HomeMy WebLinkAbout2014-2798.St. Amand et al.22-07-28 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# 2014-2798; 2014-2799; 2014-2800
UNION# 2014-0737-0003; 2014-0737-0004; 2014-0737-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(St. Amand et al) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Tatiana Wacyk Arbitrator
FOR THE UNION Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Felix Lau
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING May 16, 2019; July 30, 2020; February
17, 18, March 15, 19, April 15, November
3, 2021; May 31, 2022; Written Reply
received June 17, 2022
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Decision
[1] This decision deals with grievances filed regarding events which occurred in July
2014.
[2] The grievances allege the Employer failed to take all reasonable precautions with
regard to the grievors’ safety both in and outside of the workplace, in violation of
the Collective Agreement and the Occupational Health and Safety Act.
[3] The parties agreed to bifurcate the hearing between the merits and remedy.
PARTIAL AGREED STATEMENT OF FACTS:
[4] The parties filed the following partial Agreed Statement of Facts (“ASF”).
BACKGROUND
1. The grievors, Amanda St. Amand, Alexander R. Bulmer and Michael J. Lundy
were employed as Correctional Officers (“COs”) at the Thunder Bay Jail (the
“Jail” or “TBJ”) when the grievances giving rise to these proceedings were
filed.
2. During the time periods relevant to this matter COs were employed by the
Crown in Right of Ontario as represented by the Ministry of Community Safety
and Correctional Services (“MCSCS”), which is now the Ministry of the
Solicitor General. For ease of reference the employer will hereinafter be
referred to as the “employer” or the “Ministry”.
3. TBJ is a maximum security facility and houses remand and some sentenced
male offenders in the Thunder Bay region. As of the summer of 2014,
remanded offenders comprise approximately 95% of the population.
4. Ms. St. Amand began working at the jail in and around 2008 at the Jail.
Throughout her employment with the jail she worked as a CO.
5. In and around 2015, she resigned from employment and left Thunder Bay,
permanently relocating in a different Canadian jurisdiction.
6. Mr. Bulmer began working at the Jail as a CO in and around 2009. He
continues to work at the Jail as a CO. He has resided in Thunder Bay
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throughout the time periods relevant to this matter and continues to reside
there to this day.
7. Mr. Lundy began working as a CO at the jail in and around 2004.
8. Mr. Lundy transferred to a different institution in Thunder Bay Correctional
Centre in and around March, 2017.
9. Mr. Lundy was previously the President of the Local Union at TBJ.
10. Mr. Lundy has resided in Thunder Bay during the time periods relevant to this
matter and continues to reside there.
2014 – THE GRIEVORS ARE ADVISED THAT THEIR PERSONAL INFORMATION WAS
DISCLOSED IN A CROWN BRIEF TO INMATES AT THE JAIL AND/OR TO THE
INMATE’S/INMATES’ COUNSEL
11. In March, 2014, Inmate 1 * was charged with an assault on three (3) other
inmates who were also in custody at the Jail.
12. Another inmate, Inmate 2 was also charged in relation to this assault.
13. Mr. Bulmer and Ms. St. Amand were on duty when the assault occurred.
14. Mr. Bulmer was assigned to the living unit at the time the assault occurred,
while Ms. St. Amand was on duty at the time the assault was discovered.
15. Mr. Lundy reported for duty shortly after the assault [and] was told to take
another inmate who had suffered injuries to the hospital.
16. This hospitalized inmate was interviewed by two Thunder Bay Police Officers
while in hospital.
17. These same officers took Mr. Lundy’s name and contact information.
18. In early July, 2014, Inmate 1 approached Ms. St. Amand and stated: “The cops
put all of your personal info in my disclosure”, or words to that effect.
* It was agreed inmate names would be anonymized.
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19. Ms. St. Amand sought clarification from Inmate 1. He advised her that the
“address, cell phone numbers” of St. Amand, Bulmer and Lundy had been
disclosed to himself and Inmate 2.
20. Inmate 1 then asserted that Inmate 2 “hated” Ms. St. Amand, or words to that
effect.
21. Ms. St. Amand understood that Inmate 1 is a member and/or is affiliated with
the notorious Toronto street gang, the Galloway Boys.
22. Ms. St. Amand immediately informed Deputy Superintendent Mel Happonen
regarding the disclosure issue.
23. Mr. Happonen indicated he would look into the matter.
24. Ms. St. Amand also informed Mr. Lundy and Mr. Bulmer that same day.
25. That evening, and after she was off-shift, Mr. Happonen phoned Ms. St.
Amand and confirmed that what Inmate 1 had reported was accurate – that
the grievors’ personal information had been disclosed to inmates I and 2 as
part of the disclosure provided through their criminal proceedings.
26. Shortly thereafter, on or around July 4, 2014, Mr. Happonen sent an email to
the grievors, advising (email at Tab 1, p. 3):
“An error occurred with the Courthouse when processing
the disclosure for offender [Inmate 1]. Your phone numbers
and addresses were listed in the disclosure. Thunder Bay
Police, Crown Attorney and Defence counsel dealing with
this matter have all been advised and your personal
information has been removed.”
27. Mr. Happonen emailed again on or around July 7, 2014, advising the
Employee Assistance Program was available to the grievors, and that he was
consulting with law enforcement officials regarding the issue.
28. On July 7, 2014, Mr. Lundy emailed Mr. Happonen enquiring as to why his
(Lundy’s) name was included in the disclosure.
29. Mr. Lundy mailed Mr. Happonen again that same day (July 7, 2014) seeking
an update and noting that Inmate 1 is a high profile inmate and seeking
answers as to why his personal information was in (sic) disclosure sent to
Inmate 1.
30. Mr. Happonen responded that day.
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31. On July 9, 2014, Superintendent Deborah McKay emailed Regional Director
Lou Ann Lucier advising of the situation, and advising that the inmate had not
seen the disclosure and that it had remained with his (Inmate 1’s) lawyer in
Toronto. Ms. McKay advises in this email that Inmate 1’s lawyer advised
Inmate 1 that staff names, addresses and phone numbers were in the Crown
Brief.
32. This email was not forwarded to the grievors. It was only received as part of
the production from employer counsel in these proceedings.
33. On or around July 15, 2014, Mr. Lundy emailed Katherine Kinger, then-
Regional Director, and requested that a complete investigation be conducted
to ascertain precisely how their personal information was compromised and
disseminated, and in turn their health and safety put at risk.
34. Neither the grievors nor the Union have any knowledge as to whether such an
investigation ever occurred.
35. Around this time, July, 2014, Inmate 2, was cellmates with Inmate 3
[Anonymized]. Inmate 3 had a prior history of infatuation with Ms. St. Amand.
36. Ms. St. Amand was thus particularly concerned and frightened regarding the
prospect of Inmate 3 having her home address and contact information.
37. Over the ensuing weeks, a law enforcement investigator met individually with
each of the grievors and made certain recommendations regarding home
security.
38. The grievors were advised they would bear the costs of any identified home
improvements.
39. At the time, the grievors had each already implemented a number of home
security improvements at their own cost, and were financially unable to
implement any further recommendations or home improvements.
40. Ms. St. Amand lived alone at the time of the alleged improper disclosure and
did not have dependents.
41. Mr. Bulmer and Mr. Lundy both had family and financial considerations that
precluded relocation as a viable or realistic option.
42. The law enforcement official who was investigating this matter emailed Ms.
McKay on July 28, 2014 advising he had met with the grievors, and that “in
speaking with the Crown Attorney’s office…there is no reason to believe that
the actual addresses were provided/disclosed to inmates”.
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43. This email was not forwarded to the grievors. It was only received from
employer counsel as part of proceedings before the GSB.
44. On July 27, 2014, Mr. Lundy sent an email to Ms. McKay filing a grievance at
Stage 1 regarding the disclosure of his personal information in a Crown Brief
and the employer’s failure to initiate an investigation into this incident.
Management discussed this internally via email and ultimately determined
they did not think there was a violation of the collective agreement.
45. The grievances giving rise to these proceedings were filed August 14, 15 and
18, 2014.
46. Approximately one year later, in and around May-June, 2015, Mr. Lundy wrote
to the new Superintendent at Thunder Bay Jail, William Wheeler, asking for
full disclosure regarding the circumstances as to how Mr. Lundy’s personal
information came to be included in and disclosed to an inmate and/or the
inmate’s counsel.
47. In and around June, 2015, Ms. St. Amand resigned from employment with the
Ministry and relocated to a different jurisdiction.
48. For a number of years neither the Ministry or any other government agency
provided the grievors with any answers or information as to how their
respective personal contact information was allegedly put into an inmate’s
Crown Brief.
49. The grievances proceeded to the GSB over a number of hearing days over
the course of several years.
50. Union counsel served subpoena duces tecum on the Ministry of the Attorney
General and the Thunder Bay Police to obtain the Crown Brief, however, the
redacted brief which was provided did not include any documents indicating
the grievors’ personal information had been disclosed.
51. In the course of these proceedings, a subpoena duces tecum was served on
a law enforcement authority that had been involved in the investigation of this
possible disclosure of personal information. Through that summons, the union
obtained an unredacted witness list that included the grievors’ personal
contact information, including cellphone numbers and home addresses (that
information has been redacted for these proceedings to remove third party
information and the grievors’ personal contact information).
52. Counsel for the law enforcement authority advised that this document had
come from and had been generated by the Thunder Bay Police.
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53. Through further follow-up and inquiries, counsel for the Thunder Bay Police,
Holly Walbourne confirmed, via email sent May 27, 2019, that the Thunder
Bay Police have a practice of auto-populating witness list information that
includes home and business addresses.
54. In April, 2005, the Ministry released two (2) separate memoranda regarding
non-disclosure of personal information.
NOTES:
[5] The ASF was supplemented by, and as will be seen below, at times contradicted,
by the viva voce and documentary evidence of the parties.
[6] While the ASF refers to the grievors’ personal information having been disclosed
to both Inmates 1 and 2, the subsequent evidence and testimony focussed
almost exclusively on Inmate 1. Further, as will be seen below, Inmate 2’s
status in these events is ultimately unclear. In any event, on agreement of the
parties, as the Crown briefs for both would presumably contain similar witness
lists, the evidence is to be understood to apply to both.
[7] The titles of “Law Enforcement Investigation Unit” and “Law Enforcement
Investigator”, referred to throughout this decision, were also agreed to by the
parties, in order to keep confident any details regarding an OPP entity which
provides security protection in circumstances such as these. Accordingly, while
additional details were provided in the context of this hearing, they have not been
included in the decision.
[8] Finally, and of critical importance, on the first day of hearing, the parties agreed
Inmate 1 did not receive the disclosure brief which contained the grievors’
personal information. However, they indicated a question remained regarding
whether his lawyer had, as the lawyer had provided inconsistent information to
counsel for each of the parties.
