HomeMy WebLinkAbout2010-1617.Bijowski.12-10-25 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2010-1617
UNION#2010-0234-0207
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Bijowski) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Nimal Dissanayake Vice-Chair
FOR THE UNION Christopher Bryden
Ryder Wright Blair & Holmes LLP
Barristers & Solicitors
FOR THE EMPLOYER Paul Meier
Ministry of Government Services
Labour Practice Group
Counsel
HEARING
April 1, 18, 28 & 29, May 3 & 11, June 2, 7 & 14,
July 29, September 23 & 29, October 7 & 21,
November 21, December 8 & 9, 2011, January 16,
February 3 & 28, June 5 & 11, August 8 & 16, 2012.
- 2 -
Decision
[1] The Board is seized with a grievance dated September 3, 2010 filed by Mr. Donald
Bijowski (“grievor”) wherein he grieves that he was terminated without just cause
from his employment as a correctional officer at the Maplehurst Correctional
Complex. His termination was effected by letter dated September 3, 2010, from
Deputy Superintendent/Administration, Mr. Tom O’Connell. The evidence indicates
that preceding the termination, Mr. O’Connell wrote a letter dated August 3, 2010,
(“allegation letter”) to the grievor, setting out 5 allegations against him, and
convening a meeting to enable the grievor to respond to them. The five enumerated
allegations in the letter, are as follows: (Note: At the joint request of the parties, in
this decision all non-management correctional staff other than the grievor and all
inmates and their family/friends will only be identified by acronyms). The
allegations against the grievor relied upon in this proceeding are as follows:
1. On January 3rd, 2009, in an effort to gain confidential information regarding a Halton
Regional Police Services investigation you were insubordinate and failed to perform your
duties as a Peace Officer in an orderly and responsible manner in full cooperation with
your immediate supervisor when you removed inmate AC from his cell without an
Operational Manager present, in direct contravention of verbal and written directions not
to do so.
2. You failed to declare to your Employer your family, personal and business
relationships with several former and current ministry clients in clear violation of the
Ministry’s Policies/Directives regarding conflicts of interest and respective disclosure
obligations. Not only did you maintain these relationships in secrecy outside the
institution but you also carried out these relationships within Maplehurst CC without your
Employer’s knowledge.
3. You failed to adhere to Ministry Policy and Procedures, when you tried to coerce
ministry staff in the transfer of inmate ZZ from CNCC to MICC for personal reasons.
You were deceitful in your attempts to administer this transfer by failing to provide
accurate information surrounding inmate ZZ to Ministry Staff.
- 3 -
4. Your failure to respond in a forthright and truthful manner to a Ministry Inspector’s
question was a direct violation of MCS Act Section 22(1).
[2] For purposes of this decision, the evidence relied upon by the employer may
conveniently be divided as follows:
(a) The grievor’s acquaintance with inmate ZZ and ZZ’s wife DZ, his failure to disclose
such relationship, and the grievor’s attempts to do favours to ZZ.
(b) The grievor’s association with JG, an individual with a criminal record, both outside
and inside the institution, and his failure to disclose such association to the employer.
(c) The grievor’s association with inmate JS and his girl-friend MM, and his attempts to
do favours to inmate JS.
(d) The grievor’s association with and doing favours to NS, an inmate at Maplehurst.
(e) The grievor’s failure to disclose the family relationships to individuals with criminal
records.
(f) The grievor’s failure to be forthright with management and a ministry investigator
about his conduct relating to the foregoing.
[3] The employer’s policy on “Staff Conduct and Discipline” includes the following
examples of unacceptable conduct:
. . .
e. refusal to comply with policies, statutes, procedures and regulatory/safety
requirements of which the employee is, or should reasonably be aware;
f. obstructing an investigation or inspection or withholding, destroying,
concealing, or refusing to furnish any information or thing required by an
inspector for the purposes of an investigation or inspection under the Ministry
of Correctional Services Act;
g. failure to report all real or perceived conflict of interest situations at the
earliest opportunity. Examples include relationships with offenders/ex-
offenders.
[4] Also in evidence is the policy on “Conflict of Interest”. It defines “Conflict of Interest”
as “Any situation where an individual’s private interests may be incompatible or in
conflict with her/her public service responsibilities.” It also includes the following
provisions:
- 4 -
If you are involved in a situation that may constitute a potential or actual conflict
of interest, you must discuss the situation with your Manager, and submit a
confidential report to the Deputy Minister, using the “MCSCS Conflict of Interest
Declaration Form”. The report must identify the nature of the conflict of interest
and provide specifics so that the Deputy Minister can make an informed decision.
You should also provide a copy of the competed “MCSCS Conflict of Interest
Declaration Form” to your Manager.
. . .
Your Duty to Notify
In accordance with Regulation 381/07, you have a duty to notify your Deputy
Minister if circumstances could arise in which your private interests could conflict
with your duties to the Crown. If you are unsure whether or not Regulation
381/07 covers a particular situation, speak with your Manager. A good rule of
thumb is: when in doubt, submit a declaration.
Contravention of Conflict of Interest Rules
The Public Service Act of Ontario, states that a public servant who contravenes a
conflict of interest rule applicable to him or her is subject to disciplinary
measures, including suspension and dismissal. Also, civil action may be taken
against any individual or outside entity where failure to comply results in harm to
the Crown.
Regulation 381/07 under the Public Service Act of Ontario, referred to in the policy, in
essence prohibits a public servant giving preferential treatment to family or friends.
[5] A further policy entitled “Statement of Ethical Principles” was filed. It’s preamble states:
The Statement of Ethical Principles prescribes what is expected of all employees
and volunteers in the delivery of services. It is not meant to be an exhaustive list
of rules or prohibitions. Rather, the primary focus of the Statement is to promote
ethical behaviour. At the same time, a range of statutes, regulations, policies and
procedures supports the Statement.
These broad principles are intended to guide staff at all levels of the organization
in their decisions and in situations where the right course of action may not be
clear. The Statement ensures that all employees are aware of the expected
standards of behaviour both in and related to the workplace. It is by example and
through orientation, training and performance management that these standards
will be confirmed and reinforced.
As employees of Correctional Services, we have a responsibility to protect the
public by providing custodial and community supervision and rehabilitative
services. Meeting this goal requires a commitment to ethical behaviour and a
- 5 -
high calibre of professional conduct. Accordingly, we are committed to the
following principles.
It goes on to list several “ethical principles”, including the following:
To display professional conduct and maintain relationships that are fair, impartial
and free of impropriety in all our dealings with those currently or formerly under
the Correctional Services authority, their families and associates.
[6] The evidence is that at the grievor’s induction interview on July 04, 2006 he signed a
document which included the following:
Conflict of Interest:
Conflict of Interest is defined as any situation where an individual`s private
interests may be incompatible or in conflict with their public service
responsibilities. It is employee’s responsibility to identify to the Deputy Minister,
through your manager/supervisor, any possible conflicts of interest. For more
detailed information visit the Corporate Policy web site at
http;//Intra.mbs.gov.on.ca/ismd/hrsb/conditions.html.
[7] The evidence indicates that the grievor’s employment with the Ontario Public Service
commenced in 2001 when he was hired as a Youth Officer at the Algoma Youth Centre
in Sault Ste Marie, Ontario. In November 2002 he became a Correctional Officer
(“CO”) in the unclassified service and was employed at the Mimico Correctional
Institute in Toronto and attained classified status in August 2003. In October 2007, he
transferred to Maplehurst CC. His continuous service date was August 23, 2003.
The employer was first alerted to possible misconduct on the part of the grievor when he
was charged in February 2009 under the Criminal Code, following a joint investigation
into suspected corruption, including smuggling of weapons and drugs by correctional
staff. As a result, the employer appointed Mr. Tony Ruggiero, an inspector with the
Correctional Investigation and Security Unit (“CISU”) to conduct an internal
investigation. While the criminal charges against the grievor were withdrawn by the
crown on February 18, 2010, Mr. Ruggiero proceeded with his investigation. He
interviewed the grievor, with union representation, for three hours on December 15,
2009, and again for one hour on March 26, 2010. Transcripts of those audio taped
interviews were filed in evidence. Mr. Ruggiero issued his report (“CISU Report”) on
May 26, 2010.
- 6 -
[8] The ministry maintains a computerized Offender Tracking Information System
(“OTIS”). It includes an “OTIS profile” and an “OTIS historical summary” for each
inmate housed in the facility. The former contains the inmate’s personal information, a
historical record of criminal convictions, the length and type of sentences imposed etc.
More significantly, it sets out the security level assigned to the particular inmate under
the employer’s inmate classification process. A policy document setting out the inmate
classification process was filed in evidence. An inmate is committed to serve his
sentence at a maximum, medium or minimum security institution depending on the
classification level assigned. The OTIS client profile also sets out security alerts such as
“escape risks” or “management risks”. The “OTIS Historical Summary” sets out the
inmate’s history of incarceration, including the institution and periods of incarceration.
Mr. Ruggiero testified that all COs are issued a password which enables them to access
the OTIS information at computers located within Maplehurst. In addition, a unit card is
available for each inmate alerting COs to any security or management concerns.
[9] Allegations relating to inmate ZZ and ZZ’s wife DZ
The CISU report made the following findings about the grievor’s conduct in relation to
inmate ZZ and DZ:
The ministry investigation substantiated the allegation that CO Bijowski failed to
disclose his relationship with inmate ZZ and his wife, DZ in accordance to
ministry policy.
It would also be reasonable to conclude that CO Bijowski provided self-serving
information and did not disclose the full details of his relationships during a
ministry investigation. These undisclosed relationships were the driving force
behind his persistent and extraordinary efforts to influence and interfere with
inmate ZZ’s transfer to the MICC. It would also be reasonable to conclude that
CO Bijowski’s continued efforts were fuelled by additional meeting with DZ in
the community, which were not disclosed.
CO Bijowski failed to abide by established ministry and institutional transfer
protocols and failed to follow sound institutional safety and security procedures
when he failed to confirm the inmate’s background information, which is one of
the fundamental tools in the transfer of inmates to an appropriate location.
CO Bijowski contacted several ministry personnel at three locations, with the
intent of persuading them to transfer inmate ZZ from the CNCC to MICC. For
reasons other than, “to be close to his family,” CO Bijowski continued to pursue
- 7 -
ministry staff several months after inmate ZZ had been transferred from the MCC
on February 14, 2008 until June 19, 2008.
CO Bijowski represented to ministry staff that he believed inmate ZZ had a past
relationship with his father. Where he believed it to be true, then he had a
responsibility to disclose it to a ministry official. Where he believed it to be false,
he purposely misled ministry staff in an attempt to transfer the inmate. Both are a
breach of ministry policy.
[10] Inmate ZZ’s OTIS profile sets out his security level as “high maximum”, which is the
highest level under the inmate classification process. It further sets out that on January
7, 2008 ZZ was sentenced to 6½ years incarceration on eleven convictions including
seven counts of “fraud over”, two counts of theft under $ 5,000.00, a count of uttering
threats and one Immigration Act offence. Under “Alerts”, ZZ’s profile sets out that
during a search in September 2007, it was discovered that ZZ was in possession of a
contraband cellular phone and spare battery. Observations recorded under “current
management risk” includes a notation that ZZ is “extremely manipulative” and that he
“should not be transferred to Mimico”.
[11] The evidence is that during the CISU interview when asked how he knew ZZ, the
grievor replied that when he worked at Mimico CC ZZ was an inmate there. When
asked whether he had ever told anyone differently, the grievor stated that ZZ had told
him that he had done business with his father in Sault Ste Marie, in construction or
transportation, and knew his father. When asked whether he believed what ZZ had told
him, the grievor replied that “to some extent he did”, but added that he could not validate
the information because he had fallen out with his father. The grievor admitted to Mr.
Ruggiero that he had met ZZ’s wife, DZ, when he used to work at Urban Behaviour in
the Sherway Gardens Mall, and DZ used to come to restaurants in the mall, and that
when he worked at Red Lobster in Brampton she used to come there also. He stated that
when he first met her at Sherway Gardens he was a CO.
[12] During the interview of the grievor by the police following his arrest, Detective Robert
Todd asked him about ZZ. The transcript establishes that the grievor initially described
ZZ as “just an acquaintance” and then as “just a friend”. When asked how he knew ZZ,
the grievor replied “from the road”. When asked to explain, the grievor stated that he
- 8 -
used to go to Eastside mario’s and Jack Astors by the Sherway Gardens and also worked
at Urban Behaviour, and that ZZ came there “a lot”. The grievor is recorded as saying
“… I seen him out a couple of times and then uh just hanging out with them. Its not
really like you come in and go for a coffee or we’d go like just for, I don’t know like he
was like I’d see him at Eastside Mario’s and Canyon Creek a lot”. When Mr. Todd
asked how that led to the grievor’s attempts to have ZZ transferred from CNCC to
Mimico CC, the grievor replied “He just asked me”. When asked why he would make
those efforts to have ZZ transferred if he was only an acquaintance and not a brother or a
close friend, the grievor disclosed that he knew ZZ’s wife as well. When further
questioned, the grievor explained that during the SARS outbreak in 2002-2003, when
there was a cut back of his hours at the jail, he did a part-time job for 7-8 months at
Sherway Gardens, and that he first met ZZ and his wife at that time. The Grievor said
“… he would come in with his wife and then socialise with me and talk and then I would
talk to him and then I seen him a couple of times at Leafs Games, at uh Eastside mario’s
and stuff, and then we just became friends.”
[13] The grievor told the police that ZZ’s wife DZ told him that ZZ had not seen his kids in
four years, and asked him “If I can say something to the classification officer and have
him moved”, and that he said “I’ll see if there’s anything I can do”. When asked if he
had written a letter on ZZ’s behalf, the grievor replied that he thought that he did, and
added that he may be able to get a copy. He stated that the letter was to the effect that
ZZ had never caused any problems and there were no issues. The grievor told the police
that he did not know why ZZ was in jail, that when he asked DZ “in a roundabout way”,
she said it was for “fraud” and “stuff like that”. He added that he would not have got
involved if ZZ had been jailed for “drugs or weapons or anything like that”.
[14] Testifying before the Board in chief, the grievor stated that he first met ZZ during his
overlap for some 3 months at Mimico CC. The grievor testified that since ZZ had
“fence clearance and performed cleaning duties, ZZ had significant interaction with
correctional staff. ZZ had a very friendly personality and was very respectful and
helpful.” The grievor described ZZ as “one of the better inmates”. Union counsel asked
the grievor why he described ZZ to the police as “just a friend”. He replied “looking
- 9 -
back, I probably shouldn’t have said that, and should instead have said a good inmate”.
