HomeMy WebLinkAboutGillick 08-02-20
IN TilE MAlTER OF AN ARBITRATION
BETWEEN:
MUNICIPAL PROPERTY ASSESSMENT CORPORATION
- AND -
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 301
(GlUEV ANCE OF DAVID GILLICK)
Before: Susan Tacon, Sole Arbitrator
Appearances:
For the Union: Richard Blair, Counsel (as of Septcmbcr 28, 2007)
Kristen Agrell, Grievance Officer (prior to the above date)
Ivan Herrington, U.M.C. (Co-Chair)
Gerald Devlin, Union Representative
David Gillick, Grievor
For the Employer: Daniel Fogel, Counsel
Greg Volkes, Employee Relations Health & Safety Consultant
Peter Gamble, Manager of Customer/Data Quality Assurance
Jim Petrin, Senior Manager, Valuation
THIS MA TTER WAS HEARD IN TORONTO ON THE FOLLOWING DATES:
FEBRUARY 21; APRIL I 9; MAY 2 & 3 I; JUNE 13 & 15;
SEPTEMBER 28; OCTOBER 3; 2007; JANUARY 11.2008
DECISION
This arbitration conccl'l1s the tcrmination of the gricvor, David Gillick, lI'om his position
as Valuation Analyst in the Trenton oflice 11)1' violating thc employer's Code of Conduct.
The union aecepted that serious misconduct occurred but argued that the pcnalty was
disproportionate in all of the circumstances, The employer rejected that contention,
submiHing that thc tcrmination was 11)1' just cause. There was no dispute that I have the
jurisdiction to hcar and detcnnine the grievance.
Three witnesses testified: Greg Volkes and Pcter Gamble for the cmployer and David
Gillick, the grievor. Credibility was at issue in this case. In reaching my findings of fact,
I have weighed and assessed the testimony of the witnesses according to the usual factors
and in the context of the documentary material. [nmy view, the evidence ofVolkes and
Gamble is aceepted as credible. The same eannot be said of the grievor's testimony. He
was evasive and non-responsive to questions. [-lis explanations were contradictory and
often simply not plausible. Some examples are given to ground my conclusion as to
credibility at appropriate points throughout this decision, although many other examples
are not recounted.
Given my finding as to credibility, it is not necessary to set out the evidence in great
detail. Rather, it is my intention to note the salient 11lCts and it is to that section I next
turn. For convenience, the employer is relcrred to by the acronym MPAC of its full title,
the Municipal Property Assessment Corporation. Its predecessor, the Ontario Property
Assessment Corporation is cited as OPAC. Finally, the Code of Conduct is referred to as
the "Code".
FACTUAL FINDINGS
The primary employer witness was Greg Volkes, currently an Employee Relations Health
and Safety Consultant. His employment with MP AC, and its predecessors, dates from
] 975. Over the years, Volkes has held a variety of positions both within and outside the
bargaining unit, including property assessor, evaluation manager, quality assurance
manager and employee relations consultant. While in the bargaining unit, Volkes also
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tillcd scvcral oflkial positions withinthc union. Volkcs providcd an ovcrvicw of the
functions and opcrations of MI'AC.
MP AC is a crcaturc of statute rcsponsiblc tlX dcvcloping thc propcrty asscssmcnt rolls
uscd hy thc municipalitics inthc province to calculatc propcrty taxcs. MPAC camc into
hcing in 200 I. Prcviously, thc function of propcrty asscssmcnt had bccn carricd out by
()P AC. Indccd. that cntity was likcwise thc result of Icgislation which had privatizcd the
opcrations of thc Propcrty Asscssment Division within thc Ministry of Finance as of
Deccmber J I, 1998. 01' AC offered employmcnt to all currcnt cmployecs in that
Ministry of Finance division in a scamless transition whercin almost all acccpted
positions, A similar transition occurrcd whcn MPAC rcplaced OPAC.
The move to privatize what had becn a government function was not without controversy,
givcn the responsibilitics of MPAC and its access to information on all properties within
the province. Indeed, these concerns prompted the intcrvention of thc Ombudsman who
concluded that the assessmcnt function was a "public service" which demanded high
Icvcls ofintcgrity and etliciency. Thc Ombudsman's report was cntitled "Investigation
into the Transparcncy of the Property Assessment Process and the Integrity and
Effkiency of Decision-Making at the Municipal Property Assessment Corporation".
Thcrc is no need to review the exhaustive report and recommendations.
As Volkes testificd, it is this recognition of constant public scrutiny ofMPAC's conduct
that grounds MI'AC's emphasis on impartiality on the part of its employces. The Code of
Conduct is the embodiment of MP AC's standards by which its employees are to conduct
themselves. All MPAC employees receive a copy of the Code and acknowlcdge in
writing the importance of reading and being informed of its contents. That declaration
mirrored a similar document signed by employecs under the OPAC regime. Volkes
reviewed several provisions of the MPAC Code which arc set out in this decision infra,
There was no dispute that the gricvor received, and signed 1'01', a copy of the MPAC
Code. There was a suggestion by the union that the earlier OPAC Code had not been
received by the grievor at thc time of the changes in the assessments he initiatcd in 1999.
On this point, though, I accept the testimony ofVolkes that the standards governing the
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conduct of cmployccs of thc Ministry of Financc involvcd in propcrty asscssmcnt wcre
cssentially thc samc as thosc ultimately rcllcctcd in OPAC's, and thcn, MPAC's Codcs.
As Volkcs statcd, the cxpectations of cmploycc conduct wcrc not diflcl'cnt undcr the
scveralregimes, Ircturn to that issue latcl'.
Thc asscssmcnt process is complex, relying on inspections, data fI'Om othcr sourccs and
computcr programs. Propcrtics arc c1assilicd according to usc. including rcsidcntial,
multi-rcsidcntial, commercial. industrial, limn, and cxcmpt, although municipalitics may
also have further optional c1assilications. In 1998, the provincc adoptcd currcnt value
asscssment which assumes an arms length transaction from a willing scller to a willing
buyer at a particular point in time and, thus, involves a varicty of factors, such as, currcnt
use, recent sales of similar propcrtics in the area, ctc. Therc are also othcr approaches to
calculating currcnt value tor diffcrcnt property types.
Thc updatc ycars for asscssing clll'rent value arc sct by thc govcrnmcnt. Thc June 30,
1996 valuation date was uscd for the taxation years 1998, 1999 and 2000; thus, thcrc
would bc a retrospectivc valuation back to June 30, 1996 for propcrties built up until Junc
30,1999. That laucr datc would affcct the taxation years 01'2001 and 2002. The
complete asscssment update cycle is not here relcvant. In 2004, the valuation date was
changed from June 30'" to January I st. Bctween assessment datcs, changcs to properties
may result inreasscssments through what arc termed omitted or supplcmcntary property
assessments. MP AC also receives copies of building pcrmits and dcmolition forms
issued by municipalities. These changes in property features could result in increased or
decrcascd asscssments which, ultimately, are rctlected in the propcrty taxcs.