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UNION’S EVIDENCE:
[9] The grievors were clear that prior to their involvement in this proceeding, they
were not advised by anyone that the Crown brief with their personal information
was never in the jail, or that there was no reason to believe their personal
information was not disclosed to the Inmates.
[10] Nor were they advised that a new disclosure system was in place which would
minimize the occurrence of the problem.
[11] The grievors conceded it was the Thunder Bay police, (rather than anyone from
the Employer) that was responsible for the inclusion of their personal information
in the Crown brief. However, it was their view that their Employer had an
obligation to find out why it happened.
Amanda St. Amand
[12] Ms. Amand testified that based on what she was told by Inmate 1, she assumed
both he and Inmate 2, as well as Inmate 2’s cellmate, had her and the other two
grievors’ home addresses.
[13] However, Ms. St. Amand also testified she and Inmate 1 had a good rapport, with
no negative interactions. She described his demeanor during their conversation
as “non-threatening”, and that before he said anything about the disclosure,
Inmate 1 told Ms. St. Amand that she would never see him in town unless she
ran into him in Toronto, and that he not telling her about the disclosure to make
her afraid. Rather, he advised he was telling her “out of respect for her as a
human being”; that Inmate 2 hated her; and, that he did “not want anything bad to
happen”.
[14] Ms. St. Amand conceded she should have asked Inmate 1 if he had seen the
disclosure, as he had not actually said that was the case. Nor did she have any
idea regarding whether the disclosed information was ever in the Institution.
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[15] St. Amand testified she did not feel it was appropriate to subsequently ask
Inmate 1 if he had actually seen the disclosure, as she was trying to maintain
professional conduct at work. Nor did she want him to know she was concerned
about it. As an officer, and particularly a female officer, she felt she had to keep
a strong face vis-à-vis the offender population. Also, she did not want the other
inmates to know Inmate 1 had the information, and it was difficult to speak to him
out of earshot of the other inmates.
[16] Ms. St. Amand also conceded that in her experience, while some inmates are
trustworthy, depending on the situation, inmates “will lie about everything
constantly to get out of trouble”.
[17] Further, Ms. St. Amand testified that as Mr. Happonen’s e-mail of July 4, 2014
had confirmed the grievors’ personal information was listed in Inmate 1’s
disclosure, she left it to management to “resolve the situation”. However, she
conceded she never specifically asked anyone in management to do so. For
ease of reference, the contents of that e-mail are set out again below:
An error occurred with the Courthouse when processing the disclosure
for [Inmate 1]. Your phone numbers and addresses were listed in the
disclosure. Thunder Bay Police, Crown Attorney and Defence counsel
dealing with this matter have all been advised and your personal
information has been removed.
[18] Ms. St. Amand indicated she took no comfort from Mr. Happonen indicating their
personal information had been removed – as you can’t “unknow” something.
She pointed out the Inmates could have made a note of the information even if it
was subsequently removed from the Crown brief.
[19] The Law Enforcement Investigator, who subsequently met with Ms. St. Amand
advised her that, based on his evaluation, he did not believe Inmate 1 was a
threat. Ms. St. Amand could not recall if he elaborated on the basis for his
conclusion. Nor did Ms. St. Amand follow up with him to inquire. She testified
this did not seem to be an option, as he just conducted his investigation, and
“went on his way”.
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[20] Ms. St. Amand conceded that neither the Law Enforcement Investigator nor the
Employer did or said anything that suggested any additional questions would be
unwelcome or inappropriate.
[21] Indeed, as indicated in the ASF, Mr. Happonen sent the following e-mail to the
grievors on July 7, 2014.
Hi Folks
The Employee Assistance Program is available to you and I am currently
consulting with [the Law Enforcement Investigation Unit] regarding this
matter.
Feel free to contact me with any concerns you may have. [emphasis
added]
[22] However, Ms. St. Amand did not follow up with Mr. Happonen either. Rather
she indicated she was trusting “the process” to keep them safe, and deferred to
Mr. Lundy, who was President of the Local at the time.
[23] Ms. St. Amand was dismissive of any suggestions made by the Law Enforcement
Investigator with regard to enhancing her security. She indicated that many of
his suggestions were already in place, such as double locks on the windows and
doors. She testified she was not interested in having someone come to her
home and tell her if she does “this and that” she would be fine. Rather, she
stated she was “insulted” by the suggestions.
[24] However, it is interesting to note that Ms. St. Amand’s home was equipped with
an alarm system when she purchased it, although she never had it activated.
She indicated she did consider doing so after her conversation with the Law
Enforcement Investigator but felt it would not keep her safe – although she did
not elaborate on her reasoning.
[25] However, Ms. St. Amand testified she was so distressed and overwhelmed by
what had occurred she asked for 2 days of discretionary leave. Specifically, her
request stated:
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I am applying for 2 discretionary days. Friday July 11th, 2014 and
Saturday July 1ih, 2014. I was affected by the recent breach of security
of my personal information and I felt unable to come to work.
The days were approved as short-term sick days for which Ms. Amand was paid.
[26] On October 3, 2014, Ms. St. Amand submitted a request to Mr. Happonen for a 6
month leave i.e. from January 17, 2015 - July 16, 2015 for the following reason:
As you are aware, I am having personal family problems. I feel it is
necessary to take a leave at this time as I am having difficulty dealing
with the stressful situations both inside and outside of the institution. I
feel that this time away from the institution may aide me in coping with
the stress.
[27] Ms. St. Amand testified that she submitted the request because she felt if she left
Thunder Bay and didn’t have to go into the Institution, she could better assess
her personal and professional situation, and remove herself from any immediate
danger. She indicated that the most significant stressor was going into the
Institution, because if Inmate 1 or certain other inmates spoke to her she would
question why they having that conversation. She testified that it also bothered
her to see Inmate 2 as they did not have a good relationship, and she had been
told he had her personal information as well. She indicated she felt the manner
in which management had dealt with the issue had been awful.
[28] Mr. Happonen responded that more details than those contained in Ms. St.
Amand’s communication of October 3, 2014 were required before her request
could be considered.
[29] In her November 14, 2014 response, Ms. St. Amand again led with her personal
“family problems” and how they played out in the institution, following which she
referenced the breach at issue:
Hello Mel,
I have applied for this Leave Without Pay as I need personal time away
from my current professional and personal situation. In my personal life
I am struggling with 2 family members having strong ties to many
inmates. I feel it is difficult for me to effectively do my job due to their
relations with some of the inmates. Due to these relationships I am
12
unable to work in the areas where some of these inmates are being
housed. I am under constant stress as a result of this inside and outside
of the institution.
Furthermore my "personal information" has been released to some of
the inmates. This personal information includes my home address, my
home phone number and my cell phone number and it was given to
them through their disclosures from the courts. I have changed my cell
phone number and gotten rid of my home number but I still do not feel
safe within my own home. I have troubles sleeping at times because I
am so worried and stressed about my safety. I live alone and I did not
put myself at this risk. All of the above concerns have been brought to
Managements attention. It was also communicated with Management
that I am struggling both personally and professionally due to all of the
above concerns. (sic)
I feel that due to the circumstances of my current situation that a 6 month
LWP is a very reasonable request that would not cause the employer
any hardship to accommodate. If I were to get a full 6 months I would
be better able to asses my personal and professional situation from a
distance and without the ongoing stress that I am faced with here. I am
requesting this 4 months in advance to allow myself the time to explore
my options should this LWP be denied. I am in need of this time away
and should I be granted the opportunity I will be seeking out of town
employment for that time period. I am unable to do so at this immediate
time and I cannot financially afford to be off work for an extended period
of time. With this option I am not forced to sell my home and relocate at
this immediate time just to feel safe.
I feel I have exhausted other options to deal with this. I have contacted
EAP to get help with the stress that I am feeling. My work performance
has also suffered as a result of this ongoing stress. In July 2014 I was
written up due to being absent minded on the job. This is out of character
for myself and has never happened before. I feel that this happened due
to the amount of stress I have been under. During an ASMP meeting
with Vicki Joy she had suggested that I find a new career. I am trying to
better my situation and to help me accomplish these goals I am kindly
requesting this LWP.
…
[30] Ms. St. Amand elaborated on her difficulties regarding the two family members
with “strong ties to many inmates”. Ms. St. Amand indicated that one of them
was a drug addict who was incarcerated at the time for robbing a pharmacy. She
testified that many of the inmates were also drug addicts and they “ran together”
with her relative. She conceded those inmates were aware of her relationship
with her relative.
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[31] When asked to elaborate regarding to whom Ms. St. Amand was referring when
she indicated all the above concerns had been brought to Management’s
attention, Ms. St. Amand testified that Ms. McKay and Mr. Happonen were
aware of these concerns. Specifically, prior to providing the details set out in her
November 14, 2014 request, set out above, Mr. Happonen had asked Ms. St.
Amand what was going on. She testified she had told him her relative was
incarcerated and that that relative was friends with the inmates, and that a lot of
her stress was related to not knowing whether every one of the inmates now
knew where she lived.
[32] However, in cross-examination, Ms. St. Amand testified she was certain her
relative would not provide her address to any of the inmates as she would
appreciate the risk this would pose to Ms. St. Amand.
[33] Ms. Amand indicated she also spoke to Ms. McKay about her situation after she
submitted the letter, but did not provide any more details. She also indicated she
had discussed the matter with Ken Ross, the scheduling manager at the
Institution. She indicated she had discussed how stressful she had found the
breach of her personal information.
[34] Ms. St. Amand’s leave was subsequently granted, and she left the Institution in
late January 2015. She then returned to another community in another province
where she had previously worked as a Correctional Officer. She assumed and
remains in a Correctional Officer position in that community. She resigned her
position at Thunder Bay Jail for a “multitude of reasons” at the end of her leave.
[35] When Ms. St. Amand was asked why she could not simply move to another
address in Thunder Bay or some other community within the Province if she felt
at risk, she responded that she did not feel safe where she was, and queried
what if she moved and exact same thing happened again.
[36] Ms. St. Amand’s letter of resignation stated:
I am unfortunately writing this letter to resign from my position as a
Correctional Officer 2 at the Thunder Bay District Jail. I am resigning
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due to the recent events that occurred over a year ago and still have not
been dealt with. My resignation is effective July 16th, 2015. I would like
to thank you for the 7 years of service but I feel I am unable to continue
working at the Thunder Bay Jail under these circumstances.
[37] Ms. McKay subsequently contacted Ms. St. Amand requesting clarification
regarding the “events” referred to in her resignation letter. Ms. St. Amand
responded as follows:
…
The “events” I was speaking about was (sic) the security breach that
occured (sic) last year at the Thunder Bay Jail. The “circumstances” I
was speaking about is the situation with the 2 outstanding grievances
that I have with the jail.
