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HomeMy WebLinkAbout1996-0706RATE97_09_17 DWrARIO EMPLOYI!S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE BOO, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (41(1) 32(1-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPIE (41(1) 32(l-13QG GSB # 706/96 . OPSEU # 96F207 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLEC~IVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rate) Grievor - and - the Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE G H McKechnie Vice-Chair FOR THE M Bevan UNION Grievance Officer Ontario Public Service Employees Union FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING November 18, 1996 February 26, 27, 1997 March 5, 1997 2 CorrectIonal Officer (COl Garth Rate grieves that he has been dismissed without Just cause and the Employer has violated Article 27 8 2 of the Collective Agreement The Employer alleges that Mr Rate was discharged because he used excessIve force, unprofessIOnally, against a young offender The Union stated In ItS opening remarks that Mr Rate has only one disciplinary note on hiS record, a one-day suspension for contravening a polley, and that suspension IS being grieved The young offender gave eVidence at the arbitration hearing and described the SItuation which led to the allegation against the grlevor The young offender, at the time of the arbitration hearing, was in open custody and had been In the Bluewater Youth Centre for approximately 8 to 10 months prior to being released Into open custody The young offender stated that he had been placed In the Bluewater Youth Centre for theft, dangerous driving, falling to appear In court, mischief, public mischief and theft over $5,000 The events whIch led to Mr Rate's discharge occurred on May 14, 1996 The young offender testIfied that he was being allowed into the exercise yard from the segregation cell area and the young offender stated that he was "horsrng around" It was hiS vIew that the officer In charge, Peter Kurlek, believed that he was not gOrng to come back from the exercise yard The young offender stated that Mr Kurlek called for assistance and Correctional Officer (CO) Toombs arrived along With CO Rate It was the young offender's eVIdence that CO Rate put him In a sleeper hold, threw him on the floor and a "Code Blue" was Issued, which IS an emergency code The young offender also testified that the gnevor smashed hiS face on the ground tWice while the handcuffs and shackles were being placed on him The young offender also stated that the gnevor pushed his face against the wall while he was In shackles These events were reported for the first time by the young offender In an rntervlew note taken by Mr Bnan Larstone on the day that the inCident occurred Mr Larstone did not give eVidence In these proceedings The young offender stated that the correctIOnal offIcers cut off hIS clothes, 3 handcuffed and shackled him and then carried him naked to his segregation cell The young offender stated that he was positioned facing the bed and someone put his knees on the bed He stated that he said something to the grievor who then punched him The young offender stated that he believed he said something about biting the gnevor Following that statement, the grievor, according to the young offender, hit him in the face with his fist The young offender stated that he began to threaten the gnevor and used profanity The young offender testified that the gnevor then punched him again With his fist, however, It was just a little Jab and that the first one hurt more The second hit, according to the young offender occurred as CO Rate was walking out of the room and the young offender was threatening him On cross-examination the young offender was asked if Mr Ross Hallan interviewed him and tried to get him to press charges against the grievor The young offender agreed that Mr Hallan had interviewed him and had wanted him to press charges, however, he did not Mr Hallan did not give eVidence in the arbitration proceedings Peter Kurlek who is the shift supervisor and staff training officer gave eVidence WIth respect to the incidents that led to Mr Rate's dIscharge Mr Kurlek stated that the segregation yard incident was not an Isolated problem and that the young offender had presented problems on a number of occasions Mr Kurlek stated that the young offender asked him if he was the only one gOing out into the yard at the time and the young offender stated that the issue was not gOing Into the yard but whether he would return Mr Kurlek stated that he used the radiO to call for available staff and Mr Toombs was the first person to come to his assistance and went Into the yard where the young offender was standing The gnevor, Mr Rate, arrived next and Mr Kurlek testIfied that he dId not believe he bnefed Mr Rate about what was occurring before Mr Rate entered the segregation yard Mr Kurlek stated that the young offender was bOisterous, abUSive, somewhat resistant and certainly not compliant He stated that he did not see the choke hold placed on the young offender but the young offender was placed face down on the floor , 4 by the officers and Mr Kurlek then activated the Code Blue alarm Mr Kurlek stated that Mr Toombs, Mr Rate and Mr Armstrong had the