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HomeMy WebLinkAbout1992-0469.Auger&Beaulieu.93-10-15 - ~ ONTARIO EMPLOYES DE LA COURONNE .....;; CROWN EMPLOYEES DEL 'ONTARIO "" ~, ~IIII GRIEVANCE COMMISSION DE ~ , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 469/92 IN THE MATTER OF AN ARBITRATION ( I Under T~E CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEME~T BOARD BETWEEN OPSEU (Al:lger-Beaulieu) Grievor - and - The Crown in Right of ontario (Ministry of the Attorney General) Employer BEFORE H Finley Vice-Chairperson W Shipman Member M O'Toole Member FOR THE L. Steinberg GRIEVOR Counsel Koskie & ,Minsky Barristers & Solicitors FOR THE M. Fleishman EMPLOYER Law Officer Crown Law Office civil Ministry of the Attorney General HEARING March 11, 12, 1993 April 30, 1993 \ May 1, 1993 I ,:) ) (;.:~ c- 'r- - GSB 469/92 D E C I S I o N The Grievor, Ms Annie Auger-Beaulieu, grieves that she has "been unfairly and unjustly dismissed" and requests To be reinstated to my PIO sit ion with ful'! backtime wages/benefits at current banK interest rates All files/records be cleared of any mention of my dismissal and circumstances surrounding it Ms Auger-Beaulieu, who has taken the law clerk course, has been J employed by the Ministry of the Attorney General as a bilingual, relief, .Courtroom Clerk at the OAG 8 Ie ve I , in the Ontario Court (Provincial Division) Criminal Office in Thunder Bay Ms Auger- Beaulieu's position as a Courtroom Clerk involved work in both the administrative office and the Courtroqm In this Court there are three Courtrooms Courtroom #1 serves as the Intake Court and is particularly busy, Courtroom #2 is the Preliminary Court ! and Courtroom # 3 is the Trial Court It ! is Courtroom # 1 which is the busiest and which generates the most paper work and it wa s to this Courtroom that Ms Au,ger-Beaul ieu was most frequently assigned I.t was her job to prepare the court dockets, ensuring that new charges were added which arose from over-night artests She would then copy and distribute the dockets in preparation for Court and take the docket with the accompanying files to the Courtroom When she had satisfied herself that the participants were present she would inform the Judge that Court was ready to proceed, announce the Court and assist the Judge during Court as the various cases ca_me up It was also her duty to arraign those who were on the docket, extract pleas, record orders for custody and release, as well as other orders which the Judge makes Following the Court, probation orders and remands which arose from the C,ourt in which she had clerked were prepared by her, and entries were finalized with respect to disposition Ms I Auger-Beaulieu normally handled Criminal Court files 150 to 200 times each day Her responsibilities also involved filing ( ( ~ . ~ {[- pardons, dead files and closed cases If an item were misfiled, she would be one of those who methodically went through each and every file until the item was located In her contact with files, she would come upon bench warrants in the individual files, but testified that she never saw a ~earch warrant in the Criminal Court files Further, it was her responsibility, following the Court, to return the files to the administrative area, and to prepare release papers She was not the only clerk car r y i ng out these dut ies I n add it i on, she undertook, for a time, clerical duties which did not come. into the OAG 8 classitication, to provide general assistance in the office During the times she worked a five~day week, which was her normal pattern of work, she spent between 4 and 5 hours a day in the Courtroom On April 6, 1992 Ms Auger-Beaulieu received the following memorandum from the Acting Regional Director Th i s wi 11 conf irm that you are required to attend a meeting on April 7, 1992, at 9 00 am, to discuss a very serious matter regarding your employment You are entitled to be represented by a representative of your choosing including a Union (OPSEU) representati ve Should you decl ine to be represented by a Union official, please so advise in writing at the beginning of the meeting on Tuesday \ \ For your information the local OPSEU representative for your local is Vie Williams, who can be reached at 344- 5804 Yours very truly ( S:i gned ) L Kaplanis Relgional Director (Acting) Courts Administration Division Ilk 2 ~ ---- -.. " ( (- "f Ms Auger-Beaulieu attended as instructed on the following day accomganied by a Union representative, Mr Jim Cryderman, and her lawyer, Mr John Hornak Dur ing the meeting she was shown the following letter April 7, 1992 Memorandum to Ms Annie Auger-Beaulieu Ev idence has been br ought to our a t tent i on by the Thunder Bay Police that you have been involved in releasing confidential information regarding issuance of a search warrant to the inte1nded recipient of the search warrant for the purpose of forewarning him of its execution This is an extremely serious breach of your Oath of Office Secrecy, as weil as a breach of Trust In view of this, I have no alternative but to dismiss you for cause in accordance with Section 22(3) of the Public Service Act, effective immediately (Signed) L Kaplanis Regional Director (Acting) Courts Administration Division Ilk cc K Cohl, A D A G (Acting) cc P Clendinrieng, Director, Human Resources f When invited to respond she was advised by her Counsel not to do so when the Employer indicated that it would be up to the Police whether or not cr iminal charges would be laid Mr Kaplanis testified that Mr Hornak inquired as to whether or not the Employer was offer ing a financial settlement and was informed that it was not The meeting terminated at that point and Ms Auger-Beaulieu filed a grievance 2 days later The Crown elected not to file criminal charges Section 22 (3) of the Public Service Act reads as follows A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant 3 ~ €~ ( i1''' I in his ministry In view of the number oif individuals involved in this ma t t e r, the f 0 I low in g lis tis pro v ide d t 0 f a c i lit ate identification of them Annie Auger-Beaulieu Courtroom Clerk, ~rievor Union Witness Rene (Ron) Beaulieu Gr ievor' s estranged spouse Employer Witness His Honour Judge Judge at Ontario Court Roderick D Clarke (Provincial Division) Criminal Office Issuer of search warrants '-- Constable Kenneth Davis Pro j e c t Co - 0 r din a tor, Intelligence Section, Thunder Bay Police Department Employer Witness Ingrid Fummerton Acting Court Administrator Ontario Court (Provincial Division) Criminal Office Thunder Bay Employer Witness Kathleen Holmquist Court Administrator Ontario Court (Provincial Division) Family Office Thunder Bay Agnew Johnston Assistant Crown Attorney Friend of the Grievor Larry Kaplanis Acting Regional Director, Courts Administration Division Thunder Bay Employer witness Wally Kis Grievor's landlord and common law spouse of her friend, Wendy Sampara Friend of Grievor's spouse Target of police drug investigation 4 ( r - c ( '-- .r- Raymond Kis Brother of Wally Kis Lyane Quessy Courtroom Clerk Ontario Court (Provincial Division) Criminal Office be f o,r e moving to position with Workers' Compensation Board, November 1992 Union Witness Wendy Sampara Common law spouse of Wa lly Kis.. friend of Grievor Marion Walsh Dockets and Documents Clerk/Intake Clerk Ontario Court (Provincial Division) Criminal Office Thunder Bay Employer Witness The Grievor was an unclassified employee and at the time of the grievance had signed 2 contracts The first, ran from June 17, 1991 to March 31" 1992 Based on the assessment that her performance had improved and was satisfactory, the Employer entered into the second contract with her on February 14, 1992 It was to run from April I, 1992 to March 31, 1993 As part of the process of entering into the contracts Ms Auger-Beaulieu ) signed, under oath and in the presence of Ms Ingrid Fummerton, the Acting Court Administrator, the following commitment OATH OF OFFICE AND SECRECY I, Annie Auger-Beaulieu, d0 s we a r (or solemnly affirm) that I will faithfully discharge my duties as a,public servant and will observe and comply with the laws of Can'ada and Ontario, and, except as I may be legally authorized or required, I will not disc~ose or give to any person any information or document that comes to my knowledge or possession by reason of my being a public servant, so help me God (Omit this in an affirmation) Ms Auger-Beaulieu acknowledges signing this oath and testified 5 ..6-- (:- I \: , '" I that she understood the responsibilities which ~t entailed The allegation against Ms Auger-Beaulieu arose from contacts she was said to hav'e outside the work setting and therefore, it is necessary to record certain details of her personal life Ms Auger-Beaulieu is 28 years old, the mother of 6-year old twins She married her common law spouse Rene Beaulieu in February, 1992 [1991 ? ) (according to his evidence) and separated from him on January 21, 1992, (according to her evidence) During the separation, they did remain in contact and when Ms Auger-Beaulieu was in hospital, he moved into her home to take care of the children At the time of the alleged incident, she was residing in a house owned by Mr Wally Kis and his mother Mr Kis, according to the testimony of Constable Davis, is known to the police and is considered to be active in the selling of narcotics According to Ms Auger-Beaulieu's testimony, she did not know Mr Kis or his common law spouse, Ms Wendy Sampara, before moving into the house which he owned, although her spouse Rene Beaulieu did While residing there, in March, 1991, she had occasion to meet Wendy Sarripara when M,r Kis brought her to the house Ms Auger-Beaulieu and her spouse were renting from him Ms Sampara had to wait to see her physician whose appointments were running