He explained that during the police interview he was scared and under duress and was
using the term “friend” loosely. Asked when he first met ZZ’s wife DZ, the grievor
replied that when DZ visited ZZ at Mimico while he was incarcerated there, she would
talk to him. He explained that it was common for visitors to have casual conversations
with CO’s while visiting inmates and stated that his interaction with DZ was not out of
the ordinary. The grievor also stated that DZ had called him about getting ZZ moved
from CNCC to Mimico CC. He stated that she had made 2 or 3 such calls, that he had
not given DZ his telephone number and did not know how she got the number. He
wondered how she had got his telephone number, but did not ask her. He testified that
during those calls DZ sounded very distraught, wanted ZZ moved to a location closer to
her and the children and asked him if there was anything he could do. She told him that
by driving on highways to CNCC, she was endangering her life and the children’s lives.
He testified that he “instructed her that if that was her concern, she should contact the
superintendent and get direction from him”. Union counsel asked why he did not file an
occurrence report (“OR”) about his interaction with DZ. He replied that at the time he
did not feel he had to because DZ’s questions and his responses were of a general nature,
and he had not given out any information that could compromise the safety and security
of the institution. He confirmed that he did not inform management about receiving
calls from ZZ’s wife and added “looking back I should’ve”.
[15] Asked by union counsel what his understanding was about ZZ’s connection to his father,
the grievor replied that since he had not talked to his father for a long time he had no
knowledge of a connection. However, at Maplehurst CC, ZZ had asked him if he had a
brother or father in Sault Ste Marie named Donny Bijowski. The grievor replied that his
father had the same name as his and lived in Sault Ste Marie. According to the grievor,
ZZ told him that “he had done some type of business with him in the trucking business”.
He did not inform management that an inmate under his supervision had a connection
with his father, because he was not in a position to validate that what ZZ had told him
was true. He added, “Looking back, with the serious situation I am in now, I will
disclose these types of remarks”.
- 10 -
[16] The grievor was asked to elaborate on his interaction with ZZ and DZ at Sherway
Gardens. He testified that he would see DZ in 2002 at Urban Behaviour where he
worked part time. He would also run into ZZ at the Canyon Creek Restaurant. He
recalled in detail a particular interaction with ZZ on a Friday in 2003 or 2004 between
2:30 p.m.- 6:00 p.m., when he was at Canyon Creek with several other COs during a
break when ZZ came up and spoke to him. He testified that his interactions with ZZ and
DZ in the community were always brief. Typically, they would ask “how is work” or
“how are you doing” and he would ask “are you keeping out of trouble”. He testified
that he has overheard other COs comment about bumping into a former inmate at a gas
station or a mall. He did not feel such encounters need to be disclosed. When union
counsel asked if he would act differently in the future, the grievor replied, “with what
I’ve learned and the impact it has had on me, I would fully disclose and encourage co-
workers to fully document and disclose all interaction with past inmates or with anyone
you feel you should disclose”.
[17] Under cross-examination, the grievor agreed that he knew inmate ZZ from the street,
that ZZ came “a lot” to the Urban Behaviour store where he worked, and that he first
met ZZ there. He agreed that when he told the police that he would hangout and
socialize with “them”, he was referring to ZZ and wife DZ, but explained that what he
meant by that was that ZZ would come in to the store and talk to him. Counsel pointed
out that he had also told the police that he “became friends” and mentioned watching
Leafs hockey games with ZZ. The grievor replied that what he meant to say was that he
had seen ZZ at Leafs games and added that he shouldn’t have used the word “friends”.
When employer counsel asked why he had not told the police that he had known ZZ
from Mimico CC, the grievor replied that he assumed that the police would know that.
Counsel pointed out that the police pushed him, suggesting that there was more to it than
just running into ZZ at the mall, and yet he did not disclose that he knew ZZ as an
inmate at Mimico CC. The grievor apologized, and repeated that he assumed that the
police knew that. The grievor agreed that when he started at Mimico CC in November
2002, ZZ was an inmate there. Counsel pointed out that ZZ’s OTIS record sets out that
on December 28, 2002, his fence clearance privilege at Mimico was revoked due to an
attempted escape, and asked why he testified that ZZ had fence clearance, but not about
- 11 -
his attempted escape or the revocation of his fence clearance status. The grievor replied
that he was not aware of those facts. Counsel suggested that he did not tell the police
that he had known ZZ as an inmate before connecting with him again at Sherway
Gardens Mall and becoming friends, because it would not have “looked good”, and his
position that he met ZZ at the mall by chance would have taken “a hit”. The grievor
commented that during the police interview he was under stress and confused.
[18] Counsel pointed out that in chief he had testified that he first met ZZ’s wife DZ at
Mimico when she came to visit ZZ, but had told Mr. Ruggiero that he met her first at the
mall and made no mention of meeting her earlier while visiting ZZ at Mimico CC. The
grievor replied that he answered Mr. Ruggiero’s questions as best as he could recall at
the time. He agreed that he had told the police that he had socialized with ZZ and DZ in
2003 and had told the CISU that during his employment as a bar tender at the Red
Lobster in Brampton in late November 2004 he met DZ. The grievor replied that he did
not meet her as such, but they would just say “hi”. He agreed with counsel’s suggestion
that DZ who lived “way North”, just happened to come all the way to the Brampton Red
Lobster where he worked. Employer counsel reviewed the grievor’s testimony relating
to another inmate JG, who the grievor had known from before and had been sent to
Maplehurst, where the grievor worked. The grievor had testified that he did not report
that because JG was not housed in the unit where he worked and that if JG had been sent
to his unit he would have filed an OR. Counsel asked why he made no report when the
grievor was assigned to unit 10 at Maplehurst CC in October 2007 and ZZ his friend was
an inmate in that very unit. The grievor provided no explanation.
[19] The employer’s Security Manager, Mr. Mike McDonald testified that in January 2008 he
attended ZZ’s sentencing hearing and testified about the discovery of contraband in ZZ’s
cell. While in court, he saw positive reference letters from 3 CO’s that had been filed by
the defence in support of ZZ at his sentencing hearing, and that one had been signed by
the grievor. Mr. McDonald testified that the letters did not accord with policy and were
unauthorized. The crown objected and the letters were not admitted into evidence.
Following ZZ’s sentencing, Maplehurst CC undertook the inmate classification process
to determine ZZ’s security risk level, the primary goal of which was the maximization of
- 12 -
public safety. The process takes into account risk factors, including the circumstances
and nature of the offences committed by the inmate, the length of the sentence, the
inmate’s criminal record and his behaviour and attitude during previous incarceration.
The evidence is that ZZ tried very hard to convince the Maplehurst CC classification
officer that he was a low risk inmate who should be classified to the minimum security
Mimico CC, but was nevertheless classified as “maximum” risk inmate who should
serve his sentence at the Central North Correctional Complex (“CNCC”) in
Penetanguishene.
[20] The employer adduced evidence through a number of its staff members about the
grievor’s attempts to have ZZ sent to Mimico CC instead of CNCC, and his subsequent
attempts after ZZ had been sent to CNCC to have him transferred back to Mimico CC.
Mr. McDonald testified that on January 16, 2008, the grievor came into the security
office, introduced himself, and asked whether he would reconsider and classify ZZ to
Mimico CC instead of CNCC. Mr. McDonald told the grievor that he had no input into
the inmate classification process, and commented that but for the long period of pre-trial
custody he had served, inmate ZZ would likely have gone to Federal penitentiary. Later
the same day, Ms. LY, classification officer at Maplehurst, informed Mr. McDonald that
the grievor had approached her also and that she told him that ZZ was properly classified
to CNCC. Mr. McDonald testified that on a subsequent occasion, the grievor told him
that he should go and explain to ZZ why he hated him so much, and he explained to the
grievor that his testimony at ZZ’s sentencing hearing had nothing to do with hating ZZ.
[21] Referring to his contemporaneous notes, Mr. McDonald testified that on March 14,
2008, he was contacted by Detective John Walker, of the Peel police, and member of the
Project Cantebury team. Mr. Walker briefed Mr. McDonald about the observation by a
policy officer that the grievor had met with several individuals, some of whom had
criminal backgrounds, at Eastside mario’s restaurant the night before (Hereinafter “the
Eastside mario’s meeting”). Subsequent investigation by Mr. McDonald revealed that
one of the men the grievor had met with was AD, and that AD was driving a car
registered to ZZ’s wife DZ, on the night in question. AD had been an inmate at Mimico
CC from February to April 2007 and at the time he was in the same unit as ZZ. It was
- 13 -
further discovered that AD was listed by ZZ in his Maplehurst CC Inmate Visitor
Authorization Form as one of two “friends” allowed to visit him, and that AD had in fact
visited ZZ at Maplehurst. Using a map, Mr. McDonald explained that while the grievor
had asserted that the reason DZ was pleading for his help in transferring her husband
from CNCC to Mimico was the family’s desire to be closer to ZZ, CNCC was in fact
closer to Proton Station where DZ and family lived, than to Mimico. In this period, Mr.
McDonald also received information that the grievor had approached several staff
members at Mimico and CNCC, seeking their assistance to have ZZ transferred to
Mimico. On inquiry, Mr. McDonald found out that the grievor had not disclosed a
connection to anyone with a criminal record. This led to the appointment of an inspector
from the CISU to investigate. The grievor was suspended pending the results of the
CISU investigation.
[22] Under cross-examination, Mr. McDonald confirmed that no discipline was imposed on
the other two COs who had written favourable reference letters for ZZ’s sentencing
hearing. He talked to them about the requirement to follow procedure when filing
behavioural reports, and directed them to submit ORs. Union counsel put to Mr.
McDonald a written a request made by ZZ for a transfer from CNCC to Mimico, which
had been endorsed by an OM 16, Mr. John Hosegrove as follows: “I support this request
if it meets the usual criteria for classification”. He stated that he saw it only during
preparation for arbitration. When confronted with Google maps, Mr. McDonald
accepted that while the distance from Proton Station to Mimico was 9 kilometers greater
than to CNCC, it takes 23 minutes less driving time.
[23] Detective Robert Todd testified that during the Project Cantebury investigation it came
to light that a confidential informant had informed management at Maplehurst that its
correctional staff was bringing in illegal drugs into the institution and had associations
with known street gang members. He testified that by early July 2008, the police
identified four COs at Maplehurst CC, including the grievor, as “persons of interest”.
By the end of July the grievor’s status was elevated to that of a suspect because the
police believed based on its intelligence that he was still active in smuggling drugs into
Maplehurst CC and associating with criminals. Mr. Todd testified that while the grievor
- 14 -
was arrested and charged on a number of counts, those charges were subsequently stayed
by the Crown, who was of the opinion that there was no reasonable prospect of
conviction.
[24] The transcript shows that the police suggested to the grievor that for DZ to ask him for
the favour of moving her husband to Mimico, and for him to circumvent policy and try
repeatedly to do that favour for her, there had to be a stronger relationship between him
and ZZ/DZ than he admits. The grievor disagreed and stated that all he did was just call
and ask. He denied that he knew anything about ZZ’s personal life, wife or family.
When asked whether he believed, based on his 7-8 years of employment in corrections,
that what he did was standard practice to be followed where an inmate asks to be moved
from one institution to another, the grievor responded that he did not know what the
standard practice was and that is why he called Maplehurst Classification Officer, Ms.
LY and “the lady” at CNCC to find out. The police suggested that the grievor had first
approached the Security Manager and had been told that he should not be doing this.
The grievor replied, “I never spoke to any Security Manager at all guys”. When the
police asked whether he was saying that Mr. McDonald had misled the police that he
had approached him, the grievor changed his story. He stated that he “walked down
there” and talked to Mr. McDonald and that all Mr. McDonald told him was that he
would get back to him. Asked when he last spoke with ZZ, the grievor replied that it
was about “a month ago” and that about once or twice a month ZZ would call him “just
to ask how I was doing and stuff like that” and that the grievor told him that “I can’t talk
to you”.
[25] In cross-examination, Detective Todd agreed that during the interview the grievor
appeared at times to be nervous and apprehensive. Mr. Todd testified that he was
convinced that the grievor had committed the crimes he was charged with, and that
significant money and time was invested into Project Cantebury. He agreed that he
would have liked to see the crown proceed to trial rather than withdraw charges.
However, he stated that he did not treat the crown’s decision as a reflection on him
personally and when that happens he just moves on. Asked whether he would like to see
the grievor at least lose his job, given his belief that the grievor engaged in criminal
- 15 -
conduct, Mr. Todd replied that he had no opinion on that because that was not is
decision.
[26] Constable Aamer Merchant of the Peel Police Force at the relevant time served on the
South Asian Gangs Unit. In that capacity his duties included monitoring criminals
within the South Asian community. While his testimony focussed primarily on the
alleged connection between the grievor and inmate JG, it also disclosed information
relating to the connection between JG and ZZ and wife DZ, and their relationship to the
grievor. Since all of that information is closely intertwined, I shall deal with that later in
this award in examining the evidence on the relationship between the grievor and inmate
JG.
[27] Ms. JP, Rehabilitation Officer at Mimico, testified next. Employer counsel put to her an
OR filed by Ms. KM, Rehabilitation Officer at CNCC in which she wrote, inter alia, that
during a telephone call on June 19, 2008, the grievor had told her that that Ms. JP and
another Mimico staff member “have agreed to accept this inmate (ZZ) and therefore
CNCC can just add him to the bailiff’s list for transfer.” Ms. JP testified that he knew
the grievor from the time he worked at Mimico. However, she vehemently denied that
she had any discussion whatsoever with the grievor about inmate ZZ. She described in
detail the process that needs to be followed where an inmate classified to one institution
requests a transfer to another institution. In summary, the proper documentation has to
be filed and the Deputy Superintendents of both institutions must approve the transfer
taking into consideration a number of established criteria. Reviewing the documentation
pertaining to ZZ, Ms. JP opined that he was properly classified to CNCC and that he was
not suitable for Mimico. In cross-examination, union counsel suggested to JP that COs
are not entirely shut out from the inmate classification process. She replied that she was
not a classification officer. She was responsible for making decisions on inmates’
suitability to work in the kitchen or laundry. In making those decisions, she would talk
to COs about an inmate’s conduct in the unit and take into account any reports by COs
about misconduct.