…
[38] Ms. St. Amand indicated that one of the two outstanding grievances referenced
in her response above was the one at issue before me, and she could not recall
the nature or details of the other.
[39] Ms. St. Amand testified she thought the Employer's position that their personal
information was never disclosed to Inmate 1 was a "bold-face lie", as Mr.
Happonen's e-mail of July 4, 2014 had confirmed the grievors' personal
information was listed in Inmate 1's disclosure, and this was subsequently
confirmed by Inmate 1's lawyer, as set out in the email sent by Ms. McKay to Ms.
Lucier on July 9, 2014, referenced in the ASF at paragraph 31.
[40] Ms. St. Amand described the Employer’s response to the grievors’ concerns as
condescending, disgusting, very belittling and dangerous.
Michael J. Lundy
[41] Mr. Lundy indicated that while he could not recall the exact words, he was told by
Ms. St. Amand something to the effect that Inmate 1 told her the grievors’
personal information had been shared with him, and that he had their personal
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information. Consequently, he believed that Inmate 1 had his personal
information.
[42] Mr. Lundy testified he went into “panic mode” as a result, as he knew gangs in
Thunder Bay had the potential for violence to ensure witnesses don’t testify
against them, either through intimidation or violence. Consequently, the mere
mention of an inmate being aware of where a correctional officer lives could put
fear into someone. Mr. Lundy pointed out he has a young family at home, and
had a genuine concern regarding their safety.
[43] Mr. Lundy testified he was not aware Ms. St. Amand had a good rapport with
Inmate 1, and she did not advise him of this at the time. Nor did she indicate her
understanding that Inmate 1 was not telling her about the disclosure to threaten
her, but rather out of “mutual respect”.
[44] When referred to Mr. Happonen’s e-mail of July 7, 2014, set out above at
paragraph 21 advising he was consulting with the Law Enforcement Investigation
Unit regarding the issue, Mr. Lundy conceded that Unit specializes in precisely
the situation the grievors were facing.
[45] As indicated in the ASF, on July 7, 2014, Mr. Lundy emailed Mr. Happonen
enquiring as to why his name was included in the disclosure. Mr. Happonen
responded:
Hi Mike
I am I am following up with [the Law Enforcement Investigation Unit] they
will be sending an officer to the Jail today to collect all pertinent
information. This specific matter has been corrected by Thunder Bay
Police and the Provincial Courthouse. Detective Constable Ian West
TBPD confirms the disclosure for this case has had all officer telephone
numbers and addresses removed.
In discussion with a member of [the Law Enforcement Investigation Unit]
they will be looking into this issue further with the chiefs of police so this
is not a recurrence throughout the Province. They would also like to
meet with each staff member to assist in anyway.
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I agree Mike its (sic) troubling how this information was not vetted out
prior to producing the disclosure.
[46] When asked why this response is deficient, Mr. Lundy conceded that at that
point, based on that information, he believed the Employer was moving in the
right direction, and was satisfied with the response.
[47] However, as of July 15, 2014, Mr. Lundy appeared to change his mind. As noted
in paragraph 33 of the ASF, on or about that date, Mr. Lundy contacted the then
Regional Director and requested that a complete investigation be conducted to
ascertain how the grievors’ personal information was compromised and
disseminated, and in turn their health and safety put at risk.
[48] Further, on July 27, 2014, Mr. Lundy filed the following grievance which was
denied:
Please accept this as my Stage 1 Grievance in regards to the recent
Health and Safety violation which potentially placed my wellbeing in
jeopardy. Recently I had sent a request that the Employer run a full
investigation in regards to these events, however I have yet to hear
anything and I must follow through on proper timelines. The Employer,
being the Government of Ontario, failed to follow set procedures which
are in place to assist in protecting my Health and Safety.
[It appears from the exhibits filed, Ms. St. Amand filed the same grievance on
August 2, 2014]
[49] While Mr. Lundy recalled meeting with the Law Enforcement Investigator, he too
could not recall their specific conversation. He also shared Ms. Amand’s view
that the advice of the Law Enforcement Investigator was unhelpful. Rather, he
described it as referring to “trivial” matters such as ensuring the doors had
adequate locks and bushes did not obscure the house. When Mr. Lundy inquired
about the possibility of a home security system, the Law Enforcement
Investigator indicated it would be Mr. Lundy’s responsibility to pay for it, which he
could not afford.
[50] Mr. Lundy was also sceptical of the Employer’s position that the grievors’
personal information was never disclosed to Inmate 1. As with Ms. St. Amand, it
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was Mr. Lundy’s view that Mr. Happonen had stated, in his July 4, 2014 e-mail,
that the information had been seen by Inmate 1. Mr. Lundy indicated that stating
the information had been removed from the disclosure, confirmed it was initially
there.
[51] Mr. Lundy testified he felt that management had gotten “the run around” and that
those responsible were covering up what occurred to protect their own interests.
He also indicated he believed the Employer was trying to “bury the issue”. He
further stated that knowing what he knows now, he believes this was also the
case with the Law Enforcement Investigator, but did not elaborate.
[52] When asked if he believes now that Inmate 1 had his personal information, Mr.
Lundy responded that was a “tricky question” and he didn’t know what he now
believes.
[53] Mr. Lundy further indicated that being told now, seven years later, that the
disclosure remained with Inmate 1’s counsel and was never seen by Inmate 1
may alleviate some concerns, but he did not have a lot of faith this was not
occurring in other situations.
[54] Mr. Lundy referred to a memorandum issued in 2005 by the Assistant Deputy
Minister of the Ministry of Community Safety and Correctional Services to all the
Chiefs of Police and the Commissioner of the OPP at the time. This was one of
the memoranda referred to in paragraph 54 of the ASF. It referred to there
having been a number of incidents where accused and/or incarcerated
individuals had acquired the personal information of Ministry Staff, including
Correctional Officers, through the court disclosure process. The memo directed
that:
In order to ensure the health and safety of all ministry employees who
are required in their professional capacity, to give evidence as a witness,
police services are requested to collect and use business-related
information only.
[55] Mr. Lundy pointed out that despite the above directive, the grievors’ personal
information had been disclosed in 2014. He expressed frustration regarding
18
what he saw as the Employer’s failure to investigate regarding why that occurred,
and protect them by directing the Thunder Bay Police to remedy the problem,
rather than waste money on the grievances.
Alexander R. Bulmer
[56] Mr. Bulmer first heard about the matter via a text from Ms. St. Amand. He only
recalled that she advised that Inmate 1 had told her their addresses were put in
his disclosure regarding his assault charge; that she had spoken to Mr.
Happonen; and, that he was looking into it. Mr. Bulmer concluded, as a result,
that Inmate 1 had their personal information.
[57] While he could not recall the details, Mr. Bulmer was subsequently advised by
Ms. St. Amand that she did not perceive Inmate 1’s comments as a threat, but
rather understood them to be a “heads up”.
[58] He testified he finds it “extremely hard to believe” that Inmates 1 and 2 did not
see the grievors’ personal information, as Inmate 1 referred to each of the
grievors by name, even though Mr. Lundy only came on shift after the event and
escorted the injured inmate to hospital, without any contact with Inmate 1. Mr.
Bulmer suggested Inmate 1 had no way of knowing about Mr. Lundy’s
involvement other than through his lawyer.
[59] Mr. Bulmer indicated he did not find the Employer’s response to the incident at all
satisfactory. Rather he felt the matter was not taken seriously by the Employer,
and no thought was given to the impact on them. He maintained the Employer
did nothing to assure them, and he did not feel protected as an employee. Mr.
Bulmer indicated that not knowing what the Inmates knew caused him significant
stress, negatively affecting his marriage, and his ability to do his job.
[60] Mr. Bulmer suggested the Employer could and should have done more.
Specifically, Mr. Bulmer pointed out that neither the Employer nor the Law
Enforcement Investigator spoke to Inmate 1 before concluding what had
occurred. Mr. Bulmer also indicated he did not feel it would be appropriate for
19
him to ask Inmate 1 questions regarding the issue, as it would put him in a
conflict situation.
[61] Further, Mr. Bulmer, as had the other two grievors, testified that all the
suggestions the Law Enforcement Investigator made regarding securing his
home were already in place. The only exception was a security system, which
he could not afford.
[62] Mr. Bulmer also suggested Inmates 1 and 2 ought to have been moved out of the
general population and into segregation until it was known whether the grievors’
personal information was disclosed to them. He further suggested they be kept
in segregation if that was determined to be the case, as “knowledge is power”,
and you can’t unknow something. In that regard, Mr. Bulmer indicated that while
Inmate 1 may not have had issues with Ms. St. Amand, there were others that
did, and could have used knowledge of her personal information to pressure her.
[63] Mr. Bulmer testified segregation is used for a number of purposes, including to
address inmates who are a threat to themselves or others. In that regard he
referred to Adam Capay, who remained in segregation for four years in the
Thunder Bay Correctional Centre, as he was deemed a threat to other inmates.
[64] When it was pointed out to Mr. Bulmer that on the same day Mr. Happonen was
advised of the issue, he was able to assure the grievors that the Thunder Bay
Police, the Crown Attorney and Defence Counsel had all been advised of the
error, and that their personal information had been removed, Mr. Bulmer
indicated he felt that timeline was “appropriate” and “good”.
[65] However, Mr. Bulmer took issue with the two day delay before Mr. Happonen
advised the grievors, on Monday, July 7, 2014, that the EPA program was
available to them, and that Mr. Happonen was consulting with the Law
Enforcement Investigation Unit regarding the issue. Mr. Bulmer maintained that
also ought to have occurred on the prior Friday.
20
[66] Again, while Mr. Happonen’s July 7, 2014 e-mail concluded with “Feel free to
contact me with any concerns you may have”, Mr. Bulmer did not do so.
[67] Mr. Bulmer also took issue with the passage of 5 days before Superintendent
McKay advised Regional Director Lucier, on July 9, 2014, that Inmate 1 had not
seen the disclosure; that it had remained with Inmate 1’s lawyer in Toronto; and,
that it was Inmate 1’s lawyer who advised him that staff names, addresses and
phone numbers were in the Crown Brief [see paragraph 31 of the ASF].
[68] Assuming her information was based on a review of the inmate mail log, Mr.
Bulmer maintained that review ought to have been done on July 4, 2014. He
pointed out that all that would have required was for someone to take 5 minutes
to walk down the stairs and look in the cabinet to see if it had arrived.
[69] Mr. Bulmer described the process within the jail for recording inmates’ mail at
that time. Specifically, each inmate had an individual mail sheet on which the
date and sender of any mail was recorded. If the sender was an inmate’s lawyer,
the mail was opened with the inmate present. The inmate was then required to
complete a request form in order view the correspondence, which occurred in
private, due to its confidential nature. The time of any review was also recorded.
