. Woods testified that she never expected N to be there when she went to L’s property. [14] In cross-examination, Ms. Woods agreed that she had failed to contact L to arrange an inspection despite several attempts; that she knew that there was no cell phone coverage in the area; and that there were satellite phones in the office for use by SEOs. However, she did not even inquire whether a satellite phone was available for her that day. She testified that she found satellite phones to be ineffective because they often cut-off. She agreed that she had not at any time discussed with management about satellite phones being ineffective. [15] Ms. Woods agreed that she could have gone with a second SEO on the inspection in question, and that whenever she requested to work in pairs, Ms. Dugas arranged for that. However, often the second person arranged to meet her at the site would not show up. Also, if the partner arranged is an agricultural officer from OMAFRA or a municipal staff, it could inflame the situation. Counsel suggested that working paired with another officer is helpful. She replied that to a degree it would help, but added that it is inconvenient because she would often have to drive to North Bay to pick up the officer, and the inspection would have to be cancelled if the partner does not show up as arranged. Besides, it made it more difficult to schedule inspections when two are involved, and inspections can be delayed. She stated that if her partner did not show up, rather than rescheduling, she did the inspection by herself, because she wanted to get the inspection done. She agreed that management did not expect her to do that and that Ms. Dugas has never disciplined her for delaying an inspection by waiting for a second officer. Ms. Woods agreed that she did not ask to work in pairs for the inspection of L’s property, and added, “I should have done it. But I just wanted to - 8 - get this done before the year end.” She agreed that management did not tell her she had to complete the inspection by year end. Steve Elford/David Fisher Incident – April 11, 2012 (a) Testimony of Steve Elford [16] Mr. Elford had been employed as a SEO at the York-Durham District Office for over 8 years. He testified that the District Manager at the time, Mr. Dave Fumerton, informed him and another SEO, Mr. David Fisher that the Kingston District Office had requested that two individuals, Mr. and Mrs. Y, who had recently moved to the York-Durham District, be served with a cost recovery order. Elford and Fisher were assigned the task. Mr. Fumerton stated that both SEOs should go as per ministry policy, and that they should go after hours, when both Mr. and Mrs. would likely be home. Mr. Fumerton told them that the Kingston office, had said that police assistance would not be necessary; that although the two can be verbally abusive, there had been no history of physical abuse. [17] The two SEOs made no further inquiries. Around 6:00 p.m. the next day April 11, 2012, they drove to the Y’s residence in a marked ministry vehicle. They wore ministry attire including jackets with shoulder patches with the Ontario Coat of arms and words “Ministry of the Environment”. The residence was in a rural area. The closest neighboring house was about 200 yards away. It was agreed that Mr. Fisher would be the lead. The house was set back off the road. Mr. Elford testified that Mr. Fisher went up the porch to the door and knocked, while he stayed off the porch, halfway between the house and the ministry truck in the driveway. A man stepped out and identified himself as Y. Mr. Fisher introduced himself as a SEO from the Ministry of the Environment and said that he was there to deliver documents to Mr. and Mrs. Y. Mr. Y was handed the documents. Mr. Y read it and “within 10 seconds” became very irate and began to direct abuse and profanity at the document, as well as at both SEOs, Mr. Y asked what the document was about. Mr. Fisher replied that all the information and contact information is in the document, and that they were there just to deliver the - 9 - documents. He asked Mr. Y to give Mrs. Y her copy of the document and turned to leave. Mr. Elford testified that at that point Mrs. Y appeared at the door “and began shouting at us and asking what this was all about. Mr. Y then came off the porch and started to walk towards me, while screaming and clenching the document. Mr. Fisher, who was still on the porch turned around to towards me and Mr. Y on the ground. At this time Mrs. Y pushed Mr. Fisher off the porch”. Mr. Elford said that the porch was a 3 feet high platform with two steps and no railing. He said Mrs. Y pushed Mr. Fisher “with both hands in a shoving manner”. Mr. Elford continued, “Mr. Fisher got up off the ground as he did lose his balance and said, “Steve we are leaving”. We were able to get to our vehicle. Mr. Y approached and threw the document at the vehicle and began pounding the side of the vehicle with his fists. Mr. Fisher, who was driving, was able to drive off safely, despite Mr. Y attempting to block us temporarily by standing in front of the vehicle. As we were leaving Mr. Y yelled at us to get off his property or he was calling the police”. They stopped at a side-road and called the District Manager. [18] Union counsel asked Mr. Elford whether he had anything to add. Mr. Elford said that when first handed the document also, Mr. Y told them to get off his property or he was calling the police. It was at this point that Mrs. Y came out. However, when he and Mr. Fisher were leaving, Mr. Y called them back and said that he wanted to discuss what this was all about. Mr. Elford stated that he wanted to make it clear that Mr. Y told them to get off the property twice and that both times they attempted to disengage. He said he also forgot to mention that before calling the District Manager from the vehicle, Mr. Fisher called Durham Regional Police and asked for assistance because they felt that Mrs. Y had not received proper service of the document. They were told that police officers would meet them at the site as soon as possible. In about 20 minutes two police constables arrived. They asked the SEO’s to stay in their vehicle in the driveway, and entered L’s residence. A few minutes later a constable waved the SEOs to join them and the SEOs completed service to both Mr. and Mr. Y personally, with the police present. Prior to receiving service, Mr. Y again began to get irate, but when a constable told him to calm down, he did. Mr. Elford also added that when - 10 - Mr. Fisher called, the District Manager asked whether they were in a safe location. After effecting service, they called the District Manager again from a side-road. He instructed them to make good notes and contact him the next day for a debrief, and to discuss possible charges for obstruction. The SEOs stayed in the vehicle parked on the side-road for 15-20 minutes “to allow our anxiety level to drop”, before returning to the office. Mr. Elford testified that Mr. Fisher was visibly shaken, so he offered to drive. [19] In cross-examination, Mr. Elford clarified that within 1-2 minutes after Mr. Y told them the first time to get off the property or he would call the police, they had returned to the vehicle. Before they got in, Mr. Y called them back. While at the car Mr. Elford saw Mr. Y with a cell phone, but could not say whether he used it to call the police. Mr. Elford testified that Mrs. Y and Mr. Fisher were within arm’s reach on the poach. Counsel put to Mr. Elford that Mrs. Y was yelling for about five minutes before pushing Mr. Fisher. Mr. Elford disagreed. He testified that she was yelling only for 5 seconds before pushing, and that only about 10 seconds passed from the time she started yelling to the time she pushed Mr. Fisher. Mr. Elford agreed that while Mr. Fisher was pushed off the porch to the ground, he did not fall. (b) Testimony of David Fisher [20] Mr. Fisher worked for 6½ years at the York-Durham District Office as an SEO, and had the same reporting relationships as Mr. Elford. He testified that when the District Manager asked him to serve the documents with Mr. Elford, he asked whether there were any concerns to be aware of. Mr. Fumerton explained that their job was simply to serve the document, and that the party to be served was aware that SEOs were visiting them after 6:00 p.m. the next day. Mr. Fisher testified that later he spoke to the Kingston District office and was told that Mr. and Mrs. Y had a cost recovery order to comply with, that they would be home after 6:00 pm. He was informed that the Ys were verbally abusive at times, but there were no major issues. When they arrived at the Y’s residence, from the road they could hardly see the house because of cedar hedges. He told Mr. - 11 - Elford to stand-by and observe, and that he would do the service. They drove up the driveway and parked. He noticed that there was a porch. The screen door was closed, but the entrance door was open. He saw some kids and the TV was on. He knocked. A man came to the door. He said, “I am Dave Fisher, a SEO, and we are here to deliver these documents from the Ministry of Environment Eastern Region office”. Mr. Fisher testified that Mr. Y “got extremely irate, grabbed the document and started a verbal assault which I won’t repeat here. But it was a variety of swear words. Then he told us to get off his property, and that he was calling the police. He called on his cell phone as I and Steve were walking back to our vehicle. He appeared to be calling someone – probably 911”. Mr. Fisher stated that at that time one copy of the order was on the porch floor and he still had Mrs. Y’s copy. He continued that as they were about to get in the vehicle Mr. Y appeared to calm down and said, “come back”. They went back to the porch area. Mr. Fisher testified, “I was with the man on the porch. Then his wife emerged from the house. Both approached me asking for proof of ID. I provided my business card and showed my badge. I reiterated the purpose of our visit. They were very irate. The man grabbed the order and started to walk towards Steve who was on the ground off the porch. I turned around to see if something was going to happen. I turned back to Mrs. Y who was still extremely irate. She grabbed the order that was still in my hand and shoved it down my coat which was zipped up. Then she put both hands on my chest and pushed me off the porch steps. I stepped back to the ground. I didn’t fall and was still upright. Then Mr. Y went to the Ministry vehicle, opened the passenger door and threw his copy of the order into the cab. I looked at Steve and said it was time for us to leave. The man walked back up the porch. The two of them continued to scream obscenities as we drove off.” [21] Mr. Fisher testified that he drove and turned into the next concession road and contacted the Durham Region Police Communication Centre and requested police assistance. Then he called Mr. Fumerton and explained what had happened. Mr. Fumerton told him that he would contact the Central Regional lawyer and get back to him. When he called back, he said that the Ys should - 12 - accept service when they go with the police and directed that Mr. Fisher call him after service is completed. Around 7:30 p.m. the police arrived. He described the incident to the two constables. The police drove up to the house and the SEOs followed. The constables went to the door and began talking to Mr. and Mrs. Y. Mrs. Y became very upset. Mr. Y walked up towards the SEOs. The police told them to be calm and handed the documents to Mr. Y and he accepted, and “then told us to get the hell off his property.” The police told the SEOs to leave and wait for them at the concession road down the road. The SEOs did that, and Mr. Fisher called Mr. Fumerton and advised that service was completed, and discussed what happened. Mr. Fumerton asked if the SEOs were “alright” and Mr. Fisher said “yes”. They were asked to follow up with Mr. Fumerton the next day. The police met them shortly after. Following a discussion of the events, the police informed that Mrs. Y “was going to spend the night in jail”. [22] In cross-examination, Mr. Fisher said that the porch was 1 or 2 steps up, but had no railing. He agreed that when Mr. Y looked at the document and was yelling for the SEOs to leave, “he was already very aggressive and essentially threatening”, but that after he called someone he appeared to calm down. He agreed that at the point when Mr. Y asked the SEOs to come back, he no longer felt threatened, and therefore he returned to the porch without simply driving off. He also agreed that then Mrs. Y stepped out to the porch she started yelling at him immediately, and that she was about a foot away from him. He was facing her, with the porch edge about a foot behind him. Mr. Y was with Mr. Elford off the porch on the walkway leading to the steps. Asked whether he tried to step away from Mrs. Y who was yelling while standing a foot away from him, Mr. Fisher replied “no”. Counsel put to Mr. Fisher that when he called the District Manager after requesting police assistance, the manager told him that service still had to be completed that day and that they should do that with police presence. He agreed. - 13 - [23] Employer counsel then reviewed with Mr. Fisher, the material from the conflict avoidance training he had completed in 2007/08 and again in 2013/14, as well as the compliance policy on how to use available safety tools properly, which was available to SEOs. Mr. Fisher agreed that the policy on “working in teams” was applied that day and was very useful, and that he also applied conflict avoidance training by leaving the scene. Referring to specific provisions in the training material, counsel asked Mr. Fisher whether he applied communication techniques to calm down the two people. He replied that he did, by telling Mr. Y to take the document and contact the Eastern Region Office if they had any questions, but it fell apart because they did not want to talk but, just continued to yell. Counsel pointed out that the training was, “if the subjects refuse to cooperate you leave”, but that Mr. Fisher and Mr. Elford remained at the scene for 10-15 minutes, despite Mr. Y becoming aggressive and threatening within a minute of their arrival, and had yelled that they should leave the property. Counsel put to Mr. Fisher, “you knew the policy was, if told to leave you leave immediately. So you should have left at that time”. Mr. Fisher replied “yes”. Counsel put to him “If you had applied that training, you may not have been pushed that day”. Mr. Fisher agreed. Counsel put to him that if the SEOs had left at that point and returned with police to serve the documents, he would not have been pushed. Mr. Fisher replied, “It would have been highly unlikely”. Counsel put to Mr. Fisher that he also did not follow the training about the need to create space and distance when dealing with emotionally charged people, because he allowed Mrs. Y to be one foot from him. Mr. Fisher replied that he tried to move away but she kept aggressively moving towards him. Counsel put to Mr. Fisher that it would have been prudent if he had called the manager before returning to the porch, even though Mr. Y appeared to have calmed down. Mr. Fisher agreed, but added that he would have had to return anyway because the Manager told him when he called later that service had to be completed that day. He agreed, however, that this was on the basis that service would be done with police presence. - 14 - [24] Mr. Fisher testified that when the Durham Police Communication Centre was called and assistance was requested, they had no difficulty understanding. He agreed that the employer had provided the SEOs all information it was aware of about the Ys in advance, that is that they could be verbally abusive but had no history of physical aggression. Specifically, the employer did not hold back any information that could have helped him to avoid the incident. [25] In re-direct, Mr. Fisher testified that he was within arm’s reach of Mrs. Y because he believed that he had to personally hand her the document. Later he learned from Legal Services that service could have been affected by placing the document on the property. The Janis Pechinger Incident July 10, 2012 [26] Ms. Pechinger joined the OPS in 1986, and since 2009 has been employed as a SEO at the London District Office. She testified that she was on the Ministry Employee Relations Committee (MERC) from 2003, and has been its union co- chair since 2008. She testified that officer health and safety was discussed at monthly MERC meetings. She recalled that in 2009-2010 the discussion was around SEO field attire. If officers were uniformed, policy required that they be provided open hand training. Some SEOs wanted to be uniformed, some did not. She testified that for a couple of years SEOs had requested open hand training. At a MERC meeting attended by Mr. Tom Barnett, MOE health and safety specialist, the issue came up for discussion. The employer’s position was that this training was unnecessary for SEOs because no physical assault had ever been reported. Ms. Pechinger testified that in fact there had been instances of verbal assaults and death threats, and one SEO had been chased by someone driving a backhoe. There was no record of these because there was no data base to which the information can be put in. Therefore, the union members could only point to these incidents as hearsay. Ms. Pechinger testified that following these discussions she started to keep records of incidents. She testified about the Dana Woods and Elford/Fisher incidents. Ms. Pechinger - 15 - testified that the union was concerned that the level of hostility against SEOs was escalating and that the next time the SEO may not walk away. [27] Ms. Pechinger testified that she was subjected to an assault. A company collected green bin waste, composted it and supplied the compost to farmers in large quantities. The Ministry was aware of numerous complaints that W, a farmer, had large piles of compost on his farm, which gave out a strong smell. For over a year Ms. Pechinger had worked with W to address the concern, and advised the company that it should supply only properly cured compost. She had sat with W and his mother at their kitchen table and cordially discussed the matter. She thought she had a very good relationship with him. [28] Then a complaint was received from a neighbour M that the pile of compost on W’s farm had garbage including pens, Q tips, medical strips and plastics. M had taken a pail full of the compost. Ms. Pechinger visited M and examined the sample and was satisfied that the compost did not comply with the regulations. She then discussed with her supervisor and decided that she would direct W to send the pile of compost on his farm to a land fill or return it to the company for reprocessing. She e-mailed W about the complaint and attached photographs she had taken of the sample M had collected showing garbage, plastics etc. and directed him to get rid of that pile. W called later and wanted to meet Ms. Pechinger and discuss the matter. She testified that she had no indication or “flags” in relation to W or the farm that raised any safety concern in her mind, particularly given the cordial relationship she thought she had with W. [29] On July 10, 2012, she drove in a ministry vehicle to W’s farm. On arrival she saw several cars parked. When she got out there were several people there. She recognized W’s mother, but not the others. She asked W who the others were. W introduced two men as representatives of the company that supplied the pile of compost and there were two other men who were not introduced. Ms. Pechinger explained why she was there, and stated that the pile had to be removed because it was full of garbage. The men responded that there was no - 16 - garbage in the pile. Ms. Pechinger asked them to come with her to the pile so she could show the garbage. W took the position that that he was only leasing the farm and that she is not allowed to inspect the pile without the property owner present. Ms. Pechinger had a five-gallon pail and a shovel in the truck. She said that she was a provincial officer and had legal authority to take a sample from the pile for testing and walked to her truck. W followed her and was asking her why she was doing this. She said that W and she were “joking back and forth”. Then she walked over to the pile, through a gate and climbed the pile with W. W pointed to the compost and commented that he could not see any garbage. Ms. Pechinger felt that the men who were there had cleaned up the top of the pile. Still joking back and forth, Ms. Pechinger started to dig and fill her pail. [30] Ms. Pechinger testified that then she saw a car pull up. Two men, one very large, rushed through the gate and the big man shouted, “who the fuck are you”. Ms. Pechinger asked W who that was. W replied that he was Mr. X, the owner of the farm. Then X started yelling again, “You are trespassing”, “who the fuck are you” and such comments, and climbed up the pile to where she was. She held out her hand to introduce herself. X again said, “You are trespassing on my property,” and demanded proof of identification. She pointed to her shirt which had the Ontario crest and the words “MOE Provincial Officer”, and stated that she had her badge and business card in the truck, and turned to walk to her truck. X said, “You are not leaving. I am arresting you for trespassing”, and grabbed her by the wrist. She testified, “He then bent my thumb, it hurt so much I went down on my knees. He was very big. W wasn’t saying anything. I told W you need to call the police right now. There were six people gathered and watching from 50 feet away. I realized I was in trouble. I managed to free my arm and tried to run down the hill to my truck. X said you are not going anywhere and grabbed me by my ponytail and pulled me flat on my back. He then yelled, “You shouldn’t be hitting a 70-year-old man”. I was so flabbergasted and said, “You are fucking kidding me”. I somehow got up and ran past the people who were watching. No one offered to help or ask if I was OK. For me that was the hardest part to deal with. I got my business card from the truck and gave it to X. - 17 - That calmed him down a bit. But he said, “Pechinger, what kind of a WAP bitch name is that”. [31] Ms. Pechinger then called 911 and told the dispatcher that she was Provincial Officer and had just been assaulted. X was still near the vehicle making disparaging comments. The dispatcher asked for the assailant’s name. She replied she did not know. Then X asked Ms. Pechinger for the phone and spoke with the dispatcher and was very rude. He handed the phone back to Ms. Pechinger and she called 911 again. The dispatcher advised her to get in the vehicle and lock it, and that the police would be there as soon as possible. She tried, but X was standing at the vehicle door and she was not able to close the door. He kept saying “You are trespassing. I am arresting you”. He was making fun about Ms. Pechinger’s shirt and about women. [32] Ms. Pechinger testified that two constables, Mr. W and Ms. B, arrived in two cruisers 45 minutes later. They got X away from Ms. Pechinger’s truck. Ms. B stayed with her, while Mr. W took X away and talked to him. Ms. Pechinger related the incident to Ms. B. Ms. B told her that it is going to be Ms. Pechinger’s word against everyone else’s. She said she will see what she can find out and went over to the people who had been watching. Ms. B returned and informed that all of them said that they did not see anything. Ms. Pechinger responded that is impossible. Ms. B commented, maybe they are scared to talk, but said that W had corroborated everything, except that he said that X grabbed Ms. Pechinger by her shoulder, not her hair. The constables requested that Ms. Pechinger attend the police station and provide a statement and left. She called her supervisor, who asked her to stay, that she was on her way to meet Ms. Pechinger, because she did not want her to be driving alone. The next day Ms. Pechinger provided a statement to the police. X was arrested and charged with assault on a peace officer. [33] In cross-examination, employer counsel took Ms. Pechinger through her testimony about the incident. She reiterated that for nearly a year, she had been - 18 - dealing with W about complaints about the odour from the pile of compost on his farm. She had met with W in his residence. He had not removed the pile as she had requested, but was cordial. She agreed that when she met W on the day of the incident, she found it odd that W was taking the position that there was no problem with the pile. However, that did not cause her any concern about her personal safety. [34] Ms. Pechinger reiterated that when she wanted to inspect the pile, W as well as the four other men took the position that since none of them owned the farm, that was not allowed. However, when she asserted her authority to take a sample, and retrieved her pail and shovel from the vehicle, W joined her and in fact carried the pail and shovel to the pile. W had started to dig and fill the pail for her. Ms. Pechinger testified that only she and W went to the pile. The other men stood chatting outside the gate about 50 feet away. While W was filling the pail, Ms. Pechinger saw two other men, one being X, “barrelling” through the gate to the pile, swearing continuously, claiming that she was trespassing and should get out immediately. She stated that when X asked for “proof of ID” she turned to go to her vehicle to get her badge. That was when X grabbed her by the wrist and twisted her thumb back. Asked whether she then broke away from X or he let her go, she said that W told “come on let her go” and he let go. She said that she did not know that X was following him as she walked to her truck, until he grabbed her by her hair and slammed her down to the ground, yelling “You shouldn’t hit a 70 year old man”. Ms. Pechinger testified that while X subsequently blocked her car door to prevent her closing it, there was no further physical contact. Joe Macionis Incident – May 27, 2014 [35] Mr. Macionis worked out of the Hamilton District Office from January 1991 until 2015, the last 15 years as a SEO. While employed as a SEO, Mr. Macionis also was a part-time auxiliary police officer in Niagara. Mr. Macionis testified that he and SEO McConnochie were assigned a proactive inspection of an auto wrecking company located in a rural area north of Cayuga, operated by Mr. B, - 19 - who had a history of non-compliance issues with MOE at other sites in Ontario. He recognized the name because he had dealt with B in 1990 relating to burning of debris, tires and insulation in the wrecking yard. On that occasion when Mr. Macionis issued B a provincial offence notice, B told him that he will “fight him to death”. B seemed belligerent, but Mr. Macionis was not sure whether B was violent or whether it was just an idle threat, because at that time he did not have any information about B. [36] On May 27, Mr. Macionis and Mr. McConnochie arrived at the wrecking yard and spoke to B in the office area and explained that they were there to do a proactive inspection. B immediately got agitated and in a loud and yelling tone said, “the government is here to harass me again”; that the police and the MOE had harassed him in Flamborough and Niagara; and that he had been in jail for 3 years and “did not give a fuck”. Then B acted like a 3-year-old throwing a tantrum, yelling “You government guys just piss me off. You have no right to be on private property”. He was jumping up and down. Veins in his neck were bulging. His face was red. He was punching his left palm with his clenched right wrist. He did that about 2 inches from Mr. Macionis’ face. Mr. Macionis testified that he wanted to go out through the only exit door, but B was standing right in front of that door. Using his police training, Mr. Macionis turned his body to a 45- degree angle so that he would be able to absorb any blow without going down. While blocking the door B kept yelling that the SEOs should leave. Mr. Macionis testified that based on his police training, B’s behaviour warned him that an attack was imminent. Then B seemed to calm down and the SEOs exited the door. After they had gone 3-4 feet, B followed them. They turned and Mr. McConnochie calmly informed B that under legislation they had a right to be there, to do an inspection and that B had been misinformed. B responded that he would not allow anyone on his property, that he wanted to consult a lawyer, and started yelling again that the SEOs should leave immediately. Mr. McConnochie told B that if he did not allow the inspection, he would be charged for obstructing a provincial officer. B yelled that he should be arrested immediately since he wanted a judge to decide who was right, that he will call the - 20 - OPP if they did not leave immediately. Mr. McConnochie responded that the OPP would support the Ministry position. [37] He testified that B followed the SEOs to their vehicle. He got in and tried to call for police assistance on his newly issued Blackberry, but it did not work. He asked Mr. McConnochie for his phone, and called the OPP. The police advised that they would meet at the fire hall across the street. He also called the District Manager and left a voice message describing the incident and asking him to call back urgently. Mr. Macionis testified that within 10 minutes OPP constable Ms. D met the SEOs at the fire hall and they proceeded to the wrecking yard. The SEOs were asked to stay outside the wrecking yard. The SEOs observed B unlock the gate and talking to constable D in a very animated and irritated way. Officer D returned and informed that B was very irate and was refusing to allow the inspection, but she could arrest B to enable the inspection to proceed. At that point a second constable Mr. H arrived. Both officers went back and talked to B, returned and informed that the only way for the inspection to go ahead would be to arrest B and asked whether the SEOs wanted that. Mr. Macionis advised that it was not necessary because there was no urgency. [38] Mr. Macionis testified that on May 27th a physical threat definitely existed, and he felt that a fight or an attempt by B to hit him or his partner was