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HomeMy WebLinkAbout2019-1869.Holmquist.24-07-24 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2019-1869 UNION# 2019-0708-0012 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Holmquist) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Kevin Banks Arbitrator FOR THE UNION Rebecca Jones Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING December 1, 15, 2020; February 12, 19, March 24, April 9, May 3, 10, 14, July 12, 27, 2021; April 4, May 18, June 3, 23, September 14, November 15, 2022; January 19, February 13, May 11, December 1, 2023; January 26, February 14, 2024. -2 - Decision [1] On October 28, 2019 the Employer terminated Corrections Officer (CO) Thomas Holmquist’s employment. In a discipline letter of that date, Deputy Superintendent (DS) Dave Andrusco identified four grounds for disciplinary discharge that he believed to be substantiated, namely: 1. That on November 16, 2018 CO Holmquist had attended a secure area of the female dorms of the Thunder Bay Correctional Centre (TBCC), while on unpaid sick leave, and had a conversation with an inmate, thus giving her preferential treatment; 2. That on November 16, 2018 CO Holmquist attempted to get a colleague to cover up this visit; 3. That CO Holmquist failed to submit a conflict of interest declaration regarding the inmate in question; and 4. That CO Holmquist was untruthful and failed to give a full and accurate Occurrence Report about these matters on November 23, 2018. Mr. Andrusco characterized this course of action as one of “continued dishonesty” that had irreparably breached the trust of the Employer. [2] That same day, Mr. Holmquist grieved that his termination was without just cause. The Grievor admits the first allegation, but on his behalf the Union takes the position that the Employer has failed to demonstrate that this warrants discharge, failed to prove the remaining three allegations, and failed to establish that any or all of them would justify discharge even if proven, particularly in light of significant mitigating factors that should be taken into account. [3] The Employer maintains that it has proven each of the allegations contained the October 28, 2019 letter of discipline and asks that the grievance be dismissed. In the alternative, the Employer submits that this is an appropriate case for damages in lieu of reinstatement. In the further alternative, the Employer contends that if the Grievor were to be reinstated, this should be without back wages. The Employer bases these alternative positions on arguments about the seriousness of the Grievor’s alleged misconduct. [4] I have redacted this decision to protect the identity of inmates, who will be referred to as Inmate B, Inmate K and Inmate M respectively. I. Procedural Background [5] Hearings in this matter required an unusually long time to complete. The main reasons for this appear to have been largely beyond the control of the parties. These included the intervention of the COVID19 pandemic, changes of counsel, illness of counsel, the inability to locate and serve a summons upon a key witness, and the inability to locate and obtain, even under summons, important -3 - medical records from a corporation supposedly in the business of storing medical records. [6] The parties produced an Agreed Statement of Fact (ASF). I have incorporated the information contained the ASF into the summary of material evidence below. [7] On October 14, 2020, the Union brought a motion for a declaration that discipline imposed on the grievor, Mr. Holmquist, was void ab initio because the Employer breached his representation rights under Article 30.1 of the Collective Agreement. The motion was heard on October 14 and November 10, 2020. In a bottom-line decision dated November 17, 2020 followed by full reasons set out in a preliminary award dated January 14, 2021, I determined that the Employer had breached Mr. Holmquist’s union representation rights. I nonetheless declined the Union’s request to void the discipline immediately on the basis of this breach, reserving my decision with respect to remedy until I had heard the evidence and arguments on the merits of the Employer’s claim that the discipline imposed on Mr. Holmquist was warranted. In closing arguments, the parties addressed the issue of the appropriate remedy for the Article 30.1 breach. II. Overview of the Main Factual Issues to be Determined [8] There is no dispute that on November 16, 2018 the Grievor attended a secure area of TBCC, met with Inmate K, spoke with her for about one minute, and then left the building and did not attend any other area of TBCC. This is established not only in the Agreed Statement of Fact, but also in video recordings submitted to the Board, and in Mr. Holmquist’s own testimony. [9] This meeting was, according to Mr. Holmquist’s own evidence, for the benefit of Inmate K in that he conveyed to her a message from friends of hers that they were thinking of her, at a time when she was not eligible for further visits. Mr. Holmquist and the Union admit that his actions are violations of Employer policies and that he deserves some discipline. [10] But the Union submits that Mr. Holmquist’s actions represent a brief lapse in judgment resulting from a “snap decision” to deliver the message from K’s friends to her directly and in person. It says that Mr. Holmquist’s main purposes in attending TBCC on November 16, 2018 were to deliver a medical note to the Employer and to check his work emails, which he could not access from home. It maintains that at the time Mr. Holmquist was taking medication that left him feeling “not well, scatter-brained, in a fog”. The Union emphasizes that the content of the message to Inmate K was not nefarious, and says that Mr. Holmquist had no such intent. [11] The Employer contends that the Union’s characterization of Mr. Holmquist’s decision to visit Inmate K is not consistent with his actions and statements prior to and following the visit. It takes the position that Mr. Holmquist has not been honest about the purposes of his visit and about the nature of his relationship to Inmate K, including by submitting an Occurrence Report that was not full and -4 - accurate. Mr. Andrusco’s view, expressed in the discipline letter, was that this last action was the “most troubling of all”. [12] In short, this case is as much or more about Mr. Holmquist’s alleged attempts to cover up and misleadingly diminish the seriousness of his initial misconduct as it is about that misconduct itself. III. Witnesses Testifying at Hearings [13] The Employer based its conclusions regarding Mr. Holmquist’s conduct on evidence gathered by Deputy Superintendent Chris Ossandon, Sergeant Shannon Dunne, and on an Occurrence Report submitted by CO Sandy Bouchard. All three testified at the hearing. CO Bouchard testified under subpoena. DS Ossandon’s evidence concerned video recordings of Mr. Holmquist’s actions. Sergeant Dunne gave evidence with respect to her interview of Inmate K. CO Bouchard gave evidence with respect to her interactions with CO Holmquist before and following the visit. Each was also asked about personal and professional relationships with Mr. Holmquist and others that may have affected their perceptions of events. DS Andrusco testified as to the steps in the investigation of Mr. Holmquist’s actions and his interpretation of the evidence gathered in that investigation. [14] The Union presented evidence from: CO Holmquist; Ms. Jayme Dychko, Mr. Holmquist’s partner, with whom he had recently begun a relationship at the time in question; CO Brodie McLendon, a friend and colleague of Mr. Holmquist; CO Jon Scott, also a friend and colleague of the Grievor; and Dr. Dave Probizanski, Mr. Holmquist’s family physician. Together their evidence covered Mr. Holmquist’s actions before, during and after the visit, and context including Mr. Holmquist’s health condition and the nature of relationships between the various persons involved in this case. IV. Cause for Discipline: Summary of Material Evidence A. Background 1. The Ministry of the Solicitor General and TBCC [15] The Ministry of the Solicitor-General (the “Ministry” or the “Employer”) is responsible for establishing, maintaining, operating and monitoring Ontario’s adult correctional institutions, including the TBCC, which is a medium-security institution in Thunder Bay, Ontario that has a capacity of approximately 124 inmates. [16] The TBCC houses remanded male and female offenders. The TBCC also houses male and female offenders that have been sentenced up to two years less a day. Male offenders are classified or sent to the TBCC from other institutions and must meet a medium security classification. -5 - [17] Many of the offenders housed at TBCC are residents of Thunder Bay. As of 2019, Statistics Canada estimated the population of Thunder Bay to be 127,201. [18] The TBCC is a program-based facility which encourages connecting offenders to positive support networks in order to help with rehabilitation and prevent recidivism. 2. Employer Policies Report Writing and Prohibition on Code of Silence [19] The Employer’s Institutional Services Policy and Procedures Manual (ISPPM) Report Writing Policy places the following obligations on employees: 5.7 Employees are required to prepare professional, accurate and complete reports. 6.6.2 Employees who are involved, or who are witness to an incident, must complete an Occurrence Report. [20] The Report Writing Policy describes an Occurrence Report as follows: 6.6.1 An Occurrence Report is an information report used to document a detailed description of the events related to an incident or event that requires reporting, or where information is required by/for another area (i.e., staff member’s observation of an inmate’s behaviour which may be required by health care staff, maintenance required in a unit, etc.). The report is to contain the employee’s information on what the employee observed, what actions were taken, what others were doing and who was present during the incident; answering the questions who, what, when, where, why and how. Occurrence reports must be completed (by the end of the current shift, the only exception will be with the approval of the superintendent or designate) by staff involved in or witness to the incident. [21] While the Report Writing Policy does not explicitly define an “incident or event that requires reporting”, the stated purposes of the Policy include, at paragraph 3.1, “ensuring that reports are prepared and forwarded in a timely manner providing detailed description of the events related to any serious, contentious or potentially contentious incident or event”. It is clear from how the Report Writing Policy treats the subject of “Code of Silence” that this class of incidents includes employee misconduct. The Policy provides as follows in paragraph 4.2: Code of Silence: Actions perpetrated by an individual or group of individuals who fail to accurately report work related on-duty or off-duty behaviour for which an OPS employee may be disciplined by the employer. -6 - Code of Silence infractions include behaviour that results in or attempts to counsel, conceal, conspire or misrepresent on-duty or off-duty acts for which an OPS employee may be disciplined by the employer. Code of Silence infractions also include behavior that threatens or results in reprisal against any individuals, or those associated with individuals who: 4.2.1: Report on-duty or off-duty violations; 4.2.2: Attempt to report on-duty or off-duty violations; 4.2.3: Are aware of individuals who have reported or have attempted to report on-duty or off-duty violations. All Code of Silence behaviours are unacceptable and are a serious concern to the ministry. Code of Silence offenses will be promptly investigated and will be dealt with appropriately. [22] The Report Writing Policy thus requires all Corrections officers to promptly and fully report misconduct, whether their own or that of a fellow employee, and signals that failure to do so, or attempts to conceal misconduct will themselves be treated as serious misconduct. These obligations are repeated in the Staff Conduct and Discipline section of the ISPPM manual. Report writing obligations and prohibitions on Code of Silence behaviour address longstanding and serious issues within the Ontario corrections system, recognized in arbitral jurisprudence, to which I will return below. [23] There is no dispute between the parties that COs are trained in these policies and are aware of them. Conflict of Interest Policy [24] The ISPPM Conflict of Interest Policy (“COI Policy”) applies to all institutional services employees. A copy of this policy is given to all employees at TBCC. [25] Under the COI Policy and Regulation 381/07, employees have a duty to notify the Deputy Minister/Ethics Executive if circumstances could arise in which their private interests could conflict with their duties to the Crown. [26] Under the COI Policy, Employees have a duty to avoid potential and actual conflict of interest situations with inmates. A routine conflict of interest in Correctional Services includes where an employee knows an inmate/offender. If such a conflict is identified, employees are required to complete the Ministry’s Conflict of Interest Form and discuss the matter with their manager by the end of the day. [27] The COI Policy further provides that a public servant who contravenes a conflict of interest rule applicable to them is subject to disciplinary measures, including suspension and dismissal. -7 - [28] Mr. Holmquist has declared a conflict of interest on a prior occasion, in relation to an inmate housed at the Thunder Bay Jail. On January 15, 2015, Mr. Holmquist disclosed to DS Andrusco that in the winter of 2013 Inmate B had attended his home, at the request of Mr. Holmquist’s wife, to provide a quote on a renovation job. He explained that B had provided a fake name and business card and had requested and received a $300 deposit from Mr. Holmquist’s wife. While at the home, B stole Mr. Holmquist’s tools. Mr. Holmquist advised DS Andrusco that he did not want B transferred to TBCC given the personal information that he had about him as he may use that information against Mr. Holmquist or share it with other inmates. On February 25, 2015, Mr. Holmquist completed and submitted a Conflict of Interest Form in relation to B. On March 10, 2015, DS Andrusco provided instructions to Mr. Holmquist for dealing with the conflict while B remained housed at Thunder Bay Jail as well as instructions to follow in the event B was transferred to TBCC. 3. Mr. Holmquist’s Employment History [29] Mr. Holmquist was employed as a Correctional Officer with the Employer. Mr. Holmquist was hired by the Ministry as a fixed term Correctional Officer on February 20, 2006 at the Thunder Bay Correctional Centre (“TBCC”). Mr. Holmquist’s continuous service date with the Ministry is June 21, 2010, when he became a regular Correctional Officer at TBCC. [30] On February 26, 2018, Mr. Holmquist went on sick leave. Prior to going on sick leave, Mr. Holmquist had been working as a General Duty Officer at the TBCC. Mr. Holmquist’s typical schedule was primarily comprised of night shifts. [31] On June 4, 2018, Mr. Holmquist worked one shift as part of an accommodation to return to work one day per week on a trial basis. As a result of the traffic accident described below, he did not return to work in 2018. [32] At the time of his dismissal, Mr. Holmquist did not have a prior disciplinary record. 4. Injuries Sustained by Mr. Holmquist in Car Accident and Complications Arising from Them [33] Mr. Holmquist was in a serious motor vehicle accident on June 26, 2018. He was off work following this accident. Mr. Holmquist’s injuries from this accident included injuries to his face and head, a bruised heart, a displaced sternum and collarbone, and broken ribs. He also sustained damage to his left brachial plexus, a set of nerves under the left arm that enables control of the arm. Symptoms of this last injury, according to Dr. Probizanski, included numbness and severe pain. [34] To address the pain, Dr. Probizanski prescribed, in September of 2018, the nerve blocking agent Pregabalin, sold under the commercial name Lyrica. Dr. Probizanski testified that Lyrica affects the transmission and perception of pain. According to Dr. Probizanski, the most common side effects of Lyrica are that it -8 - can make those who take it “tired or a little foggy”. Side effects listed as “More Common” on a document produced by the Mayo Clinic and submitted in evidence by the Union include confusion, and poor insight and judgment. Dr. Probizanski testified that more common side effects tend to affect about five per cent of those who take a medication. [35] A second injury arising from the car accident that is material to this dispute was a gradual build-up of fluid in Mr. Holmquist’s spine. Dr. Probizanski described this condition as a “rare complication” arising out of his initial injuries. Following magnetic resonance imaging of Mr. Holmquist’s cervical spine, Dr. Robert D’Ovidio concluded in a Diagnostic Imaging Report dated May 16, 2019 received by Dr. Probizanski that the imaging displayed a “tubular cystic structure” along Mr. Holmquist’s spinal canal. Following this report, Mr. Holmquist was referred to Dr. Graeme Marchuk, a neurosurgeon. Dr. Marchuk’s Consultation Note of May 20, 2019 indicates that the cyst was large enough to be compressing the spinal cord, and that it “may represent some form of liquified chronic hematoma, which would fit well with his recent history of injury”. Dr. Marchuk notes that Mr. Holmquist had an unbalanced gait, and reported several falls in the previous 3 months, along with numbness in the lower body that had extended in the past one to two weeks to a point “just past his belly button”. Dr. Marchuk also noted that “Mr. Holmquist has some difficulty initiating urination, but can sense the need to void adequately, and has not experienced any incontinence.” Dr. Probizanski said that Mr. Holmquist would have been presenting symptoms of this condition from the date of the accident onwards, and that the symptoms could be expected to have been getting gradually worse from that time. Dr. Probizanski said that in his opinion the lower body numbness, including numbness in the “saddle area” that Mr. Holmquist reported to him was probably a result of spinal compression due to this fluid. Similarly, problems with bladder control, specifically difficulty initiating urination, and problems with balance that Mr. Holmquist reported may have been caused by this. Mr. Holmquist did not report problems with incontinence to Dr. Probizanski at this time, or at any other time. Dr. Marchuk operated on Mr. Holmquist to remove the fluid on his spine in early June of 2019. [36] Thirdly, the medical evidence indicates that Mr. Holmquist was being treated for insomnia in the summer and fall of 2018. Dr. Probizanski pointed to medical records indicating that Mr. Holmquist had a history of obtaining prescriptions for mirtazapine, using for quelling anxiety and helping with sleep. Dr. Probizanski testified that insomnia can affect cognitive function, including trouble staying awake and trouble making decisions. He expressed the opinion that a traumatic event resulting in serious injuries could contribute to a person’s insomnia. [37] Finally, the Union submitted medical records of an assessment of Mr. Holmquist dated March 12, 2020 by Dr. Peter Schubert, a psychiatrist. The report notes that Mr. Holmquist had a working diagnosis that included post-traumatic stress disorder (PTSD). Symptoms included flashbacks and dreams of a vehicle rollover and of images of his daughter’s car seat associated with fear that she was in the vehicle with him. The report goes on to observe that medication for this condition did not seem to have had much effect, but that nonetheless Mr. -9 - Holmquist’s concentration had improved and his sleep was “not as poor as before”, with a decrease in the frequency of nightmares. Dr. Probizanski was asked in the course of giving his evidence about whether Mr. Holmquist may have suffered PTSD as a result of the accident. He said that his experience treating patients with PTSD led him to believe that a serious motor vehicle accident could cause PTSD. In his experience symptoms of PTSD included hyper-vigilance, re-experiencing trauma, and anxiety leading to “brain fog” or inability to connect thoughts and lapses in judgment. Dr. Probizanski said that he was not able to give an opinion with respect to whether Mr. Holmquist would have had this disorder in 2018. He had not explored the possibility of such a diagnosis at that time. 5. Mr. Holmquist’s Personal Circumstances During Recovery [38] While he was in hospital recovering from these injuries, Mr. Holmquist received a text message from CO Anna Sutherland, whom he described as a “common-law spouse” of about