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HomeMy WebLinkAbout1978-0128.Thompson et al.79-05-14Before: IN ME MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. Russell Thompson et al and The Ministry of Correctional Services Professor K. P. Swan - Vice-Chairman Mr. E. J. Orsini - Member Ms. P. A. Sigurdson - Member For the Grievor: Mr. R. Nabi, Grievance O,f.ficer Ontario Public Service Employees :!nion 1901 Yonge Siree% Toronto, Ontario For tk Employer: Mr. 2. Gibson, Personnei Administrator Ministry of Correctional Services Central Region 2 Dunbloor" Suite 312 Islington, Ontario Hearings: October 27th, 1578 November 18th & ldth, 1978 December Pth, 1978 January lZth, 1979 January 13th, 1979 January ldth, lP7g Suite ZlDC, 180 Dundas St. West Toronto. Ontario .; i . , -2- The present grievance arises from an incident which took place on May 7, 1978. The grievors were all at the time probationary correctjonal officers employed at the Metropolitan Toronto L!est Detention Centre, but none of the usual issues affecting the termination of employ- ment of probationers arises in this particular case, since the Employer's position is that they were dismissed within the meaning of section 17 (2)(b) of the c rown hnployees Collective Bargaining Act, and that there existed just cause for that dismissal. Extensive hearings were held in this matter, and the Board also took a view of those parts of the Deten- tion Centre where the disputed incident took place. We propose to review this evidence and indicate our findings of fact before we turn to the arguments of the parties and the defences raised on behalf of the grievors by the Union. There were really seven principal participants in the chain of incidents on May 7, 1978 although others were involved peripherally as well. The first events occurred between an inmate named Todd and Alain Hall, a 22 year old Correctional Officer 1. CO1 is the probationary classification; following successful completion of the probationary period.officers advance to the CO2 level, but the job functions of both levels are essentially the same and a CO2 has no specific supervisory authority. The first level of supervisory responsibility is the CO3 rank, and officers at that level are often referred to as "Corporals" to indicate their authority. On the morning in question Mr. Hall was working an overtime shift from 7 a.m. to 3 p.m. His regular shift was 2 p.m. to 10 p.m.; he had worked that shift on May 6 and worked it again consecutive to his overtime on Way 7. He and an officer named 'Munns were in charge of Unit 26, a grouping of cells having 42 inmates. i - 3 - We have only Hall's uncontradicted testimony about this first incident, and we accept it as accurate. Breakfast is distributed at about 7:30 a.m., and half of the inmates at a time are allowed out of their cells to get breakfast, after which they return to a day room area to eat. Each inmate is entitled to two pieces of toast, but on the material occasion Todd took three pieces. Hall ordered him to return the toast, and Todd, in doing so, said to Hall "I should ram this toast up your face, you fucking turkey." The dynamics of this incident are better understood in the context of the characters involved and the issues at stake. Todd was a federal prisoner on remand for charges of theft, prowling by night and parole violation. He is 27 years old, 5 feet 9 inches in height and 150 pounds in weight. He is also extremely fit, and regularly worked out on weights and punching bags in the gymnasium during recreational periods. Whether it is true or not, there was also a general belief in the Centre that he is an experienced boxer. Hall is a larger man, also quite fit and athletic; he is, however, quite young and very yobthful in appearance. I He felt that Todd was trying to take advantage of his inexperience, to "try him on". He viewed Todd as an experience& and manipulative inmate and, although some witnesses were at pains to paint Todd in such a way as to suit their own view of the events that followed, we are prepared to accept that the description above is essentially accurate and that Hall had some reasonable grounds for his apprehension. From this time on, Hall's treatment of Todd reflected some anxiety, and we accept that Todd's behaviour manifested an aggressive stance. Hall spoke to Todd later in the morning about the toast, and Todd complained that other officers always let him take extra. When i - 4 - Todd was instructed to do cleaning dut, ies, he got two other inmates to do his work for him. Around 10 a.m., Hall took two inmates to the visiting area, and met a Mr. Vehovics, an experienced CO3 who was the "Corporal" in charge of the cell units on Level 2 that shift. He told Vehovics of the earlier events, and asked him to speak'to the inmate. Vehovics arrived at 2B around 10:30, and spoke to Hall and Todd together. He made it clear to Todd, in front of Hall, that if his behaviour did not improve he would be charged with a disciplinary offence. Vehovics confirms that Hall was concerned about Todd’s behaviour and that he was afraid that his authori'ty was being deliberately undermined. Hall's evidence is that Todd continued, in subtle ways, to stir up the other inmates during the morning. He reported this to Vehovics, and the latter ultimately told Hall to charge Todd and to take him to the segregation area during the "lock-up" time, a quiet rest period after lunch. Segregation is used for punishment in the institution as well as for protective custody and for close observation of suicidal or violent inmates; it is therefore not unusual to send an inmate to segregation when disciplinary problems have been encountered. Hall prepared a charge sheet accusing Todd of the use of foul language, and prepared to move Todd to segregation just before 2 p.m. At that time Hall went to Todd's cell and told him to dress. Todd did so, dressing in blue denim trousers, a T-shirt and running shoes, with underwear shorts and wool socks underneath (there are a number of versions of Todd's dress in evidence to choose from; this one appears best to coincide with Centre practice and probability.) were, according to Hall, a few angry protests from Todd when he There earned -5- his destination and the reason for it, but no one else was present to corroborate this testimony. Vehovics, who saw a part, not specifically identified, of the transaction inside the Unit, gave vague evidence that Todd acted neither well nor