imminent. He said that as a police officer he had arrested many people. His experience was, once a person gets physical, it is very difficult to de-escalate the situation. He said, “That day we were very close to that”. He testified that this incident was referred to the IEB for investigation, and charges laid against B on two counts of obstruction of a provincial officer were pending before the courts. [39] Mr. Macionis testified that the inspection was carried out only in August, after a court order was obtained. Mr. Knapper, the District Manager, decided that for the inspection he would join Mr. Macionis and SEO Clarke, and that two OPP officers would meet them at the fire hall. However, only one police officer was available on the date fixed, and that officer refused to attend without a second police - 21 - officer due to safety concerns. According to Mr. Macionis, he was advised that clearance had been given for the inspection to proceed without police presence. Mr. Macionis pointed out that a Ministry directive requires police presence in the circumstances. Mr. Knapper said, “It is up to us”, and asked SEO Clarke if she was willing to proceed and she agreed. Mr. Macionis said that he was also willing to proceed, but cautioned given the history of that file, if “something happens”, Mr. Knapper will have to take that responsibility. Mr. Knapper agreed. However, before they could go, the OPP called and informed that three OPP officers would be available in 2 hours. Therefore, the decision was made to do the inspection at that time with police presence. [40] When the ministry contingent arrived at the site, there was a demonstration by the Ontario Landowners Association going on. B advised them that the Association was representing him. The police stated that they would remain in the parking lot while the ministry conducted the inspection. When Mr. Macionis stated that was not acceptable, one police officer agreed to accompany. When they entered the office area, they found two people ready to video tape. The police asked them to leave the office. They left but continued to video tape from outside the door. The SEOs asked B for the paperwork relating to “approvals and waste management” for his business and B said that he had “nothing”. When asked where the waste went, B replied Niagara. When union counsel asked whether there was any threat to the safety of the SEOs on that day, Mr. Macionis replied that at one point when B found the two SEOs alone, he commented, “If ever I find you going down, I am not giving you mouth to mouth” and that Mr. Macionis responded “I am not the one dying here”. Mr. Macionis testified that the inspection revealed some infractions and an order was mailed to B subsequently. [41] In cross-examination, Mr. Macionis agreed that before the SEOs went out on May 27th, Mr. Knapper told them that it was mandatory that the inspection be done by two officers. When counsel put to him that Mr. Knapper also specifically told them that if they feel at any point that it was not safe, they should leave, Mr. - 22 - Macionis disagreed. When counsel put to him that Mr. Knapper will be testifying that he did so, Mr. Macionis replied that he did not recall Mr. Knapper specifically say that at that time, but added that “it was always implied that you leave if something is unsafe”. He agreed that management always expects that if there was any safety concern SEOs should leave, and if necessary, conduct the activity later with police assistance, and that he absolutely understood that management expectation on May 27th. [42] Counsel put to Mr. Macionis that he had CPIC information before he went out that day. He agreed that he was provided general information that there were safety concerns, and that B had a history of violence, but no details were provided. Counsel put to Mr. Macionis that the whole time the SEOs were at the site, B kept yelling for them to “get out”. Mr. Macionis replied, “Absolutely. At the top of his lungs”. Counsel put that B was aggressive. Mr. Macionis replied, “He didn’t want us there.” Counsel put to him that despite all that, the SEOs remained “for a long time”. Mr. Macionis said that they were there for about ½ hour, and explained that while yelling for them to leave, B was blocking the door the whole time. Counsel pointed out that the incident reports Mr. Macionis had set out in detail what B did and said, and they state only that B was at the door “at some point”. He asked whether the incident report was inaccurate and whether it was not very important to put in the incident report that his exit route was blocked the whole time if that was the case. Mr. Macionis replied that he was unable to give a time for when B was blocking the door because he did not look at his watch. Counsel asked whether B was blocking the door when he yelled, “You government guys piss me off” or when he said, “I don’t want you here”. Mr. Macionis replied, “I can’t say for sure. But he was at the door for most of the conversation. He was inches from me for the entire discussion.” Counsel pointed out that the incident report states that B came to within two inches of Mr. Macionis only following a long exchange, and suggested that B could not have been at the door, and within two inches at the same time for the whole period, and asked which is accurate, what he wrote in the incident report or his testimony. Mr. Macionis replied that in the report he did not specify at what point - 23 - B went near the door. Counsel asked how he got out, if B was blocking the door the whole time. Mr. Macionis replied, “I kept inching towards the door. He backed up slowly and finally moved aside.” He said that Mr. McConnochie was to a side and was not blocked by B and that “He could have got out, but did not want to leave me alone.” Counsel put to Mr. Macionis, “So if he could’ve left, you now say during his tirade B moved away from the door.” Mr. Macionis replied, “He backed up to the door. I got close slowly. He calmed down just for a few seconds and I went around him and left.” [43] Counsel asked Mr. Macionis whether he engaged with B about the inspection once he got out. He replied that he only engaged with him briefly. It was Mr. McConnochie who continued to ask B questions. He added that B was not as aggressive with Mr. McConnochie as with him, because Mr. McConnochie was 350 pounds. Counsel asked why he engaged with B, Mr. Macionis said that B “had calmed down for a while”. He walked ahead to the vehicle, while SEO McConnochie and B followed behind, walking slowly and still engaged in conversation. Referring to the incident report, employer counsel put to Mr. Macionis that B and SEO McConnochie had a discussion near the vehicle while he stood nearby, that B stated that he would be calling the OPP to charge the SEOs, and that it was only at that point that Mr. Macionis decided to call the OPP himself. Mr. Macionis agreed. [44] Counsel put to Mr. Macionis that Mr. Knapper will deny that he said that the Ministry would attend without the police for the second visit to B’s site, and asked whether his position is still that he did. Mr. Macionis replied that Mr. Knapper told him that after consultation with the Director a decision was made to proceed anyway. Counsel put to him again that Mr. Knapper will deny that. Mr. Macionis responded, “I say at some point he said we could attend without the OPP”. Counsel also put that Mr. Knapper will deny that he told the SEOs to the effect that if something happens, he would take responsibility. Mr. Macionis reiterated that Mr. Knapper said that. He agreed that he did not feel threatened by B’s - 24 - comment about not giving him “mouth to mouth” and said that while B was not yelling or aggressive when he said that, he was not friendly either. The Feduck/Medland Incident June 13, 2014 [45] Mr. Brad Feduck was employed as a SEO at the Niagara District Office since 2008, having been a member of SWAT from 2001. He testified that on June 13, 2014 around 9:30 p.m., with SEO Chris Medland, he drove to a property in Welland. It was not a planned visit and there was no intention to do an inspection. He had become aware that the company that owned the property was linked to a group that had been found not complying with environmental regulations. He wanted to observe what went on in that property, before deciding whether to schedule an inspection. [46] The property was at the end of a dead-end rural road. Mr. Medland turned around the vehicle which displayed for Ontario Trillium sign on the sides. And stopped a short distance away from the property. He observed a man walk up to the road from the property and stare at the ministry vehicle and walk back. A few minutes later, a pick-up truck with hi-beam lights on drove up and parked face to face with the ministry vehicle. If the SEOs wanted to leave, they could have driven around that vehicle. Four men got out of the truck and approached the SEOs. [47] Mr. Feduck testified that one of the men (“X”) was carrying a hunting rifle. Asked how X carried the rifle, Mr. Feduck said that in military jargon it was held in the “ready position”, that is the barrel pointed to the ground and the other end tucked under the arm. X and two others stood in front of the SEO’s vehicle and the fourth man went to the driver’s window, and asked why they were there and what was going on. He said that there had been illegal activity in the area. They were concerned and wanted to check out why the vehicle was parked there at this time of night. At some point, Mr. Feduck heard X comment, “I don’t think there is anything going on here”. Within five minutes the men got into the truck and drove off. - 25 - [48] Counsel asked, “Did you feel concerned about your safety?” Mr. Feduck replied, “I suppose yes with someone holding a rifle, it is not a normal event”. Mr. Feduck testified that he had the Ministry jacket in the vehicle, but was not wearing it at the time. He testified that the SEOs did not identify themselves as Ministry officers. Asked why, he said that they were not there to do an inspection, and felt that given what they knew about the property owner’s history with the Ministry, it would not help to do so. [49] In cross-examination, Mr. Feduck stated that he was aware of that the property owner, (“V”) had been uncooperative and aggressive with SEOs in the past, and also had been convicted of weapons offences. He said that he had personally dealt with the individual connected to the property V in the past, and that V had been aggressive with him. Because of this knowledge, he had made a request for more information about V and the property, from the local police, which may not be disclosed by a CPIC check. He agreed that he knew that it was possible that if he was to do an inspection there would be difficulty. [50] Under questioning, Mr. Feduck testified that he had never visited the property before, knew nothing about what goes on there, and had no idea what he would see when he went there on June 13. Counsel asked Mr. Feduck why he proceeded on June 13 when he had not yet received the information he had requested by July 1st. He replied that he had some information and was not going into the property. He agreed that he was parked on the road and observing the property. [51] Asked what, the man who came to the driver’s side window said, Mr. Feduck stated that he said that “they were checking us out because there had been illegal activity in the area. Illegal dumping and that they had once stopped a sexual assault”. Counsel put to Mr. Feduck that the conversation was friendly. He replied, “I won’t say friendly when one is carrying a rifle. But there was no - 26 - threat or anything like that.” He agreed that there was no yelling, but stated that profane language was used, but not aggressively. [52] Counsel asked Mr. Feduck what he meant, when he said that X held the rifle in “ready position”. He said it is a military term – that it was not slung on the shoulder but held with the barrel pointed to the ground and the butt to the shoulder. He said that a firearm is held at the ready position to be able to use it as soon as possible, like a hunter looking for an animal to shoot or a police officer engaging a subject. He said “You hold it in ready position when you think you will have to use it. Mr. Feduck testified that X never directed the rifle at the SEOs. [53] Mr. Feduck agreed that he did not inform his supervisor Ms. Groombridge, or anyone else that he was going to observe the property on June 13th, and that once the men drove off he felt no need to call the supervisor or the police. Employer counsel asked Mr. Feduck whether he recalled telling Ms. Groombridge that he did not feel threatened by what happened on June 13th. He replied that he told her “something on those lines”. He said that he felt that way because while the incident was unusual, he did not need “counselling or time off or anything like that”. In re-direct, he agreed with union counsel that his experience dealing with people with firearms when he was employed in MTO enforcement likely influenced how he felt during the incident. Union’s Evidence on Safety Precautions Presently Provided by the employer in the nine areas of concern (a) Training provided to SEOs [54] The employer’s standard Operating Policy/Procedure on Self-Defence was filed as an exhibit. It is stated to “outline processes and activities associated with use of force by provincial officers for the purpose of protecting the health and safety of the officer, fellow officers or a member of the public”. It includes a section titled “Training”. It outlines training courses, Level A being the lowest and Level D the highest level of training. SEOs were provided Level A training, which was - 27 - mandatory for all provincial officers. Level A consisted of training on threat recognition, situational awareness, conflict avoidance and tactical communications. Level B was provided only to uniformed provincial officers, and had the additional content of open hand techniques. Not being uniformed, SEOs had no access to Level B training. [55] Mr. Gary Tomlinson has been employed as an EO from 1986 and as a SEO from 1989. Asked what the concern of the grievors was about training, Mr. Tomlinson responded that Level A does not include open hand techniques, and how to break out of holds. Referring to the Dana Woods incident, he stated “We feel Level B was more appropriate given the situations we face,” that Level A does not provide training on “How to get away when an enraged person gets hold of you”. Mr. Tomlinson testified that while Level A training, according to the document, was to be provided every 5 years, in practice it is provided approximately every 2½ years. So frequency was not a concern. However, he testified that he was disappointed with the training he received on situational awareness. He felt that it did not sufficiently train him on “how to identify hints that something was not right.” [56] Employer counsel in cross-examination referred to the Level B training syllabus which included open hand techniques – blocking and parrying, palm heal strike, forearm strike, knee strike and kick to shin, and asked whether that was the training Mr. Tomlinson requests for SEOs as a necessary safety precaution. He said it was. Counsel asked whether Mr. Tomlinson ever had to defend against any of those in his 27 years at the Ministry. He replied that he had not. [57] Ms. Pechinger testified that at the time of her incident she only had Level A Conflict Avoidance training. Union counsel asked whether that training prepared her to deal with the assault that day. She testified that in that training a number of “made up scenarios”, as well as “real life incidents” SEOs had faced were dealt with. Topics such as how to speak to people, role play and what to do in courts were taught. However, that did not prepare her for the incident. She said, - 28 - “It was a gloss over with actors and made-up scenarios. Not real aggressive events like the assault on me.” She said that Level B teaches “how to read body language, disengagement techniques, how to get close to an exit, some hand holds, how to get out of holds, how to use your hands if someone comes at you with a weapon.” She said that she had not been provided any self-defence training. That would have helped during the incident, because she should not have put her hand out to shake hands. It allowed the man to grab her by her wrist. [58] Under cross-examination, Ms. Pechinger agreed that at the time of her incident she was up to date with her training. Employer counsel reviewed the content of the Conflict Management Training material with Ms. Pechinger. She responded that she did not recall the specifics of the training, but was aware of the principles, which she said were “general knowledge anyway”. Referring to the hypothetical scenarios, counsel pointed to the statement, “If they demand you leave, leave immediately. Don’t argue with them”. She again stated that she was aware of that principle which was general knowledge. Referring to the topic “Complacency”, counsel put that the training was that one should always presume there is risk, even when things are going well because if it is assumed there is not going to be danger “You are more likely to overlook warning signs”. Ms. Pechinger initially disagreed with that principle, but when pressed agreed that may “possibly” happen. [59] Counsel put to Ms. Pechinger that she did not apply her training and that it was a mistake when she did not have her badge with her on initial contact. She agreed. Counsel put to her that she was also required to have her phone with her and that it was also a mistake to have left it behind. She agreed. Counsel referred to the conflict avoidance training material and suggested that despite her past cordial relations, when she was surprised to see a number of people and then yelling started, she should have done a risk assessment as per the training. He asked whether it ever crossed her mind that the appointment had been rescheduled so that all these men could be there to out-number her and that she - 29 - had been tricked. Ms. Pechinger replied that one does not remember the training in 30 seconds, that she never felt threatened at that point, and added, “Perhaps I was naïve”. [60] Counsel put to Mr. Pechinger that when she was at the top of the pile of compost and X was below 50 feet away, she could have got off the pile and created distance. She replied that she wanted to be a good representative of government by shaking hands and introducing herself. Counsel put to Ms. Pechinger that when X asked, “who are you”, if she had the badge to present it could have helped. She disagreed and explained that she told him that her badge was in the truck and offered to go get it. Counsel put to Ms. Pechinger that X stood close enough to be able to make physical contact, yet she did not back away or move to a side to create distance as per training. She responded that she had no time and that she did not realize she was in trouble until he grabbed her. Counsel put to her that prior to that she had not applied any of the conflict avoidance techniques she had been trained on. She replied, “I guess not”. [61] In re-direct, union counsel asked whether the training Ms. Pechinger had prepared her for what happened. She replied that while some of the role-play was good, it was glossed over due to lack of time, “so in hindsight I’d say no”. She testified that although she was outnumbered and she did not know one of the men, it did not raise any red flags for her because there was no hostility from any of them. That started only when X arrived. Asked whether she thought about her training during the incident, she said, “No. I was only thinking how I get the heck out of here alive”. [62] Mr. Elford was asked whether the conflict avoidance training he had completed as an SEO was sufficient to deal with the incident, he was involved in. He replied, “That training tends only to deal with avoiding a situation. Officers are instructed to remove themselves and disengage from the situation if possible. My concern is the training doesn’t address how to read the situation prior to - 30 - entry. How to assess client behaviour or examine exit strategies. Specifically officer positioning, who is present, awareness of surroundings and initial self- defence. In this incident specifically, I assessed the situation and took steps to remove myself based on the training I had at Flemming College. It dealt with conflict awareness, study of body language, poise, tone etc. and exit strategy management.” He stated that those are not covered in the MOE training and should be provided to all field officers. He stated that he has great concern that if two other officers, who did not have the training that he and Mr. Fisher had, faced this incident, “the consequences would definitely have been higher”. He said that the only safety precaution provided that day was working in pairs, and that what happened was not predictable. [63] In cross-examination, Mr. Elford agreed that in 2007 he had completed the conflict avoidance training. Counsel put to him that based on Mr. Fisher’s incident report, on the day of the incident he and Mr. Fisher were engaged with the clients for 13 minutes before Mr. Fisher was pushed off the porch. He agreed. Counsel put that it is documented that Mr. Y became very irate the moment he was told why the SEOs were there, and started yelling multiple times to “get the fuck off”. He agreed. Counsel put to him that the training was that when someone is irate and says to leave, you leave, and the SEOs should have got in and driven off immediately. Mr. Elford replied that he did not necessarily agree because Mr. Y called them back. Counsel asked, “Despite his outburst and asking you to get the fuck off his property, you still trusted him?” He replied, “We applied body language. We also had a second officer for cover”. When counsel put, “But he had told you to leave multiple times”. Mr. Elford replied, “He probably told us to leave about 35 times in 2 minutes. We didn’t leave, but we applied other tactics”. Counsel put to Mr. Elford that had he left when told to aggressively and returned later with the police, it is very unlikely that Mr. Fisher would have got pushed. Mr. Elford agreed. [64] Ms. Dana Woods testified that she had conflict avoidance training in 2011 and again in 2014. Asked whether that prepared her for what happened, she replied - 31 - “Absolutely not. The people we deal with usually do not respond to reason, and get aggressive regardless of what we do. So this training won’t avoid or completely mitigate that.” [65] Mr. Macionis testified that while he completed the Ministry Conflict Avoidance training, that did not prepare him for the incident. He said that it involved reading cases and power point presentations, not “hands on”. He said, “You need to be exposed to real situations and it has to be repeated over and over. You cannot revert to power point presentations when you are under stress. The practical aspect is important”. (b) Union Evidence on Access to CPIC and information on Risk: [66] Mr. Gary Tomlinson testified that a CPIC check provides information on whether someone has a criminal record, contagious diseases or mental health issues. On occasion dangers associated with a particular location is flagged. Also, a CPIC check informs whether a particular vehicle is stolen or unregistered. It provides advanced warning on what may be encountered, and potential issues. He testified that on occasion a SEO will need immediate access to CPIC. However, access is limited because SEOs have to go through the IEB. Alternatively, they can get information by calling the Hamilton Regional office. However, about 20% of the time no one is available there to assist. Then there is no other way to get CPIC information. He cited an example of when immediate access is needed. If drums have been abandoned on a vacant property a SEO must know before going what has gone on there; whether police had been there earlier and whether someone was assaulted there. [67] Mr. Tomlinson testified that SEOs have access to the data in the MTO system through the IEB. IEB investigators can provide that information quickly. That includes information about who owns a vehicle, his/her identification and date of birth, and whether a vehicle is registered or stolen. However, the concern again is that SEOs have to go through someone else and have no direct access. In his - 32 - estimation, 20% of the time no IEB investigator is available when information is needed immediately. [68] In cross-examination, counsel put to Mr. Tomlinson that if he feels CPIC or MTO information is needed immediately to assess risk before proceeding, the employer’s instructions are that he should not go or should disengage if already there. Mr. Tomlinson responded that “a SEO has a job to do and that is to stop pollution”. He said “It is not appropriate for a SEO to run away. To be able to do the job in a timely and efficient way, in my opinion you need to get it done when you are there. But certainly I will not do it if it is unsafe.” He said that this is so with regard to both CPIC and MTO information. The job must be done efficiently and in a timely way. Counsel asked whether the employer has no right to organize work, giving priority to safety over efficiency, even if it may make the job less efficient and less productive. Mr. Tomlinson replied that the employer has that right. [69] Counsel asked when a SEO would need information on criminal records, whether someone is suicidal, has mental issues or contagious diseases, immediately” Mr. Tomlinson replied, “All I say is that all of that information is useful to have because it can influence how the SEO deals with the person”. Counsel put to Mr. Tomlinson that some or all of that information may not be relevant to an SEO’s safety and thus an SEO would not be entitled to that information. He replied, “the point is that someone else decides what is and is not relevant”. Counsel asked how information from MTO that a vehicle parked in the client’s property is stolen, would ever be relevant to officer safety. He replied “then you know who you are dealing with. You may want to get away from him for fear of an unprovoked assault.” Counsel put to Mr. Tomlinson that if he sees something of concern, the prudent thing to do is to go back to the office and deal with it. He replied, “Yes. If circumstances allow it.” [70] Ms. Janis Pechinger testified that ability to immediately access information from CPIC and MTO checks would be useful generally. However, it would have not - 33 - made any difference in relation to her assault since the individual was not flagged in either system. [71] Mr. Elford did not testify in chief about access to information. In cross- examination, he testified that a CPIC check would not have helped with regard to his incident. However, he expressed concern because he believed that the majority of staff is not aware that CPIC checks were available, and because information discovered by a CPIC check is not circulated to abatement officers. [72] Ms. Dana Woods testified that she did a CPIC check only after the incident, and that it did not disclose any flags for violence about the client involved in the incident. [73] Mr. Joe Macionis testified that he did not do a CPIC check on the client. When union counsel asked Mr. Macionis whether he would not like to know before going out, if the client had an extensive CPIC file, he replied, “Yes. But there was no protocol to deal with it. We could get information about some flags, like people with dogs, but not much information about dangerous people.” In cross- examination, he was asked to explain what he meant. He replied, “Apparently a CPIC check was done. But we were given information only to the effect that there were safety issues. No details are given to us. Policy is only investigators are entitled to details.” Employer counsel stated that SEOs are provided only the information about safety concerns pertaining to the task the SEOs were undertaking and put that he was advised that it was possible the client could become violent. Mr. Macionis stated that what he was told was that the client had a history of violence. When counsel put to him that no one can predict whether or not the person will in fact become violent during Mr. Macionis’ visit, he agreed. (c) Field Communication Options [74] Mr. Tomlinson testified that he had a regular flip phone, while some SEOs had recently been issued smart phones or Blackberries. His flip phone has texting - 34 - capability. To contact 911 he has to dial since there is no panic button. Since it has no GPS his exact location cannot be tracked. Only the closest cell tower can be identified. He testified that if he is struggling with someone who has grabbed him or was chasing him, dialing 911 would be a problem. He said that Bell Fleetnet two-way radios are more effective because by pushing one panic button, you are connected to a police dispatcher who can identify with some certainty where the SEO’s vehicle is. If a SEO pushes the panic button but does not speak, the dispatcher knows that it is a distress signal. [75] In cross-examination, Mr. Tomlinson testified that at the Guelph District Office a limited number of SPOT devices were recently made available for SEOs to take when working in the field. Through SPOT a SEO can ask the manager or the Spills Action Centre to keep in touch. He agreed that on a SPOT device the SEO signs in/out, and can indicate where he/she is going and when he/she expects to return to the office; that if the SEO fails to return by the indicated time, the office designee would call the SEO on the SPOT device the SEO is carrying; and that if the call is not answered, the Police may be called. [76] Employer counsel put to Mr. Tomlinson that Fleetnet devices have been issued only to IEB investigators, that only 5 portable and 5 vehicles installed Fleetnet devices were made available. He agreed. Counsel put to him that those officers use Fleetnet only when performing surveillance and intelligence activity to coordinate with other IEB officers in other ministry vehicles. He replied that he only knows that they use Fleetnet on the job. He agreed that SEOs do not conduct surveillance or intelligence gathering, and do not coordinate with other SEOs or ministry