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HomeMy WebLinkAbout2019-0593.Union.21-05-03 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# 2019-0593 UNION# 2019-0999-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Christopher Albertyn Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING October 15, 2020; January 13, April 1 and 22, 2021 - 2 - Decision The Grievance [1] The Union’s policy grievance under OPSEU Grievance 2019-0999-0007 is that the Employer has breached its obligations under Article 9 the collective agreement (health and safety) and under the Occupational Health and Safety Act, RSO 1990, c O.1 (OHSA) by failing to take all reasonable steps in the circumstances to protect the health and safety of the employees. [2] The employees referred to are the 375 correctional officers who work at the Elgin Middlesex Detention Centre (EMDC), as well as the correctional officers employed at the Hamilton Wentworth Detention Centre (HWDC) and at the Niagara Detention Centre (NDC). Despite this, this decision deals only with the EMDC. I am asked, though, by the Union to remain seized with respect to the Union’s claims on the same issue in the other two institutions. [3] The Union seeks an order that the Employer be required to remove a roadside memorial erected outside of the EMDC, on Crown land, in order to restore the health and safety of the employees. [4] This decision is issued pursuant to the provisions of Article 22.16 of the collective agreement. [5] There is no challenge by either party to my jurisdiction to deal with this grievance and to issue any appropriate award. The Facts [6] EMDC is a 450-bed maximum security jail located in London, Ontario. [7] Since 2009 13 offenders in EMDC’s custody have died. The causes of death included suicide, homicide, drug overdoses and natural causes. Six of the 13 deaths occurred in one year (2017-2018). [8] Many members of the EMDC staff were first responders at the time of the incidents that resulted in these deaths. The traumatic circumstances of the deaths had a psychological impact on several members of the EMDC staff. A few were given critical incident stress debriefing. Several have been diagnosed with PTSD. [9] On June 3, 2018, families of offenders who had passed away installed painted wooden crosses, each in memory of an offender who died while the custody of - 3 - EMDC. The installation is at the corner of Exeter Road and Sholto Drive in London, Ontario, very close to the EMDC, as a memorial reminder of the offenders’ deaths. Each cross bears the name of a loved one in large black letters, with other messages. Some have laminated photographs of the deceased. [10] The crosses have remained there as an installation since then. Other features have been added to the crosses, including: a. a sign protesting that “changes are needed now at EMDC”, b. a small decorative metal plate of howling wolves, c. a wooden angel with a wreath around its neck, d. solar panels to power the lighting of the displays (stake lights and fairy lights), e. an engraved stone or marble plaque, f. a memorial lantern, g. decorative candle holders and candles, h. an adorning bead bracelet, i. angel statuettes and figurines, j. stuffed animals, k. Styrofoam flower buds, l. items belonging to the deceased, e.g., a cap, a hockey puck, m. a twig wreath with flowers, n. a disturbingly dressed figure illuminated by a stake light, using the cross as a base, with shoes and clothing associated the deceased, with a messenger bag beside it. [11] All of the above items are referred to together as “the installation” or as “the memorial”. [12] The patch of land (“the land”) on which the installation is situated is owned by Infrastructure Ontario, which is a part of the Crown. [13] The installation has been arranged very close to the roadway on the land, so that it is directly visible to anyone travelling past it on Exeter Road or Sholto Drive. Anyone entering or leaving EMDC is required to drive by this street corner, there being only one entrance and exit from the institution. [14] The affected employees, being the staff of EMDC, are required to drive past the memorial twice every day when they go to and from work. [15] The memorial has come to have an increasingly negative impact on staff morale and on the psychological well-being of the employees of the EMDC. Several have sought psychological help. Some suffer from PTSD, which has been exacerbated by the experience of seeing the memorial each time they pass it. The effect of the memorial impacts particularly those EMDC staff who were first responders to the incidents leading to the deaths of the offenders. In the words of the Union’s Local President, Janet Laverty, “Driving past a memorial twice daily and reading the names of the - 4 - offenders that you have worked tirelessly, but unsuccessfully, to revive has begun to trigger Post Traumatic Stress symptoms in a large number of first responders”. [16] The memorial has had an impact on Ms. Laverty herself. Ms. Laverty has been involved in three different situations where an inmate died while at EMDC. She has also been involved in a number of other critical incidents over her 24 years as a Correctional Officer (CO). [17] In particular, on December 26, 2017, Ms. Laverty had to respond to an alert when an inmate hanged himself. The inmate had been in and out of custody over the course of many years and Ms. Laverty knew him well. Less than an hour before being called to this alert, she had had a conversation with the inmate. Staff performed CPR and paramedics were summoned, but they were not able to resuscitate the inmate. The inmate’s body had to remain at the facility until a coroner arrived. This took over five hours. During this time the inmate was covered with a sheet over his body while Ms. Laverty was required to stand watch and preserve the scene. [18] The circumstances surrounding this incident were extraordinarily