HomeMy WebLinkAbout2021-2299.Hachey et al.22-06-20 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2021-2299; 2021-2300; 2021-2943
UNION# 2021-0368-0173; 2021-0368-0174; 2021-0368-0223
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Hachey et al) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Dale Hewat
Arbitrator
FOR THE UNION
Robert Healey (Counsel)
Ryder Wright Blair & Holmes LLP
Erin Buchner (Counsel for R. Watt)
Morrison Watts
FOR THE EMPLOYER Peter Dailleboust
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING April 13, 2022 (By videoconference)
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DECISION
[1] This case involves three individual grievances related to discipline and discharge
imposed following an incident involving an inmate that occurred on December 14,
2020 at the Central East Correctional Centre in Lindsay Ontario. Mr. Watt was
terminated from his employment as a Correctional Officer as a result of his actions
on December 14, 2020 and is legally represented by Ms. Buchner. The other two
grievors, Mr. Hachey and Mr. Conway who received a 20-day and 10-day
suspension respectively, are represented by another lawyer, Mr. Healey. The
parties attended a mediation on April 13, 2022 but did not settle their grievances.
Before scheduling the case on the merits, it was decided that a preliminary matter
involving Mr. Watt’s case needed to be heard in order to assist the parties in case
management. At the mediation, a schedule was set for the filing of written
submission, all of which have been submitted.
[2] This decision deals with the Employer’s request for a preliminary ruling on the
available remedies in the hearing of Mr. Watt’s termination grievance. The
Employer asserts that a ruling on remedy now will assist with determining the
scope of evidence required for the hearing and will provide some guidance for
other proceedings occurring at the Workplace Safety and Insurance Board.
The relevant facts are as follows. As a result of his interaction with the inmate on
December 14, 2020, Mr. Watt was charged with and pled guilty to one count of
assault under Section 266 of the Criminal Code, R.S.C, 1985, c. C-46 (“Criminal
Code”) on January 9, 2021. A pre-sentence report was ordered and the matter
was set down for a sentencing hearing on January 25, 2022. At the January 25,
2022 hearing the Judge agreed to order a conditional discharge along with
probation terms that would remain in place for 12 months.
EMPLOYER’S SUBMISSIONS
[3] Because Mr. Watt pled guilty to assault, with respect to his conduct on December
14, 2020, and received a conditional discharge, the Employer is asking me to rule
that my jurisdiction is limited, in the event that I do not uphold the termination and
order reinstatement. In that regard, the Employer states that I may only order
reinstatement to a substantially equivalent position, that being a position not within
the secure part of a correctional facility or any other workplace where there is an
opportunity for Mr. Watt to come into contact with a resident of a facility. The
Employer relies on Sections 7 and 48.1 of the Crown Employees Collective
Bargaining Act, 1993, S.O. 1993, c.38 (“CECBA”).
[4] The Employer notes that a conditional discharge is a finding of guilt that Mr. Watt
assaulted an inmate, contrary to the Criminal Code. In that regard the Employer
asserts that the conditional discharge is conclusive evidence that Mr. Watt
engaged in excessive use of force and points to the following provisions of CECBA
that would limit my jurisdiction to substitute a lesser penalty:
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48.1 (1) If a Crown employee is convicted or discharged of an offence under the
Criminal Code (Canada) in respect of an act or omission that results in discipline
or dismissal and the discipline or dismissal becomes the subject-matter of a
grievance before the Grievance Settlement Board, proof of the employee’s
conviction or discharge shall, after the time for an appeal has expired or, if an
appeal was taken, it was dismissed and no further appeal is available, be taken
by the Grievance Settlement Board as conclusive evidence that the employee
committed the act or omission. 2001, c. 7, s. 18.
Section 7 of CECBA sets out the following:
Restrictions on substituted penalties
Subsection 7(4) states: 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 involves direct responsibility for
or that provides an opportunity for contact with residents in a facility or with a
client if the Board has found that the employee,
(a) has applied force to a resident in a facility or a client, except the minimum
force necessary for self-defense or the defense of another person or necessary
to restrain the resident or client;
Subsection 7(5) of CECBA defines “resident” as: a person who is an inmate,
patient, pupil or resident in or is detained or cared for in a facility. “Facility” is
defined as: a correctional institution under the Ministry of Correctional Services
Act,
Section 7(6) of CECBA does however provide for a substitute penalty where the
Board may reinstate an employee in another substantially equivalent position
with the Crown.
