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HomeMy WebLinkAbout1981-0556.Thibert et al.85-10-01IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Thibert, McGill and Jung) and Grievors The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: For the Gricvor: For the Employer: Hearin@: ..~. R. L. Verity, Q.C. Vice-Chairman F. Taylor Member A. G. Stapleton Member A. Ryder, Q.C. Gowling & Henderson Barristers & Solicitors D. Gray Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors April 30, 1985 July 18, 1985 SUPPLEHENTARY DECISION On September 4, 1981, Lindsay Jail Correctional Officers, Carry F. Thibert, Emil 3ung and Raymond McGill, filed ’ Grievances alleging dismissal without Just cause. The Employ- ees were dismi.ssed for the use of excessive force upon an inmate on Nay 27, 1981. . Following a six day Hearing, the Grievance Settlement Board issued a majority Decision dated April 6, 1982 (Vice- Chairman Barton) in which all three Grievances were dismissed. The matter then proceeded to Judicial review and on 3anuary 13, 1984, the Ontario Divisional Court overturned the Grievance Settlement Board Decision, and ordered a new Hearing before-a separately constituted Panel. Following an eig.ht day Hearing, the present Panel of the Grievance Settlement Board issued a unanimous Decision on December 11, 1984. In that Decision, the finding was made that the Crievors had indeed used excessive force against the in- _, mate, but that discharge was an excessive penalty in the cir- cumstances. Accordingly, the Board exercised .its discretionary powers under Section 19(3) of the Crown Employees Collective Bargaining Act, reinst&‘od the Grie\.ors and substituted a - 3 - lesser penalty. The’Board’s discretion under Section 19(3) of the Act is limited by the provisions of Section 19(4), which in effect prohibits reinstatement to a position with inmate contact once .~ there has been a finding of excessive force. Section 19(4) of the Crown Employees Collective Bar- ing Act reads as follows: gain “Where, in exercising its authority under Subsection (3), the Grievance Settlement Board finds that an employee who works in a. facility, (a) has applied force to a resident in the facility, except the minimum force necessary for self-defence or the defence of another person or necessary to restrain the resident; or (b) . . ..I the Grievance Settlement Board shall not provide for the employment of the employee in a position that involves direct respon- sibility for, or that provides an opportun- ity for contact with residents in a facil-O ity, but the Board may provide for the employment of the employee in another substantially equivalent position.” Section 19(5) defines “facility”,to include: “(v) a correctional institution under the Ministry of Correctional Services Act. - 4 - That Section defines a “resident” as “a person who is an ‘inmate.. . .in a facility”. Pursuant to the statutory authority referred to . above, the Board ordered that each Crievor be reinstated to a “substantially equivalent position” within’ the Ministry. The Grievance Settlement Board Decision of December 11, 1984, stated at pages 32 - 33: “In the circumstances,, each Grievor shall receive a six month suspension with- out pay. The Crievor, Thibert shall be compensated for lost wages and benefits following the six month suspension, after having made the usual deductions for comp- ensation of any and all income received from other employment in the interim.. The Crfevor, Emil 3ung, shall be rein: stated.to the status of a probationary employee. Mr.- Jung shall be compensated for all lost wages and benefits beyond the six month suspension subject to the usual mitigation rules referred to above. Because McGill was a casual employee at the time of his terminatidn, he shall be reinstated to the status of a casual employee butt without compensation. There shall be no loss of seniority credits for any of the Crievors.” The Board retained jurisdiction in the event of difficulties regarding the.lnterpretation or implementation of - 5 - the Decision. The’EmPloyer subsequently relnstated the three Crievors to Security Officer Positions at Hillbrook Correction- al Centre effective January 2, 1985. Millbrook is approxi- ‘mately 25 miles southeast of Lindsay. The Grievors Jung and McGill reported to !4illbrook as requested.. The Grievor Carry Thibert’ras granted at least two leaves of absences to allow him sufficient time to contemplate his future. Mr. Thibert has not retu.rned to the Ministry’s employment, and has chosen in- stead to pursue a business career. Following the issuance of the December, 1984 Deci- sion, the Parties entered into negotiations to settle,~the matter of compensation. Unfortunately, they were unsuccessful in that attempt. The Parties now seek directions to determine that issue. The request for directions results from differ- ences of opinion on numerous complex principles of compensa- tion. However, the Board was not requested to determine the precise quantum of compensation. On March 28, 1985, the Employer wrote to Union Coun- sel and enclosed a cheque in the amount of $12,043.00,-which allegedly represented net compensation payable to Emil Sung for the period March 4, 1982 to December 31, 1984. As the letter I - 6 - stated, the calculation was made on the following basls: Gross &ary based on mlminum rate for Security Officer 2 and all salary revisions.... Lejs deductions: s53,409.20 1. Compinsation from other employment March 4, 196.2 to December 31, 1984, as per