MP AC maintains a centralized computer data base of all assessments and data is gathered
from a variety of sourccs to update that data base. MP AC assessors have a broad
statutory authority to inspect propel1y and/or rcquest information to assist in preparing
the current value assessment, provided identification is shown and the inspcction is at a
reasonable time. MP AC conducts single property and mass appraisals. The latter
process values a group of properties using common data, standardized methods,
mathematical models and statistical testing. MPAC's current computer program is callcd
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"OASYS". rcplacing an carlicr programuscd until late 2006. The computer systcm is
dcsigncd to rccord a complctc "history" of cach propcrty such that cvcn crrors which are
corrcctcd do not rcsult in a delction JI'Omthc system,
Finally, thcrc is a proccss availablc to propcrty owncrs to challcnge a propcrty asscssmcnt
through an appcal and/or requcst f()r rcconsidcration, The scvcral stcps of cach route
nccd not bc rceountcd.
I now turn to thc facts slll'rounding thc gricvor's employmcnt history with MPAC and its
predccessors, In this section, I affirm the testimony of the employer's witncsses as
acclll'ate; the grievor's evidence is addressed later. The grievor was initially cmployed in
the Property Assessmcnt Division of the Ministry of Finance in 1989, I-Ie was first
assigned to the Aurora of1ice and then transferred to Bancroft, a sub-ollice of Trenton.
At times, the grievor held the position of Property Assessor 3, was briefly an Acting
Scnior Assessor and then reverted to the Property Assessor 3 classification. The specific
job title at the time was Neighbolll'hood Functional Assessor. Volkes testified that the
scope of the functions depended upon the region. In a large municipality, the properties
assigned for asscssment would be specialized whereas in a rural or semi-lII'ban area, the
assignment would include all properties within that municipality. If the individual was
unfamiliar with a particular class of property, it was expected that he/she would obtain
assistance 11'0111 a manager. V olkes noted that, in 1999, the grievor was likely assigned to
assess all properties in the Bancroft area, given the rural character of the region.
Volkes added that he had held the position of Neighbourhood Functional Assessor in a
rural, semi-urban area around Leamington for some ten years and was the sole assessor
there. This experience grounded his clear statement that it was always well known, that
even in such settings, an employee could never assess his/her own property or that of a
relative, The appropriate process was to contact one's manager to make arrangements for
an assessment that did not involve a conflict of interest.
MPAC's organizational structure comprises a number of regional offices in the province
within which the staff operate. In 200 I, the organization underwent a restructuring from
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a regional office basis to a Ilat organization with specialization. Two departments.
Customer Service and Property Valuation. were created. Employees still worked in
regional oftices but under head office control. As part of the reorganization. new job
titles were created and advertised; employees competed for various positions. The
Property Valuation Department rellectcd specialization. such as. small commcrcial. till'll!.
hospitality. recreation. and residential. Employees who held the position of
Ncighbourhood Functional Assessor and who had not obtained other positions through
the competitions became Valuation Analysts. retaining the samc wages and benefits as
bel()rc. Assessmcnt Field Officers becamc Propcrty Inspcctors.
According to Volkes, the dutics of Ncighbourhood Functional Assessors and Valuation
Analysts were not vcry different, although thc former was broader in scopc. For
example, a Neighbourhood Functional Assessor would conduct the assessmcnt trom start
to finish, commcncing with an inspection, valuation and might cvcn detend the
assessment in the contcxt of a reconsideration request or appeal. In contrast, the
Valuation Analyst would be limited in his/her asscssments to the assigned arca of
spccialization and would not generally be involvcd in the reconsideration and/or appeal
process, a role commonly taken over by Valuation Review Specialists. In the smaller
officcs, both Neighbourhood Functional Assessors and, later. Valuation Analysts, would
also input data into OASYS while that task would usually be performed by data clerks in
thc larger centres. Both Neighbourhood Functional Assessors and Valuation Analysts
had open access to OASYS using an ID card which would enable later identification of
the individual inputting data, although the initial entry was unsupervised.
There were regularly scheduled reassessment dates over the years. Between those
reassessments of all propcrties, as mentioned, a reassessment of a specific propeliy could
be triggered by events such as a sale, issuance of a building or demolition permit,
severance, reconsideration request or appeal. Further, with respect to residential
properties. if since the last reassessment when the propcrty had been inspected, there had
been no issue of sale or other event impacting on the value, it was unlikely there would
be another inspcction; rather. the value would be generated from the data in the computer
system.
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The chronology of events culminating in the grievor's termination commences in 2006.
At that lime, Jiml'etrin was thc Senior Manager, Valuation, for the geographic area in
which the grievor worked as a Valuation Analyst. Petrin's section specialized in
hospitality and recreation properties; residential properties were not included within the
responsibilities of that section. Initially, the grievor had been assigned to the Bancroft
area. By 2006. he had translcrred to the Trenton office, still withinl'etrin's section but
reporting to a dincrent manager. The grievor had not been assigned residential properties
since becoming a Valuation Analyst. Volkes' testimony, which I accept, is that a
Valuation Analyst assigned to Petrin's section, for example, who learned ofa potential
error in a residential assessment was not to conduct that assessment himseWherself but to
bring that to the attention of his/her manager or to simply advise the affected property
owner to file a request for reconsideration,
Volkes also testified as to his involvement in the investigation which culminated in the
grievor's termination. In 2006, as a project in the Quality Assurance Department, it was
decided to conduct a review of properties where the assessment had changed without a
reason being recorded, such as, building permit or sale. In the Trenton area, there were
approximately 1,700 properties so reviewed; Valuation Review Specialists were assigned
to ascertain the reason for each change, In conjunction with that process, an employee
recognized that a residential property belonged to the grievor's spouse and that the
assessment had been changed without a reason recorded. The employee, consistent with
the obligation in the Code of Conduct, came forward, anonymously, with information
regarding an apparent conflict of interest. Peter Gamble, one of three managers in that
office, was the first one apprised of that information. He reported to the Director who, in
turn, advised V olkes of a possible violation of the Code. V oIkes directed Gamble to
conduct an investigation, including a history of the property to determine who had
authorized the change.
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The OASYS documentation was entered into evidence. It was clear that the grievor had
decreased the assessment ofthc property at 15 Craig Street shown as owned by K.G.
from $133,000 to $126,000. The "authorization" category was shown as "year end
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assessment" ("YEA"). Volkes testified that did not make sense since YEA was used for
an increase, not decrease, in assessed value, Volkes lilrther checked the corporate Iile
and learned that the grievor had recently changed his address to that listed on OASYS
and named K.G. as his common law spouse and dependent. For Volkes, that was a clear
conflict of inlerestunder the Code.
Volkes was concerned as to whether lhere were other such violations and, to that end,
directed Gamble to pull records lor every properly in the Bancroft region owned by a
"Gillick". That search resulted in the unearthing of another OASYS document lor a
property at 61 Vanderwater Road recently purchased by the grievor's ex-wile, That
property had its assessment increased by the grievor li'om $122,000 to $125,000. Again,
the change was initiated in other than a reassessment year. It was also determincd that
thc senior's exemption for approximately 20% of the property had been removed. The
"notebook" section ofthc OASYS rccord indicakd that a senior's unit was vacant and,
hcnce. lhe exempt portion bad been deleted. In effect, the grievor both increased the
assessed value of the property and rcmoved the portion of the property exempt from
laxation. Had the grievor mercly removed the exempt porlion, that would have resulted
in an increase in taxation. of itself, but would not have also increascd the value of the
property. This constituted a second serious contlict of interest.
