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HomeMy WebLinkAbout1985-1048.Montgomery.87-12-14File # 1048185 Between: OPSEU (James Montgomery). Befort?: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT. Before I T&GRIEVANCE SETTLEYENT BOARD and The Crown in Right of Ontario : .(Ministry of Community a&Social Services) J. W. Samuels Vice Chairman L. Robbins Member G. Milley Member For the Griever: R. Wells Counsel Gowling and Henderson Barristers and Solicitors For the Employer: R. J. Anderson Senior Solicitor Legal Services Branch Ministry of Community and Social Services Griever ~ Employer I Hearings: June. 22, June 30, July 16, JUlY 27, July 28, September 2, November 30, 1987. DECISION 2 James Montgomery was a Residential Counsellor at the Adult Occupational Centm in Edgar, near Barrie. He commenced his employment at the Centre in 1979, and until the alleged incidents which are our concern, he had never been disciplined by the Ministry. He is 56 years old, married, and lives with his wife. He is mild-mannered. Established on some 200 acres in an old armed forces base, the Centre offers rehabilitative service to roughly 200 developmentally handicapped adults. There are three areas at the Centre; one of which is Sherwood, which houses some 57 “middle&nctioning” men and women. Sherwood consists of eleven houses, five female and six male. Mr. Montgomery was a counsellor in Sherwood in house 41, one. of the male ‘houses. On September 151985, Mr. Montgomery was discharged, because it is alleged that he sexually abused two female residents (who will be identified only as CL and CC) at around 2 AM that morning in house 63. This is a very difficult case. The alleged. victims ‘were competent witnesses and they were adam&nt that the assaults occurred and mat Mr. Momgomery, whom they knew well, was the man involved. On the. other hand, I&. Montgomery was not on duty that night. He attended a stag party. for a fellow ~sriff member and then drove home. He says that he did not go to the C&me on his way home. His defense is that he simply wasn’t there. Mr. Montgomery was charged under the Criminal Code with sexual assault as a result of the allegations, and was found not guilty. It was agreed at our hearing that this finding was not binding on us. We would hear evidence afresh and would have to determine ourselves whether there was just canse for dismissal. We heard considerable evidence concerning the stag party, the time about which Mr. Montgomery left the affair, the length of time it would take . him to drive home (34 kilometers), the length of time it would have taken for a side-trip to the Centre (an extra 6 kilometers), and the time he arrived home. The difficulty with all of this is that no one at the party was keeping 3 time for any particular reason, so that the testimony of participants is an attempt to recall times at a convivial event where precision was not uppermost in one’s mind. Furthermore, much would depend on the speed at which the grievor drove---over a trip of 34 to 40 kilometers, the time for the whole trip would differ quite significantly depending on the speed driven. We are satisfied from the testimony of Mrs. Montgomery that the grievor arrived home before 2 AM, because she woke up to fmd him home just before their clock chimed. In our view, all of the evidence about time that we heard’leads to no conclusion. It is possible that Mr. Montgomery had time to go to the Centre on his way home and commit the alleged assaults. On the other hand, it is possible that he left the party and went straight home as he says. So let us consider the allegations. CL is 21 years old. She hasbeenat tl%Centre for 3 to 4 years. She is described by Dr. L., Arnold, the consulting psychologist at the Centre, as quite immature, having borderline IQ, an attention-seeker; and by Dr. P. G. Lynes, the psychiatric consultant at the Centre, as competent to -give sworn testimony. She had’s history of making frequent and often unwarranted calls to the health services at the Centre., but she had never before complained of sexual assault. She says that early in the morning on September 15, she woke up in her darkened room on the second floor of house ,63 to find Mr. Montgomery there and he was sexually assaulting her. She: could smell aftershave on him (the grievor and his wife testified that he is allergic to aftershave and never wears it). They spoke to one another. He asked “Do you know +ho I am?“, and she replied “JM” (she actually used these initials), to which he responded “Oh, I’ll never tell”. She says that he continued his assault for about 5 minutes, and then asked where CC was. She told him that . CC was downstairs and he left. She followed downstairs, turned on lights in the hall, living room and kitchen, but didn’t see him (she knew he was headed for CC’s room, but she didn’t look’there). She phoned the nurse at the 4 Centre’s health services to complain of a stomach ache, and as she.got off the phone, the grievor ran out the back door. CL says that she was then called by CC into the latter’s room, and CC asked if the grievor had been in CL’s room too. CL said yes. CL then called CC’s boyfriend, but got no answer. She called the Sherwood Offrce and told the lady who answered that she was not feeling well and had a sore stomach (Ms. L. Partington, the