affidavit and 74 slips 2. U.I.C. benefits received 3. Statutory deductions as per attached listing Net compensation 17,814.20 10,539.oo 12,823.OO $12,043.00 To date, no payment of net compensation benePf.ts have been made to Carry Thibert. At the supplementary Hearing, the Union proposed that the period of compensation would be from March 4, -798.2 to and including January 2, 1985. In the absence of any dispute, the Board agrees that the period of compensation is appropriate. The Parties *tere unable to agree on .the following areas: (1) The first area of dispute is the basis upon which the gross salary is to be calculated. As indicated, 19(4) of the Crown Employees Collective Bargain Section requlr.es that reinstatement, where ordered, may be to a - 7 - ,ing Act “sub- stantially equivalent position” ‘~. and one which does not involve “direct responsibility for, or that provides an opportunity for contact with residents in a facility.” The Union contended that the Security Officer posi- tion is not a substantially equivalent position to that of a Correctional Officer, primarily on the basis of lower rates of pay for the Security Officer. To alleviate that difficulty, the Union proposed that the Grievers be red-circled at the Correctional Officer rate, following the Board’s rationale in Travers and The Ministry of Correctional Services 79/79 and the appl The Employer rejected the ication of Correctional Off proposal and objected to icer .rates to th-e Security Officer position, whether red-circled or not. Specifically, it was argued that the Board had no jurisdiction to grant the Union’s request. Mr. Gray argued that ~classification of employees is an exclusive management function as contained in Section 18 of the Crown Employees Collective Bargaining Act, and that wage rates applicab~le to the Securfty Officer position flow from the creation and classification of that position. Further, it was argued that a substantiaiiy equivalent posltlon 213170 (Swinton). , contemplates an existlng position within the context of the Collective Agreement, and that the Board had no jurisdiction to create, in effect, a new position which was not contemplated by either the Collective Agreement or the Act, The Travers Decision listed four factors to be considered in determining equivalency between jobs; namely pay level, job content , geographic location, and level of skill and responsibility. Clearly, levels of pay and geographic location are the more,readily identifiable factors. The Board would agree with the rationale of Vice-Chairman Swinton in the Travers Decision where it is stated at page 10: . ..Conte~nt is a problem here, as it would seem to be impossible to find a job with the content similar to that of a Correc- I tional Officer but without inmate contact. That may not be the case where this section is applied in other Ministries...” a prob lem for any of the Grievors with the exception of Emil Jung. After the discharge, he moved to Metropolitan Toronto In the instant Grievande~, geographic location is not for greater job opportunities. .He testified that he lived at five different addresses in Hetro Toronto. -1” any event, he reported for work on January 2, 1985 at Millbrook and - 9 - eventually, after commuting for some three months, he changed hfs’residence to Peterborough. In the interim, the Ministry was not successful in securing a position for Mr. 3ung in the Toronto area. Mr. Sung is not married and there is no evidence that the move to Peterborough was a major inconvenience. Inevitably, the level of pay is the single most important factor in determining substantial equivalency. In : assessing the levels of pay for the positions in question, it cannot be said that the Security Officer pay rates are substantially equivalent to Correctional Officer rates. For examp.le, a comparison of the rates of pay far the Security Ofcficer 2 position with the Correctional Officer 2 position during the years 1982, 1983 and 1984, reveals the following information: Security Officer 2 01/01/82 Hourly 8.31 8.54 Weekly 332.40 341.60 Annual 17,51! 18,596 01/01/83 Ho.yrly 9.07 9.60 Weekly 362.80 384.00 Annual 18,930 20,037 01/01/84 Hourly 9.57 10.10 Weekly 382.80 404.00 Annual 19,974 21,080 Correctional Officer 2 Ol/Dl/82 Hourly 10.40 10.67 Weekly 416.00 426.80 Annual 21,705 '22,270 Ol/Ol/S3 11.03 441.20 23,021 Hourly 11.35 11.64 Weekly 454.00 465.60 Annual 23,609 24,294 01/01/64 12.04 481.60 25.129 Hourly 12.20. 12.61 12.94 Weekly 488.00 500.40 517.60 Annuai- 25,463 26,110 27.008 - 10 - larly, a comparison between the Securi ty Officer 1 and the Correctional Officer 1 as of January 1 sented the following information: Security Officer 1 Correctional 0 01/01/84 01/01/84 t 1984, pre- fficer 1 Hourly 9.32 9.57 Hourly 11.21 1 1 . s-&, Weekly 372.80 -382.80 Weekly 448.40 461.20 Annual 19,452 19,974 Annual 23,397 24,065 No factor entering into~the phrase “substantial1 equivalent position” is more important than the salary corn Y PO- nent. The Board finds it difficult to justify equivalency where the salary is significantly lower in one classification as compared to the other classification. In spite of Hr. Gray’s able argument, .the Board his satisfied that we have jurisdiction to fashion a remedy under the broad remedial authorfty given to us under Sections 19(3) and 19(4)(a) which can meet the test of substantial equival- ency . In our opinion, the rationale of Vice-Chairman Swinton in the Travers decision is a reasonable and flexible approach to accomplish that