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HomeMy WebLinkAbout1984-0059.McCaig.85-06-131 i IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING AC? Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (James D. McCaig) Before: and The Crown in Right of Ontario (Ministry of Community and Social Services) P. M. Draper K. O’Neil D. 8. Middleton Vice-Chairman Member Member For the Crievor: C. C. Paliare, Counsel Cowling & Henderson Barristers & Solicitors _. For the Employer: R. 3. McCully, Law Officer Legal Services Branch Ministry of Community and Social Services Hearings: August 22, 23, October 30, November 1, 26, 27, 28, December 8, 1984 I i Crievor Employer -2- The Grievor, James McCaig, grieves that on December 28, 1983 he was unjustly dismissed from his position as Residential Counsellor 2 at Pine Ridge, a facility for the mentally retarded. He requests reinstatement and the restoration of lost wages and benefits. We shall refer to three residents of Pine Ridge, about whom the evidence speaks, by the first letter of their surnames so as to preserve their privacy. The Grievor was notified by letter dated October 27, 1983, that he was being suspended with pay during an investigation of an incident involving injuries to a resident, R, which had occurred on October 22, 1983. By letter dated November 24, 1983, he was notified that the investigation had been enlarged to include certain allegations made against him and that he was being suspended without pay. That suspension was extended by letter dated December 22, 1983. By letter dated December 23, 1983, he was notified that he was being dismissed as of December 28, 1983. The text of the letter of dismissal reads: “In reviewing the investigative meeting held at Pine Ridge, Aurora, on December 14, 1983, I have concluded thaf your work performance as a resident councillor (sic) is unacceptable. You have contravened the Ministry’s Standards of Conduct in the following instances: (a) On or about October 18, 1983, you used unnecessary force on the resident K’) (b) 01 or about October 21, 1983, you used unnecessary force on the resident (r’) I -3- (c) On or about October 22, 1983, you used unnecessary force on the resident (‘RI) (d) On a date in early 1983 you used UMeCesary force on a resident who was in restraint (e) Whilst responsible for the care and supervision of residents and in .other instances at the workplace you were observed on numerous occasions to be apparently sleeping so that you were incapable of fully attending to your duties. An examination of your work record discloses that in other instances also you have not compiled with the Standards of Conduct. In addition, discipline has previously been imposed concerning your use of inappropriate physical force on a resident. In consideration of the above this will advise you that you will be dismissed from employment effective December 28, 1983.” On October 25, 1983, the police were called in concerning R’s injuries. A charge of assault causing bodily harm was laid against the Crievor, on which he was tried and acquitted. An internal investigation was conducted by a task force of Ministry personnel. The statements of the persons interviewed and the report of the task force were filed in evidence. The task force decided that it could not find that the , Griever had caused R’s injuries but found that he had used excessive force in the incident and recommended his dismissal. It also recommended that a formal disciplinary investigation be conducted with the ass&ance of the Ministry’s Legal Services Branch. This was done and led to the disciplinary meeting of December 14, 1983, and the Griever’s eventual dismissal. It is to be noted that the Board is not inhibited in irs consideration of the matter by either the disposition of the criminal charge laid against the Grievor -4- cr by the conclusions of the task force. The issue the Board is required ‘to determine is whether or not there was just cause for the dismissal of the Grievor from his employment as a Residential Counsellor in a public facility for the mentally retarded. The Board is, so to speak,. the eier de novo of fact in the matter ati it is upon the attendant circumstances and the facts proved in evidence that our resolution of the issue must be based. Pine Ridge was closed by the Ministry in the summer of 1984. It had accommodated moderately to severely mentally retarded residents who were ambulatory, adult males ranging in age from 30 to 60. Residential Counsellors are the employees who have direct contact with and responsibility for residents. They work rotating eight hour shifts, 7 a.m. to 3 p.m., 3 p.m. to 11 p.m. and 11 p.m. to 7 a.m. The events with which we are concerned took place, with minor exceptions, on the third floor of the main building, known as B cottage, which was occupied by 30 to 35 residents including the following three. C ls in hi mid-fifties and is about five feet six inches in height. While he can walk with assistance, he ls normally confined to a wheelchair. He is virtually blind, is deaf in one ear, and has little speech. Y is in his mid-thirties and is under five feet in height.’ He has Down’s syndrome and has little or no speech. R is in his early fifties, is less than five feet $all and weighs under 100 pounds. He has Down’s syndrome and is severely retarded. He has heart and lung abnormalities. He has hearing and sight disabilities and communication with him ls difficult. He walks normally but needs assistance to shower. As shown on the plan and in the photographs of 0 cottage filed in evidence, the floor is long and narrow, runs north and south, and is bisected by a -5- corridor eight to ten feet wide. There is a central stairwell and stairwells to the west side of the corridor at each end. Access to the washroom which serves the floor is through the south stairwell. The washroom has shower stalls along the north wall, toilet bowls and urinals along the south wall, and, wash-b&m along one side of a dividing wall in the centre of the room. There are no taps in the shower stalls and the soap receptable is flush with the wall. There is one central control of the water supply to all the showers. There is a non-skid surface on the floor and mats for use in front of and inside the shower stalls. Residents use the basins in the morning and the showers in the evening. In the corridor to the south side of the stairwell entry is an area with electrical outlets and a mirror where residents are shaved and to the north side is a waterfountain. A kitchen adjourns the stairwell, next to it is a TV room and next to that is R’s room. The distance from the stairwell to the water fountain is about six feet, to the kitchen door is about 10 feet and to the door of R’s room is about 39 feet. The Employer called as witnesses three employees who worked the night shift on B cottage on the night of October 21/22, Karen Watson, Susan Melagos and Kim Morgan, all R.C.Z?s, and the night supervisor for the main building on duty that night, Donald Cireenslade, ,an R.C.4. Melagos became ill during the night and was relieved by Morgan, who had been working on A cottage, between 4:30 a.m. and 5:00 a.m. They testified to the effect that R was checked half- hourly; that he had three or four attacks of diarrhoea during the night after each of which he had to be medicated and given a shower, and his room cleaned, because he had smeared himself and the room with faeces; that he was accompanied during the showers; that he would have had a total of perhaps three hours of sleep; and that i -6- when he was checked between 6:30 a.m. and 7:00 a.m. there was no sign of injuries. Melagos testified that during the night she saw R jumping from bed to bed. His room-mate had been moved out earlier because of the condition of the room. Greenslade, whose shift overlaps the day shift by one hour, testified that when the day shift came on duty he went to B cottage and saw R standing naked in his room. There were no marks of injury on him. About 8 a.m. he was called to the Health Services Unit where he found R with “lacerations and gashes on his forehead and face.” They were the worst injuries he has seen in hi 30 years at Pine Ridge. He checked and found no bruises on R’s lower body-and arranged for him to be taken to the York County Hospital. He spoke about R’s injuries to Christine Craig, supervisor on B cottage, who had come on duty at 8 a.m., and she said she “would look into it.” Joyce Belcourt, a Registered Nurse who was employed in the Health Services Unit at Pine Ridge, testified to the following effect. At about 7:58 a.m. on October 22, the Crievor brought R to the unit. R had one laceration on his 1 head, two on his forehead and one on his nose as well as bruises on his forehead and one cheek. There was no bleeding except from the nose laceration. The bruises were slight but became more noticeable as she saw him daily for the next four or five days. There were no injuries on his chin, elbows, knees or shins. She cleansed and covered the injuries and asked that arrangements be made to take R to the hospital. When she asked the Grievor what had happened to R, he said he “had found him in the shower like that.” There was always an obvious explanation for accidents to residents at Pine Ridge and, because the injuries were so extensive and the reason for them was not apparent;she told supervisor Craig that she -7- “wanted something done,” to which Craig agreed. When R returned from the hospital about 11 a.m., she noted that about 30 ,sutures had been used to close the lacerations. ‘Judith Kalyniuk, a Medical Practitioner who was on duty in the emergency department of the hospital on October 22, 1983, when R was brought in, testified to the following effect. She got only “nonsense” from him when she spoke to him. She found four lacerations, a 6 cm. one on his head, a 5 cm. one and a second irregular one on his forehead and a 2 cm. one on his nose, all of which she sutured. The lacerations had clotted and did not look old. The bruises and swelling on his face were just turning blue, which indicated more recent bruising than yellow would have. She was told that R had fallen in the shower, but while they : were consistent with a recent fail, she thought that “four cuts were a lot from one ,faU.” The injuries were also “consistent with striking or being struck.” They could possibly have been due to striking a sharp object. In her genera1 examination of R she found no other injuries and X-rays revealed no neck or skull injuries. William Fetherston, a Medical Practitioner’ who provided medical services to Pine Ridge under contract from 1981 to its closure, testified to the _s following effect. He conducted clinics at Pine Ridge three times a week and did a medical check-up of residents once a year. In July, 1983, R had surgery to correct a prolapsing rectum. As a pat-operative procedure he was being treated to prevent constipation. As a result, he suffered from diarrhoea which, in turn, had to be treated. He examined R on October 24, ~1983, and found “extensive contusions to face and neck and lacerations to scalp,” ail of which were healing. There was no sign of concussion or internal injuries. There were no injuries to trunk, arms or legs. He saw R again on October 26 and 28 and removed the sutures on the latter date. The extent and location of R’s injuries were not compatible with a single fall. It would have taken more than two falls to have caused them, in which case there would have been other injuries. The loss of fluids from R’s diarrhoea and a lack of sleep on the night of October 21/22 would have had a weakening effect. The scalp lacerations could only have been caused by “forceful contact?’ Objects such as a pipe-end that protrudes from a wall of the washroom or the metal edges of the furnishings of R’s room could possibly have caused them, but not the hand dryer in the washroom. In his three years of medical service to Pine Ridge he has never seen evidence of self-inflicted injuries. Christine Craig, an R.C.4 who was supervisor of 0 cottage, testified to the following effect. She works an 8 a.m. to 4~15 p.m. shift. On October 22, 1983, as she entered the, main building at about 7:55 a.m., she saw R with bandages on his head being escorted by two staff members, one of whom’was Craig Summers, who were to take him to the hospital. She spoke with John Beard, Caye Dargavel and the Crievor who, along with Summers, were working the day shift on B cottage that day. When’she asked the Grievor what had happened to R he replied that “he must have fallen in the shower.” She checked the washroom between &I5 a.m. and 8:30 a.m. for anything that might have caused R’s injuries. She saw nothing that concerned her except pipes in a corner of the washroom where she thought R would have had no reason to be. She also checked R’s room, which Beard was cleaning. She saw IK) blood but there were faeces smeared around the room. On his return from the hospital she asked R what had happened. He gestured towards Joseph -9- Richards, a cleaner assigned to B cottage. She found Summers upset when she spoke to him, on his return from the hospital with R. Later, about 11:30 a.m., he came to her office and said he thought the Grievor had been harsh with R in taking him to be showered and they discussed harshness, abuse and what might be necessary to move R forward. A short time later she met with Summers again and he said he .thought the Grievor had abused R by pushing, shoving and slapping him. She said she would need a written report from him if abuse was alleged and mentioned the possible reaction of other staff members towards him if he reported it. He prepared a report with her help. She also asked the Grievor for a written report. She spoke to Beard and DargaveI but did not ask them for written reports because they had not been in the vicinity of the washroom at the critical time. The Ministry’s Disciplinary Guidelines and Standards probibit verbal, physical or, psychological abuse of residents. The standards are reviewed periodically with staff members and a copy of the standards pamphlet is posted on B cottage. She has discussed the standards with the Griever and is certain that he is aware of them. In 1981 and 1982 she counselled the Crievor about his handling of residents and told him “he had to give gentle care.” The subject has been mentioned in her regular written appraisals of the Crievor. in July, 1982, he was suspended for one 2 month without pay for kicking a resident. The Grievor “has a short frustration ,.. tolerance” and does not realize his own strength. She cannot say he would not ,intentionaliy harm a resident but does not believe “he would stand someone up against the waU and beat heck out of him.” Joseph Richards, a Cleaner 2 who was working the day shift in 0 cottage in Ocrober 22, 1983, testified to rhe foUowjng effect. At about 7:15 a.m. -lO- he was taking garbage from a container at the south end of the corridor opposite ,the water fountain. He was looking across the corridor towards the kitchen where he would go next. He saw the Grievor escorting R towards the washroom with one hand on R’s upper back and the other holding his left arm. He recalls seeing faeces on R from the waist down “and there could have been more.” R did not appear to be hurt and he did not see the Grievor strike him. He heard no noise or yelling. Summers was in the shaving area. He cleaned the floor of R’s room on Beard’s iratructions and saw no blood there. He continued picking up garbage, working towards the north end of the corridor and then taking it outside, which took 10 to 15 minutes. When he returned he went to his storage cupboards in the south stairwell and then into the washroom which his brother, also a cleaner, was cleaning on Beard’5 instructions. He is about five feet tall and weighs 140 pounds.. He was not in the washroom while R was there. Craig Summers was employed at Pine Ridge on contract as a Residential Counselfor Assistant on B cottage from May, 1983 to February, 1984. He holds a Bachelor’s degree in psychology and is studying for a Master’s at Queen’s University. He testified to the following effect. Several days before October 22, 1983, he was present, as were some residents, when the Griever, who was _s dispensing medication, handed a cup of Cravol to C, who wassitting down. When C held it and did not drink it at once the Grievor slapped him hard on the head two or three times and shouted “Hurry up and drink it you old bugger.” C protested and drank the Gravel. He did not report the incident until after the incident involving R had occurred. - I1 - A few days later he was with some residents in the shaving area at the south end of the corridor. One of them, Y, was holding an electric razor but was not using it. The Grievor came out of the stairwell behind Y and kicked him on the buttocks “with a lot of force” causing him to stumble forward~against the wall. He did not report the incident at the time. On the morning of October 22, 1983, he was in charge of the shaving area. He had started up the corridor to fetcfr more residents to shave and had reached the kitchen door when he passed the Grievor and R. The Grievor was giving R a series of pushes on the shoulder blades and slapping him on the back of the head. R smelled and had faeces on him. The Grievor was shouting, and R was protesting and waving his arms. He did not intervene. He does not