badly, that he wasn't aggressive but that he clearly did not want to go to segregation. Todd and Hall were then admitted to the corridor by Mr. Osman Bacchus, a CO2 acting as corridor officer, and at this point two more of the principal partici- pants came upon the scene. Mr. Paul Martin, a Recreation Officer 2, and Mr. Barry Beaver, a C02, had just returned a group of inmates from a recreation period to Unit 2C. They arrived at 28 just as Hall and Todd came out into the corridor. Vehovics says he instructed those officers to assist Hall; Hall and Martin say that Hall initiated the request, and Beaver says he just went along of his own accord. In any case, these two officers stayed with Hall and Todd until the material events were over. From this point on, there are unfortunate divergences in the evidence which are critical to a subsequent determination of.credibility, and we shall therefore set out the stories as they were given in testimony before us. We should note, however, that there are dynamics again involved in the events which we describe. All witnesses are agreed that Vehovics was wrong to send Hall along with Todd to segregation. Except when unavoidably detained, the CO3 in charge ought personally to escort an inmate to segregation, and he ought to have assistance to do so. When the CO3 cannot go, the officer directly involved in the disciplinary incident should never be asked to escort the inmate; he is emotionally involved, as is the inmate, and the chances of friction are too great. Hall was, therefore, placed in a difficult position by Vehovics' poor judgment in this situation, and Vehovics was in fact subsequently dis- ciplined. i r - 6 - The trip from Unit 2B to the Segregation area involves a walk along a corridor, around a 45' corner, down a flight of stairs, along another corridor, and through a locked security door into Segregation. There are also a few other doorways to negotiate. Hall's story is that Todd caused difficulty on the way. Specifically, he says that a short distance out of the Unit Todd balked, swore at Hall, and then "sort of lunged" toward him. Hall says that Martin, who was walking with Hall slightly behind and to either side of the inmate, restrained Todd by grabbing his arm. At doorways at the top and bottom of the stairs, Hall says the inmate again stalled, and Martin had to go ahead and open the door before the inmate would follow. Hall admits -that he used foul and abusive language to the inmate during this walk, but says that the inmate also was profane and abusive. Hall admits that he was angry, and says that he had never seen an inmate behave like this before. Martin's evidence confirms Hall's as to these three separate incidents of aggression on the inmate's part. He recalls hearing loud and angry voices when he arrived at Unit 29, and he describes the use of abusive language by the inmate to Hall, whom he called, among other things, a "fucking goof". He agrees that Hall was also loud and abusive, but says that Hall's basic objective was to move Todd along the hallway. Martin's description of the first incident is that Todd stopped and asked what he was being charged with, to which Hall replied "Shut uo,and keep going." At this point, Martin says, the inmate attempted to grab Hall, and Martin had to hold his right arm to prevent him. At the stairs, Flartin confirms that Todd balked and would not open the door, so that Martin had to step through first. This happened both at the top and the bottom of the stairwell. -7- These incidents were also observed, with a lesser degree of visibility, by Vehovics and Sacchus. Vehovics saw Todd stop and argue, and saw Hall and Martin take his arms to move him alone. This incident gave him some concern that the escort might not be completely uncompli- cated, and he then went to Unit 2C to telephone for additional assistance Bacchus also heard the inmate address Hall in an abusive and challenging manner, and heard the words "fucking goof" addressed to Hall by Todd. He says that Hall replied'"Don't call me a fucking goof." His evidence is that Todd was acting in a challenging and abusive fashion. He was unable to see, from where he stood, the.physical confrontations described by Hall, Martin and Vehovics Beaver's evidence of these events differs markedly. He ascribes a!1 of the foul language to Hall, and testified that Hall physically pushed the inmate along the corridor. Beaver recalls the inmate saying "This is fucking stupid" on one occasion, but he otherwise describes the inmate as quiet, docile and not at all abusive or recalcitrant. Beaver not only does not recall the grabbing incident and Todd's balking at the top and bottom of the stairs, he expressly denies that they ocur- red. This dramatic divergence in the evidence is, of course, extremely important to our final determinations of credibility. Returning to Hall's narrative, the four principal participants arrived finally at the locked door to Segregation, where they pressed a buzzer to be admitted. The Segregation Officer was Norman Hose, a CO2 of some four years experience. Hose had been alerted by telephone by Vehovics of the impending arrival of an inmate, and had opened Cell No. 11. He opened the Segregation area door to admit Todd and his escort, and the group proceeded to Cell No. 11. Hall states, and Hose admits, that Hose -8- directed him to do a "strip search" of the inmate. A full search would involve ordering the inmate to remove all his clothing and inspecting it, article by article. A.body search would then be performed on the inmate by checking his ears, hair, mouth, armpits, soles of the feet and rectal area for concealed contraband. Hose's instructions were not explicit, and Hall began h~is search procedure in the usual way by ordering the inmate to remove his clothing. Hall says that the inmate was reluctant, and swore at Hall; Hall admits to swearing back. At this point, according to Hall's story, he was called to the telephone in the Segregation office by Hose. On his way to the telephone, Hall asked Hose for "baby dolls" for the inmate. This garment is like a dress, which pulls over the head of the wearer. It is tearproof and fireproof, and is difficult to fold or tie. It therefore lends little assistance to an inmate who is suicidal or violent, and thus is often used in place of standard institution clothing for such inmates. The precise scope of its proper / use was the subject of considerable argument, as we shall discuss