young offender on the floor The young offender's track pants and shoes were then removed and he was escorted back to his cell Although Mr Kurlek was not asked how the young offender was positioned, he volunteered "he was not kneeling at all " Mr Kurlek stated that the young offender then had a security gown put over him Mr Kurlek testified that he ordered the security gown and that he, Mr Gibson and Mr Rate put the gown over the young offender's head The young offender's hands were handcuffed behind his back and when the gown IS brought over the young offender's head, his arms are inside the gown Mr Kurlek testified that he heard the young offender yell, "I should bite you in the knee" This was directed at Mr Rate and, as the young offender said this, Mr Kurlek stated that his head trlted to the right and pointed down During cross-examination Mr Kurlek said that he saw the young offender make a bIting motion toward Mr Rate It was Mr Kurlek's eVidence that the grievor was approximately 2 1/2 feet away from the young offender, however, the grlevor's eVidence was that he had one foot up on the bed and therefore was much closer to the young offender Mr Kurlek stated that the biting motion and the grlevor's physical contact with the young offender took place In a matter of seconds He stated that, after he was hit, the young offender was agitated and screamed obscenities at the grrevor Mr Kurlek stated that the young offender threatened to kill the grrevor Mr Kurlek stated that the phYSical contact was an Immediate response by the grievor Mr Kurlek testified that he glanced at CO Gibson and hIs response was to call the gnevor's name" as a caution" to IndIcate that force was not required Mr Kurlek stated that he told both the grlevor and Mr Gibson to leave the cell, at whIch pOint the young offender shouted at the grlevor and turned toward him Mr Kurlek testified that the gnevor slapped the left Side of the young offender's face and pushed him backwards Mr Kurlek stated that he told the gnevor to leave the cell Mr Kurlek stated that he then took note of the officers In the cell and requested reports on the use of force He stated - , 5 that Mr Gibson and Mr Rate were behind him He testified that he was sure there were two other staff behind them, however, he was not certain of their names He said he felt the presence of staff It was Mr Kurlek's evidence that when the first physical contact was made, the young offender was close enough to Mr Rate to bite him It was Mr Kurlek's view that methods of restraint other than hitting the young offender were available to Mr Rate He believed that the young offender could have been restrained with Mr Rate's free hand or he could have been pushed away by that free hand Mr Kurlek stated that the use of force depends on the situation In his Occurrence Report, Mr Kurlek stated that the gnevor punched the young offender in the face, however, during cross-examination he stated that It was an open hand rather than a fist that was used Mr Kurlek testified that all of the actions happened very quickly Mr Kurlek stated that the young offender's head snapped back indicating the forcefulness of the blow, however, he did not put that in his Occurrence Report but could give no reason for omitting that With respect to Mr Kurlek's calling Mr Rate's name, It was not in his Occurrence Report and he Indicated that it should have been Mr Dan Toombs is a shift supervisor and was on duty on the day of the inCident He stated that he attended at the segregation yard and testified that the gnevor told the young offender to move, the young offender did not, and as a result a chokehold was applied Mr Toombs stated that he had been talking to the young offender stating that he had been ordered to return to the segregation cell and when Mr Rate applied the chokehold, he had been given no direction to do thiS It was Mr Toombs' evidence that while In the segregation yard, Mr Rate should have sought permiSSion pnor to applYing a chokehold Mr Toombs testified that he was talking to the young offender at the time and there was no threat being posed He stated that Mr Rate appeared to hold the young offender's hair very tightly and there may have been too much force, however, he admitted that thiS was only speculation It was Mr Toombs' eVidence that Mr Rate and Mr Armstrong were both present In the yard Mr Toombs testified that he heard the - 6 gnevor state that he liked the young offender's "little pony tall because It gives you something to grab onto" When the young offender was placed back In the segregation cell, Mr Toombs stated that he was standing In the corndor, approximately 10 feet behind another officer He stated that he could see Into the . cell and saw Mr Rate, the young offender and Mr Kurlek He stated that If others were In the cell he was not aware of them Mr Toombs also testified that he did not focus on any other correctional officers, only Mr Rate Mr Toombs testified that he heard the young offender state, "I'll bite your knee" or "kneecap" and then Mr Rate brought hIS right hand up and struck the young offender in the face Mr Toombs stated that he knew the blow was relatively hard because of the speed of Mr Rate's hand He stated he heard Mr Kurlek say "Garth", Mr Rate's first name Mr Toombs