late Following this meeting, a friendship developed between the Grievor and Ms Sampara, although, according to Ms Auger,-Beaul ieu, not with Mr Kis The two women and their children spent time together on a fairly regular basis and remained friends at the time of the hearing Ms Auger-Beaulieu remained in this house with the children following her separation from M Beaulieu until she secured affordable accommodation for them Ms Auger-Beaulieu was dismissed because it was afleged that she had telephoned her spouse and told him of an imminent search of Wally Kis's home so that he could pass on the warning to Mr Kis The following events led to the dismissal 6 ( ( \1':' , In 1991, the Thunder Bay Pol ice Department, in conjunction with the Ontario Provincial Police and the Royal Canadian Mounted Police, began a 14-month investigation into organized trafficking of narcotics in Thunder Bay It lasted from January 31, 1~91 to Marc;:h, 1992 The active part of the investigation began on July 31, 1991 The use of wire'-taps and searches was an important facet of the operation When a number of searches proved unfruitful and- search subjects indicated they were a wa r e in advan~e of the pending arrival of the police, Constable Kenneth Davis, who testified at the hearing, concluded that there must be an information leak at the Ontario Court (Provincial Division), Criminal Office, the location from which search warrants were issued and where they were stored He was not able to provide the specific dates on which the search warrants went bad but testified that the occurrences were prior to August, 1991 In response to this suspicion, he and all other officers applying for search warrants beginning in August/September of 1991, [Constable Davis was unable to be precise on this point and Ms Fummerton referred to the "fall"] accompanied each application with the additional request that they be sealed, a request that was consistently granted by the determ!ning Judge Authorities for wire-taps were issued through the Ontario Courts, (General Division) and permission for a wire-tap on the telephone of Mr Kis was issued for the period, January 20, 1992 [1991 ?] to March 17, 1992 Constable Davis testified that the "sealing procedure dealt successfully wi.th the problem" a,nd tl'1at the largest seizures were made during the period when the warrants with respect to their current operation were all sealed However, from Constable Davis's perspective, the seal ing of the warrants and the resulting fruitful searches, did not relieve his concern that someone had leaked search warrant information I Further, he viewed the sealing of search warrants as an extraordinary request, which "Judges do not appreciate" At the 7 --.. - --- c: I~-~ l ,', same time, he testified, "we had concern that one staff person at the Court office was in regular contact with one of our targets" - When one of his drug investigators observed the Grievor speaking with Wally Kis on one occasion at the Courthouse and from evidence gathered from wire-tap surveillance, Constable Da vis concluded tHat the contact was more than an isolated incident Based on the assumption tfuat Ms Auger-Beaulieu had access to confidential information and contact with Wally Kis, Constable Davis put a plan into operation to t1ascertain if the grievor was the source of the leaked information" and toi establish whether or not "Annie Auger-Beaulieu was [passing) or would pass information onto Wally Kis" The purpose of the plan was to "isolate information to show it could only be one person who gave information" The plan which Constable Davis devised involved the issuance of a same-day , two-hour, search warrant for the premises of Wally Kis under the Narcotics Control Act The plan was carried out as follows On Monday, February 24, 1992, Constable Davis arrived at the Ontario Court (Provincial Division) Criminal Office in possession of an unsigned search warrant for the resioence of WallyKis The document submitted fors ignature was complete except for the time s of the execution of the warrant He also had with him a brown envelope, 24 x 33 centimetres Constable Davis attended in Chamb~rs and spoke to Judge Clarke, outlining his plan, which appears to have been endorsed by the Judge He then, walked to the Court's administrative area, where he went behind the counter, which along with a plexiglass superstructure separates the administrative area from the public area, directly to Ms Auger- Beaulieu and asked her to type in the time, using as an excuse the story that the secretary at his unit had forgott'en to do so Constable Davis had noted in his notebook that he presented the warrant at 1430 hours It was his recollection that there was ".one person out front towards the back" Ms Auger-Beaulieu obliged and Constable Davis thanked her and returned to ~he 8 ~-~-----------------'------ ----'------ (~i,~ I (~ <;I. Judge's Chambers It was his opinion, that he had handled the matter in such a way as to ensure that no one else saw the warrant or the envelope, but could not say whether Ms Auger- Beaulieu mentioned it as he was quickly out of visual contact and hearing The Judge did not sign the warrant and it was never issued When Constable Davis came out "two minutes later" and was leaving the building, he testified that he noticed that Ms Auger-Beaulieu was on the telephone Constable Davis acknowledged that he could not say what phone call she was receiving or making Those who were a wa r e of this search warrant, according to Constable Davis, were himself, the Grievor, Judge Clarke, and the investigative staff who were in the wire- tap room and who had been instructed to watch for incoming calls to Wally Kis Constable Davis acknowledged that if others were aware, their knowledge could undermine his conclusion with respect to the Grievor Ms Auger-Beaulieu's evide:nce regarding the incident is as follows The 5 staf+ members who are normally in the administrative office were present, and she was at- her desk typing, a Restitution Order when she looked up to see Constable Davis at her desk Her recollection is that the time was approximately 1400 hours He asked her to type something on a search warrant saying that the Judge would not sign it and then explained that it was not pro~erly filled in She noted that Constable Davis had an envelope with large wr it ing. and when she put the warrant in the typewriter and proceeded to fill in the time which is at the lower third of the page she testified that she did not read the name and she gave evidence that Constable Davis pushed the envelope against her typewrtter so that she would see the name The notation SEARCH WARRANT WALLY Kis underlined with an elongated, horizontal 'Z' was hand printed in ink in letters from 1/2 to l)centimetre high It does not have 9 -- c. ( " w (T' 0 the aI;>pearance of having been written by clerical staff trained in proper set-up Ms Auger-Beaulieu t est i f i ed. t ha t following this, Constable Davis took the search warrant on which she had typed in the times, slid it under the flap of the envelope, thanked her and walked away Following his departure, she wondered why he had not approached the staff person whose job it was to deal with search warrants, or another staff person who, at the time, was not occupied She found i todd that he had asked her, particularly since the warrant was for her landlord She testified that she recalls standing between the third and fourth desks which are occupied by "Lyane and Sheila, the senior clerk", and saying that it wa s "kind of weird that they should ask me to type a warrant for my landlord" and asking them "if it was normal procedure f or us to type search warrants and I had not" She testified that the desks are not far apart but that no one replied, although she is quite certain that they heard, and she then went back to her job of typing Restitution Orders About 40 minutes later, while she was still working on the Restitution Orders, she "ran into a problem with an address" and called Assistant Crown Attorney Agnew Johnston, to obtain the correct I information ' While d'oing so, although she testified that this was not the primary purpose of her call, Ms Auger-Beaulieu told Mr Johnston about the "weird" incident involving the search warrant and he replied that he also found it odd and that it could be a set-up She then returned to the task of completing , the Restitution Orders and left work at the normal time She had concluded that the search warrant episode was a trap She testifieCi that, on that afternoon, she called no one other than Mr Agn~w, that she at no time called Rene Beaulieu, and thatiat no time did she communicate any information regarding search warrants directly or indirectly, specifically to Wally Kis, or to Wendy Sampara on that day o'r on any other day In cross examination, however, Ms Auger~Beaulieu admitted revealing information about the search warrant following the loss of her job on April 7, 1992 She testified that her access to papers at 10 (. f ....-. ,.