two years, in which she ended their relationship. According to Mr. Holmquist, this relationship had been “up and down”, with multiple break-ups. He described the break-up while he was in hospital as “pretty devastating”. [39] Starting in July of 2018 Mr. Holmquist took up residence at his cottage with his mother, who cared for him, by preparing his food and helping him dress, among other things. Mr. Holmquist experienced significant pain from his injuries and was prescribed medication for this, as discussed above. [40] Mr. Holmquist met Ms. Jayme Dychko on a dating website in late July of 2018. Ms. Dychko is a registered Nurse at the Thunder Bay Regional Health Sciences Center. He met her in person for the first time at the end of August or in early September of 2018. He testified that he did not see her much in the fall of 2018 because he was focused on his recovery, and because under a court ordered custody agreement with his ex-wife (whom he had divorced) he could not introduce his daughter to her at the time. He said that he and Ms. Dychko “became exclusive” in “November or December of 2018”. [41] Ms. Dychko’s evidence was consistent with his in all these respects. She also said that she did not see Mr. Holmquist very often in the fall of 2018 because she was working two jobs and was very busy. She confirmed that she remained in a relationship with Mr. Holmquist, and that he was her “boyfriend”. [42] Mr. Holmquist testified that he and Ms. Dychko did not have any mutual friends when they first met. To explain how this could have been the case despite their both having grown up in Thunder Bay, which is a relatively small city, he pointed out that she was in her 20s while he was in his early 40s. [43] Mr. Holmquist testified that while his relationship with Ms. Sutherland ended in July of 2018, “any time that I attempted to move on with someone else she would want me back”. He said that Ms. Sutherland sent him messages of a sexual nature in the following months. He said that he worried that these messages -10 - would cause trouble with Ms. Dychko. Ms. Dychko confirmed in her evidence that she was aware of such messages. They were not, however, introduced into evidence. [44] In August of 2018 CO Brodie McLendon moved in with Mr. Holmquist because Mr. McLendon has just separated from his spouse and needed a place to stay. [45] Mr. Holmquist testified that after the accident, he did not drive for a couple of months, and that he avoided the highways as much as possible. By November, he said, he slowly got the courage to drive, but still did it very infrequently. [46] Mr. Holmquist’s recovery in the fall of 2018 appears to have been slow. He said that in November 2018 he was still experiencing “terrible pain”. E. Employer Request for a Medical Note [47] During the week of November 5, 2018, Deputy Superintendent Administration Brandy Fummerton spoke to Mr. Holmquist by phone to remind him that his medical note supporting his sick leave was to expire on November 12, 2018 and that he would need to provide an updated medical note to support his continued absence. During that phone call, Mr. Holmquist advised Deputy Fummerton that he had a medical appointment on November 12, 2018 and that he would bring in the note after that appointment. Ms. Fummerton had taken over the role of Deputy Sup’t Administration from Trevor Giertuga on or around October 15, 2018. Ms. Fummerton had been in management at TBCC since December 2016. The Grievor had previously been providing medical documentation directly to Mr. Giertuga. F. Increase in Mr. Holmquist’s Pain Medication Dosage on November 12, 2018 [48] On November 12, 2018 Mr. Holmquist went to see Dr. Probizanski concerning the pain caused by his injuries. In response, Dr. Probizanski increased his dosage of Lyrica from 75 mg twice per day to 150 mg twice per day. Dr. Probyzanski described this increase as neither a large nor a small one but rather an incremental one. Dr. Probizanski said that the dosage of Lyrica can go up to 300 mg per day. He said that 150 mg is an average dose, but that “every patient is an individual so we don’t quite know what a dose will do to them”. He said that, in his experience, while usually people don’t get side effects if Lyrica is being tolerated, there was a possibility of side effects with such an increase. In his experience dosage increases of this nature would increase the risk of side effects, and people can get side effects in the same way as when the medicine is first introduced. Again, the most likely effects would be “a little brain fogginess and tiredness”. [49] At that time, Mr. Holmquist also obtained a medical report regarding his injuries to submit to the Employer in support of his continued leave and eligibility for long- term disability benefits. -11 - B. Mr. Holmquist’s Actions on November 16, 2018 1. Visit to Ms. Jayme Dychko’s House [50] On November 16, 2018 Mr. Holmquist drove first from his cottage to Ms. Dychko’s home, where he stopped for about an hour and a half, and then to TBCC. Each leg of this trip took about 20 minutes of driving time. [51] According to Mr. Holmquist, the purpose of this trip was to drop off the medical note at TBCC. He testified that he stopped at Ms. Dychko’s home on the way to “say hi”. [52] There he met two of her friends, Ms. Amanda Suttie and Ms. Amanda Mercier. Mr. Holmquist testified that Ms. Suttie overheard that he was going to TBCC to drop off medical information, and asked him if he could drop off a message to an inmate that she and Ms. Mercier were both worried about. Mr. Holmquist testified that Ms. Suttie “asked if I could drop off a message to let her know that she had tried to visit her, but she was out of visits for the week, and she [Ms. Suttie] would come back next week”. Mr. Holmquist said to her that he could do that. He testified that he “thought there was nothing wrong with passing on a positive message like that”. 2. Travel to TBCC [53] Following his stop at Ms. Dychko’s house, Mr. Holmquist drove directly to TBCC. Mr. Holmquist testified that just before leaving, he called DS Fummerton at TBCC and got her voicemail. He said that he did not believe that he had left a voicemail, though his recollection was “a bit hazy” about this. Mr. Holmquist’s phone records, introduced in evidence, indicate that he called the Employer at 3:06 pm. [54] Mr. Holmquist testified that during the drive he was not feeling well at all, that he was in a “complete fog”, that he could not connect his thoughts properly, and that he felt “really off”. He said that he was nervous and anxious about driving to TBCC. He said that he found the drive from Jayme Dychko’s house to TBCC particularly stressful because the speed limit applying to that part of the drive is 90 km/hr, and because he had not driven in such a zone since the motor vehicle accident. 3. Attendance and Actions at TBCC [55] When he arrived at TBCC, Mr. Holmquist testified, his intention was to drop off his medical note with a manager with whom he felt comfortable, namely, Sergeant Pat Dupuis. He thought that he would go to the female dorm, give the medical note to Sergeant Dupuis, and tell him the message that the Ms. Suttie had asked him to pass along to Inmate K, so that DS Dupuis could in turn pass that message along to her. He also planned, he testified, to say “hi” to some coworkers that he missed. -12 - [56] In his testimony, Mr. Holmquist described and explained his movements at TBCC on November 16, 2018. He did so while watching video segments introduced in evidence by the Employer. He said that as he arrived in the TBCC parking lot, he drove past the ten parking spots that are designated for particular individuals or purposes. He testified that the video showed that DS Fummerton’s parking spot was empty at that time. He parked his car, and then walked to the female dormitory. [57] Mr. Holmquist testified that before entering the dorm he placed his medical note in his pocket. In his evidence, he said that a CO should always secure personal items in their pockets when entering a secure facility, because a misplaced or dropped personal item of a CO would result in a search, cost the institution overtime, and result in discipline. [58] At approximately 3:15pm on November 16, 2018, Mr. Holmquist attended the TBCC, Female Unit, where he was granted entry to the secure area by CO Lance Wood, who was on the control module. Mr. Holmquist told CO Wood that he was there to check his emails. At the time, Mr. Holmquist was wearing street clothes and not in uniform. [59] Upon entering, Mr. Holmquist first looked and took steps in the direction of administration offices. He testified that he looked into the manager’s office to see if Sergeant Dupuis was there, but saw instead that Sergeant Shannon Dunne was there. He said he looked down the hallway to see if any other managers were there, but saw none. He said that he could not access the administration area via the hallway in question because it required a key, and in any event it would have been against policy for him to use the doors to the hallway. [60] Mr. Holmquist then turned around and approached the Female Unit where he encountered CO Bouchard. She gave him a hug. CO Bouchard and Mr. Holmquist both testified that they were friends at the time of the incident. CO Bouchard said that she had been very worried about Mr. Holmquist and was excited to see him. [61] According to Mr. Holmquist, she asked him how he was doing and he said “not well”, and that it would be a long time before he returned to work. He then asked if Anna Sutherland was there, and Ms. Bouchard said “no”, and he said “Good, I don’t want her seeing me.” He then asked about an inmate called K and CO Bouchard told him that she was in the B dorm. [62] In her evidence, CO Bouchard said that she no longer remembered what was said in this conversation beyond being “pretty sure” that Mr. Holmquist said that he was coming in to check emails, and also said something about a medical note. -13 - [63] Mr. Holmquist then encountered a second CO, and exchanged greetings and shook hands with him. Neither Ms. Bouchard nor Mr. Holmquist could recall the name of this CO. [64] CO Bouchard then told him to remain where he was, in a hallway outside of the dorm, and went to get Inmate K. CO Bouchard went to B Dorm and asked Inmate K to come with her. [65] Mr. Holmquist spoke alone with Inmate K in the hallway around the corner from B and C Dorms for approximately one minute. Ms. Bouchard testified that she stepped back to give them privacy, and did not overhear what they said, other than hearing “something about money”. Mr. Holmquist testified that K first asked him if he was a “Rec”, meaning a plain-clothes Recreation Officer. He said that he was not, that his name was Tom, that he had been at his friend Jayme’s house and had met two or her friends called Amanda who were really worried about her. She then asked if TBCC ever made exceptions about the number of visits that an inmate could have. He told her that she would have to ask the manager on duty about this. According to Mr. Holmquist, that was the end of the conversation. Mr. Holmquist could not recall any conversation about money. He said that K seemed emotional, and “did not seem right”. [66] After this conversation, CO Bouchard frisked Inmate K and led her back into the dorm in which she was housed. [67] Two other Correctional Officers on duty at B Dorm, including CO Tiffany Runciman, were present during and witnessed Mr. Holmquist’s conversation with Inmate K. [68] Mr. Holmquist testified that after his conversation with Inmate K, he considered checking is emails but realized that he did not have his pocket calendar with him, which is where he stored his passwords. He said that email passwords change every two months. He said that he had not yet found a manager he felt comfortable dropping his medical information with, and decided to leave that information with Sergeant Chris Ossandon (as he then was), who was, he thought, working in the staff training building. This is a separate building. To reach it Mr. Holmquist would need to exit the building that he was in. [69] Mr. Holmquist then exited the building and went to his vehicle. On his way, he testified, he saw Mr. Ossandon standing outside the staff training building. As he got close to his vehicle, Mr. Holmquist testified, he realized that he had “had an accident”, that he had “peed his pants”. He said he felt numb in his saddle area. He testified that at this point he was starting to panic. He said that once in his vehicle he looked in the back seat for a change of clothes, but could not find one. Nor could he find his calendar. He called Mr. Ossandon. Mr. Holmquist’s phone records, introduced in evidence, indicate that he made a call to the Employer at 3:26 pm. He said that he thought he could get Mr. Ossandon to “pop out of his office and grab my medical note without my getting out of my car”. He said that he thought he could pull his car up to the door of the building in which Mr. -14 - Ossandon worked, so that he could get the note. Mr. Ossandon did not answer this call. [70] Mr. Holmquist said that at this point he panicked because there were other staff around and “it was really embarrassing”. He explained that he was “mortified” and thought he would be humiliated. He said that “these people were my friends” and that he did not feel comfortable telling management because “I know that this would get out” and that he would be ostracized. He testified that he wanted to get away from the staff area and he did not want someone to walk up to the car and see what had happened. 4. Departure From TBCC and Immediately Subsequent Actions [71] Mr. Holmquist then drove out of the parking area and left TBCC. According to his testimony, he then drove to the Neebing Roadhouse where his brother-in-law and sister-in-law worked. [72] At 3:40pm Mr. Holmquist exchanged text messages with CO Bouchard. They had the following exchange: Mr. Holmquist: Thanks Sandy love you xoxo. Keep that between us. CO Bouchard: I hope I don’t get in shit. Mr. Holmquist: For what lol I still work there. I came to check emails and just had a quick word with inmate no biggie. Let’s get together for a drink soon. [73] According to Mr. Holmquist, by “keep that between us” in the first line of the exchange he meant his conversation with her about his medical condition and his presence at TBCC, and not specifically his visit with Inmate K. To explain, he said: “I did not want people to know that I was going to be off for a long time. And I did not want Anna [Sutherland] knowing that I was at the institution. I did not want to provoke Anna into contacting me again. Her sexually explicit messages had caused issues with Jayme Dychko.” [74] With respect to CO Bouchard’s response “I hope I don’t get in shit”, Mr. Holmquist testified as follows: “I did not know what she was saying when she said “I hope I don’t get in shit”. I was confused by what she said. Looking back on it, it was how she misconstrued the text, or her own conflict that she was scared she was going to get in shit for. At no time at this point did I think I did something wrong or was in trouble. I changed the tone to a joking tone.” -15 - The reference to “her own conflict” in this statement is to a conflict of interest that arose later between CO Bouchard and Inmate K. CO Bouchard later learned that Inmate K’s sister was married to her daughter’s uncle. Inmate K mentioned this later in front of other inmates. According to CO Bouchard, she was told by other TBCC staff that Inmate K made threats against her, and this resulted in a police investigation. None of this would, however, have been known to CO Bouchard on November 16, 2018. Mr. Holmquist went on to say: “I wanted my visit to the institution to be low-key in regards to Anna Sutherland. Sandy Bouchard was Anna’s best friend. Nobody else there was friends with Anna. I was not trying to hide anything else. I did not want to provoke Anna further to cause issues.” [75] In cross-examination he explained his response to CO Bouchard’s concern that she might “get in shit” by saying: “I was confused that she had changed her tone and the subject. We had been talking about my time off and condition, and about Anna. Then she changed the subject. I was oblivious to the fact that I had done something wrong. I said LOL.” “She said I hope I don’t get in shit – It took me a while to figure it out that she was worried about getting in trouble with the employer. I said LOL for what. I did not know why. I thought she was talking about me.” [76] When pressed, he admitted that he did figure out that she was talking about the visit with the inmate but maintained that he was not aware that he had done anything wrong: “Yes, I put it together. But I did not think I did anything wrong at the time.” [77] Mr. Holmquist testified that after his text message exchange with CO Bouchard, he found a change of clothes by looking further in his vehicle. This was, in his estimation, “between a quarter to 4 and 4 pm”. [78] According to his phone records, at 4:12 pm Mr. Holmquist started a cell phone conversation with his friend Jon Scott. Mr. Holmquist testified that he asked Mr. Scott if he could pick him up and told Mr. Scott that he had “peed his pants”. They talked about Mr. Holmquist’s text message exchange with CO Bouchard. Mr. Holmquist said that there had been a misunderstanding in that exchange. CO Scott’s recollection of the conversation was consistent in these respects. CO Scott also recalled Mr. Holmquist mentioning that he had been at work to drop off medical documents. Mr. Scott testified that: -16 - “He was very upset. I had never really seen him like that. He was crying. He wanted a lift. I said it was OK to drive, just take it easy. I was trying to calm him down.” [79] Mr. Holmquist testified that Mr. Scott calmed him down. But CO Scott was unable to pick him up. In his evidence, Mr. Holmquist said that by the time his conversation with CO Scott was done, “it was already pretty late and there was nobody there”, meaning that there was no one at TBCC to whom he could give his medical documentation. He said that at that point: “I just wanted to get home. I was devastated that this happened. Humiliated. I thought I was doing better physically”. According to his testimony, he drove home around 4:45 pm. [80] Mr. Scott testified that two or three days after November 16, 2018 he and Mr. Holmquist went out “for a bite to eat with a couple of other COs”. Mr. Scott said that Mr. Holmquist “did not seem himself” and that “he seemed off”. CO Scott said that: “He referred to his daughter E(redacted) as Emma. I corrected him. But he made the same mistake again.” C. CO Bouchard’s Occurrence Report [81] CO Bouchard testified that after she received Mr. Holmquist’s text message asking her to “keep that to yourself” she thought: “OK I messed up. I did something wrong.” She understood this message to be about the visit between Mr. Holmquist and Innate K. In cross-examination she insisted that there was “no possibility” that she had misunderstood, because when she said “I hope I don’t get in shit” he responded: “for what? Just a quick chat with inmate”. This led her to conclude that his first message was about the inmate. [82] CO Bouchard was upset by this exchange. In her evidence she said: “I thought I had messed up and I need to tell somebody. The whole visit – there was something wrong with it. Why would anyone have to message that? I was flustered for the whole day. I allowed it to happen. It was going to eat away at me if I did not tell someone”. [83] That afternoon, she went to speak with Sergeant Dunne and told her about the visit. Sergeant Dunne said that she should speak with Superintendent Karen Machado. They both went to see the Superintendent and CO Bouchard told her about the visit and about the exchange of text messages. She later provided a screenshot of the text messages to Superintendent Machado. [84] CO Bouchard clearly found this situation a difficult one. In her testimony she said: -17 - “I was upset with myself. I was ashamed of myself because I did something wrong. I ratted myself out. I brought someone down with me unfortunately. But I had to report myself because I did something wrong.” [85] That afternoon, CO Bouchard submitted an Occurrence Report to Superintendent Machado concerning Mr. Holmquist’s visit to Inmate K, and his subsequent text messages to her. [86] For some time after November 16, 2018, CO Bouchard remained upset by her involvement in Mr. Holmquist’s visit with Inmate K. In her testimony she said she felt anxious and thought she had had a panic attack. She booked off a couple of shifts to recover before returning to work. [87] CO Bouchard also testified that she experienced consequences for reporting these matters to management. She said that for a long time after this, some of her colleagues called her a “rat”. Some did not want to speak with her, and she