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HomeMy WebLinkAbout2021-2583.Nason.24-06-12 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-2583 UNION# 2021-0737-0012 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Nason) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Farnaz Talebpour Rebecca Jones (May 24, 2023 onwards) Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARINGS March 4, October 11, November 23, 28, 30, December 21, 2022, May 24, June 14, 16, and September 6, 2023 -2 - Decision [1] In his grievance dated November 18, 2021, Mr. J. Nason challenged the Employer’s decision to terminate his employment. At the time of his discharge Mr. Nason was a Correctional Officer (“CO”) at the Thunder Bay Jail (“TBJ”), a maximum security institution. The Union took the position that the discharge of Mr. Nason was without just cause. [2] The incidents which led to Mr. Nason’s discharge took place on October 15, 2021, when he was involved in escorting inmate AP at the TBJ. As set out in her discharge letter dated November 12, 2021, Ms. A. Pace, Superintendent, concluded that the following allegations against Mr. Nason had been substantiated: 1. On Friday October 15, 2021 you used a non-Ministry approved technique to bring an inmate to the floor, in the main entrance hallway of the Thunder Bay Jail. 2. On Friday October 15, 2021 you used force that was unnecessary and excessive when you struck an inmate in the face with a closed fist, in the day area of block 1. 3. On Friday October 15, 2021 you were not wearing Ministry approved PPE, specifically, surgical face mask when escorting an offender. After Ms. Pace set out the Ministry policies and procedures which the Employer claimed Mr. Nason had breached, the discharge letter continued as follows: As a Correctional Officer, you are placed in a position with a high degree of trust and you are expected to fulfill your duties with diligence, integrity and honesty. Further, it is expected that you abide by all institution and Ministry policies and procedures, including the Ministry Use of Force Policy. Through your actions on October 15, you violated this Policy when you used the prohibited Carotid Restraint Technique on an inmate, when you struck an inmate with a closed fist, and when you exceeded the amount of force required to control a situation. As a result, you not only showed poor judgement, but you also jeopardized and showed a disregard for the safety and security of the inmate, your co-workers and the institution as a whole. Your responses at the allegation meeting further demonstrate your lack of understanding of the seriousness of your actions and their potential consequences. You failed to acknowledge and take responsibility for your actions, and you instead tried to minimize and justify your actions. Not only could you have been seriously injured or caused death to an inmate through -3 - your actions, but as a result of this serious incident, a fellow Officer sustained a broken arm, which could have potentially been prevented had you used other Ministry approved techniques, which you would have been aware of through your Defensive Tactics Recertification Training. Your actions are completely incompatible with someone in the role of a Correctional and Peace Officer. As a Correctional Officer, you have an obligation at all times to uphold the highest level of professionalism and to insure the care, custody and control of inmates in your charge. You have not upheld your obligations under the legislation or Ministry policies and procedures. As a result, you have compromised your employment relationship and breached the Employer’s significant trust in you and in your ability to perform your role effectively and safely as a Correctional Officer at the Thunder Bay Jail. As such, the employer/employee relationship as suffered irreparable damage. Taking into consideration all of the relevant information and evidence available to me, including your length of service, your employment history and previous discipline record for excessive use of force, your responses at the allegation meeting and the fact that these occurrences are extremely serious in nature, I have concluded that there is just cause for dismissal… [3] Not surprisingly, the Employer concedes that Mr. Nason’s failure to wear a surgical face mask while escorting AP would not by itself have resulted in the termination of his employment. The central focus in this case was on the allegations related to the two instances during the escort when Mr. Nason used physical force on AP. The first use of force took place shortly after leaving the Visits area when Mr. Nason elected to take AP to the floor. The second instance took place when the escort reached the day area of the Behavioural Care Unit (“BCU”) when, as referenced in his Use of Force Occurrence Report (“OR”), Mr. Nason gave AP a closed handed distraction by striking him in the face with the back of his right hand as COs were attempting to gain control of AP while he was on the floor after another takedown. The parties have a very different view of Mr. Nason’s use of force against AP. The Employer’s view is that the force used by Mr. Nason in the two incidents was not necessary and therefore excessive. The Employer also takes the position that the use of force technique that Mr. Nason used in each incident was either prohibited or not authorized and that the use of these techniques also constitutes an excessive use of force. The Union maintains that Mr. Nason’s use of force on AP was necessary and not excessive in the circumstances. The Union also takes the position that the techniques used by Mr. Nason were appropriate techniques to use in the circumstances. [4] The Employer’s first witness was Mr. Robert Houston, Manager, Customized Training, Emergency Response, and Institutional Block Training. He was called as -4 - an expert in the use of force and defensive tactics. The Union initially intended to object to Mr. Houston being called as an expert, but elected not to pursue this objection following the release of a decision which essentially addressed the same issue. In OPSEU (Haist) and Ministry of the Solicitor General (2022), GSB No. 2019-1201, Arbitrator McLean had before him a use of force discharge case in which the Union objected