vehicles, although a SEO may communicate with the partner by radio when out of sight with each other. [77] Mr. Tomlinson agreed that the Fleetnet devices IEB investigators use do not provide direct contact to OPP dispatch or GPS capability, that providing Fleetnet to some 230 SEOs in Ontario would involve a significant cost, particularly if the OPP dispatch and GPS options which the union seeks are added; and that to - 35 - use Fleetnet all SEOs would also have to be provided two days of training at Georgian College. He agreed that he was no expert and could not dispute that. He also agreed that like cell phones, Fleetnet also has signal issues on occasion, and there are areas with no coverage. [78] Mr. Tomlinson agreed that SEOs now have cell phones or Blackberries, and have access to satellite phones. He said that he used his cell phone to communicate with his supervisor, his office, OPP dispatch, 911, clients and various other agencies and stakeholders. Counsel referred to Mr. Tomlinson’s testimony about the difficulty of dialing emergency numbers like 911, and put to him that emergency numbers can be programmed on his phone to enable calling by pressing one button. He agreed and added that most SEOs have programmed 911 on their phones. He agreed that he had never faced an emergency situation when he was unable to contact 911 using his phone. He also said that the Blackberry phones issued to some SEOs in his office do not have the capability of contacting 911 by pressing a single button. [79] Referring to Mr. Tomlinson’s concern that his cell phone has no GPS and cannot be used to send an emergency signal, counsel put to him that the SPOT devices available to SEOs have GPS and has capability to send two types of signals. A SEO is able to send SOS signals to the local police, fire dept., ambulance and 911 dispatch, indicating his/her exact GPS location by pressing the emergency button. Secondly by pressing the “help button” a signal can be sent to SAC and to the supervisor. Mr. Tomlinson replied that he would not dispute that, although he did not know all the specifics about SPOT. Counsel put to him that with the implementation of SPOT devices, his concerns about the limited capabilities of his phone are now resolved. Mr. Tomlinson replied that it is resolved only to a limited extent, because each SEO is not assigned a SPOT device. There are only a limited number available for the office, and not all Ministry vehicles are equipped with SPOT. Counsel asked him whether he had been in any emergency situation, where no one was able to locate him. He said “No” but added that he has been in rural areas where the satellite phone would not work. - 36 - [80] Ms. Pechinger testified that she only had a flip phone at the time of her assault. She said that while she made a mistake by leaving it in the vehicle that day, she would not have been able to use it on time to avoid the assault even if she had it with her. She said that last year two SPOT devices were made available in the office for 15 officers. She stated that to use SPOT the device had to be pointed upwards. She had tried to use SPOT, but it did not work sometimes. Moreover, it had no two-way communication capability like Fleetnet. She said that if she had Fleetnet on the day in question, she hopefully would have been able to get immediate help. In cross-examination, Ms. Pechinger agreed that a SPOT device or Fleetnet device to be of help, must be kept on her person. [81] Ms. Dana Woods testified that at the time of the incident the only communication device she had was a flip phone and it had no reception in the area and therefore not functional. She said much of the area she worked in had no cell phone coverage. Therefore she had no way of contacting someone in case of trouble. [82] Mr. Brad Feduck testified that at the time of the incident the only communication device he had was the ministry issued cell phone. He said that if he had a two- way radio it may have helped because no dialing is required. Connection is instantaneous with the push of a button. In cross-examination Mr. Feduck was asked how a two-way radio would have helped during the incident. He said that the two-way radio he had at the MTO was “live and always on – You just speak and alert the dispatcher”. He agreed that he did not try to use his cell phone that day to alert anyone before or after the incident. [83] Mr. Feduck testified that when employed at MTO as a VEO, he had access to two-way radios. On the day in question, the only communication device he had was the Ministry issued cell phone. Asked whether it would have helped if he had a two-way radio during the incident, Mr. Feduck replied, “It may have. You don’t have to dial”. However, he agreed that he did not feel a need to call anyone during or after the incident. - 37 - (d) Working in Pairs [84] Mr. Tomlinson testified that on a case by case basis, working in pairs may happen at the request of a SEO or on direction by the supervisor or manager. He said that 95% of the time he worked alone. Presently he works with a partner primarily when working after hours on wind energy files, due to risk from coyotes. Counsel asked why he seeks an order from the Board for two SEO teams for all field work. He replied that it was due to incidents of assaults on SEOs, the most recent being the assault on Ms. Woods. He said that if Ms. Woods had a second SEO with her it may have helped her to escape and provide evidence to the police, although it may not have prevented the assault. [85] In cross-examination, Mr. Tomlinson agreed that a request by him to have a second SEO work with him has never been denied by management, and that he is not aware of any instance where an SEO was assaulted after a request to work in pairs had been denied. Counsel put to Mr. Tomlinson that if all SEOs presently work alone 95% of the time like he did, if working in pairs is made compulsory in all cases, it would double the employer’s costs. He replied that the grievors do not seek that. What they want is that an SEO be able to take a second SEO at his/her discretion, without need for supervisor approval. He agreed that cost is an important factor to take into account, given the low level of risk of violence. However, he said "I don’t think the expense is unreasonable. It is a matter of my wanting to go home safely at the end of the day. The available money may have to be reallocated”. [86] Ms. Janis Pechinger testified that her incident would not have happened if she was working with a second SEO that day, because the partner could have called the police or done something to prevent the situation from escalating as it did. In cross-examination, she said that she was hoping, although there is no guarantee, that the incident would not have taken place if there was a second SEO, because the client may not have escalated the situation knowing that there would be a witness, and that the second SEO would call the police for help or otherwise intervene. - 38 - [87] Mr. Steve Elford testified that working in pairs was of great benefit on the day of his incident. He said that he was confident that had he been alone there would have been potential for a “greater assault”. In cross-examination, he testified that, in his view the existing model was discretionary in all cases. Therefore, in his incident report he recommended that in order to prevent future incidents working in pairs should be made mandatory for all staff when serving documents. He agreed, however, that in his case working in pairs was arranged because there was information indicating that the clients would not be receptive to accepting service, and therefore, the existing model worked. [88] Mr. David Fisher testified that working in pairs with Mr. Elford was helpful because it at least put the SEOs on equal footing on numbers with the two clients. He said that if one officer had gone that day it would have been very difficult to control the scene that day. [89] Ms. Dana Woods testified that she was the only SEO for a very large Northern area. She had been instructed by management to take another SEO whenever possible. She said, however, that her colleagues in other areas, the closest being in Barrie, would have to travel long distances to accompany her, and due to family obligations often they are unwilling. Therefore, she typically worked alone. She stated that if she had worked in pairs on the day in question, it would definitely have been a benefit. In cross-examination, she reiterated that her supervisor had been very supportive in trying to arrange help for her. First, the supervisor arranged an OMAFRA agricultural officer or municipal staff to accompany her. When that did not work, she arranged for a SEO. When she was paired with another SEO it worked only “to a degree”, because Ms. Woods had to drive to North Bay to pick up the other SEO. Moreover, it was difficult to schedule field visits when a SEO from another area is involved. If that SEO does not attend and the visit has to be cancelled, notifying clients is sometimes difficult because some of them are Mennonites and have no telephones. Therefore, if her colleague does not show up she would do the field visit alone, rather than reschedule because she wants the work to be finished and not delayed. Counsel - 39 - asked whether her supervisor had ever told her that she had to go by herself and finish the visit if the partner arranged does not show up. Ms. Woods made it clear that it was her personal desire to get the work done without delay. It was not the management’s expectation. She agreed that she is not aware of any instance of a SEO being disciplined for delaying a visit waiting for a second SEO to be available. Counsel asked Ms. Woods whether she requested someone to pair with her on February 15, given the information she was aware of. She replied, “No. I should’ve done it. I just wanted to get this done before year end”. She agreed that management had not told her she had to finish it before year end. [90] Mr. Joe Macionis testified that on the day in question having a second SEO was of benefit because it is easier to escape while the partner distracts the aggressive client; it is easier for two to control a violent person and it provides two sets of eyes and ears and a witness to corroborate what occurred. [91] Ms. Marsha Smith testified that when she was in the SWAT team she always worked in pairs. Now, as SEO, as a norm she worked alone, but occasionally she requests a second SEO. In cross-examination, Ms. Smith was asked why working in pairs is necessary for SEOs. She said that it is an additional safety tool. The partner may see what she misses like someone coming in or the presence of a dog. The SEOs can share and do different tasks at the same time and complete work faster more efficiently. [92] Mr. Brad Feduck testified that it was helpful that he was working with a partner on the day of the incident. He stated that in his district office it was “fairly common” to work in pairs. (e) The need for soft body armour [93] Mr. Tomlinson testified that other than vehicle emission officers, SEOs have no body armour at all. He cannot request for body armour even if he felt it is needed for his safety for a particular assignment. Asked why the grievance seeks body armour for SEOs, he replied that it basically comes out of the recommendation in - 40 - the Deloitte & Touche Risk Assessment report in June 2004. It is to prevent SEOs being injured or killed by being stabbed with sharp edged weapons. It allows a SEO to escape. He said, “It seems like a valuable piece to have to be able to go home safely at the end of the day.” [94] In cross-examination, employer counsel reviewed the Deloitte & Touche Report with Mr. Tomlinson and put to him that it in fact concluded that soft body armour was not required for SEOs. Mr. Tomlinson agreed that he was incorrect. Counsel put to Mr. Tomlinson that he has never been attacked with any kind of knife or sharp-edged weapon while at work. He replied, “not attacked, but I’ve had a farmer wave a weapon around.” Asked for details, he said that in April 2014 he was on a site visit with an agricultural officer. They were having a discussion with a farmer who was seated on a tractor. He said, “He was not making any threat, but as we were talking a broken butcher knife was being waved around. Not in my direction. No one has lunged at me or said I am going to stick this in you. So it happens, but not daily. Occasionally, when we talk people have tools in their hands. So if they get angry or emotional, they can wave the tools around. They don’t go beyond that because they understand the consequences. But there is always the potential.” He agreed that the farmer did not wave the knife under his nose, or in his direction. He agreed that if he is aware that there would likely be tools or weapons at a site he was visiting, it would raise a red flag. Counsel put to him that in those circumstances, if a SEO feels unsafe going with no soft body armour, he simply should not go. He said, “Yes. If presence of tools or weapons is identified”. [95] Later in cross-examination, employer counsel returned to the incident with the farmer. He put to Mr. Tomlinson an Incident Report written by the Agricultural Officer who had accompanied him that day. Attached to it was a memorandum to file completed by Mr. Tomlinson. Mr. Tomlinson agreed that, given his vast experience, he was aware that he must ensure that any report he creates is accurate and complete. Based on his memorandum, counsel put to him that on that visit the two officers were accompanied by an OPP officer, and asked why - 41 - he did not mention that in his testimony. He explained that he forgot because he had made several visits to that farm, and said that in any event the OPP officer had walked away by then. He agreed that he has written in his memorandum that he and the agricultural officer were accompanied by an OPP officer that day, but does not record that the OPP officer walked off at any point. He agreed. Counsel put to him that what he wrote in the Memorandum was, “While we were talking to him he picked up what appeared to be a broken or cut down rusty kitchen knife (butcher knife or bread knife), from beside the seat on the opposite side of the tractor cab from the open door we were talking to him through. He made no threatening moves with the knife but just looked at it and held it close to his leg as if he was looking at it. The knife was put back down in the same location it had come from with no threats or comment about it being made.” Counsel pointed out that there is no mention of the farmer waving the knife around as he had testified. Mr. Tomlinson replied that he does not recall testifying that he waved it around and said, “Anyway the message is, it was there. He certainly picked it up. He didn’t threaten me with the knife, and I did not feel threatened.” In re-direct, union counsel asked Mr. Tomlinson whether he deliberately falsified his testimony about the knife incident to assist the grievance. He replied “no”. [96] Ms. Janis Pechinger was asked whether soft body armour would have helped during her incident. She replied, “No. He did not punch or stab me. But in different situations I think it can be a useful tool.” [97] Mr. Joe Macionis testified that the only protective gear he had during the incident were safety boots. He said soft body armour is something he liked to have had because “If someone is armed and likely to assault it will help. It will lessen the blow”. [98] Ms. Marsha Smith testified that when she was at SWAT, she had use of force equipment including soft-body armour, handcuffs and a 21-inch baton. The soft body armour was a vest made out of cavelar, made to measure and obtained - 42 - through the police. It was mandatory that all SWAT officers wear it. She said that the vest is resistant to bullets, but she was not sure if it is resistant to stabs although she thought it would assist. She said the vest was another tool she had for her health and safety. [99] She testified that now, as a SEO she was not issued any soft body armour. She testified that since SWAT ceased to exist and became the Sector Compliance Branch, those officers no longer have uniforms or soft body armour and several other protective equipment and precautions SWAT officers had. She agreed that at SWAT she never had to use handcuffs or the baton, she was never shot at and no one tried to stab her while at SWAT or as a SEO. She agreed that the policy of zero tolerance enforcement that existed at SWAT is no longer policy at the Sector Compliance Branch. (f) Interaction with the Investigations and Enforcement Branch [100] Mr. Tomlinson testified that the grievance included this as a violation because SEOs did not have an assurance that if a referral is made involving “assaults, obstruction, death threats, hindrance and potential violence”, the IEB would “go after” the individuals. He stated that this concern was partly addressed post grievance when the employer issued a memorandum that such incidents would be investigated and pursued on a priority basis, and that has been done since. However, he stated that the IEB has not complied with the “onus of proof” as to why a referral involving such an incident would not be prosecuted. Asked by the Board for clarification, Mr. Tomlinson stated that the grievors want the IEB to explain and prove to the SEOs concerned why the incident was not prosecuted. [101] In cross-examination, employer counsel asked Mr. Tomlinson whether the grievors want an undertaking that every referral on incidents of assaults, obstruction etc. should result in a prosecution. He replied, “No. The intent is that the SEO concerned should be provided an explanation by the IEB as to why something that must obviously happen, is not happening”. He agreed, however, that the absence of an explanation is not a health and safety issue. - 43 - [102] Ms. Pechinger testified that the IEB was very supportive and concerned about her. Asked whether in her view the IEB treated all SEOs that way, she said that she knows for a fact that they did not. [103] Mr. Steve Elford testified that he understood that following the incident, the IEB did an investigation. He said that he “was never given a rationale why the case was closed without charges”. (g) Interaction with Police [104] Mr. Tomlinson testified that SEOs calling 911 for help from the field often have difficulty in making the police dispatcher understand who was calling and what the emergency is. The SEO has to explain police assistance is needed now. He said that police across Ontario do not know the authority a SEO has. Because MNR has interaction with the police, they are aware of who a Conservation Officer is and his authority. It is not so with the MOE. He said that a SEO should not have to explain to the Police dispatcher who a SEO is, what authority a SEO has, what a SEO does and why the SEO is in danger. He stated that the Police has priorities, and the employer should provide information to the Police about SEOs and what they do in the field. [105] In cross-examination, Mr. Tomlinson agreed that police assistance may be sought by a SEO in two situations. First, for assistance to get into a property, and second, when the SEO is in danger. He agreed that the first does not raise a personal safety risk to the SEO. Counsel put to him that he has no personal knowledge of any SEO in danger seeking police assistance having difficulty with a 911 dispatcher. He agreed. Counsel asked, “Don’t you think that if anyone calls 911 and says he is in danger, the Police will come as soon as possible?” Mr. Tomlinson replied that in an ideal world they will. [106] Mr. Steve Elford testified, referring to the Incident Report completed by his partner Mr. Fisher, that following the incident, in this report his recommendations included that availability of police assistance be continued and that use of police - 44 - assistance should be promoted in-house for all staff including management. He stated that he believed that the majority of the staff is not aware that police assistance is available. [107] In cross-examination, Mr. Elford testified that for police assistance, he called Durham Police Communications, informed that a provincial officer had been assaulted and needed police to attend. He agreed that at the time he called he was in no danger, and that the police dispatcher had no difficulty understanding his request. He agreed that the police assistance worked that day. [108] Mr. Joe Macionis testified that he and his partner explained to the police what they did, that the police had no idea. Ms. Marsha Smith testified that at SWAT she worked with police and MTO enforcement officers when working at weigh scales, but never had to call police during any inspection. She stated that when she was on SWAT inspections, as a practice the local police was informed that SWAT would be doing inspections in their region, so that if a need arises to call police, they immediately know who was calling. She testified that now as a SEO she would not contact the local police unless there had been previous issues of concern. (h) Information provided about prior incidents of assault or near assault on SEOs [109] Union counsel referred to the grievance which seeks an order that within two days of an incident of an assault or near-assault on a SEO the employer must disclose to all SEOs and other MOE field staff, as well as to all Joint Health and Safety Committees that have responsibility for workplaces that have SEOs or other field staff; and that the details, content and procedures for such disclosure “Shall be worked out in an agreement to be entered into between the employer and the grievors/union”. Counsel asked what the concern is. Mr. Tomlinson explained that an individual who had assaulted a SEO in Kingston may now be in Almira. With that “extra information” about who did the assault and the surrounding circumstances, the SEO in Almira would know what to look out for. - 45 - It is a simple matter of sending an e-mail to all field staff and committees saying, “look at Incident Report number such and such on the IDS system for details”. [110] Mr. Tomlinson testified that presently the information provided about incidents is “somewhat patchy” and “you don’t really know what happened, who did the assault and the circumstances. There doesn’t seem to be a regular codified method to get that information to SEOs. He stated that to him the two-day time limit seems reasonable and that he would argue that the SEOs are not really looking for information not already in the IDS system. [111] In cross-examination, Mr. Tomlinson agreed that the employer sends mass- emails about some incidents. When counsel suggested that all incident reports are put into the IDS system, he agreed. Counsel referred to the concern about an assailant having moved to another area in Ontario, and put to him that he has no personal knowledge of any instance of the IDS system failing to provide the kind of information the SEOs are looking for. He said “yes, but there are 1000s of incidents in it. So which one do I look for.” [112] Ms. Janis Pechinger was asked by union counsel whether the employer provides the kind of information about past incidents sought in the grievance. She replied that it never happened until her incident. After that incident the employer sent out information about several incidents that happened shortly thereafter, but has not kept it up. In cross-examination Ms. Pechinger agreed that the employer provided her all information it had, which could have helped. [113] Union counsel asked Mr. David Fisher whether management made all other SEOs aware about what happened to him. He replied, “No. not really” and explained that it was mentioned at a staff meeting that he was assaulted, but there was no formal discussion. He said that other SEOs learned details about the incident by talking to him in the office. In cross-examination Mr. Fisher agreed that he had all the information the Ministry had about the individuals concerned which could have helped. - 46 - [114] Ms. Dana Woods testified that she was not aware that there was any posting about her incident to make others aware of what happened. She received emails about the incident from management, but she did not think any e-mails were sent to others updating about the incident. In cross-examination, employer counsel put to Ms. Woods the e-mail sent to her, and pointed out that it was also sent to all SEOs in the office at the time and that the e-mail describes what happened to her and what steps were taken in response. Ms. Woods agreed. [115] Mr. Joe Macionis was asked by union counsel whether management made people aware of what happened to him. He replied that he did not think there was any announcement. However, others became aware by word of mouth and that he informed his co-workers about the potential hazards when visiting the site in question. Mr. Feduck agreed that on July 7, 2014, he received an e-mail from the Niagara District Supervisor pointing out, inter alia, that, “Your safety is much more important than any information that could have been obtained from observing this site prior to knowing the extent of the personal safety hazards associated with it”; that he should have informed management and the police immediately after his incident; and that “an SOP is under development by the Strategic Enforcement and Investigations Unit to formalize this interim guidance for all staff”. He also agreed that subsequently, a formal “Procedure for attending sites owned/operated by” the individual concerned was issued. Mr. Feduck testified that while he and the other SEO involved in the incident were provided access to that procedure, it was not made accessible to all field staff generally. In cross-examination, Mr. Feduck was asked if he knows that only he and his partner were provided the procedure document relating to the site. He replied that he did not know who else got it. He agreed that he is not aware of any other SEO other than himself, who may perform enforcement work in relation to the site in question. (i) Critical Incident After Action Procedure [116] The remedial redress sought in the grievance includes the immediate implementation of what is called a Critical Incident After Action Procedure - 47 - (“CIAAP”). The CIAAP sought consists of two aspects. First, that every SEO who is a victim of an assault or near assault “be automatically afforded appropriate counselling and/or therapy to deal with the after effects of the assault or near-assault incident. Second, the CIAAP “shall provide for a timely investigation of the circumstances” of the incident, and preparation of recommendations for the prevention of similar future incidents. It is contemplated that any SEO may at his/her discretion decline to participate in the CIAAP. [117] In chief, Mr. Tomlinson testified that the concern is that SEOs involved in incidents of assault should not be left to seek help themselves. Help must be provided automatically. The employer has a process in place but “We are suggesting that it be tweaked”. In cross-examination, employer counsel asked Mr. Tomlinson why that remedy was sought. Mr. Tomlinson replied, “I admit that the option is available to SEOs”. However, he stated that in the past it has been difficult to make officers understand that those resources are available. He said, “Also, the feeling is that the Employee Assistance Program, by itself is not sufficient when someone needs help. There has to be someone telling you need to go and see someone”. Counsel put to Mr. Tomlinson that under the procedure in place, an SEO who needs help goes to the EAP to obtain appropriate counselling/therapy. He agreed that there is such a process, but added, “But in the real world, SEO’s who need help do not always realize that, and may not go to the EAP for help. He agreed that at the Guelph District Office where he works there is a posting about the available EAP resources, but stated that a posting is not sufficient. [118] Employer counsel put to Mr. Tomlinson a Workplace Violence Risk Assessment dated July 2010 completed at the Guelph District Office, which he had signed off as Union Co-Chair of the Joint Health and Safety Committee. He agreed that this Risk Assessment as well as those for 2011 and 2012 contain language that “there is routine referral to the EAP to provide support for workers who are victims of workplace violence”. - 48 - [119] Ms. Janis Pechinger was asked by union counsel what counselling/therapy, if any, was offered after her incident. She testified that she was offered EAP, but she did not go because “it was awful”. She said that her Acting Director also asked if she was interested in going for a peer review support program available at MNR for Conservation Officers. She said she was, and it was arranged for her to go for that program, although it happened months after the incident. She testified that the therapy was very good, but that it should be made available immediately after an incident, not months later. Ms. Pechinger was not cross- examined on this testimony. [120] Mr. Steve Elford’s only testimony was to the effect that he was not offered therapy after the incident. [121] Ms. Dana Woods testified in chief that following her incident there was no follow- up by management, other than her supervisor calling her at home to ask if she was “OK”. In cross-examination, employer counsel put to Ms. Woods that Ms. Dugas will testify that she offered her EAP and a follow up for next steps. Ms. Woods stated she was sorry she did not remember that because it was a long time ago. [122] Mr. Joe Macionis was asked in chief whether he was offered EAP or any counselling and he said he was not. He was not cross-examined on this subject. [123] Mr. Brad Feduck testified in chief that he told his supervisor that he did not feel threatened by what happened to him. In cross-examination, when asked why he felt that way, Mr. Feduck replied, “The incident was unusual. But I didn’t feel I needed time off, counselling or anything like that.” (g) Use of Students to work in the field [124] The grievors seek an order that students and interns performing work similar to SEO work be provided the same training and all other safety precautions sought on behalf of the SEOs. In chief, Mr. Tomlinson testified that besides the concern - 49 - for the safety