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HomeMy WebLinkAbout1980-0348.Knudson.81-03-10 Decision180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G lZ8 -SUITE 2100 Between : Before: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. Ronald Knudson - And - The Crown in Right of: Ontario (Liquor Licence Board of Ontario) TELEPHONE: 416/598- 0688 348/80 Prof. J. W. Samuels Vice Chairman Ms. B. Lanigan Member Ms. M. Perrin Member For the Grievor: Mr. M. Levinson, Counsel Golden, Levinson J For the Employer: Mr. C. G. Riggs, Counsel Hicks, Morley, Hamilton, Stewart and Storie Hearings : January 9, 10 1981 February 12, 73, 14, 1981 2 CONTENTS Page INTRODUCTION................................ ......... 3 NATURE OF THE EVIDENCE.. ............................. 4 8 8 FACTS DISCLOSED BY THE EVIDENCE...................... ... a. The grievor's job and work record....... b. Form 163 and weekly reports ................ 12 c. Form 220 and semi-annual inspections ....... 19 CONCLUSION. .......................................... 30 LIST OF EXHIBITS............................... ...... 32 3 INTRODUCTION This matter involves now, this injustice has almost a grave injustice. Up to ruined the life and career of the grievor. I have come to this firm conclusion after a very careful and close review and consideration of all the evidence and argument put before this Board of Arbitration. The grievor was discharged from his employment as a District Inspector with the Liquor Licence Board of Ontario on May 20, 1980 (Exhibit 67). This followed the grievor's conviction on a number of criminal charges related to the way in which he had completed certain forms filed regularly with his employer. He had also been charged with the of- fence of taking benefits under section 11O(c) of the Cri- minal Code, but these charges were dismissed at trial. Indeed, the benefits suggested were trivial and even these benefits were not proved in spite of a massive police in- vestigation. Prior to the discharge, the grievor had been subjected to a very public condemnation in the local media in his Ottawa area, to national coverage of the allegation that he and others accepted benefits, to a rigorous investi- gation by the Ontario Provincial Police, and to suspension from his job without pay as. of April 5, 1979 , pending the disposition of the criminal charges which were brought against him and others on April 4 by the Ontario Provincial Police. The suspension was announced in the Ontario Legis- lature on April 5 by the Honorable Frank Drea, Minister of Consumer and Commercial Relations. It was not until April 9 that the grievor and others received personal word of the suspension by registered mail. The grievor and others grieved the suspension without pay. A hearing was held on December 19, 1979. The unanimous decision of that Board of Arbitration was that the grievor and others should be reinstated pending the trial (Grievance Settlement Board, 277/79, M. Eberts - Vice- Chairman). Unfortunately, this award had no effect for two reasons. Firstly, it was issued August 7, 1980, after the criminal trial was over and the suspension had been turned into a full discharge from employment. Secondly, the Liquor Licence Board appealed the award and the matter is still pending before the Divisional Court. The grievor now grieves his discharge and the employer has accepted that it has the onus of justifying the discharge. Our hearings convened in Toronto on January 9 and 10, and February 12, 13 and 14, 1981. NATURE OF THE EVIDENCE At the outset, the parties agreed that the tran- script of the 6-day criminal trial, and the exhibits filed at trial, would be evidence before this Board of Arbitra- 5 tion, except for several diaries of the grievor seized by the Ontario Provincial Police and not released to the ar- bitration. In addition to the exhibits at trial, we 'had filed with us several documents. the List of Exhibits at the end of this award. All of the exhibits appear in The Liquor Licence Board called as witnesses Mr. Russell Cooper, Executive-Director of the Board, and Mr. Everett Steele, who had been the grievor's immediate super- visor during the critical period. For the grievor's case, we heard Mr. T.R. Dempsey, also a former District Inspector for the LLBO in the Ottawa area and convicted of similar charges: Mr. J.A. Simpson, a District Inspector for the LLBO in Hastings County and in the Counties of Lennox and Addington; and the grievor himself. Before turning to the facts disclosed by the evidence, it is appropriate to make some general comments on the evidence before this Board of Arbitration. The trial transcript has been most useful. It must be recognized that we did not have the benefit of actually seeing and hearing the witnesses testify. a drawback. objective correctness of it and by assessing the manner of the witness giving evidence under oath. In this case, we This is One determines the truth of testimony by the 6 can assess the evidence at trial' by the objective correct- ness of it and by the comments on it made in the decision of His Honor Judge Elmer Smith. At this point two observations may be made: 1. Judge Smith characterized Mr. Knudson's evidence as follows (at page 15) - "I cannot unfortunately place any reliance upon the accused's diary or daily sheets or even the master sheets, which may well be a reconstruction, perhaps months perhaps years after the event, nor were the rationaliza- tions, exaggerations and constant irrelevant discourses on the volume of work, or the general evasiveness of the accused, were very successful in inspiring confidence in the acceptability of the accused's testimony." 