- 16 -
[28] Also testifying for the employer was Mr. LE, Community Correctional Officer at
Mimico CC. Part of his duty was to recommend to the Superintendent about inmates’
suitability for community work and week end passes, and to assess whether intermittent
inmates ought to be moved to an institution closer to their homes for compassionate
reasons. LE testified that he met the grievor when the grievor worked at Mimico from
November 2002 to October 2007. LE testified that he had several telephone calls and a
personal visit from the grievor about transferring inmate ZZ from CNCC to Mimico.
The grievor told him that ZZ was “a friend of his father”, that ZZ had previously been at
Mimico and had been a good worker. The grievor told LE that ZZ was a “good guy”
and that his wife DZ was asking him for a favour by getting ZZ transferred from CNCC
to Mimico because she and the children were finding it very difficult to visit ZZ in
CNCC. The grievor asked LE to see if that can be done as a favour for him. LE testified
that at the time Mimico’s inmate count was down and therefore there was a shortage of
workers. Given the information that ZZ had recently been housed at Mimico, had been a
good worker, and given the grievor’s assurance that ZZ was a good inmate, LE told the
grievor that he would see what could be done.
[29] The next day, LE called a classification officer at CNCC and left a voice message to the
effect that Mimico was short of workers and requesting that a review be made to see if
there were suitable candidates among the inmate population who could be sent to
Mimico. He also mentioned in the message that he had information that an inmate
named ZZ at Maplehurst, who had previously worked out well at Mimico may be a good
candidate for transfer. The same day LE reviewed ZZ’s Level of Service Inventory
(“LSI”) a computerized system of assessing the risk level of inmates. On reading the
first few pages of inmate ZZ’s LS1, LE noted that ZZ’s score was 12, which was in the
medium risk category and thus was acceptable for consideration as a worker. LE
testified, however, that by not reviewing the LS1 more thoroughly, he missed the
information that the score of 12 had been over ridden as a result of a misconduct
imposed on ZZ after the discovery of a cell phone in his possession.
[30] LE testified that sometime later the grievor called him. He told the grievor that he had
not heard back from CNCC. Then a few weeks later the grievor personally came to see
- 17 -
him in his Mimico office and again asked whether he had heard anything. When he
replied that he had not, the grievor told him that he had a childhood friend from Sault Ste
Marie, DC, who was now a classification officer at CNCC and said “let’s call him”. LE
called DC in the grievor’s presence and asked whether DC had looked into whether ZZ
was suitable for transfer to Mimico. DC told LE to look at ZZ’s LS1. LE handed the
phone to the grievor. LE testified that when he first looked up ZZ’s LS1 he had only
focused on the score of 12. He did not notice the “override”. However, upon closer
examination he noted that ZZ was in for several serious offences, had an attempted
escape and had served a long period of pre-trial custody. As LE put it, the LS1 had “a
lot of red flags”, and ZZ was not “a Mimico kind of guy”. LE testified that the next time
he called CNCC about ZZ, a female classification officer advised him about ZZ’s cell
phone misconduct, and told him that it was unlikely that ZZ’s transfer would happen.
When the grievor called again to follow up, LE passed on that information to him. LE
suggested that ZZ’s wife write to the superintendent asking for a transfer on
compassionate grounds.
[31] The evidence indicates that shortly thereafter, the grievor turned up at LE’s office at
Mimico again, and suggested that they go out for lunch. They went to a restaurant called
“Licks” located nearby. While they were eating a female came to their table. The
grievor introduced her to LE as ZZ’s wife DZ. She expressed her sadness about her
husband being incarcerated at CNCC, making it very difficult for her to visit. LE
suggested that she write to the Superintendent. LE testified that the grievor had given no
indication when he suggested that they go out for lunch, that DZ will be meeting them,
and that if he had known, he would not have agreed to go to lunch. Subsequent to the
Licks lunch the grievor made one or two calls seeking an update and LE advised him
that there was nothing he could do to assist. When shown the OR by Ms. KM which
records that the grievor told her that LE agreed to accept ZZ at Mimico, LE denied that
he told the grievor that. He outlined the process that must be followed where an inmate
requests a transfer, that it requires the approval of the Assistant Superintendents of both
institutions and he had no authority to agree to any inmate transfer. All he agreed to do
was to inquire whether ZZ was suitable for transfer. In hindsight, he conceded that he
should not have pursued the grievor’s request as much as he did, and that he did so only
- 18 -
because he wanted to do the favour the grievor requested, and because he believed the
grievor’s assurance that ZZ was suitable for transfer to Mimico.
[32] During cross-examination, union counsel stated that the grievor would deny that he told
LE that ZZ was a friend of his father. LE reiterated that the grievor said that. He agreed
that he did not do a OR following the Licks encounter with DZ. Counsel put to LE an
OR written by CNCC classification officer, DC to the effect that during a call LE made
on March 25, 2008, LE had stated that “Mimico was willing to take Mr. ZZ on
compassionate grounds”. LE conceded that he may have called DC that day, but denied
that he said that. He explained that he could not have said that because he had no
authority to accept or approve a transfer of an inmate on compassionate grounds. LE
suggested that DC must have misunderstood him. He agreed that in requesting his
assistance to have ZZ transferred to Mimico, the grievor did not make any threat or offer
him any inducement. LE agreed that he had not received any discipline in relation to his
involvement around ZZ’s transfer issue.
[33] Mr. DC was a Rehabilitation Officer at CNCC at the relevant time. Part of his
responsibility was to classify sentenced inmates. He testified that CNCC located in
Penetanguishene was a maximum security institution. He reviewed inmate ZZ’s LS1
and confirmed that the Classification Officer who did ZZ’s classification had determined
ZZ to be a maximum security inmate and had classified him to CNCC. As a result on
February 14, 2008 ZZ was transferred to CNCC from Maplehurst CC. DC testified that
he knew the grievor, having grown up with him in Sault Ste Marie. On February 21,
2008 the grievor called him at work. They had last spoken about 10 years earlier when
both were working at a gas station in Sault Ste Marie. After chatting for a few minutes,
the grievor told him that he was calling on behalf of an inmate by the name of ZZ, to
have him transferred from CNCC to Mimico. The grievor told him that ZZ was a former
business partner of his father and an acquaintance, and that ZZ wants to move to Mimico
to be closer to his family. He said that ZZ was a good inmate and caused no problems.
According to DC at the time he did to know who ZZ was. While on the phone, he pulled
up and reviewed ZZ’s LS1, and noticed all kinds of “red flags” and that he had been
classified as a maximum risk inmate. He told the grievor that ZZ was “a max” and that
- 19 -
he could not transfer a “maximum inmate” to Mimico. The grievor told DC that he had
a friend (Mr. LE) at Mimico and that he would ask LE whether he could do anything.
On the afternoon the same day, DC received another call, this time from LE, who said
that he was sitting in his office with the grievor. LE told DC that it would not be a
problem to have ZZ transferred to Mimico. DC responded that ZZ was a maximum risk
inmate and that it was not possible to transfer him to Mimico unless his risk level is
lowered. He advised that LE should review ZZ’s LS1.
[34] DC testified that after the second call he felt pressured by LE and the grievor, and felt
uncomfortable with that. He informed the CNCC Deputy Superintendent/Programs Mr.
Bill Johnston, about the calls. Mr. Johnston advised him to keep notes of what was
occurring. Then during the third week of March, the grievor called again, and inquired
about transferring ZZ. DC again told the grievor that he could not do that, and that the
proper procedure was to submit a request for reclassification/transfer on the appropriate
form. The grievor told DC that ZZ’s wife was very distraught about her husband being
so far away and on one occasion became very emotional and was crying. DC told the
grievor that if he wanted, he could do the paper work for a transfer request and submit it.
However, DC commented that it was unlikely that the two deputies would approve the
request for ZZ. DC testified that on March 25, 2008, he received a call from LE who
informed him that Mimico was willing to accept ZZ on compassionate grounds. The
same day DC filled out a “Request for Re-classification/Transfer” form for ZZ. The
request was made on “compassionate” grounds described as “inmate requests a transfer
on compassionate reasons. He would like to be housed in a correctional centre closer to
home in order to have better contact with family”. DC gave the completed form to
Deputy Superintendent Johnston and told him, “this is the inmate I talked to you about”.
Shortly after, Mr. Johnston met with DC, who gave an update of what had occurred
since he last talked to Mr. Johnston. Mr. Johnston instructed DC to submit an OR
detailing the information. The OR filed by DC the same day was filed in evidence. It is
substantially consistent with DC’s testimony before me.
[35] Under cross examination, union counsel asked DC whether he specifically recalled the
grievor actually say that he was “calling on behalf” of ZZ, that ZZ was “an
- 20 -
acquaintance” and “a former business partner of his father”, and suggested that the
grievor would be denying that he made those statements. DC replied that he was certain
that the grievor stated that ZZ was a former business partner of his father. Counsel
further gave notice that the grievor would be testifying that, DC did not say to the
grievor during any of the calls that ZZ was a maximum risk inmate. DC did not change
his testimony. In fact he stated that he recalled LE asking him why ZZ was a maximum
and that he told him about the offences and the cell phone. DC initially testified that he
felt coerced during the telephone calls, but corrected himself and said that it was more
accurate to say that the calls made him uncomfortable. In re-examination DC stated that
the grievor and LE were “pushing hard to have this guy moved”. Since he felt
uncomfortable and did not want to be any part of it, he agreed to submit a transfer
request form to his boss and let him decide.
[36] Ms. KM, CNCC Classification Officer, testified that “security” had instructed her to let
them know if the grievor ever calls her about an inmate transfer. On June 19, 2008 she
received such a call from the grievor and informed security. She was instructed to
submit an OR and she did. Referring to her OR, KM testified that the grievor called and
identified himself as a CO at Maplehurst. He told her that he was calling to have an
inmate named ZZ transferred from CNCC to Mimico. He told her that ZZ is a former
business partner of his father. He said that he wanted ZZ transferred to Mimico so that it
would be easier for ZZ’s wife and children to visit him. He told KM that two
classification officers at Mimico, LE and JP, had agreed to accept ZZ, and that CNCC
could just add ZZ to the bailiff’s list for transfer. Ms. KM explained to the grievor that
if ZZ had already been classified to CNCC a procedure had to be followed to have his
classification changed, that in any event she had a backlog of transfer requests to deal
with, and that she was not in a position to look at ZZ’s request. The grievor told KM
that while he was not asking her to bend the rules for ZZ, he would appreciate any
assistance she could provide to get ZZ transferred to Mimico. He told her that Mr. DC
classification officer at CNCC had been in the process of doing the transfer for ZZ when
he was sent on a secondment. KM again told him that she “could not help at this time”.
The grievor asked if he could follow up the next week and she agreed. The grievor told
her that ZZ had been previously housed at Mimico, that Mimico needs “cleaners”, and
- 21 -
that Mimico was requesting that ZZ be transferred to Mimico. The grievor told her that
LE had told him to “just have CNCC put ZZ on the fucking bailiff’s list”. She felt that
the grievor was being “kind of pushy” and almost aggressive. However, later during the
call the grievor tried to humour her, stating that her voice sounded familiar. KM
testified that following the call she reviewed ZZ’s LS1 and client profile and concluded
that he was properly classified to CNCC as a “max inmate”. In cross-examination
counsel put to KM that the grievor would deny that he told her that ZZ had been a
business partner of his father or that he mentioned JP during the call. KM stood by her
testimony in chief.
[37] In 2008, Ms. SS was employed at CNCC as a Discharge Planner. She testified that in
March or April of 2008 she received a call from the grievor. He introduced himself as a
CO at Maplehurst. He said that he was calling to see if she could assist an inmate named
ZZ at CNCC, get transferred to Mimico. SS recalled that the grievor told her that ZZ
was a friend of his family, a nice person, and that ZZ wanted to be housed closer to his
family. The grievor told SS that CNCC is “super max” and that ZZ does not need to be
there. SS informed the grievor that she did not classify inmates, and that it was the
responsibility of the classifications officers. She testified that despite that, the grievor
had called her several times again and left messages inquiring what was happening with
ZZ’s transfer. She recalled one occasion when she actually answered the call. The
grievor told her that DC, a classification officer at CNCC was a friend of his, and asked
whether she could speak to DC about transferring ZZ. She agreed, and spoke to DC a
couple of times about the grievor’s request. Filed in evidence was an e-mail SS sent to
the CNCC Security Manager on June 9, 2008, with copy to DC. In it, SS informed that
she had received several calls from the grievor asking her to facilitate a transfer for ZZ
from CNCC to Mimico. She mentioned that the grievor told her that his family knows
ZZ’s family and that LE at Mimico was willing to accept ZZ for the work program. She
advised that the grievor asked her to speak to someone at CNCC classification on his
behalf and that when she spoke to DC, DC advised her to inform the security manager
about the grievor’s request. In re-examination, SS agreed that the grievor was very
friendly during the telephone conversations and that she did not feel threatened.
- 22 -
[38] In-chief the grievor was asked how his attempts to have ZZ transferred to Mimico
started. He replied that ZZ knew him from Mimico and that ZZ “asked me if there was
anything I could do to assist him to be transferred to Mimico instead of Penetang.” He
recalled ZZ mention his desire to be closer to his family, and say that “it had been so
long since he had hugged and kissed his children”. On several subsequent occasions, ZZ
asked him whether anything was happening about his transfer to Mimico.
According to the grievor, in response to ZZ’s request, he talked to Maplehurst
Classification Officer, Ms. LY. He informed her of ZZ’s desire to be closer to family
and that ZZ had been at Mimico before and had “good moral standing” in the unit. She
told him “leave it with me”, but he did not hear back. The grievor believed that LY had
accepted a secondment and left her position shortly after. The grievor testified that he
next called Mimico Classification Officer, Mr. LE, who he knew from the time he
worked at Mimico, “looking for input and advice”. He told LE that ZZ was a very
respectful inmate, explained ZZ’s desire to go to Mimico and provided ZZ’s OTIS
number. While still on the phone, LE pulled up ZZ’s OTIS on computer and said that “it
shouldn’t be a problem”, but that CNCC would have to initiate the transfer. LE said that
Mimico was short of inmates to work in the kitchen and laundry, and asked if ZZ would
be willing to work. LE suggested that the grievor find out from CNCC whether, they
were willing to send ZZ to Mimico. The grievor testified that he informed ZZ about his
discussion with LE, and ZZ indicated his willingness to work at Mimico. He recalled
calling LE again to inform that ZZ was willing to work. LE again told him that he
should talk to CNCC and that the transfer could be done on compassionate grounds. The
grievor testified that ZZ did not offer him any bribe, inducement or favour in return.