Furthcr investigation determined that the year the house was built had been changed from
1900 to 1925, and an "cffective year" to 1935. The OASYS software converted that data
to an increase in value. Moreover, when changes are inputted, the software has a "fail
safe" query as to whether the change is for the current assessment or the next
reassessment. There are guidelines for choosing which option. The change to the ex-
wife's property was inputted by the grievor as for the current assessment, even though
that was contrary to the guidelines and should have been left to be stored in the computer
for the next reassessment. Volkes testified that, in such circumstances, the assessor must
be able to defend the decision and there must be absolute certainty with respect to the
new dates.
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Two more instances ofcontravcntions ofthc Code's conllict of interest provisions
emerged. In 1999, the grievor had authorized a decrease in the assessment ofa property
he owned at the time from $127,000.00 to $125.000.00. Hecause of the age of the record,
it was not possible to know why the change was made li'omthe documentation itself,
The reduction was inputted between reassessment years. Volkes testil1ed that, given the
quantum of the decrease. the guidelines would have indicated that there not be a change
in the assessment roll until the next assessment year. The grievor implemented the
change tor eftcct at the year end. In that same year, there was also a reduction in the
assessmentli'om $42,500.00 to $33,000.00 initiated by the grievor lor a property then
owned by his step,mother.
V olkes stated that there was no attempt to extend the investigation back into the years
during which the property assessment process was conducted within the Ministry of
Finance where the grievor had been employed since 1989. After consulting with the IT
department as to an extension of the investigation to all propertics assessed by the grievor
within, tor example, a three year period, Volkes decided that route was not feasible.
Moreover, as V olkes stated in his evidence, there were l(lUr examples of contravention of
the Code's contlict of interest provisions. That was more than suflicient to proceed to the
next step of confronting the grievor with the results of the investigation.
A meeting was arranged in the Trenton oflice for November 6, 2006. Attending were:
Volkes, Petrin, a union steward and the grievor. Volkes' notes of the meeting were
entered into evidence. With respect to the K.G. property, the grievor confirmed that he
had initiated the change in the assessment and his relationship to K,G. as his common law
spouse at the time. His explanation for the change was that the age of the building on the
OASYS record was incorrect. He asserted that he was unaware that this change was a
conflict of interest although he agreed that he had read the Code of Conduct. When
asked of other changes he had made to property in which he had an interest, the grievor
mentioned the 1999 house and that he "may have" made other changes. When his ex-
wife's property was raised, the grievor agreed that he had changed the assessment: his
explanation was that the property was no longer eligible for the senior's exemption and
that had been removed. Asked about his knowledge of that loss of eligibility, the grievor
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stated that his son, who slept in that part of the house when he stayed there, had told him.
The grievor acknowledged that area was not part of his normal duties. As to the step-
mother's property, the grievor acknowledged thc relationship hut initially "couldn't
rcmcmber" making the change, although he might have done so. The grievor then
volunteered that his "lllther had bcen complaining about the garage and the foundation 01'
something, so rthe gricvor] adjusted it". Volkcs then returned to the gricvor's property in
1999: the grievor said he couldn't "deny" making thc changc. The grievor's response to
a question as to why he changcd the four assessments is uscfully set out:
"I gucss I come from the old school. When I see somcthing wrong I change it. I was thc
only assessor in that office and I did everything in the County".
To which Volkes rcplied:
"I went to that same school and [kncw that if it's yours and it's wrong, you don't change
it yoursel[ Why didn't you go through normal channels, 01' tcll yonr manager."
The grievor gave no answer. Of note is that the explanation as to being the only assessor
in the ortiee was not applicable to the ehangcs in 2006, The meeting eoncludcd with the
grievor's suspension without pay until further notice.
V olkes stated that his role thcrcafter was to present the results of the investigation and the
interview with the grievor to various higher officials within MPAC, including the
President. Apart from the four instances of serious conflict with the Code, other factors
were troubling. First, the grievor exhibited no remorse for his actions. Second, the
changes to the properties of his ex-wife and of his common law spouse were "targeted" in
that thc grievor's regular duties did not encompass the residential area, Third, the grievor
used improper access to information about the senior's exemption in that MPAC
employees arc restricted to public sources. Knowledge of the sale and the loss of the
cxemption would come to MPAC in the normal course. Volkes testified that the
discussions, amongst those various officials, including himself and Petrin as the grievor's
supervisor, as to the appropriate response were lengthy. The concerns about integrity,
trust and the public scrutiny to which MPAC was subjected were raised. The grievor's
length of service, work record and absencc of prior discipline were considered although it
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was felt that such a long service employee should "have known better". The decision
was that the employmcnt relationship had bcen permanently broken and the gricvor
should be terminated.
In his evidence. Volkes stated that any of the lilliI' breaches of the conflict of interest
provisions would have warranted termination. Prior to the hearing, the grievor had not
raised, as an excuse. his contentious separation and divorce but V olkes indicatcd that
would not have mitigated the seriousness of the misconduct. According to Volkes,
employees in such circumstances could avail themselves of the counselling through the
employer funded EAP program but could not use their position to retaliate.
The termination meeting was held on November 17,2006. Present again were Volkes,
Petrin, a union steward and the grievor. The termination letter. dated November 16,2006
and over Petrin's signature, was presented. The letter detailed the results of the
investigation and the interview and need not be set out. The only matter of note at that
meeting was the grievor's query, with respect to the 1999 changes, "are you ofthe
opinion that I made those changes" and Volkes' response: "that's what our records
indicated".
In cross-examination ofVolkes, several points were elarified. Various codes indicatcd
the reason for a change in assessment. For example, the supplementary roll, retlecting a
significant change to the property, would be indicated as "SUP". An omission roll, as its
name suggests, also looks backward in time as retlective of something being missed in
the original assessment or the initial assessment itself occurring some time after a house
was built; its code is "GMT". As previously mentioned, year end changes are to take
place at that year end, before the next reassessment, and arc coded as "YEA".
Also dealt with in cross-examination was the alleged discriminatory treatment of the
grievor in that other named employees had committed serious breaches of the contlict of
interest provisions but were not disciplined or received lesser discipline. Ultimately, the
union quite properly did not rely on those allegations and, thus, this evidencc is not
recounted. Those allegations are separatc from the grievor's citation of ostensiblc
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wrongdoing by others. That testimony of the grievor is relevant to the issue before me of
the appropriate penalty to be imposed.
Gamble evidencc in dircct and, as well, in reply is brielly recounted and docs not repeat
his part in the investigation as already covered earlier. Gmnble was involved in
rcsponding to a complaint by the gricvor's ex-wile that the grievor had reasscssed her
property. Inccd not deal with that tcstimony other than to note that it appeared there
wcre grounds Illr the scnior's exemption but that she was advised that an application lor
the cxemption and the appropriate affidavit would have to be submitted. In his reply
cvidenee, Gamble stated that he had investigated the grievor's assertion that, in 1999, he
[the grievorJ had only made changes to his property's assessment as part of a macro
review of a subdivision. The records indicated that the subdivision consisted of thirty-six
properties. In 1999, the valuation had changed for six of the properties, Five increased
in value lor various reasons, as evinced in the coding; only the value of the grievor's
property decreased.