often ate meals by herself. D. Report of Sergeant Shannon Dunne [88] Sergeant Dunne recalled CO Bouchard approaching her at around 15:45 to tell her about Mr. Holmquist’s visit with Inmate K. She then returned to her office in the Administrative Unit. A few minutes later, she testified, CO Bouchard returned to inform her of the exchange of text messages with Mr. Holmquist and expressed concern that he was asking her not to report that he had been at the female unit. She and CO Bouchard then went to speak to Superintendent Machado. After the meeting with Superintendent Machado, Sergeant Dunne returned to her office. [89] At 18:05, in response to a request from Superintendent Machado, Sergeant Dunne interviewed Inmate K about her meeting with Mr. Holmquist. The meeting took place in Sergeant Dunne’s office. She was alone with the inmate, again at Superintendent Machado’s request, with a CO standing by outside of her office to provide security. According to Sergeant Dunne, if an interview with an inmate is of a sensitive nature, members of management may meet with an inmate alone. Sergeant Dunne submitted an OR including information gathered in this interview to Superintendent Machado the following day. [90] Sergeant Dunne’s Occurrence Report was submitted in evidence. Among other things, it reports that Inmate K told Sergeant Dunne that: • She knew CO Holmquist. • CO Holmquist was dating her best friend Jayme Dychko, a friend of 15 years. • She would “hang out” with Jayme Dychko and Mr. Holmquist, up to 5 times a week. -18 - • She would spend a week in Thunder Bay at a time, and then return to Toronto because she had custody of her son during the weeks that she was in Thunder Bay. • Mr. Holmquist had come to visit her that day and she had spoken to him for a few minutes. • He had told her at that time that her friends had tried to visit her but had been unable to, and that they loved her and missed her and were not mad at her. • He had told her that his girlfriend wanted her to know that if she needed anything, such as money for help with a lawyer or anything else, she could call his girlfriend at her mother’s house. [91] After providing this report to Superintendent Machado, Sergeant Dunne had no further involvement in investigating Mr. Holmquist’s actions. E. Inmate K [92] Inmate K was admitted to TBCC on November 13, 2018, on charges of possession for the purpose of trafficking under the Controlled Drugs and Substances Act. She had been arrested along with seven other individuals, who were also remanded into custody in Thunder Bay. The charges related to the seizure of fentanyl, cocaine and oxycodone from her residence. On November 29, 2018, Inmate K sent a letter to M, an inmate at Toronto South Detention Centre, with respect to her arrest. [93] Mr. Holmquist testified that he was not aware of any of this on November 16, 2018. He said that he had not met either Amanda Mercier or Amanda Suttie before that date, and that in fact he had never met any of Ms. Dychko’s friends before that. Ms. Dychko confirmed in her testimony that Mr. Holmquist had not previously met any of her friends present at her house that day. [94] Ms. Dychko testified that she and Inmate K “had been friends many years ago”. She said that they met in grade 11 and were part of the same group of eight friends in high school, that this group had collectively called themselves a group of “best friends”, but that the two of them had never been very close. She said that this group included Amanda Suttie and Amanda Mercier. Ms. Dychko said that she kept in touch with K while in university, and that they had both gone on a couple of road trips together “with a few girls” after they started working. She described their relationship during that time as being “fairly good friends”. However, Ms. Dychko maintained that she and K had not been friends for “several years”, and that she had tried to dissociate herself from K. She said that this was because K “was using opiates” and “posting photos of herself in a negligee on social media”, and that as a professional she did not want to be associated with her. [95] Ms. Dychko said that in the summer of 2018 she and K had “a pretty big blowout” and had ”stopped talking to each other”. This, she testified, was as a result of “some choice words” that K had used to describe her in a phone conversation -19 - between K and a friend of hers that she overheard. The “choice words” were profanities what K used because, according to Ms. Dychko, K was upset with her for voicing disapproval of some of K’s lifestyle choices. Ms. Dychko testified that she did not confront K about this. Rather, she just stopped talking to her. Ms. Dychko said that she did not need to express her concerns to K because her other friends told K that Ms. Dychko “did not want to get into it with her”. She acknowledged that her friends Amanda Suttie and Amanda Mercier remained friends with K, and that they were worried about her not eating, and about how sad it would be for her son after she was arrested. [96] Ms. Dychko said that she had never introduced Mr. Holmquist to K. After she found out that K had been arrested, she testified, she did not talk to Mr. Holmquist about K because she “did not want to bring up that I knew someone who had been involved in something like that”. [97] Ms. Dychko testified that during Mr. Holmquist’s visit to her on November 16, 2018 she heard him mention that Amanda Suttie was asking him to pass along to K the message that she had tried to visit her and would try again. She said that she had no idea what he was going to do, that she did not expect that he would visit K face to face, and that had she known she would have told him not to do that. [98] Ms. Dychko took issue with statements attributed to Inmate K in Sergeant Dunne’s OR. She said that K would have been well aware by that time that the two of them were not friends, and that she would never offer K money. She said that it made no sense to claim that Mr. Holmquist had told Inmate K that she could contact Ms. Dychko at her mother’s house if she needed help, because her parents were married, lived together, had done so for 30 years, and because she had not lived at home for nine years. She also said that her parents would have been “horrified” to receive a call from K because “they did not like her”. This was because K had stolen a pack of cigarettes from them. Ms. Dychko’s evidence was that she did not “hang out at least five times a week” with K, with or without Mr. Holmquist, because in fact she did not hang out with her at all. [99] Finally, Ms. Dychko said that she did not tell K that she was dating Mr. Holmquist, and that if K knew this it was because either Mr. Holmquist had told her or because one of her friends had done so. Mr. Holmquist denied mentioning his relationship to Ms. Dychko in his conversation with Inmate K. He said that he told Inmate K that he had been at his friend Jayme’s house, but not that he was dating her. F. Local Investigation Report [100] Immediately following her meeting with CO Bouchard and Sergeant Dunne, Superintendent Machado directed that TBCC managers produce a General Local Investigation Report (LIR) of the incident. DS Andrusco initiated the LIR on November 17, 2018. -20 - [101] In his testimony Mr. Andrusco offered several observations on the evidence available to him in preparing the Local Investigation Report. He noted that the video evidence showed Mr. Holmquist pull into the parking lot, walk directly to the female dorms, have a conversation with an inmate in which “there appears to be some familiarity between them”, then leave the dorms, go directly to his vehicle and leave the property. He observed that Mr. Holmquist “made no attempt to go near a computer”. He said that Mr. Holmquist’s message to CO Bouchard “gave the impression that he was trying to keep the visit a secret”. He commented that he had not thought at the time of the investigation that Mr. Holmquist’s request to CO Bouchard to “keep that between us” could have been about anything other than his meeting with Inmate K. [102] DS Andrusco completed and signed the LIR on November 20, 2018. That day, on behalf of TBCC, Superintendent Machado requested that Correctional Services Oversight and Investigations (“CSOI”) conduct a review of the LIR. The CSOI review process is described below. G. CO Holmquist’s November 20, 2018 Conversation with Superintendent Machado [103] On November 20, 2018 Mr. Holmquist called Superintendent Karen Machado. Superintendent Machado produced an Occurrence Report (OR) about this call. This was tendered in evidence. In his evidence, Mr. Holmquist testified that in his view the OR was accurate, but said that he gave Ms. Machado more detail than it contained. [104] According to Mr. Holmquist, Superintendent Machado told him that he was not to speak with inmates and not to attend TBCC without prior permission of a senior manager. Her OR also indicates that she advised Mr. Holmquist that he was not to attend the secure areas of the facility unless he had permission from a Senior Manager, being Deputy level and above. [105] Mr. Holmquist testified that he apologized to her and said that he was not aware that he was not allowed to attend at the institution. He said that he felt that she was referring to the incident of November 16, 2018 and that he needed to explain. He said he had wanted to give his medical note to DS Brandy Fummerton, but because she was not there, he had left without dropping it off. He testified that he told Superintendent Machado about his visit with Inmate K and asked her if he could meet with her to speak about it. In his testimony, Mr. Holmquist also said: “I tried to tell her I had an accident, but I could not get the words out. Half of these managers I grew up with. I did not finish my sentence because I was humiliated.” [106] As to the purpose of his call to Superintendent Machado, Mr. Holmquist testified that: -21 - “I wanted to talk to her about it so I called her because I knew that they were upset with me. She is an experienced manager. If she gave suggestions of what I should do going forward, I would have respected them. I was looking for help. I thought we were all on the same team. There were rumours from other staff that they were upset that I spoke to this inmate and went into a secure area of the facility.” [107] According to her OR, Superintendent Machado confirmed that the matter of his visit with Inmate K “was being looked into”. Mr. Holmquist testified that he understood this to mean that it was under investigation. [108] Superintendent Machado did not respond to CO Holmquist’s request to meet with her. In response to his request to attend at TBCC to deliver medical information, Superintendent Machado arranged for him to meet with DS Fummerton the following day. [109] In my interim decision of January 14, 2021 I concluded, on the basis of evidence fully canvassed there, that Superintendent Machado asked DS Fummerton to ask Mr. Holmquist for an OR at this meeting, in order to further the investigation into his conduct that she had by that time already initiated. For that purpose, DS Andrusco also attended the meeting. H. Occurrence Report of CO Holmquist [110] At this meeting DS Andrusco asked Mr. Holmquist for an Occurrence Report regarding his November 16, 2018 meeting with Inmate K. According to Mr. Holmquist’s testimony, DS Andrusco also asked him if K was not an acquaintance, to which he responded, in his words, “sarcastically”, that she was “hardly an acquaintance”. Neither DS Fummerton nor DS Andrusco asked Mr. Holmquist about his exchange of text messages with CO Bouchard at this time. [111] Mr. Holmquist decided not to provide an OR that day for reasons canvassed in my January 14, 2021 decision. [112] On November 23, 2018, Mr. Holmquist provided the requested OR to DS Andrusco. Mr. Holmquist consulted with his union representative prior to submitting the Occurrence Report. In his OR, CO Holmquist, among other things: • stated that he attended TBCC on November 16, 2018 to provide medical documentation at the request of DS Fummerton; • stated that he was under the understanding that DS Fummerton was gone for the day by the time he arrived at TBCC; • stated that he entered the female dorms through the staff entrance after arriving “in order to see if there was a manager on that [he] felt comfortable leaving [his] medical documentation with”; • described his visit with Inmate K in terms consistent with the testimony that he and CO Bouchard gave in the hearings; -22 - • described his decision to relay messages to Inmate K from her friends as a “snap decision”, “in poor judgment”; • said that he was unaware that he was not allowed to attend TBCC while on sick leave; and • said that Inmate K “is not in my immediate circle of friends”. Mr. Holmquist’s OR did not make any statements concerning his exchange of text messages on November 16, 2018 with CO Bouchard. I. Absence of COI Report [113] Mr. Holmquist never filed a Conflict of Interest Form or declaration with respect to Inmate K. Nor did he discuss this matter with his manager. J. CSOI Investigation Process and Findings [114] CSOI received the LIR and supporting documentation from TBCC on November 22, 2018. [115] CSOI conducted a Level 2 investigation. Level 2 investigations are local investigations for which CSOI provides oversight. The investigation is handled by the institution with oversight and sign-off by CSOI. Staff Inspector Marianne Muller and Inspector Liam McVeigh conducted a review of the incident and were satisfied with the LIR findings. [116] The CSOI Report was finalized and signed off by Kevin West, Director of CSOI on May 29, 2019. CSOI found the that the evidence supported the following five findings: 1) CO Tom Holmquist failed to submit a Conflict of Interest Declaration related to a personal relationship with Inmate K. 2) CO Tom Holmquist provided preferential treatment to Inmate K when he attended the institution while on sick leave and visited her in the secure area of the institution to pass a message. 3) CO Tom Holmquist transmitted a verbal message to Inmate K outside of his duties and without permission of the Superintendent in violation of Standing Orders surrounding employee prohibitions. 4) CO Tom Holmquist engaged in a Code of Silence activity in violation of COCAP when he attempted to counsel, conspire or conceal his personal visit to Inmate K when he sent a text message to CO Sandy Bouchard asking her to keep the information between them. 5) CO Tom Holmquist failed to submit an accurate report of the incident and his relationship with Inmate K which is a Code of Silence activity in violation of COCAP and ministry policy surrounding report writing. -23 - [117] CSOI based its report on video recordings of Mr. Holmquist’s movements on November 16, 2018, the LIR concerning his meeting with Inmate K, and ORs from Sergeant Dunne, CO Bouchard, CO Tiffany Runciman, CO Lance Wood, DS Fummerton, Superintendent Machado, and CO Holmquist. As is standard practice for the type of review it was conducting, CSOI did not conduct any interviews in the course of its review. No CSOI investigator contacted Mr. Holmquist in the course of the review. K. Reduction in Pain Medication Dosage [118] Mr. Holmquist testified that after the increase in his Lyrica dosage he was “in a fog”, “disheveled”, and a “complete scatter brain”. As a result, he said, he went back to Dr. Probizanski on November 29, 2018. [119] On that date, Dr. Probizanski reduced his dosage back to what it had been previously. He also provided Mr. Holmquist with a medical note stating that: This patient had a medication adjustment on November 12, 2018 that directly caused a reaction – increased confusion and concentration problems – This has since been corrected and is no longer an issue for him. I am directly supervising his treatment and recovery. Mr. Holmquist testified that he wanted to present this note to TBCC management, and that he “wanted them to know that I was not doing well”. [120] Unfortunately, Dr. Probizanski’s notes of the November 29, 2018 visit were not available to be produced in evidence because his previous business partner had transferred a set of records including the ones in question to a records management company called RASCI. Despite multiple requests and a subpoena, RASCI did not produce them. Dr. Probizanski described RASCI as being “like a stone wall”. The Union eventually decided to abandon its efforts to obtain the records in question. [121] Dr. Probizanski had no independent recollection of Mr. Holmquist’s visit aside from what is recorded in his note of that date to the Employer. L. Allegation Meeting Following Return to Work [122] On September 30, 2019, Mr. Holmquist returned to work on a gradual return to work plan. [123] On October 8, 2019, DS Andrusco sent a letter to Mr. Holmquist advising him that he was required to attend an allegations meeting on October 17, 2019 to respond to the following allegations: 1. “That on November 16, 2018, you behaved in a manner which was in violation of your responsibilities and duties as a Correctional Officer when you attended the secure area of the Female Dorms at the TBCC and you had -24 - a personal conversation with Inmate [K]. You were off on unpaid sick leave at the time. 2. That on November 16, 2018, you attempted to get a co-worker to cover up or conceal your visit with Inmate K when you sent a text to CO Bouchard which stated, “keep that between us”. 3. That you failed to submit a Conflict of Interest declaration regarding Inmate K, with whom you had a personal relationship. 4. That you were untruthful and failed to provide fulsome and accurate information in your occurrence report dated November 23, 2018.” [124] The letter further advised that based upon these four allegations, it was alleged that Mr. Holmquist violated certain Ministry policies, including the ISPPM Conflict of Interest Policy, the ISPPM Report Writing Policy, the Code of Conduct and Professionalism Policy – Code of Silence as well as related TBCC Standing Orders. The letter also advised Mr. Holmquist that as the meeting could lead to discipline, he was being offered the opportunity to bring a union representative to the meeting. [125] On October 17, 2019, DS Andrusco and Sgt. Shane Wilson held an allegations meeting with Mr. Holmquist and his union representative, Mr. Len Mason, to provide Mr. Holmquist with an opportunity to respond to the allegations set out in the letter of October 8, 2019. [126] During the meeting Deputy Andrusco asked Mr. Holmquist a prepared set of questions. Sergeant Wilson took notes of his responses. The notes were submitted in evidence and will be referred to as necessary below. [127] During the allegations meeting, Mr. Holmquist provided Deputy Superintendent Andrusco with the above-described medical note dated November 29, 2018 from Dr. Probizanski. Mr. Holmquist said that he wasn’t using this as an excuse but would like for it to be taken into consideration. [128] In his testimony Mr. Andrusco also offered several observations on Mr. Holmquist’s responses to the questions that were put to him in the allegations meeting. [130] First, he observed that while Mr. Holmquist said that he did not have a personal relationship with Inmate K, “there was a reflection of familiarity between the two of them – I believe he was being untruthful”. He added: “His claim that he did not know her did not make any sense. Why would he come to visit her? It did not seem right.” He noted that in Inmate K’s interview with Shannon Dunne she had said that her best friend of 15 years was Mr. Holmquist’s girlfriend, and that she -25 - would hang out with Mr. Holmquist and Ms. Dychko. Mr. Andrusco, testified: “I took it from this that he was not being truthful in saying that he did not know her. I have no reason not to believe this information.” [131] In cross-examination Mr. Andrusco nonetheless conceded that it would not be typical to accept an inmate’s version of events concerning an employee before speaking with the employee. [132] Second, Mr. Andrusco commented that: “He said that he thought Brandy Fummerton had gone for the day. I thought he was making up excuses. It was 2:30 in the afternoon. There was no reason why anyone should come to the conclusion that someone is gone for the day at that point in time.” [133] Third, Mr. Andrusco emphasized that Mr. Holmquist made no attempt to go into the administration building despite saying that he had driven out to drop off medical documents. [134] Fourth, Mr. Andrusco was also troubled by the text message to Sandy Bouchard, which made no reference to his injuries, but focused on the visit to the inmate. [135] Fifth, Mr. Andrusco also concluded that Mr. Holmquist had not been truthful in the allegations meeting when he said that he did not know of the charges against Inmate K, while his OR said that K had “fallen into a bad crowd”. [136] Finally, Mr. Andrusco was