[70] When asked if checking the mail log was something he or one of the other
grievors could have done themselves, Mr. Bulmer initially indicated he could not
recall if he was on shift at the time. He then added that it was not within his job
to check, as the document, if it had come in, would be within a cabinet in the
sergeant’s office, and he could not access that cabinet without a purpose. When
asked if he could have just determined if the document had come in, he indicated
that as the document would have been privileged he could not look at it to
determine what was in it, so that would not have solved the issue.
[71] When asked whether, having now seen Ms. McKay’s e-mail advising the
disclosure did not come into the institution, Mr. Bulmer retained any doubts in
that regard, Mr. Bulmer indicated he did. Indeed, Mr. Bulmer indicated that
would have been the case even if he was advised at the time, as there is no
21
indication regarding how it was determined the information had never come into
the institution. However, he then conceded he could, perhaps, have looked at
the Inmates’ mail logs to see if they had received anything from their lawyers’
office.
[72] It is interesting to note that in cross-examination, Mr. Bulmer indicated it was his
recollection that by the time the breach occurred, Inmate 2 was no longer at the
jail. He pointed out this was consistent with the Statement of Defence filed by
the Crown in a civil suit brought by the grievors in this matter. [More will be said
regarding this later].
[73] It is also perhaps worth noting that, in reviewing the grievors’ personal
information initially contained in the Crown Brief, Mr. Bulmer indicated Ms. St.
Amand was no longer at the address listed by the time of the disclosure. [This
had not been put to Ms. St. Amand]
EMPLOYER’S EVIDENCE:
Mel Happonen
[74] Mr. Happonen is currently the Project Lead, Major Capital Project - Cell Unit,
Institutional Services. Prior to that position, and from November 2018, he had
been the Superintendent of Thunder Bay Jail. At the time at issue, Mr.
Happonen was Acting Deputy Superintendent of Operations at the Thunder Bay
Jail, with a home position as a Security Manager.
[75] Mr. Happonen provided more detail regarding his actions when approached by
Ms. St. Amand regarding her conversation with Inmate 1, which he indicates
occurred mid-day on Friday, July 4, 2014.
[76] Mr. Happonen testified he called Detective Constable West, the lead investigator
in the assault for which Inmate 1 was charged, and explained what had occurred.
Mr. West called back shortly after, and advised that he had contacted the Crown
and determined that the grievors’ home address and phone numbers had been
22
included in the Crown brief, but had now been removed, and the defence counsel
would not forward that information to the Inmate.
[77] While Mr. Happonen understood from Detective Constable West that the
grievors’ personal information had been removed, and Inmate 1’s lawyer would
not pass the information on to the Inmate, the matter was not “sitting well” with
him, as the grievors’ contact information should have simply been the “Thunder
Bay Jail”.
[78] Consequently, that same afternoon, Mr. Happonen contacted Regional Director
Lucier, and suggested the Law Enforcement Investigation Unit be engaged to
investigate. The request for authorization included a summary of the issue to be
forwarded to the Unit lead so an investigator could be assigned. The approval
for involvement of the Law Enforcement Investigation Unit was received that
afternoon.
[79] As indicated above, that same day, i.e. Friday, July 4, 2014 [at 3:58 p.m.] Mr.
Happonen advised the grievors that their phone numbers and home addresses
were listed in the disclosure, but had been removed, and that the Thunder Bay
Police, Crown Attorney, and Defence counsel had all been advised.
[80] The following Monday, July 7, 2014, at 9:55 a.m. Mr. Happonen sent the e-mail
to the grievors, also referred to earlier, advising them the EAP was available to
them; that he was consulting with the Law Enforcement Investigation Unit
regarding the issue; and, that they should feel free to contact him with any
concerns they may have.
[81] Also as set out earlier, on that day, Mr. Happonen responded to Mr. Lundy’s
inquiry regarding why the disclosure had occurred, and whether there was any
news from the Law Enforcement Investigation Unit. Specifically, Mr. Happonen
replied that he was following up with the Law Enforcement Investigator, who
would be attending at the Jail that day, and reiterated that Detective Constable
West had confirmed the grievors’ telephone numbers and addresses had been
23
removed from the disclosure. He also stated “[T]his specific matter has been
corrected by Thunder Bay Police and the Provincial Courthouse”, and that the
Law Enforcement Investigator would be looking into the issue further with the
chiefs of police so the issue did not reoccur throughout the Province.
[82] In addition, Mr. Happonen advised the Law Enforcement Investigator wished to
meet with each staff member to “assist in anyway”. Finally, Mr. Happonen
agreed with Mr. Lundy that it was troubling the information had not been properly
vetted.
[83] Mr. Happonen was starting his vacation the next day and had come in to initiate
the process for the investigation, including meeting with the Law Enforcement
Investigator, and conveying to him what information Mr. Happonen had.
[84] Mr. Happonen indicated that Ms. McKay was aware of what had occurred and
was responsible for managing the issue for the remainder of that week.
[85] As indicated earlier on or July 15, 2014, Mr. Lundy emailed Katherine Kinger,
then-Regional Director, and requested that a complete investigation be
conducted to ascertain precisely how their personal information was
compromised and disseminated, and in turn their health and safety put at risk.
[86] On July 27, 2014, Mr. Lundy followed up with his grievance, referenced at
paragraph 48, regarding the Employer’s failure to respond to his request for a
“full investigation” of what had occurred. Mr. Happonen forwarded this
communication to senior management, including Daryl Pitfield, Deputy Regional
Director Northern Region.
[87] Mr. Pitfield subsequently sent an e-mail to Mr. Happonen later the same day.
Mr. Pitfield indicated he had spoken to “Correctional Service Oversight and
Investigations”, an investigative body of the Ministry, and that “obviously this
does not fall within their scope of investigations”. He also indicated the
investigation done locally and through information from the Crown disclosed that
24
Mr. Lundy’s contact information was never released to Inmate 1. He indicated he
would respond to Mr. Lundy regarding his request for a full investigation. No
further evidence was led in this regard, other than the grievors’ evidence that no
one ever advised them their personal information was never released to Inmate
1.
[88] On July 28, 2014, Mr. Happonen received a copy of the Law Enforcement
Investigator’s e-mail to Ms. McKay, in which the Law Enforcement Investigator
advised he had met with the grievors; spoken with the Crown Attorney’s office;
and, had determined there is no reason to believe the grievors’ addresses were
provided to the Inmates. The Law Enforcement Investigator also indicated there
was a new disclosure system “where this kind of problem will not be as
common”.
[89] Mr. Happonen testified he did not convey the above information to the grievors,
as he assumed the Law Enforcement Investigator shared that information with
them when he interviewed them, and in his follow-up. Nor did he or Ms. McKay
followed up with the Law Enforcement Investigator regarding the details of the
new disclosure system.
[90] When asked if thought had been given to “digging deeper” to determine how the
breach had occurred, Mr. Happonen pointed out the Jail does not have the
authority to investigate the Ministry of the Attorney General or the Thunder Bay
Police. Accordingly, management felt it best to “lead off” with contacting the Law
Enforcement Investigation Unit, which had the authority to determine what had
occurred. If as a result, it appeared more was needed from the Jail, they would
have considered whatever was within their authority.
[91] Mr. Happonen also responded to Mr. Bulmer’s suggestion that Inmate 1 be
placed in segregation, and his reference to Mr. Adam Capay. Mr. Happonen
pointed out that Mr. Capay’s extended period in segregation was held, in 2019, to
be a Charter breach, resulting in the staying of his murder charge. In any event,
Mr. Happonen indicated that at the time at issue, Inmate 1 was already under
25
“administrative segregation” in the “Special Handling Unit” awaiting pending
adjudication of a misconduct charge. He was released back to the general
population mid-July, 2014.
[92] In any event, Mr. Happonen pointed out that even if in segregation, inmates are
allowed to communicate with those outside the institution, including having daily
access to a telephone.
[93] Mr. Happonen testified he might have advised Mr. Lundy that his personal
information had not been given to Inmate 1, as Mr. Lundy would come to the
office to discuss operational issues. When it was pointed out that Mr. Lundy had
testified he had not been advised, Mr. Happonen queried: “Didn’t I send an
earlier e-mail saying that?”
[94] Mr. Happonen also indicated he may have told the other two grievors verbally
that their personal information was never given to Inmate 1, but conceded he did
not tell them via e-mail. He further conceded he could not recall speaking to the
grievors one-on-on, but suggested he may have “passed it on in general
conversation”. He stated it was odd he would not have.
[95] Mr. Happonen also indicated he was surprised the Law Enforcement Investigator
didn’t tell the grievors that Inmate 1 had never seen their personal information.
He agreed this was important information for them to know, but conceded he had
not followed up with anyone to confirm they had been told.
[96] Mr. Happonen was asked if anything in Ms. St. Amand’s detailed request for a
leave of absence, set out at paragraph 29 “jumped out’ at him, he responded it
was that Ms. St. Amand had included a reference to her personal information
having been shared – as he was already aware of the situation with the two
relatives. However, no more was said in that regard.
[97] Mr. Happonen testified that during his time at the jail, he had run into former
inmates numerous times outside the institution: in retail stores; restaurants; night
clubs; and, grocery stores. He pointed out this was reflective of Thunder Bay not
26
being a big city. He described the interactions as ranging from just eye contact
to a quick chat, and indicated none were negative in nature.
[98] Mr. Happonen indicated it had never crossed his mind that he could be followed
home, but understood that could happen. He conceded he has heard of
corrections officers having a negative interaction when encountering former
inmates, such as an argument, resulting in police being contacted. In instances
where staff were harassed or intimidated, either the police or the Law
Enforcement Investigation Unit would be contacted.
[99] Mr. Happonen indicated he did not check the mail log for Inmate 1 at the time of
the incident. However, he also testified there in no directive or policy which
prohibits correctional officers from checking the mail log if they have legitimate
reason to do so.
[Efforts to locate the ledger for 2014 during the course of the hearing were
unsuccessful]
Deborah McKay
[100] Ms. McKay retired as the Superintendent of Thunder Bay Jail in November 2018.
At the time at issue, she was the Deputy Superintendent of Administration.
[101] On July 9, 2014, Ms. McKay forwarded to Ms. Lucier, Mr. Happonen’s e-mails of
July 7, 2014 advising the grievors their phone numbers and home addresses
were listed in the Crown disclosure and had now been removed, and that the
Employee Assistance Program was available to them.
[102] Ms. McKay then sent the subsequent e-mail to Ms. Lucier, 1 hour and 19 minutes
later, referred to in the ASF, in which she advised Ms. Lucier that Inmate 1 had
not seen the disclosure and that it had remained with his lawyer in Toronto.
27
[103] When asked how she knew this to be the case, Ms. McKay described the same
procedure described by Mr. Bulmer with regard to incoming mail, i.e. it is
recorded in a log which is kept in a locked cabinet in the Sergeant’s office. Ms.