[5] In support of its position the Employer relies on the decision in OPSEU (Maude) v.
Ontario (Community Safety and Correctional Services), 2017 CanLII 7050 (ON
GSB). In that case, the Grievor was terminated from his position as a Corrections
Officer because he failed to record in his occurrence report that he punched an
inmate and then later admitted to striking the inmate. While Arbitrator Petryshen
determined, due to mitigating circumstances, that there were grounds to reinstate
the Grievor, he concluded that his remedial jurisdiction to reinstate the Grievor
back to his former position was limited by Section 7(4) of CECBA. In deciding what
was a substantially equivalent position, Arbitrator Petryshen concluded that any
position in the secure part of the facility was beyond the jurisdiction of the GSB to
order an employee subject to section 7(4) of CECBA, into. Paragraph 35 of that
decision is set out here:
If Mr. Maude was reinstated to a position in Control at the HWDC, his duties
would include the control of grille doors for the purpose of controlling inmate
movement. He would also have the general obligation to monitor inmates and
staff and to report on conduct in contravention of standing orders and Ministry
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policy. I agree with observation of the Board in Travers that the performance of
such duties in Control is evidence that the employee has a direct responsibility
for inmates. Irrespective of my view as to whether it would be otherwise
appropriate in these circumstances to direct the reinstatement of Mr. Maude to a
position in Control, I simply do not have the authority to do so given the
restriction on my general power to substitute a different penalty contained in
section 7(4) of CECBA.
UNION’S SUBMISSIONS
[6] The Union opposes the Employer’s motion arguing that despite Mr. Watt’s guilty
plea and conditional discharge, the question of whether he engaged in the use of
excessive force is a live issue for me to determine and, therefore, my remedial
power should not be restricted. In this regard, the Union disputes that the assault
charge and corresponding guilty plea constitute conclusive evidence of excessive
use of force that Mr. Watt engaged in the act(s) that resulted in his dismissal,
thereby limiting my ability to substitute a lesser penalty.
[7] The Union also takes issue with the Employer’s suggestion that this decision might
inform or have an impact on proceedings before the Workplace Safety and
Insurance Board. The Union submits that in very specific circumstances CECBA
restricts the Grievance Settlement Board’s ability to make certain orders and
consider certain evidence. However, the Union argues that there are no similar
restrictions affecting the Workplace Safety and Insurance Board and any decision
from the Grievance Settlement Board, should not be read to do so.
[8] Given the serious nature of excessive use of force allegations, the Union asserts
that the Employer must establish, on a balance of probabilities that Mr. Watt
engaged in excessive use of force based on clear and cogent evidence. Whereas
in the merits case in OPSEU (Maude) v. Ontario (Community and Safety and
Correctional Services), 2016 CanLII 18395 (ON GSB), the Grievor admitted to
engaging in excessive use of force, there has been no such admission here but
only a simple assault charge, guilty plea and conditional discharge without a trial.
The Union argues, therefore, that there is a distinction between criminal assault
and what constitutes excessive use of force under CECBA. In that regard, the
Union states that simple assault refers to the most basic form of assault charges in
Canada, often resulting in minor injuries without the use of a weapon as defined in
Section 265 of the Criminal Code:
265 (1) A person commits an assault when
o (a) without the consent of another person, he applies force intentionally to
that other person, directly or indirectly;
o (b) he attempts or threatens, by an act or a gesture, to apply force to
another person, if he has, or causes that other person to believe on
reasonable grounds that he has, present ability to affect his purpose; or
o (c) while openly wearing or carrying a weapon or an imitation thereof, he
accosts or impedes another person or begs.
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[9] Reviewing the language of Section 265, the Union maintains that the definition is
broader than the excessive force definition in CECBA. For example, the Criminal
Code definition of assault includes threats and gestures that are not necessarily
caught by the excessive use of force definition in CECBA. Put another way, the
Union suggests that an individual could engage in conduct resulting in an assault
charge, but it does not necessarily follow that the individual has applied more than
the minimum force necessary for self-defence or the defence of another person or
necessary to restrain the resident of client as defined in CECBA.