objective. We would agree with Arbitrator Swinton that from the general labour relations standpoint, the impact of red-circling an employee and paying him on a basis totally different from others doing ihe same job, creates some discontent among - 11 - employees. However, the rates of pay between the position of Security Officer and Correctional Officer are anything but sub- ‘stantially equivalent. In the 3olliffe Award of OPSEU (Karl Van’t Hullenaar) and Hinistry of Correctional Services, 555/81,, it was pointed out that the rate of pay for a suitable position need not be the same as the Griever’s salary as a Correctional Officer in 1981 “but shall not be more than Sl,OOO.OO per annum less than the’ minimum rate of a Correctional Officer 3”. The Ministry chose the positions for reinstatment purposes, and of course, had the right to do so. The Board mu,st now fashion a remedy to give meaning to the words “substantially equivalent position”. In our opinion, in view of the wage disparity between comparable positions in the Security Officer and Correctional OfPlcer classifications, the device of red-circling the Griev- or’s salary is a necessary and proper a,djustmtnt to enable the Security Officer position to be substantially equivalent to that -of a Correctional Officer. Accordingly, the Grlevors are confirmed in the posi- tion of Security Officers in their approprl-ate classifications - 12- at a rate of pay in the Correctional Officer series which.shall be maintained until the maximum pay level of the reinstated classifications attains the appropriate Correctional Officer rates of pay. Therefore, each of the three Grievers is guaranteed his previous salary as of the reinstatement on March * . 4, 1982. (2) The second issue is whether Emil 3ung is enti- tled to commuting expenses in travelling from Toronto to Mill- brook from January 2, 1985 to and including April 8, 1985. Mr. Jung claims $1,952.34 for car rental expenses and a further $673.61 for gas expenses. At the time of reinstatement, the Grievor Jung lived in Metropolitan Toronto. In this matter, the Board would have given favourable consideration to some reasonable form of reim- bursement for Jung’s relocation expenses, in recognition of the fact that his residence was in Metropolitan Toronto at the time of reinstatement. However, no such claim has been submitted. In evidence, the Grievor acknowledged that there was nothing more than a faint hope that a position would be found for him in the Toronto area. The Grievor is unmarried and was able to commence&work at*Millbrook at the appointed time. On the evidence, the Board is not satisfied that the Crievor has established the merit of his claim for car rental and related - 13 - expenses. In our opinion, there is no reason why the Griever could not have moved his resfdence to Peterborough as of January 2, 1985, at least on a temporary basis. Accordingly, we would deny this claim. (3) The third issue relates exclusively to Hr. Thibert’s apparent success in a business venture subsequent to discharge. Thete is, of course, an obligation upon the Grievor to make reasonable efforts to mitigate his damages. By way of background information, Mr. Thibert started a business in 1979,which could then best be described as a tree cutting service. In 1981, he changed the name of his business from “Woodmaster” to “Carry’s Tree Service”. Subsequent to discharge, he devoted his full time and attention to this business endeavour. The business was a sole proprietorship until it was incorporated on or about April 1, 1983 under the name “Garry’s Tree Service Inc.“. Since incorporation, the business has now expanded into a garden centre. Mr. Thibert is the key man and the, principal shareholder of the Corporation. Gordon Peters, a Certified General Accountant with the Chartered Accountant firm of Ward Hallette, testified at the Supplementary Hearing as to the Griever’s financial position, both prior and subsequent to Incorporation. The - 14 - Griever’s income in 1982 from the business was $11,506.00 . In irst 1983, the business sustained a loss of $S,3b4.00 in the f three months, during which period the Grievor received no salary. He was paid $13,700.00 by way of income in 1983. .Therefore his net income for that year is $8,396.00. In 1984, the Grlevor was paid $8,000.00 in wages and an additional $4,000.00 by way of a dividend from the Company. Accordingly, the Grievor received $31,900.00 during the period of compensation in salaries and dividends. That amount shall be deducted from compensation payable. Since the Company was incorporated, it has accumu- lated retained earnings in the amount of some $38,357.00. The Union acknowledges that some allowance is appropriate to reflect equity growth in the Gtievor’s Company. That amount would bye deducted from the Grievor's entitlement to compensa- tion. The issue for determination is the%appropriate quantum of the allowance. The Union contends that a nominal sum such as $l,OOO.OO is an appropriate allowance, and in support of that proposition cited the Judgment of Mr. Justice Nathanson of the Nova Scotia Supreme Court in Dauphinee v.'Hajor Foods Limited (1963), 56 N.S.R. (2d) p. 517. Also cited was the Judgment of Mr. 3ustlce Wood of the British Columbia Supreme Court in Rosc0e.v. HcCavin Foods Ltd. (1983), 2 C.C.E.L. 387, in which no amount was deducted to reflect the Company's equity position. ‘, ,ei : The Employer argued that the deduction should reflect the accumulated earned surplus of approximately S38,OOO.OO