to the Employer calling Mr. Houston as an expert witness. Arbitrator McLean determined that Mr. Houston is an expert in use of force and defensive tactics and allowed him to give opinion evidence on certain matters, including whether the Grievor’s actions had complied with Ministry policy. Arbitrator McLean also determined that he would not hear expert evidence on whether the force used by the Grievor was excessive since this was an issue that he alone must decide. The parties recognized that the same approach would be applied in this proceeding to Mr. Houston’s testimony. Mr. Houston testified about the Ministry’s Use of Force Policy, the training that COs receive on the use of force and defensive tactics, the use of force techniques that are taught during training and whether the force Mr. Nason used against AP complied with Ministry policy. [5] The Employer also called as witnesses Superintendent Pace and Mr. Mark Barstead, a former Deputy Superintendent (“DS”). Following her tenure as DS Administration, Ms. Pace became the Superintendent at the TBJ in July of 2021. She described the process that the Employer used for assessing Mr. Nason’s conduct, including the Local Investigation that was conducted by D.S. Barstead. Once the investigation was completed, Ms. Pace reviewed all of the material before her, consulted with others and made her decision for the reasons reflected in the termination letter. Ms. Pace placed considerable weight on Mr. Barstead’s opinion that Mr. Nason had used excessive force on AP. Mr. Barstead held the position of DS Operations from 2016 until his retirement in early 2022. When he testified, Mr. Barstead was employed as a Special Constable with the Thunder Bay Police Service. The Employer called Mr. Barstead in reply to give evidence on the face mask issue. [6] In addition to Mr. Nason, the Union called COs T. Jay Hook and B. Neimenen. The focus of Mr. Nason’s testimony was on his reasons for using force against AP and the techniques he utilized. COs Hook and Neimenen were involved in the escort of AP back to the BCU and they testified primarily about their role in the escort and what had occurred during the escort. [7] As well as the testimony from witnesses, the parties provided me with materials that are typically tendered as evidence in an excessive use of force case. This evidence consisted of video clips, without audio, and documentary material that included ORs, allegation meeting notes and Ministry policies. In determining the relevant facts in this proceeding, I have carefully considered all of the oral and -5 - documentary material, as well as the submissions of counsel relating thereto. The onus in this case is on the Employer to prove the allegations against Mr. Nason on the balance of probabilities, with clear and cogent evidence. [8] Before turning to a more detailed description of what occurred on October 15, 2021, I will reference some subjects covered by the evidence, including the core duties of a CO, the Ministry’s Use of Force Policy, some aspects of the training COs receive, some features of Mr. Nason’s history at the TBJ and the OTIS profile of AP. [9] The core duties of a CO are the care, custody and control of inmates. As a peace officer, a CO occupies a position of power and public trust. The reality in a correctional facility is that a CO is often confronted with inmates who are uncooperative, unpredictable, verbally and physically abusive. A CO is permitted to use force to control an inmate in appropriate circumstances. The Use of Force Policy provides COs with the principles and guidelines for using force on an inmate. The use of force training given to COs is based on this policy. The following sections of the Use of Force Policy were referenced in this proceeding: 3.0 Policy 3.1 The policy of Correctional Services is to ensure that when dealing with Use of Force on an inmate: 3.1.1 Whenever possible, and given all circumstances, staff should attempt to resolve incidents using verbal intervention skills, such as de-escalation, as well as other peaceful resolution strategies… … 3.1.4 No employee shall use force against an inmate unless force is required in order to enforce discipline and maintain order within the institution; defend the employee or another employee or inmate from assault; control a rebellious or disturbed inmate; or conduct a search… 3.1.5 Force must always be the action of last resort. The amount of force used must only be that amount needed to control a situation. When there is a decision to use force, it must be used in compliance with the law, good judgment, and Ministry policy, procedures and training. 3.1.6 When an employee uses force against an inmate, the amount of force used shall be reasonable and not excessive, having regard to the nature of the threat posed by the inmate and all the other circumstances of the case… 3.1.7 Force is not intended to be, and must never be used as a means of punishment. -6 - 3.1.8 The carotid restraint technique must never be used. 3.1.9 Excessive Use of Force will not be tolerated. Employees found to have applied force in excess of approved methods may be subject to criminal charges and, or appropriate disciplinary penalties, up to and including dismissal. … 4.0 Definitions 4.1 Carotid Restraint Technique: A neck compression applied by the forearm from behind an individual that may result in death or serious injury including strokes, heart attacks and blood clots. This technique must never be used, as well as any other neck restraint techniques designed to interrupt the circulation of blood to the brain. … 4.6 Excessive Use of Force: Any application of physical force by an employee of the Ministry against an inmate that exceeds the necessary amount of force required to control an inmate. Excessive Use of Force is inconsistent with the standards determined by law, good judgment, Ministry policies, procedures and training. It is deemed unreasonable and excessive, having regard to the nature of the threat posed by the inmate and all other circumstances of the case. [10] In essence, COs are permitted to use force on an inmate only when it is necessary to do so. And when necessary, the force used must not exceed the amount of force required to control an inmate. [11] Mr. Houston testified at some length about