[39] The grievor testified that he also called CNCC. He was not sure whether he first spoke
to Ms. SS or Ms. KM. He told the female officer that he was calling to see if ZZ could
be reclassified to Mimico. She told him that she was backlogged because the computer
system was down, and asked him to call again in two weeks. In the meantime on a few
occasions ZZ had asked him for updates about his transfer. He called CNCC two weeks
later and spoke to the same female officer and was told that the system was still down.
The grievor waited two more weeks and called a third time. This time she spoke to a
different female classification officer. When he explained to her the purpose of his call,
- 23 -
she stated that the person to talk to about inmate transfers was Mr. DC, and transferred
his call to DC. Union counsel referred to an OR filed by DC and asked the grievor
whether he told DC that ZZ was “friends and a business partner of his father”, as written
in the OR. He replied, “I never said those exact terms.” Asked whether he mentioned
his father at all, the grievor said, “I mentioned that ZZ had mentioned my father”. He
testified that when the female officer told him that his call was being transferred to DC,
that name “rang a bell”. Once he spoke to DC he realized that DC was a childhood
friend of his. They caught up and chatted for a bit, before talking about ZZ’s request for
a transfer. The grievor denied that during the call DC told him that ZZ was a maximum
security inmate and could not be transferred to Mimico. According to the grievor the
call ended with DC telling him that he would look into it.
[40] The grievor recalled that a call was made to DC from LE’s office subsequently, but
could not recall if it was on the same day as his initial conversation with DC. According
to him, he was visiting some friends in Toronto on the day in question and decided to go
to Mimico and cash in some meal tickets he had found at the time he moved residences.
The office where meal tickets could be cashed was located near the classification
officers’ office. As he passed the office he saw LE at his desk and he walked over “just
to say hi”. They chatted for a few minutes. Then he told LE that it did not look like
ZZ’s transfer will happen, and that he was “getting the run around”. He told LE that he
had talked to the Classification Officer at CNCC, DC who was well known to him, and
asked whether he could speak to DC. LE agreed. The grievor made the call and got DC.
He told DC that he had stopped by at Mimico and that LE wanted to talk to him, and
handed the phone to LE. LE did not tell him that DC had stated that ZZ was a maximum
security inmate who could not be transferred to Mimico or that ZZ was caught with a
cell phone. Nor did he hear LE ask why ZZ was “a max”. However, he recalled hearing
LE tell DC that ZZ had been at Mimico before, that he had fence clearance, that he
wanted to be closer to his wife and children, and that Mimico was short of workers. He
testified that DC did not ever tell him that his request to transfer ZZ was unprofessional
or inappropriate or that it made him uncomfortable.
- 24 -
[41] The grievor could not recall whether he called DC again subsequent to the call from
Mimico, but said that it was possible he did. He agreed that he told DC that ZZ’s wife
was “not doing well”, but denied that DC told him that there was a process to follow for
inmate transfers. Since ZZ had already been moved to CNCC by March 28, 2008, union
counsel asked the grievor how he knew that ZZ’s wife was not doing well after his
move. He explained that ZZ’s cell mate at Maplehurst had maintained contact with ZZ
at CNCC, and that inmate told him that. The grievor agreed that he may have made a
fourth call to DC on March 26th as DC had recorded. The grievor denied that LE had
told him that the chances of a transfer were not good because ZZ had a misconduct and
also denied that he had called LE a few other times.
[42] The grievor agreed that he called CNCC and spoke to Ms. KM, but denied that he told
her that ZZ was a former business partner of his father. He said, “what I recall telling
her is that ZZ mentioned my father and said that he had possibly done some business
with my father in the transportation industry”. He denied telling KM that “CNCC can
just add ZZ to the bailiff’s list”. Asked whether KM told him that ZZ needs to be
reclassified before he could be transferred, the grievor replied, “I don’t remember the
whole conversation, but what I do recall is that no staff at CNCC ever explained to me
the policy and procedure for inmate reclassification”. He denied that he told KM that
DC was in the middle of doing the transfer. He had only told her that he had spoken to
DC and had heard that DC had been sent on secondment.
[43] The grievor agreed that he made several calls to Ms. SS at CNCC, but explained that he
did so because he was asked to call back later. When asked whether he told SS that his
family knew ZZ’s family, the grievor replied, “Not exactly. To all CNCC staff what I
said was that ZZ mentioned that he had known my father or that he assumed he knew
my father”. The grievor could not recall asking SS to speak to DC on his behalf.
Counsel pointed out that SS had recorded his personal cell phone number, and asked him
whether he provided it to SS. The grievor replied that he may have left it in a voice-
message, in addition to his work number, “by force of habit”. Asked whether anyone he
spoke to about having ZZ transferred had ever told him that what he was doing was
unprofessional or inappropriate, the grievor said “no one did”.
- 25 -
[44] Union counsel asked the grievor whether he ever wrote a letter for ZZ for his sentencing
proceeding. When he said “no”, counsel asked why he told the police, as indicated in
the transcript, “I think I did”, and that he “may be able to get a copy”. The grievor
replied that during the police interview he was very nervous and scared, and when he
was asked about the letter he “felt the safe answer is to say I think I did”. When he said
“I may be able to get a copy” what he meant was to say that if he did write such a letter
it would be on file somewhere in the system and a copy may be available. With regard
to the Licks lunch, the grievor testified in chief that a few days earlier ZZ’s wife DZ had
called to inquire about ZZ’s transfer. He mentioned to her that he was going for lunch at
Licks with a Mimico classification officer “tomorrow or the next day”, during that
officer’s lunch break. The grievor testified that on the day in question, he and LE were
having lunch seated by the front window when DZ entered, approached their table and
said “hello”. He introduced LE to her. The grievor testified that he was “shocked and
puzzled” because he had not told her the date, time or the Licks location where he would
be going for lunch with LE. The particular Licks location where they ate was
approximately 2 to 3 kilometres from Mimico. The grievor testified that after the
introduction, DZ gave LE a letter she had drafted and asked LE for his “advice and
input” about its content. LE skimmed through it and told her that the letter was fine, and
that she should send it to the CNCC Superintendent. He recalled that DZ cried and
stated how much she missed her husband, thanked and left. The grievor testified that
after DZ left, he and LE discussed that while the object of the corrections system
supposedly was to rehabilitate and reintegrate criminals into society, it fails to do so by
locating inmates far away from family. He said that LE did not ever tell him that he was
bothered by the incident. Asked why he did not file a OR about this, the grievor replied,
“I probably should’ve. But the conversation was very general. I didn’t feel it affected
my job performance or the institute’s safety and security. If this ever occurs again I will
make full disclosure”.
[45] Asked why he did not mention the Licks incident during questioning by the CISU, the
grievor replied, “it’s very possible I forgot at the time”. Asked why he continued to call
CNCC staff even after ZZ had been moved there, he said “I felt I was never given a real
answer as to why ZZ was not transferred to Mimico. I guess I was looking for some
- 26 -
closure on the situation. I felt it never impacted my personal life or the safety and
security of the institution”. The grievor testified that he had not called on behalf of any
other inmate seeking a transfer. Asked why then he did so for ZZ, he replied, “ZZ was
very friendly with me, and also with other staff. I guess I felt I was not respected by
classification staff by not being given a full and complete answer.” Asked to elaborate,
he said “I was never told “no”, never told “don’t call back, this transfer can’t be done”. I
feel that I should’ve got the opportunity to speak about ZZ’s situation and if anyone felt
I was doing something wrong, I should’ve been given the opportunity to justify my
actions”.
[46] Union counsel pointed to Mr. McDonald’s evidence that the grievor had approached him
on two occasions and had asked him to “put in a good word” for ZZ. The grievor
recalled going to Mr. McDonald but did not recall how many times. He testified that he
did not use the words “put in a good word” and denied asking Mr. McDonald about his
testimony in Court or asking Mr. McDonald why he “hated ZZ so much”. He said
“maybe I told him to have a word with “. He testified that it was possible that ZZ told
him that Mr. McDonald testified at his sentencing hearing and that he wanted to speak to
Mr. McDonald. Asked if Mr. McDonald explained to him that there was a protocol to
follow for inmate transfers, the grievor said that he did not, and if Mr. McDonald had
done so, he would have disclosed to him all the steps he had taken thus far to have ZZ
transferred, and what his intentions were in doing so. If Mr. McDonald had told him to
stop his actions he would have done so, because “my job is not worth losing for the
transfer of an inmate”. He testified that he was treated unfairly and not given “the
opportunity to justify my actions”. Asked by the Board what he meant by “opportunity
to justify my actions”, the grievor said “’basically, the opportunity to present to Mr.
McDonald what I had done. My conversations with ZZ, the calls I made to
classification officers and the brief interactions I had”.
[47] In cross-examination, the grievor agreed with the records showing that in early 2008 DZ
lived in Proton Station. He agreed that when he testified that he happened to see DZ at
Canyon Creek in Etobicoke in early 2008, DZ must have travelled a long way to that
restaurant. He reiterated that earlier DZ had called him about getting ZZ transferred to
- 27 -
Mimico and that he had no idea how she got his cell phone number. When counsel
suggested that he met with DZ many times, including after ZZ’s transfer to CNCC, the
grievor agreed that he had seen her, but they were not “meetings”. He agreed that at
least by January 2008 he knew both inmate ZZ and inmate JG. Counsel suggested that
the grievor knew that, JG and AD had visited ZZ while incarcerated at Maplehurst. The
grievor replied that he could not recall if he knew that.
[48] Counsel referred to the grievor’s testimony in chief that DZ had told him that she did not
want to drive on 400 series highways to visit ZZ at CNCC because driving on highways
is dangerous. Counsel pointed out that that testimony was inconsistent with the evidence
adduced through Google maps that even though the drive from Proton Station to Mimico
was longer in distance by 9 kilometers, it was faster because the drive was mostly on
highways, whereas the drive to CNCC involved many rural roads with slower speed
limits. The grievor’s reply was “ok”. He agreed with employer counsel that on January
16th, he told Mr. McDonald that he knew ZZ from Mimico and asked Mr. McDonald to
consider transferring ZZ to Mimico. Asked why he did not declare that ZZ had told him
that he was a former business partner of his father, he replied that because he could not
validate that ZZ’s statement was true, he did not feel he had to. He agreed that
transferring inmates was not part of his job, and that he had testified that he could care
less where ZZ was housed. Asked why he then made all those efforts to have ZZ
transferred to Mimico, he replied that because ZZ asked him for his assistance, he was
simply seeking input and guidance from people who knew the process. Counsel
referred to LE’s evidence that the grievor told him that ZZ was a friend of his father.
The grievor testified that what he told LE was that ZZ said so.
[49] When employer counsel suggested that even after ZZ had been already moved to CNCC,
he had a meeting with DZ and LE at Licks Restaurant, the grievor responded “I won’t
call it a meeting”. He reiterated under questioning that he did not set up a meeting with
DZ, that he did not tell her the location, date or time he was going for lunch with LE.
Counsel suggested that there were at least 15 Licks locations in Toronto and that for a
shift worker like LE “lunch break” could be anytime. The grievor agreed. Counsel
referred to his evidence in chief that he was shocked when DZ turned up at the
- 28 -
Etobicoke Licks and suggested that he was shocked because he had not given her a date,
time or location, and “she would have had to stake out at all the Licks restaurants for two
days or more” to find them. The grievor replied “I was shocked because she came while
we were eating. Sorry, I was shocked because I was not prepared. That’s a better way
to put it”. Asked again why he was shocked, the grievor said that it was because she
interrupted him while eating, and that no one else had ever interrupted him while eating.
Counsel suggested that when an inmate’s wife makes a request as DZ did, a “bell must
go off”. The grievor replied that looking back, it should have, and that he should have
reported it. He agreed that he did not disclose the Licks meeting to the CISU and
admitted it only after LE had testified about it.
[50] The grievor agreed with employer records showing that March 13, 2008, the day of the
Brampton Eastside Mario’s dinner, was a scheduled day off for him, and that on March
14th and 15th he was scheduled but he had requested for, and received, leave without pay.
He also agreed that the stated reason for the request for leave was “funeral of my wife’s
grand-father”, that he was requested by his operational manager for additional
information, and that he had made representation that on March 14th he was required to
attend the wake out of town, and that the church service was on the 15th. He was asked
whether he attended the wake on March 14th. He replied that he could not recall. Asked
again whether he could not recall attending a wake, he replied “I can’t”. Counsel
produced the obituary notice which indicates that the wake (and a reception) was on
March 13th and not the 14th. The grievor agreed that March 13th was the same day of the
Eastside mario’s meeting. Counsel pointed out that the wake times were 2 p.m. to 4
p.m. and 7 p.m. to 9 p.m., and suggested that the grievor could not have attended the
wake between 7 to 9 p.m., because at the time he was in Brampton at Eastside Mario’s.
The grievor agreed. Asked whether he recalled attending the wake between 2 p.m. and 4
p.m. before the Eastside Mario’s dinner, which he had testified was around 8 or 9 p.m.,
the grievor replied that he recalled being at a wake, but could not recall at when.
[51] Employer counsel pointed out that ZZ was moved to CNCC on February 14, 2008, and
that he had told the CISU that he cared less about ZZ and that after that he did not make
any calls, when in fact he had called KM at CNCC even as late as September 26, 2008.
- 29 -
The grievor replied that he was “confused about dates”. Counsel suggested that when he
called DC at CNCC on February 21, 2008 DC has documented that he told the grievor
that CNCC was a maximum facility and that he could not transfer ZZ from there to
Mimico. The grievor denied that, and added “If he found my call unusual, why didn’t he
tell me that”. He insisted that he did not know CNCC’s security level and did not
inquire.
[52] The grievor agreed that he told DC that he had a friend at Mimico, and the same
afternoon drove from Milton to Mimico to meet LE. Counsel pointed out that it was his
day off and he drove 30 to 40 minutes from Milton to see LE at Mimico. The grievor
explained that he went to Toronto often on his days off. He reiterated that the reason he
went to Mimico CC while in Toronto was to cash in the meal tickets. He agreed that he
had found the tickets when he moved to Milton a year earlier, and agreed with counsel’s
suggestion that it was just coincidence that on the very day he talked to DC about his
friend at Mimico, he happened to go to Mimico to cash in the meal tickets he had found
a year earlier.
Allegations relating to the grievor’s association with inmate JG
[53] JG’s client profile indicates that he resided with his father at an address in Brampton.