[10] The Union further suggests that I cannot be absolutely certain that the assault
charge and corresponding guilty plea were for the acts or omissions which resulted
in Mr. Watt’s dismissal. From the Union’s perspective, there was no trial and Mr.
Watt pled guilty to a broad assault charge relating to some aspect of his conduct
on December 14, 2020. In comparison, the Union notes that the Employer cited a
number of excessive use of force allegations in Mr. Watt’s termination letter and
suggests that it is unclear which of the acts or omissions noted below, related to
Mr. Watt’s guilty plea:
On December 14, 2020 you engage in unnecessary and excessive force when
you
a. Struck IM B in the head with your hand while IM B was restrained and there
was no identified threat;
b. Struck IM B in the head with your knee while IM B was restrained and there
was no identified threat;
c. Used pain compliance techniques while IM B was lying on the ground, face
down and not moving.
[11] In the alternative, even if I were to find that the question of excessive use of force
has been litigated, the Union states that there are mitigating circumstances in this
case relating to Mr. Watt’s diagnosis of Post Traumatic Stress Disorder (PTSD)
and Alcohol Use Disorder experienced through his employment as a Correctional
Officer, that would justify revisiting the issue of whether Mr. Watt engaged in
excessive use of force warranting termination. The Union asks me to consider the
Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E. Local 79, 2003
SCC63, 120 L.A.C. (4th) 225 where the Court recognized that there may be
instances where relitigation will enhance, rather than impeach the integrity of the
judicial system, for example (1) when the first proceeding is tainted by fraud or
dishonesty, (2) when fresh new evidence, previously unavailable, conclusively
impeaches original results or (3) when fairness dictates that the original result
should not be binding in the new context. Applying the Court’s test, the Union
argues that these medical factors were not considered in the criminal process, and
therefore, fairness dictates that these factors should be taken into account in my
assessment of the seriousness of the conduct engaged by Mr. Watt on December
14, 2020, and the conditional discharge of assault should not be viewed as
conclusive evidence or binding in this arbitration.
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EMPLOYER’S REPLY SUBMISSIONS
[12] In it’s reply submissions, the Employer argues that whether there was a trial
resulting in a finding of guilt is irrelevant to the question before me. In that regard,
the Employer points out that because Mr. Watt pled guilty to the charge of assault,
that plea is in and of itself a finding of guilt. While the Employer agrees that some
GSB caselaw indicates a need for clear and cogent evidence to establish an
excessive use of force, it submits that the underlying reason for section 48(1) of
CECBA is that the legislature intended that a finding of criminal guilt is the clear
and cogent evidence before the Board, and that the Board is required to take
judicial notice of it.
[13] The Employer also disputes that there is a distinction between the criminal assault
of an inmate and whether the force used was excessive. Citing the Union’s book of
documents at page 33 of 307 (reproduced here) the arresting officer sets out the
reasons for the arrest of the grievor:
Correctional Officers are peace officers in the execution of their duties and as
such are permitted to use force under Section 25 of the Criminal Code:
25 (1) Everyone who is required or authorized by law to do anything in the
administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or
authorized to do and in using as much force as is necessary for that purpose.
If the use of force is not justified or excessive (emphasis added) Section 26 of
the criminal code indicates the one conducting that use of force can be held
criminally responsible.
26. Everyone who is authorized by law to use force is criminally responsible for
any excess (emphasis added) thereof according to the nature and quality of the
act that constitutes the excess.
While officer WATT reports that he did not intend to harm inmate B, his actions
and demeanor indicate otherwise. Any reasonable person viewing the video
surveillance of officer WATT and HACHEY would come to the conclusion that the
use of force inside the multipurpose room by officers WATT and HACHEY while
B was on the floor, face down handcuffed and legs secured was excessive and
intentional.
[14] In the Employer’s submission, based on the arrest report which formed part of the
Crown Brief, to which the grievor ultimately pled guilty, there is absolutely no
question what the conduct at issue that led to the charges was. That conduct was
precisely the same conduct as paraphrased above, for which the grievor was
dismissed for.