believe that C was brought to the shaving area at that time. When he returned to the shaving area in about five minutes the Grievor came out of the washroom and asked him to come and see R who “had injured himself.” R was standing in the first shower stall and the water was running. He told the Grievor that the injuries did not look bad to ,him and could be looked after when R had been dressed. Shortly after, when R was in the stairwell, the injuries looked more serious to him. He did not see anyone else enter or leave the washroom but is not sure that no one else was in the washroom at the critical time. The Grievor asked Dargavel to come and look at R and she said that stitches might be needed and thought Beard should be called. He and another staff member took R to the hospital. He told the doctor that R had fallen in the shower. He had to hold R down while stitches were being inserted, which he found unpleasant. On returning from the hospital he asked the Crievor what had happened. The Griever was vague and seemed jittery. He formed the - 12- opinion that the Grievor had caused R’s injuries. He told supervisor Craig what he thought had happened. She seemed to discourage him at first and peer pressure was mentioned but later she asked him for a written report. His work at Pine Ridge was his first in a facility for retarded adults and he was appalled by the $ treatment residents generally received there. He knows that pushing is not always an assault because it may be necessary.to get residents to do what is required. R knows who are members of the staff but cannot distinguish between them. lames McCaig is 56 years old, is married and has five children, three of whom are at home. He is six feet talI and weighs approximately 300 pounds. At the time of his dismissal he had approximately ten years of service with the Ministry and was an R.C.2 on B cottage at Pine Ridge. He testified to the folIowing effect. In the week ending October 22, 1983, he was on the day shift and \, had “corridor duty” with responsibility for residents ln the south end of the corridor, including R. He may have lifted or pushed him on occasion but never slapped him. He did not hit or push R on October 22, did not cause his injuries and has no idea how they occurred. On the morning of that date he heard Karen Watson, who was going off duty, say that R needed a shower. When he opened R’s door there was a strong cdour and he saw that R hai smeared faeces around the room and on himself. He called to R to come for a shower and went ahead to turn the water on. He does not know if anyone was in the washroom at that time. He did not see or hear anyone in the washroom at any time. He went back for R who by then was standing beside the water fountain, told him to keep going and followed him into the washroom. R had only slippers on and he did not notice any injuries. He did not touch R’because of the faeces on him and because of a rumour - 13.. that he had sonic disease. Summers and some residents were in the shaving area and Richards was emptying a garbage container a-cross the corridor, from the stairwell. He left R in the shower stall and went to fetch clothes for him. He also dressed and wheeled C to the shaving area. He had never showered R before but did not think he needed to stay with him. As far as he knows, R had never fallen down iti the showei. He was away from the washroom for 10 to I5 minutes. When he returned R was standing in the shower stall with blood running down his face. He called Summers into the washroom. Summers asked what had happened and he replied that he did not know. They discussed the possibility of stitches being needed. He did not apply first aid to R. He does not recall asking Dargavel to look at R. He did not report ~R’s injuries to Beard, the, shift supervisor, until breakfast time, about 7:45 a.m. He dressed R and took him to the Health Services Unit. Later in the morning he spoke with sipervisor Craig and the Pine Ridge administrator. Craig asked him for a written report of the incident which he prepared. C was one of three residents for whom he had special responsibility. He kept his file and took part in the annual review of his condition. He has patted him on the face or shoulder to get his attention but has never slapped him. He has -. given Gravel to C in a cup and he may have said “Hurry up and drink it you old bugger ” but not in a serious way. He does not recall the incident described by Summers. Y was another resident for whom he had special responsibility. He cannot recall the incident described by Summers and denies having kicked Y or any - I4 - other resident except for the incident for which he was disciplined in 1982. On that occasion his arms were full of clothes and when he attempted to dose a door with his foot it glanced off the door and struck the resident in the groin. He believes he has read the Ministry’s Disciplinary Guidelines and Standards. He had attended a number of training courses .while employed at Pine Ridge .from which he learned how patients are to be dealt with, but he does not recall the contents of some of them and as to other courses can only say that he probably took them. Counsel to the Crievor advanced the argument that the Employer had, in reality, dismissed the Crievor solely because of the incident involving R and was attempting to expand the reasons for the dismissal by adding other allegations to the letter of dismissal. We see no reason to conclude that the letter did not set out the basis upon which the Employer was acting. It appears from the letter that the allegations were communicated to the Crievor at the meeting of December 14, 1983. It is not unusual that the writer of a letter imposing discipline is not called to testify. The letter preceded and constituted notice of the Grievor’s