of the students themselves, this issue impacts on the health and safety of the SEOs in two ways. First, when a SEO is working in the field with a student who is not trained, the student may escalate the situation putting the SEO also in danger. Second, the SEO may not be able to extricate from danger with an untrained student. In cross-examination, employer counsel asked whether if he ever had either situation happen to him. He replied that if it happened, he could not recall it. Counsel put to him that the employer’s position is that it has never happened in the history of the ministry. Mr. Tomlinson agreed that he was not aware of such an incident either. [125] Ms. Janis Pechinger’s testimony was that she “generally had a concern about students”, and that this was raised at MERC. Testimony of Michael Burgess [126] The union called Mr. Michael Burgess, President of Burgess and Asso. Inc. Mr. Burgess has a police background and expertise as Instructor/Trainer and Expert Witness in courts. His expertise includes provincial officer training. Between 2011 and 2014 Mr. Burgess has obtained contracts from the Ministry to train its vehicle emissions officers, the Sector Compliance Branch officers, as well as SEOs. He testified in some detail about the content and duration of the training he delivered to those groups. He testified that vehicle emissions officers have more personal protection equipment than SEOs, including vest, baton, hand- cuffs, portable radio, radio in vehicles, and full police-like uniform and hat. They also had significantly more training than SEOs did. Asked whether the two-day training was sufficient for SEOs health and safety training, Mr. Burgess said that he did not think it is sufficient. He said that in some areas they only read material. Also, the Criminal Code is amended from time to time. For example if the definition of trespass changes, it is relevant to self-defence. Only a few minutes are spent on training on these. He said that the training on disengagement requires one whole day, but only half a day was available. - 50 - [127] Mr. Burgess testified that the class for vehicle emission officers was about 10. For SEOs, it was about 25 although it was later reduced to 12. However, SEOs were absent or leaving early. He said that since vehicle emissions training was 3 days, he was able to do individual assessments. Also they received a yearly refresher. He said that since the physical aspects of the training are not used often at work, a yearly refresher, which Sector Compliance Officers get, would be beneficial for SEOs also, since it would help better retention of what is taught. Mr. Burgess testified that there are some key components to be trained on, including communication, note-taking and diversity. He said that he was shocked that MOE officers received no training on diversity, because that can often escalate situations, and it is also relevant to the Criminal Code if the officer claims self-defence. [128] Mr. Burgess testified that he would recommend a three-day training for SEOs, paralleling the Sector Compliance Officers. He said that although SEOs need not be trained on some equipment like body armour, handcuffs, there are other things that can be covered like charter issues and simple things like the need to produce your identification every time you go to someone’s property. He said that for the physical aspects 1½ days would be sufficient. It could be pared down to 1 day later. The rest could be used to teach proper judgement making if someone is coming at you to attack. Mr. Burgess testified that he had experience about use of CPIC checks from the time he was a police officer. He opined that it will be helpful if SEOs had direct access to CPIC information. [129] He said that he could not say enough about the importance of two-way radios for safety of SEOs. With it, the officer can inform the dispatcher where he is as he moves. The dispatcher could also call for an update if the SEO had not called for a while. He said that in his opinion two-way radios ae necessary for the safety of SEOs. - 51 - [130] Union asked Mr. Burgess, whether soft body armour provides health and safety protection. He replied that it is like safety boots. If the impact is on the vest, it provides good protection. [131] Mr. Burgess testified that most vehicle emission officers work in pairs. He trained them on how the two people should act in various scenarios. For example, if there is an aggressive person, the officers should take position on either side of the person. Asked whether working in pairs is of benefit in those situations, he replied, “Absolutely”. [132] Mr. Burgess testified that during training, SEOs provided information relating to about four incidents, and the training was built around those. However, he was not given any statistics about how frequently hostile or violent incidents occur. Union counsel asked Mr. Burgess whether it is beneficial for SEOs to be aware of incidents colleagues had been involved in. He replied, “Yes. What happened to one may happen to others. It also helps to study whether the incident was avoidable.” [133] Counsel asked Mr. Burgess whether it is important that his two-day training be provided to everyone who works in the field including students. He said that from his personal experience and experience in courts, sending anyone not trained to work in the field would result in unpleasant results. He would refuse to go with someone not trained, because such a person can pose a risk to others. He said, “If we have to extract ourselves, he may not know how to do it”. [134] Mr. Burgess testified that the feedback from SEOs about the training he received was good. He said that “the number one complaint” was that it was too short. He wrote to Ms. Karen Puhlmann, project manager, making recommendations on updating the training. He noted that vehicle emissions officers are provided three days of training annually and recommended a rotating cycle of full two-day training one year, and a one-day refresher the next year for SEOs. - 52 - [135] In cross-examination, Mr. Burgess identified the Request for Proposals, to which he successfully bid. Counsel put to him that the RFP has no provision that the training for SEOs must be limited to two days as he had testified. He agreed, but explained that it was a “matter of math”. It had a budget limit and the number of people to be trained. He said that he could have only a maximum of 25 SEOs in a class. He agreed with employer counsel that he decided that given the available budget, he could provide the training as specified in the RFP in two days, and that in his response to the RFP, he wrote that the training can be done “effectively” in two days. He explained that in proposing two days, he also recognized that the employer had constraints on funds, as well as on its ability to pull SEOs off work for training. He decided to limit the training to two days and do the best. He did not propose that three days are required to deliver the training efficiently, because that would have exceeded the budgeted funds in the RFP. He agreed that his recommendations for updating the SEO training was submitted to Ms. Puhlmann after he had won the contract, but before the training had been delivered, and that it had a number of recommended options, none of which involved increasing the training to three days. [136] In re-direct, union counsel asked Mr. Burgess whether, having delivered the two- day training across Ontario since he wrote the expert opinion, he still thinks that the option he recommended in it are sufficient to meet the officers’ needs. Mr. Burgess replied, “I am going to say no. Now that I’ve seen it, I didn’t have enough time to deliver training on some subjects”. EMPLOYER EVIDENCE Testimony of John Stager [137] Mr. John Stager first joined MOE in 1988 as Supervisor of Program Planning. Subsequently he held a number of other management positions before being appointed as Director to lead the newly created SWAT Branch in 2000. I do not review his testimony with regard to SWAT for the reasons set out in paragraph 7, supra. - 53 - [138] Mr. Stager testified that he was appointed by the Assistant Deputy Minister to be in charge of the health and safety initiative that led to the 2004 Risk Assessment by Deloitte & Touche. Asked whether he was told why a risk assessment was being done, he said that it was to review how health and safety was done within the Ministry because there was a perception that there were inconsistencies. He said the assessment was to be about officer health and safety and it was not limited to SWAT officers. [139] Mr. Stager testified that he did not want the Deloitte & Touche assessment to be based solely on paper or data base information and wanted officer and management input. He decided that a third-party expert should be contracted because of the complexity. He testified that in February 2004 he left the Ministry, and the Risk Assessment report was released in June 2004 after he left. Therefore, he was not involved with implementation of the risk assessment. He had seen earlier drafts before he left, but testified that the final report would have incorporated many changes based on comments on the drafts by management and field staff. He returned to the Ministry in 2008 as Assistant Deputy Minister of the Drinking Water Inspection Section, but was not involved in any discussions about the Risk Assessment. [140] Union counsel reviewed in detail the content of the Deloitte & Touche Risk Assessment with Mr. Stager. Mr. Stager agreed that the risk level for SEOs was increased from moderate to high, because they did not have risk mitigators such as working in teams and two-way radios. Counsel pointed out that the authors of the risk assessment made recommendations and also mentioned other best practices. Counsel put to Mr. Stager that the expectation was that the recommendations would be implemented, and best practices mentioned would be considered. Mr. Stager replied that management’s expectation was “to assess everything, do a triage, decide on priorities, and act on what is most important first”. Counsel put to Mr. Stager that, having paid an expert, if the expert says that, “this has to be done in order to be in compliance with the Ontario Health and Safety Act”, he expects it would be done. Mr. Stager replied, - 54 - “Yes. But management has the prerogative to assess whether there is an alternate way of getting to the end result quicker or better. He agreed that he anticipated that management would discuss and set priorities, and decide how best to address health and safety issues raised by the experts. [141] Referring to “best practices” mentioned in the risk assessment, counsel asked Mr. Stager whether, at SWAT or the Drinking Water Section, there was systematic reporting of incidents of verbal or physical confrontations etc., whether statistics were maintained on those, and whether officers involved in such incidents had the support and assistance of a critical incident team. He replied that incident reports were submitted by officers, but it was rare. He did not know if there was any critical incident team because there was no such incident requiring assistance. The officers could go to EAP or talk to management. Asked what access field staff at Drinking Water had to CPIC, he replied that he did not know, because he did not hear of any incident which required CPIC information. He stated that he had heard about the Janice Pechinger incident, but was not involved in any discussion about it. [142] In re-direct, Mr. Stager was asked why data was not used in analysing health and safety risks. He replied that the data base was not designed to store that information because it was not an issue at the time. Therefore, “a narrative collection of information based on experience” was used in deciding how to do an inspection. Testimony of Peter Balaban [143] From November 2005, Mr. Peter Balaban has been the Field Operations Manager of the Ministry’s Sector Compliance Branch (“SCB”), which replaced the SWAT team. He joined the Ministry in 1985 as an Environmental Planner and held it for 10 years, during which time he worked on secondment as a SEO for some 6 months at the York Durham District Office. Then he held a number of supervisory positions in several branches of the Ministry including as District Manager York-Durham, before assuming his current position. As SCB Field - 55 - Operations Manager, Mr. Balaban had oversight over some 15 Sector Compliance EOs (“SCEO”), and three teams of vehicle emissions (“VEOs”), each with its own supervisor. [144] Mr. Balaban testified that when he became SCB Field Operations Manager, the SCB had just been created and replaced the SWAT team. He stated that SWAT had a zero-tolerance policy. Any time a violation was found a provincial officer’s order was issued. The SCB had a more flexible approach, focussing more on getting clients to comply voluntarily where violations were minor or if it was a first offence. [145] Mr. Balaban testified that along with the transition from SWAT to the SCB, many changes were implemented for SCEOs. The transition did not impact on the way inspections were done by VEOs. The SCEOs now had a more flexible approach called “Informed judgement making”. In SWAT all officers wore police-like uniforms. SCEOs wore field attire, golf shirts with Ministry crest and pants or business attire depending on the location they were attending. Business suits had no Ministry identification, but if officers decided to wear spring jackets or Ministry coats they had Ministry identification. Mr. Balaban testified that SCEOs no longer worked in pairs as a rule as SWAT officers did. In appropriate cases single officers did inspections. [146] Mr. Balaban testified that to provide guidance to SCEOs, a compliance policy was issued. It included an “Informed Judgement Matrix”, which categorized types of non-compliance according to seriousness and set out options for SCEOs in responding to violations. Zero tolerance was only for the most serious violations. In contrast, VEOs have no formal policy, and respond based on the severity of the violation. He testified that unlike SEOs who do both proactive and responsive inspections, SCEOs only do the former. Referring to the guidance document, Mr. Balaban testified that SCEOs discuss any safety concerns with their supervisor and address it. It may be decided that the inspection should be - 56 - done by two officers, that police presence should be arranged, or even that the inspection should not be done at all. [147] Mr. Balaban testified that SCEOs receive only conflict avoidance training, while VEOs receive use of force training. VEOs patrol the roads and pull over vehicles for inspection randomly or if they notice an issue such as a vehicle emitting excessive smoke. The inspection entails ensuring that emissions components are operating properly, that all approval certificates, insurance and weight restrictions etc. are complied with. Besides pullover inspections, sometimes the police or MTO may bring vehicles to be inspected. Since recently, they also do projects relating to TTC and school buses. The officers have discretion in responding to a non-compliance found. [148] Mr. Balaban testified that unlike SCEOs, VEOs continue to wear a police-like uniform with provincial Officer Identification, bullet-proof vests, safety belt with handcuffs and baton. He said that SCEOs no longer wear full uniform and did not wear soft body armour at any time. [149] Counsel asked whether SCEOs experience personal safety concerns when out in the field. Mr. Balaban replied, “Potentially yes”, and explained that they could be involved in a vehicle accident and may be verbally assaulted. Asked what provisions exist to mitigate the latter risk, he referred to the conflict avoidance training, the identification on their clothes and pre-planning of inspections. [150] Mr. Balaban testified that VEOs also face risk, depending on who they pull over. Asked to compare the level of risk faced by SCEOs and VEOs, he testified that pulling over vehicles is one of the riskiest duties, because the officers do not know who is in the vehicle. Even when they run a plate after pulling over, it only identifies who owns the vehicle, not the occupants. Therefore, VEOs are not able to pre-plan inspections like SCEOs do. The vehicle pulled over could be stolen, may be in use for illegal activity or the driver may not be licenced to drive. Those people would not want to be pulled over by officers who look like the - 57 - Police. Mr. Balaban testified that the conflict avoidance training for SCEOs teaches how to disengage from uncomfortable situations. While the focus of the use of force training provided to VEOs is also disengagement, they are also taught how to use force if disengagement is not possible. For this purpose they are equipped with batons and handcuffs. [151] Mr. Balaban testified that since transitioning from SWAT to the SCB, SCEOs do not have direct access to CPIC checks. They have to discuss the need for one with the supervisor, who would get a CPIC check done by the IEB, VEOs continue to have direct access to CPIC by contacting the OPP dispatcher. [152] Mr. Balaban testified that SCEOs were provided with Blackberry phones and lap- top computers to use as communication tools in the field. Satellite phones were available in the office for use in remote northern areas where cell phones may not work. In addition, VEOs have two-way “Walkie-talkie” radios, and recently were issued Fleetnet radios. He testified that SCEOs were not provided with any type of two-way radios because it was decided that what they had was adequate. [153] Mr. Balaban testified that SCEOs could work in the field alone or in pairs. They work in pairs if deemed necessary, because for example, the facility is large or if there is a safety concern. The need to work in pairs has to be discussed with the supervisor, but Mr. Balaban was not aware of any instance where a supervisor had denied a request to work in pairs. VEOs always work in pairs, except for inspections of vehicles bought in by the police or other agency. [154] In cross-examination, Mr. Balaban reiterated that by the time he arrived in November 2005 the organization had already transitioned from SWAT to the SCB. Asked whether he asked senior management for the rationale for the transition, he said he did not, but his understanding was that the SCB was moving toward the model of the District Office EOs. He agreed that there are safety risks inherent in work done by all enforcement officers including SCEOs - 58 - and that management has a duty to take reasonable steps to mitigate those risks. [155] Union counsel reviewed Mr. Balaban’s testimony about the risks VEOs face when pulling over vehicles for inspection. Mr. Balaban agreed that some of that risk is mitigated by the ability to directly access CPIC and the MTO data base. He also agreed that the soft body armour VEOs wear mitigates risk of injury if an occupant of the vehicle has a gun or knife, and that the use of force training helps in the event of a physical assault. He understood that VEOs were recently issued Fleetnet radios to provide them with better direct access to police than that provided by the two-way radios they had, and that Fleetnet further helped mitigate risks faced by VEOs. [156] Mr. Balaban agreed that since SEOs do proactive as well as reactive inspections, they may not be able to pre-plan inspections to the same extent as SCEO’s. When they arrive at a site, they would not know who they would encounter, and whether anyone present had a history of violence or criminal background, or whether any of them would be armed. Unlike VEOs pulling over a vehicle, SEOs may encounter large numbers of people, and that sometimes they could be the same people VEOs encounter. [157] In redirect, Mr. Balaban testified that he was not aware of any instance of a VEO being attacked with a gun or knife, or even being threatened with a gun or knife. Testimony of Matt Williamson [158] Mr. Matt Williamson, Manager, Investigations & Enforcement Branch testified that he was responsible for the Intelligence officers and EOs in his unit, who do some proactive investigations, but mostly investigations resulting from referrals from front line EOs. Two Intelligence Officers and an Analyst in the IEB are trained and certified to do CPIC checks for those officers upon request. Upon receipt of requests for CPIC checks, the IEB staff rank them according to priority based on information in the request form. Before doing a CPIC check the requests must - 59 - be approved by Mr. Williamson or the Technical Support Manager. The terminals that provide the IEB staff direct access to the OPP are operative only between 7:00 a.m. and 4:30 p.m., and the three IEB staff do the day shift. Outside those hours no one is available at work to access CPIC. Mr. Williamson testified that he had briefed all police agencies about the limited hours the IEB has direct access to the OPP for CPIC checks, and the need for the Police to respect IEB staff as peace officers. He was assured that the police would be happy to assist, if an officer comes to a police station and requests CPIC information after hours. Therefore field staff of the Ministry working after hours are able to request the OPP for CPIC checks. [159] Mr. Williamson testified that he hopes that his certified operators would be able to provide CPIC information within 1-2 day of receipt of the request. However, all three of them may not be in the office all the time because of absence or other duties. He said that responding to CPIC requests was only a small part of their duties as Intelligence Officers or Analyst. In those circumstances, the requesting officer would have to call the OPP or attend at a local police station to obtain CPIC information. [160] Mr. Williamson testified that in March 2014 he made a presentation to some 200- 225 members from all police and enforcement agencies in Ontario. The majority of attendees were managers, but included line staff also. This presentation was made at the request of law enforcement agencies, who were of the opinion that the audience should be reminded of the status of all EOs in Ontario; what they investigate, and that their assistance is needed and appreciated. [161] In cross-examination, Mr. Williamson agreed that all EOs other than VEOs have to go through the IEB to have a CPIC done. He also agreed that EOs may have to work after hours for incidents of spills, and if a CPIC check is needed after hours, they have to get it through the local police. He agreed that local police have no obligation to act on every CPIC request EOs make. It is at their discretion, and therefore sometimes an SEO may not get the CPIC requested. - 60 - [162] Counsel put to Mr. Williamson that there is a lapse of time from the point when a SEO submits a CPIC request form to a supervisor, who reviews it and forwards it to the IEB, and then one of the three IEB operators would take 1 to 2 days to do the CPIC check and produce the results. He agreed. Counsel suggested that therefore, if a SEO needs a CPIC check immediately, there is no way to get one. Mr. William agreed and testified that in that event the SEOs can arrange for police to meet them at the site. He agreed that it would be helpful to SEOs to decide if police presence is needed, if they already had CPIC information. Mr. Williamson also agreed that there may be occasions even during regular work hours, when SEOs are not able to obtain a CPIC check, if a certified IEB staff is not available due to absences or if they are busy with other duties. [163] Mr. Williamson testified that since about 2008/09, the Operations Unit and the Strategic Intelligence and Enforcement Unit has had Fleetnet radios. He said that to get those, a business case was submitted to support the need for Fleetnet specifically for the IEB surveillance program. The need for a better communication tool for the Mobile Surveillance team was particularly emphasized. Currently the IEB had 5 Fleetnet vehicle units and 5 mobile units, and about 8 officers in the Operations Unit and at least 6 others in IEB had completed Fleetnet training conducted by the supplier Motorola and the OPP. He testified that Fleetnet radios were used mostly for vehicle to vehicle communication during surveillance. [164] In re-direct Mr. Williamson testified that Fleetnet was sought because the hands- free walkie-talkie radios the officers had been issued had issues. There was often no signal in hilly areas and had a limited range of about 200 yards. Fleetnet had encrypted channels, and the subscriber had a designated channel in each area of Ontario. It allowed officers to communicate with each other within a greater radius, and the “Field Boss” on the assignment and the manager can hear all communications between officers. He noted that Fleetnet is used only as part of an approved operational plan for intelligence and investigation purposes. He said that where a person or company is identified as, for example, dumping - 61 - waste illegally, but it is unknown where the dumping takes place, officers would follow vehicles. Fleetnet radios are used only when travelling to do that type of surveillance. Testimony of Richard Raeburn-Gibson [165] The employer also called Mr. Richard Raeburn-Gibson, Director of Operations Integration Branch & Spills Action Centre, (“SAC”), which is part of the Operations Division of the Ministry. He testified that SAC employs 32 EOs, and is a 24-hour operation. SAC receives reports of spills and related incidents from all parts of Ontario, and coordinates with regional staff and other divisions of the Ministry in responding to those. If reports of spills are received after hours, SAC may contact EOs on call and/or private companies and other agencies for response. [166] Mr. Raeburn-Gibson testified that SAC EOs do not directly respond to incidents. Therefore, usually they do not interact with SEOs or regional offices. However, if a SAC EO decides that a field visit is required in relation to an incident, he/she would call the SEO on call and request that a field visit be done. That SEO would attend his/her office and contact SAC to get details of the incident and visit the scene, keeping regular contact with SAC, who would arrange for assistance from other agencies like Fire, Police and private companies as needed. If needed, the local technical sections may also be sent to the site. SAC continues to work closely with Fire, Police etc. and the Emergency Provincial Operations Centre. [167] Mr. Raeburn-Gibson testified that the health and safety of the SEOs in the field is a priority for SAC. The SEO would be made aware of any known safety risks and SAC would coordinate with police for safety protection for SEOs. He said that the SAC has the duty to mitigate safety risks for SEOs. Once a SEO is in the field, the SAC EOs have no supervisory role and do not give directions. It is a role of communicating as colleagues to assist the SEO to make decisions. He said that “there is due diligence around the SEOs health and safety” and said - 62 - that for example, if the SEO had not contacted SAC, SAC would contact the SEO’s manager. Counsel asked what would happen if the SEO in the field has concerns about safety because of people he was dealing with at the scene. He replied that it is up to the SEO to decide whether to disengage, seek police assistance or discuss the concern with his manager. The SEO does not have to consult SAC in deciding how to deal with the potential risk. SAC would get the Police to assist only if requested by the SEO. If SAC does not hear from the SEO for a while, the SAC EO may contact management for advice or may request police to check on the SEO. He said that the SEO going into the field would usually inform SAC how long he expects to be at the site. If SAC does not hear from the SEO for 10-15 minutes beyond the estimated time, SAC would check with the SEO and if that fails, would have others check on the SEO. He said that SAC keeps in regular contact with the SEO in the field. [168] Mr. Raeburn-Gibson testified that SEOs regularly work alone during the day, but would rarely work alone after hours. If it gets dark and other agency staff and Police start leaving, the SEO also will leave and return the next day. If a SEO has concerns about safety at any time, he has to consider options; to call MTO, the local Police or OPP. He said that he could not think of any circumstances where a CPIC or MTO check would be required during an after-hours visit. If SAC or the SEO has safety concerns about the people, SAC would contact local police and provide information about them for the SEO. [169] Mr. Raeburn-Gibson testified about a check-in/out procedure which ensures the safety of SEOs in the field. When a SEO leaves his office to attend site SAC is informed. On returning home or to the office SAC is informed again. While the SEO is in the field he is tracked. If the SEO does not check back with SAC on time, SAC gets an alert from the system. SAC would then try to contact the SEO, including at his home. If no contact is made, local management is informed that there had been no contact from the SEO, and local management may contact Police. He said that SAC has not required SEOs to regularly check with SAC while in the field. However, he believed that local management has - 63 - encouraged that as a best practice, and some managers have even directed that SEOs do that. [170] Mr. Raeburn-Gibson testified that he has oversight over various training programs provided to employees in the Operations Division, including conflict avoidance training tiers 1and 2. He said that tier 1 teaches hazard recognition, avoidance, and disengagement tactics. Tier 2 includes emotional intelligence, recognition of cognitive impediment in people, proactive disengagement, stances and positioning, and escape from common grabs and assaults. The training was increased from 1 to 2 days. Refresher training is provided every 3 years for tier 1 and every 2 years for tier 2. [171] Mr. Raeburn-Gibson testified that in October 2013 senior management decided to enhance this training. Mr. Burgess recommended that with the enhancements, refreshers for tier one should also be every two years. A request for proposals was issued, setting out the enhancements