~ the Court was restricted to those papers go i n g' into Court and that these papers become public once in the Court She did n,ot testify, nor was she asked, whether or not she answered the telephone at any time following Constable Davis's attendance at her desk '- Ms Auger-Beaulieu was asked about the incident which increased Constable Davis's suspicions, that of one of his operatives observing her at the Court in conversation with Wally Kis She explained that "Wally was there to post recognizance I money" for an individual who had been arrested and that he was waiting for him to be brought up She acknowledged that she was talking with Wally Kis at the counter when the operative approached the counter and she turned from Wally Kis and asked that person if she could help hjm and "all he w~nted to do was to invite us to the contact party [where persons in the justice system meet) that nighttl Three individuals from the office attended the party, Ms Auger-Beaulieu was among them Because of the importance of dates in this matter, I have summarized the events chronologically The names in parentheses, are the individuals who testified to a particular fact --/11/90 Grievor and Rene Beaulieu moved into house owned ,by Wally Kis (Grievor) ,--/01/91 Formal beginning of drug investigation (Constable Davis) --/12/91 [ ? ) Marriage of Rene Beaulieu and Annie Auger-Beaulieu (Rene Beaulieu) --/03/91 Grievor first met Wendy Sampara (Grievor) First search warrants issued (Constable Davis) 17/06/91 Grievor signed first contract 11 '" 'j i \ i' Effective date of first contract, the day on which the Grievor began to work at the Court 31/07/91 Beginning of technical phase of the drug investigation Wire tap in place Police first became aware of the Grievor through wire tap p e d tel e p h 0 n e conversations Sealing of search warrants began (Constable Davis)* --/08/91 Sealing of s,earch warrants began (Constable Davis)* 24/08/91 First search warrant executed (Constable Davis) Fall/ 91 Sealing of all search warrants I began (Constable Davis)(Ingrid \ F'ummerton) Alleged interference with search war~ant envelope reported to Judge Clarke by Marion Walsh ('Mar ion Walsh) Marion Wa 1 s h asked permission to store search warrants in cabinet with current criminal files (Marion ,Walsh) Locked filing cabinet arrived (Marion Walsh Drug busts started (Constable / Davis) 26/11/91 Beginning of compilation of calls (Constable Davis) 15/12/91 Substantial arrest (Constable Davis) 16/12/91 Telephone call from Wally Kis to Grievor at Court House (Constable Davis's notebook) 08/01/92 Arrest (Constable Davis) 09/01/92 Wally Kis telephones Grievor at home (Constable Davis) 12 ,- --- (:~ (, :f 21/01/92 Date of separation of Grievor from Rene Beaulieu (Auger- Beaulieu) 28/01/92 Wire tap authorized from January 20, 1992 to 17 March 1992, for Wally K is's telephone, among others, by Mr Justice Kozak, of the General Division --/02/92 Separation of Rene Beaulieu from Grievor (Rene Beaulieu) 24/0'2/92 Search warrant incident Taped telephorie conversations involving Rene Beaulieu, B,** Wendy Sampara, and Sandy ** 26/02/92 Tap e d tel ep h 0 n e conversations involving ( Wally Kis, Wendy Sampara and Raymond Kis which led Constable Davis to - confirm for himself that the individual leaking the search warrants was the Grievor 1700 hours Wally Kis at Police Station with f~iend and was questioned by Constable Davis No mention of search '-- warrant (Constable Davis) Grievor notified Wally Kis of intention to move (Auger- Beaulieu) 28/02/92 Observation by operative of the Grievor speaking to Wally K i s at Court counter Invitation to Court staff to attend "contact party' (where all justice system people meet) delivered verbally to Grievor by same operative Grievor and 2 others from Court staff attended that evening [Date of party from Constable Davis' evidence] 29/02/92 End of compilation of calls 13 -~ (., ( ~ (Constable Davis) 05/03/92 Taped conversation between Grievor and Wendy Sampara (Ruled inadmissible) 25/03/92 Constable Davis informed Larry Kaplanis of alleged security breach 31/03/92 Termination of Grievor's first contract 01/04/92 Commencement of Grievor's second contract 06/04/92 Grievor notified to meet with Mr Kaplanis on April 7, 1992 07/04/93 Grievor received notice of dismissal during meeting with Mr K a pIa n is, U n ion Representative and her Counsel Day after which Grievor says she revealed search warrant information outside the Court 09/04/92 Grievance filed by Grievor 30/04/92 Grievor moved from Wally Kis's house (Grievor) * Inconsistent evidence The parties agree that no negative inference ~s to be drawn from the Employer's failure to call the members of the investigative team or His Honour Judge Clarke Search Warrants Five individuals testified as to the handlihg and storage of the search warrants Larry Kaplanis, explained that search warrants could be processed through intake and filed, or the Judge could ord~r that they be sealed, and it would be the Judge who would seal them and they would be kept in locked storage He explained that the handling of search warrants was not directly related to the position of the Courtroom Clerk's position, but is 14 (,; ( ,"j-J ........:.'}=' one of the duties of the Intake Clerk He testified that it was during Ms Auger-Beaulieu's time at the Court that a decision was made to keep all search warrants in a locked filing cabinet brought in especially for this purpose Access to this cabinet is strictly controlled and it is limited to the Intake Clerk wno carries the key with her on a strap on her wrist For a Courtroom Clerk to have access to the file, he or she would need to first obtain the key That person would not, however, have knowledge of the contents, eveR if entry to the filing cabinet were gained Mr Kaplanis te~tified that he knew of no evidence that Ms Auger-Beaulieu was seen at the 'c a bin e t or in unauthorized possession of the cabinet key Ingrid Fummerton testified that the total sealing procedure, which involved the Judge's sealing and initialling the envelope to be opened only in his presence, began in the fall of 1991 after the sealing of an increasing number of ,warrants At that point in time, she was being called to the Judge's Chambers when a search warrant was sealed, to ensure it would be held in a safe' place Initially, these warrants were held in the vault in the Family Court (in the same building) Later a lockable filing cabinet was obtained and they were stored there in the Criminal Court Ms Fummerton testified that she herself had a key and that Marion Walsh, whose responsibility it was to "do the cover sheet and prepare the search warrant", was also in possession of one She acknow',ledged the possibility that a relief worker might have a key, but that it would be unusual since the normal procedure would be for that person to request access to the search-w9rrant filing cabinet from her or from Marion Walsh I Marion Walsh, Dockets and Documents Clerk/Intake Clerk, is responsible for the process ing .of search warrants when they are filed by a Polite Officer She testified that she receives them, writes a covering letter stating the date of the search, the name and residence She then files them Ms Walsh 15 . (., ( ,'. ' ~, testified that into the late summer of 1991, that the search warrants were filed in the same unlocked storage as the dead criminal files She gave evidence that in September or October, 1 9 9' 1 , she asked Ingrid Fummerton if she could move the search warrants into the cabinet beside her desk as it was the only cabinet which locked She stated that this request was precipitated by her observation on arrival at 0815 hours, the I first to arrive, that the file door of the cabinet where the search warrants were stored was open, the only one to be open, and that since it is her practice to close all filing cabinets at night and she was sure that she had done so the night before, she was concerned, recognizing that all employees .had a key to the building She testified she moved them despite the inconvenience caused by housing them with her current criminal files which were in dated files and which needed to be accessible The inconvenience arose because of her p r act i c'e of locking the cabinet when she was away from her desk which necessitated other staff members who needed access to the criminal files seeking her out It was her understanding that all the court staff knew that the search warrants were stored there during the period of time that she elected to keep them there There were two drawers in this filing cabinet, the first holding the current criminal cases; the second, containing the bench warrants Provincial offences were stored in either drawer The top drawer is divided into a front and back section and Ms Walsh chose to store the search warrants in the rear portion of the drawer behind the /' current criminal cases Following this, she asked Ingrid Fummerton to procure a lockable filing cabinet for the search warrants,; it arrived approximately a month later ~ Ms Walsh related a second incident which concerned her It took place during the period when all search warrants were being sealed A Pol ice Officer arrived at the counter "to see Judge I Clarke to seal a warrant" She escorted the Officer to the Judge's Chambers, left him there with the Judge and returned to 16 -- ( ( pick up the search w~rrant in order to put it away At that time, it would have been stored in the Family Court vault and as Ingrid Fummerton and Kathleen Holmquist had both left she was unable to gain entry to the vault Finding that she could not store it in the vault, she put it in the lockable filing cabinet d r a we r at her desk She testified that she placed the sealed search warrant which was the only one in the brown envelope, separately, in the back section of the drawer and left the drawer open Ms Walsh testified that the warrants can be sealed I permanently or be designated to be open on a specific date The I front of the brown envelope could be blank or could have a sealing date or a JUdge's comment, while the back would have the Judge's initials across the seal There would be no information about the individual who is the subject of the warrant on the envelope She stated that she "placed the brown e,nvelope level with the files so it fit in with the other search warrants" and would have filed it by month According to her testimony, she and Ms Auger-Beaulieu were in the office and Ms Auger-Beaulieu was at the desk Ms Walsh "asked her if she needed something and she said "no" " Ms Walsh recounted that she herself then