dismissal. i It was filed in evidence without objection. Counsel also argued that the Employer did not call as witnesses _. employees who ~might have had knowledge of the facts in issue, specifically R. C.s Beard and Dargavel and R. P. MacKenzie, the administrator of Pine Ridge. In hearings held over four days, the Board heard 17 witnesses called by the Employer to give evidence in relation to .the facts surrounding the Griever’s dismissal. Beard and Dargavel were only incidentally involved in the R incident. MacKenzie was a - 15- member of the task force, another member of which, Ruth Franks, and its recorder, Philip Morgan, were called as witnesses. In the circumstances, we are not persuaded that the three employees in question are persons who might reasonably be expected to testify. In the course of the hearing counsel to the employer withdrew the allegation contained in paragraph (d) of the letter of dismissal; As to the allegation of “apparently sleeping” contained in paragraph (e) of the letter of dismissal, the evidence discloses that the incidents took place over a period of four or five years; they were not reported and consequently there is no record of the Griever having been counselled or disciplined with respect to them; there may only have been the appearance of sleep; and supervisor Craig had never seen the Grievor asleep on duty. We have concluded that the allegation is not. proven on the balance of probabilities. As to the allegations contained in paragraphs (a), (b) and (c) of the letter of dismissal, the onus borne by the Employer is again the civil standard of proof. In that regard, we see no essential difference between the terms “balance -. of probabilities” and.“reasonable probability:’ LogicaIly, what is to tip the balance if not a belief in the reasonable probablity that the fact in issue exists? A reasonable probability is that which is most consistent with the circumstances present in the particular case. It must enable the conclusion, as a - i- - 16- .- reasonable deduction from the circumstances, that the fact in issue exists, and it must be the most probable of the probabilities present. Further, we have some difficulty with the notion of a standard of proof somewhere between the civil and the criminal where employee conduct of a criminal nature is present; unless by that is meant that the degree of probability required to be shown must reflect the gravity of the misconduct alleged. That proposition, which is not a departure from the civil standard, is to the point in the matter of the allegations referred to above. At the same time, to assume, in a non-criminal proceeding, the inherent improbability of criminal conduct so as to depreciate the circumstances surrounding a particular incident, such as the nature of the act or the relationship of the principals, does not seem to us to be warranted. In Douglas, 108/80, cited by counsel to the Griever, there is a discussion of the standard of proof applicable where there is an allegation of theft, in which a distinction is made between “a balance of probabilities” and “a clear and convincing standard”. We take this to refer to degrees of probability within the civil standard rather than to different standards. _, As to the allegations against the Grievor regarding the use of excessive force on C and Y, the only direct evidence in support of them is that of Summers. C, Y and the other residents who were present on those occasions are not competent witnesses. We are fully aware that acts that would otherwise legally constitute assaults are permissible in a facility such as Pine Ridge so that residents ;r - 17- can be induced, for example, to take medication or to move from one place to another. But we are also aware that the purpose of such Yassauits” must be protection of or assistance to residents. Aggressive or punitive treatment of residents such as slaps or kicks is clearly prohibited by the Ministry’s published Disciplinary Guidelines and Standards. Summen, in our opinion, is a disinterested witness who was motivated by solicitude for the residents of Pine Ridge to report his observations of the Grievor4 conduct towards certain of those residents. He was not discredited during his testimony. ‘We find his evidence in respect of both incidents more compelling than that of the Grievor. We are satisfied, on the balance of probabilities and taking into account the gravity of the acts in question, that they were in fact committed by the Grieyor and that the allegations are therefore proven. As to the R incident, the Grievor had R in hi charge from the time he caged him from his room until he handed him over to nurse Belcourt. His treatment of R js in sharp contrast to that of the R.C.s who attended to R’s needs I during the night and had the same unpleasant task to perform as the Grievor did. The Grievor left R to make his own way for almost the whole distance from his room to the washroom and went ahead to turn the water on. _. He placed R in a shower stall and left him there to clean himself without soap or wash-cloth for up to 15 minutes while he went for clothes and turned his attention to another resident. The Griever’s statement that he did not touch R while they were in the corridor is contradicted by both Summers and Richards. The Griever denies having slapped R. Summers saw what he took to be excessive force in the form of pushes - 18- .