stated that, after a brief pause, there was a push by Mr Rate, which was not quite as strong as the first one Mr Toombs stated that as Mr Rate left the cell, he heard him say, "that's okay I'll be back to visit you later" This statement was not mentioned by any other witness In his Occurrence Report Mr Toombs stated that the young offender was "posing no threat" and Mr Toombs stated that the young offender would have been unable to strike the grlevor because he was In restraints Mr Toombs testIfied that he dId not see Mr Rate hit the young offender's head on the floor or wallin the skIrmish by the segregatIon yard Mr Toombs testified that, when In the segregation cell, he did not see the young offender bend his head toward Mr Rate but did hear the comment With respect to biting Mr Toombs testified that he believed that Mr Rate could have used means other than hitting him He admitted however that he did not have an unobstructed vIew of the actIon In the segregation cell Mr Toombs admitted that there are tImes phYSIcal force can be used and there would be Situations where It would be appropnate He stated that he did not see the young offender's reaction to the phYSical contact made by the gnevor Mr David HerbIson IS an Operational Manager at the Bluewater Youth Centre and Signed the letter of dismissal In that letter he stated 7 "This dismissal is a result of unprofessional conduct In relationship to the use of force directed at a person In the custody of this institution " Mr Herbison testified that he reviewed all of the Occurrence Reports and decided to discharge the grievor He came to the conclUSion that the young offender was In restraints, that force was not necessary, therefore, there was an excessive use of force Mr Herbison testified that he did not speak to any of the Correctional Officers but relied solely on the reports He stated that, after reading the reports, he concluded that the young offender may have made a move toward the gnevor, with his mouth open, but it was a slight move and not a deliberate lunge Mr Herbison agreed that if the young offender stated that he was going to bite the grievor and then moved toward the grievor and was close enough, the grievor would be permitted to hit the young offender, however, Mr Herbison stated that he did not believe that was the scenario on the day in question Mr Herbison stated that if there was a situation where safety was threatened, a correctional officer was entitled to take action to protect himself Mr Herbison stated that he was not concerned With the grievor's personnel file or any other actions With respect to dIscipline He relied stnctly on the incident as he Interpreted it from the various Occurrence Reports Mr Rate testified that Mr Kurlek made the radio call for assistance and told him, as he came from another section of the institution, to go out and bring the young offender back into the segregatIon area Mr Rate testified that the young offender was stating that he was not going to return from the yard and therefore Mr Rate used a chokehold to put him down on the floor He stated that the young offender was trYIng to get up and he grabbed hIm by the haIr and held him down He agreed that he stated that, because the young offender had a ponytail, It was handy", or something to that effect because he was able to grab him by the hair Mr Rate testified that the young offender was making threats and uSing obscene language throughout the inCident Mr Rate testified that when the young offender was returned to the segregatIon cell and the security gown was being put on him, 8 the young offender stated "I should have bit you In the kneecap when I had the chance" As he said that, the young offender opened his mouth and made a motion to bite Mr Rate on the leg Mr Rate testified that hIs leg was on the bunk and he was holding the young offender with his left hand and his nght hand was down by his side He stated that he was approximately 1 - 1 1/2 feet away from the young offender and as he made the biting motion, Mr Rate brought his hand up to slap the young offender on the head to prevent him from biting M r Rate was asked If he could have moved away He said that he could not because he was not expecting this action by the young offender and It happened so qUickly, that he reacted He admitted that there was a possibility he could have pushed him, but that he could not let him go because the correctIonal officers were In the process of placing the security gown over the young offender Once the security gown was placed over the young offender's head, Mr Rate testified that, as he began to back away, and was still holding the young offender, the young offender made a motion toward him and Mr Rate gave him, what he described, as a light tap on the forehead to push him away He stated that he did that so he could leave the cell without the young offender coming after him Mr Rate testified that he dId not hear Mr Kurlek call out his name Mr Rate testified that the events concerning the first physical contact took place In a spirt second He stated that the young offender said that he was going to bite him and then moved and Mr Rate stated that he simply brought his hand up He admitted that If It happened a second time, he would not know If he would do the same