upsetting for Ms. Laverty. [19] Subsequently, when the families began protesting, this inmate’s family participated and displayed large photos of the inmate’s body post-mortem as part of their protests and pickets. The photographs were particularly disturbing and upsetting for Ms. Laverty. Ms. Laverty gets upset when she is confronted on a twice daily basis with the memorial every time she comes to and from work. [20] Despite the impact of the installation on the mental health of the EMDC staff, they and the Union appreciate the need of grieving family members to mourn and commemorate their losses. [21] The memorial on the land has now been in existence for well over two years. The Union is concerned that the repeated exposure of the EMDC staff to the memorial is having the effect of re-traumatizing those suffering with PTSD, making it harder for them to cope. [22] In order to address the needs to the staff members (i.e., not to have to directly encounter the memorial each and every time they come to work or leave it), on July 22, 2018, Dominic Bragaglia, the Worker Co-Chair of EMDC’s Local Joint Occupational Health and Safety Committee (LJOHSC), wrote to Kimberly Wright, Superintendent of EMDC, expressing these concerns and asked that management remove the memorial. [23] Time passed, but the memorial was not removed. [24] On or around September 20, 2018, Local President, Janet Laverty, emailed Maya Bernizon, Senior Policy Advisor, Correctional Services, setting out her concerns on - 5 - behalf of EMDC membership regarding the memorial, some of which are referred to above. [25] On November 26, 2018, the family of an inmate who passed away in custody participated in a picket near EMDC. They had signs with photos of the inmate taken post-mortem. The images were disturbing. The Union submits that this protest was negative for staff morale and it posed a risk of psychologically harming staff, particularly for those involved with the circumstances surrounding that inmate’s death. Ms. Laverty wrote to Ms. Bernizon expressing these concerns that day. [26] In January 2019, the Union was advised that Ministry representatives had met with Rebecca Howse, the Chair of the Community Advisory Board (CAB), and with certain of the family members involved in the protests and memorials. [27] Ms. Howse proposed, on behalf of the families, that a permanent memorial made of bricks or stone be erected on the same spot as the installation. [28] Ms. Laverty responded to Ms. Bernizon several days later, advising that neither she, nor her members, would support a permanent memorial in the same place for the same reasons and concerns as she had provided previously, as described above. She questioned whether the Union’s position on behalf of its membership was taken into account at the January 2019 meeting. [29] In an effort to resolve the issues with these memorials, Ms. Laverty met with Ms. Howse on March 11, 2019, and again expressed concerns on behalf of the Union, while making clear that the Union appreciated the underlying interests of the families. [30] On March 29, 2019, Ms. Laverty met with representatives of the grieving families (and has represented other justice system participants and stakeholders in the past). Although the conversation was candid and generally amicable, it did not yield a resolution to the issues raised by the memorial. [31] In April 2019, protests took place at EMDC that involved protesters picketing the entrance to EMDC in and around the EMDC parking lot and on EMDC grounds. [32] This was extremely upsetting for staff, and some staff discovered damage to their cars – deliberate scratches along the bodywork – following these protests. Several staff provided occurrence reports to management, noting the damage done and the impacts it had on them. [33] The Employer did not attempt to remove the protestors from EMDC grounds. Given the damage to the staff’s personal property, the Union contends that management did not put in place an adequate safety or contingency plan for similar future protests. [34] The grievance was filed not long after these protests, on May 26, 2019. [35] In the months that followed, for the rest of 2019, the memorial remained at the corner - 6 - of Exeter Road and Sholto Drive near the MTO building, with embellishments being added periodically. [36] The installation has had a significant impact on staff. One particular CO has been involved in several traumatic workplace incidents. The memorial serves as a constant, triggering reminder for him of these traumatic workplace incidents. [37] The employer has failed to take any action to remove the installation. The Union seeks an order that the Employer be directed to remove it. Decision [38] The Union submits that the memorial constitutes an unacceptable risk to the psychological health and safety of staff members at the facility. The employer’s failure to address the health and safety risks posed by the memorial constitutes a violation of Article 9 of the collective agreement as well as of the Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code. [39] The Union argues that the memorial is a constant reminder of traumatic and tragic circumstances and that it poses a daily threat to the mental well-being and psychological safety of staff working in the EMDC. There are officers at the facility who suffer from PTSD in relation to these deaths, or other traumatic incidents that they have experienced at work. The memorial, in its present location and form, unacceptably harms the health of such staff members. [40] The Employer recognizes the need to mourn the loss of family members. Like the Union, it appreciates that family members would like to have some memorial of their relative who died while held in EMDC. The Employer also recognizes that ongoing harm that has been done to members of staff as a consequence of the placement and elaboration of the installation. It does not support