McKay pointed out there would be a record of the disclosure if it came in, and
after filling out a request form, Inmate 1 would have been afforded an opportunity
to read the disclosure in a private interview booth. There was also a log in the
Sergeant’s office where it would be recorded if Inmate 1 reviewed the disclosure,
and when it was locked back up in the cabinet.
[104] In her evidence in-chief, Ms. McKay could not recall if she looked up the
documents herself or assigned someone to do it, but testified she reviewed
Inmate 1’s file to see if it contained the Request Form to review the disclosure.
However, based on her review she concluded the disclosure at issue had never
been in the institution.
[105] However, in cross-examination, when asked if the procedure she described for
processing and recording in-coming mail was done in this instance, she indicated
she did not know, she was just describing the procedure. When pressed if she
knew if anyone checked Inmate 1’s file to see if he filled out a request form she
responded she could not recall. In redirect, when asked why then, had she
indicated to Ms. Lucier that Inmate 1 had not seen the disclosure, she indicated
that although she did not conduct the investigation herself, and didn’t recall
where she got the information, to the best of her knowledge the information that
Inmate 1 had never seen the disclosure was correct.
[106] As indicated earlier, in the same e-mail to Ms. Lucier, Ms. McKay advised it was
Inmate 1's lawyer that advised him that staff names, addresses and phone
numbers were included in the Crown Brief. However, Ms. McKay could also not
recall how she became aware that was the case.
[107] While Ms. McKay conceded the possible disclosure of personal information was
an “issue of significance”, she also testified that in Corrections work, there is
always a risk that inmates will get staff’s personal information. Ms. McKay
28
maintained that in fact, it is very easy to do so. She testified that an inmate once
got her telephone number despite it never being published since she started
work in 1984. As a further example, Ms. McKay pointed out that staff schedules
are quite open in the institution and the inmates have daily phone access. An
inmate could call someone to advise when a staff member is going off duty and
leaving the institution. It would be easy to then have someone pull up to the
front of the jail, as there are no gates or restricted access, and follow the staff
member home.
ARGUMENT:
Union
[108] The Union alleged the Employer failed to adequately respond to the privacy
breach of the grievors’ personal information, resulting in a significant risk to their
physical and psychological health and safety.
[109] Specifically, the Union maintains that when advised of the breach, the Employer
failed to conduct any investigation. Instead, the Union characterized the
Employer as having done the “bare minimum” by requesting the Law
Enforcement Investigation Unit investigate and provide security advice to the
grievors.
[110] This was despite Mr. Lundy’s request of July 15, 2014, to the then Regional
Director, requesting a complete investigation be conducted to ascertain precisely
how their personal information was compromised and disseminated, and in turn
their health and safety put at risk.
[111] The Union pointed out that had the Employer conducted an independent
investigation into the matter, it might have at least determined how the grievors'
personal information came to be included in the disclosure, as Counsel for the
Union was able to do in the course of preparing for the litigation of this matter.
Specifically, he was advised in May 2019, by Counsel for the Thunder Bay Police
Department, that the witness list for the disclosure was generated by the
29
Department’s Records Management System, which auto-populated the
information from another data base. It was then up to the Crown to redact the
witness list.
[112] Union Counsel pointed out this was the explanation the grievors had been
looking for, for just under 5 years since the events at issue.
[113] The Union submits that “even worse”, the Employer had information that could
have given the grievors assurances the inmates didn't see the disclosure, but did
not bother to advise them of this.
[114] The Union submitted this was the case in the face of the grievors’ obvious stress
and requests for information.
[115] Specifically, the Union also referred to Mr. Happonen’s e-mail of July 4, 2014,
advising the grievors an error occurred at the Courthouse and their phone
numbers and home addresses were listed in Inmate 1’s disclosure. The Union
pointed out that although Mr. Happonen also advised that the Thunder Bay
Police, Crown Attorney and Defence Counsel dealing with this matter had all
been advised, and the grievors’ personal information had been removed, he
provided no details regarding how or why the error occurred, or how far their
personal information was disseminated, including whether either Inmate received
it.
[116] The Union further submits that when Mr. Lundy inquired, on July 7, 2014 why his
name was included in the disclosure, and whether there was any more
information, and what plans are being put in place, Mr. Happonen’s response
was vague. He simply advised the disclosure had been corrected, in that the
information had been removed. However, he gave no indication of whether
either Inmate received the grievors’ personal information, and no indication
regarding what was being put in place to ensure such a breach did not reoccur.
30
[117] Rather, as demonstrated by the July 9, 2014 e-mail from Ms. McKay to Ms.
Lucier, assuring her the inmates never saw the disclosure, and the Law
Enforcement Investigator’s e-mail of July 28, 2014 to Ms. McKay, indicating there
was no reason to believe the grievors’ personal information had been disclosed
to the Inmates, management assured each other, but never bothered to assure
the grievors.
[118] The Union submits it would have been a straightforward matter for those same
members of management to send that information to the grievors in an email, or
advise them personally, as they were in regular contact with the grievors about
the issue around the same time they were exchanging emails amongst
themselves.
[119] Further, while Ms. McKay testified it would have been the standard practice at
the time to check the mail logs to determine if the disclosure was received from
Inmate 1’s counsel, she had no notes indicating this had occurred. She testified
she did not do so herself. Nor could she confirm that someone else had done it.
Further, no mail logs for that period have been located.
[120] Yet, the Union pointed out checking the log was squarely within the Employer’s
power, and would have addressed the grievors’ concerns.
[121] Instead, the grievors only became aware their private information had not been
provided to the Inmates as a result of the disclosure during these proceedings.
Indeed, the Union also pointed out these e-mail communications are the only
evidence that is, in fact, the case. Accordingly, the Union submitted the grievors
are still somewhat in the dark regarding how much of their information remains
“out there”.
[122] The Union pointed out there was no dispute that if the information was released
to Inmate 1, with known gang affiliation, this could compromise the grievors'
ability to do their jobs, as a result of pressure or blackmail by the inmates.
31
[123] Consequently, the Employer knew, or ought reasonably to have known that the
grievors had a genuine and reasonable fear about their health and safety, in and out
of the workplace, as well as for the health and safety of their families.
[124] In addition, the grievors were put at risk regarding their psychological health and
safety, as it was objectively reasonable for them to be afraid regarding the risks
posed by their personal information being release to the Inmates. Had the
Employer assured them the Inmates never saw the disclosure with their private
information, that could have provided the grievors with significant comfort regarding
their health and safety. As it was, however, the grievors were left in a type of limbo,
and with the feeling their Employer was not taking the matter seriously.
[125] The Union maintained the Employer simply “doesn’t get it”, in that it continues to
have very little appreciation of the potential risk the grievors were facing, or the
genuine and reasonable fear the grievors were experiencing for years. The
Union submits the Employer continues to be oblivious to the actions they could
have taken to provide some reassurances to the grievors about their health and
safety.
[126] While the Union conceded there were areas of inquiry that were exclusively
under the jurisdiction of the Law Enforcement Investigator, it pointed out there
were elements which were under the Employer’s purview.
[127] Specifically, the Union submits the Employer did not look at its own mail logs.
Nor did it speak to the inmates or share relevant information with the grievors.
The union submits this left the grievors afraid and worried regarding their own
safety and that of their family members. The Union pointed out that in OPSEU
and Ontario (Ministry of Community Safety and Correctional Services), 133
C.L.A.S. 279, Arbitrator Carrier found the delay of just under two months before
the Employer took the appropriate steps to be excessive, whereas in this
instance, the grievors did not know for years, what information the inmates had
received, or how widely their personal information had been dispersed.
32
[128] Consequently, in the face of the risks to the grievors, the Union submitted the
Employer failed to take all precaution reasonable in the circumstances. The
Union maintained this breached the health and safety protections contained in
the Collective Agreement, as well as the Employer’s obligations under the
Occupational Health and Safety Act.
[129] The Union asked that I allow the three grievances and remain seized regarding
the appropriate remedy.
[130] The Union relied on the following authorities: Toronto Transit Commission v.
A.T.U. ,78 C.L.A.S. 435; OPSEU and Ontario (Ministry of the Solicitor General),
(Harris) Re, 146 C.L.A.S. 120; Ontario (Ministry of Transportation) and OPSEU
(Louis), Re, 119 C.L.A.S. 81; Ontario and OPSEU, Re, 123 C.L.A.S. 14 (Briggs);
OPSEU and Ontario (Ministry of Community Safety and Correctional Services),
(Carrier) #1, supra; OPSEU and The Crown In Right of Ontario as Represented
By The Ministry of Community Safety And Correctional Services, 2019 ONSC
2952 (Carrier) #2; OPSEU and Ontario (Ministry of the Solicitor General)
(Grievor), Re, 149 C.L.A.S. 68 (Carrier) #3.
Employer
[131] The Employer pointed out the onus remains on the Union to show the grievors'
health and safety were actually in jeopardy.
[132] However, while the grievors' fundamental concern was that their personal
information had been given to an Inmate, the Employer determined early on this
was not the case.
[133] Rather, the Employer maintained the evidence demonstrates it acted quickly and
reasonably once advised of the issue. Further, the Employer points out Mr.
Happonen, in his July [7], 2014 email to Mr. Lundy frankly acknowledged he
found the situation to be "troubling." The Employer submits there can be no
question it treated the situation seriously. The Employer maintained this is
33
demonstrated by the speed with which it reacted, including engaging the Law
Enforcement Investigation Unit to investigate the matter.
[134] The Employer also takes issue with the Union’s allegations that the Employer did
not investigate, or provide the grievors with relevant information. The Employer
submits both cannot be true. Rather, if the Employer did have relevant
information, then clearly it had taken steps to ascertain the information.
[135] Specifically, the Employer points out Mr. Happonen reached out to the Thunder
Bay police the same afternoon he was advised of the issue, and determined the
information had been removed from the disclosure and that the defence lawyer
would not forward the information to the Inmate. Therefore, by the same
afternoon, Mr. Happonen had determined the risk has been averted.
[136] Further, by that same Friday afternoon, Mr. Happonen obtained authorization to
engage the Law Enforcement Investigation Unit. He then spoke with the
assigned Law Enforcement Investigator on Monday July 7, 2014.
[137] Also, by Wednesday, July 9, 2014, Ms. McKay confirmed to Regional Director
Lucier that Inmate 1 did not receive the disclosure package. The Employer
submitted it that while Ms. McKay testified she did not recall the specifics
regarding how she got the information, this is understandable given that over 7
years had passed by the time Ms. McKay testified. However, in her email, Ms.
McKay, was documenting her information, in a contemporaneous manner, to her
superior. Further, Ms. McKay testified the information in her email was correct.
The Employer pointed out there is no basis to suggest the information she
conveyed in the e-mail is untrue.