Residential Counsellor who took~ this call, confirms it). Then she called “the, CRC Offke” at the Centre and reported that the grievor had been in their rooms. She was told to call the Sherwood Office to report the incident, and she called back to Ms. Partington at Sherwood and did so. This was roughly five minutes after CL’s first call to Ms. Partington. CL and CC were asked to ’ come to the Sherwood Office. There, CL told Ms. Partington and her colleague, Ms. E. Murray, that the griever had assaulted both CL and CC. CC~ said httle, in fact Ms. Partington says that CC said nothing happened to her. CL and CC were sent back to house 63, where they had some tea and . ‘.wenttobed. . . . . At the end of CL’s testimony, there was ‘some rather ‘strange behaviour. On September 14,. the day before the alleged sexual assault, CL had given her camera to Mr. Montgomery and he was going to repair it. They &exe friends. Mr. Montgomery was discharged before he had a chance to return the camera, and he says that he left it with a fellow employee to be returned to CL. Apparently, CL never got the camera back. Thus; at the end of her testimony, she erupted against the grievor, berating him for not returning the camera. By the time she had left the hearing room, one had the ~impression that she was perhaps angrier with the aevor for failing to return the camera, than she was about the sexual assault that she says took place in the early morning of September 15. CC is 26 years.oId. She has been at the Centre for 8 years. She is described by Dr. Arnold as having borderline mental retardation, using defensive denial (denying that something occurred to protect herself psychologically), suggestible, and dependent; and by Dr. Lynes as competent 5 to give sworn testimony. She says that she was awakened that morning by the grievor, who was beside her bed touching her in the~darkened room. And she too describes a sexual assault which went on for about four minutes. She says that he hid behind her door when CL turned on the lights, and then he ran out the back door. She says that, when CL came into her room, CL was the first to mention that she had been assaulted by the grievor. They decided to phone in to report the incidents. CC admits that, when they first met with ._ Ms. Partington, CC denied that the grievor had been in her room. When asked on cross-examination why she did this, CC had no answer.. It was only later that day, in discussions with management and the police, that CC said that she too had been assaulted. When CC met with Dr. Lynes on September 24, she told him that nothing had occurred. Dr. Arnold said that it would be hard for CL and CC to -agree on a story like &one. we heard, because of their personality make-up, social beliaviour, and intellect. Furthe~ore, he was of the opinion that, if it was just a “story”, CCwould try to change it or give it up; . . The Ministry sought to introduce certain “similar fact evidence” which concerned allegations against the grievor of sexual assault, made in 1977 by two female residents of another home for the retarded, Starwood House, where the griever ‘was employed at the time. Counsel proposed to call these two residents. They would speak about acts of intercourse, spanking, and attempts to persuade the victims to engage in certain conduct, all whilg the grievor was on duty. We denied this request. Fitly, ,the complaints had not been proceeded with in 1977, presumably because they would have been too difficult to prove. In any event, these complaints were not yet “facts” which could bear on our case, they were merely allegations. In order to turn the complaints into facts, we would have to conduct a full hearing into them, on top of our hearing into the allegations before us. Secondly, at the grievor’s criminal trial in 1987, on the.charges leading out of the events with which we are concerned, this evidence was not allowed. His Honor Judge G. V. Palmer . . . 6 decided that there was a marked difference in modus operandi; it had been a long time since the allegations; .he had considerable concern about the evidence of the two residents, having heard them in a voir dire; and he had considerable concern about its weight if admitted. Thirdly, in our view, if this evidence was admitted, it would likely take as long or longer to deal with as to deal with the principal allegations before us. And, fourthly, even if admitted and proven, it would have very little probative value with respect to the principal allegations before us, which involve an alleged assault in the. night, when off duty, involving touching, with no intercourse, spanking, or attempts to persuade the victims to do certain acts. Similar fact evidence may be admitted if there is a sufficient nexus between the similar facts and the principal allegations (we were referred to a great many cases, and a review of the law in Sopinka and Lederrnan, The Law of Evidence in Civil Cases (1974). ai pages 19-25). In our view, the r&rginal probative value of the evidence sought to be adduced by the Ministry was far out-weighed by the considerations arguing against its introduction.. _. The Ministry then wanted to ask questions during cross-examination of. the grievor about the Starwood House allegations. We refused this request. We had already made our ruling concerning the