later. The call was from Vehovics, who asked how things were going and indicated that he had sent for two other officers from the Admission and Discharge Area to assist with the inmate. Vehovics had indeed done so, and the officers who ~came were Roy Lennartz arid.RussellThompson,.the other two grievors and the last of the seven principal parti,cipants in the events of May 7. There does not appear to have been any particular reason for the choice of Lennartz and Thompson. They were both on duty in A & 0, and it is common to seek assistance from that area when required since officers can be more easily spared from there than from other duties, such as in the Units. Thompson had in fact received i‘ . - 9 - Vehovics' call, and he had asked Lennartz to come along. Although the employer attempted to suggest that their appearance was somehow related to the fact that they were friends of Hall, we can see no grounds for any finding but that they responded to the call rather than two other officers by the purest of chance. Thompson and Lennartz arrived at Segregation while Vehovics and Hall were talking on the telephone. According to Hall, they came through the door, which ought to have been locked, without assistance, spoke briefly to Beaver who was near the office, and proceeded along to Cell No. 11. Hall finished his call, and asked Hose again for baby dolls. Hose got them and gave them to Hall, who then returned to the cell. Hall places Lennartz, Thompson and Martin just outside the cell and Hose and Beaver a little further away at the time he entered the cell again. Hall's description of the events that followed is that he found Todd still with his socks on, and ordered him angrily to strip entirely. He then proceeded to search the inmate, who was facing the door, while Hall's back was to the door. Hall checked his feet, had him bend for- ward and ruffle his hair and then ordered him to open his mouth. He did so only slightly, and Hall told him angrily to hurry up. At that point Todd retreated a pace, and when Hall followed him he raised his hands suddenly. Hall, fearing a blow, pushed the inmate, who pushed back, and then grabbed his wrists. A struggle ensued, and Thompson and Lennartz came into the cell to assist. Fall's evidence is that they had some difficulty in subduing Todd by pressing him up against the wall in a very restricted space, so they turned him around to a table and forced h,'m to bend forward over it so that they could control him. - 10 - Todd immediately said that he had had enough, and the three officers released him. He paced angrily back and forth, but eventually he became calm, the search was completed (rather cursorily, it appears) and the inmate put on the baby dolls. Hall describes the force he and the other grievors used as the minimum necessary to carry out his duties, and expressly denies that, apart from the one push already described, he hit, kicked,~punched or otherwise struck the inmate, nor did he see either of the other two grievors commit any such acts. The evidence of the other two grievors largely confirms that of Hall. Lennartz agrees that the Segregation entrance was unlocked, and states that when he entered he spoke with both Hose and Beaver, who indicated that the inmate was giving problems. When the shouting between Hall and Todd had grown angry, he felt that he should lend some assist- ance, and he stepped inside the cell also and to the right, where he was joined by Thompson who stood to the other side. When the struggle between Hall and Todd began, he went to assist directly, and took Todd's left arm and shoulder to try to control him. He says that Todd was struggling violently, and kneed him hard in the thigh during the struggle. He recalls someone crying out a suggestion to pin Todd to the desk, and they did so. He expressly denies striking or kicking Todd, although he says that he had to grab at Todd a couple of times to control him as they moved him over to the desk and pinned him. Thompson's evidence is also to the same effect, and he confirms the open door, the brief words with Beaver, the shouting, the struggle and his intervention along with Lennartz. He thinks he suggested turning Todd onto the desk, and says that he had to stand partly on the bed to try to pin Todd to the wall. He also denies that any blows or kicks were administered to Todd, and he considers the force he used to be appropriate to the situation. - 11 - k!e turn now to the other witnesses to the events in Cell Ho. 11. Martin, who was called by the Union, confirmed most of the griever's testimony as to the order of events. Ye testified as to the inmate's initial reluctance to undress and as to the demand by Hall for baby dolls. He does not know whether the Segregation door was locked or not, but he does recall the entrance of Lennartz and Thompson and their arrival at the door at Cell No. 11. He also verifies that he was standing at the end of the open door, and had a reasonable view into the cell itself. He places Todd against the back wall, with Hall in front of him with his back to the door. He recalls Hall's anger, the shouting, and the entry of Lennartz and Thompson'into the cell to take up positions on either side of the door. He also saw the inmate's hands come up suddenly, the push by Hall, the struggle and the intervention by Lennartz and Thompson. Although the inmate was temporarily blocked from his view for ten seconds or so, he says that he had a clear view of all three officers and, except for the push by Hall, he saw no kicks at all. He admitted that it would be impossible for him to say that there were no punches delivered at all, but he certainly did not see any such thing. He described the role of Lennartz and Thompson as merely an attempt to control and subdue the inmate and put an end to the struggle. Hose was called by the Employer to testify. His evidence is that he did not leave the door unlocked, but his testimony otherwise coincides kith that already described as to the events leading up to the confrontation in Cell No. 11. He admits that he asked Hall to do the strip search, and relates that Hall asked for, and got, the baby dolls. Once the events in the cell begin, however, Hose's evidence becomes very confused. He places himself inside the cell behind Uall, which is - 12 - confirmed by Martin. He recalls that Hall struck the inmate, and says he 'did so twice, but admits that it might have been a hard shove rather than an actual blow with