the relief sought by the Union. It leaves the determination of the issue within the arbitrator’s discretion. [41] The Union refers to the paucity of legislative guidance on roadside memorials. The City of London, Ontario, within which EMDC is situated, has no bylaw on the subject. Mississauga is among the few municipalities that has any regulation dealing with the issue. Under Policy 10-03-02, the requirements for roadside memorials are that they not be a distraction to road users, that they be respectful of adjacent property owners, and be no larger than 3’ x 3’. [42] The Union submits, in my view correctly, that the installation is a distraction to road users. Its elaboration appears to be specifically intended to draw the attention of road users at the intersection of Exeter Road and Sholto Drive. It is also much larger than 3’ by 3’. - 7 - [43] Under the Mississauga Policy, the duration of roadside memorials is expected to be no more than a few weeks, with an outer limit of 12 months. At the 12-month mark, the City removes the memorial on notice to the affected family who has been maintaining it, allowing them to take possession of the memorial. If that does not occur, the City retains the memorial for 30 days, after which it is disposed of. [44] There are a variety of different laws and regulations that apply to roadside memorials in the United States. Several states outlaw such memorials altogether; others permit the erection of the memorials, subject to rules and time limits for their removal. [45] There does not seem to be a consistent approach to the regulation of roadside memorials in the U.S., Canada or Ontario. Where time limits apply, they are typically up to a year, though a few have a two-year limit. For example, Ottawa has a 6-month time limit, Calgary and Winnipeg have a one-year limit. [46] The memorial has been in place continuously since June 3, 2018, now over two years, approaching three years. It has had, and it continues to have, a deleterious effect on the mental health of the staff of the EMDC, whom the Union represents. There is no reasonable alternative to remedy the situation other than to have the installation removed from its current location. [47] In its request to have the installation removed, the Union asks that it be removed in a manner that is respectful of the families. The Union has also undertaken that it is willing to engage with the Employer and with the families, and their representatives, to find a suitable site for a memorial for those offenders who have died in the EMDC’s custody. [48] There are reasonable alternative sites for the memorial. A suitable site is one where those driving to and from work at EMDC are not forced to view it. The determination of any site by the Employer must include the Union’s agreement, acting reasonably, and consultation with the affected families. [49] Given the current provincial Covid 19 restrictions, particularly the recently issued stay at home order, I shall give the Employer an extended period of time to comply. The order that follows requires the Employer to remove the installation within 90 days from the date of this decision. That is so that the Employer has time to inform the affected families and their representative of this decision so that they can themselves to remove their own possessions from the installation. The communication from the Employer must make clear that there will be no re-erection of the memorial at the same spot, nor at any spot which obtrudes on the line of sight of the staff of EMDC when they are driving to and from work. Any relocation near to EMDC can be done only with the consent of the Employer and the Union. [50] Once the installation has been removed, the Employer is required, in the order below, - 8 - to retain the installation for a period of 30 days. This is so that family members may claim their possessions during that period, if they have not done so before. At the end of that 30-day period, the Employer may dispose of the installation. [51] In the result, I find that the Employer has not taken every precaution reasonably necessary to protect the health and safety of the employees. Consequently, I find that the Employer has breached its obligation under Article 9 of the collective agreement, and under the OHSA. [52] Any order against the Employer in this case, in respect of its capacity as employer of the affected employees, is binding also on the Employer in its capacity as owner of the land as Infrastructure Ontario. [53] The grievance is therefore allowed. I issue the following orders and directions: a. The Crown, through the Ministry and through Infrastructure Ontario, is ordered to remove the memorial, within 90 days of the date of this decision, as referred to above. b. The Crown is directed to advise the families of those who are memorialized in the installation of the order to have the installation removed, so that each family may themself remove their property from the installation prior to the Crown doing so. c. Once the installation is removed by the Crown, it will retain the content of the installation for a period of 30 days, in case a family member wishes to collect their property during that period, after which period, the Crown will dispose of the remnants of the installation. d. The Crown is directed not to permit the relocation of the memorial to a site on its property in the vicinity of the EMDC unless the Employer and the Union mutually agree to do so. e. If there is any re-establishment of the installation near to the EMDC, other than on a site agreed to by both the Employer and the Union, the Employer is directed to remove it forthwith. f. I remain seized of the implementation of this order. I remain seized also with respect to any application of this order to the HWDC and the NDC. Dated at Toronto, Ontario this 3rd day of May, 2021. “Christopher Albertyn” ________________________ Christopher Albertyn, Arbitrator