IN THE MATTER OF AN ARBITRATION UNDER THE BRITISH COLUMBIA LABOUR  
RELATIONS CODE, R.S.B.C. 1996, C. 244  
BETWEEN:  
CITY OF PORT COQUITLAM  
(the “Employer” or the “City”)  
-AND-  
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 498  
(the “Union”)  
Re: Copper Dismissals  
APPEARANCES:  
Dean Crawford, Q.C. and Nicholas  
Valsamis, for the Employer  
Susanna Allevato Quail and Jim Quail, for  
the Union  
ARBITRATOR:  
Ken Saunders  
DATES OF HEARING:  
June 24-28, July 2, 4, 5, 15-19 and  
October 3, 2019  
DATE OF AWARD:  
June 17, 2020  
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I.  
INTRODUCTION  
1
On June 29 and July 10, 2018, the Employer dismissed six employees in its Utilities  
Department for engaging in dishonest conduct: Keifer Baranec, Travis Buizer, Kim  
MacKenzie, Coral Steele, Ian Plasman and Andrew McBoyle (collectively, the  
“Grievors”).  
2
The Employer contends the Grievors participated in a scheme whereby copper  
obtained on the job was cashed in and the revenue distributed among members of  
the Water Crew. The Employer also asserts that Buizer and MacKenzie either stole  
or obtained fire hydrants contrary to City policy. Finally, the Employer says that each  
of the Grievors was dishonest when interviewed and in their testimony.  
3
The basic elements of the scheme involved placing copper designated as scrap in  
burlap bags. Those bags were placed out of sight behind the door to a compartment  
in the Water Van. Copper was bent or cut to fit into the bags. The bags were  
surreptitiously transferred from the Water Van to an employee’s vehicle and taken  
to a recycler for money. The cutting and bagging of copper was essential to the  
scheme. This was a co-operative effort.  
4
There is no dispute this scheme was perpetrated. Water Operator, Harold Lewis  
visited the recycler on nine dates between March 14, 2015 and November 21, 2015.  
In 2016 he visited the recycler on nine occasions. In 2017, Lewis attended the  
recycler on 11 dates and on seven dates between January and June 23, 2018. In  
total, Lewis recovered $16,798.17 for the delivery of 6,567 pounds of metal in this  
period. It is fair to infer these metals were obtained on the job and were taken at the  
Employer’s expense.  
5
6
The evidence also shows that this scheme was perpetrated for many years and as  
far back as 2000.  
The Union’s defence raises issues under the following main categories: 1) Did the  
Employer violate the Grievors’ right to Union representation; 2) did the Employer  
violate Buizer’s and Steele’s privacy in its investigation; 3) did the Employer act in  
bad faith in its manner of dismissing MacKenzie through its response to her  
application for employment insurance (EI) benefits; 4) did the Employer act in bad  
faith in its manner of dismissal of all the Grievors by its representations to the media  
about the copper scheme; 5) did the Employer establish that MacKenzie, Steele and  
Baranec participated in the scheme; and 6) did the Employer establish cause for  
dismissal in respect of each Grievor?  
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II.  
BACKGROUND  
A. THE UTILITIES DIVISION  
1. Organizational Structure  
7
8
The Employer’s Department of Public Works has four divisions: Utilities, Streets,  
Parks, and Solid Waste/Fleet.  
The Department of Public Works is headed by Public Works Manager, Dave Kidd.  
Reporting to Kidd at the material time were Section Manager for Utilities, Bob Bell,  
the Section Manager for Streets, Ross Maki and the Section Manager for Solid  
Waste and Fleet, Tom Madigan. Kidd, Bell, Maki and Madigan are excluded  
managers. Each participated in the investigation of the copper scheme and testified  
in this proceeding.  
9
The highest ranked bargaining unit position in the Utilities Division is the Foreman  
3. The duties of a Foreman 3 are primarily office-based and administrative, including  
scheduling of the crews, contact with contractors, contact with the foreman for each  
Utilities subdivision and suppliers. Gary Goff was the Foreman 3 at the material time.  
Goff was interviewed in respect of the copper scheme and testified in this  
proceeding.  
10 The Utilities Division has three subdivisions: Water, Construction and Sewers. Each  
of these subdivisions is headed by a bargaining unit Foreman 2. Under the Foreman  
2 is the Utility Operator who acts in a lead hand capacity. The Utility Operator for the  
Water Crew is known as the Water Operator. Seasonal work is performed by  
individuals or small crews assigned to hydro maintenance, valve maintenance, water  
meters, unidirectional flushing and pump maintenance.  