[138] Finally, in an update from the Law Enforcement Investigator, on July 28, 2014, he
confirmed his investigation had determined there was no reason to believe the
grievors’ addresses were provided or disclosed to the inmates.
34
[139] The Employer acknowledges that not all the grievors were satisfied with the
timelines. For instance, Mr. Bulmer maintained Mr. Happonen should have
involved the Law Enforcement Investigation Unit on Friday, July 4, 2014 rather
than the following Monday morning. However, as Mr. Happonen testified, the
engagement of the Law Enforcement Investigation Unit required the approval of
the Regional Office, and the preparation of a summary of the issue to be
forwarded to the Unit lead, both of which occurred that Friday July 4, 2014.
Accordingly, the Employer submits that reaching out to the Law Enforcement
Investigation Unit on the next working day cannot possibly be a breach of the
Employer’s health and safety obligations.
[140] The Employer further submits the grievors’ complaint they did not receive
sufficient information from the Employer also falls short.
[141] Rather, the Employer points out it did communicate its findings by email on July 4
and 7, 2014, including the steps that had been taken to correct the issue.
[142] While the grievors took issue with the Employer’s failure to share Ms. McKay’s
and the Law Enforcement Investigator’s determination that there was no reason
to believe the grievors' personal information ever got to the inmates, the
Employer submits the grievors’ complaint is, in essence, a complaint the
Employer did not "shown its work" to support its conclusion that the problem had
been resolved.
[143] The Employer conceded the emails sent to the grievors could have expressly
stated Inmate 1 did not receive the information, but submitted the “potential
ambiguity” they contained does not rise to the level of a breach of the Employer’s
health and safety obligations.
[144] Rather, the Employer maintained the additional information from Ms. McKay and
the Law Enforcement Investigator was, in effect, related to steps to confirm the
original findings. While some additional information might have been welcome
by the grievors, the Employer pointed out this was not a case where the
35
employer refused to provide any information or simply provided a bottom
conclusion that there was no risk.
[145] Further, the Employer submitted that the testimony of at least two of the grievors
makes it unclear whether it would have made a difference even if this additional
information had been communicated to them earlier. Specifically, Ms. St. Amand
testified that in her view, the Employer's position in the hearing that their personal
information was not disclosed to Inmate 1's lawyer was “a b[o]ld-faced lie”. The
Employer submits it is clear her ongoing misgivings against the Employer stem
from her continued belief that her information had, in fact, been disclosed to
Inmate 1.
[146] Similarly, Mr. Lundy suggested the Law Enforcement Investigator was engaged
in a coverup to assist those responsible for the breach.
[147] Consequently, the Employer submitted that for these two grievors at least, it does
lie in their mouths to complain that they never received information from the
Employer, which they would have dismissed as a cover-up or a b[o]ld-faced lie,
in any event.
[148] The Employer pointed out that even Mr. Bulmer indicated that he would still have
doubts as to how Ms. McKay reached her conclusion if the Employer did not
speak to Inmate 1, although he did not go so far as to accuse the Employer of
deceit.
[149] The Employer submitted Mr. Happonen’s and Ms. McKay’s expectation was that
the Law Enforcement Investigator would have shared his findings with the
grievors. Consequently, even if this expectation turned out to be incorrect, this
was not bad faith on the part of the Employer. Further, there was nothing
precluding the grievors from attempting to follow up with the Law Enforcement
Investigator themselves.
36
[150] Accordingly, the Employer submitted that even if it can be said the Employer
should have "shown its work", only a declaration is warranted at most.
[151] The Employer also submitted the grievors harboured unrealistic expectations as
to what the Employer could or should have done. As noted above, Mr. Bulmer
stated Mr. Happonen should have contacted the Law Enforcement Investigation
Unit on Friday, July 4, 2014 rather than Monday, July 7, 2014, and that Ms.
McKay should have confirmed the location of Inmate 1’s disclosure package on
Monday, July 7, 2014 rather than on Wednesday, July 9, 2014. However, the
Employer submits that even if these contacts and checks could have been made
earlier, the difference would be hours, and not days or weeks.
[152] Further, Mr. Bulmer’s suggestion that both Inmate 1 and 2 could have been put
into segregation until the Employer had assessed the threat level, would not
prevent the inmates from sharing information, as the institution still has to offer
these individuals the daily use of the phone.
[153] While the Employer conceded Mr. Bulmer was more circumspect as to whether
the inmates should have been put into segregation for the duration of their
sentence, it pointed out the example of Adam Capay demonstrates it is not
feasible to keep an inmate in long-term segregation even when the inmate poses
a security threat.
[154] While Mr. Lundy, on July 15, 2014, requested a “complete Investigation” be
conducted, the Employer points out that by July 15, 2014, it had already
confirmed that Inmate 1 did not receive the grievors' personal information. Nor
was it within the Institution’s authority to investigate the Crown's office or the
Thunder Bay police. Rather, the best chance of determining what occurred was
with the Law Enforcement Investigation Unit, which has that jurisdiction, and can
determine if further investigation is needed.
37
[155] While Union Counsel was able to obtain additional information from Counsel for
the Thunder Bay Police, the Employer points out this were either in response to
or on the heels of a summons.
[156] Further, the Employer submits Mr. Lundy’s reliance on memos from 2005 to
assert the breach should not have occurred, is ultimately a red herring, as they
speak to different circumstances. Specifically, while they indicate personal
information of Ministry staff should not be requested by or provided to the police,
that is now what occurred in these circumstance. Rather, the information was
inadvertently auto-populated from another data base.
[157] Finally, the Employer submitted it is important to bear in mind that the risk of
encounters with former inmates while in public is inevitable in a City the size of
Thunder Bay. This was demonstrated by Mr. Happonen’s experience
encountering former inmates in public. Further, Ms. McKay spoke of the ease
with which an inmate could have staff member followed home, because staff
schedules are relatively open in the jail.
[158] The Employer relied on the following cases: Ontario Public Service Employees
Union (Bondy) v Ontario (Community Safety and Correctional Services), 2017
CanLII 25457; Ontario Public Service Employees Union (Dionne) v Ontario
(Community Safety and Correctional Services), 2017 CanLII 30330; College of
New Caledonia and Faculty Assn. of the College of New Caledonia (Failure to
Provide a Safe Workplace), Re 2016 CarswellBC 2564; and, Toronto Community
Housing Corp. and Toronto Civic Employees' Union, Local 416, CUPE (Bower),
Re 2012 CarswellOnt 16263.
[159] The Employer submits these cases demonstrate that either there was no breach
in this instance, or that a declaration would be an appropriate remedy.
[160] In OPSEU (Bondy), supra, the grievor complained that the employer failed to
take appropriate measures in relation to threats he experienced. Specifically,
during a unit search, an inmate threatened to find out where the grievor lived, go
38
to his residence and rape his wife. The inmate also told the grievor that he was
going to “fuck him up”. A second inmate circled the grievor in a manner the
grievor perceived as menacing.
[161] Following the grievor advising management of the incident, the Deputy
Operations Manager counselled him with respect to the available of the EAP. In
addition, the grievor’s security concerns were referred to the Law Enforcement
Investigation Unit, and a Law Enforcement Investigator attended at the grievor’s
residence and conducted a security review with the grievor and his family.
[162] The grievor had expressed a concern that one of the two inmates continued to
serve his intermittent sentence at the institution. However, for operational and
logistic reasons, the employer was unable to transfer the inmate, but took steps
to ensure the inmate was not placed in a unit where the grievor was working.
[163] In his decision, Vice-Chair Brian P. Sheehan noted it is imperative that
correctional officers are protected, and appropriate steps are taken in cases of
threatening or intimidating behaviour by an inmate. Vice-Chair Sheehan also
stated, however, that an officer “may, inherently, have to endure instances of
verbal abuse from inmates of an institution”. Although such verbal abuse is not
to be condoned and should be addressed, not every incident of verbal abuse
necessarily constitutes a “health and safety risk, in the sense of necessarily
being an imminent threat to the safety and wellbeing of the officer”.
[164] The Employer pointed out that Vice-Chair Sheehan did not find any fault with the
employer’s investigation of the matter; advice regarding the availability of EAP;
or, engagement of the Law Enforcement Investigation Unit. Vice-Chair Sheehan
also accepted the employer’s decision not to move the second inmate because
of operational reasons.
[165] However, Vice-Chair Sheehan concluded the employer’s policies indicated the
police should have been contacted due to the serious nature of the threats.
Accordingly, Vice-Chair Sheehan found the employer failed to meet its Collective
39
Agreement obligations to make reasonable provision for the health and safety of
the grievor. While Vice-Chair Sheehan declared a breach of the Collective
Agreement, he determined a damages award was not appropriate in the
circumstances, because the failure to call the police was more properly seen as
an error in judgement, and did not constitute an act of bad faith or arise from a
cavalier attitude on the part of the employer towards the grievor’s security
concerns.
[166] The Employer pointed out that in Bondy, supra, Vice-Chair Sheehan upheld
aspects of the employer’s response that are similar to those employed in this
instance.
[167] In OPSEU (Dionne), supra, the grievor alleged the employer failed to respond
appropriately to a perceived threat of physical violence made to him by a
Sergeant at the institution. While the employer had orally advised the grievor of
its conclusion that there was no breach of any applicable policy, it had failed to
advise him of its conclusion the statement was not an actual threat of physical
violence.
[168] Consequently, Vice-Chair Ian Anderson concluded the employer did not properly
document its investigation and formally advise the grievor of its conclusions.
Vice-Chair Anderson issued a declaration to that affect but dismissed all other
aspects of the grievance.
[169] In College of New Caledonia, supra, the grievors alleged the employer failed to
provide a safe workplace when it did not properly investigate a faculty member
complaint about the conduct of a student. Allegations against the student
included his perceived hostile attitude and harassing behaviour towards female
faculty. The Acting Director of Student Services met with the student and
determined there was no reason to remove the student from the College, as she
did not see any threat. The College then emailed the faculty to advise that a
meeting had been held with the student, and that the student had entered into a
40
behavioural contract. The College refused, however, to advise the student’s new
instructors in 2015 regarding the contents of the ongoing behavioural contract.
[170] Arbitrator Wayne Moore concluded the College had acted reasonably in terms of
how it addressed the complaint. He did comment that it would also have been
reasonable for the College to advise the Union and Faculty that the WorkSafeBC
process had been engaged, and also to have taken steps to provide more
information generally, notwithstanding its concerns about student privacy.
However, beyond these comments he dismissed the grievance.
[171] In Toronto Community Housing Corp. and Toronto Civic Employees' Union, Local
416, CUPE (Bower), supra, Arbitrator Howard Snow, concluded the employer in
that instance, did not conduct a reasonable investigation of the grievor’s human
rights complaint, in that the employer failed to report the results of its
investigation to the grievor. However, he declared the remedy for this violation of
the Human Rights Code was a declaration of breach by the employer.