went away briefly down the hall~ returning in about a minute and she noted that "the brown envelope [containing the search warrantJ was about 1 inch out of the file It was obvious to her that it had been moved The envelope was still sealed when she saw it No one else, she testified would have need to go into the d r a we r unless it was someone who was relieving her in her absence She chose to say nothing to Ms Auger-Beaulieu Certain that she had put t~is search warrant level with the others, ,she reported to Judge Clarke, that someone had been ir the search warrants She testified initially t,hat he gave no response but later recalled that he commented that someone was seeking useless information for an improper purpose She returned to her desk Ms Walsh acknowledged in cross- examination that if Ms Auger-Beaulieu had required current criminal files, it would have been necessary for her to go into 17 u_ C,. (, I that drawer and that office staff did not always ask her prior to going into this filing drawer, although if she were present, they normally would She also testified that the area is not secure and that there was a possibility that other staff could have entered the area in her absence Lyane Quessy te,s t if i ed that she wOuld go to the filing cabinet containing the current criminal files, numerous times every day and that she had never seen the search warrants stored with the current criminal files She was certain that had they been she would have seen them Ms Quessy stated, as well, that it was no unusual for comments to be made amongst staff concerning search warrants and that there had been no directive or comment from the Employer indicating that this was, inappropriate Ms Auger-Beaulieu testified that none'- of her duties involved search warrants and that although she had seen blank search warrants, she had never seen one filled out She also testified that there had bee!l'l previous casual comments about search warrants amongst the administrative staff within the office She was unable to recall any of the incidents to whi9h Marion Walsh testified with respect to the Cr iminal Court files, and denied working at Ms Walsh's desk or looking over her shoulder Taped Telephone Conversations The Employer introduced as evidence, tapes, and at the request, of the Board, transcripts of those tapes of telephone conversations into and, out of the residencel of Mr Wally Kis on February 24 and 26, 1992 Also submitted was an earlier transcript of a conversation of February 26th and a list of contacts made by both Ms Auge,r-Beaul ieu and M Beaulieu to the Kis/Sampara residence from November 26, 1991 to February 29, 1992 headed ANNIE AUGER and prepared by Constable Davis as a reference 18 \ --.----- - 4~ ( \ to use in speaking with Counsel for the Employer Copies of the various portions of the Tape Interception Log maintained by the Interception Team on the telephone of Wally Kis between September 16, 1991 to March 17, 1992 also came to the Board as the result of a mutu~lly requested order This consists of 81 pages between pages 6 and 1,785 which were selected for their potential \ the duplication between relevance to case at hand There is some the contacts noted in the list entitled ANNIE AUGER and the portions of the Tape Interception Log which were submitted I I The transcripts which were entered as evidence consist of 7 ,) conversations held on the afternoon of February 24, 1992, the day of the search warrant incident at the Criminal Court All the calls are made to or from the Kis/Sampara residence and were as follows 1440 hours Rene Beaulieu calling, Wendy Sampara answering and talking M Beaulieu looking for Wally Kis 1444 hours Rene Beaulieu calling, Wendy Sampara answering and talking M Beaulieu asking about supper tonight 1530 hours Wendy Sampara calling, Unknown male answering, Sandy talking Ms Sampara looking for Wally Kis 1602 hours Wendy Sampara calling, David Sampara answering and talking Ms Sampara looking for Wally Kis 1655 hours Wendy Sampara calling, Unknown male answering, Sandy talking Ms Sampara looking for Wally Kis 1714 hours Wa lly Kis calling, Wendy Sampara answering and I talking Ms Sampara telling Wally Kis to get home because she needs to talk to him right away 1717 hours Annie Auger-Beaulieu calling, Wendy Sampara answering and talking Conversation re children, a trip to McDonald's, Ms Auger- Beaulieu's supper plans and last weekend 19 _u ( ('- . ' ""__. ) i On February 26, 1992 there was a conversation at 1109 hours which involved Raymond Kis (brother of Wally Kis) telephoning, Wendy Sampara answering, Wally Kis talking and Ms Sampara co~enting in the background It is the interpretation of these conversations by Constable Davis which is the crux of the Employer's case and the transcripts of the tapes prepared on March 11, 1992, the first day of the hearing, are reprod~ced below J Monday, February 24, 1992 1440 hours ( INCOMING) SAMPARA Hello? '-..- RENE Hi Wendy SAMPARA Hi RENE Is he home? SAMPARA Hang on S!top it What? RENE Is he home? SAMPARA No Who's this? RENE Rene SAMPARA I can't hea1r RENE It's Rene SAMPARA Oh No, he's not home RENE Do you know where he's at? SAMPARA Not a clue .../ RENE Hu-hum SAMPARA Probably home in a couple of hours Any messages? REIjE Yes, tell hli'm to give me a c<;ill SAMPARA Yeah Does he know where to get a hold of you? RENE I'm at the shop, yeah SAMPARA Oh, okay RENE Okay, bye SAMPARA Okay, bye 20 /"" ( '(; ~ f.i' ( 1444 hours (INCOMING) SAMPARA Hello RENE Hi SAMPARA Hi RENE It's me aga1in Did he tell you supper was on tonight? SAMPARA I haven't got a clue RENE Oh, okay I'll get a hold of him He had told me that ah, supper was on tonight SAMPARA Who is this? RENE It's Rene SAMPARA Rene? RENE Yeah SAMPARA. oh I don't know RENE Okay, I'll get a hold of him SAMPARA,: Okay ~ye RENE Bye 1530 hours (OUTGOING) J \ UNKNOWN MALE Hello SAMPARA Hi Is Sandy home [sic] UNKNOWN MALE Yeah SANDY Yeah? SAMPARA The old man been around there>? SANDY No, I haven't seen him all day SAMPARA He's not working out in the garage eh? ) S AN,DY No, there's nobody in the garage SAMPARA Oh, okay SANDY No SAMPARA He's supposed to be getting that car going SANDY Yeahr no I fuaven't seen or heard anybody I all day 21 \ ( ( .. SAMP ARA Okay If he does, tell him to phone right away SANDY Okay SAMPARA Bye SANDY Bye 1602 hours (OUTGOING) '" DAVID Hello SAMPARA Hi DAVID Hello SAMPARA You haven't talked to Wally at all eh? DAVID No SAMPARA I'm trying to get a hold of him DAVID Uh-huh? SAMPARA I'm trying to get a hold of him like quick DAVID No, I haven't heard from him yet? SAMPARA Dan hasn't called you back? DAVID. No SAMP ARA: No? I thought Wally might have phoned him already DAVID Eh? SAMPARA Maybe Wally might have met up wi th him already? \ , DAVID I don't know SAMPARA Oh, okay If he happens DAVID What? SAMPARA If Wally happens to come by, tell him to ; phone me right away DAVID Yeah SAMPARA Okay, bye DAVID Bye 1655 hours (OUTGOING) UNKNOWN MALE Hello 42 -- -, -- ( ,,- ; ! '""i', SAMPARA Hi Is Sandy there'? UNKNOWN MALE: Yeah, just a minute SANDY Hello SAMPARA Hi It's me again SANDY Hi SAMPARA Do you have any idea what Debbie Z's number is? SANDY No, I don't They never gave it to us I yet SAMPARA Me neither I SANDY I t h i nk Peter told everybody in the garage at one time but I don't know I don't remember SAMPARA Oh, fuck I'm trying to get a hold of him, like now is too late SANDY Eh? SAMPARA I'm trying to get a hold of him right away SANDY Oh yet [sic] SAMPARA Oh, okay SANDY We 11 , I don't know I can't help you there dear SAMPARA Okay, thanks SANDY Okay, bye 1714 hours (INCOMING) WALLY KIS How you doing? SAMPARA I'm looking for you WALLY KIS Why? SAMPARA Because, I have to talk to you, like right away WALLY KIS Why? SAMPARA Are you coming back here? WALLY KIS Yeah SAMPARA Right away? 23 ------------- - ~ r C. ( """..1"'- I I I i WALLY KIS Uh-hum I SAMPARA L~ke I think you'll want to fucking hear I w~at ,I have to say to you as soon as you I f~cking can get your ass wherever in the I h111 you are out of there WALLY KIS Ufu-hum Okay 1 SAMPARA Hurry up I'm waiting for you I've ! b~en looking for a fucking three hours WALLY KIS Alright SAMPARA Bye I I I I 1717 hours (INCOMING) SAMPARA Hi I AUGER Hi How are you? ! SAMPARA Nd>t bad I tried phoning you i AUGER No? Were you? I SAMPARA Yeah What's up? AUGER N0t much So you're going to come into town I sAortly or soon? I SAMPARA Well Nicki's crying that she wants/McDonald's i h~re so I ain't bothering cooking so I guess I I I~ll have to take say good-bye [sic] and I ,---- vis it [sic] She wants to see the kids I , I AUGER Yeah, okay I I SAMPARA Uhm , I AUGER o~ay Yes, I know SAMPARA Nb, I was going say [sic], what happened? I I forgot to phone you back on the weekend I WDat did you end up doing? I AUGER N~, that's okay No, I just stayed home SAMPARA Y~ah, eh? Yeah, because I ended up wi th a j , d i nne r guest here and whatever and fuck, I I had a lot on my mind all weekend AUGER Yeah SAMPARA F~milY shit But anyways, yeah, I'm just I J 24 I I ! - - (" i ( '(:,,'i I I i waiting, sitting around here right now and , I~m watching a show AUGER Y~ah, well, 1 just came anyways so I'm going I to make supper A quick supper for the kids I I a~yways I well she wants to to SAMPARA Y~ah Okay, go I I around the McDonald's so i f we're i I I neighbourh00d we'll stop by and visit I ! ' AUGER Okay SAMPARA I bye o~ay, AUGER Okay, bye-bye I I ! I I Wednesday, February 2~, 1992 I i I 1109 hours (INCOMING) SAMPARA Hello RAYMOND KIS Wa lly I SAMPARA Hold on Wally, your brother Are you going I I i ' tq phone him back ? I I WALLY KIS H~llo RAYMOND KIS w~at you doing? WALLY KIS Nothing, just getting up , I RAYMOND KIS Where's your buddy? WALLY KIS Huh? RAYMOND KIS Where's Pete? WALLY KIS H~re i RAYMOND KIS On he's there? I WALLY