and further that a figure of $50,000.00 to reflect the increased value of that asset would not be unreasonable. It was argued that a substantial sum should be deducted to reflect the fact that his Company could have paid the Crlevor additional amounts of money enabling him to further mitigate his damages. In resolving this difficult issue, no aid comes to the Board by way of reported judicial authority beyond the two cases cited, which holds that profit of a Company incorporated by a dismissed employee.should be considered as income in the hands of that employee. Clearly, it is not income until such time as it is distributed to the shareholder by way of salary, dividend or shareholder’s loan. Any distribution of income has certain tax consequences, both from the standpoint of the Company, as for example the payment of distribution’tax on div- idends, and for the employee in the form of personal income tax. Mr. Peters testified that ifs the retained earnings were withdrawn by way of a dividend, the Company would be re- quired to pay distribution tax on that dividend of $4,176.00. In addition, according to Hr. Peters, the Grlevor, Carry Thibert; would pay personal income tax on the income received , - 16- In the approximate amount of some $3,000.00. Admittedly, in a Company controlled by the dis?itsed Employee, the Employee is in a positlon’to avoid income by retaining it in the Company in which he is the principal shareholder. On the evidence pre- sented, the Board is satisfied that there has been no attempt ‘by Hr. Thibert to hide behind the Corporate veil and the’raby minimize his income. Clearly, a Company should have an accumu- lation of retained earnings for financial stability. In our opinion, relevant case law on the subject tends to establish the proposition that only a nominal sum at best is warranted to reflect the Crievor’s interest in the Corporate equity. Accordingly, we would assess the amount attributable to the Grlevor’s income at $2,500.00 as a fair and reasonable sum. That amount shall be deducted from the Griever’s compensatory entitlement. (4) Mr. Thibert claims that he should be compensated for loss of various Unionpositions as a direct result of the Employer’s actions. He claim~‘entitlement to $2,000.00 for a two year loss of honorarium as Local OPSEU President. He re- signed as President in the spring of 1982 because of the dis- charge.’ In addition, he claims that he would have been elected to the Provincial OPSEU Board to fill a vacancy. Had he been elected, the position would have paid an annual salary of !j3,5op.o0. Further, he claims~an additional amount of , - 17- S3,500.00 for the lost to the OPSEU Provincia 1 opportunity of stand lng for re-election Board. The Employer denies responsibility for any of the above amounts on the basis of being too remote, unforeseeable, .and having nothing to do with the employment relationship from the Ministry standpoint. The Board agrees’with the Employer’s submission on this issue on the claims related to the Provincial OPSEU Board. However, wee would agre’e that Mr. Thibert is entitled to $t,OOO.OO as compensation for his loss of honorarium as Local President of OPSEU. Obviously, he could not continue as President following his discharge. That loss flows directly from the Ministry’s actions and is compensable. (5) Hr. Thlbert claims entitlement to compensation for his accountant’s expenses in two,separate matters. Mr. Thibert received a Ministry subpoena dated April 23‘, 1985 advising him to produce all documentation “which may disclose, the revenue, income and.expenses of Gary Thibert and any business .owned or operated by him or in which he- is or was associated, including, but not limited to, a business under the name and style of ‘Gary’s Tree Service’, or ‘Gary’s Tree Service Inc.’ which documents may.i,nclude, but not limited to, any and all statements of profit land loss, pro forma financial statements, audited and unaudited statements, tax returns - 18 - (Including federal income tax, corporation tax, and retail sales tax), invoices, bank statements and records.” To comply with that subpoena, Hr. Thibert retained .the services of his’accountant, Gordon Peters, of the Lindsay offices of Ward Mallette.~ The Crievor was: charged $925.00 by Hr. Peters for summarizing personal income for the years 1982- 1984, preparation of estimated balance sheet as of August 31, 1984, preparation of’documentation estimating personal net worth as of dismissal and as of August, 3984, and for various ._ . . . correspondence and discussions with Mr. Thibert. Hr. Peters was present during the first day of Hear-. ~ ing, but was not called .upon to testify at that time. During the first day, the Employer requested the right to have a hinistry accountant examine the Crievor’s financial records a~nd that of his sole proprietorship and company. Hinistry officials did attend at the Lindsay offices of Ward Mallette, and were given every opportunity to review the financial infor- mation requested, prior to the second’hearing date. Mr. Peters fees for that service on behalf of the Griever totalled $260.00 (4 hours 'I$ $65.00 per hour). The Employer contends that the accountant's'fees~ flow from the issuance of the subpoena and not.frpm the dismissal - 19 - itself, and accordingly that It is the Crievor and/or the Union and not the Employer who should be responsible for those charges. The Board is satisfied that Hr. Thibert’s action in retaining a certified general accountant was a necessary and