I now turn to the grievor's evidence, Some points were not controversial. The grievor, at
the time of his tcrmination, was a Valuation Analyst in the Trenton office. His area of
responsibility comprised small commercial and industrial properties. The grievor carried
out his duties with minimal supervision; he had open access to OASYS and, in the past,
had similar access to the earlier data storage systems. Following his graduation from
Collegc, the grievor had joined the Property Assessment Department of the Ministry of
Finance in 1989 and, thereafter, had remained as an employee of OP AC and MP AC.
Given my conclusions regarding the grievor's credibility, I do not intend to recount his
testimony in full. Rather, the focus is on salient points in his evidence and examples
grounding my determination that he was an unsatisfactory witness, Overall, the grievor's
answers were evasive, non-responsive and contradictory. Another recurrent theme was
his attempt to justify his actions and point the finger at others whom he suggested were
culpable as well but had not been disciplined. I address the consequences of my view of
the grievor's credibility later in this decision. Nonetheless, the flavour of his testimony
cannot be conveyed in one or two paragraphs.
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For a time, the grievor worked out of the Bancroft oflice. The gricvor asserted that two
of the assessors, D.II. and C.O., were responsible for areas in which they and/or relatives
lived and carried out those assessments. After a stint in the Newmarket office. the
grievor returned to the Bancroft area in 1992 or 1993, as one of four assessors. While
there was no manager on site in the Bancroft office. the manager who worked out of
Trenton would visit everyone or two weeks. The grievor testilied that he was advised to
treat his own property like everyone else's, although he admiUed that he was never
directly told to assess his own property. He added that, ifhe huilt a new house, he would
delinitely have another employee conduct the assessment. With respect to the 1999
rcassessmcnt of his own property, the grievor repeatedly sought to characterize the
exercise as a broader multiple regression analysis where he was involved on a macro
hasis in assessing homogenous neighbourhoods. The issue was cast as one of "data
integrity" and "site variables", although he had no specific recollection as to the reason
his property assessment had changed. With respect to his step-mother's property, he
explained the reduced assessment as correcting the data to reflect the condition of the
property and that, on reflection, his response to Volkes about the garage was incorrect.
In 2004, the grievor moved to the Trenton office, responsible for evaluating commercial
properties, such as, nursing homes, campgrounds and housekeeping cottages, in a large
geographic area in eastern Ontario. He was the only such analyst in the Trenton office of
the six or seven assessors. The grievor stated that there was no manager directly
overseeing his work and that sharing of information amongst colleagues was very
common, However, he testified that, on one occasion when he passed on information to
an assessor, D.S., in the residential section, she refused to act on that to implement the
necessary change. The grievor stated that he then relayed that information to a superior
and had to do likewise on another occasion as well. That experience seemed to be the
context for his decisioll to change the assessment to K,G. 's property himself. The grievor
testified that, while renovating the bathroom, a board with a date was revealed. He
checked the OASYS record which showed a more recent date and, relying on the date 011
the board, altered the year the house was built, which resulted in a reduced value. The
grievor did admit that he should have had K.G., as the owner, seek clarification as to the
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date in the computer data system. I [e conceded that. at the time. he was aware of the
conflict of interest policy; he regretted his mistake and acted hastily in not having K.G.
initiate the query.
The grievor also testilied as to the change in his ex-wilc's property assessment. As of
October 200S. the grievor and his wife had separated; the separation agreement was
signed in September 2006. He stated that process was acrimonious and emotional. [n his
words. he was close to a "nervous breakdown". For support, he turncd to his fi'iends at
work and the EAr program. He learned of his ex-wi fe's interest in a property listed tor
sale from the tanner wilc of the man who became the common law spouse of his ex-wife.
From the real estatc agent listing the property, the grievor learned that the current owners
had moved out and negotiations tor a sale were ongoing. The grievor testitied that the
listing notcd a self-contained apartment; he conlirmed from OASYS that there was a
senior's exemption. As that exemption was attached to an individual, not the property.
the grievor removed the exemption before the property was formally sold. lIe stated that,
at the time, he did not know of anyone in the ofliee having responsibility lor checking the
scnior's exemption and, thus, did it himself since he knew the property was vacant and
there was a strong possibility it would be sold. The grievor also relied on the listing to
revise the age of the property It'om that recorded in OASYS; he regarded the listing as
more accurate. Given his prior cxperience with D.S., he again decided to initiate the
change himself.
The grievor summarized the reasons for his conduct thus:
"It was done in good faith. [feel a fellow employee would do the same. I feel I was not
acting in bad faith. I feel I was not corrupting the data".
[n his view, the changes were accurate and, thus, were justified. He later added:
"I felt I did the right thing by removing the excmption. I wish I'd closed my eyes to it.
Making something right has not done me justice. In the future, [ would definitely repOll
to the appropriate manager at best and maybe not do anything at all - keep my head
down".
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Thc gricvor agrccd that hc had signcd documcnts contirming rcccipt ofthc OI'AC and
thcn thc MI' AC Codcs of Conduct and acknowlcdging thc importancc of rcading thc
Codcs and bcing infol'lncd of their contents, Noncthclcss, he tcstilicd that hc now had a
good undcrstanding ofthc conflict ofintcrcst policy and would abidc by its provisions if
rcinstatcd.
Thc gricvor's cross-cxHlnination was vigorous and Icngthy. I alll hcrcin only noting
ccrtain fcaturcs of that qucstioning that touch on issucs of crcdibility, admission of
wrongdoing and rchabilitative potential. The grievor acknowledged that the MI'AC
opcrations were subject to public scrutiny and that asscssments had to bc conducted in a
ncutral, above-board manncr. He conceded that the Code prohibited confl icts of interest,
including thc appcarance of conflicts. The gricvor rcpeated his allegation that C.O. had
carried out his own assessmcnt but that he [the grievor] had not reported that to anyone.
He reiterated his testimony that, in 1999, he was collecting data on homogencous
ncighbourhoods but, then, agrced that process would not involve changing property
values in thc OASYS data bank, With respcct to inputting data, the grievor stated that, if
thcre was an crror, it was in the taxpaycrs' best interests to update the information, The
changcs to his own property in 1999 were couched as treating that property in the same
fashion as othcrs in the homogcneous neighbourhood. As to the absencc of a manager
permanently on-site in the Bancroft office, the grievor conceded that the individual could
be contacted by telephone or e-mail between visits and that the application of the Code
did not turn on the presence of a manager. However, he reiterated his assertion that he
was acting in good faith in 1999. Management was aware that he was conducting macro
data work and, thus, that he was changing his own assessment, although the grievor also
admitted that he was never told that he could do that. He finally acknowledged that the
reduccd assessment for his property in 1999 was specific to that propeliy, not to a change
across the neighbourhood, and that he exercised his discretion to give himself the benefit
ofthe lower reassessment sooner rather than later in coding the effective date of the
change. The grievor admitted that the request for reconsideration was the proper route to
have followed and that, had he done so, the Code would have precluded his involvement
in any such reconsideration.
15
As to his step-mother's property, the grievor eonlinued to assert that reassessment in
1999 was a malleI' of "data integrity". I Ie agreed that the reason proffered at the Volkes
interview was connected to a garage and his filther's urging him to change the
assessment. At the hearing, the grievor advised that was an error; the issue of the garage
arose later. At this point, he could not recollect the reason for the reassessment, although
he conceded the change was not related to a macro group of properties. The grievor
asserted that the step-mother was merely an indirectltullily member outside the scope of
the conllict of interest provisions, He stated that he made the change in the performance
of his duties and not to benefit her. According to the grievor, his step-mother had not
sought the reassessment and, hence, the request for reconsideration process was not
applicable. The grievOl' had simply initiatcd the reduction himself to retlectthe condition
of the property in the context of a reviewal' a sale. The grievor said: "I chose not to close
my eyes to the errors in the data". More broadly, he indicated that, where a property was
owned by himself or another relative, an assessment of a newly built house created a
eontlict of interest whereas reassessing an existing structure did not.