relevance ‘of these allegations: In cross-examination of the grievor, counsel for the Ministry also wanted to ask him about allegations of sexual harassment made by a fellow female employee at the Barrie District Association for the Mentally Retarded, involving j&ting his arms around her and unwelcome attention (in order to show his ~morals and his propensity to commit the acts alleged before us), and about the reasons for his termination of employment at the Barrie District Association for the Mentally Retarded (to challenge his credibility). We refused these requests as well. The grievor’s character is not directly .in issue in this case. One can raise character in certain cases, for example to show a propensity to untruthfulness (that is, to show previous incidents of untruthfulness). But one cannot raise character to show . . . 7 propensity to commit sexual acts unless the earlier ‘conduct is sufficiently. similar to fit the test for similar fact (again we wem. guided by the review of the-law in Sopinka and Lederman, The Law of Evidence in Ci?il Cases (1974), at pages 286-293). As in the case of the StarwoodHouse allegations, the incident with the fellow employee at the Barrie DAMR does not meet the test for similar fact evidence. The incident is too remote to help us determine whether or not the grievor was in theroom in house 63 on September 15; 1985. With respect to the grievor’s conclusion of employment at the Barrie DAMR, this is collateral to the issue before us. It is not directly relevant, and it would serve no purpose raising. the matter before us. We said that we would allow .questions on matters which, if proven would have a clear relevance and probative value---but to have such value, the incidents would have to be very much like the one in issue. Mr. Robbins concurred in this ruling, and Mr. Milley said that he was generally in agreement, but he would have allowed wider questioning on matters of credibility. At the end of the case, the Ministry sought to call a wimess concerning the g&or’s application for employment to the Banie District Association for the Mentally Retarded, in order to challenge certain statments made by the grievor in his evidence, and to show lack of credibility. We ruled that one must test credibility within the context of the issue before us, and ‘the griever’s application for employment at the Barrie DAMR was simply too remote for us. Again, Mr. Milley had some reservations about this ruling. He would have allowed a wider scope for questioning which went to the credibility of the grievor. The grievor responded to the allegations by saying that he went straight home from the stag party. He .was not at.the Centre thatnight. He was examined and cross-examined in great detail about his movements that night, about the conversations he had with his wife after the allegations, about . his response to the allegations. There is no point ~repeating all of this evidence. We have reviewed it in detail and our clear conclusion is that there . 1 8 is nothing in the grievor’s testimony to suggest he was not telling the truth. As a witness, he was believable. His conduct was reasonable for someone who had been accused of sexual assault by two residents at the Centre. He appeared to be entirely forthright with us,‘just as he had been found to be cooperative. by the investigating police officer. The Ministry must prove that there was just cause for discharge. There is absolutely no doubt that, if we accept the allegations of the two residents, there was just cause for the termination. A. Residential Counsellor in a facility like the Centre is in a position of trust and must behave with great propriety in dealing with theresidents &I the Centre’s care. The Ministry has a legislated responsibility to provide care and protection for the residents in its facilities. Management and the Residential Counsellors must be vary careful to ensure that residents are not subjected to inappropriate behaviour, in particular sexual assaults. Indeed, even if less happened that night, but Mr. Montgomery did go to the Centre and into house. 63, we would have no hesitation in fmding that there was just cause for discharge. The real issue is whether or not he was ~%I house 63 during the night on September 15,198s. “When the alleged conduct is criminal in nature, courts and boards of arbitration have said that the burden of proof .is commensurate with the .seriousness of the conduct alleged. This is a civil matter, not criminal, therefore we am not talking about proof “beyond a reasonable doubt”. Bm there must be clear and convincing evidence to demonstrate just cause. we agree with an oftquoted passage from Re lndusmin Ltd. and United Cement, Lime and Gypsum Workers International Union, Local 488 (1978), 20 LAC (2d) 87 (Richer), which contains reference to another chestnut from the judgment of Lord Denning in the English Court of Appeal in Bater v. Barer, [I9501 2 All ER 458. In Re I~dusmin, the learned arbitrator said (at pages 89-90): 9 The standard of proof to be applied in this type of civil proceeding is proof on the balance of probabilities. gut both the Courts and boards of arbitration have. recognized that that is not ‘a mechanical or inflexible standard. Thus, as fairness and common sense would require, the standard of probability applied