troubled by the fact that Mr. Holmquist had waited to submit his note from Dr. Probizanski until the allegation meeting, almost 10 months after it was written. In the end, he said, this note “did not factor into my assessment at all”, because “I am receiving it nine or ten months later – if it is important why not submit it when he received it?” [137] Mr. Andrusco testified that immediately after the allegations meeting, he decided to suspend Mr. Holmquist with pay, and that this was because of a “lack of trust”. M. Suspension with Pay [138] On October 22, 2019, Deputy Andrusco met with Mr. Holmquist and advised him that he was being suspended with pay pending investigation for five working days, from October 22 to October 28, 2019, in relation to the allegations. Also present at the meeting were Deputy Fummerton and Mr. Shaun Girvin, Union representative. Deputy Andrusco read out the letter of suspension and provided it to Mr. Holmquist. Mr. Holmquist advised that he had no questions and that he understood. -26 - N. Termination [139] On October 24, 2019, Deputy Andrusco advised Mr. Holmquist by letter that he was required to attend a meeting on October 28, 2019. The letter further advised that as the meeting could lead to discipline, he was being offered the opportunity to bring a union representative to the meeting. [140] On October 28, 2019, Deputy Andrusco and Superintendent Machado met with Mr. Holmquist, his union representatives, Mr. Shawn Bradshaw and Mr. Dan Sidsworth. Deputy Andrusco read out a discipline letter advising Mr. Holmquist that he was being dismissed from employment for cause on the basis that each of the allegations presented at the allegations meeting had been substantiated. [141] Among other things, the letter stated that: I find your actions on November 16, 2018 to be completely inappropriate and inconsistent with your role as a Correctional Officer. As a Correctional Officer, you are expected to maintain relationships with inmates that are impartial and to act in a way that is not in conflict with your role. By visiting inmate [K] in the secure area of the institution while you were off duty, you gave inmate [K] preferential treatment and acted beyond your scope of duties. I am also extremely troubled by your text message to Correctional Officer Bouchard following your interaction with inmate [K]. By sending this text message, you put your co-worker in a difficult position and acted without integrity by trying to cover up your actions. Similarly, I am troubled by the fact that you failed to declare your Conflict of Interest with Inmate [K] when you have made declarations regarding conflicts with other incarcerated inmates in the past. However, I am most disturbed by your inability to be truthful throughout the investigation process and during the allegation meeting. Your continued dishonesty with regard to why you were attending the institution on November 16, your relationship with inmate [K], and the text message you sent to Correctional Officer Bouchard have severely damaged the trust I have in you as a Correctional Officer. I find your actions have irreparably breached the trust the Employer has in you as a Correctional and Peace Officer and that your actions have damaged the employment relationship beyond repair. [142] At the hearing, Mr. Andrusco testified that Mr. Holmquist’s “inability to be truthful was key to our decision” to terminate his employment, and that the decision to terminate rather than suspend Mr. Holmquist was “based on the fact that he never was truthful; he never owned up; he gave excuse after excuse.” V. Cause for Discipline: Factual Determinations [143] The Employer suspected from the outset of its investigation and eventually concluded that Mr. Holmquist’s visit with Inmate K was the primary or only purpose of his visit to TBCC on November 16, 2018, and represented not a -27 - momentary lapse in judgment but rather a deliberate course of action that he subsequently misrepresented and attempted to cover-up. In the termination letter, Mr. Andrusco placed emphasis on the Employer’s conclusion that Mr. Holmquist had been dishonest with respect to why he had visited the institution, his relationship with Inmate K, and his communications with CO Bouchard. [144] Mr. Andrusco’s evidence and the Employer’s argument at the hearings make it clear that the Employer inferred Mr. Holmquist’s dishonesty on the basis of evidence that it believed established that Mr. Holmquist: • knew Inmate K; • made no attempt to visit Deputy Fummerton’s office despite having no reason to think that she was not present; • made no attempt to visit the TBCC administration area to drop off medical information with anyone else; • made no attempt to check his emails; and • sought to have CO Bouchard cover up his visit with Inmate K. [145] It is not difficult to see how such inferences, if correct, would support a conclusion that Mr. Holmquist had attended TBCC not to drop of medical evidence but rather only to visit Inmate K. Given that he was on sick leave and that she was in custody facing serious criminal charges, such a visit would naturally be viewed as a serious and suspicious matter. [146] The Union maintains, however, that none of the Employer’s inferences are correct, that the Employer’s investigation was flawed, and that its conclusions were based on suspicion, surmise and conjecture. [147] In what follows I will weigh the evidence with respect to each of the inferences supporting the Employer’s conclusions about Mr. Holmquist’s alleged dishonesty. I will then draw conclusions about the purposes of Mr. Holmquist’s visit to TBCC on November 16, 2018. A. Whether Mr. Holmquist Had a Personal Relationship with Inmate K [148] Mr. Andrusco concluded that Mr. Holmquist had a personal relationship with Inmate K on the basis of three considerations: (1) that K had described to Sergeant Dunne a set of interactions consistent with such a relationship; (2) that there was a “reflection of familiarity” between Mr. Holmquist and K in the video recording; and (3) that it would make no sense for Mr. Holmquist to visit K unless they had a personal relationship. [149] Inmate K did not testify at the hearing. By the time of the hearings, she was no longer in custody. The Employer informed me that it was unable to locate her to serve her with a summons, and submitted several affidavits of attempted service in evidence. As a result, her statements regarding her relationship with Ms. Dychko and Mr. Holmquist remain hearsay. -28 - [150] The Union submits that I should not admit such hearsay evidence for the purposes of proving the truth of its contents, unless it meets the tests of necessity and reliability: R v Khelawon, 2006 SCC 57; Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Marshall), 2013 CarswellOnt 6313. The Union concedes that the Employer may have met the test of necessity in light of its multiple attempts to summon K, but argues that the evidence fails the test of reliability. It maintains that there is a complete lack of circumstantial guarantees of trustworthiness: Marshall, supra; Khelawon, supra at paras 62 and 63; Peterborough Victoria Northumberland & Clarington Catholic District School Board v. OECTA, 2011 CarswellOnt 3128 at para 49. Specifically, K’s statements were not made under oath; Sergeant Dunne’s notes were not made contemporaneously; Sergeant Dunne was the only witness; Sergeant Dunne did not question or challenge K on many of her statements by asking her whether she could recall specific addresses or names; and there is no ability to know whether anyone tried to influence K prior to giving her statement. The Union notes that Sergeant Dunne’s report was written the day after her interview with Inmate K, and submits that it is improbable that someone would remember exactly word for word the contents of a conversation that had occurred the day prior. In the alternative the Union submits that even if admitted, the evidence of K’s statements should not be given any weight. It points to Peterborough Victoria Northumberland & Clarington Catholic District School Board v. OECTA, 2011 CarswellOnt 3128; OPSEU and Ontario (Ministry of Community Safety and Correctional Services),2017 CarswellOnt 10659 for the proposition that an arbitrator should not rely upon hearsay evidence when making central findings of contested fact. It notes that Mr. Holmquist and other witnesses provided directly contradictory evidence under oath and subject to cross-examination, and contends that this evidence must be preferred: Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Marshall), 2013 CarswellOnt 6313 at paras 6 to 9, 11, 12, 20. [151] The Employer agrees that the test for the admissibility of hearsay evidence in court is necessity and reliability. It submits, however, that under section 48 of the Labour Relations Act that I can admit hearsay evidence and ascribe to it whatever weight I believe is proper, while conceding that I cannot use such evidence as a sole basis for making a finding of a fact on a disputed matter. The Employer did not insist that everything in K’s statement should be taken as true. But it maintained that her statements could be given weight where they are supported by other factors. [152] In his evidence Mr. Holmquist also questioned the reliability of Sergeant Dunne’s record of K’s statements and said that she ought not to have participated in the investigation but rather should have declared a conflict of interest. He said that he thought it highly unusual that an interview with an inmate would be conducted alone. He also suggested that Sergeant Dunne may have been influenced by the fact that she had previously been romantically involved with him. He said that she had been bitter with him when they had broken up and told him that he had led her on. He said that he had left his relationship with Ms. Dunne because he still had feelings for Anna Sutherland at the time. He also said that Ms. Dunne -29 - was a good friend of Anna Sutherland. Mr. Scott and Mr. McLendon also testified that they recalled Ms. Dunne having a romantic relationship with Mr. Holmquist. [153] Sergeant Dunne testified that she could not recall ever having been romantically involved with Mr. Holmquist. Further, the Employer vigorously challenged the bases of Mr. Holmquist’s questioning of Sergeant Dunne’s interview of Inmate K and her record of it. It maintained that it was not inappropriate for a single member of management to interview an inmate in a sensitive matter such as this one. It questioned whether Sergeant Dunne had ever had a romantic relationship with Mr. Holmquist. Most importantly, the Employer contended, Mr. Holmquist’s attempts to question the professionalism of Sergeant Dunne by suggesting that she would have been influenced by her friendship with Anna Sutherland or any previous relationship with Mr. Holmquist amounted baseless aspersions, and that in order to accept them one would have to believe that female staff at TBCC “behave like teenage girls”. The Employer characterized this as a demeaning denial of their professionalism. [154] I do not accept Mr. Holmquist’s suggestions that Sergeant Dunne acted inappropriately or was inappropriately influenced by her personal relationships. The reasons that she gave for interviewing Inmate K alone have a plausible basis in operational concerns around the sensitivity of interviewing an inmate about the behaviour of a CO in the presence of another CO. Further, even if Mr. Holmquist and Ms. Dunne did have an intimate relationship, a matter on which I make no finding, it would require speculation to conclude that it affected her investigation. Sergeant Dunne was not told in cross-examination that Mr. Holmquist would testify she had expressed bitterness towards him such that she should not have participated in the investigation, and therefore had no opportunity to respond. Moreover, even if it were true that she had been bitter at some point following a break-up with him, there is no evidence indicating that such events would have been recent enough to influence her conduct of the interview. [155] Nonetheless, I share some of the Union’s concerns about the reliability of the record of Inmate K’s statements. Specifically, I am troubled by the fact that Sergeant Dunne did not question or challenge K on many of her statements by asking her for particulars such as whether she could recall specific addresses or names or times of encounters with Mr. Holmquist and Ms. Dychko. There is also no evidence before me that Sergeant Dunne took notes during the interview. I am of the view that the evidence in her OR would have been considerably more reliable if it had been written down contemporaneously and in the presence of another witness. [156] In the end, the issue of the admissibility of the evidence of Inmate K’s statements for the truth of their contents is moot, because I cannot accord them any weight except where they are consistent with Mr. Holmquist’s and Ms. Dychko’s evidence. This is for several reasons. [157] First, I find key aspects of Inmate K’s statements to be untrue in light of reliable evidence in the record. According to Sergeant Dunne, Inmate K states that she -30 - and Ms. Dychko and Mr. Holmquist would “hang out”, “up to five times a week”. This statement colours Inmate K’s reported statements that she knew Mr. Holmquist and that Jayme Dychko was her “best friend”, a friend of 15 years. But the evidence of the severity of Mr. Holmquist’s injuries is overwhelming, and such that it defies belief that Inmate K or anyone else would have been hanging out with Ms. Dychko and Mr. Holmquist “up to 5 times a week” in the late summer and fall of 2018. [158] Second, Ms. Dychko and Mr. Holmquist testified that they did not see each other very often in the summer and fall of 2018 because they were in the early stages of their relationship, because of Ms. Dyckho’s work schedule, and because of Mr. Holmquist’s custody arrangements. [159] Third, Mr. Holmquist testified that he did not know Ms. Dychko’s circle of friends prior to meeting her, because of their age difference. [160] Each of these statements is plausible in light of the personal circumstances of Ms. Dychko and Mr. Holmquist, and the circumstances of their relationship. [161] The Employer maintains that because Inmate K said to Sergeant Dunne that Mr. Holmquist and Ms. Dychko were dating, I can infer that she learned this from one of them. Mr. Holmquist denies telling her this. Ms. Dychko says that she cut ties with Inmate K before she met Mr. Holmquist. It is possible that Inmate K could have learned of their relationship, as Ms. Dychko suggested, by speaking with a friend. In all the circumstances, I am not inclined to draw the inference urged upon me by the Employer. [162] On the key issue of her relationship to Mr. Holmquist, I find the above-quoted statements attributed to Inmate K contained in Sergeant Dunne’s report to be so unlikely to be true that I can accord them no weight at all. [163] Because of this, and because of the overall unreliability of the evidence of Inmate K’s statements, I also give no weight to the statement attributed to Inmate K that Mr. Holmquist told her that Ms. Dychko would provide her with money for a lawyer and that Inmate K could call her at her mother’s house. I am reinforced in this conclusion by the testimony of Ms. Dychko that she had not resided with her parents for several years, and that her parents did not like Inmate K. [164] This brings me to Mr. Andrusco’s interpretation of the video recording of Mr. Holmquist’s conversation with Inmate K. In his view this recording reflected a familiarity between them. With respect, I do not think that the evidence sufficiently supports this claim. Mr. Holmquist and Inmate K stand about two feet apart. They do not touch each other. There is no recording of what they said to each other. The conversation lasted only one minute. I find it more likely that Mr. Andrusco’s having accepted Inmate K’s statements about the nature of her relationship with Mr. Holmquist coloured his perception of the recording. -31 - [165] To conclude, the Employer has not proven that there existed a personal relationship between Mr. Holmquist and Inmate K. I prefer the evidence of Mr. Holmquist and Ms. Dychko to the hearsay statements of Inmate K contained in Sergeant Dunne’s report. I therefore find that the only proven relationship that CO Holmquist had to Inmate K at the relevant time was that she was a friend of two friends of Ms. Dychko. While Inmate K had previously been a friend of Ms. Dychko, I accept Ms. Dychko’s evidence that she had not been close to Inmate K for several years and had cut ties with her in the summer of 2018. I also accept the evidence of Ms. Dychko and Mr. Holmquist that prior to November 16, 2018 he had never met or had any contact with Inmate K. There is in any event no credible evidence to the contrary. B. Mr. Holmquist’s Stated Purposes for Visiting TBCC [166] Mr. Holmquist testified that his intention in going to TBCC on November 16, 2018 was to drop off a medical note in response to Deputy Fummerton’s request. He said that he intended to drop off the note “with a manager with whom I felt comfortable”, and that he planned to drop the note with Sergeant Pat Dupuis. He said that the day prior he had been at his colleague John Scott’s house, and Mr. Scott had told him that he thought Pat Dupuis was working at the female dormitory. In cross-examination he said that he could not have emailed the medical information because he did not have access to his work email from home. He admitted, however, that he could have sent the medical documents by mail or courier. About his decision to deliver the documents in person, he said: It ended up being my mistake. But they wanted it quick. She [referring to DS Fummerton] did say I was running out of time and would not be paid [if the Employer did not receive the information]. It was time sensitive for sure.” [167] Mr. Holmquist also testified that on November 16, 2018, once he had agreed to relay a message to Inmate K, he thought that “I could go to the female form, drop off the note with Pat and tell him the message that he could pass along to the inmate.” He added that he also “thought I could say hi to some of my coworkers that I missed”. [168] Finally, Mr. Holmquist testified that he had planned to check emails while he was at TBCC. [170] The Employer’s main attack on Mr. Holmquist’s evidence regarding his intentions is a set of arguments that his actions were not consistent with his stated intentions. I will consider these arguments immediately below. [171] The Employer also characterizes Mr. Holmquist’s statements about wanting to deliver the documents to Sergeant Dupuis, and about wanting to check emails as “things that have come up after the fact to explain why he went to the institution, visited with the inmate, and then left”. The Employer points out that Mr. Holmquist did not mention either of these things in his OR. The Employer -32 - emphasizes that an OR is supposed to include as much detail as possible of the events that it reports. The Employer also placed great weight in its submissions on the fact that Mr. Holmquist did not explain his intentions in attending at TBCC, or other aspects of his conduct, more fully at the allegations meeting. [172] Mr. Holmquist’s OR indicates that it is in response to a request by Deputy Andrusco to explain why he had attended at TBCC on November 16, 2018 and met with Inmate K. Accordingly, one might expect a full account of both. The OR explains that Mr. Holmquist attended TBCC to drop off medical documentation in relation to his injuries and goes on to describe in some detail how and why Mr. Holmquist met with Inmate K. This information is responsive to the Employer’s stated requests. The omission of his intent to check emails is an omission of a reason why he attended at TBCC. It was not the main reason, according to Mr. Holmquist’s evidence. But a full report probably should have included it. Nonetheless, CO Bouchard confirmed in her recollection of her conversation with Mr. Holmquist in the female dorm that he mentioned checking emails. The fact Mr. Holmquist did not mention checking his emails in his OR is of little probative value unless there is other evidence enabling the Employer to establish that he had no such intention, and instead sought to mislead CO Bouchard in the course of his conversation with her. The only evidence in the record that could potentially establish this is evidence with respect to whether Mr. Holmquist’s actions were inconsistent with his stated purposes, discussed below. [173] I turn to Mr. Holmquist’s statements that he hoped to deliver his medical documents to Sergeant Dupuis. Mr. Holmquist’s OR states that he entered the female dorm through the staff entrance “to see if there was a manager on that I felt comfortable leaving my medical information with to forward to Deputy Fummerton”. It goes