His father is listed as JG’s “family/emergency contact” at that address. JG’s historical
summary shows that he was incarcerated on six occasions, the first on November 29,
1999 and the most recent on October, 2008. The transcript of the police interview with
the grievor shows that when asked “what’s your association with JG”, the grievor replied
“I know him, I used to work downtown”, and added that JG was “not a friend”.
Detective Todd indicated clearly that he did not believe that, and asked again what his
association with JG was. The grievor replied that JG was just an acquaintance, who he
had met downtown when he lived in Etobicoke. He stated that he did not know where
JG lived, or what he drove. Asked what he knew about JG, the grievor replied, “I don’t
know anything about the guy”. Having told the police earlier that he did not know what
JG drove, when asked how the Eastside Mario’s meeting came about, the grievor told
the police “He drove a black Infinite. I remember one time I spoke to him about a car
and he said well I wouldn’t mind getting a couple more”, that he told JG that he had a
- 30 -
friend Mr. JA, who can give a good deal and that he can put him into contact with JA.
The grievor disagreed with the suggestion that he had known JG for a while, and stated
that JG was not a friend and that it would be “weak at worst” to say that JG was an
acquaintance. He insisted that until JG was booked into Maplehurst, he did not know
that he had a criminal record, and that he had “no clue” what JG had done. When he
became aware that JG was in unit 8, and had asked to speak to him, he did not want
anything to do with JG because he did not think that his friendship with JG was to a
level that JG should be asking to speak to him.
[54] The police asked the grievor why he was meeting at Eastside Mario’s with JG, who had
a criminal record for trafficking in controlled drugs, and AD who was driving a vehicle
registered to the wife of another convicted criminal. The grievor replied that he did not
know about their criminal background, and that all they talked about was cars. Asked
who arrived at Eastside Mario’s first, he said he and JA were already seated when the
other three arrived. He said, “then we all sat down and started talking. And then we had
dinner, I left”. Asked why AD was there, the grievor said that JG had told him that he
had a couple of guys who wanted to buy cars, and that one of them was AD. The police
put to the grievor that he talked to “a lot of people with criminal records”. The grievor
replied that his conversations do not get to a level where he would ask the people he
talked to “hey do you have a criminal record”. It was pointed out that while he had
stated that he had spoken to JG only 3 or 4 times, his telephone records show that he
talked to JG 19 times. He replied, “It doesn’t say the depth of those phone calls”. When
the police stated that there was “substantial proof that there had been 19 contacts
between the two of you”, the grievor explained that while the records may show 19 calls
were made, he had not talked to JG 19 times. The employer put into evidence telephone
records for the grievor’s cell phone number for the period June to September 2008. It
establishes that during that four month period, 12 calls originated from the phone
number registered to JG’s father at the Brampton address, (where JG also resided) to the
grievor’s cell phone number, and 5 calls were made from the grievor’s cell phone
number to same Brampton residence.
- 31 -
[55] The transcript of the first interview of the grievor by the CISU shows that when the
grievor was shown a picture of JG and asked what his name was, initially the grievor
provided JG’s last name, but stated that he did not know JG’s first name. However,
momentarily he appeared to guess the first name and got it right. Asked how he knew
JG, the grievor replied that he met JG “in the summer of 2006 and a little bit into 2007”.
He agreed that at that time he was employed as a CO and stated that he did not know
that JG had a criminal record. He said “The way I knew him was simply from the bar,
simply from seeing him out downtown when I lived in Toronto or the
Milton/Mississauga/Toronto area. I’d see him out and about”.
[56] About the Eastside Mario’s dinner, he said that he drove a 2002 black Infiniti and JG
also drove a black Infiniti, and that “when I met him at Eastside Mario’s for dinner he
told me that he had four or five buddies that wanted to buy some Infinities. The guy I
brought with me owned, his father owned or step-father owned 401 Dixie Nissan
Infiniti, and that JA had told him that he had five or six 2007 Infinitis left that he could
give blow out prices on”. Asked if he was not suspicious when someone he only knew
from the bar told him that he wanted to buy four or five luxury cars, he said he was not
suspicious because he had himself bought cars with friends to get a better price. He
testified that he went to Eastside Mario’s with his friend JA, that JG came with his
friend, “and then they sat down and ate dinner”. JA gave a price for the cars, and “That
was the end of it. That’s how I know him”. He testified he had contact with JG 4 or 5
times. Asked if he socialized with JG, he replied that he did not even know where JG
lived, that when he was hanging around in the bar, he talked with JG about cars because
both drove Infiniti cars. JG told him that he would like to upgrade his Infiniti and that
he had friends also who also wanted cars. The grievor told the CISU that “It’s just an
everyday conversation” and that he would not ask JG “Hey do you have a criminal
record. I can’t talk to you”. He said he never went out with JG socially and that JG was
just an acquaintance.
[57] The grievor stated that when a CO told him that JG was in unit 8 and wanted to speak to
him, he told the CO. “I’m not going down there. I’ve got nothing to say to him. He is
in jail”. He stated that if JG had been sent to his own unit, he would have reported it.
- 32 -
Mr. Ruggiero pointed out that the policy required disclosure if anyone known to a CO
comes under ministry supervision, whether or not he is in the CO’s unit. The grievor
responded that there were other CO’s also who did not follow that policy. Mr. Ruggiero
suggested to the grievor that the fact that DA drove DZ’s car that night indicates a
connection between JG and ZZ. The grievor agreed, but reiterated that he did not know
what DA was driving that night. He stated that the police officer who was conducting
surveillance that night would be able to confirm that he did not see what DA was
driving. He said “They can tell you that I pulled in with JA in my car. I hopped in my
car and I left”. He said, “I didn’t wait to see what they were driving. I didn’t wait to see
it. I just, to be honest with you, I got a bad vibe from the whole situation, so that’s why
it never progressed anywhere and I left the situation”. The grievor told Mr. Ruggiero,
“he was already there when I got there. So I never saw what he drove up in, never. Had
I linked that together sir, rest assured I would’ve ended the conversation right then and
there”. When directly questioned the grievor again reiterated that when he arrived, DA
was already in the restaurant.
[58] Mr. Ruggiero made the following findings in his CISU report as it relates to the grievor
and JG.
3. The ministry investigation substantiated the allegation that CO Bijowski failed
to disclose his relationship with inmate JG in accordance to ministry policy.
It would be reasonable to conclude that CO Bijowski’s version of events
surrounding his attendance at a dinner meeting on March 13, 2008 was
contrived in order to fit the evidence. The reason CO Bijowski attended the
dinner meeting is suspicious by itself, but when the following circumstances
are added to the situation, it would be reasonable to conclude that CO
Bijowski was misleading with his information during a ministry investigation,
which in itself is contrary to ministry policy.
. Inmate JG’s criminal history was unknown at the time of the dinner meeting,
. The purpose of the prearranged dinner meeting was to negotiate and purchase
several luxury sport cars for inmate JG and his friends, at a location other than
a car dealership,
. The meeting did not raise any suspicions,
. An unidentified male, whose name was not remembered, was driving the
vehicle registered to Mrs. DZ,
. DZ is the spouse of inmate ZZ, who was under ministry supervision and
subject to incident 7 identified later in this document.
- 33 -
Notwithstanding the previous finding, when CO Bijowski first became aware
that inmate JG was in custody at the MCC and asking to speak to him he was
obligated to disclose his previous relationship to his manager and/or a
ministry official. He failed to do either.
[59] The evidence establishes that AD, who drove the car belonging to ZZ’s wife DZ, also
had a criminal record. His OTIS report shows four bookings in the period June 2006 to
October 2008, including for obstruction of justice, procuring illicit sex and living on the
avails of prostitution.
[60] Under cross-examination, Mr. Ruggiero agreed that all of the telephone calls between
the grievor and JG’s residence were very brief, and that he did not know what
conversations if any took place, or whether messages were left. He also agreed that his
findings about the Eastside Mario’s incident was primarily based on information
provided by the Police and that he did not interview JG. He testified that regardless of
the level of the grievor’s association with JG, when JG came to Maplehurst, he had a
duty to report.
[61] Filed in evidence was the visitor log for inmate ZZ during the period he was incarcerated
at Maplehurst. It indicates that on January 30, 2008, JG and AD visited ZZ at 5:40 p.m.,
and both identified themselves as a “friend” of ZZ. Moreover, it is documented that ZZ
had named AD as one of two friends authorized to visit him in addition to his immediate
family, and that AD had in fact visited ZZ on several occasions.
[62] Constable Aamer Merchant of the Peel Police testified that as a member of the “Street
Gangs Unit”, he had investigated JG on several occasions. He testified that JG, also
known as “Jay”, transported marijuana for growers and smuggled women for strip clubs.
On the night of the Eastside Mario’s incident, he received a call from a police officer
that JG was meeting with three individuals at Eastside Mario’s in Brampton. Mr.
Merchant rushed to the location with a team. He observed three males sitting in the
restaurant. The police team took position in the parking lot. The three men exited
shortly after and got into a black Infiniti. The grievor sat in the driver’s seat, next to JA.
AD sat in the rear. They talked for 5 to 10 minutes, but the police could not hear the
- 34 -
conversation. Then AD exited the Infiniti, got into a GMC Jimmy and drove off heading
south on highway 10. The grievor and JA drove off in the same direction.
Constable Merchant testified that the police did not follow AD. However, they noted
and ran the plate number of the GMC Jimmy and found that it was registered in the
name of inmate ZZ’s wife, DZ. The police followed the black Infiniti and intercepted it.
The grievor and JA identified themselves with their driver’s licences. The grievor stated
that he was employed at Maplehurst CC as a CO and JA stated he worked at a car
dealership.
[63] Mr. Merchant testified that following the Eastside Mario’s incident the police put JG’s
vehicles under surveillance. Subsequently, a police officer from Hanover informed him
that DZ was driving a black Infiniti G 35 registered to JG. The police also found out
that DZ had been registering herself as surety for a number of individuals in custody at
Maplehurst CC and that she was in possession of vehicles belonging to those
individuals. The police suspected that the individuals were giving their cars to DZ in
return for her acting as their security. It was also established that she was a surety for
AD. The police also discovered that JG and DZ jointly owned a real estate company.
At the time Toronto police was investigating AD for suspected prostitution related
activity. The police suspected that AD was connected to JG and his human smuggling
activity.
[64] Mr. Merchant testified that in December 2009 he attended court in Detroit, U.S.A., for a
proffer, at the invitation of U.S. Homeland Security. JG had agreed to cooperate with
the authorities on the agreement that, subject to verification of the information he
provided, he would receive a more lenient sentence on his trafficking charges. At the
proffer, JG informed that he operated as a broker for transporting marijuana from
Canada to the U.S. for a fee of $ 30-40 per pound of marijuana delivered. He stated that
he had met ZZ at Maplehurst and that ZZ became one of his clients, that since ZZ was
incarcerated, his wife DZ was his “outside contact”. She provided him with the
marijuana for delivery to ZZ’s contacts in the Boston area. JG also stated that AD
worked for DZ, and that the real estate company he jointly owned with DZ was a front
for laundering profits from their illicit business. Constable Merchant testified that
- 35 -
during the Detroit proffer he asked JG why he met with a correctional officer in March
2008 at Eastside Mario’s in Brampton. JG replied “you mean the big guy Donny”, and
stated that Donny was dirty and worked for ZZ as his contact on the outside, and
provided ZZ with cell phones and information. He vaguely recalled that JG stated that
the Eastside Mario’s meeting was about something ZZ wanted done relating to a stolen
car.
[65] In cross-examination, Constable Merchant was specifically asked whether he was certain
that AD talked in the grievor’s car for 5-10 minutes after exiting Eastside Mario’s. He
replied that he was. Counsel for the union asked Mr. Merchant if he clarified with JG
whether he knew for a fact about that he said about the grievor’s connection to ZZ. He
replied that JG was talking about information the grievor brought to him from ZZ, and
was speaking from personal knowledge. Reviewing records, union counsel put to Mr.
Merchant that there was no period of overlap in the incarceration terms served by ZZ
and JG at Maplehurst, and suggested that JG’s information that he met ZZ at Maplehurst
had to be wrong. When Mr. Merchant agreed, counsel asked whether it caused him to
doubt the correctness of the other information provided by JG. Mr. Merchant replied
that the police was able to verify most of the information JG had provided about his
relationships with ZZ and DZ, and that he did not see why JG would lie about an
insignificant issue like where he met ZZ. Mr. Merchant testified that since JG was
released from custody in January 2008, the police randomly put him under surveillance.
He agreed with counsel that between January and October, the only time JG was
observed in the company of the grievor was at the Eastside Mario’s in March. In re-
direct, Mr. Merchant testified that while JG had stated that he met ZZ at Maplehurst, he
did not say how that meeting occurred. Reviewing ZZ’s visitor log, which indicates that
JG visited ZZ at Maplehurst on January 30, 2008, he agreed that the two could have met
Maplehurst in that context, not as fellow inmates.
[66] During testimony in chief, the grievor was asked how he knew JG. The grievor testified
that in the spring/summer of 2008 he had parked his black Infiniti G 35 in the parking lot
of a night club in downtown Toronto. JG, who had also parked his black Infiniti G 35
nearby commented that he liked the black 20 inch rims on the grievor’s car, and asked
- 36 -
where he bought them and how much he paid. The grievor did not know JG’s name at
that time. The following week-end the grievor went to the same night club. JG
approached him and introduced himself. The grievor testified, “we just discussed where
I purchased the rims”. They exchanged telephone numbers so that the grievor could
give JG information on where to purchase similar rims. The grievor testified that
subsequently he had seen JG at other night clubs and had “very general conversations”.
He asked JG whether he still was interested in the rims, and mentioned that his
neighbour worked at 401 Dixie Nissan dealership and that if he was interested in buying
new cars the neighbour may be able to help. JG stated that he really liked the G 35
model and did not mind getting a couple of them.
[67] The grievor stated that time passed with no further contact from JG. In the meantime, he
told JA that he knew someone interested in buying two or three G35s, and JA informed
that he had some one year old G35s with zero kilometers, and that he could knock off
$ 8000 to $ 10,000 off the price on a car. The grievor passed on that information to JG.