in arbitration proceedings may increase with--the gravity of the consequences that will flow from an afirmative finding. In adopting that proposition in respect of the standard of proof in civil proceedings generally, im Hanes v. Wawanesa Mutual Ins. Co. (19631, 36 D.L.R. (Zd) 7-18 [f9633] S.C.R. I54 [I9631 I CCC. 321, the Supreme Court of Canada quoted with approval the fbllowing passage from the judgment of Denning, L-l., in Bater v. Bater, [I9501 2 All E.R. 458 at p. 459: The difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be more a matter of words than anyt.hing eke. It is ture that by our law there is a higher standar.d of proof in criminal cases than in civil cases, but this is subject to the qualification that. there is no absolute. standard in either c.ase. In criminal: cases the. charge must be proved beyond reasonable doubt, but there may .be degrees of proof within that standard.’ :Matiy great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. .So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge .of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a crimina1 nature, but still it does require a degree of probability which is commensurate with the occasion. See also Smith v. Smith and Smedman, [19Sil 3 D.L.R. 449 at p. 463, Il9521.2 S.C.R. 21 (S.C.C.); Re Bernstein and College of Physicians & Surgeons oft Ontario (1977). 76 D.,L.R. Od) 38, ‘15 O.R. (2d) 337 font. Div. Ct.); Re Canadian Union of Public Employees~, Local I and Toronto Hydro Electric System et al. f1978), 84 D.L.R. (3d) 601, 19 ).R. (Zd) 245 (Ont. Div. Ct). 1’1 is thus misleading td suggest ~that in cases where discharge or discipline is grounded in allegations of employee conduct that is criminal or quasi-criminal arbitrators have required the employer to establish its case accoiding to a. standard of proof that falls between the criminal and civil burdens of proof. Rather, like the Courts, arbitrators have applied the flexibility inherent in the civil burden in., requiring that allegations of criminal or quasi-criminal misconduct must be proven by clear evidence or with reasonable probability commensurate with the gravity of the conduct alleged and the seriousness of the consequences to follow if the allegations are proved: see, e.g., ‘Re Allen Industries Canada Ltd. and U.A.W. (‘19711, 23 L.A.C. I21 (Weatherill.); Re Air Terminal Transport Ltd. and Fuel;Bus. Limousine, Petroleum Drivirs dr Allied Employees, Local 352 (1970). 22 L.A.C. 143 (Brown). We f!ind that; based on the evidence before us, we simply don’t know what happened in house 63 in the early morning on September.15 $235: There are some very troubling elements in the testimony-and conduct of CL and CC. We find it very diff%ult to believe that, if CL had really been assaulted (by die grievor or anyone else), her first phone call would be to complain about a sore stomach, yet this is precisely ~what she did. She said she was frightened; she thought he was still in the house (indeed, he had asked about the whereabouts of Cc’s room and she had told him where to go); yet all she says over the phone is that she has a stomach ache. No cry of alarm, and perhaps more significantly, no cry for help. And even after CL says the girls had a talk to compare notes, she makes yet another call simply complaining of . a sore stomach. This makes no sense to us whatsoever. Counsel for the grievor suggested that perhaps CL, then complained of a sexual assault in order to get the attention she craved. We do not know if this is what happened, but his suggestion is not, improbable. 10 11 CL is sure she smelled aftershave. But we accept that the grievor is allergic to it and wasn’t wearing any that night. CL’s concern about her lost camera, and the appearance that this was troubling her more than the sexual assault, was curious. We are very troubled by Cc’s ever-changing story. At first with Ms. Partington, she said nothing happened. Later in the day, she said she was assaulted too. On September 24, inexplicably she tells Dr. Lynes that she wasn’t assaulted. This is particularly troubling because of Dr. Arnold’s opinion that, if the whole thing was just a “story” made up by CL.and CC, CC would try to change it or give it up. This -evidence is just not clear and convincing. In fact, we are not convinced that CL and CC were sexually assaulted, or, ifthey were assaulted, that the grievor was involved. We have reached the same conclusion as His Honor Judge Pahner did at the criminal trial. He concludes his judgment by saying that he was left “with some great considerable doubt as to what happened on that evening”. Jn these circumstances, we must fimd that the Ministry has failed to show just cause’ for the discharge. We:order the grievor reinstated. He is to be compensated for all lost wages and benefits, with interest at 9 l/22% on each amount which was unpaid from the date it should have been paid to the date on which it is paid. ‘Ihis . rate of interest is a rough weighted average of the Bank of Canada rate during the period involved. We reserve our jurisdiction to determine zany matters relating to compensation which the parties are unable to settle themselves. Done at London, Ontario, this 14th day of December ,1987. $Te+. . .._ . -.-‘~ I’ --~ ,,~,-* “-J. W. Gamuels, Vice-Chainnan ‘4 L. &sbins, Member G. Milley, Memb&