HomeMy WebLinkAbout1985-1048.Montgomery.87-12-14File # 1048185
Between: OPSEU (James Montgomery).
Befort?:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT.
Before I
T&GRIEVANCE SETTLEYENT BOARD
and
The Crown in Right of Ontario :
.(Ministry of Community a&Social Services)
J. W. Samuels Vice Chairman
L. Robbins Member
G. Milley Member
For the Griever: R. Wells
Counsel
Gowling and Henderson
Barristers and Solicitors
For the Employer: R. J. Anderson
Senior Solicitor
Legal Services Branch
Ministry of Community and Social Services
Griever ~
Employer I
Hearings: June. 22, June 30, July 16, JUlY 27,
July 28, September 2, November 30, 1987.
DECISION 2
James Montgomery was a Residential Counsellor at the Adult
Occupational Centm in Edgar, near Barrie. He commenced his employment
at the Centre in 1979, and until the alleged incidents which are our concern,
he had never been disciplined by the Ministry. He is 56 years old, married,
and lives with his wife. He is mild-mannered.
Established on some 200 acres in an old armed forces base, the Centre
offers rehabilitative service to roughly 200 developmentally handicapped
adults. There are three areas at the Centre; one of which is Sherwood, which
houses some 57 “middle&nctioning” men and women. Sherwood consists of
eleven houses, five female and six male. Mr. Montgomery was a counsellor
in Sherwood in house 41, one. of the male ‘houses.
On September 151985, Mr. Montgomery was discharged, because it
is alleged that he sexually abused two female residents (who will be identified
only as CL and CC) at around 2 AM that morning in house 63.
This is a very difficult case. The alleged. victims ‘were competent
witnesses and they were adam&nt that the assaults occurred and mat Mr.
Momgomery, whom they knew well, was the man involved. On the. other
hand, I&. Montgomery was not on duty that night. He attended a stag party.
for a fellow ~sriff member and then drove home. He says that he did not go to
the C&me on his way home. His defense is that he simply wasn’t there.
Mr. Montgomery was charged under the Criminal Code with sexual
assault as a result of the allegations, and was found not guilty. It was agreed
at our hearing that this finding was not binding on us. We would hear
evidence afresh and would have to determine ourselves whether there was
just canse for dismissal.
We heard considerable evidence concerning the stag party, the time
about which Mr. Montgomery left the affair, the length of time it would take .
him to drive home (34 kilometers), the length of time it would have taken for
a side-trip to the Centre (an extra 6 kilometers), and the time he arrived
home. The difficulty with all of this is that no one at the party was keeping
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time for any particular reason, so that the testimony of participants is an
attempt to recall times at a convivial event where precision was not
uppermost in one’s mind. Furthermore, much would depend on the speed at
which the grievor drove---over a trip of 34 to 40 kilometers, the time for the
whole trip would differ quite significantly depending on the speed driven.
We are satisfied from the testimony of Mrs. Montgomery that the grievor
arrived home before 2 AM, because she woke up to fmd him home just
before their clock chimed. In our view, all of the evidence about time that we
heard’leads to no conclusion. It is possible that Mr. Montgomery had time to
go to the Centre on his way home and commit the alleged assaults. On the
other hand, it is possible that he left the party and went straight home as he
says.
So let us consider the allegations.
CL is 21 years old. She hasbeenat tl%Centre for 3 to 4 years. She is
described by Dr. L., Arnold, the consulting psychologist at the Centre, as
quite immature, having borderline IQ, an attention-seeker; and by Dr. P. G.
Lynes, the psychiatric consultant at the Centre, as competent to -give sworn
testimony. She had’s history of making frequent and often unwarranted calls
to the health services at the Centre., but she had never before complained of
sexual assault. She says that early in the morning on September 15, she woke
up in her darkened room on the second floor of house ,63 to find Mr.
Montgomery there and he was sexually assaulting her. She: could smell
aftershave on him (the grievor and his wife testified that he is allergic to
aftershave and never wears it). They spoke to one another. He asked “Do
you know +ho I am?“, and she replied “JM” (she actually used these initials),
to which he responded “Oh, I’ll never tell”. She says that he continued his
assault for about 5 minutes, and then asked where CC was. She told him that . CC was downstairs and he left. She followed downstairs, turned on lights in
the hall, living room and kitchen, but didn’t see him (she knew he was headed
for CC’s room, but she didn’t look’there). She phoned the nurse at the
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Centre’s health services to complain of a stomach ache, and as she.got off the
phone, the grievor ran out the back door. CL says that she was then called by
CC into the latter’s room, and CC asked if the grievor had been in CL’s room
too. CL said yes. CL then called CC’s boyfriend, but got no answer. She
called the Sherwood Offrce and told the lady who answered that she was not
feeling well and had a sore stomach (Ms. L. Partington, the Residential
Counsellor who took~ this call, confirms it). Then she called “the, CRC
Offke” at the Centre and reported that the grievor had been in their rooms.