required. Employer counsel asked why open hand use of force was not included as an enhancement. He replied that it was decided that if an officer uses empty hand force, it unnecessarily increases safety risk. It was recognized that SEO work is very different from Police work. Therefore, the focus was on mitigating risk by avoiding and disengaging, and that if needed SEOs could call local police or OPP. It was decided that a policy of proactive disengagement is preferable than increasing risk by resort to use of force. [172] In cross-examination, Mr. Raeburn-Gibson agreed that enhancements to the training was recommended and approved by the ADM because management felt it was justified. Referring to the business case presented to the ADM, counsel put to him that among the justifications relied on were the Risk Assessment Report, the spectre of people and locations field staff encounter, and the risk of verbal and physical confrontations. He agreed. Counsel asked why VEOs and SCEOs were given additional training. Mr. Raeburn-Gibson replied that it was because of the increased risk involved in pulling over vehicles with no ability at all - 64 - to research who the occupants were. The drinking Water and District staff do not do that. They can research before going to a scene. He agreed with counsel that SEOs arriving for inspection of a site would not know necessarily who may be encountered there, but explained that they can research about the company’s prior record of compliance and any past safety issues. He also said that usually it is arranged in advance that a member of management would meet and accompany the SEO on arrival. Counsel put to him that in a factory SEOs could encounter more people than in a vehicle, including employees or delivery people with criminal backgrounds; are emotionally charged; or are involved in illegal activity, who may resort to verbal or physical confrontations. He replied, “Yes. Like when you engage with any segment of society”. [173] Mr. Raeburn-Gibson agreed that students are assigned to accompany SEOs in field enforcement work. He stated that as a rule, students are not provided the tier 1 and 2 training the SEOs get, but a supervisor may send a particular student for the training just for the experience. Counsel put to him that students face the same safety hazards as SEOs, and that an untrained student could put the SEO in danger. Mr. Raeburn-Gibson disagreed. He said that supervisors are under direction to be very conservative in assessing risk in deciding whether to assign students for field work with SEOs. They are assigned only low risk assignments. He agreed with counsel that the real risk level cannot be predicted in advance 100 percent accurately, but explained that the supervisor and the SEO discuss the potential risk in each assignment before a student is assigned. Counsel suggested that if the SEO is faced with a risk, an untrained student may not be able to properly assist. Mr. Raeburn-Gibson agreed, but added that SEOs regularly go out alone with no one to assist at all. When put that students do not have no skills or experience to deal with safety risks, he agreed, and added that “students are there only for a 4 to 6 months co-op”. Union counsel pointed out that the Deloitte and Touché Risk Assessment Report recommended that students be given the same safety training as SEOs, and asked why that was not implemented. Mr. Raeburn-Gibson replied that management decided that it was - 65 - unnecessary given the policy of assigning students to accompany SEOs, only on very low risk field work. [174] Mr. Raeburn-Gibson testified that there was a discussion about the cost of purchasing Fleetnet radios, among many other budget items. He agreed that one of the stated purposes of Fleetnet radios was officer safety. He testified that it was felt Fleetnet would be beneficial for VEOs because they regularly pull over vehicles on highways. Testimony of Celeste Dugas [175] Mr. Celeste Dugas, Manager of the York-Durham District Office, had previously worked for 9 years as a SEO in different District offices and for a period as an EO at SAC. Before assuming his present position, he had worked for some 4 years as a SEO, and 7 years as District Supervisor in the Northern Region of Ontario. He testified that the only difference in the Northern region was that the geographical area was larger and undeveloped, and the industries were different from those in Southern Ontario. He testified that SEOs in the North had to travel longer distances to get to the sites. Therefore, they were required to notify management where they were going and how long they expected to be away, and they also signed a check in/out board if they would be away for longer than 2 hours. If working after normal business hours they also checked in/out with SAC. [176] Mr. Dugas testified that SEOs in the North also have satellite phones and SPOT units in every office, which could be signed out as needed. SEOs in the South did not have these. This difference was because in the North cell phones did not work. He said that satellite phones also may not work in the rural North, particularly if it is overcast. It was to address this, that a SPOT unit was made available in the Sudbury District Office on a trial basis. It is not possible to speak using SPOT, but messages and e-mails can be sent, for example to notify that everything is fine or that there is an emergency and assistance is required. He was not aware of any problems with using SPOT in the North. - 66 - [177] Mr. Dugas testified that in the North SEOs can work in pairs at their discretion, for example if the inspection is complex or near water, or they feel a need to have a partner for any other health and safety reason. No management approval was required to work in pairs, but SEOs often discussed with the supervisor before working in pairs. Mr. Dugas testified that SEO Dana Woods talked to him once or twice about having another SEO accompany her. He advised her that if she felt a need, she should request another SEO to go with her, and if no one agreed she should let him know, and he would arrange for that. After the Manitoulin Island incident, when Ms. Woods told him that no one responded to her request to accompany her, he told her that she should have spoken to him before going alone. At that time he issued a memorandum to all staff to the effect that they should make themselves available if Ms. Woods needed assistance. [178] Mr. Dugas agreed that after that incident Ms. Woods called him the same day and again the next day, and described what happened. She was very upset and crying. He offered her EAP Services, and discussed referring the incident to the IEB for investigation, and putting a flag on the person concerned. When he contacted the Human Resources Advisor, he was advised to complete a Workplace Violence Incident Report and share it with the Joint Health and Safety Committee, and he did so. The incident was also discussed at a Staff Meeting attended by all SEOs in the office, who were allowed to speak or raise any concerns they had. He also sent an “Information e-mail” to the Sudbury District Office, detailing the incident and informing that the farm owner will be notified that an inspection would be done with police presence if required; a red flag would be placed on the Ministry IDS System to warn staff of the potential dangers dealing with this individual; and that Ministry Staff would no longer meet with that individual in person. Mr. Dugas testified that he sent the e-mail only to staff who may have to deal with the person concerned. There was no indication that he could be encountered by SEOs across Ontario. - 67 - [179] Counsel asked Mr. Dugas whether Ms. Woods handled the interaction with the farmer, his wife and the other individuals properly. He replied that she did in introducing herself and explaining why she was there, and added, “But as soon as she felt uncomfortable, she should have left.” Asked why, he said that “Her health and Safety was first and foremost – not the inspection. There was nothing urgent about the inspection. So her first course of action should have been to leave. She should have got out of the situation as soon as possible.” He testified that had she done that the incident would have been avoided. She would not have been disciplined for leaving. Nor would that be reflected negatively in any performance evaluation because she would have been complying with ministry policy, and acting as per the training and directions she had received. [180] In cross-examination Mr. Dugas agreed that SPOT devices do not have two-way voice communication, and that SEO would not know whether the signal sent actually went. He testified that if a SEO expresses any health and safety concern he would not, and had never, denied a request to work in pairs in the North or the South. [181] He agreed that details of the Dona Woods incident were shared with the Sudbury Office, but he did not know whether it was shared with any other offices. He agreed that if a third party of concern is involved in an incident, it is important to share information with offices in other regions of Ontario, if it is known that the person has links with other areas. Asked why despite the Woods incident, the police were not involved in the subsequent inspection of that farm, he said that the SEO in charge of Manitoulin was comfortable doing the inspection without police assistance. Counsel pointed out that the memorandum sent by management to staff stated that police should be present when entering that farm, and asked whether the SEO had discretion. Mr. Dugas said that he assumes that the SEO discussed with management before going alone. - 68 - Testimony of Kim Groombridge [182] Ms. Kim Groombridge, had worked as SEO and as a District Supervisor before becoming District Manager for the Niagara Region in 2015. She testified that in the capacity of District Supervisor she was responsible to ensure that the OHSA is complied with. SEOs came to her with any health and safety concerns and she dealt with those. If a concern was such that funding was required to resolve it, she elevated it to the District Manager. She testified that if a SEO has a concern, for example that a person has a history of violence, he/she had the option of making a Special Services Request to the IEB to inquire into that, and also may request police assistance or to work in pairs. Ms. Groombridge testified that as supervisor she followed the long-standing policy that the health and safety of officers is more important than any work the Ministry does. Therefore, if she was made aware of any concern, she tried to find a way to do the work safely. If that was not possible the work would not be done. [183] Ms. Groombridge testified that SPOT devices enable the SAC to track SEOs working in the field. SEOs check in/out with SAC, and are also required to contact SAC every two hours to confirm they are alright. SPOT enables SEOs to seek assistance by pressing a button. She testified that the two SPOT units in the Niagara Office are sufficient for its needs. She testified that SEOs are issued Blackberry phones, which they are required to carry when in the field. She said that the office also had satellite phones, but they were not being used by SEOs because cell phone coverage was very good in the region. The office no longer has satellite phones. Asked whether there were any problems with SPOT devices, Ms. Groombridge replied that for some reason SEOs did not like using SPOT and preferred to call SAC on their cell phones. [184] Employer counsel asked Ms. Groombridge whether there was any process in place to share safety related information. She replied that all staff, mostly SEOs, who become aware of any health and safety concern place hazard flags on the Ministry IDS system. These could relate for example to the presence of a toxic chemical, a vicious dog or about a violent individual. SEOs are expected to - 69 - check the sites and people for hazard flags on the system before going out. Ms. Groombridge testified that in addition, at monthly staff meetings, SEOs raise and discuss incidents or concern they had experienced in the preceding month, so that others could learn from it. In addition, safety information relating to more serious situations is circulated through e-mails. Ms. Groombridge testified that in addition to her current role as District Manager, she is also a co-chair of the Joint Health and Safety Committee. If they have health and safety concerns, SEOs typically raise them with their supervisor. She would directly get involved only if the supervisor is absent or the concern had been escalated to her. [185] Ms. Groombridge testified that the office employs one or two summer students, who would assist with office administration work, and may go out to assist SEOs in the field. Before accompanying SEOs in the field, students must complete a month-long health and safety training. She testified that students are sent out only on simple environmental field responses. She said that most field responses involve some environmental hazard. However, if there is any personal safety hazard, for example about potential for violence, students would not be sent. [186] Ms. Groombridge stated that, as District Manager, her responsibility is to ensure that staff receive Conflict Avoidance Training (“CAT”) and the refreshers on schedule. The computer system tracks all mandatory training and sends an alert when someone is due for training. She testified that SEOs have the option of having police presence, but in her seventeen years, police assistance was requested only about five times. [187] Ms. Groombridge testified that if a SEO has to access the MTO data base, he/she has to request an IEB investigator or the Strategic Enforcement Unit. She said that typically it could take half a day to obtain the information, and there had been no problems in that regard. She added that there had not been many MOT checks requested from her office. - 70 - [188] Ms. Groombridge testified that SEOs may work in teams when there is a known health and safety risk like a person with a history of violence, or when going after hours to an unknown location for the first time. She said that a SEO wishing to work in pairs has to make the request to the supervisor. She said that such requests are very rare. Asked if requests are ever turned down, she replied that if she has difficulty sending two SEOs due to operational reasons, she asks the SEO whether the response was urgent and why. If she decides that there was no urgency, she will deny the request at that time, and direct that the response can be rescheduled and done later when two SEOs are available. [189] Ms. Groombridge testified that she first heard of the June 13, 2014 Feduck/Medland incident when Mr. Feduck submitted a report on Monday June 16. She told Mr. Feduck that he should have informed her immediately rather than wait till his next shift after the week-end, and Mr. Feduck explained that it was no “big deal”, that people carry guns all the time; and that he did not think of it as a safety hazard. She also told him that the property should not have been visited because the SEIU background report had not yet been received. [190] Ms. Groombridge testified that on July 7, 2014, she wrote to the two SEOs outlining the steps she had taken in response to the incident. Those steps included the following. The Ministry SEIU and the Police were informed about the incident. Hazard flags were placed on IDS for the property concerned, as well as other properties owned by R. Steps were taken to create an interim protocol which provided that without discussing it with management, no MOE staff should attend a site while a background check report from the SEIU was still outstanding, and that threatening incidents must be reported immediately to management, even if it is after hours. Ms. Groombridge wrote, “Further and as discussed, your safety is much more important than any information that could have been obtained from observing this scene prior to knowing the extent of the personal safety hazards associated with it.” A protocol effective August 1, 2014 with regard to attending sites owned by R was implemented. It listed all known properties owned by R and set out the procedure to be followed when visiting - 71 - those, including that SEOs are not to attend those sites until Police availability to attend is confirmed. Copies of the protocol were provided to management of the Sudbury and Hamilton District offices because R owned properties in those districts also. [191] In cross-examination, union counsel referred to a SPOT implementation document, and put to Ms. Groombridge that SPOT devices have no two-way communication capability; need a clear view of the sky to obtain a GPS signal; and are not reliable indoors, in very dense woods and highly urbanized areas. She agreed. She said that she was not involved in the decision to obtain SPOT, and was not aware whether getting Fleetnet instead was considered. [192] Union counsel suggested that with up to 12 SEOs in the Niagara Office, more than two SEOs could be out in the field at the same time, and therefore two SPOT devices for the office were insufficient. She replied that the Drinking Water Section also had a SPOT unit which could be borrowed, and that there had never been any problem or complaint about a SPOT device not being available. [193] Ms. Groombridge testified that the IDS system has hazard flags on properties as well as individuals, and that more detailed information could be obtained from the IEB. Counsel put to her that since SEOs have no direct access to the IEB data base, when a SEO calls for safety information, no IEB investigator may be available to assist. Ms. Groombridge agreed, but added that since SEOs do not provide an emergency response service, and have been told that their safety comes first, they do not need to proceed until all required information is obtained. [194] Ms. Groombridge testified that no district office in Ontario provides Conflict Avoidance Training to summer students. Counsel suggested that an individual with no history of violence may become aggressive on a particular day. She agreed, but added that the SEO would have had CAT training and would know how best to handle the situation. Counsel put to her that an untrained student - 72 - may do something that could put the SEO in danger. She replied that it has never happened. When counsel suggested that there is no guarantee that it can never happen in the future, she replied, “Yes. You can say that about anything”. When counsel suggested that it will be beneficial if students also had CAT training, she replied that it will not do any harm, but was not necessary given the role of students. [195] Counsel suggested that half a day is a long time to wait for information from the MTO data base if the information is needed immediately. Ms. Groombridge replied that if necessary IEB management can be asked to give priority to a request but added, “Anyway we are not an emergency response service”. She agreed that requests for specialized services from IEB are made at a SEO’s discretion, if there are any safety concerns. In the vast majority of cases it is not requested and when requested a supervisor’s approval will not be denied if the SEO expresses a concern about personal safety. Testimony of Sarah Kirkwood [196] Ms. Sarah Kirkwood, an Environmental Scientist at the Engineering Consulting Firm, GHD Limited in St. Catharines, Ontario since 2014 was Lead Facilitator of the GHD team that successfully bid for delivering the Conflict Avoidance Training for SEOs. She testified in detail about the preparation of the bid, the development of the CAT training curriculum for MOE staff, and its delivery. She described the content of the various tiers in the curriculum in detail. [197] The agreement required GHD to review, update and deliver a Conflict Avoidance and Disengagement Training effective October 5, 2016. Ms. Kirkwood testified that GHD then contracted a number of trainers who had the expertise and experience required to meet the requirements of the agreement, and GHD worked with them to develop the curriculum. In updating the tier 2 CAT training, existing training material and a Ministry manual were reviewed. The Ministry directed that the training should be limited to defensive tactics only, not offensive tactics, because the goal of the training was about disengaging and removing - 73 - yourself, not injuring anyone. Direction was also received that for tier 1 the training would be one day with recertification every three years, and for tier 2 one day of training with recertification every two years. Employer counsel asked Ms. Kirkwood whether the two-year refresher cycle for tier two was adequate for SEOs to retain skills. She replied that the curriculum was put together with a two-yearly refresher in mind. [198] In cross-examination, Ms. Kirkwood agreed that she nor any of the trainers had worked as SEO. They learned about what SEOs do and the types of conflict they face through discussion during the tender process and as well as subsequent on-going discussion. She agreed that to understand the risk SEOs face it was important to know specifics about past incidents, which the Ministry had not provided at the outset. Therefore, this information was sought in e-mails sent by the experts GHD hired. Also during the training SEOs were asked about past incidents and they were discussed. She agreed that the Ministry had not tracked past incidents, and no statistics were available. The Ministry provided only general information such as that 92 percent of the past incidents were about verbal aggression. No details were made available about what violent acts or assaults had taken place in the past. GHD trainers were not made aware of the 2004 Deloitte & Touche Risk Assessment. They were told that an external trainer had previously delivered the training, but that course material was not provided. She was not aware that the trainer was Michael Burgess. GHD was not provided with Incident Reports completed by SEOs who were involved. Asked what the trainers relied on in the absence of details of past incidents, Ms. Kirkwood testified that GHD’s analysis was qualitative. Therefore, by comparing the role of SEOs with other professions, the trainers were able to identify and rank the likelihood of SEOs facing particular types of risk. Testimony of Shannon Seka [199] Ms. Shannon Seka, Senior Manager at the Spills Action Centre (“SAC”) since October 2016, described the function and role of SAC, and the features and capabilities of SPOT devices. She testified about the support SAC provides to - 74 - SEOs working in the field with SPOT devices. She said that SAC employs some 30 Senior and Junior EOs. Twenty four hours a day, the EO on duty receives reports from SEOs in the field. SAC gives a ticket number for the SPOT device carried by the SEO. Once a SEO presses the check-in button on the SPOT device, SAC begins to monitor. The SEO is to check in every 2 hours and update, including his/her whereabouts, expected timelines etc. Unless a request is made by the SEO no action is initiated by SAC. During the day the District Office monitors the two-hour check-ins. If a SPOT message is received after hours, SAC monitors it to ensure that a check in is received every two hours. If a check-in is missed, SAC informs the District Supervisor and tries to contact the SEO on his/her cell phone. When a SPOT device is turned on, SAC is able to identify the location of the device through GPS. [200] Ms. Seka testified that if a SEO presses the SOS button on SPOT, an emergency message is sent via satellite directly to the Emergency Response Centre in Houston, Texas, operated by SPOT. She said that Texas would then activate a local emergency response to assist the SEO. She did not know what that response consists of because during her tenure at SAC she had not seen such a situation arise. [201] Ms. Seka testified that if a SEO presses the “help” button on SPOT, SAC attempts to contact the SEO and also contacts the District Office Management to plan how to provide assistance, whether another SEO should be sent, or police should be contacted. She said that a “help” button had never been activated during her tenure. She said that she was not aware of any instance where a check-in or message sent by a SEO through SPOT was not received by SAC. [202] Ms. Seka testified about the Field Operators Tracking System (“FOTS”), a Microsoft accessed data base. FOTS is an electronically fillable form to retain information provided by SEOs before going out in the field. When the SEO calls, the form is populated with the SEO’s name, contact information, SPOT number, where the SEO is going, the weather, any anticipated hazards etc., and the - 75 - SPOT ticket number issued by SAC. If a SEO goes out on an Emergency Response Program (“ERP”) call, SAC initiates a FOTS form. If not, the SEO in the field initiates it. If a need arises to contact the SEO in the field or to initiate any action to assist the SEO, information in FOTS is used. She said that if attempts to locate and assist a SEO fails, SAC would call 911 for police action. She was not aware of this ever happening. [203] In cross-examination, Ms. Seka confirmed that SPOT devices are monitored by the District Offices during the day, and by SAC after hours. She said that SAC maintains a data base where a record is made when FOTS is used, but she was not aware of a report with statistics on FOTS usage. Testimony of Caroll Leith [204] Mr. Caroll Leith worked as a SEO in the Timmins District Office before becoming Area Supervisor for Timmins in 2014, and District Manager covering the Timmins and North Bay Districts in February 2015. Mr. Leith testified that he participated in a project to review and improve the electronic hazard flag system. He described that staff members, based on experience, can enter hazard flags on a particular site or individual. Then any SEO before visiting a site or interacting with an individual can do a search for the site and/or the individual, and if flags are identified on the system, discuss with the supervisor in preparation for the visit. He described in detail about the changes made to the flag system during the project, and the reasons for change. He testified that as a part of the project, material was provided for use by SEOs, and they were also provided training on how to use the hazard flag system. [205] Mr. Leith testified that SPOT devices have been in use in his District since 2014. Asked whether there had been any problems with SPOT, he replied that there were only two issues. Once the device did not send a signal when the SEO pressed the “ok button”, because the battery in the device was dead. On another occasion when the SEO hit the ok button, the signal did not go to the office administrator who was supposed to get the signal in addition to the District - 76 - Manager and supervisor. This happened because management had not entered the new Office Administrator’s name in the system. Both issues, therefore, were not related to any problem with the SPOT device itself. [206] Mr. Leith testified that initially there were satellite phones in each office. Then to ensure that a satellite phone is available on every field visit, each vehicle was equipped with one. Each SEO initially had a flip phone. These were upgraded to Blackberry phones and then to smart phones. [207] Mr. Leith testified that in his District, SEOs could work in pairs in a number of situations. By policy they do so when working near water or ice. A new SEO may shadow a SEO in the field for learning purposes. Also, based on hazard flags or otherwise, if a SEO has any personal safety concern he/she can discuss it with the supervisor and arrange to have a second SEO accompany. If a SEO is subject to a medical accommodation also, a second SEO may be arranged. He testified that in addition to going with a partner, SEOs have the option of having police presence if concerned about safety, or may decide to do the visit at a time when others such as officers from the Ministries of Labour and/or Mines would also be present. If these options are not available, or if not comfortable even with any of these, SEOs can decide simply to not do the field visit. [208] In cross-examination, union counsel asked why a hazard flag search does not disclose specifics about an individual’s mental health issues or criminal charges/convictions. Mr. Leith replied that there are constraints in privacy legislation, and that in any event the focus of the hazard flag has to be on the danger posed to the SEO and there is no need for a SEO to know what causes that danger. He testified that the supervisor gets an e-mail whenever a SEO puts in a hazard flag, and the supervisor is expected to discuss with the SEO why the flag was placed. - 77 - [209] Mr. Leith agreed that safety risks may exist even if a person or site is not flagged. He agreed that a SEO in the field would not have real time access to IDS to search for flags, unless the SEO had taken the lap-top computer. Testimony of Karen Puhlmann [210] In August 2013 to January 2015, Ms. Karen Puhlmann was involved, as Project Manager, in the procurement of SPOT devices for SEOs, when she held the position of Manager of Operations Integration Branch. She testified that she submitted a business case to support the purchase of SPOT devices, in consultation with District Managers. The purpose was to enhance the tracking of staff working in the field, to provide for emergency response to assist them, and to have consistency province wide. She used the recommendations in the Deloitte & Touche Risk Assessment to support the business case. It was felt that the cell and satellite phones staff had were not effective in all situations, and that SPOT devices would be an additional safety tool. Ms. Puhlmann testified that in requesting 90 SPOT devices, she took into account the estimates by District managers of the number required for their offices, and the fact that SPOT devices were not required or not useable in all areas in Ontario. She said that there was also an attempt to keep the cost under $ 25,000 to make getting approval easier and faster. The availability of SAC staff to track SPOT devices 24/7 was also a key consideration. Ms. Puhlmann said that once