the fist. He also says that Hall attem- pted to force the inmate's mouth open, and that this led to the struggle. Once Lennartz and Thompson got involved, Hose says, they each struck the inmate while Hall held him on the desk, landing perhaps three blows each, although he admits he could not see blows landing in every case. Hose also recalls that both he and Beaver ordered the grievor to stop. Beaver was also called by the Employer, and his evidence differs, far more dramatically than Hose's, from the version put for- ward by the grievors and supported by Martin. Beaver, like Hose, des- cribes the inmate as passive and cooperative for the most part. He has nothing to say about whether the door was locked or not, and he does not confirm any of the details of Hall's trip to the telephone, the request for baby dolls, or the positioning of Lennartz and Thompson. His version has Hall and Todd in the cell, with Hall verbally abusing the inmate and Todd cooperating fully with the search. Beaver says that Hall suddenly struck Todd with the forearm across the chest, thus knock- ing him back onto the bed. When Todd got to his feet, Hall struck him twice more in the body. At this point, Todd took up a defensive stance, as for boxing. Beaver testifies that at this point Lennartz and Thompson buzzed, came in, and rushed immediately past him into the cell just as Hall got the inmate in a headlock. Beaver then describes a melee last- ing some 90 seconds in which all three grievors kicked and punched the inmate, one of them standing on the bed to do so. Beaver describes seeing kicks and blows to the grievor's naked (or nearly naked - the evidence is in some confusion) body which left the inmate moaning, breathless and in considerable pain. eeaver says that he yelled repeatedly - 13 - at the grievors to stop,,and finally succeeded in stopping them. At that point only, he says, did Hall ask Hose for baby dolls, and only then did Hose go for them. The ooly other evidence of the major events comes from a medical report prepared by the nurse on duty. She was called to the cell to examine the inmate, although it was,never made clear whether she came at the inmate's request, because of Hose's concern or merely because a health examination was standard procedure on admission to Segregation. She was not called as a witness, but according to Hose she was given some version, not available to us, of the incident from the inmate. Her report states simply that she found a scrape by the inmate's right testicle approximately 1" in length. No other evidence as to the actual condition of the inmate is available. We are thus faced, as to the principal events, with an irreconcilable conflict of testimony, and a difficult task of assessing credibility. The capability of each witness to give reasonably reliable eyewitness testimony is effectively corroborated by all, or most, other witnesses. Hall was clearly closest to Todd. Lennartz and Thompson were also directly involved in the final struggle, and everyone but Beaver places them inside the cell for a few moments before it broke out. Hose was also inside the cell, and virtually next to the participants. Martin was to the right side of the door opening, and Beaver confirms his position there. Beaver says he was to the left of Martin, and Martin, with some hesitation, thinks he was there for at least part of the time. We have viewed the Segregation area, and we' - 14 - can only conclude that it must have been extremely crowded. The cell is very small, and the five people inside must have taken up a consider- able amount of room. We are doubtful that anyone could accurately claim a clear view of the events inside, and thus some confusion and discrep- ancies are not surprising. The conflict in the evidence here goes far beyond that level of confusion which the objective circumstances could explain, however, and we must regretfully conclude that someone is either unusually confused or lying. All of the major witnesses but one proved on the surface to be' frank and believable; the exception iS Mr. Hose, whose evidence was confused, contradictory and apparently self- serving on some points. Rut the test of credibtlity is not the appearance of honesty. Rather, as is set out in the well-known judgment of O'Halloran J.A. of the British Columbia Court of Appeal in ~a~ryna V. Chorny, U952~ 2 D.L.R. 354, at p.p. 356-8, the Board here must make an objective assessment of the evidence against the background of plausibility and probability. The following passage, which is often quoted by arbitrators, describes our duty in such a case: "If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic. that the appearance of telling the truth is but one of the ele- ments that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce whet is called credibility, and cf. Raymond V. Bosanquet (1919). 50 D.L>R. 560 at p. 566, 59 S.C.R. 452 et p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavorable impression of his truthfulness upon the trial Judge, and yet the surrounding circum- stances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness - I.5 - carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satis- factorily appraise the testimny of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in com- bining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say 'I believe him because I judge him to be telling the truth', is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. The trial Judge ought to 90 further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command con- fidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the heats and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the parti- cular case. Against this background of the evidence we proceed to the arguments of the two parties and our conclusions. The Employer's case is that Beaver's evidence is essentially correct, and that on the basis of it we should find just cause for discharge. The Union raises a three- fold defence, the first two branches of which are technical in nature. Since either of them would, were we to accept them, have the effect of voiding the discipline imposed regardless of the merits~of the case, we shall deal with them first before referring to the evidence and our conclusions. First, the grievors were discharged by letters dated May lC, 1978 from R. P. Barrett, Superintendent of the Cetention Centre. The Union argues that there is no proof that Mr. Barrett was duly authorized to dismiss