resaonable expense in order to comply with’the complex require- ments of the Ministry subpoena. Clearly, the involvement of Hr. Peters enabled the presentatiap .of meaningful testimony which in turn shortened the duration of the supplementary Hearing. Accordingly,,re would allow both accounts to be included in Mr. Thibert’s claim. (6) The next issue pertains only to Mr. Sung. The, issue is whether there should have been a deduction for Unem- ployment Insurance Benefits from the damage assessment; The Employer deducted from Mr. Jung’s damages the sum of $10,529.00 in its calculation of the net compensation payable to Mr. Jung. Mr:Cray argued forcefully that Section 52(l) of the Unemployment Insurance Act obligates the Employer to make a U.I.C. deduction and that failure -to do so would result in a violation of the provisions of the federal statute. In addi- tion, Mr. Gray contended that payment had been made by then Employer so that the Grievor Jung was not required to repay the : .~ federal lbovernment under Section 51 of the Unemployement Insur- ance Act. - to- cation propos Pigeon S.C.R. The Union contended that the Employer had no just Ifi- in making the deduction and cited in support of that tion the Supreme Court of Canada Judgment of Hr. Justice in Jack Cere Ltd. v. Gary William 3orgenson [19801, 1 812. This issue has caused difficulties rhich.have resulted in differences i n judicial opinion. Mr. ,Justice Lerner of the Ontario Supreme Court in Sublett v. Facit-Addo Canada Ltd. (19771, 16 O.R. (2d) 791, 79 O.L.R. (3d) 286, con- cluded that because of amendments to the Unemployment Insurance Act affecting Sections 51 and 52 (1974-75-76, c. 80, s. 1 i 1976-.77~, c. 54, s. 45 respectively) that in a wrongful d sal action the amount received ,by a successful plaintiff 9 and smis- by way of Unemployment Insurance Benefits had to be deducted from a damage award and paid by the Employer to the Unemployment Insurance Commission. Mr. Justice Cromarty also of the Ontario Supreme Court made a similar Order in Peck v. Levesque Plywood Ltd. However, the Peck Decision was reversed by the Ontario Court of Appeal, reported at (1979), 105 D.L.R. (3d) 520. In reversing the trial 3udge, Mr. Justice Dubin of the Ontario Court of Appeal stated at page 525: “The new provisions of the Unemployment Insurance Act, 1971 are only applicable where the Employer or person other than the Employer becomes liable to pays - 21 - remuneration. In my respectful opinion, both Lerner, 3. and Cromarty, 3., erred in considering an Award in action for wrongful dismissal as remuneration. In a successful action for wrongful dismissal, an employee is &titled to damages for the breach of his contract of employment.” And again at p. 526: “I agree that the amendments to the Unem- ployment Insurance Act, 1971 are’not appli- cable in an action for wrongful dismissal, and that the trial 3udge erred in directing that the amount of monies received by the plaintiff by way of Unemployment Insurance be deducted from the as.sessment of damages and be paid by the Employer to the Unem- ployment Insurance Commission.” The Court of Appeal then restored to the assessment of damages the amount received by the plaintiff by way of Unem- ployment Insurance. Current judicial opinion would appear to .indicate that U.I.C. payments, being in the nature of insurance, are not properly deductible from an award of damages. See Rooney v. Reed Ltd. (1978), 20 O.R. (2d) 665 (Southey, 3.1 As indicated previously, the Supreme Court of Canada addressed the issue in the Sorgenson case in 1980 (supr.a). Mr. Justice Pigeon stated at page 818: “Turning now to the Unemployment Insurance benefits, I find the Company’s contention untenable. The payment of Unemployment - 22 - Insurance contributions by the Employer was an obligatlon incurred by reason of respon- dent’s employment, therefore, to the extent .that the payment of those contributions resulted in the provision of unemployment benifits, these are a consequence of the contract of employment and, consequently, cannot be deducted from damages for wrong- ful dismissal.” In the face of such impeccable authority, the Board has little choice but to restore the $10.,529.00 U.I.C. payment deducted from Mr’. Sung’s compensatory benefits. (7) The final issue in dispute Is the Union’s claim that interest be awarded on Bppropriate factors in each compen- satory claim. Hr. Ryder acknowledged ‘that it is settled law that the Crown was not liable for interest unless provided for in a Statute or Collective Agreement. However, he argued that the ~remedlal scope of Section 19(l) of the Crown Employees Bar- gaining Act giving to an Arbitration Board the power to decide matters in dispute and to render a final and binding decision, is broad enough to encompass an interest award. It was argued that the Board’s powers under Section 19 is the equivalent of the remedial authority as contained in Section 44 of the Ontario Labour Relations Act and Sectio,n 46 of the Ontario Colleges Collective Bargaining Act. Mr. Ryder argued that the authority to make a final and binding decision has been inter- preted by the Courts and statutory tribunals to include the , - 23- authority to make such awards as are necessary to put the Griever into the same monetary position as he would have been had no wrong been committed. In support of the proposition that Arbitration Boards authority includes the power to award interest, the following cases were cited: Hallowell House -Limited [1980], O.L.R.B. January 