With reference to K.G., the grievor admitted he had fillsely added her as his common law
spouse and dependent on the employer's benefit plan even though they were just dating at
the time, in part, as he was adamant that his ex-wife not be returned as a dependent. He
conceded that K,G, was not entitled to benefit coverage and that his ex-wife had been
deletcd as a dependent months earlier. As to K.G. 's property, the grievor agreed that the
changes he initiated - the lower value and the age of the home - were to be effective
immediately. The reason for his actions was to help his new girlfriend: he admitted he
knew it was wrong but said he did not realize the employer's response would be so
severe. Yet he also testified that he "did not feel that he was corrupting the system" and
did not carry out the reassessment to benefit K,G" although "obviously" she would
benefit. The grievor once more concurred that the proper route was a request for
reconsideration and, if that was done, he could not have been involved. He recognized
that his actions were in error but repeated that his intent was not favouritism but accuracy
of the data. With respect to the other assessor's alleged refusal to deal with a
reassessment as a reason to initiate the change himself, the grievor acknowledged that, in
16
that instance, he had taken the issue to a higher level but did not do so in this case. The
grievor stood by his reliance on a marked date on a board in renovating thc bathroom as a
sufficient basis to altcr the OASYS data; it was laziness or workload that likely motivated
his dccision not to enter the reason for the change on the notepad section of the database
cntry.
Ncxt wcrc qucstions about his ex-wi fe's property. The grievor testified that, after
twcnty-thrce years of marriage, his wife's decision to leave him came as a surprise.
Negotiations for a separation agrcement were acrimonious. The separation agreement
was signed in roughly the same time frame as he initiated the changes to his ex-wife's
property. The grievor, at one point, stated that timing was coincidental, even though he
then agreed that he already knew of his ex-wife's interest in the property. He contacted
the rcal estate agent to obtain the listing and looked up the property on OASYS, It did
"not occur" to him that he would be in trouble if the employer lcarned of his conduct.
For the grievor, it was a sufficient basis to remove the senior's exemption that he knew
the sellers had vacated the property. He added that the "changes would have been made
anyway"; in cffect, he was just specding up the proccss. On the other hand, the grievor
asserted in his defence that there was not a" 100% guarantee that she would be the
owner"; hc did not ask the agent who was interested in the property, nor did the agent tell
him. He knew his ex-wife was looking at a number of properties and, in any event, an
assessmcnt on the particular propel1y which she did purchase had not been done for a
long time, The grievor explained that he had referred to his son as the source of his
knowledge in justifying the loss of the exemption in the Volkes interview because his
son's communication had confirmed the grievor's prior knowledge that the property was
vacant. The grievor also admitted that he had relied on the age of the house in the listing
rather than that recorded in OASYS, without any further investigation, In the grievor's
view, there was no conflict with the Code since, at the time he initiated the changes, his
ex-wife was not the actual owner. Employer counsel again pointed out that the grievor's
interest in the property was only triggered when he learned his ex-wife might become the
owner; in response, the grievor agreed that he knew she might become the owner in the
future. In summary, despite the fact that his duties did not encompass the residential
17
sector, the grievor agrced that he changcd the asscssmcnt through altcring thc agc of thc
housc and lining the scnior's cxcmption, and excrcised his discrction to makes thosc
changes effective at ycar cnd rathcr than the ncxt schcdulcd asscssmcnt period.
At thc cnd of the cross,cxamination, the grievor tcstificd that he "was not proud of what
happencd" and he telt remorseful about his actions but that his intcrest was lor thc
taxpaycrs and MPAC. Whcn it was put to him that Gamble would testify that, in 1999,
the grievor's property was the only one of thosc in the subdivision where the asscssment
was rcduced, thc grievor rcaffirmed his explanation that the changes were a malleI' of
"data integrity".
SUBMISSIONS
Thc submissions of counsel are set out in highly abbreviated Ii.mn.
Employer counsel emphasized that the grievor held a position of trust with access to the
MI'AC data basc without supervision. For the employer, as reflccted in the Code of
Conduct, integrity was a core value. Counsel also stressed the public scrutiny to which
the employer was subject. The conflict of interest provisions lor MP AC were esscntially
the same as those in lorce under 01' AC and the Ministry of Financc; in that regard, the
relevant provisions of the Code were addrcsscd. Counsel revicwed the cvidence in some
detail in support of his position that the grievor had committed four serious breaches of
the contlict of interest policy and, thus, had committed a "capital offence" lor which
termination was the appropriate response. The breaches were deliberate and targeted.
Counsel also pointed to thc evidence which emerged at the hearing that the grievor had
falsely listed K.G, as his common law spouse which improperly entitled her to benefit
coverage. It was contended that the grievor lacked credibility and the mitigating factors
referred to by the union were not sufficient to warrantrcinstatement. Moreover, the
grievor was not forthright about his actions in the interview with V olkes and continued to
offer justifications for his conduct at the hearing. Finally, counsel reviewed the case law
noted below as supportive of his submission that the grievance be dismissed.
18
Cases cited: Province of Manitoba (19'>4),44 L.A.C. (4Ih) 82 (Freedman); AUT Ltd.
(1995),52 L.A.C. (4Ih) 415 (Sims); Treaslll'Y Board (Revenue Canada - Customs and
Excisg} (1994),35 C.L.A.S. 574 (Turner); Ontario (Ministry of Transportation) (2004),
75 C.L.A.S. 398 (1IaITis); City of 13urnaby (200 1).97 LAC. (4Ih) 415 (Moore);
Schneider Foods (2004), 128 L.A.C. (4'h) 381 (Levinson); Pacilic Newspaper GrOlm Inc.
(2005), 137 LAC. (4Ih) 12 (McDonald).
Union counsel candidly acknowledged that the employer had cause for discipline. But, it
was contended that the salient question was whether a form of discipline less than
termination would satisfy the concept of general deterrence but return the grievor to the
workplace without risking a repeat of the misconduct. Counsel strcssed the gricvor's
eighteen years ofscrvice and that the grievor had worked for MPAC and its predeccssors
for his cntire cmeer. With respect to crcdibility, counsel asked that there be careful focus
on the precise questions to which the grievor had responded and, with regard to thc
incidents in 1999, that weight he given to the effcct of the passagc of time on the
gricvor's rceollections and the "old school" context in which he opcratcd. It was argucd
that the changes implemented by the gricvor in 2006 werc accurate and, while the process
was important, there was no attempt to corrupt the data. There was also no evidence that
the grievor derived a significant benefit tl'lJlll the changes. Counsel submittcd that the
alteration of the ex-wi fe's assessment was an error injudgmcnt but consideration must be
given to the grievor's state of mind and his involvement in an acrimonious separation,
Thc grievor used his own access code to initiatc the changes; thus, there was no attempt
to disguisc his conduct. Counsel argued that the grievor now recognized that his actions
were improper and that the gricvor could be trusted to comply with the conflict of interest
provisions in the future. It was contended that the concept of progressive discipline was
fundamental and, applicd in this casc, would warrant reinstatement, especially since the
grievor would have suffered a significant financial penalty through his absence from
work. Counsel noted that the allegation of a discriminatory penalty was not being
pursued. Finally, counsel rcferred to a number of cases in support of his basic position
that the grievor should be reinstated with his accrued seniority and subject to whatever
lesser penalty was considered appropriate.
r
I
19
Cases refcrred to: Phillips Cables Ltd. (1974),6 LAC. (2d) 35 (Adams); Cooney
Ilaulagc (1987),28 LAC. (3d) 97 (MacDowell); Canada Safewav Ltd. (1997),61
LAC, (4'h) I (Larson); Infernational Forest Products Ltd. (1997),66 LAC. (4'h) 431
(Korbin); Citv of Toronto (2002), 107 L.A.C. (4'h) 144 (Davie); AUF Industries Ltd.