anyone, although his letters begin "Under the authority delegated - 16 - to me....". This issue was raised in Re ddsms and Ministry of correc- tional services, 140/77, where %he argument was rejected on the basis that the Union was estopped from asserting a lack of authority b? its prior conduct. Here the Union alleges, and the Employer does not deny, that it has raised this issue and maintained its position from the first, and that no estoppel therefore arises. The Union's argument is based on a number of provisions of the Public Service Act and the regulations thereunder. Section 22(3) provides for dismissal for cause as follows: A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his ministry. The parts of the Public Service Regulations, R.R.O. 1970, Reg. 749, es emended, which apply to this provision are found in Section 31. Specifically, subsection 13 provides for procedural requirements as follows: (13) Where a deputy minister dfsfiisses a 'public servant from employment for cause, the deputy minister shell, (a) deliver to the public servant a notice of the dismissal setting forth the reasons therefor and advising him of his right to a hearing by the Public Service Grievance Board; and (b) send a notice of the dismissal to the Com- mission and the Provincial Auditor. We observe also that s. 23 of the Public Service Act provides expressly for delegation by a deputy minister: 23.-(l) With the consent in writing of his minister, a deputy minister may delegate in writing any of his powers under this Act to any public servant or any class thereof in his ministry. (2) With the consent of his minister, a deputy minister may delegate any of his duties under this Act to any Public servant 0s any class thereof in his ministry. R.S.O. 1970, c.386, s.23; 1972, c. 1, 5. 2. - 17 - The union's arguments are that the specific way in which the dismissals here were carried out did not meet the requirements of Reg. 749, s.31(13), and that there is no proof that Mr: Barrett is a public servant, that he was assigned authority to dismiss in writing by the Deputy Minister, or that consent of the Minister was ever given in writing for such a delegation. As to the first point, we think it has been clear since the decision in Re Ferguson and Ministry of Industry and Tourism, 35/76, that the regulations relating to dismissal have little relevance to persons covered by the Crown Employees Collective Bargaining Act. In any event, the evidence before us makes it clear that the grievors each received "d notice of the dismissal setting forth the reasons therefor? as required by s. 31(13). There was no advice given that a hearing was available before the Public Service Grievance Board, but no such hearing is available to these grievors, who are entitled to come to this Board instead. No allegations were made that notices were not sent to the Civil Service Commission and Provincial Auditor. In our view, to the extent that s.31(13) of Reg. 749 is applicable, it was complied with. In coming to this conclusion'we emphatically do not find that the section must be complied with or a dismissal will be void;: in our view the Ferguson decision runs clearly counter to any such conclusion. As to the more serious point, the authority of the Superintend- ent to dismiss by delegation, we do not think that such technical argu- ments can or should succeed. At the hearing before us, a representative - 18 - of the Ministry appeared, presumably with the consent of the Deputy Minister. Witnesses from the institution were questioned, by the Union, arrangements were made for hearings and grievance meetings took place all in the open and without subterfuge. The Board's files include letters to the Deputy Minister from the Registrar, and letters to the Board from the Union showing a copy to the Deputy Minister. The law of evidence includes a general presumption in favour of regularity - omnia praesumuntur rite essa acta: See Lederman and Sopinka, The Law of Evidence in Civil Cases, pp. 379-380. Although we do not know of any case where such a doctrine has been applied in circumstances just like the present, we think it is reasonable to conclude that it should apply here. Here the Union is attempting to require the Employer to prove a chain of regularity for an action which purports to be carried out under statute merely by calling that regularity into question, without proof or even specific allegations of impropriety. Our juris- diction, as set out in the crown Employees Collective Bargaining Act, s.17~) (b), is to assess whether there was just cause for dismissal. We do not wish to decide whether that jurisdiction, which has a sub- stantive flavour, could or could not also extend in an appropriate case, to the exercise of indirect control over the delegation of authority pursuant to statute within the Public Service. There may be a case where a clear lack of authority could void a dismissal. But the onus of proof of so particular an allegation must be on the party' alleging. Without either a specific allegation or a jot of proof of any irregularity, we think that the presumption of regularity ought to orevail. - 19 - The second argument of a.procedural nature advanced by the UniOtl relies Ofl tW0 rWWlt cases, Nicholson v. Haldilrand-Norfolk Regional Board of Commissioners of Police et al., Supreme Court of Canada, October 3, 1978 and Downing Y Graydon et al., Ontario Court of Appeal, October 24, 1978. Each of these cases was advanced for the proposition that, as a basic minimum, a statutory authority must be exercised fairly; the reasons for dismissal in the present case ought to have been made known to the grievors and they ought to have been able to reply to them before the final decision was made. If'that is what these cases require, then the interviews granted on May 10 to each of.the grievors did not meet the requirement. Each was summoned to 'the Superintendent's office shortly after 7 a.m., informed of his dismissal, reprimanded briefly and then ushered out~without an opportunity to. reply at all to the allegations against him. We view, frankly, the uncontradicted evidence of those interviews with dismay, and observed at the hearing that an inmate being sent to Segregation has more protections of due process than a correctional officer being dismissed. On the other hand, we are-unable to conclude that such treat- ment would vitiate the penalty imposed were it otherwise justified. We regard Nicholson and Earning as quite