thing Mr Rate testified with respect to the second physical contact, that he was attempting to startle the young offender because he was unsure of his intention Mr Rate testified that the young offender made a motIon toward him and he was not sure If he was either gOing to bIte him or Spit upon him DUring cross examination Mr Rate was asked a series of questions with respect to the reaction a young offender might have to a correctional officer and agreed that an officer should always be on guard because the unexpected could occur He ~ , 9 also agreed that physical force should only be used if necessary and defined that In terms of a young offender attempting to phYSically harm him He stated that It was the first time In hiS 10 years as a correctional officer that a young offender had attempted to bite him He also agreed that the amount of force used should be proportionate to the threat made Mr Rate agreed that the young offender had hit him while the two were struggling on the floor In the segregation yard area but indicated that he was not angry about thiS, he was simply trYing to secure the young offender and put him down on the floor Mr Rate testified that he believed that the young offender was secure in the cell until he made the motIon to try to bite hhll He also testified that even in handcuffs and leg irons, the young offender could move Mr Roger LeWIS is a correctional officer at the Bluewater Youth Centre and he testified that he believed that the young offender was kneeling at the time of the inCident In the cell He stated that he saw the attempt to bite the gnevor and that, In hiS View, the amount of force used by the grlevor was necessary Mr LeWIS did not see the second phYSical contact Mr LeWIS' Occurrence Report did not state that a phYSical contact was made but It did say that there were "biting motions toward staff" Mr LeWIS did mention the physical contact when Interviewed by Mr Larstone Mr Lewis testified that, in his View, Mr Rate's feet were In a pOSition where probably one was on the bunk and one was on the ground He admitted It was very unusual for a correctional officer to hIt or slap a reSident In the face Mr Lee Calrncross IS a Correctional Officer at the Bluewater Centre and stated that he was standing behInd and to one sIde of Mr Rate in the segregatIon cell He stated he saw the biting motion made by the young offender and heard the statement WIth respect to biting He recalled Mr Rate as haVing one leg on the bunk and that Mr Rate was close enough to the young offender that he could have bitten the grrevor He stated that he did not see the grrevor make contact but v- 10 heard the slap This contradicts, to some degree, his Occurrence Report In whIch he stated tIC 0 Rate responded by striking the resident In the face area with a open hand" He also Indicated that Mr Rate stated "Don't make a threat move like that again" No other witness reported that Mr Calrncross stated that, prior to the arbitration, he believed that thiS would be acceptable force but, following thiS Incident, he was no longer certain He also stated that he had seen a young offender, in full restraints, make moves and throw hIs body against the door ARGUMENT The Employer argues that the incIdent In the segregatIon yard IS Important, not because the grievor was disciplined for any actions in the segregation yard, but because the incident with the young offender established the grievor's state of mind The grrevor indicated that the young offender hit him In the face while the altercation was going on and the grievor held the young offender by his ponytail and made a comment which had a "tone" to it IndicatIng that the gnevor was angry Both Mr Kurlek and Mr Toombs gave evidence that the young offender was standing In the cell, whereas, the grievor indicates that the young offender was kneeling but none of the Occurrence Reports refer to the young offender's position It IS clear that the grievor then struck the young offender and Mr Toombs indicated that the grlevor's head went back indicating the force used In the Employer's View, there are a number of conflicts in the eVidence and even If the conflIcts are resolved In the UnIon's favour, there IS stIli cause for dIscharge It IS the Employer's view that I should belIeve the eVIdence of Mr Kurlek and Mr Toombs because there are conflicts In the Correctional Off,cers' Occurrence Reports and thIS affects their credIbIlity In additIOn, there are conflicts between the vIva voce eVidence and the Occurrence Reports 11 The Employer directs me to Regulation 778 of the Ministry of Correctional Services Act which states as follows 7 (1) No employee shall use force against an inmate unless force is reqUIred In order to, . (a) enforce discipline and maintain order withm the Institution, (b) defend the employee or another employee or Inmate from assault, (c) control a rebellious or disturbed inmate, (d) conduct a search (2) When a employee uses force against an inmate, the amount of force used should be reasonable and not excessive having regard to the nature of the threat posed by the inmate and all other circumstances of the case (3) Where a employee uses force against an Inmate, the employee shall file a written report with the Supenntendent indlcatmg the nature of the threat posed