2. Judge Smith accepted Mr. Steele's evidence concerning the need for a signature on the semi-annual inspection form (at pages 12- 13). He makes no other mention of the evi- dence of Mr. Steele. . With respect to the witnesses who appeared before this Board of Arbitration, the following comments can be made : 1. Mr. Cooper appeared to be a fully honest witness. However, he was not familiar with some matters very relevant to this case and acknowledged his lack of knowledge. In particular, he did not have any real know- ledge concerning the training of District Inspectors, nor the actual practice in the inspection field. He had never been per- sonally involved in inspection. He did not really know the reasons for the discharge. The decision had been made by Mr. Eber Rice, Chairman of the LLBO. 2. Mr. Steele was not a credible witness at all. His manner under oath was highly suspect. In many critical respects, his evidence has no objective credibility. For example, Mr. Steele agreed that Mr. Knudson was a con- scientious employee who normally worked around 55 hours per week. He also agreed that inspectors did not get overtime and therefore "banked' cap ls i f they worked 7 3. 4. 5. longer hours and made more visits than were called for in a 40-hour week. Yet he testi- fied that he expected the weekly reports of the inspectors to show the dates and times of visits accurately "within a half-hour or hour". It is obvious that if an inspector reported his 55-hour work week fully he would be entitled to a great deal of overtime under the Collective Agreement. Obviously, "some- thing had to give" and it was the accuracy of these weekly reports, of which I'll have a great deal more to-say shortly. Furthermore, Mr. Steele was quick to change his testimony whenever he was confronted with a document or reference to earlier testimony by himself or another senior employee which contradicted his statement. Mr. Steele gave all his evidence after re- questing protection under the Ontario and Canada Evidence Acts. Mr. Levinson asked that this award record his objection to Mr. Steele's request, because one may wish to attack the alleged privilege in subsequent proceedings. Mr. Dempsey has been implicated in this sit- uation, was convicted of several charges similar to those involved in the grievor's, conviction, and has also grieved his dis- charge by this employer. These circumstances mean we must be very vigilant in approaching his evidence. He testified before us. I observed him closely. I have considered the objective correctness of his testimony. accept his evidence as being truthful. I Mr. Simpson impressed me as a completely honest man. He was called to testify that he used the forms in a manner similar to the way in which Mr. Knudson and Dempsey did. He was uninterested in requesting the benefit of the Ontario and Canadian Evidence Acts. His testimony was clear and precise. It was ob- jectively reasonable. in examination-in-chief and upon cross- examination. He was completely open Mr. Knudson himself seemed to be an honest man. Judge Smith's comments at trial con- cerning the grievor's "rationalizations" and "constant irrelevant discourses." were borne out in our hearing. However, I did not sense any ''general evasiveness" nor any "exagger- ations". My profound impression is that Mr. Knudson is quite a disorganized man and his testimony too was disorganized in spite of the very clear and able examination-in-chief and cross-examination. I . . .. .- -. -. ..-- I " 8 We turn now to the facts disclosed by the @vi- dence . FACTS DISCLOSED BY THE EVIDENCE a. The grievor's job and work record The grievor is a 47 year old man, married with three children. He lives in Gloucester City, near Ottawa. Before coming to the Liquor Licence Board in 1974, he had worked for eight years as the service manager of the Ottawa Typewriter Company, and then twelve years in sales and public relations for the John Labatt Company. Up to the circumstances leading to this arbitration, the grievor had a perfectly clean work record with all his employers and had never been convicted of a criminal offence, "not even a speeding ticket" (from the trial transcript, at pages 248- 9) In 1974, he joined the Liquor Licence Board of Ontario as a District Inspector in the Ottawa area. An inspector works on the enforcement of various pieces of legislation, including The Liquor Licensing Act. There are a variety of tasks which must be performed, including numerous visits for a number of different reasons to establishments where liquor is served. 9 The two most important aspects of the job are that it is done largely on one's own out of an office in the inspector's home, and it takes some people (the grievor is one of them) more hours in a day than 8 and more hours in the week than 40. I accept the grievor's evidence that on average he worked something like 50 to 55 hours per week. The LLBO required that the grievor do work which took that long to complete. The Collective Agreement between the LLBO and the Ontario Liquor Boards Employees' Union provides in Article 5 for "Hours of Work and Overtime". The Agreement is clear on how the-grievor, and others in his position, should be paid. In Article 5.2, it provides: "where employees in these classifications perform authorized work in excess of eight (8) hours per day or forty (40) hours per week, they shall be paid at overtime rates as defined in Articles 5.6 and 5.7." And Article 5.6 provides: (a) Authorized work performed in excess of the employee's regular work day shall be paid at the rate of one and one half (1-1/2) times the regular hourly rate to the employee unless other- wise provided in this Agreement. All work per- formed on any second consecutive day of overtime shall be paid at double the employee's regular rate of pay. (c) Liquor Licence Inspectors who perform authorized work under Article 5.2 shall take lieu days in payment of such overtime worked providing work demands on the Inspectors are such to permit the Board to grant such lieu days no later than the end of the month next following the month in which the overtime occurred. Where this is not the case the Inspectors shall be paid overtime rates in accordance with Article 5.6 (a) . 