- and slaps. Richards saw neither. On the balance of probabilities and taking into account the gravity of the acts in question, we find that the Grievor did not use excessive force in escorting R to the washroom. What we do see in the Crievor’s conduct on October 22, 1983, is a clear sign of hi “‘short frustration tolerance” which, for the reasons which follow, we are convinced led to an assault on R in the washroom. .There is no direct evidence in support of the allegation that the Grievor caused the injuries sustained by R. R, who would otherwise be the primary source- of evidence, is not competent to give it. In such a case, the probability that the fact in issue exists - that the act alleged against the Griever wa5 committed by him - may be inferred from the proof of other facts, that is, by circumstantial ’ evidence. The cogency of such evidence depends upon itr source and on its relationship to the fact in issue.’ Re Air Canada, 17 L.A.C. (2d) 337 (Christie, 1978) was a case of discharge for theft in which the evidence was entirely circumstantial. The arbitrator upheld the discharge, being satisfied “not only that / the c.ircumstances proved by the employer are consistent with the Grievor having stolen the liquor, also that the facts proven make it very probable, having due regard to the gravity of the matter, that the Crievor in fact stole the liquor.” We believe we would be in error if we were to hold that the burden of proof borne by an employer in a dismissal case cannot be met on circumstantial evidence alone. We think there can be no doubt but that R’s injuries were smtained in the washroom. On the evidence of Greenslade, Morgan and Watson, R was not -IV- Injured when the day shift came on duty. No one, the Grievor included, saw any - injuries while R was on his way to the washroom. It is highly unlikely that injuries as extensive and severe as he was later found to have would have been hidden by any faeces that may have been on his head, given the number of bowel evacuations he had suffered. The Grievor told Summers that R “had injured himself;” told nurse Belcourt that he “had found him in the shower like that;” told supervisor Craig that R “must have fallen in the shower?’ As to how R’s injuries could have been caused, let us consider the following possibilities: 1. R deliberately inflicted the injuries on himself. Dr. Fetherston had seen no instance of self-inflicted injury of residents in the three years he had acted for Pine Ridge. 2. R fell and injured himself in the shower stall. The evidence is that R had never fallen in the shower. There is no object in the shower stall with which he could have come in such forceful contact as to cause the injuries. On the evidence of Dr. Fetherston and Dr. Kalyniuk, it would have taken more than two falls to cause the injuries. In that case there would have been injuries to other parts of R’s body and given his weakened conditipn he would likely not have been able to regain his feet. - 20 - 3. R left the shower stall, fell against some object with sufficient force to cause the injuries and returned to the shower stall to finish his shower. The odds against all of, those things happening seem to us substantial. The only objects in the washroom which supervisor Craig could visualize as dangerous were pipes, one of which was a pipe-end which protrudes from the wall at a height of about four feet. If there have been earlier imtances of serious injury to residents in the washroom from that or any other object, we have no evidence of them. 4. The injuries were caused by someone who was already in the washroom when the Griever left R there, or someone who entered and left the washroom while the Grievor was away. The Grievor neither saw nor heard anyone in the washroom. Residents have been known to strike one another, but no instance of a severe beating administered by one resident to another has been brought to our attention. Amongst ‘the employees, the only possible candidates are Summers and Richards. The time spent by both of them in the south end of the corridor is satisfactorily accounted for. Given Summer’s genuine concern for the well-being of residents, an assault on R would be completely out of character. Richards has no direct interest in, relationship with, or responsibility for residents. What motive he could have for assaulting R we cannot conceive. -. In our opinion, none of the above is a tenable hypothesis. The evidence supports the view that R’s injuries were caused by some human agency. They are consistent with being struck or being thrown against - 21 - something. The Grievor is the only person who is definitely placed in the washroom while R was there. He had a clear opportunity to cause the injuries. The chain of circumstantial evidence present here convinces us of the Griever’s culpability. We find that the circumstances in which R’s injuries were sustained are consistent with the Grievor having caused them and we are satisfied, oti the balance of probabilities and taking into account the gravity of the act in question, that he did, in fact, cause the injuries by assulting R. The’ Griever’s history of counselling for harsh treatment of residents and the instance of abuse of a resident resulting in disciplinary action militate against a reduction of the penalty of dismissal In the result, we find that the Grievor was dismissed for just cause. The grievance is dismissed. - 22 - DATED at Consecon, Ontario, this 13th day of June, 1985. (&h-d w P. M. Draper, Vice-Chai ‘11 dissent” (see attached) K. O’Neil, Member m 23b2cdd& D. ,M. Middleton, Member DISSENT OF THE UNION NOMINEE I have read the award of the majority and find that I must dissent. In my opinion, the employer failed to prove the case against Mr. McCaiy. I am in agreement with the majority about its conclusions in regards to the "apparently sleeping" incident allegation contained in paragraph (e) of the letter of dismissal, but after this we part company in a most substantive way. In particular, and most importantly, I strenuously disagree with the conclusion that the evidence establishes on the balance of probability that the allegations against the grievor in regards to C, Y, and R were in fact established. The law on the standard