Union Reply
[172] In addition to reiterating its initial argument, the Union took issue with the
Employer’s suggestion that in any event, the grievors would not have believed
the Employer regardless of what they were told. The Union submitted this is
speculative, unfair to the grievors, and not reflective of the facts before the
Board.
[173] The Union further submitted that the Employer’s authorities are all
distinguishable and not on point.
Notes
Ms. St. Amand’s Testimony Regarding Placement on a STSP Leave
41
[174] Ms. St. Amand gave detailed testimony, and took issue with her placement on a
STSP leave near the end of November 2014, subsequent to her October/
November 2014 request for leave.
[175] This issue was not addressed in the Union’s final argument.
[176] In its Response, the Employer submitted that any allegations relating to the
STSP absence are not properly within my jurisdiction, as Ms. St. Amand's
grievance was dated August 18, 2014, and the events relating to the STSP
absence did not occur until after October 2014, at the earliest.
[177] In addition, the Employer pointed out that any complaint related to the STSP
absence is a distinct issue from the health and safety allegations raised in the
August 18, 2014 grievance, and that it cannot be said the STSP issue is part and
parcel of the original grievance.
[178] The Union did not challenge or address the employer’s submission in this regard
in its Reply.
[179] Accordingly, I do not understand the Union to be asserting the issue of Ms.
Amand’s STSP leave is before me in resolving these grievances, and I have not
referenced any of that testimony
Inmate 2
[180] As indicated earlier, the grievors have also sued the Crown for the release of
their personal information, and that claim remains outstanding. The Crown’s
Statement of Defence, dated September 30, 2016 was entered as an exhibit in
these proceedings, not for the truth of the contents, but rather to demonstrate the
lack of historic clarity regarding the details of what actually occurred.
42
[181] In that Statement of Defence the Crown asserts: 1) the Crown Attorney Office
was informed of the statements made by Inmate 1 on or about July 4, 2014,
before they had sent disclosure to Inmate 1’s lawyer. Rather, the Crown
Attorney’s office sent disclosure to Inmate 1’s lawyer on or about July 7, 2014,
after they had been informed of Inmate 1’s statements; and 2) that the charges
against Inmate 2 were withdrawn on May 8, 2014 and he was not in custody in
July 2014.
[182] While the truth of the above statements is not before me in these grievances,
they do raise some perplexing questions.
[183] I do note that Ms. St. Amand conceded she saw the Statement of Defence
sometime in 2016, and knew at that time that the Crown’s position was that the
inmates had never received the grievors’ personal information. Mr. Lundy also
conceded this was the case. It does not appear Mr. Bulmer was ever asked
about that aspect of the Statement of Defence.
ANALYSIS:
[184] Let me begin by being clear that I fully appreciate the potential risk posed, both in
the Institution and at their residence, by an Inmate’s possession of personal
information which can be leveraged against correctional officers. This is
particularly the case in instances such as this, where the grievors were witnesses
with regard to the crime with which Inmate 1 was charged, and are in turn
perceived to be a risk to the Inmate.
[185] Accordingly, while the parties have now agreed the grievor’s personal information
was never released to Inmate 1, I appreciate the concern and fear the grievors
experienced subsequent to Ms. St. Amand’s conversation with Inmate 1.
Employer’s Duty
43
[186] There was no dispute that supervisors are required to take every precaution
reasonable in the circumstances for the protection of a worker, as set out in
section 27 (2)(c) of the Occupational Health and Safety Act, R.S.O. 1990,
Chapter 0.1 (OHSA), or that it is an implied term of the collective agreement that
a supervisor’s managerial authority is to be exercised in a manner consistent with
that provision. (see Toronto Transit Commission v. A.T. U., supra at paragraph
234).
[187] This is mirrored in Article 9 of the Collective Agreement:
9.1 The Employer shall continue to make reasonable provisions
for the safety and health of its employees during the hours of their
employment. It is agreed that both the Employer and the Union
shall co-operate to the fullest extent possible in the prevention of
accidents and in the reasonable promotion of safety and health of
all employees.
[188] Accordingly, it is the duty of the Employer, as represented by the Institution’s
management, to investigate and take steps to resolve any risk to employees’
safety and health. (OPSEU and Ontario (Ministry of the Solicitor General), Re,
146 C.L.A.S. 120, and this requires more than a perfunctory inquiry. (Ontario
(Ministry of Transportation) and OPSEU (Louis), Re, 119 C.L.A.S. 81.
[189] Nor was there any dispute that the obligation to protect workers’ safety includes
both their physical and psychological safety. (Toronto Transit Commission v.
A.T. U., supra at paragraph 231).
[190] Further, this includes the duty to take reasonable steps in investigating employee
complaints. (Ontario and OPSEU, Re, 123 C.L.A.S. 14, supra).
Cases relied upon by the Union
[191] I find that other than their articulation of general principles, including those set out
above, the cases relied on by the Union diverged significantly from the facts in
this instance.
44
[192] For example, in Toronto Transit Commission, supra, Arbitrator Shime described
the circumstances of a grievor who experienced abuse and harassment by his
supervisor over a significant period of time as follows:
248 …
… Mr. Stina's behaviour and conduct demonstrate an attempt to bring
about a peaceful and non-litigious resolution of any differences or
dispute that existed between him and Mr. Zuccaro; he tried to talk to Mr.
Zuccaro, he tried to talk to Mr. Zuccaro's supervisors and to deal with
the matter through the Human Rights department, and, in all instances,
he was met with either an insensitive response or stonewalled until he
was finally forced to resort to the grievance arbitration process. …
[193] In OPSEU and Ontario (Ministry of the Solicitor General), supra, the grievor was
inter alia, subjected to a barrage of occurrence reports which occurred over the
course of close to two years, and which the employer knew to be without merit.
Many of the occurrence reports were not raised with the grievor. Rather, they
were simply dismissed by the Institution’s management as groundless.
[194] At paragraph 87, Vice-Chair Harris found the employer, as represented by the
Institution’s management, was duty bound to investigate and take steps to
resolve whatever workplace harassment was occurring against the grievor,
including considering the occurrence reports in their totality and ensuring the
grievor was aware they had been filed against her. However, by failing to
investigate the “incidents fomented by her coworkers in the form of groundless
ORs” Vice-chair Harris found the employer abdicated it duty under OHSA, to
protect the grievor from harassment.
[195] In Ontario (Ministry of Transportation) and OPSEU (Louis), supra, the grievor
was harassed and subjected to racial discrimination by co-workers over the
course of two years. Despite her reaching out to management to advise she
had been assaulted by one of her co-workers, Vice-chair Harris found the
manager, in essence, did nothing. Rather than investigate the allegation, he
simply accepted the offending co-worker’s denial.
45
[196] A subsequent incident on TTC, where a co-worker called the grievor a
derogatory name, was discounted as “not a workplace incident”, and no action
taken. A subsequent complaint by the grievor regarding what she perceived to
be a racially motivated comment was again not seriously investigated, and the
alleged perpetrator’s denial accepted.
[197] Vice-chair Harris found, at paragraph 94, that the employer did not show nearly
the degree of diligence it ought to have in investigating the grievor’s complaints,
and allowed the grievance.
[198] In OPSEU and Ontario (Ministry of Community Safety and Correctional
Services), supra, the grievor was assaulted and subjected to racial slurs by a co-
worker at a work-related function in a setting that involved numerous employees.
Arbitrator Carrier found the employer’s failure to recognize this resulted in a
poisoned work environment for the grievor. Accordingly, by delaying any
investigation into the matter by almost two months, rather than taking immediate
action, Arbitrator Carrier found the employer had failed to expeditiously
investigate the incident and take steps to shield the grievor from potential fallout
or recriminations.
[199] These cases all reflect situations where the employer, aware of circumstances
which, on their face, subjected an employee to treatment or circumstances that
put their physical or psychological safety at risk, did nothing or essentially nothing
to address the risk, or delayed taking any steps for an unreasonable period.
Alleged Failure to Investigate
[200] I am not persuaded the Employer’s efforts in this instance can, as argued by the
Union, be characterized as having done the "bare minimum" by requesting the
Law Enforcement Investigator to investigate and provide security advice to the
grievors.
46
[201] This ignores the actions Mr. Happonen took the very same afternoon he was
advised of the apparent breach, and prior to engaging the Law Enforcement
Investigation Unit.
[202] Mr. Happonen called Detective Constable West, the lead investigator in the
assault for which Inmate 1 was charged, and explained what had occurred.
Detective Constable West was well positioned to deal with the matter quickly as
was demonstrated by his returning Mr. Happonen’s call shortly after. Detective
Constable West advised that in the interim, he had contacted the Crown,
determined the grievors’ home address and phone numbers had been included
in the Crown brief but had now been removed, and that Inmate 1’s defence
counsel would not forward that information to Inmate 1. This was all critical
information that went directly to determining whether the grievors were at risk.
[203] Further, despite the immediate risk having been resolved, the matter was not
“sitting well” with Mr. Happonen, as the grievors’ contact information should have
been the “Thunder Bay Jail”. Consequently, still that same afternoon, Mr.
Happonen contacted the Regional Office and received authorization to engage
the Law Enforcement Investigation Unit to investigate and provide security
support to the grievors. This included the preparation of a summary of the issue
to be forwarded to the Unit Head.
[204] Further, Mr. Happonen communicated updates to the grievors the same day, as
well as the following business day. He advised them regarding the availability of
EAP, that he was consulting with the Law Enforcement Investigation Unit, and
told them to feel free to contact him with any concerns they may have. Mr.
Happonen also advised Mr. Lundy, the Union Local President, that he agreed the
matter was troubling, and that the Law Enforcement Investigator wished to meet
with each staff member to “assist in anyway”.
[205] These were rational, reasonable and responsible steps, which make it clear the
Employer took the risk to the grievors seriously and moved quickly to protect and
47
support them. This is dramatically different from the inertia and indifference
apparent in cases relied on by the Union.
[206] It is worth pointing out that there was no suggestion the Thunder Bay Jail was
responsible for the breach. Indeed, the grievors were clear they were not
alleging this to be the case. As a result, any meaningful investigation would have
to be conducted by an entity with authority to investigate the Crown and the
Thunder Bay Police, both of which were beyond the authority of the Employer.
[207] The entity that did have that authority was the Law Enforcement Investigation
Unit. Accordingly, the Employer engagement of the Unit to investigate and
provide security support to the grievors cannot be characterized as the “bare
minimum.” Rather, as Mr. Lundy agreed in his testimony, the Law Enforcement
Investigation Unit specializes in precisely the situation the grievors were facing.
[208] Further, despite Union Counsel’s assertion the Employer ought to have
conducted its own, parallel investigation, by questioning Inmate 1 regarding
whether he had actually received the disclosure, I note the grievors themselves
chose not to do so, for reasons that were persuasive. That is, they did not want
the Inmate or Inmates to be alerted to their concern regarding the disclosure,
which I understood to mean they did not want the Inmates to be aware the
information may have some currency value to them.