the devices were purchased and sent to the District Offices, she oversaw the training of staff on SPOT devices. [211] Ms. Puhlmann testified that she was also the Project Manager for the implementation of the enhanced flag system on IDS. Employer counsel asked why restrictions were placed on disclosure of personal information. She explained that such details were not useful or necessary for officer health and safety. Privacy legislation was also a consideration. She said that there were similar restrictions when providing information by CPIC checks. - 78 - [212] In cross-examination, Ms. Puhlmann testified that the number of SPOT devices to procure was determined following extensive consultation with District Managers, particularly the District Managers for the Thunder Bay/Kenora, and Hamilton District Offices. Since 2010 the Hamilton Office had used SPOT devices during after-hours field work as a pilot project. She agreed that if a person or site is not flagged, SEOs usually do not take SPOT devices with them. Yet they may encounter hazards. She testified that the number of devices initially procured was sufficient for use under the circumstances outlined in the Standard Operating Procedures. If a particular office felt a need for additional units funding was available. However, she was not aware of any situation where a SEO wanted a SPOT device, but none was available. She agreed that other than consultation with District Managers, no analysis was done to determine how many of the 350 plus SEOs may be out in the field at the same time. Counsel asked why 90 one- way SPOT devices were selected rather than 90 satellite radios which had two-way communication capability. She replied that consideration was given to all existing communication tools, experience of other ministries, the cost, and the work SEOs did. She said that the experience of staff at the Ministry of Labour and Ministry of Natural Resources was particularly informative because their field activity was very similar to SEO work. She said that no data on usage of Fleetnet by any agency was reviewed, but she recalled discussing the experience of the IEB with Manager Mr. Williamson, who informed that IEB staff used Fleetnet mostly during intelligence operations to communicate with each other and with the IEB, and that Fleetnet was not connected to the Police. Testimony of Jatinbhai Patel [213] Mr. Jatinbhai Patel, joined the Ministry in 2002 as a SEO in the Sault Ste Marie Office and in 2003 moved to the SWAT team. Then he became an EO 5 Analyst at the SCB, before assuming duties as a Supervisor. He corroborated the evidence of other employer witnesses about the strict enforcement approach of SWAT and the change to a softer and more flexible approach to enforcement following the transition to the SCB in 2006. - 79 - [214] Mr. Patel testified that EOs at the SCB wear cargo pants and golf shirts with Ministry identification, while in the field. They are not issued soft body armour, but get the standard personal protection equipment that all SEOs in the Districts get. SCB EOs have smart cell phones, and have access to SPOT devices and satellite phones. He said that SCB EOs have not actually used SPOT devices. They have access to the FOT system, and use it to inform SAC when they go out in the field and to provide updates. If an EO feels a need to obtain CPIC information when planning an inspection, a request form is submitted to the Supervisor, who forwards it to the IEB. When counsel asked whether a response from the IEB with CPIC information could sometimes be delayed, he replied that if that happens it has no impact because EOs are never in a situation where they have to proceed immediately without waiting for information. He said that as supervisor, if an EO has a safety concern and submits a CPIC request form he always supports it. He said that the only time SCB EOs would have to interact with police is where a hazard flag on IDS says, “don’t go without police”. He said that since he became a supervisor, he could not recall any inspection taking place with police presence. [215] Mr. Patel testified that while VEOs receive use of force training, SCB EOs, like District SEOs receive only tier one and two conflict avoidance training. He said that while students may be hired at the SCB to do office/administrative work, students are not sent on any field work. [216] In cross-examination, Mr. Patel agreed that he had not supervised any District SEOs. Union counsel put to him that District SEOs also do waste hauler inspections. He replied that he was not aware of that, but agreed that they deal with all spills including waste hauler spills. A document was filed on consent as an exhibit, which establishes that SCB EOs performed waste hauler inspections as part of their duties, while District SEOs did not. However, the exhibit also indicates that SCB EOs and District EOs may work together inspecting waste haulers. - 80 - [217] On the final day of hearing on September 17, 2019, during the course of reply submissions, the parties filed as exhibit # 119, a memorandum dated May 10, 2019 sent to all SEOs by the IEB. In substance, it gave notice that SEOs would no longer be permitted to seek CPIC information through the IEB for officer safety purposes, and that such requests are allowed only for investigative purposes. The memorandum, however, confirmed that SEOs would continue to be able to seek assistance from local police services. Submissions were made on the impact of this change on the grievances. [218] Union counsel submitted that the ability to obtain CPIC information before proceeding to do an inspection was an essential safety precaution SEOs had. Now the ability to obtain that information has been further limited. He submitted that this makes the order the union seeks, that real-time access to CPIC checks be provided, even more critical. In the alternative, the Board should order the other remedies sought by the grievors, to establish a multi barrier approach to officer safety. [219] Employer counsel submitted that the change effected by exhibit #119 does not increase risk faced by SEOs. They are still able to obtain CPIC information before proceeding, by contracting local police. Mr. Williamson had testified that this was an option they always had. While he agreed that local police had no legal obligation to provide CPIC information to EOs, there is no evidence that a request was ever denied. Also, Mr. Raeburn-Gibson testified that SEOs are able to contact the local police and request information about the individuals or sites before proceeding, and that the police would provide any information they are aware of. SEOs still have this option. Thus, submitted counsel, instead of obtaining relevant safety information through the IEB, SEOs have to get it through local police. Since any hits on CPIC are recorded on the Ministry’s IDS system, SEOs can research the IDS, and if a flag is found they can get more information and advice from the local police. Counsel reiterated that the unavailability of CPIC information immediately does not in any event expose SEOs to risk, because they are not expected to proceed until results of a - 81 - requested CPIC check are obtained. If a CPIC check becomes necessary while working in the field, they are expected to leave the site, and return later once CPIC information is received. [220] Also filed in evidence at that time were exhibits 118 and 120. Exhibit 118 is an excerpt from the Website of the Employee Health and Safety and Wellness section of Ontario Shared Services, Ministry of Government and Consumer Services, describing the services available from the Employee and Family Assistance Program (“EFAP”). These are services available to SEOs among others. They have access to this information on the website. The information includes the following: Your Employees and Family Assistance Program (EFAP) provides professional, confidential support services including counselling, programs for help with common life challenges and resources to employees and their eligible dependents. EFAP counselling takes a short-term, solution- focused approach on one issue at a time. Longer-term complex care counselling is available, if clinically appropriate, for depression, post- traumatic stress, vicarious trauma and substance-abuse. The EFAP can also give you the information, tools and insights you need to deal with minor issues now, so they don’t grow into more serious problems in the future. Employees are informed that they may contact the EFAP “24 hours a day, seven days a week”, and telephone numbers are set out. The traumatic event support resources and strategies available are listed. They include, continued support following a traumatic event; How a traumatic event can affect you; and taking care after a traumatic event. Employees are requested “to visit workhealthlife.com for additional information and tips on coping with traumatic events.” [221] The evidence indicates that the Trauma Assist Program is provided by a third- party provider Morneau Shepell. Shepell’s literature describes the program as follows: “Shepell’s Trauma Assist program is designed to help individuals affected by post-traumatic stress by providing confidential access to specialized care to treat and build resiliency though a network of services and resources and - 82 - that “the program is an ideal addition to an Employee and Family Assistance program, when short-term counselling may not be enough and more specific post-trauma support is needed”. It is stated that, “If diagnosis or long-term care for more severe symptoms is needed, the program will refer the individual to the appropriate resources and treatment …” [222] Exhibit 120 is a policy approved on March 6, 2019, which in effect clearly states that persons not designated as provincial officer, which includes students, are not authorized to undertake inspection or compliance related activities on their own, but may assist a provincial officer who undertakes such activity. UNION SUBMISSIONS [223] Counsel stated that the crux of the grievances is about the failure of the employer to provide reasonable precautions for the health and safety of SEOs throughout Ontario, in compliance with article 9.1 of the collective agreement and s. 25(2)(h) of OHSA (hereinafter “legal obligation”). He acknowledged that since the filing of the grievances the employer has made some changes that enhanced the safety precautions. However, even with those changes, the employer does not meet its legal obligation. [224] Union counsel pointed out that the fact that nearly 100 SEOs have filed grievances demonstrate how seriously they are concerned about their safety. He said that the grievors’ concerns relate to nine areas where the employer has failed to comply with its legal obligation. It was submitted that the collective agreement and OHSA require the employer to be proactive in preventing harm to employees. It is not sufficient to act after the fact. He submitted that the union has not only led evidence about the subjective concerns of SEOs. Its evidence is not about theoretical possibility of harm. It has presented evidence of actual incidents of physical and verbal assaults. This demonstrates that their subjective concerns are well founded. - 83 - [225] Union counsel noted that the concerns expressed by union witnesses should not have been a surprise to the employer, because it received the Deloitte and Touche Risk Assessment Report as early as 2004. In preparing the report, the consultants had polled members of various groups of regulatory enforcement officers of the Ministry, including SWAT, Vehicle Emission, IEB as well as District SEOs, about their opinion on the likelihood of facing verbal abuse with or without physical effects or medical treatment; physical assaults leading to injury requiring medical treatment; death threats; and fatality. He pointed out that in each of the categories District SEOs had expressed the likelihood to be greater than any other group. He noted that the Consultants had made recommendations to mitigate risk in many of the areas of concern raised in the grievances. Counsel pointed out that it is apparent that whatever steps the employer took in response to the Risk Assessment Report were inadequate, because all of the incidents the Board heard about took place subsequently. [226] Union counsel reviewed in detail the testimony of each union witness, touching on the nine areas of concern. He also reviewed the evidence of the employer witnesses. He pointed out the additional protections provided to other officers, such as SWAT, and VEOs, and submitted that there is no reasonable justification for not providing the same protections for SEOs who perform very similar work and face similar risks. [227] The union relied on three aspects of the evidence before the Board in support of its position that the employer had violated article 9.1 and s. 25.2(h). (1) the actual incidents of assault or near assault (2) The likelihood and potential for assaults and near assaults (3) The protections provided to comparators SWAT and VEOs. [228] Counsel conceded that SWAT no longer exists and that the re-branded SCB EOs no longer have the additional safety precautions SWAT officers had. However, he submitted that VEOs continue to enjoy significant protections denied to SEOs. Counsel submitted that the only justification offered for the different treatment is - 84 - the fact that VEOs pull over vehicles randomly without knowing who the occupants are, and therefore have no opportunity to do advanced research for safety risks. [229] Union counsel submitted that SEOs also face unknown and unexpected risks, at least to the same extent as VEOs. He cited the Pechinger and Woods incidents as examples. He submitted that when a vehicle is pulled over, there would only be a few people in it. In contrast, when a SEO turns up at a factory, auto body shop or farm, he/she may encounter a large number of people other than the known owner/operator, including employees and visitors some of whom may have criminal or violent backgrounds. Therefore, the employer`s justification for the difference in safety precautions is not valid. In order to comply with the law, SEOs must also be provided soft body armour, Fleetnet, access to CPIC and MTO data base information and more extensive and frequent safety training, as VEOs have been provided. [230] Union counsel submitted that the authorities are consistent with regards to the legal principles that apply. The determination turns on the application of the principles to the evidence in each case. The following authorities were cited: OPSEU and Ministry of Corrections 69/84 (Samuels); Re OPSEU and Ministry of Health, 581/84 (Kennedy); Re Rowe 350/88 (Samuels); Re Moulton, 230/89 (Goldenberg); Re OPSEU and Ministry of Health, 1291/89 (Verity); Re Taylor- Baptiste, 469/88 (Dissanayake); OPSEU and Ministry of Correctional Service, 1252/85 (Joliffe); Re Stockwell 1764/87 (Wilson); Re Danbrook, 1494/89 (Stewart); Re Watts/King, 1367/90 (Kaplan); Re Rigglesworth, 637/90 (Fisher); Re Press, 2003-1461 (Mikus). [231] Counsel summarized the union’s position on the areas of unjustified differential treatment as follows: (a) At the time the grievances were filed, SEOs received only one day of training on conflict avoidance. In 2013 that training was expanded to encompass disengagement techniques, including escape from common - 85 - holds and grabs. Since then it has been increased to two days of training. Even two days of this training is insufficient. First, there is no training on self defense, and no refresher training is provided to SEOs. Compared to the training provided to SWAT and VEOs, to be compliant with its legal obligations, the employer must provide SEOs at least three days of training including level 3 open hand self defense and disengagement and escape, and also provide refresher training at least annually. (b) SEOs have no immediate or timely access to CPIC or MTO data base information as VEOs do. They have to wait one to two days to get results of a CPIC check through IEB. If an IEB investigator is not available, it took even longer. Now they have been notified that the IEB will no longer do CPIC checks for them for safety reasons. In the absence of direct or immediate access to CPIC and MTO information the employer’s legal obligation is not met. (c) Since the grievances were filed, SEOs have been provided SPOT devices. However, that does not meet the legal obligation because SPOT devices have significant limitations. Two-way communication is not possible, and the SEO has no way of knowing whether a message sent on SPOT has been received. (d) SWAT had and VEOs had soft body armour, but not SEOs. Although there is no evidence of any SEO being shot or stabbed, there is evidence that a SEO encountered an agitated individual carrying a gun in the Feduck/Medland incident. (e) While SEOs may work in pairs upon request where potential risk is identified, risk is not always predictable and dangerous situations can arise even in the absence of hazard flags, as demonstrated by the Pechinger and Woods incidents. As with the comparator groups, working in pairs must be mandatory for all field work to satisfy the employer’s legal obligation. In the alternative, that must be the case at least when SEOs work in remote areas with no cell phone coverage. (f) Evidence was led that police dispatchers are not always aware of SEOs’ provincial officer status or about the work they do. SEOs have to explain - 86 - who they are and what they do. The employer must make sure that all police services are aware of that information. (g) There is no process to gather and make available to all SEOs in Ontario, details of the individuals and locations involved in incidents. This information is necessary for SEOs to take steps to protect themselves when preparing for a field visit where those individuals or locations may be encountered. (h) Counsel recognized that since the grievances were filed, trauma therapy is now available to SEOs, in addition to counselling through the EAP. However, to comply with the legal obligation these services must be automatically offered to any SEO who is involved in a traumatic incident. SEOs should not have to request such assistance. (i) Since the grievances were filed, the policy has been clarified that students are not allowed to perform field duties if not accompanied by a SEO. However, an untrained student who assists a SEO in the field may not have the skill or knowledge about avoiding risk. Such a student may act in a manner that puts the SEO in danger. Therefore, students who do field work, even in the company of a SEO, must have the same training as SEOs. EMPLOYER SUBMISSIONS [232] Counsel reviewed and relied on the following authorities: Re OPSEU and Ministry of Correctional Services 311/88 (Watters); Re Willis 2755/91 (Stewart); Re Taylor-Baptiste 469/88 (Dissanayake); Re Ottawa (City) OC Transpo v. MacDuff 26 Canada OHSTC 2; Re Anger, 2004-1321 (Watters); Re Danbrooke 1494/89 (Stewart); Counsel acknowledged that legal authorities are useful only for the principles that apply and that each case has to be determined on the application of the principles to the particular facts. He proceeded to apply the principles in the case law to the facts in the five incidents relied upon by the union to support its position that the employer has provided SEOs with safety precautions in compliance with the collective agreement and OHSA. - 87 - [233] Employer counsel noted the nine areas the union asserts where the employer is in violation. Relying on Re OPSEU and Ministry of Correctional Services (Watters), supra, counsel argued that the union has not shown any link between any of precautions it seeks and the five incidents. In other words, there is no evidence that the absence of any of those precautions contributed to or caused any of the incidents. The Board held in this case that such a link is required to support a violation of article 9 and OHSA. [234] Referring to Re Willis (supra) and Re Taylor-Baptiste (supra), counsel argued that the law does not require provision of optimum safety precautions. The requirement is for reasonable precautions. Both decisions recognize that a certain amount of safety hazard is inherent in the work of correctional officers. In determining what level of precaution is reasonable, the nature of the job must be considered. The union has conceded that the SEOs are not entitled to a guarantee of a risk-free work environment. The nine requested precautionary measures go well beyond what is reasonable having regard to the fact that the SEO job necessarily involves engaging with people unhappy and resisting what they perceive as improper interference by government. In Re Taylor-Baptiste, (supra) the Board also held that the union must produce objective evidence that unreasonable risk exists. Mere speculation is not sufficient. [235] Referring to Re Ottawa (City) OC Transpo (supra), counsel submitted that, like bus drivers there, SEOs must, as part of their job, be in a contact with all kinds of people, some of whom may commit unlawful acts like assaults, and the offender will face justice. As the appeals officer observed in that case zero risk is unattainable, Counsel submitted that the Pechinger incident is a rare occasion of an assault on a SEO, and the offender was charged and convicted of obstructing a provincial officer. [236] Counsel relied on Re Anger (supra) to support his position that the frequency and magnitude of the risk are also important considerations in deciding whether reasonable precautions had been provided. In the instant case, it was open to - 88 - the union to adduce evidence going back in time without any limit. The operations division employed over 300 SEOs in all parts of Ontario performing field work. Mr. Tomlinson testified that when performing field work, he worked alone 95% of the time. Yet the union was able to adduce evidence only about two assaults on SEOs. In terms of the magnitude of the risk, there is no evidence that the SEOs involved in either incident of assault suffered any physical injury. Ms. Pechinger did not even need time off and did not claim WSIB benefits. Mr. Fisher’s assault was de minimis. He was shoved off a porch two feet high. He landed on the ground on his feet and did not fall. He was not injured and lost no time. In the other three incidents there was no physical assault or contact, and the SEOs were able to disengage safely by using their training. Counsel submitted that the union’s claim about the level of risk faced by SEOs is grossly exaggerated. [237] Employer counsel disagreed that Re Danbrook (supra) supports the additional training the union seeks. In Re Danbrook, there was evidence of five incidents the same grievor faced in a period of one year. Three of the incidents were physical assaults – pulled by the tie, wrestled to the ground, and his vehicle rammed. The other two involved death threats. Therefore, the frequency and magnitude of risk faced by that grievor was very different qualitatively and quantitatively. It was in those circumstances the Board ordered additional safety precautions. [238] Counsel submitted that SEOs have the opportunity to plan, including taking steps to protect their health and safety, before proceeding to proactive as well as responsive inspections. Mr. Tomlinson agreed in cross-examination that before responding to a complaint, SEOs have the opportunity to gather relevant information and consider what communication devices to take, whether to go as a team and whether to seek police assistance. Ms. Wood testified that she did a drive by to observe the site, and responded the next day. Ms. Pechinger had arranged with the client where and when to meet. So she had the time to plan and consider what safety precautions were needed. Thus, it is not correct to - 89 - state that SEOs have no opportunity to plan and have to rush to the site upon receipt of a complaint. They have not received such instructions from the employer. To the contrary, the instruction always has been that officer safety is more important than efficient or rapid enforcement. Mr. Tomlinson testified that if any safety issue comes up, the field visit can be postponed until that issue is addressed. [239] Employer counsel submitted that if a SEO does a file review, CPIC and/or MTO data check etc. substantial information about potential risk would be identified. He conceded that despite doing all of that, unknown and unexpected risks can arise while in the field. If, despite the best efforts by employer and employee to identify and address potential risk, unexpected danger is encountered in the field, the instructions are to immediately return to the office. Mr. Balaban testified so. He testified that the SEO will then take necessary safety precautions like going as a team or seeking police assistance, and return at a later time. Mr. Balaban testified that if the work cannot be done safely even with available safety precautions, the work simply will not get done. As he said, “the health and safety of the officer is more important than getting any work done”. Union witness testimony was to the same effect. [240] Employer counsel pointed out that despite suggesting the contrary to employer witnesses, the union had accepted that SAC tracks SEOs in the field after hours on the Emergency Response Program (ERP) calls. He pointed out also that SEOs responding to an ERP call are not first responders or emergency responders. Mr. Tomlinson testified that it may take up to 3 hours from the receipt of a page for a SEO to arrive at the site. By that time other agencies like paramedics, fire department and police would already be there. Mr. Tomlinson agreed that he would very rarely be alone at the site on an ERP call. He agreed that in the last 5 years he had responded to 5 ERP calls and had not encountered workplace violence in any of those. Employer counsel pointed out that there is no evidence of any SEO encountering violence or threats of violence during an ERP call. - 90 - [241] With regard to the comparison with VEOs, employer counsel reviewed the testimony of Mr. Raeburn-Gibson and Mr. Stager. VEOs, wear police like uniforms and routinely pull over vehicles on roads and highways. They issue tickets on the spot unlike SEOs, and can pull vehicles off the road on the spot. They have no idea who the occupants are when they take these actions. Unlike SEOs, they have no opportunity to do any research or planning, such as CPIC checks or search for hazard flags on IDS. Counsel agreed that despite all the pre-planning, when a SEO visits a business, unknown people like employees and customers may be encountered. He referred to Mr. Balaban’s evidence that usually when the SEO arrives, he/she is met by and accompanied by a manager of the facility. The likelihood of uninterested individuals like employees or customers attacking a SEO is at best no more than that faced by anyone interacting with any segment of society. Counsel submitted that therefore, the level of risk faced by VEOs is much greater, and closer to that faced by police officers. He pointed out that while SEOs may be involved in pulling over waste haulers, they do not do that by themselves. They are always accompanied by other agencies, such as MTO or police, who have additional safety training and tools. [242] Counsel pointed out that the level B training the grievors seek is not only about escaping danger. It includes techniques of different types of striking, disarming someone with a gun, and defending against attacks with edged weapons. He pointed out that Mr. Tomlinson agreed in cross-examination that in his 27 years as a SEO, he never needed any of these. Nor did the SEOs involved in the five incidents. Mr. Burgess the expert witness, had testified that the mandate of SEOs is very different from that of police, and that training on hand strikes, kicking and punching etc. was not appropriate for them. Mr. Raeburn-Gibson testified that use of these tactics would in fact increase the risk to a SEO It is not consistent with the employer’s mandate, which is to avoid confrontations and disengage. - 91 - [243] Counsel argued that in three of the five incidents the Board heard about, the SEOs were able to successfully disengage, and no physical contact took place. In the Pechinger and Fisher incidents the physical contact made by the clients was such, use of force techniques such as open hand strikes, holds, kicking etc. was unnecessary and inappropriate. Even if the level B training had been applied correctly in those situations, it would have only increased the chances of violence and more serious physical injury on the SEOs. [244] Counsel submitted that the evidence establishes that in the two incidents of assault, the training the SEOs had should have been more than sufficient had the SEOs applied it. Ms. Pechinger testified that she was surprised to see a number of vehicles parked in the driveway, and that the hair on her neck stood up when she saw that a number of people she did not know were with the client. She knew she was badly outnumbered by unknown people. Yet she did not consider disengaging as per training. She ignored the obvious red flags. Moreover, she admitted that she made a mistake by leaving her phone and Ministry ID badge in the vehicle. Counsel referred to policy documents and argued that it was mandatory for Ms. Pechinger to take the phone with her and to show her credentials when meeting with a client. Counsel pointed out that despite the obvious red flags, Ms. Pechinger wanted to go to the pile of compost outside in a corner of the property. She was told that none of the men present owned the property and that it would be illegal for her to be on the property without the owner’s permission. Even at that point, she did not consider leaving. She asserted her authority and proceeded to walk towards the pile of compost. [245] Ms. Pechinger testified that then she saw a large man running towards her across the field and yelling profanities asking who she was. Ms. Pechinger’s response was to hold out her hand to introduce herself. Ms. Pechinger agreed that she was naïve, and did not follow the proxemics training she had received. Then the man attempted to do a civilian arrest of Ms. Pechinger for trespassing. She managed to escape the hold and started walking towards