of proof in cases such as this are best set out in two Ontario cases, R- of Physicians and Surgeons of Ontario (19771, 15 O.R. (2nd) 447, 76 D.L.R. (3rd) 38, and Re Canadian Union of Public Employees, Local 1 and Toronto Hydro Electric System et al., 19 O.R. (2nd) 245. _* The Divisional Courtin ReBernsteiB Phvsicians and Surgeons of Ontario (19771, 15 O.R. (2nd) 447 reviewed the standard of proof to be used in a discipline hearing where a doctor had been charged with having sexual relations with a patient. The doctor had taken the stand in his own defence and had categorically denied the allegation. I) . The Court considered that the proceedings were penal in nature and that there would be grave consequences for the doctor if the allegations were substantiated. The Court reviewed the decision of the Court of Appeal in Re Glassman and Council of the College of Physicians & Surgeons, (1968) 2 O.R. 81 at page 105-106 where Laskin, J.A. held: "A man's professional reputation, threatened by allegations of misconduct against which he pledges his credit as a witness, should be upheld unless. there is very strong evidence shattering his defence of that reputation." Barrett, J.A. held at p.485: "The degree of proof required in disciplinary matters of this kind is that the proof must be clear and convincing and based upon cogent evidence which is accepted by the tribunal." The Supreme Court of Canada has reviewed the standard t of proof required in a civil case where allegations of fraud and dishonesty were ma'de in The Continental Insurance Company v. Dalton Cartage Company Limited and MacPherson Warehousing Company Limited, (1982) 1 S.C.R. 164 %here at p. 170, Laskin, C.J. held: "A trial judge in dealing with the burden of proof could properly consider the coyency of the evidence offered to support proof on balance of probabilities, and this is what he did when he referred to proof commensurate with the gravity of the allegations or of the accusation of theft by the temporary driver. There' is necessarily a matter of judgment involved in weighing evidence that goes to the burden of proof and the trial judge is justified in scrutinizing evidence with greater care if there are serious alleg- .- -L_^I__1 11 The late Chief Justice quotes with approval Lord Denning in Bater v Bater, (1950) 2 A.E.R. 458 at p. 459: "It is true that by our law, there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt, but there may be degrees of proof w\thin that standard. Many great judges have said that, in proportion as crime is enormous, so ought the proof to be clear. so also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees cf probability within that standard. The degree depends on the subject matter. A civil court, a charge of' fraud, when considering, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court,, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion." In the CUPE case supra,OJLeary, J. writing for the court specifically approves Bernstein and the College of Physicians and Surqeons in labour arbitration matters. In particular, the court finds that the arbitrator did not make a findiny as to what the misconduct of the yrievor in that case .s was. The finding amounted to one that the grievor had done something that had upset the complainant in that particular case. The court there found that evidence so insufficient as to require quashing of the award. At page 246, the court says: "It would be highly improper that a man be discharged from his employment and have his discharge confirmed by an arbitrator without the arbitrator stating exactly what it is the man, in fact, did." The majority in this case, has fail~ed to do precisely the same thing in regard' to the main and culminating incident, that with R. It is for good reason that they are unable to state what the man did, in that there is no evidence whatsoever that Mr. McCaig did anything to X. I will deal first with this incident and then the others found in the letter of dismissal. Although not binding on the board, it is certainly indicative of the nature of the.evidence about R. that even the employer found that there was not enough evidence in its private enquiry, to hold Mr. McCaig responsible for R.'s injuries. The letter of dismissal does not in the end mention the injuries to R. as a cause for dismissal. This would be consistent with the employer's conclusion that there was not enough evidence on that point and was apparently based on Summer's evidence of the "disturbance" in the hall. The majority comes to the conclusion that the grievor did not use excessive force in escorting R. to the washroom, an incident about which there was direct evid- ence, albeit conflicting, from Richards and Summers. It is true, as the majority says, that there is no direct evidence in support of the allegation that the grievor caused the injuries sustained by R. The majority purports to establish the culpability of the grievor based on circumstantial evidence. What is this circumstantial evidence against the grievor? 1. A finding of fact by the majority that R.'s injuries were sustained in the washroom. This is based on the evidence of several people that no-one had noticed injuries prior to the grievor's reporting them when he found R. in the shower. 2. That the grievor had opportunity to cause the injuries. 