on to say that he asked CO Bouchard “who the manager on duty was and was informed it was Sergeant Shannon Dunne”. These statements imply that Mr. Holmquist was not comfortable leaving his medical documentation with Sergeant Dunne. They also provide an explanation of his reasons for first entering the female dorm. It would have been better to explain further. But a failure to do so is not on its face evidence of a lack of forthrightness or candour. I do not think that Mr. Holmquist was necessarily required by the subject matter of the report to specify which manager he intended or hoped to leave his medical documentation with after he said he came to believe that Deputy Fummerton was not on site. [174] At the allegations meeting, the Employer again asked Mr. Holmquist why he attended the secure area of the institution. Mr. Holmquist’s said “I got a phone call from Ms. Fummerton to bring in a sick note.” He then went on to admit to passing a message to an inmate. [175] If the Employer doubted that there was any reason to go to the female dorm in order to deliver medical information, it could have put its doubts to Mr. Holmquist at that time. But the Employer chose not to pursue this line of questioning. -33 - [176] There is in fact no evidence in the record that the Employer ever put to Mr. Holmquist, prior to or during the allegations meeting, any of its suspicions that he had attended at TBCC for reasons entirely unrelated to delivering a sick note, or that he had been dishonest in asserting that those were his reasons. The allegation of dishonesty contained in the allegations letter and read to Mr. Holmquist at the allegations meeting is vague. It refers only in general terms to the contents of his Occurrence Report. At the allegations meeting, most of the Employer’s questions were about the nature of his relationship to Inmate K. Mr. Holmquist was also asked two questions about his text message exchange with CO Bouchard. In addition, he was asked how he came to an understanding that Deputy Fummerton was not present, and whether he attempted to meet with her. Mr. Holmquist’s answer to that question was brief and lacking in specifics. But Employer representatives did not follow up to press for a better response, and they posed no questions about why Mr. Holmquist left TBCC without delivering the medical information that he said he had come to drop off. [177] In the circumstances, it would have been reasonable for Mr. Holmquist to infer that the Employer’s allegations of untruthfulness in his Occurrence Report were about the nature of his relationship with Inmate K. [178] Mr. Holmquist’s testimony indicates that his was in fact his understanding. In cross-examination, when asked why he did not mention at the allegations meeting that he had called Ms. Fummerton before arriving at TBCC, Mr. Holmquist said “I had no idea they did not believe me about bringing in a sick note”. When asked why he did not mention his incontinence at that meeting, he said: “At that point I thought I could keep that private. I did not think they would question the medical note or the medical condition… I did not know that the sick note was even part of the allegations of being dishonest about bringing in a sick note. None of that was mentioned.” When pressed on this point, Mr. Holmquist agreed that he had received the allegation letter and had time to prepare for the allegation meeting but went on to say: “But allegation 4 – I did not know they were talking about the sick note. I thought it was about the inmate… I did not think they thought I was being dishonest about bringing the sick note. I did not mention the incontinence issue – I was really embarrassed and mortified about it. It’s a really hard thing to tell coworkers and people who I worked with. I was put on the spot, and there was no mention of my sick note being an issue. I thought this was a letter in my file. I didn’t think I needed to divulge this.” -34 - [179] Thus, according to Mr. Holmquist, at the allegations meeting he was unaware of both the nature of some of the allegations of dishonesty against him and of the seriousness of the disciplinary action that he was facing. [180] It was in fact not until the termination letter that Mr. Andrusco finally stated his view that Mr. Holmquist had exhibited continued dishonesty about his reasons for attending at TBCC. [181] The Employer chose not to put its concerns or any questions about the truthfulness of Mr. Holmquist’s stated reasons for attending at TBCC to him at the allegation meeting. It is not for me to assess the reasons for or merits of that decision. But the Employer cannot have it both ways. Having made this decision, it is not open to the Employer to now rely on Mr. Holmquist’s failure to explain the reasons for his departure at the allegations meeting as an indication of the untruthfulness of his subsequent explanation given at the hearing. The Employer failed to communicate, directly or indirectly, that this was a potential matter of interest in its investigation. C. Consistency of Actions with Stated Purposes 1. Whether Mr. Holmquist Had No Reason to Believe that Deputy Fummerton Was Not Present [182] Mr. Andrusco concluded that Mr. Holmquist was making up excuses when he said that he thought Ms. Fummerton had gone for the day when he arrived at TBCC. This conclusion likely reflected to some extent his earlier conclusion that the purpose of the visit was to meet with Inmate K. But it also reflected the time of day. Mr. Andrusco expressed the view that it was too early in the afternoon for Ms. Fummerton to have left work. [183] Mr. Holmquist testified, however, that upon his arrival at TBCC he drove past the ten designated parking spots, including Deputy Fummerton’s spot, and that he saw that her spot was empty. Video and photograph evidence presented at the hearing is consistent with this perception, showing that Ms. Fummerton’s parking spot was indeed empty when he arrived at TBCC. Mr. Holmquist thus may have had some reason to believe that Ms. Fummerton was not present at TBCC when he arrived. [184] In its closing arguments, the Employer attacked the credibility of these statements, arguing that they should not be believed because Mr. Holmquist made them for the first time at the hearing. At the allegations meeting, the Employer asked Mr. Holmquist the following question: In your occurrence report dated November 23rd, 2018, you stated that you came to the institution to see Deputy Fummerton but were "under the understanding that she was gone for the day". How did you come to this understanding? -35 - Mr. Holmquist answered "I thought she was off earlier than that", and then digressed into talking about his health and state of mind on November 16, 2018, and why he thought it would be acceptable to hand his note to Sergeant Dupuis. His answer was thus largely unresponsive to the question, simply repeating the conclusion stated in his OR that Deputy Fummerton was "gone for the day" without explaining how he arrived at it. But Employer representatives did not pursue the matter. In these circumstances, the fact that Mr. Holmquist first mentioned seeing Deputy Fummerton's parking spot empty at the hearing does not carry much probative weight. His unresponsiveness at the allegations meeting may have reflected evasiveness, or it may simply have reflected nervousness. His testimony at the hearing may, as the Employer contended, have simply presented information that Mr. Holmquist first obtained by viewing the Employer's video evidence at the hearing. But it is also possible that the video evidence refreshed earlier memories of his arrival at TBCC. In the end, I need not resolve this issue to arrive at the required conclusions with respect to Mr. Holmquist's reasons for attending at TBCC, as will be explained below. 2. Whether Mr. Holmquist First Attempted to Visit the Administration Area [185] Video evidence shows that upon passing through the sallyport providing access to the female dorms and the administration area, Mr. Holmquist first turns and moves towards the administration area, and then turns around and proceeds in the direction of the female dorm. According to his evidence, he looked into the administration office and saw no manager there. He testified that he then looked down the hallway of the administration area and saw no one else. He said that he could not proceed into the administration area on his own because he did not have a key to provide him with access to it, and because doing so would have been against policy. He said that he then went towards the female dorm where he encountered CO Bouchard, who told him that Sergeant Dunne was on duty. He testified that he did not feel comfortable providing her with his medical information, for reasons outlined above. On this version of events, rather than interact with Sergeant Dunne, he decided at that point to go to the female dorm to deliver his message to Inmate K. There is nothing in video recording that is on its face inconsistent with this. To demonstrate that his testimony is inaccurate and untruthful, the Employer must rely on inferences based on other circumstantial evidence. 3. Whether Mr. Holmquist was Carrying Medical Documents [186] Mr. Holmquist is not seen carrying any paper in the video evidence. But he testified that his medical evidence was inside his clothing and that he made a point of securing any personal items in this way before entering any secure facility. This account of his actions is not inherently implausible. To call it into doubt, other evidence would be required to establish the implausibility of such a statement. -36 - 4. Decision to Visit the Female Dorms [187] In his OR and at the hearing, Mr. Holmquist characterized his decision to visit the female dorms to deliver a message to Inmate K as a “snap decision”. The Employer submits that this characterization is false. It maintains, for reasons set out above, that Mr. Holmquist’s relationship with K and his actions at TBCC on November 16, 2018 demonstrate that delivering this message was his main and probably only purpose in attending at TBCC that day. In addition, the Employer submits, Mr. Holmquist had plenty of time on his way to TBCC to consider whether and how to deliver the message to Inmate K after he had agreed to do so. It maintains that his actions must have been premeditated. [188] In support of Mr. Holmquist’s account, the Union asks me to take account of evidence that it submits indicates that Mr. Holmquist’s decision-making was likely impaired on November 16, 2018. [189] Mr. Holmquist testified that the drive to TBCC made him extremely anxious. This is entirely plausible given his relatively recent experience of a life-threatening automobile accident that had caused him severe, lasting and painful injuries. [190] Mr. Holmquist also testified that on November 16, 2018 he was “in a complete fog”. There is circumstantial evidence supporting this statement. He was taking mirtazapine, using for quelling anxiety and treating insomnia. Dr. Probizanski testified that insomnia can affect cognitive function, including making decisions. Mr. Holmquist’s dosage of Lyrica had been doubled on November 12, 2018, four days earlier. Dr. Probizanski testified that in his experience a dosage increase of this nature would increase the risk of side effects, that people can get side effects in the same way as when the medicine is first introduced, and that the most likely effects would be “a little brain fogginess and tiredness”. Mr. Scott testified that in his phone conversation with Mr. Holmquist a few minutes after the exchange of messages with CO Bouchard, Mr. Holmquist “was very upset. I had never really seen him like that. He was crying.” Mr. Scott also testified that when he met Mr. Holmquist two or three days later Mr. Holmquist “did not seem himself” and that “he seemed off”, and that he twice mistakenly referred to his daughter by the wrong name. On November 29, 2018 Dr. Probizanski provided Mr. Holmquist with a medical note stating that “This patient had a medication adjustment on November 12, 2018 that directly caused a reaction – increased confusion and concentration problems.” [191] The Union asks me to infer that Mr. Holmquist was also suffering from PTSD at the relevant times. Like Dr. Probizanski, who declined to draw such an inference, I am not in a position to determine whether Mr. Holmquist was suffering from PTSD at those times. There is simply not enough medical evidence as to his mental health in the record to permit me to draw such an inference. But I note that Dr. Schubert’s report indicates that Mr. Holmquist had experienced since the accident symptoms including poor sleep, recurring nightmares and flashbacks to -37 - the accident. These notes are consistent with Mr. Holmquist’s being treated for insomnia in November of 2018. [192] The Employer points out that Dr. Probizanski did not see Mr. Holmquist between November 12 and November 29, 2018 and did not observe him experiencing confusion or problems with concentration. It also emphasizes that there is nothing in Dr. Probizanski’s notes about the grievor experiencing cognitive symptoms when he first started on Lyrica, that when he increased Mr. Holmquist’s dosage to 150 mg he expected that to be well tolerated, and that most people do not experience side effects from Lyrica. [193] These observations are valid. Dr. Probizanski’s November 29, 2018 note needs to be treated with some caution. Unfortunately, there are no records available of his observations during Mr. Holmquist’s visit with him that day. Nonetheless, I am inclined to infer that Dr. Probizanski more likely than not had some valid basis in evidence for stating that the increased dosage of Lyrica had caused confusion and concentration problems for Mr. Holmquist. In his testimony, Dr. Probizanski took a cautious approach to interpreting medical evidence. He declined, for example, to offer an opinion on whether Mr. Holmquist was suffering from PTSD in the fall of 2018 because he had not made relevant observations at that time. [194] While none of the circumstantial evidence of confusion, concentration problems or brain fog outlined above would have been sufficient on its own to support an inference that Mr. Holmquist was experiencing such problems on November 16, 2018, taken together, it provides in my view a sufficient basis for one. For all of these reasons, I am prepared to conclude on the balance of probabilities that Mr. Holmquist was extremely anxious on the afternoon of November 16, 2018 and that his reasoning and judgment were somewhat impaired. [195] That said, I do not think that the evidence establishes that Mr. Holmquist’s decision-making capacity was so impaired that he could not appreciate his responsibilities to the Employer as a CO. I also note that the Union did not seek to rely on such evidence to entirely excuse him from responsibility for his actions. [196] Mr. Holmquist may have decided on the spot to visit the female dorm after he did not find Sergeant Dupuis. But his decision to take the message to Inmate K was made earlier, despite his not knowing for sure whether Sergeant Dupuis would be available to relay the message. As will be more fully discussed below, this decision posed risks that should have been evident to an experienced CO. His failure to consider those risks did not happen because Mr. Holmquist was required to decide anything on the spot. It was the result of a more prolonged lapse in judgment for which he remained responsible. 5. Mr. Holmquist’s Departure from TBCC [197] The Employer emphasizes that Mr. Holmquist made no attempt to go to Deputy Fummerton’s office or to hand medical evidence to administration staff after he left the female dorms. Nor did he make any attempt to check his emails. Rather, -38 - he simply returned to his vehicle and left TBCC. This, the Employer maintains, clearly supports an inference that his only purpose in visiting the institution was to meet with Inmate K. [198] At the hearing, Mr. Holmquist testified that he left the institution because of an episode of incontinence which caused him to panic and feel deeply ashamed. He said that he tried to reach Mr. Ossandon in the hope that he could come out to his vehicle and retrieve the documents. Mr. Holmquist’s phone records are consistent with his having called Mr. Ossandon at 3:26 pm, which is most likely just before he left TBCC. Mr. Scott testified that Mr. Holmquist later called him in a very agitated state, said that he had “peed his pants”, and asked if he could drive him home. Mr. Holmquist’s phone records indicate that he made a call to Mr. Scott at 4:12 pm. By the time he had calmed down, Mr. Holmquist said, it was too late to return to the institution to drop off his documents. Ms. Dychko testified that Mr. Holmquist messaged her around dinner time that day and said to her that he had gotten really flustered and had experienced incontinence. Mr. McClendon testified that Mr. Holmquist’s mother told him that Mr. Holmquist had experienced incontinence in the fall of 2018 while she was looking after him. [199] The Employer maintains that Mr. Holmquist’s account is not credible. It points out that Mr. Holmquist first said that he had experienced incontinence at the hearing, without ever mentioning it in his Occurrence Report, at the allegations meeting, or at his termination meeting. It emphasizes that there is no evidence that Mr. Holmquist ever reported experiencing incontinence to Dr. Probizanski. Nor did he report incontinence later to Dr. Marchuk, who appears to have specifically asked him about this symptom in May of 2019, and reported that Mr. Holmquist could sense the need to void adequately. It points out that incontinence is not a known side effect of any medication that Mr. Holmquist was taking at the time. It submits that McClendon’s evidence of what Mr. Holmquist’s mother told him is hearsay tendered five years after the fact. The Employer notes that Mr. Holmquist’s mother was not called to testify, and that Mr. McClendon testified as a friend of Mr. Holmquist, one who had spoken to him about his version of events. The Employer maintained that it is very unlikely that Mr. McClendon would remember this kind of detail this long afterwards. Taking all of this into account, the Employer submits that Mr. Holmquist’s explanation of his departure from TBCC is inherently improbable and should not be believed. [200] It is not hard to believe that Mr. Holmquist would have felt deeply ashamed and devastated by such an incident, would have simply wanted to get home on November 16, 2018, and omitted such information from his OR for similar reasons. Further, the Employer’s request for an OR had asked him to explain why he attended at TBCC on November 16, 2018, not why he left. In asking for the OR, Mr. Andrusco did not communicate to Mr. Holmquist his suspicions that Mr. Holmquist did not attend at TBCC for the purposes of dropping off medical information. The request for an OR did not make the need to explain why he had left TBCC without doing so evident. -39 - [201] Neither, as discussed above, did the Employer’s framing of the allegations against Mr. Holmquist or its line of questioning at the allegations meeting. For the reasons set out above, the fact that Mr. Holmquist stated to the Employer that he experienced incontinence on November 16, 2018 for the first time at the hearing carries no weight in my decision. [202] I turn to the evidence of Mr. McClendon that Mr. Holmquist’s mother told him that Mr. Holmquist was experiencing incontinence in the fall of 2018. As the Employer rightly points out, this is hearsay, years after the fact. It would have been appropriate to call Mr. Holmquist’s mother to testify directly to this matter. This was not done, and no explanation of why it was not done was provided in the hearings. In the circumstances, such evidence on a crucial contested matter of fact should be given no weight. [203] Next, there is the evidence of Mr. Scott and Ms. Dychko that Mr. Holmquist told them on November 16, 2018 that he had experienced incontinence at TBCC that afternoon. This is, of course, direct evidence only of what Mr. Holmquist said. There are two possibilities consistent with the Employer’s position that Mr. Holmquist is lying about having experienced incontinence. The first is that he was lying to Mr. Scott and Ms. Dychko on November 16, 2018. This would entail that Mr. Holmquist had worked out a scheme of deception as of November 16, 2018. The second is that all three, Mr. Scott, Ms. Dychko and Mr. Holmquist lied at the hearing. To assess the likelihood of either scenario, it is necessary to consider them in light of the surrounding circumstances, most notably the available medical evidence, and evidence concerning the nature and reasons for Mr. Holmquist’s actions on November 16, 2018. [204] The medical evidence is inconclusive. I note that Mr. Holmquist appears never to have reported incontinence to