[209] In any event, it is not apparent any weigh could be placed on any information
which might have resulted. According to Ms. St. Amand’s uncontested evidence
in this regard, depending on the situation, some inmates "will lie about everything
constantly to get out of trouble". It may be that in this instance Inmate 1 would be
of the view a particular answer would provide a strategic advantage, rendering
that answer less than reliable.
[210] Finally, and most importantly, the employer had already been advised from what
is arguably a more reliable source i.e. the Law Enforcement Investigator, that
there was no reason to believe the disclosure made it into the Jail. Similarly,
48
that was Ms. McKay's information. Although details of the source of her
information were lost in the annals of time, it was her recollection this had
probably been determined by someone checking Inmate 1’s mail log. However,
she was confident that her e-mail to her superior, made contemporaneously to
whatever investigation was conducted, was correct. No one suggested
otherwise.
[211] This explains why the Employer did not make any inquiries of Inmate1 or rush to
check the logs. The Employer already had the answer. There was no
compelling reason to question Inmate 1, and the logs simply confirmed
information already within the Employer’s knowledge. Nor was it necessary or
appropriate to place Inmate 1 into segregation (although it appears he was in a
form of segregation in any event.)
[212] As a result, I find the Employer conducted the necessary and appropriate
investigation within its authority, and did so in a timely manner.
[213] I further find that engaging the Law Enforcement Investigation Unit to conduct the
broader investigation that was beyond the Employer’s authority was appropriate,
and reasonable in the circumstances.
[214] I also find the Employer, with one obvious exception, was open and forthcoming
in advising the grievors, again in a timely manner, what investigation it had
conducted, the information it had obtained, and the source of that information.
The one obvious exception is dealt with below.
[215] Accordingly, I find the Employer did not fail in its duty to protect the health and
safety of the grievors by failing to conduct an investigation into the alleged
release of their personal information.
Alleged Failure to Protect the Psychological Health of the Grievors by Failing to
Share Critical Information
49
[216] It ought not be lost sight of, that for much of the history of these grievances, the
focus was very much on the Employer’s alleged failure to investigate the breach
of the grievors’ personal information. Specifically, a “complete Investigation”
was what Mr. Lundy initially requested on July 15, 2015. A full investigation was
also the focus of the first, and only detailed grievances filed, first by Mr. Lundy on
July 27, 2014, and then by Ms. St. Amand on August 2, 2014. Specifically, those
grievances stated:
…Recently I had sent a request that the Employer run a full investigation
in regards to these events, however I have yet to hear anything and I
must follow through on proper timelines. The Employer, being the
Government of Ontario, failed to follow set procedures which are in
place to assist in protecting my Health and Safety.
[217] Indeed, a full investigation remained the focus of the somewhat generic
grievances before me. However, in addition, the grievors now also maintain the
Employer’s failure to advise them that their personal information was never
received by Inmate 1 caused years of stress and fear.
[218] In this regard, it is apparent from the evidence, things went awry very early in the
parties’ communications.
[219] I appreciate Ms. St. Amand was taken aback by Inmate 1’s approach and
information, and consequently did not ask him if he had actually seen the
disclosure. Indeed, she conceded she ought to have asked him if that
was the case. Unfortunately, and instead, she assumed both Inmates 1 and 2,
as well as Inmate 2’s cellmate had the grievors’ personal information, including
their home addresses.
[220] Mr. Lundy testified he understood from Ms. St. Amand that Inmate 1 had his, as
well as the other grievors’ personal information, and that consequently he
believed that to be the case.
[221] Similarly, Mr. Bulmer testified that as a result of a text he received from Ms. St.
Amand, he also concluded Inmate 1 had their personal information.
50
[222] It appears none of the grievors specifically asked anyone in management if
Inmate 1 had actually seen the disclosure with their personal information. While
perhaps understandable, as they believed they already knew the answer, this is
also somewhat surprising given Ms. St. Amand’s testimony that depending on
the situation, some inmates will lie to improve their own circumstance. In any
event, the unfortunate result was that the grievors proceeded on the
understanding their personal information had been received by at least Inmate 1.
[223] Accordingly, at least both Ms. St. Amand and Mr. Lundy interpreted Mr.
Happonen’s e-mail of July 4, 2014 as confirming that Inmate 1 had received the
disclosure containing their personal information. It did not. However, given that
the grievors were already of the view that was the case, one can see how they
would have come to that conclusion. For ease of reference, that e-mail is set out
again below:
An error occurred with the Courthouse when processing the disclosure
for [Offender 1]. Your phone numbers and addresses were listed in the
disclosure. Thunder Bay Police, Crown Attorney and Defence counsel
dealing with this matter have all been advised and your personal
information has been removed.
[224] It is less clear why Ms. St. Amand interpreted Ms. McKay’s email of July 9, 2014,
also set out again below, as confirming that Inmate 1 had seen the disclosure
brief which contained their personal information. It clearly states the opposite:
Hi Lou Ann,
Fyi, Inmate 1 has never seen this disclosure, the disclosure has never
been in the institution, it is with his lawyer in Toronto. His lawyer told
him the (sic) that the staff names, addresses and phone numbers were
in there.
[225] While the grievors were not aware of Ms. McKay’s email prior to litigation, it
perhaps speaks to Counsel for the Employer’s suggestion that not all the grievors
were open to being persuaded of a different version of what occurred from the
one they had embraced.
51
[226] In any event, the Employer appeared, on the other hand, to proceed on the
understanding the grievors were aware their personal information was not seen
by Inmate 1.
[227] For example, it is telling Mr. Happonen testified he might have advised Mr. Lundy
in person that his personal information was never released to Inmate 1, as Mr.
Lundy would come to the office to discuss operational issues in his capacity as
the Local President.
[228] When advised Mr. Lundy had testified he had never been told his personal
information was never released to Inmate 1, Mr. Happonen seemed surprised
and asked “Didn’t I send an earlier e-mail saying that?”
[229] It appears Mr. Happonen was referring to his July 7, 2014 e-mail to Mr. Lundy,
which indicated Detective Constable West had confirmed the grievors’ telephone
numbers and addresses had been removed from the disclosure, and that this
specific matter had been “corrected” by Thunder Bay Police and the Provincial
Courthouse”. However, in the circumstances, that was, at best, ambiguous.
[230] While Mr. Happonen conceded he did not tell Ms. St. Amand or Mr. Bulmer the
disclosure was never seen by the Inmates via e-mail, he indicated he might have
told them verbally. While he could not recall speaking to the grievors one-on-on
for that purpose, he suggested he may have “passed it on in general
conversation”.
[231] Further, when asked if anything jumped out at him in Ms. St. Amand’s request for
a leave of absence, he indicated it was the reference to her personal information
having been released – as he was aware of the situation with her relatives. I
understood this to mean he was not aware she believed her personal information
had been released to the inmates.
52
[232] That being the case, it is not clear why, once aware that was her view, Mr.
Happonen did not take any steps to advise Ms. St. Amand she was incorrect.
However, as this was not put to him, I will not speculate.
[233] In any event, it is apparent the Employer has never concluded or taken the
position the grievors were not entitled to know their personal information was
never received by the Inmates. To the contrary, as Mr. Happonen observed, it
would be “odd” that he did not tell them. He also indicated he was surprised the
Law Enforcement Investigator did not share that important information with them.
Yet that appears to be what occurred.
[234] What also appears odd, however, is that the grievors never asked for
confirmation of what was clearly just their assumption.
[235] Mr. Happonen, at the end of his July 7, 2014 e-mail, was very clear he was open
to discussing what had occurred, as he advised the grievors to feel free to
contact him with any concerns they may have. Yet none of them did so.
[236] Further, he and Mr. Lundy met regularly to discuss operational matters which
would have provided an opportunity for Mr. Lundy to raise the issue.
[237] There was also no apparent reason why the grievors could not have asked the
Law Enforcement Investigator whether the disclosure had made it into the hands
of Inmate 1.
[238] Finally, there was no reason the grievors could not have reviewed the mail log for
Inmate 1 to determine whether a crown brief had come in. Mr. Bulmer was
clearly familiar with the process, and indicated it would take only 5 minutes for
someone to walk down the stairs and look into the cabinet to see if it had arrived.
He initially suggested he could not do so because he may not have been on shift,
or because he could not do so “without a purpose”. Presumably, the facts of
what had occurred would have been sufficient “purpose”.
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[239] Mr. Bulmer also indicated that if the crown brief had come into the jail he could
not examine it as it was privileged. While that is correct, a determination that it
had not come into the jail at all would have told him, and presumably the other
grievors, what they needed to know about whether their personal information had
been disclosure to the Inmate 1.
[240] In any event, Mr. Bulmer did subsequently concede he could have perhaps
looked at the Inmates’ mail logs to see if they received anything from their
lawyers’ office.
[241] Further, Mr. Happonen confirmed there was no directive or policy which prohibits
a correctional officer from checking the mail log if they have a legitimate reason
to do so. Again, presumably the grievors’ concerns would have constituted a
“legitimate reason”.
[242] Even if the grievors were reluctant, for whatever reason, to examine the log
themselves, had they requested that someone from management do so, that
would have alerted the Employer to the fact the grievors did not have that critical
information.
[243] In any event, there is simply no evidence to suggest the Employer knowingly
withheld the information from the grievors. To the contrary, Mr. Happonen
believed either he or the Law Enforcement Investigator provided that information.
Mr. Happonen conceded this was important information for the grievors to have.
The reason the Employer didn’t “get it” as articulated by Union Counsel, is that
the Employer did not understand what “it” was.
[244] Rather, the Employer appeared to understand that what the grievors were
seeking was an expansive investigation which it did not have the authority to
conduct. This was currently and had historically been correct.
[245] Accordingly, to the extent there occurred a breakdown in the communications
between the Employer and the grievors regard this issue, resulting in
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unnecessary concern and stress on the part of the grievors, I find the grievors
bear some responsibility in that regard.
[246] That having been said, it is apparent the Employer ought to have been clearer in
its communications with the grievors. However, I find this lack of clarity was
unintentional and resulted in large part from a misunderstanding regarding the
grievors’ interpretation of the information they did have, and the specific focus on
a “full investigation” referenced in their communications.
[247] However, I do not find this lack of clarity rises to the level of a breach of either the
Occupational Health and Safety Act or the Collective Agreement.
[248] Rather, I find on the basis of all of the evidence, the steps the Employer took to
protect the safety of the grievors were rational, reasonable and responsible.
DISPOSITION:
[249] For all the reasons set out above, the grievances are dismissed.
Dated at Toronto, Ontario this 28th day of July 2022.
“Tatiana Wacyk”
Tatiana Wacyk, Arbitrator