3. That the other hypotheses offerred are less likely than that the grievor caused R.'s injuries. In coming to the first conclusion, the majority ignores the evidence that shows that R. had in fact been jumping up and down on his bed, prior to the morning shower incident, in a weakened state, in such a manner that he could have fallen or caused some of the injuries at that time. The evidence does not support the conclusion that all the ,injuries were h,ad at one time. The conclusion also ignores the fact that none of the witnesses examined R. for injury. In fact, he was in such a distasteful state, from having smeargd himself, his bedclothes and his room with faeces, that it is clear that all of the staff, were keeping their distance from R. to a certain extent. That the staff did not notice any injuries is not "clear and convincing evidence" that there were no injuries at that time. The medical evidence indicated that it is impossible to set a time of injury from the state of the bruises when they were seen either by the emergency room physician or later on by the house physician. . It was clear from the medical evidence, that the physicians involved simply concluded that they did not know how the injuries had occurred. This same conclusion was reached by management , and I would submit was the only legally tenable conclusion that the Board of Arbitration could have come to. Additionally, the medical evidence established that the effect of the water in the shower could easily have loosened 'wounds that had been caused earlier and that the bleeding could have been from older wounds. The basis on which the majority dismisses the other hypotheses for what happened is of great concern. The first hypothesis is disposed of on the basis that the attending physician had seen no instance of self-inflicted injury in three years. At best, this would be similar fact evidence from other people. It is really not probative of anything and is therefore not a useful basis on which to reject that -s hypothesis. The second hypothesis that R. fell and injured himself in the shower stall is dismissed on the basis that, firstly, the evidence is that R. had never fallen in the shower. The evidence, is rather that none of the staff had known R. to fall in the shower. Surely this is not probative of any facts on the day in question, nor of the fact that he had never fallen in the shower, unless any of them had personally attended him through every shower the man had ever taken, which was not the case. The evidence of Dr. Fetherston was that it would likely have taken more than two falls to cause the injuries. It was also Dr. Fetherston's evidence that having fallen once, it would have been much more likely for him to have fallen again, or to have.tried to get up and fallen again. Dr. Kalyniuk, the emergency room Ijhysician, testified that she did not .know how the injury had been caused, that it could have been caused by a fall. The third possibility is dismissed partly because there had been no evidence of earlier instances of serious injury to residents in the washroom. It is simply not probative of anything to have absence of evidence in this matter. It is certainly not grounds to dismiss an otherwise tenable hypothesis. The fourth hypothesis is dismissed partly on the basis that there had been no instance of a severe beating administered by one resident to another before. Again this is probative of nothing. First of all, it is not established that the injuries were likely caused by a beating. In fact, Dr. Fetherston specifically testified they were not likely caused by a fist and Dr. Kalyniuk's evidence concurred. As to the _. whereabouts of the employees, the majority says that the only possible candidates are Summers and Richards. It is true that those are the only candidates about which we have evidence, but it is entirely possible that other people were either in the washroom or otherwise in and-out during the period in question. The majority finds thatthe time spent by both of them in the -7- / . south end of the corridor is satisfactorily accounted for. The evidence satisfactorily accounts for the grievor's activ-. ities during this time as well, but the majority ignores this. In fact, the person with the most opportunity to have * performed any assault on R. was Summers. The majority decides that that would have been completely out of character and is therefore not the case. We have no evidence of Summers' char- acter, other than his allegations against the grievor. As to Richards, the majority, despite the fact that R. pointed to him when asked what had happened, dismisses him as a possibility, because they cannot concieve what motive he would have had, even though we have no evidence about his motive or lack thereof. All of the evidence, in summation, amounts to opportunity by the grievor to have assaulted R. If opportunity were enough to find culpability in law, the law would be in a very sorry state. The cases cited at the outset make it clear that the courts will not uphold decisions based on opportunity alone. As to the instances with Y. and C., I do not agree with .e the majority that Summers' evidence is to be preferred to that of the grievor. None of~the incidents were sufficiently serious even in Summers' mind to report them at the time. It is very much more likely that the incidents occurred as the grievor relates them, in the context of life at Pine Ridge. It is clear that Summers ~did not like what he saw at Pine Ridge, and it may - 8- be that there was great room for improvement. However, it is quite clear that his standards of conduct were quite a bit more strenuous than that applied by any of the super- visory personnel at the facility. It would have been more in line.with the majority's decision not to accept Summers' evidence on the "escorting incident" to have decided that Summers was likely exaggerating in this instance. I would have found that there was no evidence of what caused R. 's injuries and therefore no evidence on which that incident could be established. Without this incident' the discharge could not be upheld. On the other incidents I r would have found an absence of clear and convincing evidence of the nature required in law. I would accordingly have upheld the grievance. Kathleen G. O'Neil -s KGO/ak