KIS Yeah Why? RAYMOND KIS D~dhe get that windshield? WAL,LYKIS He didn't have coverage I RAYMOND KIS Well I know WALLY KIS You should have told him RAYMOND KIS You gotta pay? WALLY KIS Eh? RAYMOND KIS You gotta pay? I WALLY KIS No '- 25 ) ~~ [7 f': (, \> ;; I RAYMOND KIS Oh I see WALLY KIS Why? RAYMOND KIS I just wondered WALLY KIS Oh What are you doing today? Coming out? RAYMOND KIS Why? WALLY KIS I don't know It looks like a nice day, take \ ) your kids for a skidoo RAYMOND KIS No, I'm busy WALLY KIS Doing what? RAYMOND KIS I don't know Lots of work here WALLY KIS Eh? RAYMOND KIS Lots of work here WALLY KIS Oh yeah Well I'm just waiting for my visitors RAYMOND KIS Who's that? WALLY KIS The police RAYMOND KIS Police? WALLY KIS Yeah RAYMOND KIS Why? WALLY KIS Oh I guess they're investigating that- what's his name, from that place eh RAYMOND KIS Who? WALLY KIS They're supposed to have a warrant there to come and search the house a couple of days ago RAYMOND KIS Uwe? WALLY KIS Yeah RAYMOND KIS Oh yeah WALLY KIS And then Pete, they phoned Pete today and now he's got to go down there RAYMOND KIS Go down where? WALLY KIS The cop shop They want to talk to him RAYMOND KIS Pete? WALLY KIS Yeah RAYMOND KIS Hum 26 \ \I (- ( WALLY KIS But they were supposed to come out here the other day here and SAMPARA Wally, why don't you fucking slice your own face WALLY KIS Shut the fUGk up SAMPARA No, that~s what I'm telling you WALLY KI-S But anyway SAMPARA (inaudible) WALLY KIS I Oh well SAMPARA He's not supposed to know RAYMOND KIS Anyways WALLY KIS Eh? I RAYMOND KIS Take it easy then I WALLY KIS Okay (' I I RAYMOND KIS Okay I WALLY KIS Bye I RAYMOND KIS Bye I There is a second transcript of the February 26th conversation which was prepared several months earlier and by a different individual It is included because, although it may be a duplication, the comparison illustrates the discrepancies which ) can occur during the transcription process WENDY Hello RAYMOND Wally WENDY (Background - Willis it's your brother you didn't phone him back) WALLY Hello RAYMOND What you doing WALLY Nothing just ah getting up RAYMOND Where's your buddy WALLY Huh I RAYMOND Where's Pete WALLY Here RAYMOND Where's there 27 '-- -- - - -~ - - ----" -------..---- (' C . ,,":'. I J I WALL Y Here why RAYMOND Did he get that windshield WALLY You didn't have coverage RAYMOND I know WALLY Eh RAYMOND Did you go and pay WALLY Eh RAYMOND You gotta pay WALLY No RAYMOND Oh I see WALLY Why RAYMOND t just wondered WALLY Ah what are you doing today coming out RAYMOND Why WALLY I don't know it's nice day to take your kids for skidooing RAYMOND Nah I'm busy here WALL Y Doing what RAYMOND I don't know lot's of work here WALL Y Eh RAYMOND Lot's of work here WALL Y Oh yeah I'm just waiting for my visitors RAYMOND Who's that WALLY Police RAYMOND Police ( WALLY Yeah RAYMOND Why WALLY Ah I guess they're investigating that that , what's his name for the place eh RAYMOND Who WALLY Supposed to have a warrant there to come and search the house yet couple days ago RAYMOND Uwe WALLY Yeah RAYMOND Oh yeah 28 (' ( .... .v' I WALLY Then Pete's going phone Pete today now he's I gotta go down there RAYMOND Go down where WALLY Cop shop they want to talk to him RAYMOND Pete WALLY Yeah RAYMOND Hah WALLY But they were supposed to come out here the other day I heard WENDY (Background - Wally why don't you fuckin slap your own face) WALLY Shut the fuck up WENDY t (Background - no (unintelligible) telling you stupid) \ , WALL Y Hah anyways RAYMOND Oh well WALLY Anyways RAYMOND Eh WENDY He's not supposed to know RAYMOND Take it easy then WALL Y Okay RAYMOND Okay bye WAllY Bye The Tape Interception Log is a running log of those calls coming into, in this case, the Kis/Sampara residence and those going out Those which are incoming are noted as such and do not have the source telephone number, those going out do have the number d~aled noted The time and type of each call is noted. ,A call may be classified as misdialed, bUSYi no answer etc and in cases in which the call is complete, the substance of relevant conversation is noted in summary form by th~ officer whose job it is to monitor the calls at the particular time Non-relevant conversation is noted as such It is possible to draw several general conclusions from these Tape Interception Logs but as 29 ~, -- ("" ':.I' evidence they have limited value They are the following - Wendy Sampara frequently makes outgoing calls - Wendy Sampara receives numerous incoming calls and a large number of these are individuals looking for Wally Kis - It is not unusual for evening meal plans to be the subject of conversations with a number of different individuals p - It is not unusual for Ms Sampara to make several telephone calls within the space of a few hours to try and locate Wally Kis These calls are often noted as angry - Calls to both Annie Auger-Beaulieu and Rene Beaulieu were made to the same number from September 6, 1991 to March 16, 1992 Argument ) The Employer takes the position that the Grievor has broken her oath of confidentiali.ty, that therefore there has been a breach of the employment relationship and that in this instance, the Employer had no alternative but to dismiss her Counsel for the Employer, Mr Michael Fleishman, asks that the dismissal be upheld If the panel is not prepared to uphold the dismissal, then he takes the position that the Grievor's entitlement is limited to 2,..weeks salary according to the Emolovment Standards Act and to her second contract which stipulates this The Union denies that the Grievor breached the Oa'th of Secrecy and Office in any way and in particular, that she forewarned Wally Kis directly or indirectly of the search warrant's pending execution Mr Larry Steinberg, Counsel for the Union, asks that the G:rievor be. reinstated and fully compensated in keeping with GSB It 531/82 and 532/82 Miller. McPhail and th~ Ministry of Corrections and GSB It 250/88 Ohrt and 30 Cf C the Ministry of . Health, which permitted reinstatement of and full compensation to contract employees, a remedy which Mr Fleishman argues has been rarely used since the issuanc~e of that award Mr Fleishman noted that the Grievor began work at the Court two months prior to the sealing of the search warrants and that she was there during the time that a breach of security was identified and the sealing of warrants was addressed, and further, that the number of individuals who knew of the search I warrant on which the Grievor filled in the time was restricted to Judge Clarke, Consta,ble Davis, the members of the investigative team, the Grievor's friend, and co-worker at that time, Lyanne Quessy, and Agnew Johnston, to whom the Grievor\ mentioned the incident In Mr Fleishman's opinion, it is unlikely that Lyane Quessy would have breached her oath of confidence, and there is no suggestion 'that Agnew Johnston did so He went on to summarize the evidence He noted that a telephone call from Rene Beaulieu to Wendy Sampa~a took place approximately 10 minutes after the Grievor had access to the search warrant Further, during this telephone call which was made os'tensibly for the purpose of enquiring about- the fami lies getting together for supper, Mr Beaulieu does not even mention supper to Ms Sampara and then, about 4 minutes la te'r , calls back and inquires about supper of which Ms Sampara has no knowledge Then, Ms Sampara speaks to the Grievor about taking the children out to McDonald's for supper and makes no mention what~pever of supper guests or getting tog~ther for supper This failure to mention supper, Mr FleishmaJl argues, lends credibility to Constable Davis's theory that "supper" is a warning in code for Wa lly Kis to expect company, namely the police This is confirmed, \ he submits, by Constable Davis's 6- year experience during which he has learned that people in the drug trade w.ill never talk business on the telephone The transcripts demonstrate Wendy Sampara's urgent need to get in touch with Wally Kis which began after Rene 31 - ( -p ,r-- ~ (", Beaulieu's telephone call at 1440 hours There was no evidence, Mr Fleishman noted, of the time when Wally Kis arrived home that evening or of what he said However, in the conversation between Wally Kis and his brother, Raymond Kis, on February 26th, it is clear that Wally Kis knew that his residence was to be searched by the Police two days before, on February 24th, the day the search warrant was typed by the Grievor The mention by Raymond Kis of an individual whose arrest on January 8th, 1992 was conf irmed by reference t,o Constable Davis' s notebook, cannot, he submitted, reasonably have been related to the warrant Wally Kis, here, refers to "here" and, at the time of the taping of the teleph.one call, he was at his residence Wendy ! comment "He's not supposed to know", is to Sampara's open interpretation but Constable Davis's interpretation that Wally Kis is not supposed to know because he learned via a leak from the Grievor at Court, through her spouse is reasonable Because the evidence is circumstantial, Mr F'leishman submi tted, it is particularly important that the Board takes into account;, all the evidence For instance, that of Marion Walsh with respect to the open door of the filing cabinet where search warrants were being stored and the interference which she peirce i ved with the search warrants both of which the Grievor denied must be considered Furthermore, the incidents which led Constable Davis to his conclusion - the observation of the Grievor speaking with Wally Kis at the Court, and her subsequent behaviour, and the telephone calls from Wally Kis to the Grievor on December 16th and January 9th, both following major busts, and both denied by the Grievor should not be treated lightly Taking into account all the evidence, the Gr i evor 's