the defensive tactics and control techniques that COs are taught during their initial training and during mandatory refresher training. The emphasis in training on the use of force is to use the least intrusive amount of force to control a situation. He indicated that the control techniques taught are based on an understanding that COs join the Ministry with different skill levels. COs are required to use the control techniques that are taught by the Ministry since they are considered to be the most desirable from the perspective of inmate safety. Any control technique that a CO uses that is not taught by the Ministry must be specifically set out in an OR. Mr. Houston also testified that COs were taught not to use certain techniques on inmates. He explained that COs were trained not only to not use the carotid restraint technique, but any control technique where force was applied to the head and neck area of an inmate because any force used on these areas is very dangerous. Mr. Houston testified that a takedown is a hard tactic and that he was not familiar with the seat belt technique. He indicated that COs are not taught such a technique for taking down an inmate. He also indicated that COs are taught open handed distraction techniques, which are more akin to a slap and therefore less intrusive, but are -7 - instructed not to strike an inmate with a closed hand, which is more akin to a punch. Mr. Houston explained that striking an inmate with a closed hand is more likely to cause an inmate harm, as opposed to an opened handed distraction strike. [12] Prior to joining the Ministry, Mr. Nason had performed security work for about eleven years. He started as a CO at the TBJ on December 20, 2016, and became a permanent employee soon after the spring of 2019. Mr. Nason received a three- day suspension on June 19, 2019, by letter signed by DS Barstead. Mr. Nason admitted that on March 29, 2019, he used non-Ministry approved techniques and excessive force when he stuck an inmate four times in the head and used his knee to control the inmate’s head while securing his wrists. In that instance he also failed to accurately describe in his OR the techniques he had used on the inmate to secure compliance. Mr. Nason initially believed that he was coming to the aide of an incapacitated co-worker, but later learned that his assumptions about the situation of the co-worker were wrong. The fact that he took full responsibility for his actions was likely the main reason why the Employer did not impose a greater penalty. Mr. Nason did not grieve the three-day suspension. He indicated that what he learned from the experience is that he would have to act more professionally and responsibly, and to give more attention to de-escalation. DS Barstead warned Mr. Nason in the suspension letter that any further incidents of this nature may subject him to further disciplinary action, up to and including dismissal. [13] Mr. Nason was absent from the TBJ for mental health reasons from September 3, 2019, until September 1, 2020. He indicated that he had been diagnosed with PTSD. When he returned to work at the TBJ, Mr. Nason requested and was granted the right to have a beard for religious reasons. Ms. Pace, in her DS role at the time, worked with Mr. Nason in addressing his religious accommodation request. As his beard grew, Mr. Nason found that the Ministry mandated medical face mask did not fit properly and was unsafe. This caused him to request another accommodation in order to wear a different face mask. Since his request to wear a different face mask was not addressed by management as quickly as he would have liked, Mr. Nason began wearing a black cloth mask with filters. He wore this mask at work for about three weeks before the incidents with AP. It would have been obvious to managers during this three week period, including the Deputy Superintendents, that Mr. Nason was not wearing the blue medical mask. Early in the day on October 14, 2021, Mr. Nason had occasion to discuss the mask issue with Mr. Barstead. Mr. Barstead asked him to send him an email explaining why he could not wear the blue medical mask and Mr. Nason complied with this request. Mr. Nason understood from Mr. Barstead that he could continue to wear -8 - the black mask, although Mr. Barstead could not recall this detail. It is at least clear that Mr. Barstead did not direct Mr. Nason to stop wearing the black mask. [14] During the eight week training course provided by the Ministry, Mr. Nason was trained on such subjects as use of force, defensive tactics and de-escalation techniques. The main features that he took away from the Ministry training was that a CO is to avoid physical contact as much as possible and to use force safely in order to avoid harming anyone. Mr. Nason received his last refresher training in April of 2021. His Ministry training did not address the takedown of a handcuffed inmate when escorted by two COs. Mr. Nason also had acquired skills from various sporting and other activities. He competed in wrestling during his high school years. He has trained in Brazilian jiu jitsu, a martial art and contact sport, although he did not compete in this activity. In his sporting and professional life, Mr. Nason has been trained on and has used the carotid restraint technique. As the definition in the Use of Force Policy sets out, this technique applies pressure to the neck and is designed to interrupt the circulation of blood to the brain. Mr. Nason does compete locally and internationally in Strongman competitions, often placing first in his weight category. At a height of 5 feet, 9 inches, and weighing about 200 pounds, Mr. Nason is a strong man and a dedicated, successful athlete. [15] Mr. Nason learned the seat belt technique from his wrestling experience. It is a takedown technique that essentially involves being behind an opponent, placing your right arm over their right shoulder and your left arm under their left arm, with your hands connecting across the opponent’s chest area. Once applying this grip, your knee is used to bend the opponent’s knee and force is applied to pull the opponent down to the floor in a seated and controlled position. Mr. Nason acknowledged that this is not a technique taught by the Ministry. He indicated that he believed from his