Dr. Probizanski. It is possible, however, that this was the result of shame. Or it is possible that Mr. Holmquist experienced only one incident of incontinence and saw no need to later report it. Or, as the Employer contends, his failure to report this incident to his family physician may indicate that it never happened. At the hearings, Mr. Holmquist was not asked about why he did not report his incontinence to Dr. Probizanski. His reasons remain unclear. Dr. Marchuk’s report appears to indicate that in the spring of 2019 Mr. Holmquist was not experiencing incontinence. But there is no medical evidence in the record about whether this observation supports an inference that he likely would not have experienced incontinence earlier. [205] In the end, to determine whether the Employer has met its onus to prove that Mr. Holmquist’s stated reasons for attending at and leaving TBCC on November 16, 2018 were false I must consider his evidence and that of Mr. Scott and Ms. Dychko in light of the totality of the evidence of his actions and supporting inferences about his motivations on that day. -40 - D. Conclusions with Respect to the Purposes of Mr. Holmquist’s Visit to TBCC [206] The Employer’s position that Mr. Holmquist attended TBCC on November 16, 2018 to speak with Inmate K and then falsely claimed that his main reason for being there was to drop off medical documentation implies that he carried out a premeditated plan to cover up his actions that included: • falsely telling CO Bouchard that he was there to check emails and deliver medical information; • falsely telling Mr. Scott and Ms. Dychko that he had experienced incontinence while at TBCC or subsequently arranging for them to lie about this under oath; and • making a call to Deputy Fummerton just before arriving at TBCC, and then making a call to Mr. Ossandon just before leaving, presumably to provide some evidence consistent with a story that he attended to drop off medical information. [207] Mr. Holmquist would have carried this plan out at the expense of experiencing the significant stress and anxiety that resulted from his first time driving on the highway since a life-threatening motor vehicle accident that had left him experiencing severe pain and totally disabled from work. He would also have carried this plan out while putting his career as a CO at risk due to the obvious breach of policies and the deception involved, and the number of witnesses to his actions. [208] Why would he do this? Mr. Andrusco appears to have believed that Mr. Holmquist visited Inmate K because of a personal relationship that he had with her. But Mr. Andrusco did not explain what his view of that personal relationship was in any detail, at any stage of the disciplinary or arbitration proceedings. Moreover, the evidence does not establish that Mr. Holmquist had ever met or had any communication with Inmate K before he met with her at TBCC on November 16, 2018. Rather, the evidence shows that Inmate K was a longstanding friend of two friends of Ms. Dychko that Mr. Holmquist had met for the first time on the morning of that same day, and about whom he had never heard anything beforehand. Without some proof of a stronger connection to Inmate K than that, whether personal or financial, the notion that Mr. Holmquist would have conceived of and carried out such a scheme is implausible. It would have been without any conceivable rational motivation. There is no evidence in the record suggesting that Mr. Holmquist is prone to acting in this way, for medical reasons or otherwise. [209] Mr. Holmquist says that he attended TBCC to deliver medical documents that he believed the Employer urgently required in order for his disability benefits to continue. He admits that in hindsight it may have been better to send those documents by courier. But delivering such documents personally is not on its face an implausible reason for attending at TBCC, given that they were required in short order by the Employer to support continued payment of his disability -41 - benefits. It is in any event, on the available evidence, a far more plausible one than the reasons implied by the Employer’s account of Mr. Holmquist’s actions. [210] The Employer says that Mr. Holmquist’s actions at TBCC are not consistent with an intent to deliver medical documents. But Mr. Holmquist may have had have some reason to think that Ms. Fummerton was not present. Video evidence indicates that her parking spot was empty when he arrived. The video recordings also show Mr. Holmquist briefly moving towards the office of the Sergeant on duty and the administration area before turning towards the female dorms. This is consistent with his stated intent to look for Sergeant Dupuis to hand him the medical information. Mr. Holmquist’s calls to Deputy Fummerton before arriving at TBCC, and to Mr. Ossandon just before leaving are consistent with his seeking to deliver medical documents to the Employer. Given all of these circumstances, and the inherent implausibility of Mr. Holmquist risking so much to speak to an inmate with whom he had only the slightest personal connection, I conclude that it is more likely than not that Mr. Holmquist is telling truth about his reasons for leaving TBCC without delivering his medical documentation. [211] For all these reasons, I find that the Employer has not proven on a balance of probabilities that Mr. Holmquist was untruthful about his reasons for attending at TBCC on November 16, 2018. E. Whether Mr. Holmquist’s Text Message to CO Bouchard to “keep that to yourself” Was an Attempt to Conceal His Visit with Inmate K [212] The Employer maintains that Mr. Holmquist’s text message to CO Bouchard was a deliberate attempt to get her to cover up his visit with Inmate K. It emphasizes that his request to “keep that between us” was immediately followed by CO Bouchard’s saying “I hope I don’t get in shit”, immediately after which Mr. Holmquist said, among other things, “just had a quick word with inmate no biggie”. The Employer submits that his response indicates that Mr. Holmquist knew that Ms. Bouchard was concerned about the visit to Inmate K and that he was downplaying its significance. The Employer maintains that he knew that she was worried and was trying to make sure that she did not report it. It points out that CO Bouchard was the only person who had witnessed his visit that he knew well enough to ask for this favour. It insists that this is a plain and logical reading of the exchange. [213] In his testimony Mr. Holmquist said that his request to CO Bouchard to “keep that to yourself” referred to his visit to TBCC and the medical information that he had shared with her, and not specifically to the visit with Inmate K. He said that he made this request because CO Bouchard was a friend of Anna Sutherland, and he did not want Anna Sutherland checking up on him, or to have the private medical information that he had discussed with CO Bouchard. [214] The Union submits that while CO Bouchard may have thought that Mr. Holmquist was asking her to cover up his visit with the inmate, his evidence with respect to his intentions should be preferred. The Union points to the fact that there were -42 - other witnesses, CO Wood and CO Runciman, who observed the visit with Inmate K who could have reported it. The Union also notes that Mr. Holmquist’s visit was recorded in a logbook. Because of these other witnesses and evidence, the Union maintains, asking CO Bouchard to cover up Mr. Holmquist’s visit with Inmate K would have been pointless. Finally, the Union emphasizes that both Mr. Holmquist and Ms. Dychko testified that CO Sutherland had been sending text messages to Mr. Holmquist saying that they should get back together, and that Mr. Holmquist’s evidence was that their relationship had been volatile. [215] In reply, the Employer maintains that Mr. Holmquist’s stated reasons for asking CO Bouchard to “keep that to herself” again require one to believe that female staff essentially behave like teenage girls, and that CO Sutherland was behaving like one who wanted to get back into a relationship. The Employer submits that this denies her professionalism and is demeaning. [216] For ease of reference, I will set out the exchange of text messages again: Mr. Holmquist: Thanks Sandy love you xoxo. Keep that between us. CO Bouchard: I hope I don’t get in shit. Mr. Holmquist: For what lol I still work there. I came to check emails and just had a quick word with inmate no biggie. Let’s get together for a drink soon. [217] Essentially, the Employer interprets the conversation as a set of messages on the same topic – the “quick word with inmate” identified in the second to last sentence. The Union presents the conversation as essentially as two distinct exchanges, one in which Mr. Holmquist thanks Ms. Bouchard and asks her to keep something to herself and she does not respond, and the other in which Ms. Bouchard changes the subject and says she is worried about getting in trouble and Mr. Holmquist tells her not to worry. [218] The Employer’s reading of the exchange, which was also CO Bouchard’s, is a plain and logical one. Mr. Holmquist’s explanation is, on the other hand, puzzling on several counts. [219] First, while Mr. Holmquist says that he was concerned that his visit to TBCC, if it had become known to CO Sutherland, might have provoked her to contact him, there is little basis apparent in the evidence for this concern. Mr. Holmquist testified that Ms. Sutherland had tried to get him back whenever he tried to move on to another relationship. There are no particulars of this in evidence beyond Mr. Holmquist’s assertions. But even if I were to accept the truth of such statements, there is no evidence that Mr. Holmquist discussed his new relationship with Ms. Dychko with CO Bouchard. Further, a mere visit to TBCC is indicative of nothing with respect to Mr. Holmquist’s relationship status. Nor is it clear why learning more information about his health status or challenges might have provoked Ms. Sutherland to contact him. The evidence in the record indicates that she had broken off the relationship shortly after he was -43 - hospitalized. Concern about his health does not appear to have been something that caused her to want to get back with him. Mr. Holmquist’s expressed concerns lack a firm basis in evidence. [220] Second, on the face of it, Mr. Holmquist’s request to "keep that to yourself" is not limited in any way. It makes no reference to Ms. Sutherland. [221] Third, Mr. Holmquist's interpretation of and response to CO Bouchard’s replying “I hope I don’t get in shit” make little sense, and show at least a reckless disregard for obligations to the Employer not to participate in a Code of Silence, and for CO Bouchard’s obligations to submit Occurrence Reports of events out of the ordinary to the Employer. [222] Consider first his interpretation that she was changing the subject. Mr. Holmquist said in cross-examination that he had been confused by Ms. Bouchard’s apparent change of subject. But why would he have thought that she was changing the subject? Why would CO Bouchard, having been asked to keep something to herself, not at least acknowledge such a request before changing the subject? Why would she suddenly start worrying about getting in trouble, right after being asked to keep something to herself, if not for that request? The idea that she was changing the subject seems an unlikely one in this context. [223] Mr. Holmquist sought to explain his interpretation by saying that it simply did not occur to him at this time that he had done something wrong. That was why, he testified, he said “LOL” in his response, in his words changing the tone to a “joking” one. But it actually did occur to him, at that very same time, that CO Bouchard's worries were in fact about his visit with Inmate K. This is evident in his mention of a “quick word with inmate” in that same response. Further, he admitted under cross-examination that he figured out that when CO Bouchard said "I hope I don't get in shit" she was worried about his visit with Inmate K. [224] Faced with these concerns, how did Mr. Holmquist respond? According to his version of events, he apparently did not pause to give them any thought. Nor did he modify or clarify his request to "keep that to yourself" in any way in the face of the clear possibility, to which CO Bouchard alerted him and which he understood immediately, that she might "get in shit" for his visit. This meant that she may be disciplined for it. That she may be disciplined would in turn necessarily mean that the Employer would have an obvious interest in knowing about the visit, and that under Employer policies she would have a duty to report it. In the face of all of this, Mr. Holmquist simply tried to minimize her concerns. [225] This strikes me as an unlikely response from an experienced CO mindful of his responsibilities to the Employer. I recognize that, in light of the evidence discussed above concerning Mr. Holmquist’s health and mental state at the time, his thinking and judgment were likely somewhat impaired at the time he messaged CO Bouchard. He had just made a panicky departure from TBCC, likely in an upset and anxious state of mind. But that does not preclude the possibility that he was attempting to conceal his visit with Inmate K. Nor, as -44 - explained above, does the evidence support a conclusion that Mr. Holmquist could not appreciate his responsibilities under Employer reporting and COS policies. By this time Mr. Holmquist was aware that he visited an inmate and then left TBCC without visiting any other part of the institution. As an experienced CO, he would likely have been aware that the Employer would view such actions with suspicion. He knew that Inmate K was out of visits and that he had done her a favour by visiting her to relay a supportive message, however briefly. This visit had been facilitated by CO Bouchard. She would have been the one with the most to lose by not reporting the visit to the Employer if the visit came to the Employer’s attention. Moreover, as the Employer points out, she was the only witness to the visit in relation to whom Mr. Holmquist could invoke friendship in a bid to conceal his visit to Inmate K. [226] One must also consider the context of this exchange of messages. There is enough evidence to support a conclusion that the COS was operating at TBCC as the relevant times. CO McLendon acknowledged its existence in his testimony. CO Bouchard was called a “rat” and shunned by colleagues. This is classic COS treatment. She referred to her reporting of CO Holmquist’s visit to Inmate K as “ratting myself out”, internalizing the vocabulary of the Code in presenting her own actions. As an experienced CO, Mr. Holmquist was no doubt aware of this. His request to “keep that to yourself” would have been interpreted by CO Bouchard against the background of the Code. [227] In light of the circumstances and for all of the reasons set out above, I infer that Mr. Holmquist, in an anxious state of mind and not thinking clearly, sought to have CO Bouchard conceal his visit with Inmate K from TBCC management. His initial message asking her to "keep that to yourself" was more likely than not made for that purpose. In any event, CO Holmquist was aware by the end of the exchange of messages that CO Bouchard was concerned that his visit with Inmate K would be viewed by management as misconduct in which she was implicated, and in the face of that concern maintained his request to "keep that to yourself". From this, in the absence of any alternative explanation with a plausible basis in evidence, I also infer that Mr. Holmquist sought to enlist the silence of CO Bouchard with respect to his visit to inmate K. VI. Conclusions on Cause for Discipline: Whether the Employer Has Proven Each of the Allegations Against Mr. Holmquist Allegation 1: Behaving in a manner in violation of responsibilities and duties as a Correctional Officer when attending the secure area of the Female Dorms at the TBCC and having a personal conversation with Inmate K. [228] Mr. Holmquist admits attending the secure area of the Female Dorms at TBCC and having an in-person conversation with Inmate K, at a time when she was ineligible for further visits. He admits that this was in violation of responsibilities and duties as a Correctional Officer. -45 - [229] The Employer maintains that giving a message to an inmate on behalf of a friend when she has already had her allotted number of visits is preferential treatment because it essentially provides the inmate with an extra visit. [230] I accept this position. As noted above, such preferential treatment is a violation of the Employer’s Conflict of Interest Policy. Mr. Holmquist was aware of this Policy and knew or should have known that his actions were contrary to it. [231] The Employer has proven its first allegation. Allegation 2: Attempting to get a co-worker to cover up or conceal the visit with Inmate K [232] The Employer submits that Mr. Holmquist’s attempt to have CO Bouchard cover up or conceal his visit with Inmate K amounted to “Code of Silence” (COS) behaviour because he counselled another CO to conceal or misrepresent information that she was under a duty to report. [233] The Union does not deny that counselling another CO to conceal such information would violate employer Code of Silence and Report Writing policies, or that Mr. Holmquist would have been aware of such policies. [234] I have concluded, for reasons set out above, that Mr. Holmquist sought to have CO Bouchard conceal his visit to Inmate K from the Employer. She had brought to his attention that this was behaviour for which she and he may be disciplined. He knew that Inmate K was out of visits, and that he had done her a favour by relaying a message from her friends in person. [235] Mr. Holmquist's actions therefore amounted to Code of Silence behaviour. They reflected a wilful disregard for both his reporting obligations and those of CO Bouchard, including their obligations to avoid participating in a COS. [236] The Employer has proven its second allegation on a balance of probabilities. Allegation 3: Failing to submit a Conflict of Interest declaration regarding Inmate K [237] The Employer maintains that Mr. Holmquist was required to submit a COI declaration regarding his visit with Inmate K by COI policies contained in the PSPPM manual. The Employer points out that Mr. Holmquist must have been aware of these policies because he had filed a previous COI report. The Employer contends that Mr. Holmquist’s visit to Inmate K constituted a routine COI situation that should have been dealt with by filing a report the day of the visit or the day afterwards. The Employer submits that Mr. Holmquist knew that Inmate K had been a friend in high school of the woman he was dating in the fall of 2019 and should have filed a COI for that reason. This is evident, the Employer maintains, because he communicated the existence of his relationship with Ms. Dychko to K in his meeting with her. The Employer maintains in addition -46 - that once Mr. Holmquist had met with Amanda Suttie and she had asked him to do a favour for her and her friend K, a potential conflict of interest arose because Ms. Suttie was a friend of Jayme Dychko. The Employer insists that once Mr. Holmquist acted on that request, an actual conflict of interest arose. [238] The Union submits that it is not clear on the evidence that the Grievor’s relationships to Inmate K warranted a COI declaration. The Union emphasizes that Mr. Holmquist had never met K prior to the visit and knew only that she was a friend of two friends of the woman whom he had recently begun to date. It points out that such relationships of acquaintance are very common in a small city like Thunder Bay. The Union submits that it would be very difficult for any CO to declare a COI every time they have known a person as an acquaintance in this way. [239] The COI Policy defines a Conflict of Interest as any situation in which an employee’s private interests may be incompatible or in conflict with their public service responsibilities. This includes situations in which a public servant gives preferential treatment in a manner furthering their private interests. [240] There is no dispute that Mr. Holmquist’s visit to Inmate K amounted to giving her an extra visit beyond those to which she was entitled. I have determined above that this amounted to preferential treatment. [241] I do not accept the Employer’s argument that Mr. Holmquist knew that K was a friend of Jayme Dychko at the time of his visit with K and was required to declare a COI on that basis. I have found that he did not know of this relationship at that time. But Ms. Suttie’s request to Mr. Holmquist to visit Inmate K created a potential conflict of interest for him that he should have declared to the Employer. Ms. Suttie was a friend of his friend, asking for a favour for one of her friends who was