acknowledged friendship with Wendy Sampara whom she would wish to protect, her failure to provide an explanation during her meeting with Larry Kaplanis, and her failure to deny or request particulars, it is reasonable to arrive at the conclusion that 32 . -- I \, she was responsible for this information leak ,Mr Fleishman addressed the standard of proof to be applied in this case and set out two schools of thought - the balance of probabilities - clear and convincing proof on the balance of probabilities The standard of beyond a reasonable doubt is not to be applied, he submitted, notwithstanding the fact that the conduct which is aL\.eged against the Grievor would have been c+iminal if the v warrant had been signed and true It is clear, Mr Fleishman submitted, tha,t the Gr ievor -knew that she had signed an oath of confidentiality and secrecy and that she understood it On the facts, it is evident that the Grievor leaked information and such conduct warrants the severest penalty, that of dismissal Mr Larry Steinberg, Counsel for the Union, submitted that the evidence in this case is entirely circumstantial and ;tha t this is particularly true with respect to the critical aspects which are based on hearsay The onus, he stated, is on the Employer to prove its case, based on clear, convincing and cogent I Grievor, he evidence, on the balance of probabilities The argued, was dismissed for the reasons set out in her letter of dismissal, that is, the release of confidential information to the intended recipient and it is proof of these reasons that is required for the Employer to meet its onus The parties agree, he stated, that the Grievor was a Court Clerk and that she filled 'out the search warrant in question They further agree that the Grievor knew Wendy Sampara and Wally Kis and that her estranged spouse, Rene Beaulieu knew them as well ) Mr Steinberg considered the tapes of the wire-tapped telephone conversations and submitted that there are only 3 which 33 -- .----.----- ( I cannot be classified as hearsay They are the two conversations between Wendy Sampara and Rene Beaulieu to- which M Beaulieu testified and the conversation between the Grievor and Wendy Sampara which began on February 24, 1992 at 1717 hours, to which the Grievor testified Beyond that, he submitted, there is no evidence before the Board upon which it can rely to make critical findings of fact because the other telephone evidence is pure hearsay and there is considerable jurisprudence which states that critical findings of fact cannot be based on such evidence Mr Steinberg went onto evaluate the credibility of the witnesses and their evidence He particularly noted that Mr Kaplanis testified that his only reason for dismissal was his belief that Ms Auger-Beaulieu advised Wally Kis of the February 24th search warrant and that he based his belief, solely on what he had been told by Constable Davis Both he and Ms Fummerton testified that they knew of' no reason why the Grievor's contract would not have been renewed, had this allegation not been brought forth The evidence of Ms Walsh, Mr steinberg characterized as anecdotal, and based on suspicion which did not Iiesult in any direct evidence of wrong-doing on the part of the Grievor Mr Steinberg then directed himself to the evidence of Constable Davis and submitted that the evidence of this witness highlights the problem with the evidence of the Employer's case, that is, that is almost totally hearsay and is based on conjecture, contextual analysis and in part, poor quality investigative work Mr Steinberg submitted that the Board is being asked to take a major leap, solely on the basis of Constable Davis's theory of which the Constable was convinced from the outset Constable Davis was unable to give time, dates an~ contacts with respect to the other leaked warrants and it, is not clear wheth~r these warrants were issued prior to or after the Grievor's arrival in the Criminal Court office Constable Davis, Mr Steinberg submitted, was willing to assume and from there make a judgment without any evidence upon which to base 34 ( ~ ( 7' this judgement According to Mr steinberg, he had only heard, he did not know Counsel then considered the Constable's analysis of the taped telephone conversations, particularly that of his theory of the use of the word 'supper' as a code Mr Steinberg pointed out that the word 'supper' is used in a number of conversations and there is no reason to interE>ret it as a code word He noted that when confronted with the fact that the search warrant was from 2 30 p m to 4 30 P m and that the normal supper hour is about 5 00 P m to 6 00 pm , the Constable still held on to his theory and was not willing to countenance anything else What good, he posed, is such a warning? It is on this critical point, Mr Steinbe:r;g maintains, that the whole basis for the theory fails There ,are as we 11 , other reasons, he argued The Employer's witness, Rene Beaulieu, testified that he received no communication from the Gri~voi with respect to the February 24th search warrant and that supper was indeed the subject of the telephone conversation with Wendy Sampara and Wally Kis Counsel for the Employer ca nnot, Mr Steinberg submitted, impeach the credibility of his own wi tness and is left witl1 this evidence Mr Steinberg also questioned the degree of isolation of the search warrant, noting that the group had now expanded to include at least ( Agnew Johnston. went to Lyane Quessy and He on argue that the telephone conversation of February 26, 1992, was critical but that we do not know whether Mr K is was "having fun with the cops or not", since he did not testify and the Employer tried to serve him with a subpoena to attend only the day before This conyersati on cannot be relied upon to prove an absolutely critical fact, he submitted Other interpretations are possible but all would be speculative, although not beyond the realm of believability The problem with Constable Davis's testimony, in Mr Steinberg's view, is not so much one of credibility as one of judgement, the conclusions to which he jumped For example, the \ I information from the investigator about the Grievor speaking to 35 ---------- ---- ( ( \ Wa lly Kis at the Court led to the assumption that it was cause for suspicion, when in fact, the \Grievor in direct testimony, gave evidence which demonstrated that there was no cause for suspicion Without the hearsay evidence, the Employer does not, Mr Steinberg submitted, come close to proving its case Furthermore, \ the Board is being asked to rely on circumstantial evidence which is based on hearsay evidence, rather than on direct evidence Hearsay evidence can never, Mr Steinberg submitted amount to clear and convincing proof of anything and no conclusion of wrongdoing on the part of the Grievor is possible \ Decision The Grievor was dismissed on April 7, 1992 for having breached her Oath of Office Secrecy and trust by having been involved in releasing confidential information regarding issuance of ,a search warrant to the intended recipient of the search warrant for the purpose of forewarning him of its execution --' J The alleged incident took place on February 24, 1992 and~ involved a search warrant for the premises of Mr Wally Kip 'which ran from 1430 hours until 1630 hours the same day The warrant, which was never issued, was arranged by Constable Davis with the knowledge of His Honour Judge Clarke and the members of his investigative team, and typed in part by Ms Auger-Beaulieu The onus is on the Employer to prove that the Grievor, having knowledge of the search warrant took some action to warn, either directly or indirectly, the subject of the warrant, Mr Kis The crucial question is did Ms Auger-Beaulieu make a telephone call to her estranged spouse Rene Beaulieu between 1430 and 1440 hours, as alleged, to have him warn Wally Kis The Grievor denies that she did so 36 (' C In arriving at its conclusion, the Board considered two questions (a) Did Constable Davis have reasonable grounds to suspect that the Grievor was a possible source of information leaks at the Criminal Court ? (b) Is there clear and cogent evidence to demonstrate on the balance of probabilities that Ms Auger-Beaulieu warned Mr Kis either directly or indirectly of the search warrant of February 24th ? In demanding this standard of proof, the Board is following the \ jurisprudence adopted by the Justices in Bond v. New Brunswick , (Board of Management) . (1992) 95 D L R (4th) 733, (C A ) at p 738, and delivered by RyanJ A I accept reasonable approach that which the i as a I adjudicator cited fromp 266 of Palmer and Palmer from Re Indusmin Ltd. and United Cement. Lime and Gypsum Workers International Union. Local 488 (1978) 20 L.A.C. (2d) 87 at o. 89. as follows. "Thus, as fairness and common sense would require, the standard of ~rDbability applied in arbitration proceedings may increase with the gravity of the consequences that will flow from an affirmative finding " J The evidence on which the Employer bases its case is for the i most part, cir,cumstantial, and relies primarily on the interpretation, by Constable Davis of telephone conversations on February 24 and 26, 1992 which were intercepted, recorded and transcribed within the Police / A finding against the Department Grievor in this case, would result in her loss of the remaining 51 weeks of her contract and the earnings flowing therefrom, the opportunity to have her contract renewed, and her standing as a para-legal which could affect her future employment within the justice system and the legal community Did Constable Davis have reasonable grounds to suspect that the Grievor was a possible source of information leaks at the Criminal Court? It is the conclusion of this Board that he did have reaso,nable grounds for this