by the inmate and all other circumstances of the case The Employer also referred to the standing orders of the Bluewater Youth Centre which repeat the regulation almost verbatim In the Employer's View, there IS a two part test, firstly, force must be necessary prior to its use and secondly, If necessary, It must be reasonable and not excessive It IS the Employer's view that the Union must demonstrate that both elements were present In order to defend against thiS allegation In the Employer's View, all witnesses said that the young offender made the statement with respect to biting and it is the Employer's view that the natural reaction should have been to move away The Employer stated that If Mr Rate stepped back and either applied force to the young offender's arm or grabbed hIs ponytail which he had done earlier, this would be preferable to the phYSical contact that was made In the Employer's view discharge was appropriate because the force was used against a young offender who was vulnerable, In a segregation cell, and In restraints There was phYSical contact and the Employer 12 has a zero tolerance policy in these matters and a clear message must be sent to correctional officers with respect to the use of force The Employer referred to Re OPSEU (S Hunt) and the Crown In Right of Ontario (Ministry of Community and Social Services), (GSB file 1683/87) (May 11, 1990) (Sprlngate) In that case, the grievor received a wntten reprimand for "rapping a resident on the head" and then was discharged after allegedly physically abusing residents The grievor was charged with assault, committed to trial and found gUilty of assault At page 23 of the decision, Vice Chair Spnngate indIcates that the panel was satisfied that the gnevor kicked a resIdent and therefore did physically abuse her In that case, the panel found that" "Discharge is generally Viewed as the appropriate response for the deliberate physical abuse of persons who are unable to care for themselves" (p 25) It is the Employer's view that in the Instant case, the young offender was unable to defend himself The Employer also argues that if I find that discharge was excessive in this case, Section 7 of the Crown Employees Collective Bargaining Act prevents me from returning Mr Rate to his position as a correctional officer That section states as follows (4) Restrictions on lessenmg of penalties - In substituting a penalty under subsection 48 (17) of the Labour Relations Act, 1995, the Grievance Settlement Board shall not provide for the employment of an employee In a pOSitIOn that Involved direct responsibility for or that prOVides an opportunity for contact with reSidents in a faCIlity If the Board has found that the employee, (a) has applied force to a reSident In a facility except the minimum force necessary for self-defence or the defence of another person or necessary to restrain the reSident, or (b) has sexually molested a reSident In a faCility - 13 (5) Definitions - In subsection (4) "facility" means, (e) a correctional institution under the MInistry of Correctional Services Act It IS the Employer's argument that this section of the Crown Employees Collective Bargaining Act prevents me from substitulng a lesser penalty and returning Mr Rate to the Bluewater Youth Centre because It is covered by the MInistry of Correctional Services Act The Employer refers me to the following cases in support of that Re OPSEU (Karl Van't Hullenaar) and the Crown In right of Ontario (MInistry of Correctional Services) (GSB file 556/81), January 20, 1982 (Jolliffe), Re OPSEU (Fred Cully) and the Crown in right of Ontario (Ministry of Health), (GSB file 357/83), March 13, 1994, (Draper), Re David Travers and the Crown In right of Ontario (MinIstry of Correctional Services}, (GSB Files 79/79, 213/78), May 29, 1980 (Swinton) and Re OPSEU (A Serrao) and the Crown In right of Ontario (MInistry of Health), (GSB File 1759/86), August 31, 1988 (M G Plcher) The Union argues that the Employer IS incorrect when it stated that no one saw the young offender move prior to the second physical contact, Mr Kurlek said the young offender turned toward the grievor It is the Union's view that there IS no dIsagreement that the grlevor used force and In the UnIon's VIew, the force was necessary It IS the Union's view that there was no disCipline for any activities of the grievor prior to those taking place in the cell As a result, the InCident, In the segregation yard area, prior to the contact being made In the cell, IS not relevant It IS the Union's view that no witness Indicates that the young offender stated that he was prepared to bite the grlevor and then made a physical move, rather, the eVidence IS clear that the statement and the physical move With a biting motion happened almost Instantaneously In addItIon, It IS the UnIon's vIew that Mr Kurlek was behind the young offender and was not In the best pOSition to see all of 14 the activities Further, Mr Toombs was In the hall and was not even In the segregation cell It IS the Union's view that the Issue before me IS the degree of force that was needed The Union rejects the various alternatIves put forward by the Employer such as moving away, pushing the young offender forward, or asking someone else to assist The incident happened so