different cases, since each involved the exercise of a statutory decision-making authority virtually beyond appeal.. The decision of the Superintendent is subject to the grievance procedure and subject to reference to this Board when no earlier resolution is reached. Before us, a full hearing of all substantive issues is available, and the question of just cause can be completely reviewed by the parties., In such circumstances, little would - - 20 - be achieved if we were to insist on due process in every decision by every management official. None of those decisions are final, all are subject to review before us on broad substantive grounds. The extra- ordinary remedy given by the courts in Nicholson and Downing was essential precisely because the discretionary decisions complained of there were subject to no such review on substantive grounds. Before us, the test of the Superintendent's action is not whether he acted fairly, even if wrong, but whether he was right or wrong:,regardless of how he ,acted. With so broad a power of substantive review, the protec- tion available to the grievors before this Board far surpasses the, mere procedural protections granted by the court in Nicholson. As a result, we do not consider that decision to be applicable to the present case. The only remaining issue, therefore, is which of the stories offered to us is more credible and whether, on that basis, the Employer has succeeded in proving, on a balance of probabilities, that it had just cause to dismiss the grievors. We shall examine, for the purposes of assessing credibility, the version of the events presented by the Union, although we do not wish thereby to be thought to be ignoring the fact that the onus of proof remains with the Employer. All of the grievors were essentially frank and open witnesses, and the stories which they told were supported, at least in surrounding detail, by all the other witnesses except Beaver. There were written reports (Exhibits 3, 4 and 5) submitted on the incident by the grievors at the order of Mr. Briar, the Shift Supervisor, who had heard of the incident and was concerned about its implications. These reports are brief, and the reports submitted by Lennartz and Thompson, - 21 - .who were working together in A & D at the time of writing their reports, are markedly similar. All of the reports suppress the fact that it was Hall who first pushed the inmate, as he admitted himself in evidence, and both Lennartz and Thompson suggested in their reports that the inmate pushed Hall. There is no doubt that these reports were less than candid, and some suspicion must clearly be cast on the grievors because of them. At the very least, they appear to indicate a desire by Lennartz and Thompson to protect Hall, whose conduct may have seemed to them to have been dangerously close to the limits of propriety. On the other hand, it is not clear that the presentation of coloured written reports followed by a much fuller and apparently franker explanation at the hearing necessarily detracts from the credibility of the grievors. Of the independent witnesses, Hose's evidence is the least cohesive on its face, and there are surrounding circumstances which cast suspicion on his testimony. First, his initial reaction to the incident was to submit a false report (Exhibit 6) in which he:permitted the inmate to attribute his injuries to a fall, and in which his own contri- bution was to state that he had not seen the inmate fall. This appears to have been an exercise pursuant to some sort of institutional code, by which differences are to be settled without recourse to higher authority. It is bad enough, but perhaps inevitable, that inmates engage in such practices; for correctional officers to abet them is dangerous and.wrong. When Hose was ordered to produce.a new report by his superior, his second attempt was hardly more forthcoming (Exhibit 7). He attri- buted the inmate's hurt to "an altercation with staff" and said that -22- he personally had seen no injuries. Mr. Hose also prepared a fuller report of the incident the following day, but that report was never produced in evidence before us. The circumstances of the preparation of that report are also of some concern to us. There is clear evidence, and indeed an admission by Beaver, that Hose and Beaver discussed the incident on at least two occasions before and during the preparation of their reports. Both deny that they collaborated on those reports, but the surrounding evidence that they at least attempted to get their version straight before sub- mitting them is almost overwhelming. Beaver chose to write his report in the Segregation area at a time when Hose was on duty there, although Beaver had no other sound reason to be there. His testimony is that it was the only quiet place in the institution, and that he went there to concentrate. Another officer, William McArthur, was kitchen officer at the time, and saw some of the interaction between Beaver and Hose. He had also spoken to Hose earlier, and says that Hose expressed some, concern about how to deal with the incident in his report. On Beaver's arrival, he recalls that Beaver used an expression like "Let's get on with it", which indicated to him an intention to collaborate. Finally, there was ample evidence that Hose is under considerable pressure, and is responding very badly to it. Much of the evidence was of incidents which occurred after the events here in question, and is, if one accepts the Employer's evidence and argument about the peer pressures sometimes exerted on correctional officers who give evidence against their colleagues, readily understandable. There is no doubt that Hose is responding badly to considerable pressure, although we have - 23 - no evidence that this pressure has been deliberately applied by other correctional officers. Some of it, rather, appears to be self-inflicted, in the sense that Hose is having some difficulty relating to his role in this matter. Whatever the reasons, his equivocal sense of his own position apparently contributed to making Hose an evasive and confused witness. Where there are conflicts, we can place very little weight on Hose's testimony. Beaver, on the other hand, was a self-assured and forthright witness, who appeared to be fully convinced that he was correct in : giving evidence against fellow officers who had coimnitted offences such as those he had described. The other officers who were asked;including the