10 (d) Where an employee is required to work on a Sunday as part of that employee's regular shift, the employee is to be paid at the rate of one and one half (1-1/2) times the regular hourly rate of the employee. (e) Where an employee is required to work on a Sunday, provided the Sunday is not part of the employee's regular shift, the employee shall be paid at the rate of twice the regular hourly rate of the employee. The grievor was required to work 1 night per week, 1 Saturday per month, and 1 Sunday every 3 months (at one time it was 1 Sunday every month). There is absolutely no doubt that the grievor was entitled to a great deal of overtime pay. Yet, when he was hired, he was informed that no overtime was ever paid to an inspector. and none ever was paid to the grievor. He never - claimed any overtime. This situation was maintained by a deliberate circumvention of the Collective Agreement by the Liquor Licence Board of Ontario for budgetary reasons. In the area of inspection, it led to practices in the completion of reports designed to mislead concerning the number of hours worked. As will be seen, the grievor was convicted in part because of his compliance in a reporting system designed to deny himself and other employees of the overtime pay to which they were lawfully entitled under the Collective Agreement. 11 The point cannot be made clearer than with respect to Sunday work. work at least 1 Sunday every 3 months. absolutely clear that this requires pay at 1-1/2 times the regular rate of pay. There is no provision for lieu time. The grievor would be expected to, and did, make emergency The grievor and others were required to Article 5.6(d) is calls on Sundays when problems arose. Article 5(e) is absolutely clear that this time should be paid at twice the regular hourly rate. time. of work over 8 hours per day or over 40 hours per week. Sunday work commands overtime pay. it was made clear none ever would be paid. Again there is no provision for lieu Article 5(c) provides for lieu time only in the case None was ever paid and Lieu days, day for the the the day, were taken in respect of scheduled Sunday work. . And how was overtime avoided? By normally having inspector report Sunday work on another day, except for Sundays when the inspector was scheduled to work. And same system applied to night work on non-scheduled nights and Saturday work on non-scheduled Saturdays. More on this in a moment. cannot be overemphasized. The grievor stands convicted on . some criminal charges, and was discharged from his employ- ment, in part because he participated in a charade designed to deny liquor licence inspectors the overtime pay to which they were clearly entitled. But the cruel irony of the situation 12 b. Form 163 and weekly reports Form 163 is entitled "Inspectors Daily Report". It is in fact a weekly reporting form with the instructions on the top: "Duplicate copies of this form must be sent in each week and must agree with Statement of Travelling Expenses to be sent in every two weeks." The form contains a series of columns, in which an inspector is to record - the date - the place - 'the establishment or office visited - the type of inspection - the time of' the call. Mr. Cooper testified that the purposes of this form are: b - to provide an accurate reflection of the number and type of inspections - to provide evidence that an inspector did his work because they are on their awn and must account for their hours worked - to provide a check on the expense accounts submitted by inspectors, in particular for gas mileage - to provide an audit for the Personal Atten- dance Register. This is Form 164 and is a record of the days worked. It is interesting to note that the old version of the Register (a copy was part of Exhibit 70) provided space for the entry of hours worked. The copy we have in evidence simply records "On Duty". The new version of the Register does not ask for hours worked, just whether or not the employee was on duty or not, and if not why not, for each day of the week (Exhibits 33 and 53) e to provide statistical information on the numbers and types of inspections. 13 He testified that he knows of no instructions to inspectors to fill out the forms improperly and inaccurately, nor does he know of any supervisors condoning this practice. I believe him. However, Mr. Cooper came to the LLBO in January 1976 from the position of Executive Assistant to the Attorney- General of Ontario, and before that Executive Assistant to the Minister of Consumer and Commercial Relations. In this latter capacity, he had been involved in setting up the current operational procedures of the LLBO. He was not in- volved in the personnel operations of the LLBO while in the Ministry of Consumer and Commercial Relations. is not involved in the supervision of inspectors and, in particular, has no knowledge whatsoever of the training of inspectors prior to 1976. Currently he The fundamental point in all of this is that Mr. Cooper took over as Executive-Director of the LLBO: after men like the grievor had been trained and were in the field working in established ways. And up to the incidents leading to this arbitration, no changes in general practice or instruction were made by Mr. Cooper or anyone else. I find as a fact that, unknown to Mr. Cooper, when he came to the LLBO, a system of inaccurate weekly reports was in place for budgetary reasons dictated by the LLBO itself, and no one ever changed that system, indeed the budgetary constraints became even more severe in late 1977 Therefore, Mr. Cooper may have formed some very good personal reasons for the need for accuracy in the weekly reports on Form 163 but these , 14 reasons were never implemented in policy or practice because the pattern had been established well before he arrived. This is the absolutely uncontradicted evidence of Messrs. Dempsey, Simpson and Knudson. Moving to the reality of the situation and the training and experience of the inspectors. Mr. Dempsey joined the LLBO as an inspector in September 1970 and was trained by Mr. Harry Royle, a District Inspector in Toronto. Mr. Simpson joined the LLBO as an inspector in 1973 and was trained by Mr. Stan Hogarth, then a special investigator. Mr. Knudson joined the LLBO as an inspector in 1974 and trained with Mr. Don Evans, a special