The grievor testified that JA told him that he would like to meet with the potential buyer
before he comes in to the dealership. The grievor testified that he and JA were going for
dinner at Eastside Mario’s on March 13, 2008. He informed JG that if he was interested
in talking to JA, “that is where we will be”
[68] The grievor testified that he drove to Eastside Mario’s with JA in his car, and once
seated ordered dinner. While he and JA were eating, JG entered with two other males,
and everyone introduced themselves. The grievor testified that he recognized one of the
men to be AD. AD sat down next to JA, while the other two were standing. According
to the grievor “within less than a minute” JG looked over his shoulder and commented
that he recognized a Peel Regional police officer and had to get out of there. JG and the
other male left. The grievor, JA and AD sat and had a brief conversation “about colours,
options and availability of Infinities”, while finishing the meal. Then the bill was paid
and the three exited the restaurant, stood outside and talked for about 2 minutes, when he
suggested “let’s sit in my car”. The three got into the grievor’s car and chatted for
approximately 5 minutes, “about colours, options and availability and JA said how much
he liked his job”. Then AD thanked, stated that he was interested in buying an Infiniti,
- 37 -
and exited the vehicle. The grievor testified that he did not find it unusual when JG
wanted to buy several vehicles. He explained that he had got a better price by buying
two Jeeps at the same time, one for him and one for another individual. Union counsel
asked whether he had any concern when JG said he had to get out because he had seen a
police officer. The grievor replied “No. Because I know how JG conducted himself at
bars. He was happy-go-lucky and very friendly. Always well-dressed and never caused
any problems. As to what exactly he said, I can’t say whether he said he recognized a
police or simply said I have to get out. The so-called meeting was no more than 30
seconds to a minute. But the CISU talks of a meeting between me and Jay”. He testified
that at Eastside Mario’s there was no discussion about any inmates and that he was not
aware of any connection between AD and inmate ZZ. He added, “I don’t think they
even knew my occupation”.
[69] The grievor testified that when a CO told him that JG was in unit 8 and was asking to
speak to him it caused no concern because several inmates had similarly asked him
about other staff. Asked what his reaction was when he found out that JG was at
Maplehurst, he replied, “I knew that I won’t follow through with the car deal. I was kind
of shocked. My reaction was to avoid him”. He testified that he did not file an OR
because since JG was not in his unit he felt that JG’s presence would not impact on his
job performance, safety or his decision making. Moreover, there had been occasions in
the past where inmates told him that they want to speak to a particular CO, and when he
relayed that information, the CO “didn’t make a big deal about it”. He went on to state,
“If I had come into contact with him directly and if he had asked for any specific favour,
I would’ve reported then”.
[70] Under cross-examination, it was put to the grievor that his testimony that he first met JG
in the summer of 2008 had to be wrong because the Eastside Mario’s meeting was on
March 13, 2008. He corrected himself that he first met JG during the parking lot
conversation about rims in the summer of 2007. Then employer counsel pointed out to
the grievor that he had told the CISU that he had known JG at least since the summer of
2006. He replied that he gave the CISU a “best educated guess” and that he should have
simply said that he could not recall. Counsel referred to the CISU interview transcript
- 38 -
which shows that the grievor told the CISU that he knew JG before he started as a CO at
Maplehurst. The grievor replied, “I should have said I don’t know more often”.
Counsel put to him that he not only told the CISU that he met JG in 2006 or 2007, he
told the police that he and JG frequented the same bars, that JG was well dressed, and
that they had exchanged contact information. The grievor finally agreed that he first met
JG in the summer of 2006.
Allegations relating to the Grievor’s association with inmate JS
[71] Inmate JS’s OTIS profile indicates that he was incarcerated at Maplehurst CC from
January 31, to October 16, 2008. The institution’s visitor log indicates that a Ms. MM
had regular visits with JS. She identified her relationship to JS in each case as “girl-
friend”. In chief, the grievor was asked whether he knew MM. He replied that he met
her at a Mississauga fitness centre while working out, and that he had also seen her at a
night club near Square One Shopping Mall and at the Mall itself. In addition, he had
met her at his girl-friend’s place, and at pool parties thrown by MM’s friend, Mr. RD.
He testified that he worked out and socialized with a group of 7 or 8 individuals
including MM and RD, but that since he moved to Cambridge late 2008 or early 2009,
he had not been in contact with MM. He stated that he was not aware at the time that
MM was JS’s girl-friend. He believed MM was dating RD.
[72] Under cross-examination, the grievor testified that when he resided in Mississauga from
2004 to 2006 he worked out and went out to pubs and bars with MM and a group of
friends, and that he would see MM talk with JS. Asked whether he also talked with JS,
the grievor replied that he would say “Hi”, or “how are you doing”. He only knew JS’s
first name. He testified that after he moved to Milton, he kept in touch with MM by
phone through 2007 and 2008, and had general conversations with her about working
out. Referring to telephone records, employer counsel put to him that between June 1st
and September 17, 2008, MM made 56 calls to him, and he made 17 calls to her, for an
average of approximately 30 calls a month between them. The grievor agreed, but said
that he may not have actually talked with her on every call. Counsel suggested that
given the extent of his contact with MM, at some point she must have told him that she
was dating JS. The grievor replied “never”. Then the following exchange took place.
- 39 -
Q. So you had no idea? A. I don’t think so.
Q. Don’t think so? A. Not to the best of my knowledge.
Q. So she never told you that? A. I cannot remember that kind of talk.
Q. But it could’ve happened? A. I don’t remember.
Counsel pointed out that the grievor had kept in contact with MM and had met JS, and
suggested that it is possible that she mentioned to him that she was dating JS. The
grievor replied, “I’d have to say “no” because that was not a relevant part of our
conversations.” Counsel pointed out that he had testified earlier that he could not
remember, and asked “Are you now saying she never did”? He replied, “I can say she
never came out and said she was dating him”.
[73] The grievor agreed that MM knew that he was a CO at Maplehurst. When counsel
suggested that in February 2008 MM must have told him that JS was incarcerated in
Maplehurst, he replied, “I don’t think so. As I said I don’t recall the content of all my
conversations”. Then the following exchange occurred:
Q. In February 2008 JS came into Maplehurst? A. I didn’t know that.
Q. So you say she didn’t mention it to you? A. it’s possible she did, I don’t know when
or in what context. I didn’t really care.
The grievor was shown the Maplehurst visitor log for June 3, 2008, showing that MM
visited JS at 2 p.m., and his telephone records indicating that on June 3rd MM called the
grievor four times from her Mississauga residence at 1:18 p.m., 4 p.m., 7:43 p.m., and
11:30 p.m. The grievor agreed that the drive from MM’s home to Maplehurst is
approximately 20-25 minutes. The grievor’s phone records indicate that the same day he
also called MM at 3:36 p.m., 9:50 p.m., 10:33 p.m. and 10:53 p.m. The grievor agreed
that at 1:18 p.m. he was on duty. Counsel suggested that since MM had talked to him
while on duty shortly before leaving home to visit JS she must have mentioned that she
was visiting JS. The grievor disagreed and added that even though the records show that
there were calls between his phone number and MM’s number, he may have been
talking to RD who sometimes used MM’s phone. Counsel pointed to the evidence that
the grievor had called RD’s own phone twice separately that day. The grievor insisted
that MM had not indicated to him that she was visiting JS that day. Asked why he made
four calls to MM that day, he replied “To see if we were going to work out that day”.
- 40 -
Asked if he met MM to work out that day, the grievor replied that he did. Asked
whether at that time MM mentioned that she had visited JS at Maplehurst earlier that
day, he replied, “I don’t recall. But even if she did, it is not relevant to me. I don’t
understand why that is so important”. When asked again, he said “No. I don’t
understand the significance. Why would she tell me she was visiting him?” Counsel
asked “Why did you call her back at 3:36 p.m.?” and he replied, “We don’t have set
breaks at Maplehurst. So during a break I may have called to see if she was working out
that night. I don’t know”. Counsel asked why he called MM on June 8th while on duty.
He replied, “I don’t know”. Asked about his calls to her on June 4th, 5th and 7th while off
duty, he stated that he occasionally worked as bar-tender at a downtown bar and that
June 4th call at 3:12 a.m. was likely made after he finished his shift there. Asked why
MM called him on June 5th, 10th and 13th, he said that he could not remember.
[74] The Maplehurst visitor log shows that MM next visited JS on June 21, 2008 at 5:30 p.m.
The work schedule indicates that the grievor was on a 8:00 a.m. to 8:00 p.m. shift that
day. The phone records establish that at 2:42 p.m. MM called the grievor and that the
call lasted for 2 minutes and 55 seconds. Employer counsel put to the grievor that it is
safe to assume that during the call MM mentioned that she was visiting JS. The grievor
replied, “It’s a possibility. But I don’t recall”. Counsel pointed out that before her 5:30
p.m. visit, MM called him again at 4:01 p.m. and spoke for one minute and at 4:59 p.m.,
just 1/2 hour before she signed the visitor log, he called her and spoke for one minute
and nine seconds. He suggested that during those calls MM’s visit would have come up.
The grievor replied, “It may have. But I am still trying to understand the rationale for
those calls. I can’t recall if she asked “Are you working today?” or “Is it busy there
today?” I am trying to think back as to when my breaks were. On afternoons breaks are
not set. So breaks were taken between 1:30 p.m. and 3:30 p.m. so I may not have been
on the floor during those calls”. He agreed with counsel that regardless of break times,
he was on duty from 8:00 a.m. to 8:00 p.m. When counsel pointed out that after visiting
JS, MM called the grievor again at 7:00 p.m. and talked for 1:05 minutes and suggested
that she would have mentioned that she had just visited JS, the grievor said “That’s
possible”.
- 41 -
[75] Counsel pointed out that on June 17, 2008, while he was on duty, MM called him three
times and that he made three calls to her. Counsel asked whether he had any explanation
as to why he had those conversations. The grievor replied “No, sir”. Counsel referred to
the evidence that the same day, another CO had tipped off management that JS is a
friend of the grievor, that when JS’s girl-friend visits she informs the grievor, and that
the grievor calls staff at visitor reception and attempts to convince them not to mark
those visits against JS’s name. Asked whether he had any idea why a colleague of his
would say that, the grievor replied “no”. Without setting out details, it suffices to note
that counsel also reviewed the documentary evidence relating to visits MM made with
JS on July 15th, August 4th, and August 10th, 2008, and the telephone calls exchanged
between MM and the grievor on those day, and suggested that there was a pattern of
MM calling the grievor approximately ½ hour before each visit. The grievor agreed.
Counsel suggested that, therefore, he knew when MM was visiting JS. The grievor
agreed that he knew that she was visiting, but not when she visited. He also agreed that
while the telephone records put into evidence cover only the period June to September
2008, the calls between him and MM continued in October and November. When
counsel pointed out to the grievor that he had called JS his “friend”, he replied, “That
was a mistake. I used that term loosely. Now I have learned not to call everyone my
friend or buddy.”
Allegations relating to the grievor’s association with inmate NS
[76] The employer has alleged that the grievor had associations with inmate NS without
reporting to management, and did favours for NS. The evidence relating to the favours
the grievor is alleged to have done for NS was mostly hearsay, most of it statements
made by NS, who did not testify. While that hearsay evidence was admitted, I do not
accept it for the truth of its content. That evidence is not reviewed in this decision.
However, I shall review the evidence relating to the alleged connection between the
grievor and NS. At the relevant time NS was an inmate at Maplehurst. Telephone
records for the grievor’s cellular phone establish that on July 20, 2008 and September 3,
2008, the grievor called a phone number registered to a Ms. GS at a Brampton address.
Ms. GS was inmate NS’s wife.
- 42 -
[77] During testimony in chief, the grievor stated that he could not recall either call. He went
on, “The only assumption I can draw is, I have in the past sold things on Kijiji and
Craig’s List internet sites. You can put your phone number to sell or buy anything free
of charge. I use it frequently to list my rental units, to sell items like snow tires, mobile
jackets, motor cycles and cars. I have received several e-mails with a phone number,
asking me whether the item is still available. That’s the only way I can see I called that
number”. Union counsel asked whether he recalled having things for sale on line on
those two dates. The grievor said that it was quite possible he did, and that he requested
from both Kijiji and Craig’s List for a record of listings he had made at the relevant
times, but both informed that such reports could not be provided.
[78] In cross-examination, employer counsel pointed out that on July 20, 2008, the grievor
was on a 8:00 a.m. to 8:00 p.m. shift, and therefore when he called inmate NS’s home
number at 7:33 p.m. he was still on duty. The grievor replied that sometimes the shift is
“done by 7:15 p.m.”. He reiterated that the only possible explanation for his calls to
NS’s wife was that he called back in relation to an inquiry by her about something he
had listed on-line for sale. Asked what he had listed at the time, he replied “I can’t recall
exactly”. Asked whether it is possible that he had nothing listed for sale in July 2008, he
replied “It’s possible”. Asked whether he had a record of receiving any e-mails from
NS’s wife inquiring about items he had listed, he replied “It is possible I deleted them”.
[79] The employer filed an OR by Operating Manager, Ms. Beckie McKinnon, dated July 22,
2008, which is two days after the grievor’s first call to NS’s home. In it, Ms. McKinnon
reported the following to the Superintendent. On July 21, 2002, she found that inmate
NS, who had been in unit 9, had been moved to unit 10, the grievor’s assigned unit. She
asked inmate NS why he was in unit 10. NS told her that the grievor had asked him if he
wanted to move to unit 10. Asked why the grievor would ask that, NS replied that he
had no idea. Ms. McKinnon moved NS back to unit 9 and interviewed NS again. NS
informed her that he was glad to move to unit 10 because his co-accused was also in unit
10. He also told her that he and the grievor had “a mutual friend on the street named
Jay”. She directed the grievor to submit an OR about moving NS from unit 9 to 10.
- 43 -
[80] The grievor’s OR dated July 22, 2008 reads:
On Tuesday July 22, 2008 about 07:50 hours at Maplehurst CC I was assigned to
programs officer on unit 10. About 08:20 hours I was asked by OM 16
McKinnon why inmates PS and NS were brought to unit 10. I stated I did not
know anything about inmate PS. As for inmate NS, due to problems in 10D with
inmates, I was asked by a server if an inmate could be brought up from unit 9. I
asked inmate NP which inmate and he stated NS. I did ask OM 16 Hosegrove if
this could be made possible. OM 16 Hosegrove called the OM 16 from unit 9 and
inmate NS was brought up here from July 18, 2008 to July 21, 2008. There were
no issues on 10D that I am aware of.
[81] In chief, the grievor testified that requests for transfer of inmates due to “issues” were
not unusual. Staff from one unit would call another unit and ask “Do you have any
problem inmates you like to get rid of.” Therefore, he did not consider inmate NP’s
request to move NS to be unusual. He testified that when he asked OM16 Hosegrove
whether it was possible to move NS, he did not express any concern about moving NS.