grievors, had only praise for Beaver as a correctional officer and esteem for him as a person. There are, however, serious inconsistencies in Beaver!s evidence, and serious divergences from the version of the circumstances surrounding the major events sworn to by all of the other witnesses. First, Beaver flatly denies all of the events in the hallway outside Unit 2B which go to establish a belligerent attitude on the part of the inmate, and recalls only abusive behaviour by Hall, includ- ing a physical push which no one else saw. His version has Todd co- operative and meek, while the objective evidence about Todd, as well as the testimony of other officers, including Vehovics, who had authorized segregation on a charge of foul language, makes the~version extremely unlikely. Martin, Vehovics and Bacchus, all independent witnesses, saw quite different behaviour, and Martin and Vehovics saw physical aggression by Todd which Beaver also denies. Indeed, Vehovics testified 3. ,i’ - 24 - that he called for additional assistance from A & D on the basis of this physical aggression, and there is objective corroboration of the fact of this telephone call, and Vehovic's sudden concern, in the otherwise inexplicable appearance of Lennartz and Thompson; this cor- roboration is entirely apart from the evidence of the other witnesses. Next, Beaver's evidence of the events in Cell No. 11 is also mysteriously lacking in agreement with the details observed by all other witnesses, including Hose. He recalls no belligerence by the inmate at all, and indeed attributes to the inmate a series of pleas to be left alone which no one else heard. He also describes the inter- vention by Lennartz and Thompson in a way which is not only at odds with all the other witnesses, including Hose, but which is extremely difficult to reconcile with probability. In his version they burst into the Segregation area and rushed in to begin to assault Todd with- out any pause, discussion or apparent reason. Everyone else saw them arrive in a calm manner, enquire about the problem, move inside the cell when the altercation began, and then participate actively only when a struggle had begun. Beaver's version is not only in conflict with all other testimony, it defies comnon sense unless one postulates an elaborate conspiracy or almost mindless savagery on the part of Lennartz and Thompson. We simply cannot accept Beaver's version of this event. Unfortunately, the sum of the questionable areas of Beaver's testimony amounts to a systematic denial of every single mitigating factor, explanation or excuse that Hall, in particular, or any of the grievors might have relied upon to put the events in Cell No. 11 into context. If Beaver were to be believed, his version would require us to find conduct far more reprehensible than even the Employer's argument - 25 - asserts. Why would a respected and effective correctional officer advance so extreme a version of events in the face of a wide range of conflicting evidence? The only possible reason may be the one advanced by the Union - that he found any physical force repugnant, as he readily agreed on cross-examination, and the events in Cell. No. 11, which admit- tedly involved the use of considerable force to subdue a struggling prisoner, must have been so repugnant to him as to cause him to lose his perspective about the event so as to render hisevidence untrust- worthy and selective. We do not have to enquire into Beaver's mental state. We do, however, have to weigh the credibility of Beaver's evidence. With considerable regret, we can only conclude that it must be considered to be so exaggerated as to be unreliable where i,t relates to the degree of force used, and unfairly selective where it relates to the provoca- tion offered to Hall and the reasons for the intervention of Lennartz and Thompson. We turn finally to the evidence of Martin. In our view, Martin's testimony approved to be objective and fair, and in accordance with a reasonable view of reali~ty. There were things which he could not see, and things which he did not see, but it is our conclusion. that his testimony is reliable and, to the extent that it conflicts with that of Hose and Beaver, more believable. As we noted earlier, the Union's final position is that the Employer has not proved, on a balance of possibilities, that it had / just cause to discharge the grievors. The cause advanced by that letter of discharge in all three cases was "involvement in an incident of brutality toward inmate R, Todd", and the Union first argued that - 26 - "brutality" for which we were offered restrictive definitions, ought to be strictly construed. We do not agree. The essence of the letters of dismissal is that the conduct of the grievors toward Todd was wrong, and grounds for discharge, and we do not consider that the use of epithets rather than restrained language vitiates the discharge. In any event, we are entirely content to characterize deliberate acts of violence or use of force against persons held in custody as brutality where those acts exceed the minimum reasonably necessary to protect the legitimate interests of the state, the safety and security of other persons and the organizational integrity of the correctional institution. We do not propose to set out a code for the use of force; that is not our proper role. But we accept - indeed insist - that the use of force beyond the limits of reasonable necessity is wrong, and properly should attract disciplinary action, including discharge. On the other hand, a prison - even when euphemistically called a correction centre - is not a place for tender sensibilities. Its very purpose is to separate from society those who might endanger it, and its operation must therefore entail the control of persons whose sense of the proper use of force is much less refined than is this Board's. We do not wish, therefore, to suggest a standard for the use of force which would endanger individual correctional officers or the proper functioning of the institution. Perhaps the best test which can ever be expressed in words is that force is permissible to the extent only that it is needed to overcome danger to individual persons or to the central and essential institutional goals of safety, security and order. The problem which thus confronts us is whether the Employer - 27 - has satisfied us that the conduct of any or all of the grievors has so exceeded these limits as to attract discipline - in this case