She was told to call the Sherwood Office to report the incident, and she called
back to Ms. Partington at Sherwood and did so. This was roughly five
minutes after CL’s first call to Ms. Partington. CL and CC were asked to ’
come to the Sherwood Office. There, CL told Ms. Partington and her
colleague, Ms. E. Murray, that the griever had assaulted both CL and CC.
CC~ said httle, in fact Ms. Partington says that CC said nothing happened to
her. CL and CC were sent back to house 63, where they had some tea and .
‘.wenttobed. . . . . At the end of CL’s testimony, there was ‘some rather ‘strange
behaviour. On September 14,. the day before the alleged sexual assault, CL
had given her camera to Mr. Montgomery and he was going to repair it.
They &exe friends. Mr. Montgomery was discharged before he had a chance
to return the camera, and he says that he left it with a fellow employee to be
returned to CL. Apparently, CL never got the camera back. Thus; at the end
of her testimony, she erupted against the grievor, berating him for not
returning the camera. By the time she had left the hearing room, one had the
~impression that she was perhaps angrier with the aevor for failing to return
the camera, than she was about the sexual assault that she says took place in
the early morning of September 15.
CC is 26 years.oId. She has been at the Centre for 8 years. She is
described by Dr. Arnold as having borderline mental retardation, using
defensive denial (denying that something occurred to protect herself
psychologically), suggestible, and dependent; and by Dr. Lynes as competent
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to give sworn testimony. She says that she was awakened that morning by the
grievor, who was beside her bed touching her in the~darkened room. And
she too describes a sexual assault which went on for about four minutes. She
says that he hid behind her door when CL turned on the lights, and then he
ran out the back door. She says that, when CL came into her room, CL was
the first to mention that she had been assaulted by the grievor. They decided
to phone in to report the incidents. CC admits that, when they first met with ._
Ms. Partington, CC denied that the grievor had been in her room. When
asked on cross-examination why she did this, CC had no answer.. It was only
later that day, in discussions with management and the police, that CC said
that she too had been assaulted. When CC met with Dr. Lynes on September
24, she told him that nothing had occurred.
Dr. Arnold said that it would be hard for CL and CC to -agree on a
story like &one. we heard, because of their personality make-up, social
beliaviour, and intellect. Furthe~ore, he was of the opinion that, if it was
just a “story”, CCwould try to change it or give it up;
. .
The Ministry sought to introduce certain “similar fact evidence” which
concerned allegations against the grievor of sexual assault, made in 1977 by
two female residents of another home for the retarded, Starwood House,
where the griever ‘was employed at the time. Counsel proposed to call these
two residents. They would speak about acts of intercourse, spanking, and
attempts to persuade the victims to engage in certain conduct, all whilg the
grievor was on duty. We denied this request. Fitly, ,the complaints had not
been proceeded with in 1977, presumably because they would have been too
difficult to prove. In any event, these complaints were not yet “facts” which
could bear on our case, they were merely allegations. In order to turn the
complaints into facts, we would have to conduct a full hearing into them, on
top of our hearing into the allegations before us. Secondly, at the grievor’s
criminal trial in 1987, on the.charges leading out of the events with which we
are concerned, this evidence was not allowed. His Honor Judge G. V. Palmer
. .
.
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decided that there was a marked difference in modus operandi; it had been a
long time since the allegations; .he had considerable concern about the
evidence of the two residents, having heard them in a voir dire; and he had
considerable concern about its weight if admitted. Thirdly, in our view, if
this evidence was admitted, it would likely take as long or longer to deal with
as to deal with the principal allegations before us. And, fourthly, even if
admitted and proven, it would have very little probative value with respect to
the principal allegations before us, which involve an alleged assault in the.
night, when off duty, involving touching, with no intercourse, spanking, or
attempts to persuade the victims to do certain acts. Similar fact evidence may
be admitted if there is a sufficient nexus between the similar facts and the
principal allegations (we were referred to a great many cases, and a review
of the law in Sopinka and Lederrnan, The Law of Evidence in Civil Cases
(1974). ai pages 19-25). In our view, the r&rginal probative value of the
evidence sought to be adduced by the Ministry was far out-weighed by the
considerations arguing against its introduction.. _.
The Ministry then wanted to ask questions during cross-examination of.
the grievor about the Starwood House allegations. We refused this request.