suspicion based on the evidence presented~ The 37 - - ~. -- ~- ~. ( l~" Grievor testified to her relationship with Wally Kis as one of landlord and tenant, then as her spouse's friend whom she did not really know and, finally as her friend's common law spouse who ~ never socialized She did, however, acknowledge receiving telephone calls from him although she could not recall them Rene 'Beaul ieu, her spouse, testified that the Beaulieus and the Kis/Samparas would frequently get together for fami ly suppers Although Ms Auger-Beaulieu may not have had a direct personal relationship with Wally Kis, the accumulative effect of her indirect relationships is such that it would not unreasonably give rise to concern on the part of an investigative officer, believing that Ms Auger-Beaulieu had access to documeRts \ relating to his investigation In arriving at this conclusion, the Boa'rd has not found it necessary to rely on the evidence of Ms Walsh's suspicions or of Constable Davis's investigator's report of his observation of Ms ( Auger-Beaulieu conversing with Wa lly Kis on one occasion at the Court House , The fact that Ms Auger-Beaulieu, an employee of the Ministry of the Attorney-General, had an on-going, even though, indirect relationship with an individual who i"s a target of a current drug investigation and whose associates are also in many cases subjects of the same investigations, does give cause for concern Mr Steinberg remarked that Ms Auger-Beaul~eu chose her friends unwisely As a law clerk, trained as a para-legal, who is in a position of trust with the Ministry of the Attorney- General" Ms Auger-Beaulieu finds herself in a position in which socializing with the criminal element is almost bound to result in suspicion falling upon her Is there clear and cogent evidence to demonstrate on a balance of probabilities that Ms Auger-Beaul ieu warned Mr Kis either directly or indirectly of the search warrant'? To prove that such evidence exists, the Employer must establish 38 ...."'-- ~. ( that the Grievor initiated a warning to Wally Kis on February 24, 1992, following Constable Davis's cont~ct with her on that day Ms Auger-Beaulieu acknowledges that she typed the time on the warrant at the request of Constable Davis and that she was aware that it was for Wa lly Kis She recalls that this took place at 2 00 P m (1400 hours) Constable Davis, with his notebook to refer to, puts the time o,f his request to Ms Auger- Beaulieu at 1430 hours The Board prefers the evidence of Constable Davis in this regard, given that he was able to confirm it with th~ written notation in his police notebook Ms Auger-Beaulieu states that she announced to the other 4 individuals who were in the Court administrative office at the time, the fact that she had been asked to type a search warrant I especially which was unusual in and of itself, and that this was strange since it was for her landlord That she did so is corroborated by the evidense of her co-worker and friend, Lyane Quessy, whom the Board considers a credible witness The Board 'I accepts this corroborated evidence The action increased the number of individuals who were a wa r e of the search warrant As well, Ms Auger-Beaulieu testified that she mentioned the incident to Mr Agnew Johnston, Assistant Crown Attorney and friend, with whom she was speaking later in the afternoon concerning another business mat,ter This increased still further the number w!1o were a wa r e still further, and the Board accepts the Grievor's evidence in this regard There was direct evidence from three sources with respect to the number of individuals who were in the administrative office when Constable Davis brought the search warrant to Ms Auger- Beaulieu He testified that Ms Auger-Beaulieu was alone; Ms Auger-Beaulieu test.ified that she and four other administrative staff were there, and Lyane Quessy gave evidence that she could not recall precisely who or how many were there She was 39 ( G " ...~..:::t..;., certain, however, that as well as the Grievor, she herself and a colleague whom she named specifically, were present The Board prefers the evidence of Ms Quessy and finds that at least three of the five administrative clerks were in the office ~t the time of the incident Constable Davis's perception that' Ms Auger- Beaulieu was alone would have afforded her the privacy to make a personal telephone call, whereas she would not have had this pr i vacy when, as the Board has found, others were in the office, although she might still have telephoned Constable Dav i s testified that he observed the Grievor on \ the telephone as he left the Court House following his presentation of the search warrant to Ms Auger-Beaulieu at 1430 hours and his two-minute visit to the Judge's Chambers ,. He acknowledges that he does not know if she had placed this telephone call, and if she did, to whom it was placed, or if she was receiving a telephone call There was no evidence tha,t he had recorded this potentially crucial fact in his note book Ms Auger-Beaulieu testified that she made one telephone call after Constable ,Davis's departure and that was a work-related call to Mr Agnew Johnston at about for~y minutes after Constable Davis's I presence at her desk She was not asked whether she herself had received any telephone calls or whether she had answered any work-related telephone calls that afternoon There was also no evidence offered as to the telephone answering practices in the office, if for instance, they were shared or were the \ responsibility of a single ind~vidual No further evidence was offered as to the location from which Ms Auger-Beaulieu made this telephone call, except to say that it wa's in the administrative office We do no.t know if a telephone was located at the Grievor's desk The Board has concluded that the Employer has not produced clear and cogent evidence to prove that the Grievor made an outgoing telephone call shortly after 1430 hours, nor that contact was made with Rene Beaulieu at that time 40 (; - r ( "'~" ""., It is Constable Davis's firm belief that the telephone calls placed by Rene Beaulieu to the Kis/Sampara residence at 1440 and 1444 hours on February 24, 1992 were intended to warn Mr Kis that the police would be coming to search his residence Based on his six years experience as a wire-tap investigator, he made the observation that persons who are involved in the narcotics business and who know they are likely to be the subjects of investigations and wiretaps, use code words and frequently change these Building on his knowledge that the Grievor had the search warrant inf'ormation ava,ilable to her, that he had observed her on the telephone and then, that her husband, within the space of a few minutes, telephoned the Kis/Sampar'a residence, Constable Davis concluded that the word "supper" translated into "expecting company" which in turn meant the police were coming There is no mention of "supper" in the first telephone call and one would expect that if Mr Beaulieu had a message of such urgency to de liver, he would do so promptly and would not forget such an important item and need to call back with the warning Further, when Ms Sampara says Mr Kis will "Probably be home in a couple of hours Any message?", Mr Beaulieu does not respond with any "- urgency but replies simply, "Tell him to give me a call " The second time he calls, he asks " "Did he tell you supper was on tonight?" Ms Sampara replies, "I haven't got a clue" Mr Beaulieu then says, "Oh, okay I'll get a hold of him He told me that uh, supper was on tonight" Mr Beaulieu, after identifying himself, states "i'll get hold of him " and does not suggest that Ms Sampara should Nor does she suggest that she will In cross examination, Constable Davis acknowledged that the otl)er uses of "supper" in the eight pages of Tape Interception Logs did not constitute a code Rene Beaulieu testified that he recalled the phone calls vagliely, although he gave no reason why he should remember these rather mundane telephone calls over a year later Constable Davis believes that the next three phone calls 41 I C~,., C . demonstrate a sense of urgency on the part of Ms Sampara to contact Mr Kis FortY-five minutes after receiving two closely- timed telephone calls, Ms Sampara makes the first of three telephone calls It is to a female person, Sandy, looking for Mr Kis The only indication of urgency is in her comment " tell him to phone right away" Thirty minutes later Ms Sampara telephones her brother, stating "I'm trying to get hold of him, like quick" and " tell him to phone me right away" And then, fifty-five minutes later, she telephones Sandy once again and states "~'m trying to get hold of him, like now is too late " and "I'm trying to get hold of him right away " Sixteen minutes later, Mr Kis telephones home to hear that Ms Sampara has been looking for him Her sense of urgency or anger is conveyed in several remarks I'm looking for you I have to talk to you, like right away Right away ? Hurry up I'm wai ting for you I've been looking for a fucking three hours She does not tell him why she needs to talk to him but asks if he is coming home right away It sounds as if she has been desparately looking for Mr Kis, but in fact, in 2 1/2 hours, she has only made 3 telephone calls Three minutes later, she is called by Ms Auger-Beaulieu, / has a domestic chat and spea1ks of " just waiting, sitting around her right now and I'm watching a show" The searching for Mr Kis by Ms Sampara, like the supper references, comes up a number of time s in the Tape Interception Logs and one cannot say that this activity on the part of Ms Sampara is unprecedented The telephone call which Constable Davis believes provides solid confirmation of his theory of the earlier warning telephone 42 -- -_.