investigator. There is no significant difference whatsoever in the testimony of all three men on what they learned to do with Form 163. The Form was made up at the end of a week's work, or sometimes a week or so later. It was to be a record of calls made but was never intended to be and never was an accurate record as to day and time. Mr. Dempsey had worked with Mr. Jack Lawrence, now in senior management in the inspection area and together they had filled out their weekly reports in this way so that they would coincide. He had worked with Mr. Steele and the same system applied. He had worked with special investigator Don Evans and the same system applied. Mr. Simpson had worked with Mr. Steele and they filled out their weekly reports in this way to coincide with each other. He had worked with Mr. Jack Lawrence and 15 they did it this way. Mr. Knudson had worked together with Mr. Steele and they had done it this way. Mr. Steele says that when he worked with others he consulted them on the weekly report to ensure the two men's reports coincided accurately. I simply do not believe Mr. Steele. It had to be obvious that the reports were not accurate as to time and day (in particular where the joint visits lasted more than one day). In short, this was the way it was done. And the men were told to "level off" or "balance out" the days and weeks - that is, to show roughly 5-7 calls per day and roughly 40 hours per week. They were never to show work done on a non-scheduled night, non-scheduled Saturday or non-scheduled Sunday. By doing this, they would not excite the Treasury into thinking it had to pay overtime. No overtime would be paid. Lieu time would be given day for day. Now some things were entered accurately on Form 163 - visits made to do a semi-annual inspection, visits concerning fire work orders, and some spot checks when a particular problem had arisen and an inspector was speci- fically asked to make a series of spot checks. The calls were recorded in such a way that the actual mileage covered and shown on expense forms would tally. If 10 calls were made one day at an out-of-town location, only six might be shown and the other 4 retained in the "bank" until another visit to that location was made. Then the 4 "banked" calls would be shown. In general, the weekly report was treated 16 simply as a list of calls made. and the inspectors never felt they were deceiving anyone in any way because the reports were only relevant to persons in management, who had also been inspectors and knew the way in which Form 163 was prepared. Indeed, there is no evidence that Mr. Cooper ever made use of Form 163 or was ever misled Everyone did it that way by a Form 163. The charade became even more ridiculous when the inspectors under Mr. Steele were told by him not to record times like 1:00 or 2:00, but to make it look even more accurate, eg. 1:14 and 2:06. Turning to the Form 163's prepared by Mr. Knudson, which have been filed as 'exhibits in this arbitration. I have reviewed every one of them, in particular the several hundred pages found in Exhibits 31 and 32. He acknowledged at trial that they were largely inaccurate as to day and time. By and large they show 48-49 hours per week. The days are leveled out at 5-6 calls and 8 hours per day, except for the day per week with a scheduled night, in which case the day is shown as 15-17 hours long. The Forms appear to show Saturday and Sunday work only on scheduled weekend days, because there are just enough of them shown to satisfy the required schedule. For example, for Sundays, the fol- lowing appears in Exhibits 31 and 32: Exhibit 31 Sunday, April 9, 1978, did a series of spot checks (May 23, 1978, shown as off-duty in lieu of April 9, 1978) Sunday, June 25, 1978, on an out-of-town trip with Mr. Dempsey. (1978 is slimly represented in Exhibit 31 and this is all the Sunday information which appears.) Exhibit 32 Sunday, April 24, 1977, did a series of spot checks Sunday, May 29, 1977, did a series of spot checks (August 4, 1977 off in lieu) (August 5, 1977 off in lieu) Sunday, June 19, 1977, did a series of spot checks (August 22, 1977 off in lieu) Sunday, July 10, 1977, did a series of spot checks (August 29, 1977 and September 6 shown as off in lieu! Sunday, August 21, 1977, did a series of spot checks (October 11, 1977 off in lieu) Sunday, August 28, 1977, did a series of spot checks (November 10, 1977 off in lieu) Sunday, October 2, 1977, did a series of spot checks Sunday, November 6, 1977, did a series of spot checks. NOW, this review of Mr. Knudson's Form 163's leads to the following findings of fact: 1. The surveillance evidenced at trial, and Mr. Knudson's own admissions, show that the entries are largely not accurate as to day and time. 2. He did "level off" to 5-7 calls and 8 hours per day, except for the day with a scheduled night. 18 3. He did not "level off" to 40 hours per week, the Form 163's were in any way relevant to the remuneration Mr. Knudson was to receive from the LLBO, how could the Board justify not paying him at least 7 hours of overtime every week? The answer seems irresistible - while the forms were "leveled off" to avoid showing the need for overtime, in any event they served no purpose related to an in- spector 's pay, because, even where overtime was shown and (as Mr. Riggs argued) accuracy expected, no overtime was paid. The LLBO cannot have it both ways. If the Board expects accuracy, then it must pay for over- time shown. shown, why should it expect accuracy? Work actually performed on non-scheduled nights, non-scheduled Saturdays 'and non- scheduled Sundays was never recorded on the day it was done. Mr. Knudson appears to have followed this injunction rigorously. yet he never received any overtime pay. IF If it doesn't pay for overtime 4. In his decision after the trial, His Honor Judge Smith concluded that Mr. Knudson intended to mislead the LLBO, that the dailies were false to the knowledge of the accused "and that he forwarded them to the Board intending that they be taken as accurate" (page 11). respect, I disagree with that