We had already made our ruling concerning the relevance ‘of these
allegations:
In cross-examination of the grievor, counsel for the Ministry also
wanted to ask him about allegations of sexual harassment made by a fellow
female employee at the Barrie District Association for the Mentally
Retarded, involving j&ting his arms around her and unwelcome attention (in
order to show his ~morals and his propensity to commit the acts alleged before
us), and about the reasons for his termination of employment at the Barrie
District Association for the Mentally Retarded (to challenge his credibility).
We refused these requests as well. The grievor’s character is not
directly .in issue in this case. One can raise character in certain cases, for
example to show a propensity to untruthfulness (that is, to show previous
incidents of untruthfulness). But one cannot raise character to show
. . .
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propensity to commit sexual acts unless the earlier ‘conduct is sufficiently.
similar to fit the test for similar fact (again we wem. guided by the review of
the-law in Sopinka and Lederman, The Law of Evidence in Ci?il Cases
(1974), at pages 286-293). As in the case of the StarwoodHouse allegations,
the incident with the fellow employee at the Barrie DAMR does not meet the
test for similar fact evidence. The incident is too remote to help us determine
whether or not the grievor was in theroom in house 63 on September 15;
1985. With respect to the grievor’s conclusion of employment at the Barrie
DAMR, this is collateral to the issue before us. It is not directly relevant, and
it would serve no purpose raising. the matter before us. We said that we
would allow .questions on matters which, if proven would have a clear
relevance and probative value---but to have such value, the incidents would
have to be very much like the one in issue. Mr. Robbins concurred in this
ruling, and Mr. Milley said that he was generally in agreement, but he would
have allowed wider questioning on matters of credibility.
At the end of the case, the Ministry sought to call a wimess concerning
the g&or’s application for employment to the Banie District Association
for the Mentally Retarded, in order to challenge certain statments made by
the grievor in his evidence, and to show lack of credibility. We ruled that
one must test credibility within the context of the issue before us, and ‘the
griever’s application for employment at the Barrie DAMR was simply too
remote for us. Again, Mr. Milley had some reservations about this ruling.
He would have allowed a wider scope for questioning which went to the
credibility of the grievor.
The grievor responded to the allegations by saying that he went
straight home from the stag party. He .was not at.the Centre thatnight. He
was examined and cross-examined in great detail about his movements that
night, about the conversations he had with his wife after the allegations, about
. his response to the allegations. There is no point ~repeating all of this
evidence. We have reviewed it in detail and our clear conclusion is that there
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is nothing in the grievor’s testimony to suggest he was not telling the truth.
As a witness, he was believable. His conduct was reasonable for someone
who had been accused of sexual assault by two residents at the Centre. He
appeared to be entirely forthright with us,‘just as he had been found to be
cooperative. by the investigating police officer.
The Ministry must prove that there was just cause for discharge.
There is absolutely no doubt that, if we accept the allegations of the
two residents, there was just cause for the termination. A. Residential
Counsellor in a facility like the Centre is in a position of trust and must
behave with great propriety in dealing with theresidents &I the Centre’s care.
The Ministry has a legislated responsibility to provide care and protection
for the residents in its facilities. Management and the Residential Counsellors
must be vary careful to ensure that residents are not subjected to
inappropriate behaviour, in particular sexual assaults. Indeed, even if less
happened that night, but Mr. Montgomery did go to the Centre and into house.
63, we would have no hesitation in fmding that there was just cause for
discharge. The real issue is whether or not he was ~%I house 63 during the
night on September 15,198s.
“When the alleged conduct is criminal in nature, courts and boards of
arbitration have said that the burden of proof .is commensurate with the
.seriousness of the conduct alleged. This is a civil matter, not criminal,
therefore we am not talking about proof “beyond a reasonable doubt”. Bm
there must be clear and convincing evidence to demonstrate just cause. we
agree with an oftquoted passage from Re lndusmin Ltd. and United Cement,
Lime and Gypsum Workers International Union, Local 488 (1978), 20 LAC
(2d) 87 (Richer), which contains reference to another chestnut from the
judgment of Lord Denning in the English Court of Appeal in Bater v. Barer,
[I9501 2 All ER 458. In Re I~dusmin, the learned arbitrator said (at pages
89-90):
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The standard of proof to be applied in this type of
civil proceeding is proof on the balance of probabilities.
gut both the Courts and boards of arbitration have.
recognized that that is not ‘a mechanical or inflexible
standard. Thus, as fairness and common sense would
require, the standard of probability applied in arbitration
proceedings may increase with--the gravity of the
consequences that will flow from an afirmative finding. In
adopting that proposition in respect of the standard of proof
in civil proceedings generally, im Hanes v. Wawanesa Mutual
Ins. Co. (19631, 36 D.L.R. (Zd) 7-18 [f9633] S.C.R. I54
[I9631 I CCC. 321, the Supreme Court of Canada quoted
with approval the fbllowing passage from the judgment of
Denning, L-l., in Bater v. Bater, [I9501 2 All E.R. 458 at p.