her vehicle. She testified that she intended to retrieve her ministry badge from the vehicle. It was - 92 - at this point that the man grabbed her by the arm, and the assault occurred. Under cross-examination, Ms. Pechinger agreed that she had failed to follow any of the conflict avoidance training she had received, and explained that she “thought everything was fine”. Counsel noted that Ms. Pechinger had testified that more frequent refreshers and physical disengagement training on breaking physical holds would have helped her. Counsel disagreed. He argued that had Ms. Pechinger simply followed the training she had, it is very unlikely she would have been assaulted that day. He argued that the assault cannot in any manner be said to have resulted from a failure by the employer to comply with its legal obligation. It was the result of the officer not applying the safety precautions the employer had provided. [246] Counsel submitted that had Mr. Fisher similarly applied the training he had, he would not have been assaulted. The evidence is that from the moment the woman appeared, she was yelling that the government was ruining her life, and demanding that the SEOs leave. Then she got close to within one foot from Mr. Fisher, and continued to yell aggressively, threatening to call the police. Instead of creating more distance from the aggressor as per training on proxemics, he remained within one foot from her, enabling her to push him off the porch to the grass. There was an assault to the extent that physical contact was made, but it was de minimis, because Mr. Fisher testified that he did not fall, but in fact stepped back down upright to the grass from the two feet high porch. [247] Counsel submitted that both Mr. Fisher and Mr. Elford had been trained to the effect, “If told to leave, leave”. From the initial exchange both husband and wife were visibly irate and angry about the SEOs being there. They were told repeatedly and aggressively to leave. Had they disengaged and left, as per their training, there would have been no incident. In cross-examination, Mr. Fisher agreed that he made a mistake by trying to reason with an unreasonable person obviously angry and threatening to call the police, and that he should have left and returned later with police. Mr. Elford also agreed with all of that during his - 93 - cross-examination. Both agreed that the employer policy was, “If told to leave, you leave”. [248] Employer counsel referred to the evidence that both SEOs were aware in advance that the clients in question had a history of verbal abuse. Mr. Fisher agreed that in addition, other factors like, the remote location; it was after hours; and they were serving a cost recovery order, led him to believe that service would not be easy. It is for that reason, that two SEOs undertook the visit. Yet they continued to engage with the clients for 13 minutes before the push took place. Mr. Fisher was assaulted only because he and his partner failed to apply the training they had. Physical disengagement training would not have assisted because the assault took mere seconds – the woman shoving the document Mr. Fisher was attempting to serve into his pocket and pushing him off the porch. There was no hold or grab from which Mr. Fisher had to escape. [249] With regard to the Dana Woods incident, employer counsel disagreed with the union’s submission that the incident occurred because Ms. Woods had not received appropriate training. Counsel pointed out that Ms. Woods used the training and successfully disengaged. She appropriately applied the conflict avoidance training by suggesting that the clients speak to a supervisor, handed Ministry material and her business card to distract them and escaped. Physical disengagement training was not needed in her situation either. [250] Employer counsel stated that Mr. Macionis also successfully disengaged by applying his training. He testified that he allowed the client to talk without cutting him off, used a respectful tone, avoided confronting the client, and changed the topic of conversation away from government interference. He also applied his proxemics training by turning his body at a 45-degree angle and taking a defensive stance. Thus, the training he had was adequate, and he used it to successfully disengage. Counsel submitted, however, that Mr. Macionis testified that the client became very agitated immediately, was yelling that he had been in jail, was using profanities, was jumping up and down, his face was red etc. Mr. - 94 - Macionis was told twice that he should leave. Yet he continued to engage with him. Counsel submitted that Mr. Macionis should have left much earlier than he did. [251] Counsel submitted that the Feduck/Medland incident is a good example of a SEO successfully applying the conflict avoidance and disengagement training to leave safely. He testified that he did not even feel threatened during the incident and did not document it. The incident was on a Friday, and he waited until the following Monday before verbally reporting the incident to his supervisor. He agreed with the supervisor’s testimony that when she told him that he should have reported the incident immediately, his explanation for not doing so was that there was no hazard and he did not feel threatened. [252] Counsel submitted that none of the five incidents the union has put forward discloses that the employer had violated the collective agreement or OHSA. As far as the union’s assertion that the SEOs were inadequately trained at the time, counsel reiterated that the physical disengagement training was not needed in four of the five incidents. He argued that, in any event, that training is now provided, and that the Board should make its decision on that basis in accordance with the agreement of the parties. The union had argued that the employer had delayed the implementation of that training by eight years. However, the union was able to point to only one incident, that involving Ms. Pechinger, where physical disengagement training could possibly have helped, despite the fact that over those eight years hundreds of officers were working in the field on a daily basis throughout Ontario. He pointed out that following that one incident, the employer implemented that training, as an abundance of caution, not because it agreed that it was legally obligated to do so. [253] In summary, employer counsel submitted that there is no evidence to establish a violation with regard to the content, length or frequency of the training provided to SEOs. The content has now been expanded since 2016 to include physical disengagement tactics. Mr. Burgess agreed during testimony, that a three-year - 95 - cycle for tier 1, and a 2 year cycle for tier 2, are adequate in relation to frequency, although he said that it would be beneficial to provide the training more frequently. Counsel agreed that the more frequent the training is, the more beneficial it would be. However, the test of reasonableness does not require optimum protection. Adequate training meets the test. Mr. Burgess’ position on the length of the training was similar. SEOs now receive one day for tier 1 and two days for tier 2. Mr. Burgess testified that he would have “loved” to have a day set aside for the training on common grabs as part of tier 2, but agreed that it can be done in the 3 hours made available. He therefore recommended two days of training for tier 2. [254] Employer counsel made detailed submissions discussing each of the nine areas of concern the union has relied on in the context of the five incidents the Board heard about. I have reviewed that evidence carefully but do not set them out here. It suffices to summarize that the employer’s position is that the incidents did not take place because of the lack of any of protections the union seeks. The primary reason for the incidents unfolding as they did was the failure of the SEOs to apply the training they had. They failed to follow the simple, but important direction in training and in policy, that officer safety is more important than efficiency; that it does not matter if the work is delayed or not done at all; that when clients ask SEOs to leave, they should leave and plan how to safely return if possible; and that they should never let their guard down and always observe changing circumstances. The only assertion with some merit is that training on physical disengagement may have assisted Ms. Pechinger. Counsel submitted that even in that case, the assault would very likely have been avoided had Ms. Pechinger followed policy and left earlier, when she saw she was outnumbered, and was told that she was not entitled to inspect the pile of compost without the presence of the property owner. In any event, following that incident the employer implemented physical disengagement tactics to the training. [255] In reply, union counsel submitted that the employer’s position, in relying on Re Anger of the relevance of the frequency and magnitude of the incidents, that - 96 - there had only been two incidents of assault on SEOs is incorrect. He argued that each of the five incidents the union led evidence on would meet the definition of “workplace violence”. Although the union was able to put forward only five incidents, that does not necessarily mean there have been no other incidents of workplace violence on SEOs. It was difficult for the union to research for all incidents due to the reason that the employer had no system for tracking and keeping statistics. Therefore, it is not clear how many incidents had taken place over the years. Counsel submitted that in any event, the frequency of incidents is irrelevant because even one assault, which could have been prevented, is too many. [256] Union counsel submitted that the employer’s reliance on the directions that officer safety is more important than getting the work done and that SEOs should leave if continuing is unsafe, fails to recognize that danger is not always predictable. It was his position that in a number of the incidents that was the case. He submitted that by the time the danger became apparent to Ms. Pechinger it was too late. Due to the unpredictability of risk, she was not prepared with the safety tools she should have had with her. [257] Counsel disagreed that VEOs face more serious and frequent risk than SEOs. He reiterated that the latter can encounter greater numbers of unknown people when visiting factories and other businesses than the few unknown people VEOs may face when pulling over vehicles. [258] Union counsel objected to the employer “blaming the victims of assault”. He repeated that the assaults were the result of the inadequacy of training. He argued that to the extent that SEOs failed to apply the training they had received, it supports the need for multi- barrier precautions to keep SEOs safe. That way, if one safety precaution does not work for any reason, there would be other precautions to keep SEOs safe. He submitted that SEOs stating that they did not feel threatened during the incidents is irrelevant in assessing the magnitude of - 97 - the risk, because the test is objective, and the SEO’s subjective feelings do not matter. [259] Counsel referred to emails exchanged between Ms. Puhlman and the provider, and argued that the input from the provider indicates that a tool such as Fleetnet with two-way communication capability is best. He contended that such a device would enable a SEO in distress to communicate with colleagues and supervisors during incidents like the ones the Board heard about. [260] Counsel conceded that the recent introduction of trauma therapy for victims of workplace violence is a step in the right direction. He submitted that its availability is of no value if the victims are not offered that service. He submitted that if the Board is not inclined to order that the employer automatically offer Trauma Therapy to victims of every incident, the employer should at least be ordered to encourage the victims to access that service. [261] The employer had argued that there is no evidence of any student being harmed or of a student putting a SEO at risk. Union counsel argued that the law does not require evidence of actual injury. He argued that Mr. Burgess was retained by the employer because of his expertise. He had clearly recommended that students be given the same training as SEOs. The employer’s reasoning fails to recognize the element of unpredictability of safety risk when the employer decides whether to send out a student for field work. [262] Counsel reviewed the Board’s recent decision in Re Martin and distinguished it in a number of ways. There was evidence of only one incident of physical contact, and that involved the officer being held by the arm and led out. The Board found there was no evidence of any physical harm or even a threat of physical harm. There, the Board had no evidence that any client, however agitated and angry they may have been, had detained an officer. In this case, the Board heard about Mr. Pechinger being physically detained. Similarly unlike in Re Martin, here the need for an officer to physically escape a grab is demonstrated by the - 98 - situation Ms. Pechinger faced. In Re Martin, the grievors were seeking side- arms. The Board held that there is no evidence that a side-arm would have been of any assistance in any of the incidents. He argued that here the union has demonstrated how the safety precautions they seek would have assisted. Finally in Re Martin, based on the evidence the Board concluded that the officers themselves did not believe that they were unsafe. Here, several witnesses testified how concerned they were, and that they were being honest, and not exaggerating to support their grievance. DECISION [263] At paragraph (1) supra I have set out the issues raised by the union in support of the grievance. The relevant provisions read as follows: Article 9.1 of the Collective Agreement The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. Section 25(2)(h) of the OHSA … an employer shall …, (h) take every precaution reasonable in the circumstances for the protection of a worker. [264] I also noted the agreement of the parties that I should make my determination on the basis of the precautions that existed at the time of the hearing. The parties also agreed that the employer’s obligation under the collective agreement and the Act is the same in all material aspects. [265] The parties dealt with each of these areas of concern as separate issues and the union asserted that the employer failed to satisfy its legal obligation in each case. However, in my opinion, it is not appropriate to consider in isolation, whether separate violations occurred in each area. Whether the employer met its obligation must be determined taking into account all of the safety precautions provided. If considered in isolation, communication tools made available to employees for example may appear not to meet the legal obligation. However, if another safety precaution, for example police assistance, would compensate for - 99 - the absence of more effective communication tools, there may not be any violation of the Act or the collective agreement. [266] The union and the employer provided me with numerous legal authorities. While I have reviewed the material portions of all of those authorities, I will not review most of them because the legal principles are not controversial. As counsel agreed, each case turns on an application of the principles to the evidence before the Board. In the recent decision of this Board in Re Martin et al, 2011- 3796 (Dissanayake) at paragraphs 370-380 the general legal principles that apply were reviewed as follows: [370] In Re City of Toronto [2015] 260 L.A.C. 4th 304 (Herman), the arbitrator was required to apply s.25.2(h) of OHSA and a collective agreement provision similar to the one here. In this reported award relating to remedy, the arbitrator at para.3 reproduces a portion of his award on the merits, including the following: However the Act and the Collective Agreement require that the City provide a safe and healthy work environment and take all reasonable precautions to protect the employees working there. These obligations do not disappear if no-one is injured because of unsafe conditions in a workplace. An employer will generally be in breach of the Act (and any collective agreement provision like the one in issue here) through a failure to take reasonable precautions to make the workplace safe, regardless of whether an employee suffered harm as a direct result of any such failure. [371] This principle is also reiterated by the Ontario Labour Relations Board in Ministry of Public Safety and Security v. William Schill et al, [2003] O.O.H.S.A.D., No: 105 at para 14, as follows: No prior adverse incident is necessary to involve the protection of the Act. In another context, one need not wait for a worker to be electrocuted to justify an order that hoisting equipment not be permitted within close proximity to a high voltage power line. The absence of a prior incident does not necessarily lead to the conclusion that there is no risk to worker safety. [372] The Grievance Settlement Board in Re Andrews et al, 1815/89 (Goldenberg), interpreting article 9 (then article 8) set out the following principles at page 15: “1. There is no obligation on the employer to guarantee an employee’s safety against every possible risk, no matter how remote the possibility that it will occur; 2. It is necessary to balance the safety of the employees against the operational needs and purposes of the institution or program in which they work; and 3. Proper planning can reduce the potential or likelihood of incidents, but it is not possible to eliminate all conceivable risks.” See also: Re McFarlane, 1641/94(Watters) - 100 - [373] In Re Anger et al, 2004-1321 (Watters), the Board reviewed the foregoing principles with approval, and at p. 18 wrote: In summary, a similar approach must be taken when assessing the applicability of article 9.1 of the collective agreement and/or section 25(2)(h) of the Occupational Health and Safety Act. An Employer, under both the agreement and the statute, does not have to take steps to guarantee an employee’s health and safety against all possible or conceivable risks, no matter how remote they may be. The Employer, instead, is bound to make reasonable provisions under the former, and to take reasonable precautions under the latter, so as to provide - 146 - the appropriate level of protection to employees. The test is one of reasonableness which, necessarily, requires consideration of a multitude of factors. I also accept that, in resolving the type of issue now before me, an objective standard must be used. I note the following comment in Re Caughlin on this point: “13 …………………, I find that one must look at objective criteria to determine if any worker is endangered by the work environment and that the worker’s subjective feeling about danger is not sufficient to render a job dangerous to that worker. The worker’s perception must be a reasonable one grounded on demonstrable and objective criteria.” See: Re Caughlin [1987] O.O.H.S.A.D. No. 21 [374] In Re Anger et al (supra), the Board considered the interpretation of the word “reasonable” in both the Statutory and collective agreement provisions at issue. At pp. 16-17 the Board wrote: In R v. Timminco Limited, the Ontario Court of Appeal commented as follows with respect to the nature of the Occupational Health and Safety Act: “[22] The Occupational Health and Safety Act is a public welfare statute. The broad purpose of the statute is to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace. It should be interpreted in a manner consistent with its broad purpose…….” The word “reasonable”, as found in section 25(2)(h), was the subject of interpretation in Ministry of Transportation and Ministry of Labour, a decision of the Ontario Labour Relations Board. The Board there noted: “146 There is surprisingly little case law on what the word “reasonable” in s. 25(2)(h) means. However, on the face of the provision the word “reasonable” clearly modifies the words “take every precaution in the circumstances”. Therefore, it is not every precaution which must be taken, but only reasonable precautions. Determining what is reasonable involves balancing the benefit to be gained by taking the precaution against all other relevant factors. These factors could include, among other things, the cost of the precaution and its effect on efficiency. 147 There was some suggestion that the severity of the risk and likelihood that the risk will actually occur are not relevant. I disagree….” On this latter point, the Ontario Labour Relations Board in Intercept Security Services similarly observed: “57 Although counsel for the applicant argued that the frequency with which the risk is faced is irrelevant, I disagree. Section 25(2)(h) requires - 101 - an employer to take “every precaution reasonable in the circumstances for the protection of a worker”. The language “reasonable in the circumstances” requires a consideration of the magnitude of the risk and its frequency…” [375] In Re Anger et al (supra), in October 2003 the Windsor ODSP Office was moved to a new location in Windsor. At the old location the reception area desk had a physical barrier separating staff from client contact which had been erected pursuant to without prejudice terms of Minutes of Settlement of a union grievance. The reception area desk at the new location had no physical barrier separating staff from clients. The grievance alleged that the employer had violated s. 25(2)(h) of OHSA and article 9.1 of the collective agreement. The statement of grievance reads: “We (attached) grieve that the provisions for our health and safety in our new work location have been compromised in regard to the front counter - Article 9 collective agreement”. The settlement desired was: “That management take immediate steps to provide plexiglass to the front counter as we had in our previous work location prompted by a grievance for health and safety. That management consider input from staff and a qualified member from OHCOW for advice in the construction”. [376] The grievance was settled by minutes setting out a process of review and consultation with the goal of reaching agreement on effecting modifications to the reception area that would enhance staff security without adverse impact on the employer’s operational interests. The parties were unable to reach agreement on acceptable modifications and the matter was referred back to the arbitrator. The union proposed a physical barrier of no less than six feet in height. The decisions sets out the following reasons put forward by the union to support the need for such a barrier: - “To protect OPSP staff from physical contact and/or the possibility of human bodily fluid exchange with clientele or the general public”. - That the employer’s proposal “could facilitate an aggressive person striking the employee. The opening should be reduced to permit unhindered conversation but will still prevent physical contact”.” - 148 - - That the barrier proposed by the union will not reduce accessibility, comfort or confidentiality for ODSP clients. At p. 19 arbitrator Watters sums up “In substance, the union asserts that the installation of a barrier is a reasonable provision or precaution and is necessary to protect the health and safety of the employees in question.” [377] In that case the union had relied on 28 incident reports and submitted that evidence establishes “a continuing, real and imminent threat of physical harm for ODSP staff…, and that the measures proposed by the employer “do nothing to protect front-line staff from agitated and angry clients, many of whom suffer from mental illness, who may be intent on taking their frustrations out on employees at the reception counter”, and “…fail to address the union’s concerns about the potential for individuals to jump across the counter and assault a staff member, throw projectiles at staff, or spit at staff”. [378] The employer took the position that erection of a physical barrier as proposed by the union would be inconsistent with the intent of the Ontarians with Disabilities Act 2001, which is to remove barriers disabled persons face in participating in the mainstream of society. It submitted that in any event safety - 102 - precautions implemented, and those offered in its proposal meet its obligations under s. 25.(2)(h) of the Act and article 9. At pp. 24-25, arbitrator Watters wrote: In summary, it is the Employer’s position the Union failed to present any evidence, relating to the likelihood of risk to employees’ health and safety; that would justify the need for the physical barrier sought. In the alternative, counsel for the Employer argued that, at most, the likelihood of risk is minimal or remote, and that the Employer has taken reasonable precautions to minimize the risk. Given the nature of the evidence presented, and the seriousness of the issue, I have elected to focus on this latter submission as, in my judgment, it is the threshold issue separating the parties. There is no doubt that employees working at the ODSP Office in Windsor have difficult jobs to perform. The challenges they face are referenced in the following excerpt from the Union’s response to the Model Office Guidelines: “……………In the past decade the client base has changed considerably from sole support parents who were downloaded to the municipalities to a more high risk, high needs clients group who present a variety of challenges to their service providers. The closure of facilities for the Developmentally Handicapped and Psychiatric Hospitals has also had an impact on our program. In the past these clients had their immediate needs met by the facility or the hospital. Now these clients are living in the - 149 - community and depend on our ODSP offices for continual assistance and support.” The clients served suffer from mental and/or physical disabilities. I accept that, from time to time, clients may become frustrated, upset or annoyed at the need to comply with requirements relating to the initial claim for assistance and/or the continued receipt of benefits. These emotions, for example, could be triggered by an employee request for additional information or by a client’s failure to receive a benefits cheque. As a consequence, ODSP staff may periodically have to deal and interact with persons who act in a disruptive, inappropriate and unpredictable manner. I am left, however, with the distinct impression that the vast majority of clients do not conduct themselves in this fashion. In this regard, as previously mentioned, the Union filed some twenty-eight (28) incident reports of what was perceived to be threatening or disruptive behavior occurring from and after November 2005. I consider it material that in the period 2004 to 2007 inclusive, some eight-six thousand (86,000) clients were served in the Windsor ODSP Office. [379] At pp. 25-26, he made the following findings of fact: I have reviewed all of the incident reports, and related material, filed by the Union in this proceeding. My conclusions are as follows: i. The bulk of the reports deal with inappropriate behavior of a verbal, rather than a physical, nature. I accept that many of the comments contained therein, which were attributed to clients, are threatening, intimidating, disruptive, abusive and profane. I have not been convinced, however, that this form of objectionable language would be either prevented or reduced by the erection of a physical barrier; ii. There is no evidence that any ODSP employee in the Windsor Office has ever been physically assaulted by a - 103 - client, either directly or by way of a thrown projectile. The reports document one (1) unsuccessful attempt, on the part of a client, to hit an employee. While there is not much detail relating to this attempt, the client’s inability to make physical contact supports the Employer’s position that the front counter is of a sufficient depth to offer reasonable protection to employees working at that location. iii. Similarly, there is no evidence that any client has ever jumped or climbed over the front counter at the Windsor ODSP Office. In any event, I have some real doubt as to whether the plexiglass barrier, as depicted at Tab 10 of the Union’s Book of Documents, would prevent a person from climbing across the counter if they were truly motivated to do so. At most, I think that the barrier would slow them down. There is a statement in certain of the reports that staff members were afraid that the client involved was going to jump across the counter in an effort to reach them. Their subjective beliefs on this point are not determinative in the absence of more objective evidence - 150 - that such conduct has actually occurred in the period of relevance to this dispute. iv. There is no evidence of any employee having been spit on by a client. Additionally, apart from one (1) exception, the reports do not document any incident where there was some potential for the transmission of infectious disease. The exception relates to a situation in which a client elected to slice his arm with a knife resulting in blood dripping from the wound. I am unable to find that the Union’s proposal would either eliminate or reduce this type of contact were such to occur. v. I note from the reports that a significant number of the incidents were diffused or resolved by staff; and vi. The fact there have been no instances of physical assaults, or related client misbehavior, is not determinative in and of itself that there is no risk to employee safety. On the evidence before me, however, I have not been persuaded that this group of employees are subject to a continuing, real and imminent threat of physical harm, as claimed. The content of the incident reports, in the context of the total number of clients served, does not support such a claim. [380] At p. 29 the arbitrator concluded: After reviewing all of the above-mentioned components, together with the supporting material, I am satisfied that the Employer’s package of proposals complies with the requirements imposed by article 9.1 of the collective agreement and section 25(2)(h) of the Occupational Health and Safety Act. More specifically, I find that the package in its totality is a reasonable provision for the safety and health of