decision and I do so based on more evidence. His Honor heard only Messrs. Knudson and Steele and a very bad witness in support of Mr. Knudson. This Board of Arbitration has also heard Mr. Dempsey and, in With the greatest particular, Mr. Simpson. We have read the trial transcript and studied the exhibits at trial and other documents. The total evidence before us leads clearly to the conclusion that Mr. Knudson never intended to deceive the LLBO, nor could he have any expectation whatsoever that his weekly reports on the Form 163's would be taken as accurate. He 19 was instructed to do these Forms in this way in order to defeat his own right to the overtime to which he should have been entitled. accurate when his leadership permitted a system which paid no overtime, even when the Forms showed more than 40 hours' per week, week after week? The answer is clearly that the LLBO did not rely on the accuracy of Form 163. happened throughout Mr. Knudson's employment ever indicated to him that his Forms were being relied on as accurate. Indeed, his training and all the other circumstances, told him that he was to continue using the Form 163's as he was doing, in order to continue to defeat his own rights under the Collective Agreement. How could Mr. Cooper expect the Forms to be Nothing that C. Form 220 and semi-annual inspections Among the duties of a District Inspector is the semi-annual inspection of licensed establishments and the report on this inspection. Since June 1976, this report has been made on a Form 220 (various dates were given for the introduction of this form - I accept Mr. Cooper's date given in his cross-examination). Form 220 is a multi-purpose form., which is in- tended to be used for many reporting purposes. Mr. Knudson was discharged in part because he submitted fifteen semi- annual Form 220's signed by someone other than the person it was purported to be. For a semi-annual inspection, the inspector fills up spaces at the top of the Form with, inter alia, informa- tion on the establishment and its licence number and the name of the proprietor or manager. There are then 20 line entries opposite which the inspector ticks "Acceptable" or "Unacceptable" (these are the two columns on the far right of the 20 line entries). These line entries cover wash- rooms, licensed rooms, etc. There is room on the Form for a notice to a proprietor and for comments on "unacceptable areas". one for the inspector's signature, and a second for the Pr opr i et or /Man ag e r . At the bottom of the Form, there are two boxes - With respect to clubs, taverns and restaurants, an inspector has few powers other than inspection. Matters of fire, health and safety are under the jurisdiction of other authorities. All of the Form 220's in issue here involve semi- annual inspections of clubs, taverns, or restaurants where no deficiencies are indicated. That is, the establishment was given a "clean bill of health" by Mr. Knudson. The real problem is that the signature in the box for ''Proprietor/Manager" is not the signature of the person who signed the form, nor is it a signature done with the authority of the person whose name was signed, and in several cases, it is the signature of a non-existent person. These 21 facts were proven at trial and I accept that proof. The Crown called evidence to show that the name in the signature box was not signed by the person whose name it is, nor was authority given to anyone to sign that name, and in the several cases abovementioned, the name was that of a non- existent person. In all these cases, the signed name cor- responded with the name at the top of the Form. Now before I continue, it must be made clear that we heard much evidence concerning whether it was the prac- tice or policy to ensure that the proprietor or manager himself sign in the box. Mr. Riggs, in his very well rea- soned argument, acknowledged that the practice or policy is not the issue. Rather, here the issue is whether or not . Mr. Knudson breached his duty of fidelity to the LLBO in . submitting forms so signed. I agree entirely with Mr. Riggs. Indeed, were it necessary to do so, I would be pre- pared to find on the basis of all the evidence before us that it was not essential that the Form be signed by the actual proprietor or manager, but could be signed by any "person in charge" as manager pro tem. Mr. Knudson has no satisfactory explanation for these signatures. While I am not bound by the finding of fact at trial, I think it is useful to consider the decision of His Honor Judge Smith (at pages 11-16): "When it comes to semi-annuals, we are dealing with counts 1 to 16 inclusive with the exception of count 15 which is being dismissed for lack of evidence. In order to find the accused guilty upon any of those counts, the Crown must have satisfied me beyond a reasonable doubt, amongst other matters which are not really in issue, either that the accused did not visit the establishments for which there are semi-annual reports filed and the only counts upon which there is positive evidence that this may be so, as agreed by the Crown, are counts 3, 10, 11 and 16. Or the Crown must have satisfied me that a ficti- tuous person signed such reports to the knowledge of the accused or, thirdly, that unauthorized persons did; the latter two eventualities require a finding, on the part of this Court, that such signature was material. I must also be satisfied that the documents in question in the latter two prongs of the three- pronged situation that I have just now described, which is envisaged in the counts relating to semi- annuals, come within the (a) (i) or the (a) (i) (i) portion of the definition of a false document defined in Section 282. I will consider first the materiality of the signature. The form itself provides for the signature of the proprietor or manager. visor Steele told us that the Board directed that there be such a signature. He knew of no cir- cumstance where the requirement could be ignored other than the proprietor's refusal to sign. signature provided, he said, an acknowledgement that