(1998), 75 L.A.C. (4'h) 336 (Ilcrlieh); Farwest Transit Services Inc. (2003),123 L.A.C.
(4'h) 413 (McEwen).
In reply, employcr counsel argued that any asscrtion by the grievor that he couldn't recall
the cvents in 1999 should not be accepted, given the seriousness of the contraventions of
the contlict of interest policy involved. It was emphasized that, evcn at the hearing, the
gricvor dcmonstratcd that he had not intel'llalized thc significance of his misconduct and
exhibitcd no realrcmorse. In its deliberations, the employer had thoroughly discussed
the circumstanccs and the appropriate conscquence of the grievor's actions. Counsel did
not rcject the concept of progressive disciplinc but submittcd that, in these circumstanccs,
tcrmination should bc upheld. Lastly, counsel commented upon those cases to which
union counsel rctcrred.
DECISION
The jurisprudence cited has bccn carefully revicwed. As both counsel noted, the issue
beforc me is the quantum of discipline, as the union conccded that misconduct did occur.
Ncvertheless, bcfore assessing the impact of the mitigating factors referred to by union
counsel, it is essential to characterize thc conduct engaged in by the grievor and to assess
the seriousncss of the conflict of interest brcaches, A lengthy analysis of the cases is
unnccessary, although there is comment on the jurispmdence as appropriate.
At this juncture, it is helpful to refer to the relevant provisions of the current Code of
Conduct, including those regarding conflicts of intcrcst. It was not disputed by the
parties that thc earlier incal'llations of the Codc, under the Ministry of Financc and, then,
the OJ> AC, differed littlc from the current vcrsion. Accordingly, these prior provisions
nced not be rccounted as well.
20
Introduction to the Code of Conduct
This Code of Conduct is a guidc for evcry MP AC cmployce in applying legal and elhical
practices to their everyday work. The Code describes not only our standards of integrity,
but also some of the specilie principles and areas of the law that arc most likcly to alTect
us, Compliance with the law, as well as honesty and integrity in our dcalings with others
arc not to bc sacrificed in the name of speed or ertieieney.
Delinitions
Integrity by delinitionmeans: "linn adhercnce to a code of moral or cthical valucs,"
This document will state very clearly the moral and ethical values to which this
Corporation will adhere. Our collcctive responsibilities to our clients, customers,
suppliers and to taxpayers make it imperative that we stipulatc very clearly what is
expected, and what is eonsidercd intolerable, for all employees during the course of their
employment with MPAC.
This Code of Conduct is intended to:
I. Delinc desired bchaviour for employces.
2. Provide coherent and consistent rulcs and discipline.
3. Provide advice on ethical issues.
4. Indicate the standards adhcred to.
Emplovees as Property Owners
We apprcciate that as property owners, MPAC employccs may at times fccl that they
have bcen untilirly asscsscd and wish to tile an appeal. This is a fundamcntal right of
citizens and we have no desire to remove or encumber that right from any employee.
However, as the Corporation responsible for property assessments in Ontario, we must
also ensure that none of our employees exhibits an unfair advantage when availing
themsclves of their right to appeal.
When an MP AC employce files, or intends to file an appeal or Request for
Reconsideration regarding any property in which he/she has an interest, the following
steps must bc taken:
*the employee must inform his/her immediate supervisor of his/her intention to Jile an
appeal or Request for Reconsideration;
*the employee must not discuss the appeal directly with any MP AC staff member;
*the employee must obtain all relevant information through the same procedures as any
other taxpayer or representative;
*MPAC employees may not represent or act as agent for any propcrty owner in an appeal
or Request for Rcconsideration, nor may they provide information to any property owner
that could in any mmmer be perceived as a conflict of interest (i.c. relatives, neighbours,
friends, etc.)
21
ConJ1ict of Intcrcst
As intcgrity is the most significant core valuc of the Corporation, employces must
remove thcmselves from, or avoid placing thcmselves in, positions from which they
would privately benefit. When operating under a contlict of interest, one's independent
judgement is compromised, and the Corporation's integrity is likewise compromised.
We should go even further to ensure that we eliminate even perceived conflicts of
interest.
Definitions
The Municipal Contlict of Interest Act delineates the following relationships as
restrictive: the employee's spouse, same sex partner, parents or children. MrAC
cmployces should also be cognizant of any perceived conflicts of interest that may
involve relatives not listed in the Act, or involving persons with whom the employee has
a close personal or business relationship,
Employees are in a conflict of interest and in violation of this code if they:
*take part in a decision in the course of carrying out their duties knowing that anyone
listed above has a direct or indirect pecuniary interest in the decision; exceptions may be
made in specific cireumstanccs where the employee has identified a potential conflict of
interest and his/her supervisor has authorized in writing, the work to be performed,
Dealings with others:
Employees must disqualify themselves tl'om any exercise of their duties as an employee
of MP AC that involves anyone listed above, that may raise a question as to their
impartiality; these can include but are not limited to:
* assessing residences or businesses
Sanctions
Employees who knowingly violate the Corporation's conflict of interest policies will face
discipline up to and including dismissal.
The Corporation accepts that a conflict of interest could develop of which the employee
was unaware at the time of its occurrence, Employees who inadvertently violate the
conflict of interest provisions of this Code will be subject to discipline befitting the
situation. If an employee comes forward to advise of an inadvelient conflict of interest
his/her action may mitigate any such discipline,
The evidence establishes that the grievor committed four breaches of the conflict of
interest provisions of the Code.
22
In 1999, he reduced the assessment of his own property and that of his step-mother, I do
not accept the gricvor's suggestion that these changes were carried out in the context of
mass appraisals or from a concern for "data integrity". The inescapable conclusion is that
he implemcntcd those changes to atford a benefit to himself and to his step-mother. In
my view, the quantum of the benefit is not relevant in these circumstances. The grievor's
suggestion that his stcp-mother was only an "indirect" rclative and, therefore, a contlict
of interest was not really triggered is not dettmsible.