an inmate, a favour that would require Mr. Holmquist to effectively exempt K on the day in question from Employer policy regarding the number of visits allowed to an inmate. Mr. Holmquist’s actions in visiting K made that conflict of interest actual. Allegation 4: Untruthfulness and failure to provide fulsome and accurate information in Occurrence Report dated November 23, 2018. [242] The Employer maintains that Mr. Holmquist’s OR: (1) provided false and misleading information about his reasons for attending at TBCC on November 16, 2019; and (2) failed to disclose his Code of Silence behaviour in relation to CO Bouchard. The Employer emphasizes that Occurrence Reports are fundamental to the operation of a correctional facility as it is essential to have an accurate record of significant events: OPSEU (Esser) v. Ontario (Ministry of Community Safety and Correctional Services), 2015 CanLII 90136 (ON GSB). It was not truthful, submits the employer, for Mr. Holmquist to claim that his purpose in attending TBCC on that day was to submit medical information. Further, the Employer maintains, Mr. Holmquist’s explanations of why he made no attempt to deliver medical information after his meeting with K added -47 - untruthful statements during Employer investigations into his conduct and in his evidence at the hearings. The Employer submits that Mr. Holmquist’s course of deceptive actions and omissions was premeditated and sustained, and demonstrated his failure to accept his own wrongdoing. [243] The Union responds that Mr. Holmquist’s Occurrence Report regarding his November 16, 2019 visit to TBCC was honest: he did in fact attend the institution to deliver medical information but chose not to do so after experiencing an episode of incontinence that was likely related to injuries sustained in an automobile accident. [244] I have closely reviewed Mr. Holmquist’s Occurrence Report in light of the factual findings above. I can find no statement in Mr. Holmquist’s OR that is false on the evidence before me. I have concluded on a balance of probabilities that Mr. Holmquist attended at TBCC on November 16, 2018 in order to deliver medical information. The Employer has not proven that his statement that K was not in his immediate circle of friends was inaccurate or misleading. The weight of evidence supports a conclusion that this statement was true. [245] I note that Mr. Andrusco concluded that Mr. Holmquist had not been truthful in the allegations meeting when he said that he was did not know of the charges against Inmate K. In justifying this conclusion, Mr. Andrusco noted in his testimony that Mr. Holmquist’s OR said that K had “fallen into a bad crowd”. But this ambiguous statement cannot on its own support an inference that Mr. Holmquist knew of the specific charges against Inmate K at the time that he met her. [246] On the other hand, I must accept the Employer’s contention that Mr. Holmquist failed to provide a full and accurate Occurrence Report because he failed to disclose his text message exchange with CO Bouchard. The Report Writing Policy clearly requires an employee involved in a reportable incident, including an incident of misconduct for which he may be disciplined, to create a full and accurate Occurrence Report of the incident. To this extent, and to this extent only, I conclude that the Employer has proven its fourth allegation. VII. Whether the Discipline Imposed was Just and Reasonable in the Circumstances [247] Having concluded that the Employer had cause to impose discipline, I must now consider whether the discipline chosen was just and reasonable in the circumstances. A. Employer Submissions [248] The Employer emphasizes the seriousness of according preferential treatment to an inmate. It points out that doing so makes a CO vulnerable to further requests for favours, because the inmate can hold this misconduct over the CO. This in turn poses risks to security. Those risks were, submits the Employer, heightened -48 - in this case by the facts that Inmate K was in custody for possession of a significant amount of fentanyl and other dangerous substances seized from her house, and had gang affiliations. The Employer refers me to OPSEU (Khan) v. Ontario (Ministry of Community and Social Services), 2012 CanLII 29870 (ON GSB); Newfoundland and Labrador Assn. of Public and Private v. Newfoundland and Labrador, 2020 CarswellNfld 279 (Oakley); Dunscombe v. Ontario (Ministry of the Solicitor General), P-2017-1547, February 4, 2022 (Tremayne); OPSEU (Bijowski) v. Ontario (Ministry of Community Safety and Correctional Services), 2012 CanLII 67538 (ON GSB); OPSEU (Bijowski) v. Ontario (Ministry of Community Safety and Correctional Services), 2012 CanLII 49850 (ON GSB) in which arbitrators have upheld termination of COs for preferential treatment of inmates. The Employer also notes that Mr. Holmquist was on leave at the time, and that his attendance at TBCC while on leave without prior notice to and permission from the Employer was contrary to Employer policies. The Employer advances this as an aggravating factor, rather than as an independent basis for discipline. [249] The Employer also insists on the seriousness and importance of prohibitions on Code of Silence behaviours, and that such peer pressure undermines a healthy and safe workplace. The Employer refers me to numerous arbitral awards recognizing the problems posed by Code of Silence behaviour in the corrections system, and the appropriateness of termination in response to it: OPSEU (Haist) v. Ontario (Ministry of the Solicitor General), GSB# 2019-1201, October 25, 2023 (McLean); OPSEU (Esser) v. Ontario (Ministry of Community Safety and Correctional Services), 2015 CanLII 90136 (ON GSB). [250] Further, the Employer notes the importance of COI declarations to ensuring integrity and safety within a correctional facility, in the interests of the public, employees, and inmates. The Employer refers me to the following decisions in which failure by COs to disclose COI relationships resulted in terminations that were upheld at arbitration: Khan, supra; and Bijowski, supra; OPSEU (Larkin) v. Ontario (Ministry of Correctional Services), GSB #2844/92, May 25, 1994 (Verity). [251] The Employer maintains that CO Holmquist has shown little forthrightness or remorse, admitting and apologizing for his visit with Inmate K only after it was apparent to him that the Employer was investigating it, continuing to deny any wrongdoing in his message to CO Bouchard, and continuing to provide false reasons for his attendance at, and departure from TBCC on November 16, 2018. [252] The Employer also views as very problematic various attempts by Mr. Holmquist during his testimony (summarized below) to cast doubt on the motives, credibility or integrity of those investigating his misconduct, including Sergeant Dunne, Sergeant Ossandon (as he then was), and Superintendent Machado. The Employer characterizes this as casting aspersions to deflect blame and avoid accepting responsibility for his misconduct. -49 - [253] The Employer submits that if discharge is not appropriate, there should be an award of damages in lieu of reinstatement. It maintains that this is appropriate when the relationship is no longer viable: A.U.P.E v. Lethbridge Community College, 2004 SCC 28 (CanLII); OLBEU (Massa) v. Ontario (Liquor Control Board of Ontario), GSB # 2033/97, 384/98, 385/98, February 15, 2000 (Abramsky); OLBEU (Massa) v. Ontario (Liquor Control Board of Ontario), GSB # 2033/97, September 15, 2000 (Abramsky); OPSEU (Chung) v. Ontario (Ministry of Government and Consumer Services), 2022 CanLII 31334. The Employer submits that Mr. Holmquist’s breaches of trust, inability or refusal to accept responsibility, and attacks on the character of management and coworkers would lead inescapably to the conclusion that the employment relationship is not viable. B. Union Submissions [254] The Union emphasizes that Mr. Holmquist acknowledged as early as his OR of November 23, 2018 that his decision to visit Inmate K was wrong, and that he recognizes that he deserves some discipline. The Union maintains that the visit represents an isolated incident arising from a single lapse in judgement. The Union points out that at the time he visited Inmate K, Mr. Holmquist was feeling “in a fog”, scatterbrained, and unwell, and that his course of pain and insomnia medication likely contributed to this. It submits that arbitrators have given considerable weight to such factors in assessing the seriousness of misconduct, and points me to Waterloo Region District School Board v Custodial and Maintenance Assn, 2009 CarswellOnt 10209; Ottawa (City) v Ottawa-Carleton Public Employees Union Local 503, 2005 CarswellOnt 8431. Finally, the Union contends that prior to the incident of November 16, 2018 the Employer had been indifferent with respect to strict adherence of policies regarding attendance at TBCC while on leave. [255] In its alternative submissions with respect to Mr. Holmquist’s Code of Silence behaviour, the Union contends that Code of Silence behaviour does not always warrant termination, particularly where it is not threatening: Esser, supra. It emphasizes that Mr. Holmquist made no threat to CO Bouchard, and stated his willingness to work with her respectfully if he were reinstated. [256] Thirdly, the Union maintains that any breach of COI reporting requirements in this case was relatively minor, in that Mr. Holmquist had only a brief interaction with Inmate K, there is no evidence of any prejudice to TBCC resulting from it, and he disclosed the relationship to management soon after the visit. The Union maintains that in these circumstances, a failure to file a COI declaration would not be sufficiently serious to justify a termination. The Union refers me to Khan, supra, Bijowski, supra, Larkin, supra, and OPSEU (White) and Ontario (Ministry of the Solicitor General), 2020 CarswellOnt 12329; OPSEU (Cassidy) and Ontario (Ministry of the Solicitor General), GSB#1456/96; OPSEU (Johnston) and Ontario (Ministry of Correctional Services), GSB#14/83. [257] The Union emphasizes that Mr. Holmquist had almost 14 years of discipline-free service to the Employer, and that he testified that he is committed to a career as -50 - a CO, still has good relationships with his coworkers, felt bad about what CO Bouchard had to go through, and regretted the position that he had put Mr. Andrusco in as a result of his visit to Inmate K. [258] Finally, the Union contends that damages in lieu of reinstatement should only be ordered in exceptional circumstances, and should not be used to provide an employer with an opportunity to sever a relationship and deny an essential remedy to an employee: University of Lethbridge, supra; Professional Engineers Government of Ontario v Ontario (Ministry of the Environment), 2005 CarswellOnt 8223. It insists that reinstatement should normally follow a determination that discharge was not justified even if arbitration proceedings have generated a certain amount of friction. C. Decision [259] The Employer has not proven what it considered to be the most troubling of its allegations against Mr. Holmquist – his alleged continued dishonesty about the purposes of his visit to TBCC on November 16, 2018 and about the nature of his relationship to Inmate K. It remains to be determined whether the allegations that it has proven justify the termination of Mr. Holmquist’s employment or some other disciplinary measure, and if the latter, whether the consequences of his misconduct justify substituting damages for reinstatement. [260] I accept the Employer’s submission that Mr. Holmquist’s preferential treatment of Inmate K is a serious matter. As the Employer maintains, such behaviour places a CO in a compromised position, rendering the CO vulnerable to further requests for favourable treatment. This can in turn pose risks to safety, though in this case there is no evidence that such risks materialized. It also compromises the integrity of the Employer’s operations, and its commitment to serve the public impartially. [261] The fact that Mr. Holmquist was off duty when he visited Inmate K made matters worse. I need not determine whether the Employer had consistently enforced a policy against visiting secure areas of TBCC while off duty, a matter with respect to which there was conflicting evidence. This is beside the point, because the Employer does not advance his attendance while off duty as an independent basis for discipline. Rather, the fact that Mr. Holmquist was off duty matters because it likely reinforced the perceptions of Inmate K, and of others who witnessed the visit, of preferential treatment. CO Holmquist’s entry into the female dorm could only have been for the sole purpose of according Inmate K what he knew to be an extra visit. [262] This was a serious lapse in judgment. Moreover, I do not think that it can be characterized as a “snap decision”. Rather, it was the result of a more prolonged failure to properly engage with his responsibilities as a CO. After speaking with Ms. Suttie, Mr. Holmquist knew that Inmate K had no more visits for the week. It took him about 20 minutes to drive from Ms. Dychko’s house to TBCC. Mr. -51 - Holmquist was an experienced CO who would have been aware of his responsibilities under the Employer’s Conflict of Interest Policy. It should have been obvious to him in these circumstances that visiting an inmate in plain clothes while off duty would both appear to be and constitute preferential treatment. [263] As noted above, I accept that Mr. Holmquist’s judgment and decision making were impaired at the time, but not to the point of entirely removing his awareness of his responsibilities as a CO. Mr. Holmquist’s mental state at the time may partially explain and mitigate this misconduct. But it cannot excuse it. [264] On the other hand, this case is distinguishable from those cited to me by the Employer as supporting discharge for preferential treatment of inmates. It involved a single instance and a lesser benefit to the inmate than was involved in any of those cases. In Power, the grievor provided an inmate known to be dangerous with uncensored access to Facebook pages of one or more female persons, creating a risk to the public, and with uncensored access to two Control Room phone calls, bypassing security systems. One of the phone calls was of an excessive length. The arbitrator found that the grievor had allowed herself to be manipulated by the inmate. Dunscombe involved a supervisor. Arbitrator Tremayne noted that supervisors are held to a higher standard than regular employees. The Complainant in that case had allowed a high-profile inmate who was his former coworker and his spouse’s former coworker to remain in the institution contrary to policy. On one occasion the inmate was allowed to have an hour-long meeting, at which the complainant was present, in an area not allowed to inmates, and while remaining in civilian clothes. On another, the inmate was allowed into the Warrants Office, off-limits to inmates, and allowed to handle confidential paperwork. These multiple failures took place over a period of five days. [265] Mr. Holmquist’s failure to produce a COI declaration after he was asked by friends of Ms. Dychko to deliver a message to Inmate K also represents a lapse in judgment. Moreover, it is one that Mr. Holmquist did not remedy. Nor did he acknowledge it until he gave evidence in at the hearings. [266] On the other hand, by November 20, 2018 Mr. Holmquist had told Superintendent Machado about his visit to Inmate K. By November 23, 2018 he had admitted in his Occurrence Report that his actions in visiting Inmate K had reflected poor judgment. In his testimony he said that if Superintendent Machado had told him on November 20, 2018 that management was perceiving his actions as a conflict of interest he would have declared it. This does not change the fact that he had a responsibility to declare his COI without being told to do so. But I consider these to be mitigating circumstances. It is somewhat understandable that the need to further document the conflict of interest inherent in his actions may not have been apparent to him at that time. [267] Further, from the time of the allegations meeting right up until closing arguments in the hearings, the Employer’s stated concerns and allegations of conflict of -52 - interest were explicitly and exclusively framed in terms of Mr. Holmquist having a personal relationship with Inmate K, a matter that Mr. Holmquist truthfully denied. I can see how the Employer’s focus of inquiry from the allegations meeting onwards on his alleged relationship with Inmate K would have distracted Mr. Holmquist from taking the necessary steps to correct his failure to declare the conflict of interest arising out of doing a favour for Ms. Suttie by visiting Inmate K. Again, this did not relieve Mr. Holmquist of responsibility to independently consider his conflict of interest. It was a lesser included matter in relation to the Employer’s allegations. But these circumstances are relevant to mitigation. [268] The conflict of interest cases cited to me by the Employer, namely Khan, Bijowski, and Larkin, all involve failures to report close relationships with an inmate or criminally accused person over long periods of time. They are of little assistance in this case except as a reminder of the important purposes served by the COI Policy. [269] Mr. Holmquist apologized and at various times expressed regret for having visited Inmate K. In his call to Superintendent Machado on November 20, 2018 Mr. Holmquist apologized for having visited the secure area of the facility on November 16, 2018. The available evidence does not indicate precisely what about that visit the apology was for, but neither did the conversation delve into the particulars of misconduct arising from the visit. On November 23, 2018 in his OR, CO Holmquist acknowledged that his decision to visit Inmate K was “in poor judgment and could have been handled differently”. At the allegations meeting, when asked if he had anything to add to the information that he had provided, Mr. Holmquist said “in hindsight it was not the best course of action”. [270] None of these statements acknowledged in any detail the nature of Mr. Holmquist’s misconduct or demonstrated insight into how he should have acted differently. Such statements did not come until Mr. Holmquist testified at the hearing. There, when asked if he would do anything differently if he faced a similar situation, Mr. Holmquist said: [I]f I was at work and anything remotely like this happened I would speak to the Superintendent and get advice and follow direction. …. If I was even in that situation I would go to the manager if it was remotely possible that there was a type of conflict and declare and do whatever it takes to make things kosher. I would follow their direction. He then added: I want everyone to know that if I get the opportunity to go back I will do whatever it takes to repair relationships. I made mistakes and deserve some discipline. It was a stupid decision… I have learned a valuable lesson that I can’t get too comfortable and have to pay attention. This will never happen again, I promise. -53 - Mr. Holmquist also expressed regret for the trouble that his course of action had caused for Mr. Andrusco, and for Ms. Bouchard. [271] I accept these statements as sincere and constructive. But it would in my view have been much better if Mr. Holmquist had taken the opportunity to express his remorse and demonstrate insight into his misconduct more fully at the allegations meeting. Instead, at that time he offered only a terse and qualified acknowledgement of a mistake. [272] In light of all these circumstances, without Mr. Holmquist’s messages to CO Bouchard I would have been inclined to substitute a suspension measured in a small number of weeks for termination. But I find that misconduct to be the most troubling, and it is something for which, outside of the consequences for CO Bouchard, Mr. Holmquist has expressed no remorse. [273] I am mindful that Mr. Holmquist’s request to CO Bouchard to “keep that to yourself” was only made once, and was made at a time when his judgment was clouded by factors beyond his control. It occurred immediately following his panicky departure from TBCC in response to an episode of incontinence. I have also found that it was not followed by any further attempts by Mr. Holmquist to conceal his visit with Inmate K, the nature of his relationship to her, or his purposes in visiting her. In these circumstances, I am prepared to conclude that Mr. Holmquist’s request to CO Bouchard represented a single and momentary instance of Code of Silence behaviour. [274] But it nonetheless represents a very serious lapse in judgment for which Mr. Holmquist must be held accountable. Arbitral jurisprudence recognizes that the Code of Silence can be a serious, systemic problem in the corrections system. As