the inspection had been done. All Ottawa inspectors were notified of this, although not in writing, at the January, 1976 seminar when the form -- that new form, was introduced. cedure manual made available to all inspectors emphasized the need for execution on behalf of the establishment. the Board and by the supervisor. told us that he received as many as two thou- sand- -- fifteen hundred to two thousand semi- annual forms from the Ottawa area alone and he would very occasionally receive one without a signature. He would then contact the inspector, although he admitted that it was conceivable that he would take no action, particularly when there was a refusal to sign. Super- The The pro- This form also was monitored by The supervisor Mr. Malkiewich, called by the accused, whose evidence must be characterized I say in passing, as something less than truthful or reliable, 23 coming as it did from one who appeared at least as interested in fighting a battle on behalf of one of his "guys" as he was in giving a reasonably objective account of events and facts within his knowledge. Well even such a witness agreed that a signature was required. He did say, to be fair, that any signature would do, although he did not go so far as to refer to the dishwasher, for in- stance, in the establishment. As against this, the accused claims that fellow inspectors never bothered to have the semi- annuals signed. The signature, he said, was unim- portant. He would not go out of his way to get them signed. The signature was secondary, yet a signature was obtained in all cases covered by the fifteen counts in the Indictment dealing with the semi-annual reports. There is no alternative open to me, on the evidence, but to find that the signature was indeed a material part of this form. The name of the owner, or manager, at the top of the document was certainly material, in my view, as was the signature at the bottom. The signature being material, I will confine my consideration to the various counts, 1 to 16, with the exception of count 15, to the question of whether they were genuine within the meaning of Section 282(a). Keeping in mind the heavy onus of proof in a criminal case, I am not prepared to find that the accused did not visit the premises described in counts 3, 10, 11 and 16, although the evidence' could be said to raise suspicions, perhaps even strong suspicions. I find, however, that Eva Hikl, did not sign any of the semi-annuals described in the Indict- ment, nor did she authorize any other person to do so. The same may be said of the fictituous name of Duhamel used in connection with the Carmen's Beach Tavern. The accused's explanations are totally unacceptable, particularly as they deal with the name Duhamel, erroneously used on three of the forms. Now these comments are directed to counts I, 2, 3, 4, 5 and 6. I have singled those esta- blishments out because, on the evidence and given the nature of the establishments, the lack of signature of the owner, or manager, or of any authorized person, are more apparent perhaps or more certain.. However, I am satisfied beyond a reasonable doubt that the signature was neither genuine nor authorized on any of the forms in- 24 volving the Semaphore, in counts 7 and 8; the Far East Tavern in count 9; the Chef Pierre in counts 10 and 11; the St. Charles Social Club in counts 12 and 13; Chances "R" in count 14; and finally, the Steak N' Burger in count 16. I cannot unfortunately place any reliance' upon the accused's diary or daily sheets or even the master sheets, which may well be a recon- struction, perhaps months perhaps years after the event, nor were the rationalizations, exagger- ations and constant irrelevant discourses on the volume of work, or the general evasiveness of the accused, were very successful in inspiring con- fidence in the acceptability of the accused's testimony. The proprietors and managers were clear, forthright and direct and free of interest in the outcome of these proceedings. It seems to me to follow that there must be a conviction upon all counts 1 to 14 inclusive and, of course, upon count 16. I found that there is no rational conclusion that I can come to other than that all the elements of these offences given the laws I have described, have been proven in accordance with the standard of proof in a criminal trial. I' His Honor found "no 'rational conclusion" for the improper signature on these fifteen Form 220's "other than that all the elements of these offences ... have been proven". Mr. Riggs suggested three possible explanations for these improper signatures: - all the signers were asked simply to sign the Form and spontaneously signed someone else's name and Mr. Knudson was not aware that this had been done. Mr. Riggs suggests that this defies common sense. - Mr. Knudson asked the person present in the establishment to "Sign the name of the man- ager or owner I've put in at the top of the Form". Mr. Riggs suggests that it is hard to believe that someone would sign the name of a non-existent person three times (or that 3 25 people would each sign this non-existent name independently), or twice sign the Fame of a manager which has been misspelled by Mr. Knudson at the top of the form and the signer repeats the misspelling at the bottom. Even if this situation is correct, Mr. Knudson would have deliberately deceived the LLBO as to who in fact had signed the Form. - Mr. Knudson, or someone else, with no con- nection whatsoever with the establishment, signed the Form. This would clearly be fraudulent. I confess that this is the most difficult part of this entire case. There is no real evidence of who signed these Forms. Mr. Knudson's records are of no assistance whatsoever. We are left to surmise, based on rational possibilities.. 1. 