in the form of discharge. After anxious consideration, we have come to the conclusion that the Employer's case in respect of Lennartz and Thompson has not been successfully made out. The vacillations of Hose's testimony and the selective emphasis of Beaver's evidence is simply not enough to overweigh the inherent consistency of the testi- mony of those two grievors themselves, and all of the other witnesses who gave evidence. We are, on the balance of probabilities, unable to accept the allegations of deliberate brutality; and we are there- fore prepared to accept that these two grievors did no more than employ that degree of force necessary to subdue an inmate'who was involved in a physical confrontation with a correctional officer. It is unfortunate that force had to be used in the circumstances, but we are unable to accept that the two grievors could have done anything else. The dispute between Hall and Todd had by then become a 'struggle, and there would appear to have been no alternative but that the struggle should be resolved in favour of the correctional officer. Whatever the merits of the dispute between Hall and Todd, no other resolution would have upheld order in the institution. After even more anxious consideration, we have concluded that the Employer has made out a case of misconduct against Hall. Whether "brutality", with its inferences of deliberate cruelty; is the appropriate word to describe Hall's conduct or not, he decidedly went beyond the bounds of necessary force in his dealings with Todd. By his own admission, and according to the evidence of Lennartz and Thompson, who were apparently concerned to minimize his - 28 - conduct, he pushed the inmate physically on an occasion when he would have been better to have backed away from a confrontation. It was this act which brought on the struggle between him and Todd, and which led to the unfortunate events which precipitated this arbitration. In our view of the evidence, however, we are prepared to accept that Hall's conduct was more aggressive than his own testimony admits. We note that, by his own admission, he was engaged in an angry shouting match with the inmate through the corridors of the~correctional centre. We note the inexplicable decision to issue "baby dolls" to the inmate, although no objective reason for such a step was forthcoming. It appears to us that Hall had lost control of the situation, and had resorted to bul~lying and physical strength to achieve control over the inmate. There was no need for such conduct; Hall was from the beginning accompanied by at least two experienced officers who could have assisted him. Instead he chose direct confrontation, and the unfortunate result I of that choice is the present proceeding. On the other hand, there is little doubt that Hall was left, by the negligent and thoughtless actions of more experienced officers, in a very difficult position. He had been sent to escort an inmate, whom he had himself charged because of an altercation involving them both, to Segregation as a punishment. He had been left by Hose, liter- ally alone, to carry out a strip search of the same inmate. Hall was left badly exposed by these errors of commission and omission, and a considerable part of the blame for the final result must therefore be with other people. Nevertheless, Hall himself must carry significant responsibility for the final outcome. ! - $ _, ,a - 29 - Our view of the facts is that he committed a gross error in judgement, one contrary to all of the formal rules of the institution and contrary to common sense. It would be difficult to categorize Hall's conduct as "brutality", but it is nevertheless conduct which is unaccept- able for a Correctional Officer, as is any conduct which replaces dignity and restraint with violence and profanity. We.do not think it matters that the Employer has used exaggerated language to.describe blameworthy conduct. We consider that, in all the circumstances, Hall has given the Employer just cause to invoke discipline. Finally, was the discipline imposed appropriate to the offence? Hall was a probationary employee, although near to the end of his probationary year. Although he had received favorable evaluations dur- ing his probationary period, to that time, the attitude and conduct which he evinced on this occasion would reasonably cause grave concern to the Employer. We would have considered discharge too heavy a penalty for an experienced employee, but on balance we cannot make the same find- ing in favour of the grievor. We are therefore not prepared to interfere with the penalty imposed on Hall by the Employer. In the result, the grievances of Lennartz and Thompson are upheld, and each is to be reinstated in employment without loss of pay or seniority, subject to the usual rules about mitigation. Because it is doubtful that any independent judgment could now be made about their probationary status, and because the evidence before us is overwhelmingly to the effect that each of them would have been successful in attaining permanent employment, we direct that they should be considered to have completed their probationary period successfully. The Board will remain seized of the Lennartz and Thompson grievances in the event that the parties are unable to agree on compensation or implementation of this award. The grievance of Hall is for the reasons set out above, dismissed. - 30 - We wish to thank Mr. Nabi and Mr. Gibson for their courtesy and assistance over the extended hearings in this matter. Dated at Toronto this 14th day of May, i979. \ Professor K. P. Swan Vice-Chairman I concur Mr. E. J. Orsini Member See below Ms. P. A. Sigurdson Member DISSENT I concur in the comments and reasoning of the majority of the Board, and with the disposition of the grievances of Messrs. Thompson and Lennartz. I cannot, however, agree with the conclusion relating to Mr. Hall. Mr. Hall's error in judgment was not only isolated, but was dir- ectly and largely contributed to by his superior officers. - 31 - The training of these correctional officers with reference to situations such as occurred here was poor. Mr. Hall was put into an untenable position by Messrs. Vehovic and Hose. No one tried to physi- cally remove Mr. Hall from the situation when it became heated. I would have ordered that Mr. Hall be reinstated in a position other than that of correctional officer without compensation and for a further six month probationary period. PAMELA A~"RDSON