Arbitrator Watters remarks in Esser, supra, at para 391: As stated in the jurisprudence, the COS victimizes those who come forward, encourages further misconduct, makes it difficult for the Employer to respond effectively, and puts inmates and the Employer at risk. [275] In this case, Mr. Holmquist had no involvement in victimizing CO Bouchard, and expressed regret that this had happened. But he did seek to enlist and benefit from her silence. He casually dismissed her concerns that they may have been involved in misconduct, and the possibility that she might have to report this. His conduct could only help to perpetuate a Code of Silence at TBCC. [276] The Employer referred me to several decisions addressing Code of Silence behaviour. All but one involved far more egregious conduct than this case. Esser, supra, is however somewhat analogous. In that case, one of the grievors engaged, as in this case, in a subtle attempt to perpetuate the Code. This was done in order to protect another grievor, who happened to be his father, from possible discipline for use of excessive force against an inmate in which the former grievor had not participated. Arbitrator Watters concluded that, unlike this case, the grievor’s words and actions were threatening. Despite this, and despite -54 - the lack of any expression of remorse on his part, the arbitrator was not persuaded that the conduct of the grievor in question had irreparably damaged the workplace relationship, noting that he had rehabilitative potential. In making this decision, Arbitrator Watters stated at paragraph 456 that: Notwithstanding the above, I wish to stress that this disposition should not be treated as a condonation of the COS. It would be a mistake to do so, as I am satisfied that, generally, a CO who engages in actions consistent with the COS should be subject to significant discipline, if not termination. [277] In this case, significant discipline for Code of Silence behaviour must come on top of the discipline warranted for other misconduct discussed above. But that is not necessarily dispositive with respect to whether the termination should be upheld. Mr. Holmquist’s messages to CO Bouchard had the effect of extending and deepening his lapse in judgment of November 16, 2018. They did not create a pattern of behaviour that amounted to recidivism. [278] Having carefully considered all the circumstances, I have concluded that, while very serious, the proven course of Mr. Holmquist’s misconduct was not necessarily so damaging to the employment relationship as to be irreparable and thus to preclude consideration of his rehabilitative potential. I must therefore turn to that question. [279] Prior to the termination that is the subject of these proceedings, Mr. Holmquist had almost 14 years of discipline-free service to the Employer. He testified that he loved all aspects of his job, most notably trying to make a positive difference in the lives of inmates in the custody of TBCC, and the camaraderie of his colleagues. He said that all of his best friends are COs. His uncontradicted evidence was that he had always had positive annual reviews, worked hard and cared about his job. Mr. Holmquist has expressed remorse about giving preferential treatment to Inmate K and committed to disclosing potential conflicts and avoiding actual conflicts in the future. He has also committed to doing what it takes to repair relationships at work. While these statements have come late in the day, I am prepared to give them some weight. [280] The Employer emphasizes that, in its view, rather than accepting responsibility for his actions at the hearings, Mr. Holmquist cast aspersions on other staff and management to deflect responsibility for what had happened to him. In particular, the Employer points to Mr. Holmquist’s accusations against Sergeant Dunne, discussed above. It also notes that Mr. Holmquist: (1) alleged that Mr. Ossandon should not have participated in the investigation due to interpersonal conflict with him; and (2) raised the fact he had been a “thorn in the side” of Superintendent Machado sometimes earlier in his career by filing grievances, and suggested that she had “stonewalled” his attempts to speak to her about this matter because of that. [281] Little purpose would be served by fully reviewing these matters. I agree with the Employer that Mr. Holmquist’s suggestions of conflict of interest on the part of -55 - Sergeant Dunne, Mr. Ossandon, and Superintendent Machado are without merit. I have concluded above that his suggestions that Sergeant Dunne acted improperly have no foundation in evidence. Nor can I see any basis for his concerns about Mr. Ossandon. Mr. Ossandon’s only role in the investigation of Mr. Holmquist was to gather and deliver video evidence. Whatever interpersonal conflict there may have been between the two of them, there is no basis in the evidence before me to conclude that it materially affected the investigation. As for Superintendent Machado, as the Employer points out, once she had asked for an investigation it was quite proper for her to await its outcome rather than speaking directly to Mr. Holmquist herself about the subject matter of the investigation. Moreover, she had no direct involvement in the deliberations of the investigators. [282] In my view, in the course of giving his evidence Mr. Holmquist displayed a tendency to see professional relationships in personal terms. This did not serve him well. But I do not think that Mr. Holmquist’s expressions of frustration with the investigation into this matter can be reduced to casting aspersions to deflect blame. Mr. Holmquist’s central concern with the investigation was that Mr. Andrusco made up his mind quickly and without speaking to him. Mr. Andrusco in fact completed his LIR without speaking to CO Holmquist or receiving his Occurrence Report. He also credited hearsay evidence of an inmate’s statements without ever having tested them against Mr. Holmquist’s version of events. Even at the allegations meeting, the Employer’s line of questioning was cagey in that it did not put directly to Mr. Holmquist the specific allegations of dishonesty that it found most troubling. Mr. Holmquist did not help himself at that meeting. His responses were terse and somewhat cagey themselves. But Mr. Holmquist nonetheless had some reason to wonder why the Employer reached very consequential conclusions about the truthfulness of his statements without doing more to elicit his version of events. In this context, I cannot conclude that Mr. Holmquist’s speculations about the investigation process are indicative of a failure to accept responsibility for his own actions and an attempt to deflect blame onto others. They were more likely the kinds of conjectures that one would make in the face of such an investigation process when one tends to see professional relationships in personal terms. [283] In the end, the biggest concern I have about reinstating Mr. Holmquist is that he was not sufficiently candid or remorseful either during the investigation or at the hearings about the purposes and effects of his messages to CO Bouchard. Rather, he offered an implausible account of the meaning of what he said, and of why he said it. He had not reflected on how CO Bouchard might reasonably have interpreted his messages. Nor had he considered their potential effects, in the context of a Code of Silence, on his or her obligations to the Employer. Given his state of mind at the time, I do not think that his actions were more than briefly or carelessly premeditated. But they, along with his subsequent explanations of them, reflected an ongoing failure to forthrightly engage with and acknowledge his own motivations and the consequences of his actions. -56 - [284] Nonetheless, having given the matter careful consideration, I find that Mr. Holmquist has rehabilitative potential. He has expressed remorse for and committed to avoid placing himself in a conflict of interest. He repeatedly emphasized his commitment to being a good CO and to restoring relationships with colleagues and management. I believe that it will be possible to convey to him the wrongfulness of and deter him from engaging in Code of Silence activity in future. Mr. Holmquist’s messages to CO Bouchard, and his continuing failure to acknowledge the wrong and the harm in them, while deeply problematic, fall within the range of misconduct that can be addressed through progressive discipline. [285] I have also concluded that the Employer has not established that this is an exceptional case warranting a conclusion that the viability of the employment relationship has been destroyed as a consequence of Mr. Holmquist’s misconduct. The cases cited to me by the Employer in support of substituting damages for reinstatement involved grievors who had exhibited a pattern of accepting no responsibility for any of their misconduct or poor performance and of blaming others for problems arising out of them. In addition, they showed no remorse for or insight into any of the problems that they had caused. In Massa, the grievor also threatened and harassed coworkers, and by his actions demonstrated a belief that rules that applied to others did not apply to him. In this case, the Employer has proven no such pattern of behaviour. [286] For all these reasons, I am prepared to give Mr. Holmquist a chance to return to work as a CO. But to clearly and unequivocally reinforce the message that his attempt to enlist the silence of CO Bouchard was wrong and compounded his other misconduct, there will be a substantial period of time between the date of the grievance and the date of reinstatement. That period will not, however, run to the date of this decision because of the unusual length of time required to complete these proceedings. VIII. Remedy for Breach of Article 30.1 Rights [287] As described above, on November 21, 2018, Mr. Andrusco and Ms. Fummerton met with Mr. Holmquist and requested from him an OR about why he attended TBCC on November 16, 2018. In a preliminary award dated January 14, 2021, I determined that this request was in furtherance of the Employer’s ongoing investigation into those matters and that the Employer had breached Mr. Holmquist’s union representation rights under Article 30.1 of the Collective Agreement. I nonetheless declined the Union’s request to void the discipline immediately on the basis of this breach. Having considered the relevant jurisprudence, I concluded that where a collective agreement’s terms do not mandate a particular remedy for a breach of representation rights, as is the case here, whether to declare discipline void should depend upon circumstances such as: (1) the extent of prejudice to the grievor; (2) the merits of the Employer’s claim that discipline was warranted; and (3) whether the employer acted in good faith and made an innocent mistake. Applying these criteria to the Union’s -57 - request that the discipline be voided prior to any hearing of evidence on the merits of the Employer’s claim that discipline was warranted, I found that there was no evidence before me indicating that Mr. Holmquist suffered continuing prejudice after November 21, 2018. I determined that at that time the Employer’s claim that discipline is warranted was not outweighed by prejudice incurred by the Grievor and by the nature of the employer’s breach. I reserved my decision with respect to remedy until I had heard evidence and arguments on the merits of the Employer’s claim that the discipline imposed on Mr. Holmquist was warranted. [288] The Union submits that in light of the violation of Mr. Holmquist’s union representation rights found in my interim decision of January 14, 2021, the discipline against Mr. Holmquist should be voided, or in the alternative, reduced. It maintains that the evidence of the Employer’s investigation now in the record establishes that Mr. Holmquist experienced prejudice as a result of its Article 30.1 breach. The Union reasons as follows in support of this claim: (1) had the Union been properly notified, Mr. Holmquist would have had Union representation at the November 21, 2018 meeting at which the Employer asked him for an Occurrence Report; (2) this would have enabled Mr. Holmquist to obtain notification of the policy breaches that the Employer was concerned about; (3) in turn, this would have enabled Mr. Holmquist and the Union to understand that the Employer had concerns that the purpose of his visit was not to deliver medical information but rather the meeting with Inmate K; (4) had he known this, Mr. Holmquist would have provided further information in his OR; (5) as it turned out, because he was never interviewed prior to the allegation meeting, his OR was the only statement from Mr. Holmquist that the Employer took into account during its investigation prior to the allegation meeting; (6) this mattered because Mr. Andrusco appears to have made his mind up about the validity of Sergeant Dunne’s report of what Inmate K said about her relationship with Mr. Holmquist before the allegation meeting. As proof of this last proposition, the Union points to the facts that: (1) Mr. Andrusco signed off on the LIR prior to even having received Mr. Holmquist’s OR; (2) the Employer sought no information to verify Inmate K’s statements; and (3) Mr. Andrusco said that the medical evidence that Mr. Holmquist submitted at the allegations meeting did not factor into his assessment at all. Accordingly, submits the Union, the failure to respect his Article 30.1 rights at the November 21, 2018 meeting ended up prejudicing Mr. Holmquist’s interests in a fair resolution of the allegations against him, by contributing to a flawed or predetermined investigation. [289] The Employer responds that in my January 14, 2021 decision there was a factual finding that there was no evidence indicating that Mr. Holmquist had suffered continuing prejudice. It insists that this finding should not be disturbed, that the Union had the opportunity to raise the arguments that it now raises at the preliminary stage but did not, and that it is not now open to the Union to bring such matters forward. [290] In the alternative, the Employer submits that there is no merit to the argument that Mr. Holmquist suffered prejudice. It points out that: (1) no allegations were -58 - put to Mr. Holmquist at the November 21, 2018 meeting; (2) no allegations had been formed at that time; (3) the allegations eventually put to Mr. Holmquist were developed following the LIR and CSOI review; (4) a level 2 CSOI review does not normally include interviews of witnesses because it is simply a review of the institution’s investigation as documented in the LIR; (5) Mr. Holmquist had the opportunity to flesh out his account of events at the allegation meeting; (6) Mr. Holmquist had the opportunity to consult with a Union representative in preparing his OR and in all subsequent meetings leading to the discipline that the Employer imposed; and (7) Mr. Andrusco considered but simply did not accept the medical evidence that Mr. Holmquist presented at the allegations meeting. The Employer submits that it acted in good faith at the November 21, 2018 meeting and that the breach of Article 30.1 was a result of an innocent mistake. [291] Accordingly, the Employer maintains that a declaration would be a sufficient remedy for its Article 30.1 breach. The Employer refers me to Conair Group Inc. v. International Union of Operating Engineers, Local 115 (Gordon Grievance), [2010] C.L.A.D. No. 248, at paras 106, 123 124. In the alternative, the Employer submits that monetary compensation in the form of a short paid suspension may be appropriate: Hamilton Health Sciences v. Ontario Nurses’ Association, 2010 CanLII 35848 (ON LA), paras 53 to 55. [292] I have determined above that the Employer’s claim that discipline was warranted has considerable merit. This factor needs to be weighed against the nature of the Employer’s Article 30.1 breach, and any prejudice suffered by Mr. Holmquist. [293] In the January 14, 2021 preliminary decision, I concluded that the Employer consciously chose a course of action that paid insufficient attention to Mr. Holmquist’s representation rights. Seeking to advance an investigation at the November 21, 2018 meeting with CO Holmquist, and having adverted to the possibility that Mr. Holmquist had representation rights that would be triggered by the meeting, the Employer either did not inquire into or chose not to conform to their requirements. I would not characterize this as an innocent mistake. Rather, the Employer’s actions reflected a wilful failure to consider and respond to legal obligations. [294] I do not agree with the Employer’s argument that it is no longer open to the Union to raise the issue of prejudice to the Grievor. The Union’s present claim of prejudice is based on evidence with respect to the Employer’s investigation that had yet to be tendered at the time of the preliminary motion. Accepting the Employer’s position would effectively require a Union to elect, in bringing a motion to void discipline prior to hearing evidence on its merits, to forego any claims of prejudice based on subsequently tendered evidence of how an employer conducted its investigation. This would complicate the ability of a union to obtain the prompt remedy required at an early stage of proceedings where prejudice to the grievor clearly outweighs the possible merits of the employer’s disciplinary action. I can see no need to do this. A union may not re-open factual matters settled on a preliminary motion in subsequent proceedings. On the other hand, if new evidence presented in hearings on the merits of discipline -59 - arguably establishes prejudice that could not have been inferred on the basis of evidence available at the preliminary motion, justice requires that the additional arguments of prejudice be considered. [295] That said, I do not share the Union’s conclusions about the extent of prejudice to Mr. Holmquist resulting from the Employer’s Article 30.1 breach. The proposition that Mr. Holmquist’s having union representation at the November 21, 2018 meeting would have changed the Employer’s approach to gathering and weighing evidence strikes me as speculative. For one thing, as the Union points out, Mr. Andrusco had already signed the LIR by November 20, 2018, that is, prior to the November 21, 2018 meeting with Mr. Holmquist. As of that date, Superintendent Machado had already requested a CSOI review. For another, Mr. Holmquist did avail himself of Union representation in all dealings with the Employer with respect to the matters under investigation after November 21, 2018. This included having a Union representative with him at the allegations meeting. Employer representatives were no more forthcoming with their concerns at any time prior to the dismissal letter. Article 30.1 representation rights provide employees and the Union an opportunity to seek to clarify the bases for a disciplinary investigation. But union representation would not have necessarily ensured that Mr. Holmquist obtained that information. [296] I nonetheless recognize that the Employer’s breach of Article 30.1 deprived Mr. Holmquist of an opportunity to seek, with the assistance of a representative, further or better information at an early stage of the investigation. I have also taken into account the fact that he found himself, as I concluded in the January 14, 2021 decision, “surprised, unrepresented, and uninformed as to his rights when the November 21, 2018 meeting began… at a potentially critical juncture in his employment.” These things should not have happened. Article 30.1 rights are substantive rights. A remedy for their violation should reflect this. It should convey that their breach is not acceptable, even when the evidence does not prove prejudice affecting the outcome of disciplinary proceedings. [297] In the circumstances of this case, I have determined that the Employer should pay to Mr. Holmquist an amount of $5000 in general damages as compensation. IX. Disposition [298] The grievance is allowed in part. [299] The Employer is directed pay to Mr. Holmquist $5000 in general damages for breach of his representation rights under Article 30.1 of the Collective Agreement. [300] The Employer is directed to reinstate Mr. Holmquist effective 18 months after the date of his termination. His seniority shall begin to accrue again on that date. -60 - [301] The parties have agreed that this order will deal only with the appropriateness of the discipline and with the remedy for breach of Article 30.1. Specifically, they have asked me not to deal with the monetary consequences of any reinstatement order, in order to allow them an opportunity to discuss these matters. Accordingly, I make no order and will remain seized with respect to such matters, along with any others related to the implementation of this award. Dated at Toronto, Ontario this 24th day of July 2024. “Kevin Banks” Kevin Banks, Arbitrator