quickly that the grievor made his decision Instantaneously and, in the Union's view, the decision was correct There IS also the difficulty, in the Union's VIew, that the evidence does not demonstrate that the young offender was totally restrained, because some eVidence indicates that the handcuffs were In place whereas other evidence indicates that the handcuffs were being adjusted In the Union's View, Mr Herbison disregarded the Accident and Injury Report which does not indicate that any Injury resulted from Mr Rate's physical contact The Nurse was not called to give eVidence In addition, the Union argues that no one has testified that the young offender did not make a motion toward Mr Rate following the statement that he was prepared to bite him It is the Union's view that in each of the cases Cited by the Employer, residents did not engage In any activity prior to the physical contact being made In the Instant case, the young offender was a known violent indIvidual and this provides a mitigating circumstance which Justifies the use of force and the amount of force that Mr Rate employed The Union referred me to Re OPSEU (McPhee) and the Crown in right of Ontario (Ministry of Correctional Services), (G SB File 2050/92), October 21, 1993 (Barrett) In which a grlevor was accused of physical assault of an Inmate Ms Sarrett found that If events had occurred as described by two witnesses, then the grlevor, " was Justified In USing the force that he did" (p 8) Ms Barrett, therefore, found that the gnevor did not use excessIve force The UnIon also referred me to Re OPSEU (J Kulmatycky) and the Crown In right of Ontario (Ministry of Community and SOCial Services), (GSB File 418/84), (Verity) In which the standard of proof should be that of clear and cogent eVidence 15 DECISION The eVidence indicates that a violent young offender engaged In activities which occasioned a call for assistance by Mr Kur\ek and a Code Blue Indicating a higher level of assistance as the incIdent in the segregatIon yard progressed There are a number of concerns demonstrated throughout the eVidence and chief among these IS the apparently sloppy reporting by all members of the correctional staff In their Occurrence Reports EVidence indicated that some staff members tried to report all actiVities whereas others reported only what they personally did Whatever the correct procedure should be, it is clear that the Occurrence Reports placed before me contain some difficulties To reach a decIsion, the activities can be divided into two events The first concerns the physical contact made as the young offender was put Into his cell and the second concerns the push or slap administered by Mr Rate as he was leaving the cell The chronology has been reported earlier in the decision, however it begins with the young offender refusing to come in from the segregation yard and Mr Rate applYing a choke hold and pushing him to the floor It is clear that the young offender was shouting obscenities and was not compliant, although he may not have struggled violently It IS agreed by Mr Rate that the young offender struck him, however, it IS not clear whether Mr Rate was angered to the pOint of retaliation, Mr Rate says he was not and the Employer urges me to find that the grlevor S "tone" of vOice indIcated anger With respect, I am unable to reach that conclusion The young offender indicates that hiS head was slammed to the floor, however, no one else saw thiS and I therefore accept Mr Rate's eVidence and statements by other witnesses that the young offender's head was not slammed or pushed agaInst the floor or wall What is clear IS that the young offender was not compliant since he was placed in handcuffs and leg irons and finally a security 16 gown The evidence with respect to the placement of the young offender's feet and knees and Mr Rate's leg once in the cell IS confusing to say the least Mr Rate indicates that his leg was on the bunk, whereas Mr Kurlek indicates that this was not so Mr Toombs' eVidence is simply imprecise and he indicates that he was In the hall outside the segregation cell and from the pictures of the cell placed In evidence, the segregation cell IS not a large area and the door IS certainly not large, thus clear lines of sight could be a significant problem All witnesses indicate that the young offender made the statement with respect to biting Mr Rate and made a bitIng motIon Mr HerbIson did not interVIew any of the Correctional Officers and relied only on the written reports and I can find no Justification for him disregarding, totally, the statements with respect to the biting motion and the biting statements made by the young offender Mr Rate states that he hit him with his open hand, Mr Kurlek states the young offender then said that he was going to kill Mr Rate and Mr Rate said he gave II another light tap on the forehead" of the young offender Mr Cairncross stated that the grievor hit the young offender with an open hand, however, he also indicated that he did not see that and went only by the sound Mr Toombs, In hiS Occurrence Report, Indicated that Mr Rate used an open-handed blow Mr Kurlek stated that Mr Rate punched the young offender but in hiS viva voce eVidence indicated that he did not mean he used hiS fist All witnesses