training that he could use techniques that were not taught as long as an inmate was not harmed. Mr. Nason also acknowledged that he was taught by his Ministry training to avoid the area of an inmate’s neck and head. He indicated that he was told during his initial Ministry training that a closed fist distraction, using the back of your hand without knuckles, could be used on an inmate in the appropriate circumstances. [16] Mr. Nason estimated that he was involved in about 25 to 30 use of force events a year at the TBJ. One of his concerns is that he is often asked by managers to deal with more difficult inmates because other COs on shift are new and less experienced, and therefore less capable of controlling such inmates. Mr. Nason was familiar with AP’s OTIS profile. He knew AP to be volatile, impulsive and short tempered. He also was aware that AP had a history of attacking peace officers. Mr. Nason escorted AP on one occasion a few months before October 15, 2021, without incident. -9 - [17] AP’s OTIS profile indicated that he is 23 years of age, 5 feet, 7 inches, 165 lbs, and an American citizen. He was being detained as an immigration hold at the TBJ by the Canada Border Services Agency (“CBSA”) as of July 2021. Alerts on his profile include references to being in Canada illegally, a charge of assaulting police effective August 5, 2021, the assault of a nurse on September 20, 2021, during a psychiatric assessment, and bizarre/abnormal behaviour regarding his mental health. A memo dated September 9, 2021, to all staff from the Security Sergeant at the TBJ about the special handling of AP reads as follows: Inmate … “AP” … has been returned from the forensic unit after seriously assaulting nursing staff at the Thunder Bay Regional Hospital. This inmate is to be escorted by 2 correctional officers at all times and handcuffed to the front. Staff are to monitor and report any non-compliance and threatening behaviour to the On-Duty SGT; healthcare and to the Security Sergeant immediately via an occurrence report. This will be reviewed with the mental health nurses and senior Management. Please be diligent when dealing with this inmate. [18] This then takes us to the relevant events concerning the escort of AP on October 15, 2021. The evidence about these events came from the video clips and the testimony of Mr. Nason and COs Neimenen and Hook. [19] During the morning of October 15, 2021, AP had attended Court and appeared to believe that some charges would be withdrawn and that his stay at the TBJ might soon come to an end. Later on the same day, Border Security Officers (“BSOs”) were to meet with AP to advise him that new charges would be forthcoming and that his release would not be imminent. It was anticipated by management that AP would not be pleased by this news, would become upset and potentially impose a risk for staff. Mr. Nason’s shift was scheduled to end at 3:00 pm. He was asked to stay on overtime to assist with escorting AP to the meeting with the BSOs. Mr. Nason was aware of the circumstances and, with some reluctance he agreed to work overtime to assist with the escort. From his perspective, this was another example of management asking him to take on an assignment because other available employees were less experienced. Some time after 3:00 p.m., Mr. Nason and Mr. Neimenen went to get AP from his cell in the BCU. Mr. Nason explained why they were there and the COs proceeded to escort AP from his cell to post 8, the Visits area, utilizing the special handling procedure. AP was handcuffed in the front. Nothing unusual occurred during the 20 seconds it took to walk from the BCU to the Visits area. AP was placed in the Visits area, in a cubicle where he spoke to the BSOs using a phone. Mr. Nason could see AP through a small window in a door. Mr. Neimenen also waited outside the Visits area and Mr. Hook happened to be nearby as well. -10 - [20] AP did not take the news of new charges well. He very quickly became upset, was speaking loudly and was banging down with the phone. Mr. Nason indicated that AP stood up, walked towards him while giving him a “death stare”. Mr. Nason thought that AP was going to assault him, but instead AP walked around him. AP wanted to be returned to his cell and Mr. Nason felt it was better for someone in AP’s emotional state to be in their cell. Mr. Nason explained to AP that he would be applying the required C-clamp grip. Mr. Nason then used one of his hands to get a grip on the back of AP’s right arm. AP told him not to touch him. In light of APs request not to touch him, Mr. Nason stated that he applied the C-clamp grip not as tight as usual. COs Hook and Neimenen indicated that at the start of the return escort, AP was resisting the C-clamp grip by making small pulling motions with his arms and was making loud threats against the COs. Mr. Neimenen indicated that the kind of threats made by AP were commonly made by inmates and were a daily occurrence. The COs tried to de-escalate the situation by requesting AP to calm down and to comply with the escort procedure. Mr. Nason indicated that during the early stage of the escort, right after AP told him not to touch him or he would fight him, AP made a sudden and quick movement with his arms which caused Mr. Nason to lose his grip on AP’s arm. [21] There are two video clips that show Mr. Nason’s takedown of AP. The view in one of them is of the escort coming down a relatively narrow hallway towards the viewer. At the end of the narrow hallway there are stairs going up on the left as the hallway widens. In the few seconds it took for the escort to move down the narrow hallway, AP is in front, Mr. Nason is right behind him holding on to the back of AP’s arm, followed by CO Neimenen and CO Hook. They are walking at a relatively slow and steady pace and it is not apparent that AP is moving his arms in a non-compliant manner. There is a CO in the open hallway waiting for the escort to approach a door with the result that there is one CO in front and three behind a handcuffed AP. As AP reaches the end of the narrow part of the hallway he makes a sudden and quick movement with his arms. The movement consists of his handcuffed wrists moving from right to left, in front of his body. With this movement, AP was able to break away from Mr. Nason’s