He insisted that he did not ever speak to NS while NS was at Maplehurst and that his
only interaction with NS was when he escorted NS to unit 10 from unit 9. He also
insisted that he was not aware of any connection between NS and JG, and therefore not
aware of a mutual friend of NS and himself named “Jay”.
[82] Union counsel referred to a confidential informant’s notes to the effect that while NS
was in the segregation unit, the grievor frequently came to segregation and was “hanging
around” there. The grievor denied that he did that. The transcript of an audio taped
interview of inmate NS by the CISU conducted on August 12, 2010, indicates that NS
informed the CISU, inter alia, that the grievor loaned him his cell phone for three days
while he was in segregation. NS also told the CISU that in return he paid the grievor
$5,000.00, which was handed to the grievor by a contact at a strip club in Mississauga.
The grievor denied all of those assertions. Counsel pointed out that the very day he
moved inmate NS from unit 9 to unit 10, (July 18, 2008), JG called his cell number
twice, and a call went out from his cell phone to JG. Counsel asked what those calls
were about. He replied that he could not recall. Similarly he could not recall why JG
called him the next day. Employer counsel also pointed out that on July 20th he had
called “the home of the very person he had just moved from unit 9 to unit 10”, and asked
the grievor to explain why he made that call. The grievor replied, “I can’t say I knew
- 44 -
what that number was”. Counsel asked, “So you didn’t know where that number led?”
The grievor’s reply was, “That’s the safe answer”. The grievor denied that he went to
the segregation unit when NS was there and denied that he had given NS a cell phone for
three days in return for a payment of $5,000.00. He stated that he had no idea as to NS’s
motivation in lying about him. When counsel pointed out that his cell phone record
proves that he did call NS’s home on July 20 and September 3, 2008, the grievor replied,
“I didn’t know that was his wife’s number. I never spoke to anyone who identified as
from NS’s family”.
[83] Employer counsel pointed out to the grievor that after his call to NS’s home on
September 3rd, his next scheduled shift was 7:00 a.m. to 7:00 p.m. on September 5th, and
that the telephone records show that that day he called JG three times, at 4:16 p.m., 6:59
p.m. during his shift, and at 7:16 p.m. after his shift had just ended, and that then JG had
called him also. He was asked what those calls were about. The griever replied that he
had talked with JG “a lot”, and could not recall.
Submissions
[84] Counsel for the employer emphasized that credibility is key to the disposition of this
grievance. He submitted that the grievor’s testimony is not believable. He had made
numerous inconsistent statements to the police, the CISU, and the Board. It
demonstrates that in answering questions put to him, he did not answer based on the
truth, but tailored his evidence to suit his interest at the time. He was evasive and had an
ever shifting ability to selectively recollect events depending on self-interest. Counsel
submitted that when the Board applies the principles in Faryna v. Chorny [1951] 2
D.L.R. 354 (B.C.C.A.), it would lead to the conclusion that the grievor simply was not a
credible witness. Counsel reviewed the evidence in detail and highlighted numerous
contradictory statements the grievor had made. He reviewed the testimony of witnesses
called by the employer including police officers, members of management and
bargaining unit employees. In many cases these witnesses had made contemporaneous
notes or had filed written reports. Counsel submitted that despite denials by the grievor,
the testimony of the employer witnesses ought to be accepted.
- 45 -
[85] Reviewing the evidence as it applied to each of the allegations relied upon by the
employer, counsel submitted that the Board should conclude that all of the allegations
are substantiated. Counsel submitted that the misconduct on the part of the grievor was
extremely serious given his position and the responsibility the employer bears to ensure
the safety and security of the public. The conflict policies and the disclosure
requirements are designed to protect public safety. The grievor’s association with
individuals with criminal backgrounds and his failure to disclose such associations as
required by policy, submitted counsel, goes to the very core of the employment
relationship in a correctional setting. Given his failure to be truthful about his activity
and his lack of remorse, the Board was urged to conclude that the employer had just
cause to terminate the grievor’s employment. Counsel referred the Board to the
following authorities: Alberta v. Alberta Union of Public Employees, Local 012, (2011)
206 L.A.C. (4th) 282 (Tettensor); Alberta v. Alberta Union of Provincial Employees,
(1993) 51 L.A.C. (4th) 397 (McFetridge); Re Khan, GSB 2010-0606 (Briggs); Re
Cassidy, GSB 1456/96 (Leighton); Re Municipal Property Assessment Corp., (2008) 170
L.A.C. (4th) 259 (Tacon); Re Lall, GSB 2008-2807 (Petryshen); Re City of Toronto,
Unreported decision February 6, 2012 (Starkman); Re Gillis et al, GSB 2003-1529
(Abramsky); Re Jacobs Catalytic Ltd. [2006] O.L.A.A. No. 119 (Albertyn); Re Bulk
Systems (Ontario) Ltd. [2005] O.L.A.A. No. 82 (Gray)
[86] The union’s primary position was to the effect that the grievor had not engaged in
conduct which warranted any discipline at all. The union reserved the right to make
further submissions in the event that the Board concludes that while there was no just
cause for termination, a lesser form of discipline was justified. Counsel submitted that
the employer’s attack on the grievor’s credibility was unfair. While acknowledging that
the grievor had made many contradictory statements to the police, the CISU and to the
Board, counsel attributed that to confusion and the grievor’s inability to recall details
due to passage of time. Counsel referred to the grievor’s testimony that he was scared
and nervous during the police interview. The grievor had testified that Detective Todd
was confrontational, demeaning, and disrespectful during the interview. Therefore, it is
understandable that the grievor was nervous, agitated and stressful. Counsel pointed out
that most of the events had occurred in 2008. The police interview was in 2009 and the
- 46 -
CISU was in 2011. The grievor’s testimony before the Board was tendered in 2012.
Counsel urged the Board to consider all of that in assessing the grievor’s credibility.
[87] Counsel urged the Board to not accept detective Todd’s testimony. In his view Mr.
Todd was not a disinterested witness. He had testified that significant funds and time
went into the Project Cantebury investigation. He had testified that he was disappointed
when the crown decided to withdraw the charges because he believed the grievor was
guilty. Therefore, submitted counsel, it is likely that he would desire to see his efforts
bear some fruit, by way of the loss of the grievor’s employment.
[88] The union relied on several “KVP principles”, to argue that the employer’s Conflict of
Interest policy was not enforceable in the circumstances of this case. First, it was
submitted that the policy was not clear as to when the duty to report applied. It does not
make direct reference to association with members of an inmate’s family. While the
statement of ethical principles does refer to relationships with inmates and “their
families and associates”, it imposes no obligation to report such relationships. While
Mr. Ruggiero had testified that there is a duty to report where a CO is in doubt as to
whether there is a conflict, that does not assist the grievor who believed that associating
with an inmate’s girl-friend does not raise any conflict concern. Counsel submitted that
the way the employer interpreted the conflict policy, it was a “moving target”. The
employer treated the policy as an elastic concept capable of being stretched as
management deems appropriate in a given situation. Counsel submitted that makes
compliance with the policy impossible.
[89] It was also the union’s position that there was insufficient notice of the conflict policy
and the consequences of non-compliance. Counsel pointed out that any training the
grievor received on the conflict policy was during the COSTART course when he joined
the ministry in 2002. While the grievor had signed a document containing information
on conflict of interest during his induction interview, that was in 2006. It was in any
event vague and does not include a “run-down” of what may constitute a conflict. It was
submitted that while the policy was accessible on the Ministry web-site, that was not
sufficient to meet the KVP standard.
- 47 -
[90] The union further submitted that the conflict policy had not been enforced in a consistent
manner. It was argued that Mimico Classification Officer LE was a participant in the
grievor’s efforts to have inmate ZZ transferred from CNCC to Mimico. The grievor
made a call to CNCC in the presence of LE. LE did not inform the grievor that he was
doing anything wrong. Similarly LE participated in the discussion at Licks with ZZ‘s
wife. He made no disclosure to the employer. Yet, he received no discipline at all.
Similarly, along with the grievor, two other CO’s had provided favourable reference
letters to ZZ”s defence counsel for his sentencing hearing. All three letters did not
follow policy. The other two officers received no discipline at all, while the grievor`s
conduct was treated as serious misconduct. Counsel submitted that operations manager
Hosegrove had supported inmate ZZ’s transfer request. Yet he did not receive any
discipline either. Counsel submitted that subjecting the grievor to severe discipline,
while ignoring similar conduct by these employees was unfair and contrary to the rules
in KVP.
[91] With regard to inmate JS and his girl-friend MM, counsel conceded that there was direct
evidence by way of telephone records that on the dates MM visited inmate JS at
Maplehurst CC, she had called the grievor at work on his cell phone, and the grievor had
also called her number. Counsel admitted that the evidence leads to suspicion.
However, it does not prove that the calls had anything to do with MM’s visits with JS.
The grievor testified that he did not know that MM was JS`s girl-friend. He explained
that some of the calls, while made between the grievor and MM’s phone number, may
have been between him and MM’s friend Mr. RD. He testified that the conversations
between himself and MM were always about working out and that there was no mention
of MM’s visits to the institution. Counsel submitted that the grievor’s explanation is
reasonable and plausible. He referred to a report made to security by an officer to the
effect that on the days MM visited JS, the grievor called the officers at visitor’s
reception requesting that her visits be not marked against JS. He submitted that while
the hearsay report was admitted into evidence, it should not be accorded any weight
because the author did not testify.
- 48 -
[92] Counsel submitted that while the evidence indicates that the grievor had known JG from
bars and restaurants, the grievor had testified that until JG was booked into Maplehurst
he had no knowledge of JG’s criminal record. Counsel conceded that when the grievor
became aware that JG was in Maplehurst as an inmate, the “best practice” would have
been to make disclosure. However, counsel submitted that failure to do so did not
justify discipline.
[93] Counsel agreed that the union and the grievor had at different times given conflicting
accounts as to details such as who arrived first at the Eastside Mario’s, and who stayed
for dinner and who did not. However, on the critical point of what was discussed, the
only direct evidence came from the grievor. He testified that the conversation was only
about cars. Counsel submitted that there was no reason for the grievor to believe that the
people he was meeting with had criminal backgrounds. While the grievor testified that
JG fled upon noticing the presence of a police officer, that was not a basis upon which
the grievor could reasonably have suspected that JG was a criminal. Counsel referred to
the grievor’s evidence that JG was only a casual acquaintance and that he believed that
since JG was not housed in his unit, as long as he kept a distance and had no
communication with him there was no potential conflict. Counsel argued that constable
Merchant’s testimony that at the proffer at the Detroit criminal court JG had stated that
the grievor acted as a conduit for him and assisted him in his unlawful activity was
entirely hearsay and does not meet the test of reliability. Counsel submitted that JG’s
statement at the proffer that he met the grievor at Maplehurst in December 2007 could
not be true because the records show that JG was not incarcerated at Maplehurst at that
time. Therefore, the credibility of the rest of the statements he made at the proffer must
also be questioned.
[94] Union counsel conceded that the grievor had made inconsistent statements to the police,
the CISU and the GSB as to when he met ZZ’s wife DZ, However, the grievor testified
clearly that his relationship with her was of a very remote nature. It is not clear in the
conflict policy that such a relationship with the spouse of an inmate must be reported.
Counsel submitted that the employer’s characterization that the grievor had “a
relationship” with ZZ is inappropriate because he only had chance encounters with ZZ.
- 49 -
The inconsistent statements the grievor has made about when he first met ZZ is
attributable to his inability to recall some years later.
[95] Union counsel pointed out that all of the individuals the grievor communicated with in
regard to ZZ’s transfer had testified that the grievor made no threats, and that they did
not feel threatened. Relying on the dictionary meaning of “coerce”, counsel submitted
that the allegation of coercion is not substantiated. In his view, the grievor only made
inquiries because of his unfamiliarity with the inmate classification process. Counsel
urged the Board to accept the grievor’s testimony that contrary to the evidence of
employer witnesses, he was not informed by anyone he spoke to that ZZ was classified
as a “maximum” and not suitable for Mimico.
[96] Counsel submitted that much of the evidence the employer adduced with regard to the
grievor’s association with inmate NS was circumstantial or hearsay. The only reliable
evidence was in the form of telephone records that establish that two calls were made
from the grievor’s cell phone to the number registered to NS’s wife. Counsel submitted
that the grievor’s inability to provide a complete explanation for those calls is
understandable given the passage of time. However, counsel argued that the grievor had
nevertheless provided “a potentially plausible explanation” that the calls may have been
about items he had advertised for sale on line.
[97] Similarly, counsel submitted that the transcript of the CISU interview of inmate NS,
where he states that the grievor loaned him a cellular phone in return for a payment of
$5,000 should not be admitted for the truth of those assertions. Counsel submitted that
NS had been given an inducement, a contact visit with his family, in return for his
agreement to grant the interview. Therefore, submitted counsel, NS had an incentive to
provide as much information as possible, implicating as many people as possible.
Moreover, the evidence is hearsay and unreliable. Counsel urged the Board to conclude
that the grievor’s moving of inmate from unit 9 to unit 10 at Maplehurst was a routine
move and not a favour he did for NS.
- 50 -
[98] The union drew the Board’s attention to the following authorities: Re City of Toronto
(2002) 107 L.A.C. (4th) 144 (Davie); Re Zehrs Markets Inc., (2003) 116 L.A.C. (4th) 216
(Etherinton); Re Heritage Credit Union (2009) 186 L.A.C. (4th) 252 (McConchie); Re
Province of Alberta (2006) 145 L.A.C. (4th) 382 (Jolliffe); Re Hamilton-Wentworth
Family Services Inc.(1992) 30 L.A.C. (4th) 40 (Stewart); Re Workers Compensation
Board, (1995) 45 L.A.C. (4th) 257 (Simmons); Re Khan, (1989) 18 L.A.C. (4th) 260
(Swan); Re Irwin 1377/86 (Slone); Re Moore, 2009-2047 (Abramsky); Re Douglas,
(1981) 28 L.A.C. (2d) 332 (Swinton); Re Riverdale Hospital, (1977) 14 L.A.C. (2d) 334
(Brent); Girvin et al and Consumers Gas Co, (1973) 40 D.L.R. (3d) 509 (Ont. Div Ct);
Re Better Beef Ltd, (2003) 119 L.A.C. (4th) 361 (Dissanayake); Re Dimplex America Ltd,
(2006) 151 L.A.C. (4th) 443 (H.D. Brown); Re Cambridge Memorial Hospital, (1996) 59
L.A.C. (4th) 195 (Brent); Re British Columbia, (1994) B.C.C.A.A.A. No. 20 (Chertkow);
Re Canada Post Corp. (1992) 25 L.A.C. (4th) 137 (Shime).