In 2006, he increased the assessment on his ex-wife's property by altering the age of the
house and, as well, he removed the senior's exemption, thereby triggering a tax increase,
In that same year, he reduced the assessment on the property owned by his purported
common law spouse through altering the age of the home. The first change represented a
vindictive attempt to use his position with MPAC to punish his ex-wife by increasing her
taxes. The second may well have been no more than an attempt to ingratiate himself with
his then girlfriend but whom he declared to MPAC was his common law wife. The
grievor's motives and his conduct in both cases are contrary to his fundamental duty to
his employer. The grievor occupied a position of trust, with unsupervised access to the
computer data base. He abused that trust. Parenthetically, I note that, while the grievor
falsely claimed K.G. as his common law spouse and, thereby, obtained benefit coverage
for her, I need not rely on that particular misconduct in reaching my decision in this
grievance.
The interest of MP AC in promulgating the Code, including the contlict of interest policy,
is manifest. The corporation is subject to public scrutiny, given its critical role in the
assessment of properties throughout the province and, eventually, the calculation of the
municipal taxes paid by property owners. The contlict of interest provisions are clearly
delineated and provided to all employees. The MP AC Code essentially embodies the
contlict of interest policy which was in force under OP AC and when the property
assessment function was conducted within the Ministry of Finance. The provisions,
therefore, are not of recent vintage. This is not an instance where the grievor could
reasonably have been under any illusion that his conduct was sanctioned by MP AC.
23
The deeision in Province of Manitoba, supra, was argucd by employer counsel as e10se to
the instant circumstances and, thus, of considerable assistance. While I accept that
contention, I need not review thc Itlets in that case. I do affirm thc rationale in the
Province of Manitoba decision. Therein, the arbitrator was persuaded that sympathy IlH"
the employee's plight as a result of the termination and his twenty-seven years ofscrvicc
were not outweighed by the deliberate, planned /louting of the conflict of inter cst
standards and breach oftrusl. That this was a second offence proving an inability to Icarn
IhJm prior mistakes is not a feature of the instant gricvance but, in my vicw, that is
insufficient to rejcct the reasoning as inapplicable, given thc lour scparate instanccs of
misconduct engagcd in by the gricvor herein.
I also concur with the principles articulatcd by union counsel in his submissions. As
noted inthc seminal decision in Phillips C.<tblcs, supra, an arbitrator has a hroad remedial
authority to substitutc a lesser pcnalty and, in detcrmining whether to excrcise that
authority, must consider all the circumstances. In the words of Arbitrator Adams at p, 48:
"It must balancc the industrial community's need lor general deterrcnce against an
employce's potential lor rehabilitation...". The analysis in Cooney Haulage, at p. 107,
supra, echo cd a similar thcme in the following excerpt.
"There must be a sensible balance between the employer's legitimate intcrest in the
cfficient operation of his business, and the employee's equally legitimate interest in a
continued livelihood with a degree of job security. The real question is: where to strike
the balance'?"
In the alore-mentioned case, Arbitrator MacDowell responded to that query by outlining
the concept of progressive discipline in the passage next recounted, also on p. 107.
"In answcring that question, most arbitrators take thc view that an important purposc of
discipline (short of discharge) is to ensure compliance with established norms of
behaviour, and thus, typically requires 'progressive' discipline, or a 'corrective approach'
to employee misbehaviour. This means that by increasing the severity of the discipline
imposed for persistent misconduct, it is expected that an employee will be given an
inducement to mend his ways; moreover, he will clearly be put on notice that if he does
not do so, he will risk inercasing sanctions, culminating eventually in his termination.
Most simply put, the principle of corrective discipline requires that management withhold
the ultimate penalty of discharge from errant employees, until it has been clearly
24
established that the employee is not likely to rcspond tllVourably to some Icsser penalty.
Discharge is the ultimate sanction (somctimes colloquially dcscribed as 'industrial capital
punishment') which should not be imposcd unless clearly warranted."
Union counsel also cited several decisions whieh rellect the particular facts thercin but, in
my opinion, arc not applicable in this gricvancc. Innonc ofthc t<JUr brcaches could it be
said that the gricvor genuincly fclt hc had a right to make thc changcs hc did, unlike the
situation in Canada Safeway, supra. The MP AC connict of intcrest provisions are clear;
thcre could bc no confusion. With refcrcnce to thc dclay bctwccn thc incidcnts in 1999 to
2006 and the grievor's ability to rccall those evcnts, I do not acccpt that this is akin to thc
facts in AGF, supra. The gricvor in that casc could not havc becn expcctcd to recall,
months later, whcther hc "brokc good glass" on spccitic datcs when his normal job dutics
werc to brcak "bad glass". The evcnts at issue hercin- changing thc assessmcnt on onc's
own propcrty and on that of a relative - would, in all probability, be rcmembercd. It is
not as though these were duties typically carricd out by the gricvor: there were only two
such cvents. I return to the grievor's attempts to justify that conduct later. In contrast to
Farwest Transit, supra, MPAC officials acted promptly when alcrted to the possibility of
a breach of the Code in conducting an invcstigation and in intcrvicwing the gricvor. The
decision in City of Toronto, supra, is also readily distinguishable in that thc individual
thcrcin did not hold a position ofresponsibility which would involve her in the
determination of eligibility for welfare. The grievor here has unsupervised access to the
OASYS data bank and is responsible for conducting and inputting property assessments;
his breaches of the conflict of interest provisions directly engaged his usual area of
responsibility.
On the othcr hand, I do not disagree that there are some mitigating factors in this case.
The grievor has some nineteen years of service and, to date, has an otherwise
unblemished work record, There is no doubt that the grievor's acrimonious separation
occasioned some cmotional turmoil and stress, as would be expected, Howevcr, I am not
persuaded that his judgement was impaired to the extent that he did not understand that
what he was doing in respect of his ex-wife's property was wrong. There was no medical
evidencc to substantiate such a conclusion: see also, Treasury Board, supra at pal'. 120
25
and Provincc of Manitoba, supra, at p. 91. Nor, givcn thc sequcncc of cvents, was this a
singlc, spur oCthc momcnt act. Thc gricvor Icarncd of his cx-wife's intcrcst in thc
property. Ilc lookcd at the listing and thcn thc OASYS data basc to determinc that thcre
was a scnior's excmption on the property and the agc of the building. Relying on the age
rcflcctcd inthc listing, he changcd the data in the computer without furthcr investigation.
Ilc also rcmovcd the cxcmption, knowing that both revisions would increasc thc taxes,
and cvcn though thc property had not yct bcen sold which, by the way, left opcn the
possibility that the currcnt owncrs would rcturn and that thc cxcmption could continuc.
In short, he targctcd this propcrty in ordcr to punish his cx-wife.
It is also not rcasonablc to minimize his sccond contlict of interest in changing K.G. 's
assessment as an cxtcnsion of his "clouded judgemcnt" in this timc pcriod. It is my view
that his actions in that rcgard werc dclibcratc and an cffort to ingratiate himself with this
woman. That is a calculated, self,scrving effort, not the act of an individuai unablc to
apprcciate right ti'OIl1 wrong. And, it must be rcmembercd that the strcssful situation in
2006 on which thc grievor relics to mitigatc his misconduct did not cxist in 1999 when
the gricvor also implemented two reassessments which contravcncd the conflict of
intcrcst provisions, as notcd above.
That said, union counsel is correct that the cssential question for me to answer is whether
I should exercise my authority to substitute a lesser form of discipline. Union counsel
contcnded that the cmployer's Icgitimate interest in general dctcrrence could be satisfied
with the grievor's reinstatement subject to a significant suspension. He asserted that the
grievor was rcmorseful and, thus, exhibited rehabilitate potential. In support, union
counsel submitted that, like the employee in International Forest Products, supra, the
grievor "now possesses an acute understanding of the seriousness of his misconduct". (at
p.447) Nonetheless, the forccful argumcnts of union counsel in support of the grievor's
reinstatement were repeatedly undermined by the grievor's own testimony and it is to that
I next turn.