grip. Mr. Nason’s response was immediate. He closed the little distance between himself and AP, grabbed on to AP’s upper right arm with his right hand and brought his left arm over AP’s left shoulder, under his neck and grabbed AP’s jumper at the top of AP’s right collarbone area. With this hold he twisted AP to the left and pulled him down so that AP would not hit the floor on his front. Mr. Nason released the hold before AP hit the floor and indicated that he placed a hand under AP’s head so it would not make contact with the floor as he fell. As AP was on the floor, he initially resisted the efforts of COs Nason, Neimenen and Hook to gain control of him. AP continued to be loud, made threats and attempted to kick, elbow and spit at the COs trying to secure him. Sergeant B. Tucker arrived on the scene and activated -11 - a cold blue alert. This resulted in other COs arriving in the area to provide assistance if necessary. The video shows COs Nason, Neimenen and Hook were able to control AP’s arms, feet and body in relatively short order. One CO in his OR indicated that while on the floor AP more than once stated, “I wasn’t even assultive (sic)! I just pulled away from him!” For our purposes, this first incident ended once AP was taken to the floor. Once AP was secured, Sergeant Tucker directed the COs to pick up AP and to continue on to the BCU. [22] Mr. Nason testified that he took AP to the floor primarily because he believed that AP was going to assault him. He indicated that once AP made the sudden movement and got away from his grip, soon after AP stated that he was going to fight him, Mr. Nason thought that AP was about to spin back and elbow him in the face or swing the handcuffs into his face given his nature as disclosed by AP’s OTIS profile. Mr. Nason indicated during cross-examination that he had given AP the benefit of the doubt up until he made the sudden a quick movement with his arms. Mr. Nason also indicated that they were not in a secure area and that he thought that AP might flee and, for example, run up the stairs and create issues for other staff. Mr. Nason indicated that everything happened very fast and that his actions to initiate a take down were because he felt that he was at risk of being assaulted by AP. When asked by Union counsel whether, looking back, would he have done anything differently, Mr. Nason stated that he would still have taken him down because AP was breeching escort procedure and the area was not secure. [23] Mr. Nason also testified that, with no time to think, he attempted to use the seat belt technique when he took AP to the floor. He believed that this technique was the quickest and safest way for the takedown. He vehemently denied that he used the carotid restraint technique on AP. He indicated that at no time was AP in distress and that there had not been any interruption to AP’s breathing or to the circulation of blood to his brain. When he was asked at the allegation meeting as to whether there was anything he would have done differently, Mr. Nason indicated that he would have taken AP down differently. He testified that he was not sure what other technique he could have used and stated that maybe he could have used a bear hug on him. [24] Mr. Houston provided his opinions in this case having reviewed the videos, the ORs, the allegation meeting notes and the OTIS profile of AP. The essence of his testimony on the first use of force is that the takedown of AP was not necessary in light of the training COs receive to use the least amount of force necessary to control a situation. He agreed that the quick movement by AP with his arms to pull away from Mr. Nason required a response from the COs. In his view, less intrusive options were available to Mr. Nason in the circumstances before the hard tactic of a takedown was utilized. He indicated that tactical communication, such -12 - as yelling at AP to stop, could have been used. He also indicated that disengaging and then re-engaging with a C-clamp grip by one or more than one CO should have been tried before moving to a more intrusive use of force. Mr. Houston also took issue with the technique used by Mr. Nason to take AP to the floor. He indicated that Mr. Nason was using a carotid restraint technique, even if he did not execute the technique perfectly. He also indicated that by grabbing AP around neck, Mr. Nason used a takedown method that was inconsistent with his training and one that created serious risks to AP. [25] Following Sergeant Tucker’s direction to pick AP up and take him to the BCU, the escort now involved a few more COs. CO Neimenen took hold of AP’s right arm and CO Hook took control of his left arm. AP continued to resist the efforts of the COs to control him. The takedown by Mr. Nason, whether justified or not, did not improve AP’s emotional state. CO Neimenen indicated that he believed that it was when they were moving through a narrow doorway that AP’s actions caused an injury to his wrist. The comment in Mr. Nason’s termination letter to a CO sustaining an injury due to Mr. Nason’s failure to use approved techniques refers to CO Neimenen. However, given Mr. Neimenen’s explanation for how he injured his wrist, the suggestion that Mr. Nason contributed to Mr. Neimenen’s injury by taking AP down without using Ministry approved techniques is not accurate. [26] The relevant video shows the escort in the day area of the BCU approaching AP’s no. 4 cell. Given his continuing non-compliance with the escort procedure, his failure to take direction and his hostile and aggressive conduct, Sergeant Tucker directed the COs to take AP to the floor. By pulling down on his arms, the COs complied with Sergeant Tucker’s direction with the result that AP was on the floor on his back while at least five COs, including Mr. Nason, attempted to gain control. COs directed AP to calm down and to stop resisting. For a short while, AP continued to struggle, kick and spit at COs. At this time it is difficult to see AP on the video with the number of COs leaning over him. Mr. Nason can be seen on the left side of AP applying at least two knee distractions to AP’s left leg. Mr. Nason can also be seen pulling his right arm back and moving his hand quickly toward AP, but the contact he makes with AP and the precise way he made