459:
The difference of opinion which has been evoked
about the standard of proof in these cases may well
turn out to be more a matter of words than anyt.hing
eke. It is ture that by our law there is a higher
standar.d of proof in criminal cases than in civil
cases, but this is subject to the qualification that.
there is no absolute. standard in either c.ase. In
criminal: cases the. charge must be proved beyond
reasonable doubt, but there may .be degrees of proof
within that standard.’ :Matiy great judges have said
that, in proportion as the 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 of probability
within that standard. The degree depends on the
subject-matter. A civil court, when considering a
charge .of fraud, 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 crimina1 nature, but still it does require a degree
of probability which is commensurate with the
occasion.
See also Smith v. Smith and Smedman, [19Sil 3 D.L.R. 449 at
p. 463, Il9521.2 S.C.R. 21 (S.C.C.); Re Bernstein and College
of Physicians & Surgeons oft Ontario (1977). 76 D.,L.R. Od)
38, ‘15 O.R. (2d) 337 font. Div. Ct.); Re Canadian Union of
Public Employees~, Local I and Toronto Hydro Electric
System et al. f1978), 84 D.L.R. (3d) 601, 19 ).R. (Zd) 245
(Ont. Div. Ct).
1’1 is thus misleading td suggest ~that in cases where
discharge or discipline is grounded in allegations of employee
conduct that is criminal or quasi-criminal arbitrators have
required the employer to establish its case accoiding to a.
standard of proof that falls between the criminal and civil
burdens of proof. Rather, like the Courts, arbitrators have
applied the flexibility inherent in the civil burden in.,
requiring that allegations of criminal or quasi-criminal
misconduct must be proven by clear evidence or with
reasonable probability commensurate with the gravity of the
conduct alleged and the seriousness of the consequences to
follow if the allegations are proved: see, e.g., ‘Re Allen
Industries Canada Ltd. and U.A.W. (‘19711, 23 L.A.C. I21
(Weatherill.); Re Air Terminal Transport Ltd. and Fuel;Bus.
Limousine, Petroleum Drivirs dr Allied Employees, Local 352
(1970). 22 L.A.C. 143 (Brown).
We f!ind that; based on the evidence before us, we simply don’t know
what happened in house 63 in the early morning on September.15 $235:
There are some very troubling elements in the testimony-and conduct of CL
and CC.
We find it very diff%ult to believe that, if CL had really been assaulted
(by die grievor or anyone else), her first phone call would be to complain
about a sore stomach, yet this is precisely ~what she did. She said she was
frightened; she thought he was still in the house (indeed, he had asked about
the whereabouts of Cc’s room and she had told him where to go); yet all she
says over the phone is that she has a stomach ache. No cry of alarm, and
perhaps more significantly, no cry for help. And even after CL says the girls
had a talk to compare notes, she makes yet another call simply complaining of
. a sore stomach. This makes no sense to us whatsoever. Counsel for the
grievor suggested that perhaps CL, then complained of a sexual assault in
order to get the attention she craved. We do not know if this is what
happened, but his suggestion is not, improbable.
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CL is sure she smelled aftershave. But we accept that the grievor is
allergic to it and wasn’t wearing any that night.
CL’s concern about her lost camera, and the appearance that this was
troubling her more than the sexual assault, was curious.
We are very troubled by Cc’s ever-changing story. At first with Ms.
Partington, she said nothing happened. Later in the day, she said she was
assaulted too. On September 24, inexplicably she tells Dr. Lynes that she
wasn’t assaulted. This is particularly troubling because of Dr. Arnold’s
opinion that, if the whole thing was just a “story” made up by CL.and CC, CC
would try to change it or give it up.
This -evidence is just not clear and convincing. In fact, we are not
convinced that CL and CC were sexually assaulted, or, ifthey were assaulted,
that the grievor was involved. We have reached the same conclusion as His
Honor Judge Pahner did at the criminal trial. He concludes his judgment by
saying that he was left “with some great considerable doubt as to what
happened on that evening”.
Jn these circumstances, we must fimd that the Ministry has failed to
show just cause’ for the discharge.
We:order the grievor reinstated. He is to be compensated for all lost
wages and benefits, with interest at 9 l/22% on each amount which was unpaid
from the date it should have been paid to the date on which it is paid. ‘Ihis .
rate of interest is a rough weighted average of the Bank of Canada rate
during the period involved.
We reserve our jurisdiction to determine zany matters relating to
compensation which the parties are unable to settle themselves.
Done at London, Ontario, this 14th day of December ,1987.
$Te+. . .._ . -.-‘~ I’
--~ ,,~,-*
“-J. W. Gamuels, Vice-Chainnan
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L. &sbins, Member
G. Milley, Memb&