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[15] The Employer further maintains that it is not in the Board’s mandate to determine
whether the criminal justice process in Ontario is unfair. The grievor pled guilty to
assault of an inmate in the custody of the Ministry. A finding of criminal guilt comes
with a presumption that he had the mens rea to commit the offence and to enter a
plea. For the Board to now have a hearing to test that fact undermines the purpose
of section 48(1) of CECBA. Simply put, if the grievor feels that his criminal justice
process was unfair then the proper avenue is an appeal in that forum or an action
against his criminal defense counsel for not advancing a not criminally responsible
defense.
[16] The Employer also clarified that the 2017 Maude decision was advanced to
provide guidance to the Board regarding the extremely limited positions available
where section 7(4) of CECBA, applies and was not advanced for the purpose of
establishing what is deemed to be an excessive use of force by the Board. The
preceding 2016 Maude merits decision was all about whether an excessive use of
force occurred. However, unlike the instant case, there was no criminal charge
related and there was no finding of guilt for assault under the Criminal Code.
DECISION
[17] Having considered all of the thorough submissions made by the Parties, I am
upholding the Employer’s preliminary motion. Pursuant to Section 48.1 of CECBA I
am ruling that Mr. Watt’s guilty plea to assault and conditional discharge constitute
conclusive evidence that he engaged in excessive use of force against an inmate
on December 14, 2020 that resulted in the termination of his employment. As a
result, in the event I decide to substitute a lesser penalty after hearing the case on
the merits, my jurisdiction will be limited under Section 7 of CECBA to only order
reinstatement to a substantially equivalent position, that being a position not within
the secure part of a correctional facility or any other workplace where there is an
opportunity for Mr. Watt to come into contact with a resident of a facility.
[18] I do agree with the Union, that this decision is not related to any ongoing process
or appeals that Mr. Watt may have with the Workplace Safety and Insurance
Board and as a result, the determinations made in this case hold no precedential
value with respect to any matters involving Mr. Watt at Workplace Safety and
Insurance Board.
[19] In reaching my conclusion, I have reviewed the Crown Brief and Case File
Synopsis, dated May 12, 2021, submitted by the Union, that summarized the
underlying facts forming the basis of the assault charge contrary to Section 266 of
the Criminal Code. The Crown Brief reports “that the inmate, who was handcuffed
with his hands behind his back was brought into the multipurpose room and
forcefully taken to the floor by the correctional officers Hachey and Watt. The
officers then maintained control of the inmate’s upper body while Officer Conway
knelt on the inmate’s legs. The noted correctional officers report that the inmate
continued to resist, however their version, is not supported by video surveillance.
The inmate is observed face down on the floor, motionless with his hands cuffed
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behind his back and his legs controlled when Officer Watt delivers knee strikes to
the inmate’s face along with a closed fist hand strike. The investigation concluded
that the knee strikes and closed fist hand strike by Officer Watt to the defenseless
and physically non-resistant inmate were not necessary and unreasonable for the
situation. Reasonable and probable grounds existed that the actions by Officer
Watt were an assault and not required to gain control or compliance from the
inmate.”
[20] In addition, as pointed out in the Employer’s reply submissions and referred to in
paragraph 13 of this decision, the Case File Synopsis contains additional
information from the arresting Police Officer to explain that Mr. Watt’s actions, as a
peace officer, would be viewed by a reasonable person as “excessive and
intentional” and therefore considered an excessive use of force under Section 25
of the Criminal Code resulting in criminal responsibility under Section 26. As a
result, I disagree with the Union’s suggestion that there is a distinction between
excessive use of force under the Criminal Code and CEBA. While the language
under Section 265 refers to various ways that an assault may occur, given the
circumstances of this case, Sections 265 and 266 cannot be read separately from
Sections 25 and 26 of the Criminal Code. Based on the facts and conclusions
drawn in the Crown Brief and Case Synopsis, it is evident that the Police
determined that Mr. Watt engaged in excessive use of force and was criminally
responsible under Sections 25 and 26 which resulted in a charge of assault under
Section 266 of the Criminal Code. Furthermore, I disagree with the Union’s
suggestion that I cannot be absolutely certain that the assault charge and
corresponding guilty plea were for the acts or omissions which resulted in Mr.