that contact is not visible. As noted previously, Mr. Nason, in his OR, described striking AP in the face with the back of his right hand as he executed a closed hand distraction technique. In his OR, Sergeant Tucker wrote that he saw Mr. Nason pull his arm back and strike AP in the facial area with his glove. Sergeant Tucker also wrote that he said, “That’s enough” more than once so that AP would not receive any other strikes. For our purposes, the second incident ends when AP is dragged into cell no. 4 feet first and the door to the cell is closed. -13 - [27] Mr. Nason indicated that, as the COs were trying to control a struggling AP on the floor, he noticed a hand in a black glove near AP’s face and AP making a move to bite the hand. To prevent the CO’s hand from being bitten, Mr. Nason indicated that he struck AP with the back of his right hand on the chin and cheek of AP. He indicated that he used a closed fist, but not his knuckles, and that he put little effort and force into the strike. He reiterated that he was told during his Ministry training that a closed fisted distraction technique could be used on an inmate. He testified that he used this technique because there was very little time to think or to react and he believed that it was the quickest way to address the problem. He stated that he did not use an open hand because the gap was small and he did not want to place his fingers near AP’s open mouth. Mr. Nason testified that Sergeant Tucker did not tell him to stop striking AP. Since Mr. Houston testified first, Mr. Nason had the opportunity to hear Mr. Houston’s assessment of this incident before he gave his evidence. When asked in hindsight whether he would have done anything differently, Mr. Nason stated that he would have acted differently in that, if he had time, he would have pushed the CO’s hand away or pushed AP’s head away to prevent AP from biting anyone. [28] As noted previously, Mr. Houston testified that the Ministry did not teach distraction techniques using a closed fist. In any event, after considering all of the circumstances, Mr. Houston indicated that it was not necessary for Mr. Nason to strike AP. He indicated that Mr. Nason should have moved the CO’s hand away from AP’s mouth or he could have used his open hand to push AP’s head away from the CO’s hand. [29] The submissions from Union and Employer counsel reflected the positions the parties took at the outset. In essence, Union counsel submitted that I should accept the facts as provided by Mr. Nason and conclude that the Employer had not established that it had just cause to terminate his employment. Employer counsel submitted that Mr. Nason used excessive force during the two incidents in question. He requested that particular attention be paid to Mr. Houston’s expert testimony and submitted that there was ample evidence to support the conclusion that the Employer had just cause to terminate Mr. Nason’s employment. I find it unnecessary to set out counsel’s submissions in detail, but will refer to some of them during the course of my reasons. [30] In support of his submissions, Employer counsel referred me to the following decisions: OPSEU (Beltrano et al.) and Ministry of Community Safety and Correctional Services (2008), GSB No. 2003-3597 et al. (Petryshen); OPSEU (Esser) and Ministry of Community Safety and Correctional Services (2015), GSB No. 2011-3658 et al. (Watters); OPSEU (Horan) and Ministry of Public Safety and Security (2002), GSB No. 0670/01 (Herlich); OPSEU (Gallina) and Ministry of -14 - Children and Youth Services (2011), GSB No. 2009-2825 (Fisher); OPSEU (Maude et al.) and Ministry of Community Safety and Correctional Services (2016), GSB No. 2014-3306 et al. (Petryshen); OPSEU (Gour) and Ministry of Community Safety and Correctional Services (2016), GSB No. 2014-4668 (Misra); OPSEU (Wild) and Ministry of Community Safety and Correctional Services (2016), GSB No. 2011-2731 (Harris); OPSEU (Conry) and Ministry of Community Safety and Correctional Services (2016), GSB No. 2014-2618 (Williamson); and, OPSEU (Hachey et al.) and Ministry of the Solicitor General (2022), GSB No. 2021-2299 et al. (Hewat). [31] In addition to OPSEU (Beltrano et al.), supra, OPSEU (Maude et al.), supra, OPSEU (Conry), supra, OPSEU (Gour), supra, and Canadian Labour Arbitration, Brown, D. Beatty and A. Beatty, section 3.86 - Weighing the Evidence - Failure to call a Witness, Union counsel referred me to the following decisions: OPSEU (Goden)) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2018 CarswellOnt 10853 (Watters); OPSEU (Haist) and Ministry of the Solicitor General, supra; Re Canada Post Corp. and C.U.P.W. (1992), 25 L.A.C. (4th) 137 (Shime); Re Lumber & Sawmill Workers’ Union and KVP Co. (1965), L.A.C. 73 (Wren); OPSEU (Langford et al.) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2017 CarswellOnt 6374 (Stephens); Re United Steelworkers of America, Local 3257 and The Steel Equipment Co. Ltd. (1964), 14 L.A.C. 356 (Reville); and, OPSEU (Vetsavong) and The Crown in Right of Ontario (Ministry of the Solicitor General), 2021 CarswellOnt 434 (Anderson). [32] As noted previously, the third allegation relating to Mr. Nason’s not wearing the approved surgical mask is the least serious of the allegations against him. I will address this allegation first. [33] In reviewing the video evidence, the Employer observed that Mr. Nason was not wearing the approved surgical mask. Employer counsel submitted that the process for determining whether Mr. Nason was entitled to an accommodation takes some time and had not been completed by October 15, 2021. Employer counsel suggested that the Employer could not be seen to ignore the mask violation since it might be used as evidence of condonation or inconsistent enforcement in future cases. Union counsel argued that there is sufficient evidence to demonstrate that the Employer had condoned the wearing of the black mask by Mr. Nason and that no discipline is warranted in the circumstances for his failure to wear the Ministry approved medical mask. In my view, the Union’s position on this issue has considerable merit. [34] Mr. Nason believed the Ministry approved mask did not fit properly and was unsafe due the growth of his beard and he sought the Employer’s permission to wear a -15 - different