21, 1980; Re Polymer (19591, 10 L.A.C. 51; Association of Radio and.Televislon Employees of Canada (19741, 40 D.L..R. (3dl 1; Centennial College of Applied Arts and Technology v. OPSEU (unreported Decision of Arbitrator Brent dated February 20, 1984); Re Mohawk College of Applied Arts and Technology‘and Ontario Public Service Employees Union (1982), 5 L.A.C. i3d) 237 (Brown); Re Beckett Elevator Co. Ltd. and International Union of Elevator Constructors, Local 50 and National Elevator and Escalator Association, Intervener (19831, 11 L.A.C. (3d) 289 (UacDowell); and Re Leisure World Nursing Homes Ltd., North Bay and Service Employees Union, Local 478, (19831, 12 L.A.C. ,(3d), 345 (Lan’gillel. . ..; Further, Hr. Ryder contended that the prevailing weight of current G.S.B. Decisions has included awards cf interest in the following Decisions: OPSEU (Seannette Jones and The Ministry of Correctional Services, 537/82; Re Cingell, 172184; Re Knudson, 348/80 (.Supplementary Award 1961); and Re Travers, 213178 and 79179. The Employer argued that the Grievance Settlement Board had no power to award interest against the Crown in’the - 24 - absence of authority in either the Collective Agreement or the Crown Employees Collective Bargaining Act. In support of that position, Mr. ‘.Gray cited numerous judicial precedents lncludlng His Majesty The King v. Roger Miller and Sons Llmlted (1930), S.C.R. 293; Hochelaga Shipping and Towing Company Limited v. .Hls Majesty The Kinq (1944), S.C.R. 138; His Majesty The King V. Th,e Royal Bank of Canada (1948) S.C.R. 28; and His Majesty The King V, Dame 3ullette Carroll (1948), S.C.R. 126. ;-.- Alternatively it was contended that interest is a discretionary remedy at best, which in the circumstances ought not to be awarded at all, or if awarded, should not be back- dated to day one of these extended proceedings. 1 Neither the Crown Employees Collective Bargaining Act nor the relevant Collective Agreement, contains any provision specifying that interestmay be paid onsums awarded. Simflar- lY* there is no exclusion of Interest. i An award of interest against the Crown remains an area of some controversy. In Re Tyacke and The Queen (19641, 47 O.L.R. (Zd) 254, the Saskatchewan Court of’ Appeal considered the issue and found that in Arbitration procee.dfngs ielatlng to expropriatio~n of land, unless the governing statute excluded it, an Arbitrator has the power to award interest as against - 25- the Crown on a compensation award. In that case, interest was awarded in the absence of any statutory exclusion. Similarly, the Appellate’.Divislon of the Supreme Court of Alberta awarded interest on sums awarded as compensation in an exproprlatlon matter in Northwestern Utilities Ltd. v. Timm et al (1964), 44 . D.L.R. (2d) 584, 47 .W.W.R. 415. Having considered the issue carefully, and~.having reviewed the precedents cited and the arguments presented, the Board is of the opinion that Section 19(l) of the Crown Employ- ees Collective Bargaining Act, i-s broad enough ln its terminol- ogy to encompass an interest award as against the Crown. An award of interest is inevitably a discretionary matter to be considered by anArbitration Board. :_ Section’lYJl) of the Act authorizes a Panel of the Grievance Settlement Board,.,-.where the Parties are ‘unable to settle “any differences between them arising from the interpre- tation,~ application, administration or alleged contravention of the Agreement, including any questions as .to whether a’ matter, is arbitrable”, to determine the’dispute after hearing evidence and submissions. Section 19(l) further authorizes the Arbitra- tion Board to determine the matter in dispute and to make a decision that is “final and binding upon the parties”. - 26 - Accordingly, we find that the Grievance Settlement Board has the’authority to make an award of interest as against the Crown, in appropriate circumstances, in the absence of any exclusion of that right in either the Collective Agreement or ~the Act. In our opinion, this is the appropriate case to award .interest to the Grievers, not as a penalty upon the Employer, but pursuant to the Board,‘s implied authority to compensate land “make whole” an aggrieved party in rendving a decision that is final and bind~ing. Failure to award interest would have the effect of imposing an additional penalty upon the Crievors. Therefore, the Board awards interest on the appropriate quantum of compensation as determined by the Parties. The method of interest calculation shall Be the one used by the:~On.tario Labour Relations Board in Hallowell House Ltd. and Service Employees International Union, Local 183 [lYEO!, 1 Can. L.R.B.R. 499, [19&l] O.D.R.B. REP..:35. Interest shall commence from March 4, 1982, the effective date of reinstatement for compensatory purposes. The Board shall retain jurlsdlction in the event that the Parties encounter further difficulties in the - - 27 - implementation of the December 11, 1984 Decision. DATED at Brantford, Ontario, this 1st ijay of October, A.D., 1985. R. L. Verity, Q.C. - Vice-Chairman x G. Stapleton Yflember 556/81 DISSENT The majority of the Board has dismissed the grievances of Thibert, McGill, and Jung. I dissent from the majority award- To me, the central.issues are: did Barnes attack the guards add, if so, was the action taken by the guards in response to such an alleged attack “excessive”? The three guardsaereissusd riot sticks by vt ad, as such, werenZWiP2d ~to have them with them when they were in the corridor. Messrs. Jung