2. In my view, there are several considerations: Why would Mr. Knudson submit these Forms knowingly? It could be that he never visited the establishments at all for a semi-annual inspection. Or, it could be that he left the establishment having forgotten to get the signature and fitted one in to avoid the waste of time in going back. I am satisfied that Mr. Knudson did make the inspections. I am also satisfied from his testimony that he did not sign the Forms himself but had some- one in the establishment sign in the box for "Proprietor/Manager" . Mr. Knudson did some 600 semi-annual in- spections during his employment. The evi- dence is clear that a semi-annual inspection of a small club, tavern or restaurant was a quick, routine affair, and that the closing signatures were treated as a matter of for- mality, even if material. The inspector simply hands the form to the "person in charge" and says something like "Here's a good report, please sign it". After an intensive investigation, only fifteen Form 220's were found to be signed improperly. If Mr. Knudson was a dishonest man, wouldn't there be a pattern of such falsehood? We are talking here of problems with less than 3% of the semi-annual reports submitted by Mr. Knudson. 26 3. The establishments concerned were small oper- ations. The "person in charge", when Mr. Knudson arrived for the inspection, could be a janitor or dishwasher. It could be someone with. limited education and no real knowledge of the exact name of the manager or its spelling. It could be someone who thought the Form should have the name of the manager in the box to acknowledge that Mr. Knudson had visited and left a copy. Now, I think that the situation last described is unlikely. centage. Is it really that unlikely that 3% of the semi- annual reports were signed as described in the last situ- But 3% of the Form 220's is a very small per- ation? In my view, it is not at all unlikely. That Mr. Knudson would not notice that the signa- ture was not that of the person it was purported to be is not surprising. I have already said that I think he is quite a disorganized man. Let us consider this matter further by looking at the three Form 220's which concern Carmen's Beach Tavern and were the subject of three criminal charges on which Mr. Knudson was convicted. On February 7, 1977, October 20, 1977 and April 14, 1978, Mr. Knudson submitted semi-annual reports on this establishment. The manager's name in the top right-hand corner was recorded as "R. Duhamel". The signature reflected this. There is no such person. The manager of this establishment was Roger Dahan. At the trial, Mr. Dahan testified that he had seen Mr. Knudson two or three times in the restaurant (from the transcript, at 27 page 133). not given to inspectors by the Board. learned them on the job. It is highly probable that a man like Mr. Knudson, meeting Mr. Dahan so rarely, could think his name was Duhamel. At trial, Mr. Knudson referred to Mr. Dahan repeatedly as "Roger" (in the transcript, at page 408, line 19; page 409, lines 17 and 20), he said he knew the man only as "Roger" (at page 410, line 17) and surmised it was The names of the managers in establishments were The inspectors "Roger Duhamel". relations man, a quite disorganized liquor inspector, dealing with someone in a tavern only on a first-name basis very Likely situation. manager's name, this man writes it down as "Duhamel", be- For a former liquor salesman, a public is a And with no direction concerning the cause that's what he thinks it is. Then, three or two short-term employees, who happen to be in when Mr. Xnudson makes one of his rare visits to the place, sign R. Duhamel" in the box to acknowledge he was there and to accept a copy of the Form. It would be obvious the Form was a good report and it could well be taken that the same name should be in the place for signature. likely that a small proportion of people with little educa- tion and no instruction on signing such forms would think I think it quite that to acknowledge the receipt of the form one puts in the manager's name. when one considers that there is just no adequate reason for Mr. Knudson to forge the name himself. This explanation is all the more likely When a semi-annual inspection was done, one copy of the completed Form 220 was left with the establishment. 28 Why did no one at Carmen's Beach Tavern phone up to say that Mr. Knudson had put down the manager's name improperly? Or why did the other owners and proprietors not phone up to say they hadn't authorized the signatures? Either because no copy was left on these occasions, or because no attention was paid to the entries concerning the manager's name by the people in the place. In either case, the repeated error at Carmen's Beach Tavern is explained. I have reviewed with great care the evidence of the various proprietors and managers called to testify at the trial. None was asked whether or not he or she received a copy of the relevant Form 220. No one said it was the first time he or she had seen the relevant Form 220. There is no indication that it wasn't left at the establishment. I think it highly likely that Mr. Knudson did leave these Forms as he was supposed to and wasn't aware of his errors because no one noticed it or bothered to call up to tell him of them. Indeed, we find the following statement: Mrs. Hikl (at page 119, lines 7-12) : A. I didn't pay too much attention to any time any inspector was there. Sometimes I had a question to ask and if so I would ask the man, otherwise I didn't pay too much attention how often as long as everything was all right and everything was in working order, that is all I cared about. And concerning the attitude of managers to signing Liquor Board forms, we have: Mr. Woods, division manager of Winkie's Steak and Burger (at page 143, lines 20-28) : Q. This particular document that I am showing to you, Exhibit 10, the semi-annual report dated April 20th, 1978. Have you seen documents similar to it? 29 A. Yes. Q. Have you signed documents similar to it? A. Yes. Q. What would that be in connection with? A. Well if I am on the location and the liquor inspector comes in, and I know about it, I go and talk to him and sign anything for him. . (emphasis added) In sum, no one can be sure how these signatures In my view, it is just as likely that the ex- were done. planation is