the ODSP employees working at the Windsor Office. Further, I find that, upon complete implementation, the Employer - 104 - will have taken every precaution reasonable in the circumstances for the protection of these employees. [267] The manner in which this grievance was presented requires some comment in relation to another principle that flows from the established principle that “it is not every precaution which must be taken, but only reasonable precautions.” The union accepted this principle from the outset. Nevertheless, a number of its witnesses testified to the effect that a device or process they seek would “be beneficial” of “helpful”, or that a certain tool or process is “better” than what they have been provided. Union counsel, during cross-examination also suggested to some employer witnesses, and they agreed, that certain safety precautions the grievors seek, particularly those provided to comparator groups, are ”better” or more “useful” than what they have. This evidence does not assist the union because the issue is not whether the precautions provided could be improved by the employer. The question rather is whether the existing precautions are reasonable considering the work SEOs do. [268] This brings into focus the meaning of “reasonable” in the collective agreement and the Act. Reasonableness must be assessed taking into account the nature of the job. Thus, the degree of risk a police officer may be expected to encounter, would not be the same as that faced by an office worker. Therefore what is reasonable for office workers may not be reasonable for police officers. They would be entitled to greater protective tools and processes as reasonable precautions. Here, the union has agreed that it is not entitled to a completely risk-free work environment, and that some safety risk is inherent in the work of SEOs. It is the union’s position nevertheless that given the level of risk faced by SEOs the safety precautions provided are not reasonable. [269] In determining this issue, multiple factors must be considered. The following are of particular relevance: (a) The fact that there have been few or no incidents of injury, assault etc., by itself, does not establish that existing precautions are reasonable. - 105 - (b) The test is objective. An employee’s subjective feelings about the risk or danger by itself is not sufficient. Such feelings must be reasonable and must be grounded on demonstrable and objective facts. Mere theoretical or hypothetical possibility of risk is insufficient. (c) The employer is not required to guarantee employee safety against every possible risk, no matter how remote the possibility that it will occur. The likelihood of the risk arising is relevant (d) The frequency with which the risk could arise is relevant. (e) The magnitude or seriousness of the impact of a risk on employee safety is relevant. (f) The financial cost of the safety precautions sought and its impact on the operational efficiency of the work to be done must be balanced against the likelihood of the risk arising and the magnitude and seriousness of the result in the event the risk arises. (g) There has to be a link between the risk that exists, and the safety precaution sought. That is, there must be evidence that the precaution sought would eliminate, or at least mitigate the risk in question. (h) The nature of the duties of the job of the employees in question must be considered. (i) Whether or not a particular safety precaution improves the existing level of safety is by itself irrelevant. Employees are not entitled to optimum or the best safety precautions. The test is whether existing safety precautions meet the threshold of reasonableness mandated by the collective agreement and the Act. (j) There may be more than one way of addressing a particular safety risk. Depending on the particular circumstances, rather than providing a safety tool or device, a risk may be reasonably addressed by other means, such as establishing a process for pre-planning work in advance or changing the way work is done. [270] I have reviewed, but placed little weight to the Deloitte and Touché Risk Assessment Report which was released in 2004. It is of little assistance other - 106 - than to indicate that SEOs had concerns about the adequacy of the safety precautions they had at that time. Since 2004, much has changed in the Operations Division. Its structure and organisation has changed. SWAT, for example, is no more. The processes have changed. As the union has agreed, additional safety precautions have been implemented. The Board was advised of changes made – positive and negative- as this hearing proceeded. The authors of the Report were assessing the safety precautions that existed some fifteen years ago. As union counsel put it, the Board is tasked with assessing the safety precautions that exist “today”. Moreover, the authors of the report did not testify. While the report sets out various recommendations, we have no knowledge of what information was relied on and what reasoning led them to their conclusions and recommendations. [271] The union relied on a number of comparators. Counsel argued that SEOs face the same risk as SWAT officers. However, as already noted, SWAT no longer exists. Any differences that may have existed some fifteen years ago are irrelevant given the parties’ agreement that the Board’s task is to assess the present situation. [272] The other comparison the union made was with VEOs. Union counsel stated that the only justification the employer has offered for the additional safety precautions VEOs had was the fact that they randomly pull over vehicles on highways, not knowing who may be in it. Counsel argued that the evidence is that SEOs may encounter even greater numbers of unknown and unexpected people when they arrive at a facility. [273] The evidence is that VEOs have no opportunity to research or plan their activity to address potential safety risks, when they pull over vehicles. In contrast, SEOs have he opportunity to research for any safety concerns in various ways, including have a CPIC check done, accessing the MTO data base, and looking for hazard flags on the ministry IDS system. They also have the option of - 107 - seeking information and advice from supervisors or local police before proceeding. [274] Having said that, there is no doubt that despite SEOs doing all possible research and planning, unknown and unexpected people may be encountered. Some of them may have a propensity to be aggressive towards SEOs they perceive to be unduly interfering with their private affairs. Sometimes even individuals who had previously been cooperative and friendly may turn violent on a particular day. I agree with the union that no amount of research and planning would always disclose risk to SEOs. [275] However, there is a significant difference between the way VEOs and SEOs work. Engaging with unknown people and working with unknown risks, is the core of the VEO job. They do that day in and day out. They cannot disengage if occupants of a vehicle display agitation or aggression. Except in extreme circumstances justifying a work refusal under OHSA, there is no policy of disengagement. The evidence is that they have to continue engaging, and enforcing the regulations. They take action “on the spot”, by issuing tickets and/or orders, or by pulling vehicles deemed not road-worthy off the road. [276] In contrast, if a SEO is concerned about personal safety and is not comfortable proceeding with an assignment, he/she has the ability to disengage or postpone the work. In fact, the policy directs them to do so. He/she has the opportunity to research/plan to his/her satisfaction, or to arrange additional precautions such as working with a partner or seeking police assistance before proceeding. There is no evidence of an SEO ever being disciplined, or even counselled, for delaying or even refusing to do an assignment because of honestly held safety concerns. To the contrary, the evidence is that management always encourages that approach. That is consistent with the employer’s policy that “no work is more important than officer safety”. The employer’s evidence was that SEOs are not emergency responders or first responders. The Board heard evidence that when a SEO made a special request for safety information from the IEB, but proceeded - 108 - without waiting for receipt of the requested information, the employer counselled that SEO, and sent out a general memorandum to all field staff that it should not be done. The evidence is that although there may be occasions when SEOs proceed to the site on Emergency Response Calls, with no time to properly plan and prepare, in most such situations before the SEOs arrive on site, other agencies like police, fire department and paramedics would already be there. Mr. Tomlinson testified that he would very rarely be alone at the site on ERP calls. Similarly, sometimes SEOs may also be involved in pulling over waste haulers. On such occasions also, the SEO works along side MTO officers and/or police, who would be equipped with additional safety tools. [277] I conclude from the evidence that the degree of potential risk faced routinely by VEOs is significantly greater than that faced by SEOs. Although both groups may encounter unknown people, the ability of SEOs not to proceed, and to disengage and leave as soon as agitation or aggression is evident, significantly mitigates their level of risk. [278] A theme repeated by many of the union witnesses was to the effect that although the employer’s policy allows them to disengage and leave, that would not be always possible. One witness gave, as a hypothetical example, a situation of someone holding a weapon and blocking the only exit from the room. I agree that in that scenario, disengagement may not be possible option. However, in my opinion the evidence indicates that the likelihood of someone detaining a SEO and preventing escape with the intention of assaulting or harming the SEO is very remote. [279] When reviewing the evidence it becomes very clear that in each of the five incidents – the two assaults and three “near assaults”-, the aggression on the part of the individuals was about the very fact that the SEOs was there in the first place. In each case, they did not want the SEO being there. I also find that it ought to have been reasonably evident to the SEOs very quickly that the individuals in each case wanted to be left alone, and wanted the SEOs to leave. - 109 - Thus, Ms. Woods testified that as soon as she started talking the property owner interrupted and asked whether she did not require a warrant to be there. Then, the others also started questioning her. She was aware that one of the other men had a history of violence against Ministry staff. She did not testify that at that point she was unable to disengage and leave. She in effect had been told to leave. Yet she continued to engage, and that is when the four people circled her. It is clear that from the very start when Ms. Woods was asked whether she had a warrant, and there was manifestation of agitation and anger from the facial expression etc., that the individuals did not want her being there, and were of the view that she had no legal authority to be there. She did not follow the policy “If you are told to leave, leave.” She chose to continue because she wanted to get the inspection done before the year end, something not required by the employer. [280] The strongest evidence the union adduced to support its position that SEOs may not be able to disengage from danger was the Pechinger incident. The evidence is that Ms. Pechinger was prevented from leaving and was grabbed by the hand. Her thumb was bent back and she went down on her knees. Then as she tried to leave again, she was pulled to the ground by her hair. There is no question that this constituted a serious physical assault, and that it would have caused tremendous pain and emotional distress to Ms. Pechinger as she testified. [281] The evidence, however, is that well before this incident unfolded, Ms. Pechinger was told by the farmer that he was only leasing the property, that Ms. Pechinger is not allowed to proceed to inspect the pile of compost without the presence of the property owner. It should have been clear to Ms. Pechinger that the farmer was asking her to leave, and return after arranging with the property owner. Instead of leaving, she continued to assert that she had the authority to inspect the compost. [282] The evidence is that at that point the owner of the property arrived, and immediately accused Ms. Pechinger of trespassing on his property. When he - 110 - demanded proof of identification, she could only point to the Ontario Crest and the words “MOE Provincial Officer” on her shirt. When she turned and walked towards her vehicle to retrieve her badge, she was grabbed by the owner, who declared that she could not leave, and that he was arresting her for trespassing. [283] The evidence is clear that Ms. Pechinger, was physically detained and prevented from leaving at that point, the only such incident in evidence. The evidence, however, does not support a finding that the purpose of preventing Ms. Pechinger’s escape was to detain her and inflict harm to her. It is true that the assault occurred in the course of preventing her escape. However, the intent was to detain her awaiting the arrival of the police, because the owner was of the belief that Ms. Pechinger had committed a trespass on his property. It is inconceivable that the property owner, knowing that the police had been called and was on the way, would detain her with the intention of harming her. The evidence rather is that he detained her with the expectation that the police on arrival would charge Ms. Pechinger with trespass. [284] The evidence also indicates that Ms. Pechinger may have contributed to the occurring of this incident. She testified that when she ultimately retrieved her badge and identification from her vehicle and showed them the property owner calmed down. Therefore, it is likely that if she had those with her at the outset as she was required by Ministry policy, and showed it to the individual, he would not have attempted to initiate a citizen’s arrest on the basis that she was trespassing unlawfully on his property, and no assault would have taken place. [285] The evidence is that even before the arrival of the property owner, the farmer had questioned Ms. Pechinger’s authority to be there without a warrant. By this time, she had observed several red flags. Some of the individuals exhibited agitation. Yet she persisted. She was then told that she was not allowed to inspect the pile of compost without the property owner being present. At least at that point, the Ministry policy, “If you are told to leave, leave”, required Ms. Pechinger to leave, and return at a later date taking further precautions deemed necessary after - 111 - discussion with her supervisor. Had she followed policy, very likely there would have been no incident at all. [286] I have reviewed the case law and summarized the principles that emerge from the case law. Now I turn to apply those principles to the evidence before me. There is no doubt that SEOs are required at times to deal with individuals who have a propensity for violence. Often the clients may be annoyed, upset and even angry, because SEOs are perceived to be “the government” unjustifiably interfering with their private affairs. This perception would on occasion lead to use of intimidating and abusive verbal outbursts and yelling. There is evidence that on two occasions agitated individuals made physical contact with a SEO, which I will come back to. [287] In Re Martin,(supra) at para 400 I observed as follows: [400] The authorities are clear that an employer has no obligation to guarantee an employee’s safety against every possible risk. As the Ontario Court of Appeal in R v. Timminco Limited (supra) commented, the broad purpose of OHSA is “to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace.” Particularly considering that AIs core function is regulatory enforcement, a certain amount of risk would be inherent and unavoidable. Their entitlement is to reasonable protection. [288] It is also clear from the evidence that in every incident the union put forward, including the two incidents of assault, the goal of the individuals was to get the SEOs to go away. There is no evidence of any instance where a SEO was detained with the intention of harming him/her. In every incident the Board heard about, the SEOs were told – directly or indirectly – to leave. Yet, despite obvious signs that the individuals were agitated about the SEOs being there, and despite Ministry Policy that required SEOs to leave if told to, the SEOs continued to engage. Union witnesses questioned the validity of that Ministry policy, on the ground that it ignores the reality that disengagement may not always be possible. The example of someone holding a weapon, blocking the only exit, in my view, is only a theoretical, or at best a very remote possibility in light of the evidence. As - 112 - already noted in every incident the union relied on, the objective of the hostility exhibited was to get the SEOs to leave. [289] In three of the incidents there was verbal hostility exhibited, but the SEOs were able to successfully disengage by using their training and communication skills. In the Fisher incident, there is no question that Mr. Fisher was repeatedly told to leave. It was when he continued to engage, and tried to argue with the woman that he had authority to be there, that he was shoved off the porch. The intent of the pushing was to persuade him to leave, not to inflict harm on him. Similarly I have concluded that the assault, that is the detention of Ms. Pechinger by resort to physical force, a serious assault no doubt, was to detain her until the Police arrived. She was physically restrained and prevented from escaping, but not with the intent of harming her. As I have observed earlier, Ms. Pechinger had the opportunity to leave earlier, and should have done so in accordance with ministry policy. [290] I next turn to consider the magnitude of the workplace violence. In the five incidents, there were varying degrees loud and aggressive language, including use of profanity in some cases. There is no evidence, however, that any of the verbal assaults included threat of physical harm. To the contrary, in three of the incidents, the SEOs concerned testified candidly that they did not feel threatened. I have concluded, and the union has agreed, that dealing with hostile and agitated people is an inherent part of the job of a SEO, and is to be expected. In my view, to label these as incidents of “near assault”, is a misnomer. Union counsel did not define “near assault”. The three incidents are more aptly described as verbal aggression/abuse. In the circumstances, the verbal abuse in the five incidents does not support a finding of a violation of the Act or the collective agreement. [291] There is evidence of two assaults. Mr. Fisher was very candid in his testimony that while he was pushed off the porch, he did not fall, but stepped back still - 113 - upright on to the ground. I agree with employer counsel that while there was technically an assault in that physical contact was made, it was “de minimus”. [292] I have found that Ms. Pechinger could have, and would likely have avoided the assault, had she disengaged in accordance with her training and employer policy. I have also found that the motive of the assailant was to have Ms. Pechinger arrested as a trespasser. Nevertheless, this was a physical assault. Regardless of intent, Ms. Pechinger was subjected to severe trauma and physical pain. Yet, no permanent injury resulted, and Ms. Pechinger did not need any time off work or medical treatment. She did not feel a need for counselling or therapy and did not access EAP. This was by far, the most serious of the incidents presented by the union. Yet even that is not at the higher end of seriousness in the range of physical assaults. [293] The authorities have considered the frequency of risk as a relevant factor in determining the reasonableness of precautions. The onus was clearly on the union to establish that reasonable precautions were not provided. It was open to the union to adduce evidence of the experience of over 300 SEOs working out of offices throughout Ontario. Nearly 100 SEOs had actively joined in the grievance. There was no time limit placed on how far back in time the union could go in presenting evidence. Union counsel in final submissions, stated that the five incidents were not the only incidents of workplace violence faced by SEOs, but were presented only as examples. Accepting that, it is reasonable to assume that in pursuing the grievance, the union would present the most serious of the incidents as examples. [294] Another legal principle that emerges from the case law is that there has to be a link between the risk and the safety precautions sought. One of the most significant precautions the grievors focussed on was soft body armour. However, there is absolutely no evidence of any risk faced by a SEO which would have been avoided or mitigated by the presence of soft body armour. There is no evidence that any SEO was ever attacked with a weapon or that there was even - 114 - a threat of such an attack. There was evidence of an individual carrying a firearm. However, the SEO concerned, Mr. Feduck, was very honest that the firearm was not pointed at him, that he was not threatened with it, and he was not concerned that he might be shot at. To the contrary, he told his supervisor that it was “no big deal”. [295] The other safety tool the union was emphatic about was Fleetnet communication. However, again, there is no evidence that the absence of Fleetnet exposed SEOs to any risk. To the contrary, there is evidence that on numerous occasions, SEOs did not even use the communication devices they had been provided. For example, I have reviewed the evidence of SEOs not taking satellite phones and leaving the phone in the vehicle when engaging with clients. [296] In Re Martin (supra), at para. 412, I observed as follows: In the face of the evidence before me, it is very likely that the grievors did not even honestly believe that they were at risk as they say. Their conduct as established by their own evidence speaks louder than their words in this regard. If they believed they were at risk as asserted, it is very unlikely they would have acted as they did. I have reviewed the evidence of numerous instances of AIs conducting themselves in a manner indicating that they were not concerned about their safety, although claiming to be in danger. On the basis of the evidence before me in the instant proceeding, I echo those observations, with respect to the grievors. As I have reviewed, there is evidence of numerous instances of SEOs not taking or using available communication tools; not disengaging and leaving but continuing to engage with individuals who are visibly agitated and upset; not leaving when told to leave or when it is clear that the individuals wanted them to leave; not obtaining information from CPIC and/or IDS before proceeding; not seeking police assistance; and not requesting to work in pairs. [297] The evidence is that in many of these instances the SEOs did not follow employer policy/directives. It was very evident that these SEOs are very dedicated to their work. They are enthusiastic about achieving optimum - 115 - enforcement and prosecution of violators. Several of them have police experience. They appear to disagree with the employer’s directive to the effect that “officer safety comes first”, that “work is secondary”; and that “It is OK if activity is postponed or not done at all”. As I have reviewed, Mr. Tomlinson directly testified that his job as SEO requires him to enforce environmental regulations and that it is not appropriate for a SEO to run away. This dedication and desire to enforce regulations expeditiously and efficiently is understandable, and even commendable. However, the employer has the responsibility for managing and implementing the mandate of the Ministry. As a general matter, like the grievors do, it is reasonable to expect that public funds would be used to achieve optimum productivity and efficiency. However, along with that responsibility, the employer has legal obligations relating to officer safety under the collective agreement and legislation. In exercising its management rights, the employer is required to decide where to draw the line between efficiency/productivity and officer safety. It must decide how to achieve that balance. It has the option of providing the best possible safety precautions, and demand strict police-like enforcement, as it appears to have done at one time with the SWAT team. That was one option it had to comply with the officer safety obligation. The employer, however, has chosen to achieve compliance in a different way. It chose not to give priority to efficient and strict enforcement. It adopted an approach which placed officer safety as the priority, at the expense of efficiency and productivity. The “mantra” was, “If uncomfortable do not go. If already there and you feel unsafe or are told to leave, just leave. It is alright if the work does not get done”. Whether one agrees with that approach or not it is a decision the employer was legally entitled to make. [298] I find that the employer was entitled to decide as it did, provided that reasonable safety precautions were provided, having regard to the directives and the policies. I find that in the circumstances, the safety precautions met the requirement of article 9 of the collective agreement and s. 257(2)(h) of OHSA. As I have discussed above, the prospect of encountering unknown risk and inability to disengage, the primary arguments of the union, did not expose SEOs - 116 - to unreasonable risk, if they had followed employer policy and directives and taken advantage of the safety precautions made available to them. [299] In conclusion, I find that the safety precautions available to the grievors meet the requirements of the collective agreement and OHSA. The evidence does not establish a violation of either. The grievances are accordingly dismissed. Dated at Toronto, Ontario this 2nd day of March, 2020. “Nimal Dissanayake” Nimal Dissanayake, Arbitrator - 117 - GSB File No Appendix “A” Grievor OPSEU Union File No 2012-2087 Tomlinson, Gary et al 2012-0232-0021 2012-1891 Hannah, Timothy et al 2012-0308-0017 2012-2065 Meagher, Janine 2012-0555-0026 2012-2066 Hansen, Thomas 2012-0555-0027 2012-2088 Hall, Cameron 2012-0232-0022 2012-2089 Armour, Lynnette 2012-0232-0023 2012-2090 Bisson, Marsha 2012-0232-0024 2012-2091 Mohammed, Dana 2012-0232-0025 2012-2092 Khalfan, Khaleed 2012-0232-0026 2012-2093 Cahill, Brian 2012-0232-0027 2012-2094 Noll, Kevin 2012-0232-0028 2012-2095 Hindriks, Michael 2012-0232-0029 2012-2096 Wingate, Wendy 2012-0232-0030 2012-2097 Serwotka, Carola 2012-0232-0031 2012-2098 Walker, Koraya 2012-0232-0032 2012-2099 Everard, Karla 2012-0232-0033 2012-2100 Taylor, Corinne 2012-0232-0034 2012-2101 Vanheyst, Karl 2012-0232-0035 2012-2102 Weber, Martha 2012-0232-0036 2012-2103 Davis, Kyle 2012-0232-0037 2012-2104 Mahmod, Mahmod 2012-0211-0028 2012-2105 Lamport, Jacqueline 2012-0232-0039 2012-2106 Athron, Gregory 2012-0313-0018 2012-2107 Eves, Susan 2012-0313-0019 2012-2108 Schlecht, Christina 2012-0313-0020 2012-2109 McNeice, Matthew 2012-0313-0021 2012-2110 Peltoniemi, Darren 2012-0313-0022 2012-2111 Salojarvi, Aarne 2012-0313-0023 2012-2112 Mattson, Aaron 2012-0313-0024 2012-2113 Haines, Darren 2012-0313-0025 2012-2114 Crumbie, James 2012-0313-0026 2012-2115 Bailey, Mark 2012-0313-0027 2012-2116 Brown, Merrilu 2012-0313-0028 2012-2117 Vreugdenhil, Peter 2012-0313-0029 2012-2118 Sauer, Phillip 2012-0313-0030 2012-2119 Nicastro, Donna 2012-0313-0031 2012-2121 Raffell, Christopher 2012-0429-0009 2012-2122 Joyner, Dan 2012-0455-0007 2012-2123 Morrish, Jonathan 2012-0455-0008 2012-2124 Hohner, Jason 2012-0555-0024 2012-2125 Copland, Paul 2012-0555-0025 - 118 - 2012-2126 2012-2127 Appendix “A” cont’d Dorscht, Ron Mclaughlin, Blair 2012-0607-0001 2012-0607-0002 2012-2128 Crosson, Kirk 2012-0607-0003 2012-2129 Shields, Walter 2012-0607-0004 2012-2130 Keen, Lilan 2012-0607-0005 2012-2131 Fry, Kira 2012-0607-0006 2012-2132 Woods, Dana 2012-0626-0001 2012-2133 Brennan, Dew 2012-0626-0002 2012-2134 Carbone, James 2012-0626-0003 2012-2135 McNaughton, Ronald 2012-0626-0004 2012-2136 Moggy, S.J. Steven 2012-0626-0005 2012-2137 Boyer, Maurice 2012-0626-0006 2012-2138 Paolin, Ron 2012-0626-0007 2012-2139 Drolet, Parise 2012-0626-0008 2012-2140 Donato, Marc 2012-0626-0009 2012-2141 Landry, Philippe 2012-0626-0010 2012-2142 Burr, Shawn 2012-0702-0009 2012-2143 Smith, Mark 2012-0103-0002 2012-2144 Mills, Jeffrey 2012-0103-0003 2012-2145 Thompson, Dave 2012-0103-0004 2012-2146 McGlynn, John 2012-0103-0005 2012-2147 Rutherford, Glenn 2012-0103-0006 2012-2148 Lehouillier, Jason 2012-0103-0007 2012-2149 Slivar, Bob 2012-0103-0008 2012-2150 Ness-Jack, Ian 2012-0103-0009 2012-2151 Pechinger, Janis 2012-0103-0010 2012-2152 Bywater, Michael 2012-0205-0051 2012-2153 Plourde, Denise 2012-0205-0052 2012-2154 Gamble, Jeremy 2012-0205-0053 2012-2155 Wassink, Karen 2012-0205-0054 2012-2156 Buck, John 2012-0205-0055 2012-2157 Fowler, Nick 2012-0205-0056 2012-2158 Thompson, Scott 2012-0205-0057 2012-2159 Burt, Stephen 2012-0205-0058 2012-2160 Farnand, Brad 2012-0205-0059 2012-2161 Lesko, Joesph 2012-0205-0060 2012-2162 Placko, Joanne 2012-0205-0061 2012-2163 Macionis, Joseph 2012-0205-0062 2012-2164 Hall, Ron 2012-0205-0063 2012-2165 Durst, Michael 2012-0205-0064 2012-2166 McConnochie, Martin 2012-0205-0065 - 119 - 2012-2167 2012-2168 2012-2169 2012-2170 Appendix “A” cont’d. O'Connor, Christopher Bosquet, Lynne Webb, Tim Roland, Charile 2012-0205-0066 2012-0205-0067 2012-0205-0068 2012-0205-0069 2012-2171 Markarian, John 2012-0211-0020 2012-2172 Farrell, Barbara 2012-0211-0021 2012-2173 Widmeyer, Paul 2012-0211-0022 2012-2174 Hull, Phillip 2012-0211-0023 2012-2175 Chartrand, Sylvie 2012-0211-0024 2012-2176 Medland, Christopher 2012-0211-0025 2012-2177 Campbell, Sylvain 2012-0211-0026 2012-3254 Tormey, Shane 2012-0232-0042 2012-3255 Tormey, Stacey 2012-0232-0043 2013-4343 Union, 2014-0999-0017