mask. He began wearing a black cloth mask with filters after he felt that his request to wear a safer mask was not being addressed in a timely fashion. Prior to October 15, 2021, Mr. Nason had been openly wearing the black mask for about three weeks without objection from managers and Deputy Superintendents. During his interaction with Mr. Barstead on October 14, 2021, Mr. Nason was not directed to stop wearing the black cloth mask. In my view, the Employer had condoned Mr. Nason’s wearing of the black cloth mask. I agree with the Union that it would be unfair in the circumstances to discipline Mr. Nason for his failure to wear the Ministry approved surgical face mask. The determination of this relatively minor matter will have little impact on the question of whether the Employer had just cause to terminate Mr. Nason’s employment for the use of force incidents. [35] I will address each of the use of force incidents in the order they occurred. With respect to the first allegation, Union counsel submitted, in effect, that the only issue for determination is whether Mr. Nason used the carotid restraint technique to takedown AP. In my view, this is too narrow a reading of the first allegation. In considering the wording of the termination letter as a whole, I am satisfied that the first ground for supporting the discharge of Mr. Nason raises the question of the technique Mr. Nason used in the takedown of AP and not only whether he used the carotid restraint technique. The first ground also raises the question of whether the takedown of AP was necessary. The parties called a considerable amount of evidence that went to this last issue. This is the first matter I will address in relation to the first incident. [36] As described previously, the takedown of AP occurred as the escort just passed the narrow hallway on its way to the BCU. As the escort is about to move into the wider hallway, there are three COs walking behind AP and they are approaching another CO who is in front of them. AP does make a sudden movement with his handcuffed wrists by moving his arms from right to left in front of his body. More likely than not, this movement was intended to detach his right arm from Mr. Nason’s lightly held C-clamp grip, consistent with APs expressed desire not to be touched. AP does not turn to use his elbow to strike Mr. Nason, nor does he swing his handcuffed hands right around to strike Mr. Nason. AP did not pick up his pace in an effort to flee from the COs. It is the movement of AP’s arms to detach himself from Mr. Nason’s grip that led Mr. Nason to immediately initiate the takedown of AP. In my view, the actions of AP did not justify his takedown. [37] As set out in the Use of Force Policy, force must always be used as a last resort and the amount of force used must be reasonable having regard to the nature of the threat posed by an inmate. I appreciate that the pulling motions of AP and his threats against the COs can be difficult to deal with even if such behaviour is not uncommon. I also appreciate that AP’s history of assaultive behaviour would require extra diligence on the part of COs. AP’s OTIS profile by itself does not -16 - justify using force against him unless AP’s actions warranted the use of force. Mr. Nason testified that he believed that AP was intending to assault him. There is no objective evidence show that AP had any such intention. Mr. Nason agreed in cross-examination that the risk of AP fleeing was minimal. The sudden movement of AP’s arms to detach himself from Mr. Nason’s grip is not compliant with escort procedure and does require some action on the part of the COs to gain control of AP. Using tactical communication by shouting at AP to stop was an option available to the COs. Disengaging for a few seconds, using tactical communication and then re-engaging by having two COs each gripping one of AP’s arms was another reasonable option in the circumstance. How AP responded to the use of such options would have dictated whether a higher level of force was needed to control him. Although making such assessments can be a challenging exercise, I am satisfied that it is more likely than not that Mr. Nason’s immediate action to take AP down to the floor was not a necessary and reasonable use of force in the circumstances. [38] The evidence clearly indicates that, in taking AP down to the floor, Mr. Nason used a technique that was not taught by the Ministry and was a non-approved technique. Mr. Nason testified that he attempted to use the seat belt technique, but I agree with Employer counsel that it does not appear that Mr. Nason successfully used that technique on AP. Mr. Nason did not get his left arm under AP’s left arm and he did not connect his hands across AP’s chest to bring him down. Instead, as described previously, Mr. Nason latched on to AP’s upper right arm with his right hand and brought his left arm over AP’s left shoulder, under his neck and grabbed AP’s jumper at the top of AP’s right collarbone area. He then twisted AP to the left and pulled him down to the floor. The parties disagree as to whether this technique was a carotid restraint technique. Employer counsel submitted that an imperfectly executed carotid restraint technique was in essence still a carotid restraint technique. The definition for the carotid restraint technique suggests that it is a neck compression technique designed to interrupt the circulation of blood to the brain. In this instance, Mr. Nason’s left arm was under AP’s chin and very close to his neck for a matter of seconds before he was taken to the floor. Given the absence of evidence to suggest that the circulation of blood to AP’s brain was interrupted or that his breathing was interrupted, I am inclined to apply the definition in the Use of Force policy strictly and conclude that Mr. Nason did not use a carotid restraint technique when he took AP down to the floor. This does not mean however that Mr. Nason used a proper technique in the circumstances. [39] Mr. Houston was quite clear that the Ministry’s use of force training emphasized that COs were not to use force near the head and neck of an inmate. Mr. Nason agreed that this was the case. Although in hindsight he indicated that he would -17 - have used a different technique for the takedown, he testified