testified that the actiVities In the cell took place within a very short period of time and at a time when there was a strain on all staff controlling what was clearly a violent young offender There was no warning that the young offender would attempt to bite Mr Rate and although a Correctional Officer can antiCipate resistance, especially from thIS young offender, Mr Rate testIfIed that he had never had this experience before As a result, with respect to the first phYSical contact, I have concluded that Mr Rate used force and used an appropriate amount of force to direct the Inmate away from hiS Intended actiVity, which was a bite The young offender has been violent and the young offender's client profile was submitted In eVidence indicating a long 17 list of non-compliance, verbal abuse and use of force while In the Bluewater Youth Centre Although it could be argued that Mr Rate should be wary, nonetheless a threat of a bite with a biting motion accompanying It in a spilt second, Indicates to me that, In the first physical contact, an appropnate amount of force was used Mr Rate was withIn the boundaries outlined In the Regulation and that IS to defend himself from an assault I note that the cases submitted by the Employer do, as the Union argues, involve physical contact with residents who were not causing difficulties at the time This young offender was clearly in a different situation ThIs brings me to the second physical contact. This is a more difficult situation because the activities which were the centre of attention had begun to decrease The young offender was now wearing a security gown and the Correctional Officers were beginning to exit the cell The chronology seems to be that as the Correctional Officers eXited the cell, the young offender made a statement and/or made a phYSical motion toward Mr Rate and Mr Rate either slapped him or pushed him back to prevent any kind of further altercation A review of thiS actiVity, as with the first activity, must be done, mindful of the impact on the grlevor should I find that unnecessary force was used, but not sufficient to lead to discharge As the Employer directed me, the Crown Employees Collective Bargaining Act Indicates that if force has been applied over the minimum, then the individual can no longer have contact with a resident in a correctional facility, In other words, Mr Rate could be restored to his employment but not as a Correctional Officer Given that caveat It IS Imperative that clear and cogent eVidence is needed to remove Mr Rate from the position of Correctional Officer (see p 16 of the Kulmatycky case supra) A revIew of the eVidence demonstrates, in my respectful opinion, that such clear and cogent eVidence IS not present Mr Rate testified that, In his view I given the events of the day, he had every reason to believe that the young offender would try to phYSically harm him Mr Kurlek's Occurrence Report simply states that he saw Mr Rate stnke the young offender In the face with his nght hand and push him backwards, but It does not say he saw the young offender make any 18 motion toward Mr Rate, however, in his vive voce eVidence he stated that the young offender turned toward the grievor Mr Kurlek also stated that the young offender threatened to kill the grJevor Mr Toombs' Occurrence Report also indIcates that, follOWing the first blow, the resident "swore" and Mr Rate then hIt the resident with a lighter blow and pushed him toward the bed Mr Toombs' report states that Mr Rate indicated that he would return to the cell, however, no one else reported that Mr LewIs and Mr Cairncross are not helpful In the matter of the second physical contact If one looks at the complete sequence of events, beginning with the segregation yard and ending with the first physical contact, It is certainly well within reason that Mr Rate had realistic fears for his physical well being Added to this is the fact that Mr Rate was In the cell and closest to the young offender Mr Kurlek, at the tIme of the second physical contact, was not as close to the young offender as Mr Rate was and Mr Toombs remained In the hall In thiS matter, it IS also clear that Mr Rate did not use a closed fist, the young offender was not hurt In any way, even though he testified he was The Nurse's report clearly states that there were no phYSical markings and she saw him very soon after the inCidents As a result, It IS my View, that the clear and cogent evidence that Mr Rate did not need to use phYSical force, or did not need to use the physical force that he did, IS not present As a result, in the matter of the second phYSical contact, I find that force was used and that there is insufficient evidence to demonstrate that It was In appropriate As a result, I conclude that In both cases of phYSical contact, the Employer has not made out the eVidence necessary to demonstrate that excessive force was used and that more than a minimum force was needed As a result, I find that the discharge was not warranted and Mr Rate is to be reinstated to his position as a Correctional Officer with full back pay and benefits 19 I shall remain seized If the parties cannot agree on the amount of compensation or any other matter of Implementation of my decision Dated at Toronto, this 17th day of September, 1997