[99] I have read the authorities submitted by the parties carefully. However, it is not useful to
review each of them in this decision because the principles contained therein are not
controversial or disputed. Therefore, it suffices to simply set out some of the key
applicable principles. They are as follows:
- There is a need for clear, cogent and convincing evidence commensurate with the
seriousness of the allegation.
- Evidence that only creates suspicion, surmise or conjecture is insufficient to meet the
employer’s onus.
- Policies and rules with regard to conflict of interest and the duty to disclose potential
conflict must be clear.
- Discipline, to be sustainable, must be applied in a fair and consistent manner on all
employees engaging in misconduct that is “materially alike in sufficiently relevant
ways”.
- While arbitrators are not bound by strict rules as to admissibility of evidence, they
should only rely upon evidence having cogency in law. Therefore, it is not
appropriate to rely exclusively on hearsay evidence, particularly where such hearsay
is in conflict with more reliable direct testimony.
- Hearsay evidence, to be admissible to prove the truth of its contents, must meet the two-
fold test of necessity and reliability.
[100] One of the primary arguments advanced by the union is to the effect that much of the
evidence relied upon by the employer is circumstantial. In Re Khan, supra at pp. 268-
269, this Board made the following observations:
- 51 -
The fact that the only evidence here being considered is circumstantial evidence
does not make it impossible for the employer to meet this standard of proof.
There are no special rules in relation to circumstantial evidence in civil cases, as
there are in criminal cases, and we are entitled to draw such inferences from the
evidence as appear to us to be reasonable and appropriate, and to act upon the
balance of probabilities based upon all of the circumstances.
On the other hand, when circumstantial evidence is tested against the “clear and
convincing” standard, it will be obvious that, like all other evidence, it will be
tested more carefully than might be the case where less serious allegations are at
issue. In Erwin, No. 1377/86, the Grievance Settlement Board dealt with the issue
as follows, beginning at p.9:
The weighing of circumstantial evidence is thus largely a process of excluding
alternative possibilities. In so doing, we have to take notice of what, in humanly
possible in the circumstances. We cannot cast an onus upon the grievor to prove
to us that there are alternatives, although he would certainly help his own cause
with every plausible alternative he proposed. Rather, the onus is still on the
employer to prove by clear and convincing evidence that there are no such
alternatives.
We were referred to several cases which deal with circumstantial evidence. In the
case of Sunnybrook Hospital and Sunnybrook Hospital Employees Union, Loc.
777 (Gastis) June 27, 1986, an unreported award of arbitrator Michel Picher, he
writes at p. 17
“In the arbitrator’s view, where the evidence is principally circumstantial,
it must be determined whether, in balancing the probabilities, there are
other reasonable explanations equally probable or more probable than the
proposition which is advanced by the party that bears the burden of proof.
If there are no reasonable alternative possibilities of equal or greater
probability, it may be concluded, as a matter of evidence, that the
allegation advanced is established on the balance of probabilities”.
While we agree with the statement of Mr. Picher in the above case, we would add
the caveat that in a case involving an allegation if dishonesty we must, in the final
analysis, still be convinced by a degree of proof that meets the high standard
commensurate with the gravity of the allegation.
We are, in general, in agreement, with these propositions although we think it is
important to observe that the statement of the proper approach in the Sunnybrook
Hospital case is susceptible of misunderstanding. In our view, it would not be
correct to decide a case based on circumstantial evidence on the basis merely that
he allegation sought to be proved is the most attractive among a number of
possible alternatives. It may be that the evidence suggests so many possibilities
that no single one of them, even the most appealing, can rise to the standard of
clear and convincing proof of the allegation.
- 52 -
[101] It is to be noted that I have not set out in this decision all of the evidence with regard to
all of the allegations relied upon by the employer. In particular, I have not dealt with the
allegations that the grievor failed to disclose that he had friends and family members
who had criminal records, or that the grievor contravened a statutory duty to be truthful
and to cooperate during the CISU investigation. I have decided that it is unnecessary for
me to deal with these allegations, because I have concluded based on the allegations
reviewed in this decision, that the employer had just cause to terminate the grievor’s
employment.
[102] The credibility of the grievor is very much at issue in this case. There is uncontradicted
and undisputed evidence that the grievor had associations or friendships with individuals
with criminal records. The grievor’s activity itself is clearly established, although the
grievor characterised the extent of the associations and friendships differently. In the
face of this evidence, the grievor has pleaded innocence. It is argued on his behalf that
in some instances he did not know that his conduct was improper because the employer
policy was unclear. For example, whether the conflict policy prohibited association with
a spouse or girl-friend of an inmate and required disclosure of such associations. On
other issues, the grievor provided “innocent explanations”. For example, that he
unknowingly happened to call inmate NS’s wife with regard to items he had advertised
for sale. In yet other situations, the grievor denied statements attributed to him by
employer witnesses. For example, that he told several correctional staff members that
inmate ZZ was a “friend of the family” and “a business partner” of his father.
[103] The union’s submissions are premised entirely on the credibility of the grievor’s
testimony, his denials and innocent explanations. However, an application of the
Faryna v. Chorny criteria leads to the opposite conclusion. The grievor’s testimony is
simply not believable. He was not credible at all. The union admitted that the grievor
had made numerous inconsistent statements, but contended that they pertained to
unimportant and mundane details. That simply is not the case. Many of the
contradictory statements relate to critical issues, for example, of the extent of the
grievor’s relationship with criminals. Thus, he told the police that he met with ZZ and
wife DZ a lot, that he “became friends” with them, and that he hung around and
- 53 -
socialized with them. In contrast, before the Board his position was that his relationship
with ZZ and DZ was very remote.
[104] The Board is convinced that the grievor lacked any credibility whatsoever. His
inconsistent statements are numerous. They are not attributable, as the union suggests,
to confusion or inability to recall due to passage of time. The Board is convinced that he
was tailoring his statements based on self-interest. His “innocent explanations” can only
be described as outrageous. In addition to his explanation of the calls made to inmate
NS’s wife, his explanation that ZZ’s wife just happened to find him having lunch at
Licks with the very person whose assistance had been sought to have her husband
transferred, when she had not been given a date, time or location is beyond belief. Most
of the employer witnesses were bargaining unit employees. Some were, by his own
account, his friends. In most cases they had made contemporaneous notes or reports of
what they saw and heard. They would have no motive to lie and implicate the grievor in
wrong-doing. With regard to the statements the grievor made during his interviews with
the police and the CISU, no issue of credibility arises anyway because he interview were
audio-taped, and the authenticity and accuracy of the transcripts filed in evidence was
not questioned. The grievor’s evasiveness and lack of honesty is clearly established
through those transcripts.
[105] I do not agree with the union’s contention that the conflict policy was unclear. The
policy on “Staff Conduct and Discipline”, explicitly sets out only one example of a
conflict of interest. That happens to be “relationships with offenders/ex-offenders”. The
policy on ethical principles refers to relationships with “those currently or formerly
under the Correctional Services authority, their families and associates”. In the Board’s
view the grievor’s conduct was not attributable to his lack of knowledge that his
association with criminals and his failure to disclose such associations was improper.
The provisions set out in the policies referring to “offenders/ex-offenders” is more than
adequate to meet the requirement in Re KVP that the policy must be clear and
unequivocal. To be clear and unequivocal, it is not necessary that a policy set out every
possible scenario that would be regarded as a violation. This is particularly so in the
circumstances of this case where the workplace is a correctional institution, where the
- 54 -
employer as well as its staff has the responsibility for ensuring the safety and security of
the public. Even in the absence of any policy, common sense should dictate that
association with criminals is not acceptable for a correctional officer. I simply do not
accept that the grievor was so naïve so as not to have known that. That he knew is
amply demonstrated by the grievor’s desperate attempts to distance himself from the
individuals and to minimize the extent of his relationships, in the face of overwhelming
evidence to the contrary.
[106] Similarly, I see no merit in the union’s argument that the grievor was subjected to
discriminatory penalties. It could reasonably be argued that LE’s conduct in relation to
the transfer of ZZ was also contrary to policy. However, his impropriety could not be
regarded as substantially similar to the grievor’s conduct. He testified that he relied on
the grievor’s assurances about ZZ’s good standing at Maplehurst. The mistake he made
was relying on the information fed by the grievor, rather than diligently and carefully
reviewing ZZ’s OTIS report completely, before taking any steps. Most importantly,
unlike the grievor, LE did not know ZZ or his wife, and had no personal interest in
accomplishing ZZ’s transfer. He was trying to do a favour requested by the grievor who
was a friend and a former colleague. Similarly, Mr. Hosegrove did not advocate for
ZZ’s transfer. All he did was recommend the transfer on condition that it meets the
usual criteria as per policy. While two officers had also submitted favourable letters for
ZZ’s sentencing proceeding, there is no suggestion that their conduct was motivated by a
desire to help a friend. They simply did not follow the proper process of submitting
such letters. On the contrary, the letter the grievor wrote was a part of a number of steps
he took to assist an inmate he had a friendship with.
[107] I do not accept the union’s position that the evidence before the Board only raises
suspicions. To the contrary the grievor’s own statements to the police and the CISU,
and his testimony before the Board by themselves establish that he had associations with
individuals with criminal records, and that he failed to disclose such relationships. His
explanation that he had no awareness of their criminal background is simply not
believable.
- 55 -
[108] Counsel for the union conceded that the employer’s case was not based solely on
circumstantial and hearsay evidence, and that there was some direct evidence. In the
Board’s view, the evidence against the grievor is so convincing and overwhelming that
even if all of the hearsay and circumstantial evidence is ignored, the employer would
still have proven that it had just cause for termination. However, in the case at hand,
there is no justification for discounting the hearsay and circumstantial evidence because
they simply go to corroborate the conclusions that flow from the direct evidence. As
authorities like Re Khan (supra) indicate, the Board is entitled to draw inferences from
circumstantial evidence, provided such inferences are reasonable and probable. In doing
so, the Board must have regard to possible alternate innocent inferences provided those
are also reasonable and probable. However, in the grievor’s case, his innocent
explanations for his interaction with known criminals, his contact with girl-friends/wives
of criminals are not reasonable or probable. To the contrary, the Board concludes that
they were fabrications on the part of the grievor.
[109] Based on all of the evidence the Board makes the following findings.
(a) The grievor had a friendship with inmate ZZ and his wife, with knowledge of ZZ’s
criminal background. Moreover, he was aware of the policy that required disclosure of
such relationships and he failed to comply with it.
(b) The grievor attempted to do a favour for inmate ZZ by actively making efforts to
have him transferred to a minimum security institution. His activity was not restricted to
making inquiries about process. While he did not engage in coercion, he actively and
persistently advocated on behalf of inmate ZZ because of his friendship with ZZ and his
wife. He did all of that when inmate classification did not form any part of his job as a
CO.
(c) The grievor associated with JG with full knowledge of JG’s criminal background
and JG’s connections to other criminals. He failed to disclose those relationships, even
after JG became an inmate at Maplehurst, despite knowledge of his obligation to do so.
- 56 -
(d) The grievor had associated with JS in the community, but failed to disclose that
when JS became an inmate at Maplehurst. To the contrary, he continued to
communicate with JS’s girl-friend without disclosing that to the employer.
(e) Despite his denials, the Board concludes that the telephone communications the
grievor had with inmate JS’s girl-friend MM were not general conversations about
working out. The timing of the telephone communication are such as to lead to the
conclusion that the conversations were about inmate JS and MM’s visits to Maplehurst.
The telephone records establishing that the grievor and MM had several telephone
conversations on days MM visited JS at Maplehurst. Seen together with the admittedly
hearsay report by a CO to that affect, leads the Board to conclude that the grievor did
attempt to do JS a favour, by asking staff not to record MM’s visits against JS’s name.
(f) The hard evidence that the grievor called inmate NS’s home on two occasions
around the same time that he moved inmate NS to his own unit is telling. The only
explanation the grievor could think of for making those calls, the Kijiji story, is not
plausible as the union suggests. It is simply not believable. This evidence could only
lead to the conclusion that the grievor had an association with inmate NS. The
statements inmate NS made to the CISU only goes to give greater credence to that
conclusion.
[110] The union attempted to trivialize the grievor’s conduct by submitting that while he may
have engaged in some wrongful conduct, they were not sufficiently serious to justify
discipline. The Board strongly disagrees. In assessing the seriousness of misconduct, it
is important to have regard to the nature of the workplace. In the present case the
workplace is a correctional facility housing criminals. The grievor was a peace officer,
who along with the employer, shared the responsibility of protecting the public safety
and security. The policies relating to conflict of interest, the evidence indicates, are
designed precisely to carry out that important responsibility. The grievor’s conduct is
completely antithetical to that responsibility. Given the responsibility correctional staff
have, a high standard of behaviour is required from them. The grievor’s conduct utterly
failed to come anywhere close to that standard. To the contrary, the Board agrees with
- 57 -
employer counsel that his misconduct went to the very core of the employment
relationship between a correctional officer and the employer.
[111] The evidence is that the grievor’s service with the employer was approximately 7 years.
He had no disciplinary record at the time of his termination. That, in the Board’s view,
is not at all sufficient to mitigate the extremely serious conduct he engaged in. For the
Board to even begin to consider substituting a lesser penalty, there had to be evidence
that the grievor had realized the seriousness of his misconduct, that he had taken
unconditional responsibility for his actions and exhibited genuine remorse. Such
evidence was simply not forthcoming. To the contrary, the grievor provided fabricated
innocent explanations in the face of clear and overwhelming evidence of wrong-doing.
Despite the mountain of evidence to the contrary, he insisted that he had not done
anything wrong that would justify and discipline at all. On many occasions he blamed
others for not advising him that what he was doing was improper, when that should and
would have been obvious to him. On several occasions, the grievor did agree that he
should have acted differently. However, even then, his regret was not about what he did,
but about the impact it had on him, namely, the loss of employment. In all of the
circumstances, it would not be appropriate for the Board to exercise its discretion to
interfere with the decision of the employer.
[112] For all of the foregoing reasons, the grievance is hereby dismissed.
Dated at Toronto this 25th day of October 2012
Nimal Dissanayake, Vice-Chair