One relevant factor is the grievor's lack of credibility in giving his evidence in this
hearing. His testimony was fraught with contradictions, as is patently obvious in the
26
recitation of his evidence set out earlier. His answers, particularly in cross-examination,
were otlennon-responsive and evasive. Examples have been recounted and need not be
reiterated at this juncture at length; a few instances will suffice. The grievor stated that,
had he built a new house, it would have been proper to have a colleague conduct the
assessment and, for him to do so would have been a conflict. The grievor could offer no
plausible reason for distinguishing between an initial assessment and a reassessment in
the context of the conflict of interest provisions, That is not surprising since no
distinction is warranted. Likewise, with respect to his step-mother's property, the
suggestion that a request for reconsideration was not an appropriate route, since his step-
mother was not initiating the change, is an outrageous justification for his implementing
the reassessment on his own,
A lack of credibility has been cited by arbitrators in considering whether a grievor should
be reinstated: see, Citv of Burnaby, supra; Schneider Foods, supra; Pacific Newspaper
Group, supra. It is difficult to consider reinstatement when the grievor has been less than
forthright in his evidence.
Furthermore, the contention that the implemented changes in 2006 and 1999 were
"accurate" and, therefore, not culpable, emillot be sustained. First, there is no compelling
evidence that the changes, in fact, were accurate. For the 1999 reassessments, we have
only the grievor's word and, as I have found, that is not reliable. He continued to assert
that the changes to his propeliy were a function of "data integrity" and "macro analysis".
The evidence of Gamble is to the contrary: of the thitiy-six properties in the subdivision,
only six had the valuation changed and the grievor's property alone saw a reduction. For
2006, the alteration of the age of the homes - to benefit K.G, and to adversely affect his
ex-wife - was grounded in unreliable indicators. In the former instance, a handwritten
date on a board in the bathroom was relied upon but can hardly be regarded as a
compelling source of information. In the latter case, the listing date was accepted as
accurate without further investigation despite the OASYS record to the contrary.
Second, and of greater weight, is the incontrovertible fact that the conflict of interest
provisions preclude an individual implementing such reassessments even if accurate. The
27
inlol'lnation is to be passed on to an appropriate assessor or manager. To do otherwise is
to create a perccived conflict of interest: to an objective viewer, the involvement of an
employee in changing data tor properties in which he/she has an interest or in which a
relative has an interest undermines MPAC's reputation tor impartiality, a core value of
the corporation,
In his testimony, the grievor stated that he now had a good understanding of the conflict
of interest policy and would abide by it if reinstated. lIe also added that "he was not
proud of what happened" and felt remorseful about his actions. Union counsel points to
this as evidence of remorse and rehabilitative potential. Remorse, sincerely felt, has often
bcen considered a mitigating factor. What is essential is not the mouthing of the
appropriate words but the sincerity of their utterance. In the instant case, the grievor's
ostensible remorse is but an illusion. His comments about feeling "remorseful" were
immediately qualified by his assertion that his interest tllloughuut was for the "taxpayers
and MPAC". That qualification demonstrates a complete lack of understanding ufhis
obligation to MPAC to abide by the Code of Conduct, including the conflict of interest
provisions, in carrying out his duties.
A concept intimately related to remorse is the acceptance of responsibility for one's
actions. In this regard, the grievor's testimony is replete with attempts to avoid such
responsibility and to excuse his misconduct. He initially asserted that the changes in
1999 were implcmented with the knowledge of and under the instructions of managers.
With further questioning, he was forced to concede that there were no such directions
from managemcnt. The grievor, as well, suggested the absence of a permanent on-site
manager in the Bancroft office somehow excused his misconduct but, again, ultimately
had to acknowledge that the manager visited every week or two and, in the interim, could
be reached by telephone or e-mail to answer queries as to the appropriate action. The
grievOl' offered as an excuse that other employees acted contrary to the conflict of interest
policy. There is no evidence of that beyond the grievor's bald assertion and, in any
event, the grievor failed to report such infractions so that management could act. In the
interview with Volkes, the grievor indicated that his behaviour was consistent with the
"old school" way of doing things and, thus, understandable and excusable. Volkes'
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rcsponse was a dcl1nitive rcpudiation of that conccpt as hc, too, came fl'Om that "old
school" and knew ifthcre was an error in onc's own propcrty, one would go through
normal channcls and would not implcment the correction oneself. Nonctheless, in the
hearing, the grievor e1ung to the proposition that it was acceptable to correct an error
himself: notwithstanding a conflict ofintcrest. Finally, on this aspcct, the grievor
tcstil1cd that his ostcnsible past experience with a fellow assessor responsible for
residential properties wherein she refused to correct an error, justil1ed his implementation
of the reassessments to the property of K.G. and of his ex-wife. He could not adequately
respond to the f(lCt that his response to the earlier refusal, even if that is assumed true,
was to advise a superior of the situation but he did not do likewise in 2006 with respect to
those two properties.
Most telling, and worth repeating, were several statements by the grievor which
emphatically negate any argumcnt for rehabilitative potential. In summarizing the
reasons lor his conduct, the grievor testified as follows.
f
"[lIt was done in good faith. I feel a fellow employee would do the same.
acting in bad lilith. I feel I was not corrupting the data,"
I felt I was not
"I fclt I did the right thing by removing the exemption. I wish I'd closed my eyes to it.
Making somcthing right has not done me justice. In the future, I would del1nitcly report
to the appropriate manager at best and maybe not do anything at all - keep my head
down."
That summation betrays a basic misperception of his obligation to MP AC. The
corporation is not suggesting that errors be overlooked - what is required is that the
employce follow normal channels and avoid actual and perceived conflicts of interest.
Moreover, the grievor still regards himself as a victim; he has not been done '~ustice".
That attitude is cntirely inconsistent with a recognition of the "error of his ways", to use a
colloquial phrase. A similar finding in AGT, supra, satisfied the arbitrator that, in the
absence of remorse, reinstatement was inappropriate; the reasoning therein is apposite in
the instant case.
In conclusion, the grievor has committed four serious infractions of the Code of Conduct,
specifically, the conflict of interest sections. He implemented reassessments of his own
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property and that of his step-mother in 1999, reducing the values in both cases. In 2006,
he again implemented reassessments of his ex-wife's property, to her detriment, and that
of K.G., to her benefit. Those four incidents constitute a fundamental breach of trust.
There is no acceptable rationale for his conduct; moreover, he continucd to defend his
actions in his testimony. The mitigating factors of a lengthy service and clcan work
record are woefully insufficicnt to outweigh the gravity of the misconduct, particularly in
light of my detcrmination that he was not sincerely remorseful and failed to accept
responsibility tor his actions. In those circumstances, there are no grounds for
concluding that the grievor could be rehabilitated and, if reinstated, would comply with
the requisite obligations. The grievor was terminated for those infractions and that is a
penalty which I am not inclined to reduce.
Accordingly, the grievance is dismissed.
DATED this February 20, 2008
Susan Tacon, Sole Arbitrator