that he was unsure about what technique he could have used and felt that the technique he did use was the quickest and safest method in the circumstances. I have no hesitation in concluding that the technique of grabbing AP around his neck and head to bring him down to the floor was a dangerous method to use against an inmate and was contrary to the Ministry’s use of force training. It appears that Mr. Nason used a technique that was more in line with his wrestling and Brazilian jiu jitsu training. Employer counsel submitted that the takedown technique by itself amounted to an excessive use of force. Whether a particular use of force technique used by a CO constitutes an excessive use of force depends on the particular facts. The use of the carotid restraint technique would likely amount to an excessive use of force. In my view, the use of force technique used by Mr. Nason against AP, being a dangerous unauthorized technique that was contrary to his Ministry training, did amount by itself to an excessive use of force in the circumstances, even though there is no evidence that AP was harmed during the first incident. [40] I am also satisfied that the evidence relating to the second incident establishes that Mr. Nason used excessive force against AP when he struck him in the facial area with the back of his hand using a closed fist. Although Mr. Nason testified otherwise, I preferred Mr. Houston’s testimony to the effect that COs are taught not to use a closed fist when using force on an inmate. This incident occurred in the day area of the BCU when AP had been taken down at the direction of Sergeant Tucker. A number of COs, including Mr. Nason, were on the floor attempting to control a struggling AP. The video at one point shows Mr. Nason moving his arm back and quickly moving it towards the direction of AP. Although the strike to AP’s face is not visible, it appears most likely that Mr. Nason struck AP with his closed fist out of frustration due to AP’s non-compliant behaviour. Even if Mr. Nason’s testimony about striking AP to prevent AP from biting the hand of a fellow officer is accepted, such a strike on AP was simply not necessary. Although things were taking place very quickly during an event of this sort, Mr. Nason’s training should have allowed him to choose an option other than striking an inmate. As Mr. Houston indicated and as Mr. Nason agreed, he could have pushed the hand of the CO away from AP’s mouth or he could have pushed AP’s head away from the CO’s hand instead of striking AP. Although there is again no evidence to indicate that AP was harmed during this incident, I am satisfied that it was unnecessary for Mr. Nason to strike AP with a closed fist and that such a strike amounted to an excessive use of force in the circumstances. [41] In summary, I find that Mr. Nason used excessive force when he elected to takedown AP in the first incident and when he used a dangerous non-approved technique to execute the takedown. I also find that Mr. Nason used excessive force when he struck AP in the facial area with a closed fist during the second -18 - incident. On the basis of these findings, I am satisfied that the Employer has established that it had just cause to discipline Mr. Nason. [42] Union counsel submitted that there was a basis in this case for me to exercise my discretion and reinstate Mr. Nason to employment with the Ministry, with full back pay, benefits and seniority. Counsel also submitted that I direct the Employer to pay damages to Mr. Nason for pain and suffering. With respect to modifying the penalty, counsel made reference to a number of matters, including Mr. Nason’s financial situation, his mental health struggles and his recognition that he could have handled his actions with AP differently. Although there are some factors that might weigh in favour of reinstatement, these are outweighed by other considerations such that I am not convinced that reinstating Mr. Nason would be an appropriate exercise of my discretion in the circumstances. I am also satisfied that there is no basis for awarding damages to Mr. Nason for pain and suffering. [43] Mr. Nason’s contraventions of the Use of Force Policy are serious matters that constitute a breach of public trust and are inconsistent with his obligations as a CO in relation to the care, custody and control of inmates. It is not entirely clear from his testimony that Mr. Nason recognizes that his conduct towards AP was problematic. He continues to believe that it was necessary to takedown AP during the first incident. Although he suggested that with hindsight he should have acted differently in both incidents, he continued to suggest that the takedown technique he used with AP was a quick and safe technique and he was unsure as to what other technique he could have used. He also indicated that his striking of AP with a closed fist was permitted by his Ministry training and that he did not have time to think about other options. These responses do not gender confidence that Mr. Nason would use force differently if he was faced with similar circumstances. [44] Mr. Nason does have discipline on his record for excessive use of force on an inmate. Employer counsel submitted that the Employer gave Mr. Nason his one chance after he committed a serious offence of punching an inmate and that his further use of excessive force, particularly when he again struck an inmate during the second incident, should compel the conclusion that Mr. Nason is not entitled to any further chances. Apart from whether the Employer had provided Mr. Nason with his one chance, it certainly is the case that his previous suspension for excessive use of force is a significant factor weighing against him as far as reinstatement is concerned. Mr. Nason does not have a lot of service with the Employer. This factor does not assist Mr. Nason’s position when considered in light of his further serious breaches of the Use of Force Policy. It is with these considerations in mind that I find that the substitution of a lesser penalty is not warranted having regard to all of the circumstances of this case. -19 - [45] For the above reasons, Mr. Nason’s grievance dated November 18, 2021, is hereby dismissed. Dated at Toronto, this 12th day of June 2024. “Ken Petryshen” Ken Petryshen, Arbitrator