and McGill had them at the time Barnes ” came into the corridor whereas Tnibert did not- Thus, the guards were carrying out orders issued by management aad cannot be faulted for their use in a situation that may have been. contemplated by management. Otherwise, vhy issue the riot sticks? The sticks are made of very hard plastic and are approximately three feet in length. these guards were not properl! inZ+tructed in their USe. One blow from such a stick could easily come into contact with two or more areas of the body. While there is conflicting evidence as to bow aany blows were struck, three or four blows could easily account for seven or eight bruises on the body of Barnes- Thus, should we take account of the number of b?ovs ‘or the numbir of bruises to gi-;e a meaning to the word “excessi-gel’? Likrvlse, is it the tvo 1acerncions to the sc31p cilzt pushes the ccnce;lc 0:’ “suf:ici?nE -2- force“ over the subjective line into the area of “excessi;re”? ‘Ihat there were two lacerations cannot be denied. Hovever, it seem an odd fact to me that the second one was not discovered until Bsrnes was transferred to Millbrook in spite of his examination by the ambulance attendants, the 11mse, the doctor, and the nurse. at the jail. However, be that .as it may, it leaves us to explain hov these lacerations occurred. Should it matter how the cuts occu&ed? If they were caused by a fall by Barnes, then one might conclude that they were the natural consequence of the preliminary-westling match between Barnes and lhibert. It is pure conjecture here, but the cuts may have been caused first by the blow Barnes recei-led if his head struck the vail and, secondly, if/when his head struck the floor. A glancing blow off the vail may cause a severe laceration but not.&. iPm%fZto, evidence of such. A sharp blow et an acute angle need not leave :- blood on the vail and, thus, the lack of such evidence is not necessarily proof chat Lt did not happen in the man&r described. Tbe second laceration could, as mentioned, occur if Barnes struck his head on the floor. Both lacerations were parallel to One another and on the back of’the head which would be consistent virh the evidence provided about the early stages of the al. tercation. Blows to the head with riot sticks might veil be expected co.be random and the resulting lacerations afl angles consistent with such randomness. However, the najoricy of this -3- lacerations points to the use of riot sticks and, by definition, to the use of “excessive” force. I am not convinced, oa the widence~ provided, that one can conclude OD the balance of probability that such lacerations were caused by the riot sticks. Finally, there were two lacerations and, yet, there were three guards involved. We know that Thibert came to the gate to retrieve the handcuffs and his riot stick. Is it possible that, if the cuts to the head were indeed caused by riot sticks, they had already been administered before Thibert returned to the scene? Also, ve know that &Gill lost his stick for a few seconds leaving Jung as the only guard with a riot stick for the full duration of the altercation. Perhaps a’ dtiferent conclusion could have been dram from this event if the involvement of each guard had been isolated. The question of Barne’s broken hand posed difficulties for the Board. In effect, it was difficult to believe that a person with a broken hand Gould uee it to strike out at a guard Or eVeD co contemplate a fight with three guards at one time. That’s the rational assumption made by racioaal people. First of ail, no one knew that Earne’s hand was broken and ic vas ‘not diagnosed as such until a later examination. Thus, ac the inscanc the altercation started, Barne’s would only have co raise his fist es if he were prepared~ to srrike Tbibere to initiacr zhe subsequent chain of events. Tbibert did nor know that Barnes had a broker. hand and, rhus , Thiberc’s ftrsc reaction would 32 to blxk tie -4- blov and counter Welch a blow of his owe. In retrospect, the threat from Barnes could not appear ratlonal to any reasonable man but his earlier behaviour and past history are filled vith irrational acts. In summary, it is not what is true but vhat is seen to be true that is important and if Barnes actions were interpreted by Thiberc es a threatening moves, then Thibert’s blow would be a natural reflex action in this situation. Thibert could hardly be expected to assimilate all the information that was presented to us In evidence and do so in a fev splir seconds and then react differently. Thibert was not privy to many of the facts regarding Barnes hand at the time the fight broke out. r ‘E-us, our problem in trying to understand why a man with a broken hand wuld attack need only concern us as being a piece of evidence which, adduced after the fact, makes the attack by . Barnes appear irrational. ?