- -- - -- (f .' ( '. , 'i " calls took place two days later on Wednesday, February 26, 1992 and was recorded at 1109 hours It is a call made by Raymond Kis, brother of Wally Kis According to the conversation, Mr - Kis who is at home and just getting up is "just waiting fnr my visitors", whom he identified as "the police" The relevant parts of the conversation are the following WALLY But they [the police] were supposed It 0 come out here the other day and WENDY Wa lly , why don't you fucking slice your own face WENDY He's not supposed to know The wording on its face seems to indicate that Wa-lly Kis knew, but was not supposed to know, that the police were going to execute a searc::h warrant at his residence on February 24th One must consider, however, the quality of the evidence on which this conclusion is based None of t'he parties to the conversation testified, nor did the investigator/monitor Although the Board did have an opportunity of hearing the tapes and can therefore appreciate the difficulties inherent in interpreting and transcribing, we are left with two transcripts of this conversation which have a number of inconsistencies One of these transcriptions was made on or prior to November 9, 1992 [Exhibit 8 ] and the second 6.ne was made at the time ,of the 'h . The following comparisons will illustrate the earlng difficulties inherent in the transcription process A) Transcript #1 W S Willis it's your brother, you didn't phone him back Transcript #2 W S Wally, your brother Are you going to phone him back? B) 'Dranscript #1 R K Where's there Transcript #2 ,,/ 43 \ ,- (,. \ . " \'. ., R K Oh, he's there? j C) Transcript #1 W K You didn't have coverage Transcript #2 WK He didn't have coverage D) Tr~nscript #1 W K Eh Transcript #2 W K You should have told him E) Transcript #1 R K Did you go and pay Transcript #2 R K You gotta pay? F) Transcript #1 R K You gottapay Transcript #2 R K You gotta pay? G) Transcript #1 R K Nah, I'm busy here Transcript #2 R K No, I'm busy H) Transcript #1 1 W K Ah, I guess they're i.nvestigating that that what's his name for that place eh Transcript #2 W K. Oh, I guess they're investigating that - what's his name, from that place eh I ) Transcript #1 W K Then Pete's going phone Pete to-day now he's gotta go , down there Transcript #2 W K And then Pete, they phoned Pete to-day and now he's got to go down there J) Transcript #1 W K But they were supposed to come out here the other day, I heard 44 ( c-- " (;r- ,~ -t. :'''-'' , "'- - Transcript #2 W K But they were supposed to come out here the other day and K) Transcript #1 W S slap your f<;lce Transcript #2 W S slap your own face L) Transcript #1 W S (Background - no (unintelligible) telling you stupid) Transcript #2 W S No, that's what I'm telling you These discrepancies in the transcripts have been detailed to illustrate the lack of reliability which is inherent in them THe Board recognizes that there are no substantive differences in the lines relied upon The Board has ana lyzed the evidence presented in the telephone transcripts and has recalled the aural submission of the tapes during the hearing There was direct tes'timony only on the Beaulieu part of the first two conversations and the \ Auger-Beaulieu part of the last one, and both of the witnesses denied any coded warning The Employer asks the Board to accept Constable Davis's theory that the second conversation constitutes a coded warning followed by urgent attempts on the part of Wendy Sampara to contact Wa II y Kis to pass on the warning. In the Board's opinion, for the reasons cited above, Constable Davis's "supper" and urgency theories do not stand up to scrutiny The transcript evidence, most of which is hearsay, does not meet the test of clear and cogent evidence on which to base a / critical finding of fact Nor does it prove to the degree required the theory of Constable Davis It does not overcome the fact that the quotations are hearsay and it would be improper of the Board to rely on these as proof of a critical fact 45 L ____ 0. (--- ,. .. i Therefore the Board has concluded that the Employer has not met the onus of proof on a balance of probabilities based on clear and cogent evidence' For the above reasons the grievance succeeds Remedy Counsel for the Employer submits that should the grievance succeed, that the Grievor should not be reinstated, as she is an unclassifi~d employee, and that compensation should be restricted to the two weeks set out in her contract of employment Counsel for the Union submits t,hat if the, grievance succeeds, that the Board has the authority, as set forth in GSB# 531/82 and 532/82 Miller and McPhail, unani~ously confirmed by the Divisional Court and followed subsequently in GSB # 250/88, Ohrt, to both compensate and reinstate an unclassified employee He urges the Board to do so The Board has the authority to the reinstate unclassified employees and this was articulated in the endorsement of Mr Justice White in his dismissal of the a'pplication for judicial review of Miller, MacPhail II, dated September 26, 1986. We are of the opinion that the Grievance Settlmenent Board has jurisdiction under s 19 of the Crown Employees Collective Bargaining Act to ,fashion the remedy it did in favour of the grievors (Reinstatement and compensation1 This Board, however, is of the opinion that the reinstatement of unclassified employees should not occur as a matter of course but only in special circumstances which are justified by the particulars of the situation In the instant case neither Mr Kaplanis, the Acting Regional Director, nor Ms Ingrid Fummerton, the Acting Court Administrator, knew of any reason, other than the case before 46 ? ("'- (--- I " . ~ '1. 'V -'" I ., I' the Board, why Ms Auger-Beaulieu's contract would not have been renewed at the end She had carried "out her duties in a satisfactory manner and her contract had been renewed on February 14, 1992 because he'r performance had shown improvement The Grievor is a para-legal whose position req~ired that she appear regularly in the public forum of the Courtroom and deal directly with members of the justice and legal systems as part of her da i ly duties Further her employment possibilities would normally be within the justice or the legal system To be made whole, the Gr ievor must be cleared of this allegation and be seen to be cleared Compensation alone, does not achieye this end and therefore, the majority of the Board has concluded that special circumstances do exist which are sufficiently compelling I for it to order reinstatement of the Gr-ievor within 30 days of I this decision for the balance of her contract and compensation with interest according to the "Hallowell House" formula for t,he time which she could reason~bly have been assigned to work in the interim The issue of mitigation was not arguea However, the award is to be reduced by any monies the Grievor earned during the time she was not employed by the I Ministry of the Attorney-General F~rther it is the res pons ibi 1 i.ty of the Grievor to report this compensation to any government agency which provided her with income durin9 this time, in order that these agencies can recover any monies which are due them Th~ Board will remain seised of this matter should the parties require its assistance with respect to implementation of its decision - 47 .e,:. c. ( '.""..... Dated at Kingston, this 15th day of October, 1993 ~c&O hair W a1)ki~_____ ~man, ember \ "I Partially Dissent" (attached) M O'Toole, Member . . 48 - ( y - ( -t' 469/92 PARTIAL DISSENT I concur in the majority's determination that on a balance of probabilities the Employer failed to establish just cau~e for the discipline imposed. However, I must dissent from the remedy of re-instatement they have seen fit to grant As stated in smith at pages 10 and 11, such remedy is "extraordinary'" and should only be "rarely" granted for "to do otherwise would be to risk undermining the acknowledged scheme of the Public Service Act," as contained in sections 8 and 9 The majority appear to agree with the above limitation of remedy, although they prefer to substitute "special" for "extraordinary". I am content to adopt 1;he majorityis terminology but , in my opinion, it does not alter the substance of the limitation The majority are satisfied that the grievor's circumstances are special. They do so on the basis that, as an employee in the just:ice system, she must "be seen to be cleared", and that this can only be accomplished by th~ remedy of re-iristatement T};ley are further satisfied that the more limited damages remedy awarded in Smith will not make the grievor whole. In my view, the majority give undue weight to the grievor's status as an employee' in the justice system The grievor essentially performed routine clerical duties The fact that she performed them in a court setting does not confer on her any special status All clerical employees, wherever employed in the public service, are obliged to take the same oath of secrecy as the grievor. Any clerical employee wrongfully discharged for breaching ~uch oath is entitled to "be seen to be cleared" of such allegation. Moreover, the latter end is fully achieved by the granting of a declaration to that effect together with appropriate compensation. It should also be noted that there are circumstances extraneous to the grievor's employment which clearly disentitle her -to special consideration I am referring, of course, to the fact that she chose to socialize outside of work with known criminal elements. As the majority observe at page 38, this was "almost bound to result in suspicion falling upon her." In conclusion, I would have awarded the grievor compensation in a lump sum based upon the period of time remaining in her contract if she had not been dismissed, together with interest 7111 o'j~ M O'Toole, Member \