innocent as it is likely it was fraudulent. Mr. Knudson is not an organized man. It is highly probable that he was not at all careful in the matter of the signature in the "Proprietor/Manager" box because so little attention was paid to the signature until the investigation.' I-conclude that, on the basis of the whole of the evidence before this Board of Arbitration, the improper signatures on the fifteen Form 220's were the result of lack of care and were not the result of any criminal act on the part of Mr. Knudson. - Again, I have come to a different conclusion from His Honor Judge Smith. and after much consideration. In fairness to his decision, I point out that the trial lasted 6 days and the transcript is 505 pages long. There are some 700 pages of exhibits. Yet his oral decision was rendered only four days after the trial concluded. material at some length and have had the benefit of addi- tional evidence. I do so with the greatest respect I have had the opportunity to consider the 30 CONCLUSION I find no wrongdoing by Mr. Knudson. At the most, he was quite careless in respect of fifteen of the 600 semi- annual inspection reports he filed. This being the. case, he is not in breach of his duty of fidelity to the Liquor Licence Board of Ontario and there is no justification for his discharge. I am left with the profound feeling that a ter- rible injustice has been wreaked on this man following an inflammatory allegation in the media that he accepted bene- fits. I can redress only a part of the terrible wrong done to his career, his personal reputation, and his life. He may have to look elsewhere for adequate compensation for his nightmare, if "adequate" compensation is possible. I order that he be reinstated immediately to his position as a liquor licence inspector. Insofar as compensation for wages lost is con- cerned, there is some question of mitigation of losses and the parties have requested this Board of Arbitration to retain jurisdiction to decide the amount of compensation if 31 the parties are unable to come to a ready agreement on the matter. We retain jurisdiction for this purpose. Done at London, Ontario, this 10th day of March, 1981. M. Perrin, Member, concurs. B. Lanigan, Member, concurs in the reinstatement but dissents in part. Her decision will follow. LIST OF EXHIBITS Exhibits entered at trial and agreed on as exhibits for this arbitration - 1. 2. Master file: Czechoslovak (Maxi Plate) Tavern 3. Notice Under Canada Evidence Act Master file: Tavern Au Pied du Quai Tavern and Carmen's Beach 4. Master file: Semaphore Tavern 5. Master file: Far East Tavern 6. Master file: Chef Pierre Tavern 7. Master file: St. Charles Club 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. Master file: Chances "R" Restaurant Master file: Master file: Steak "N" Burger Tavern Master file: Parthenon Steak House Master file: Four Sisters Restaurant Knudson's file: Czechoslovak Tavern (Maxi Plate) Knudson's file: Au Pied du Quai. (Carmen's Beach) Knudson's file: Semaphore Tavern Knudson's file: Far East Tavern Knudson's file: Chef Pierre Tavern Laurel & Hardy Tavern 18. Knudson's file: St. Charles Club 19. Knudson's file: Chances "R" Tavern 20. Knudson's file: Laurel and Hardy Tavern 21. Knudson's file: Steak "N" Burger Tavern (Winco) 22. Director of Inspections copies of Form 220: Czechoslovak (Maxi Plate) Tavern 23. Director of Inspections copies of Form 220: Quai (Carmen's Beach) Au Pied du 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. Director of Inspections copies of Form 220: Tavern Director of Inspections copies of Form 220: Tavern Director of Inspections copies of Form 220: Pierre Tavern Director of Inspections copies of Form 220: Charles Club Director of Inspections copies of Form 220: "R" Tavern Letter dated July 8th, 1974 Director of Inspections copies of Form 220: "N" Burger Tavern 33 Semaphore Far East Chef St. Chances Steak L.L.B.O. copies of Inspector's Daily Reports, January to August, 1978 L.L.B.O. copies of Inspector's Daily Reports, 1977 Knudson's copies of Inspector's Daily Reports, January to August, 1978 Order-in-Council of Mr. Knudson's appointment as an inspector with the L.L.B.O. Mr. Knudson's diary for the year 1978 Personnel file of Liquor Licence Board of Ontario re: Knudson Memorandum No. S-110 dated December 10, 1973 respecting acceptance of benefits Memorandum No. S.110, Acknowledgement, dated May 6th, 1975 Licenced premises under Mr. Knudson's supervision Handwriting analysis report, dated August 9th, 1979 Flow Chart for Form 220 Flow Chart for daily inspector's report Mr. Knudson's file - assorted 220 forms Blank Form 220 Blank Inspector's Daily Report 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. List of Admissions Part of procedural manual. Hospitality guidelines Memo from Mr. R.G. Lamb dated December 12th, 1978 List of Admissions, No. 2, under Section 582 of the Criminal Code (Two pages) Position description for a district inspector Memorandum dated June 12th, 1976 entitled: Re: Items and information required to be available Personal Attendance Register, Form No. 164 1976 diary of Mr. Knudson 1977 diary of Mr. Knudson Master personal work sheet Letter dated January 16th, 1978. (Two pages) Establishment Book e Letter dated September 16th, 1976 re training seminar - Inspectors Daily Report, July 10th to 14th, 1978 Monthly report in blank form Blue binder. (Formerly Exhibit "B") Diary diary and sample diary page. (Formerly Exhibit "B") Note: Exhibits 54 and 55 were retained by the Ontario Provincial Police and not turned over to this Board of Arbitration. Exhibits entered at the arbitration hearing - 64. Transcript in 6 volumes 65. Award of Eberts et al. concerning the suspension without ' pay, G.S.B. 277/79 66. Two memoranda from P.G. Boukouris, June 28, 1979 67. Letter of discharge, May 20, 1980 35 68. Form 113, L.L.B.O. Inspector's Semi-Annual Report 69. Memorandum re diaries, November 7, 1979 70. Form 163, from Mr. Knudson's file 71. File folder containing all of Mr. Knudson's personal Form 163's which have reference to his supervisors