Watt’s dismissal. What was evident from the Crown Brief and Case File Synopsis,
is that the Police investigation and assault charge was clearly based on Mr. Watt’s
knee strikes to the inmate’s face and closed hand fist strikes to a non-resistant and
physically defenceless inmate. While the Union suggests that Mr. Watt plead guilty
to a broad assault charge, it is only reasonable to conclude that he was made
aware of the allegations that formed the basis of the assault charge and that such
allegations were the essentially the same as those noted in Mr. Watt’s termination
letter referred to at paragraph 10 of this decision.
[21] I also agree with the Employer that it is irrelevant whether there was a criminal trial
with a finding of guilt on the assault charge. Mr. Watt plead guilty to his charge and
received a conditional discharge at his sentencing hearing. When an accused
pleads guilty, it is a voluntary admission of guilt for the crime committed and avoids
the need for a trial but not sentencing for the crime committed. Before pleading
guilty the accused is provided full disclosure of the information that the Crown and
Police have collected and is asked a variety of questions by the presiding judge, in
a plea inquiry, including whether the accused understands that, by pleading guilty,
they are admitting to the facts that make up a criminal offence. In addition, the
Crown reads out a case synopsis summarizing the facts they would be relying on
to prove guilt and the judge asks the accused whether they agree with the facts.
Only upon an accused’s voluntary agreement on the facts will a judge accept a
guilty plea. In this case, Mr. Watt would have been informed of all the facts that
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made up the Police investigation and the Crown’s Case File Synopsis and
therefore must have known the basis and reasons for his assault charge when he
entered a guilty plea.
[22] With respect to the two Maude decisions introduced by the Parties, I find that they
are relevant only for the purpose of an example where excessive use of force was
admitted and where the GSB confirms its limited jurisdiction to substitute a lesser
penalty under Section 7 of CECBA. In the instant case, there is an admission of
guilt to a criminal charge of assault and conditional discharge which triggers the
mandatory provision in section 48.1(1) of CECBA requiring the GSB to conclude
that proof of the conviction or discharge is conclusive evidence that the employee
committed the act or omission. Comparing the merits decision in Maude, Mr.
Watt’s guilty plea and conditional discharge are, at a minimum, no different than
the grievor in Maude, who admitted to using excessive force. Given the clear
mandatory language of Section 48.1(1), I see no basis for reviewing the excessive
force allegations which have been dealt with under the Criminal Code. Such a
review would undermine the purpose of Section 48.1 (1) which confirms that the
GSB shall uphold determinations made in the criminal process in order to avoid
duplicative proceedings and possible conflicting findings.
[23] Turning to the Union’s alternative argument, I find that this is not an appropriate
case to revisit the issue of whether Mr. Watt engaged in excessive use of force
warranting termination based on medical mitigating circumstances. Applying the
second and third tests set out in Toronto (City) v. C.U.P.E., supra, I do not see that
there is fresh evidence, previously unavailable, which would conclusively impeach
the result or where fairness dictates that the original result should not be binding. I
disagree that Mr. Watt’s medical information was not considered in the criminal
process, as the Union suggests. Based on my review of the Probation Order,
dated January 25, 2022, which formed the terms of Mr. Watt’s conditional
discharge, there are a number of conditions related to Mr. Watt’s mental health
and alcohol disorder. Specifically, paragraph 5 notes “your reporting requirement
ends when you have satisfied the probation officer that you have completed all of
your counselling”. Paragraph 9 requires that Mr. Watt “attend and actively
participate in all assessment, counselling or rehabilitative programs as directed by
the probation officer for anger management, alcohol abuse, psychiatric or
psychological issues, and any other issues identified by your probation officer”.
While I do not know the extent or detail of the discussion that led to the conditions
of the Probation Order, it is evident that Mr. Watt’s medical considerations did form
part of his criminal case and would have been considered by the presiding judge at
the sentencing hearing.
[24] For all of the above-noted reasons, the Employer’s motion is upheld.
Dated at Toronto, Ontario this 20th day of June, 2022.
“Dale Hewat”
______________________
Dale Hewat, Arbitrator