&is Board felt that the evidence given at the hearings had a number of inconsistencies and that “there are some significant differences between some of the versions of the incident”. While the majority award scafes thar (it) I’..;. .would be unusual, and perhaps damning if all statements of all parties’agreed’in all aspects, the one vich the other.” I suggest chat these (inconsistencies) are a strong indication chat there was little, if any, collaboration between the grievers and :heir vicnesses. Thus, there was no a~tempc at a cover up or a re-arrangrmenc of ~accs to make a strongrr crlse :o,r :i,r events :hae transpir?? C!!.iC - 5 - evening. The lack of detail in the reports subsequently filed and the fact that one report was not filed may seem odd on the surface. However, it vould be naive to believe that this would have been the end of the incident for the prison personnel. Thus, that was the time to spell out at great length the details of the incident and, if the guards so vished, to flevour the reports in a way that-vould reflect fevourably on themselves. They chose not to do so; Again, no attempt et a cover up. The guards, at least the more experienced ones, would realize that an incident es serious as this one would have brought a full investigation regardless of any reports filed and regardless of the amount of derail included in such reports. Tbibert, the most~experienced of the grievers, knew from experience the consequences that flov from a Misconduct Report being filed on a prisoner and, in the case of Barnes, would have little meaning. In summary, I take the opposite view of my colleagues on this Board. I would have been much more suspicious if a great amount of detail had been included in the reports filed because, it eeems to me, thar was the time to provide a most convincing case in support of the actions taken by the prison personnel on that evening. The Board has unanimously concluded that :here was no conspiracy to beat up Barnes. Thus. the Fncidenc must have been sponcaneour and ignited by a sudden, Terhaps nisin:rrpreted. act sither by '3arnes or by Thhiber:. If Ihibrrr ~di.! sonechir.>; vhich . i .z -6- could be interpreted as provocation in order to induce Barnes to iaitiate a fight so that he and the other guards could beat his with the riot sticks, then the action would be unconscionable. Iiowever, if Barnes made the first move to strike out at lhiberc, then it is not unreasonable to conclude that Thibert would strike back and that he and the other g?lards would use whatever force they deemednecessary to control Barnes. To argue thee it was irrational for Barnes to "take on" three guards, two armed with riot sticks, and to do so in a codfined area is to equally beg '. the question: would these guards, knoting the consequences of an assualt on a prisoner, also be acting irrationally if they were to use excessive force? Surely these men, armed as they were and admittedly&properly trained in the use of the riot sticks, did what they felt they had to do under the circumstances. We have already agreed chat there was no conspire&y to beat up'Barnes, thus, it cannot be interpreted as a concerted action which sustains the allegation of.excessive force. Without deprecating this conclusion, even if one might.be pemitted to advance the proposition that at some point during the melee en isolated Instant of excessi-ve force may have been used when viewed separately.and distinct from the totality of the events of that evening, such an allegation should not warrant anything more then a severe reprimand co chose involj-ed. -7- that “a considerable amount of rime was spent during the fi;ie days of evidence in unveiling this event.....” It was, at times, very confusing with much of the evidence In conflict. The incident was a serious one and the consequences flowing from it to the reputations, livelihood, and future job opportunities of the grlevors cannot be understated. Thus, the standard of proof against which the grievers are to be judged must be high and no doubts should be left in the minds of those who are to set the line against which that standard will be awasured. Zhe MInistry of Correctional Services in its Standing Orders, Regulations, Letters, Maanuals, etc. speaks out against excessive force but does sot define the phrase unless it does so by exception. “....a inmate may b&me agitated and atrack an employee or other inmate. Certainly restraiqing force should be used and an employee or Inmate has every right to defend himself. and others against physical attack.” Deputy Minister’s letter of July 25, 1968. Tnus, this Board is charged kith the responsibility of setting a standard of conduct under the circumstances of that evening and Ehen to define the word “excessive” in light of the evidence. Tne vord is not an absolute and, thus, what may be excessive under one set of circumstances would not be excessive under a different sec. The standard of proof under the circumstances present+d Co us ought to be high and :he anus sf proof rests vi:h man3grmenr. 5Lnce nanagemrn~ icseL1 iias Lhe cause af boL3 ~!?e -s- clrcmsrances leading up to the event and for failure to act once the iccident got under way , some clearer meaning can now be given to hihat management meant by “excessi;re”. Management created a set of circumstances where it would be difficult tb claim without a doubt that the conduct of the grieirors was excessive. - the guards were ordered to carry the riot sticks - two of the three guards assigned were inexperienced - none of the guards~ were properly instructed in ,the use of riot sticks - management insisted that at least two guards were CO be with Barnes. Hov could the guards be expected to draw a boundary lioe between the domain of reasonable force and the don+in of excessive force under these circumstances? The conflict between proper procedure under shifting circumstances and rhe appropriate amount of force is inescapable. I wouid not have Characterized the force as excessi-<= in light of all the evidence. To me, the onus of proof for the Ministry has to be beyond all doubt. I remain with several _~, doubts and; therefore, would not have ditissed rix grievances.