11 Trades 1 employees work under a Utility Operator. Trades 1 employees formed a  
labour pool at the time of the investigation and rotated between the Utilities  
subdivisions as needed. The Grievors employed as Trades 1 employees were  
Andrew McBoyle, Kim MacKenzie, Ian Plasman and Keifer Baranec.  
12 The Grievor, Coral Steele, was designated as Foreman 2 of the Water Crew at the  
material time. Steele also filled in as Foreman 3 and in various other work  
assignments. These alternative assignments touch on Steele’s opportunity to  
observe the operation of the scheme and will be discussed in greater detail in this  
award.  
13 The Water Operator at the material time was Harold Lewis. It is fair to say Lewis was  
the key perpetrator of the copper scheme although it must be emphasized he could  
not have fulfilled this role without the co-operation of others. Lewis was terminated  
in connection with this matter. Lewis was also charged criminally in that regard.  
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Lewis’s dismissal is not the subject of a grievance and he did not testify in this  
proceeding.  
14 The Grievor, Travis Buizer, was the Foreman 2 of the Construction Crew at the  
material time. Buizer was dismissed in connection with the copper scheme and  
testified in this proceeding.  
15 Steve Becket was the Foreman 2 of the Sewer Crew at the material time. Becket  
was not interviewed. Marco Stevens was the Sewer Operator. Stevens was  
interviewed but not disciplined.  
2. Work of the Water Crew  
16 The Water Crew is responsible for a variety of services including installing and  
disconnecting water service connections, water meter installations, water main  
repairs and tie-ins, as well as attending to requests and complaints also known as  
Green Sheets. This work involves the regular use and installation of new copper  
pipe and the disconnection of old copper pipe.  
17 Harold Lewis, Andrew McBoyle, Kim MacKenzie, Ian Plasman, Nick Duran, Keifer  
Baranec and Coral Steele were assigned to the Water Crew at the material times.  
3. Work of the Construction Crew  
18 The Construction Crew supported third-party contractors for the tie-in of new water  
mains to existing City utilities. Additional work included water meter replacement,  
water main tie-ins and the support of the Water Crew on emergent work to repair  
water mains or to service water leaks. These tasks involved the regular use of new  
copper pipe and removal of old copper pipe. The Construction Crew also assisted  
with annual unidirectional flushing to scour water mains. Members of the  
Construction Crew were commonly assigned to work on other crews as needed. For  
example, the crew would assist with annual unidirectional flushing. Grievors Ian  
Plasman, Kim MacKenzie, and Travis Buizer were often on the Construction Crew.  
Marco Stevens also served on the Construction Crew for a period of time.  
MacKenzie, Plasman and Duran regularly rotated between the Utilities crews.  
4. Work of the Sewer Crew  
19 The work of the Sewer Crew involved installing new services for newly developed  
properties, maintenance of the existing sewer system including service repairs,  
catch basin repairs, manhole repairs, and attending to complaints and requests.  
5. Additional Crews  
20  
Additional crews operated equipment or were assigned specific jobs.  
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21 For example, a flush truck is used mainly to clean sewer mains and sanitary. It was  
also used to clean catch basins and to vacuum out wet wells at the sanitary pump  
station. Further, this machine was used to excavate soil close to existing utilities.  
Darrell Ackerman was the operator of the flush truck and was assisted by Nick  
Duran, Britton Ayers and Rick Williams.  
22 Depending on the time of the year, the Utilities Division assigned persons to valve  
maintenance, checking and troubleshooting water meters, pump maintenance at the  
sanitary lift stations and unidirectional flushing. The maintenance of fire hydrants  
also falls within this category. Fire hydrant maintenance is an entry-level task  
generally assigned to one person. Unidirectional flushing was typically assigned to  
persons with knowledge of the water system from January 1 to May 15 and October  
15 to December 31 each year. Crews were assigned to the tasks under this heading  
on an as-needed basis depending on who was available and the demands of the  
day.  
B. BACKGROUND CONCERNING THE USE OF CITY PROPERTY AND COPPER  
23 I find on the evidence of Gary Goff, Shop Steward and Foreman Roy Savage, Travis  
Buizer and Andrew McBoyle that there was a practice among certain members of  
the Water Crew of taking scrap copper from the jobsite and cashing it in. The  
proceeds were then distributed between crew members. This practice went back as  
far as 2001. Employees were supposed to place that copper in the City’s metal  
recycling bin for the benefit of the City.  
24 I will pause at points in the following narrative to record parts of the testimony that  
bear on the resolution of the issues in dispute.  
1. Gary Goff  
25 Gary Goff began work with the City at the age of 16 years old. He recently retired  
after 42 years of service. Goff worked in various positions before he moved onto the  
Sewer Crew and then the Water Crew. He subsequently stepped up the ranks to the  
Foreman 3 of Utilities and served as Acting Section Manager. Goff worked in that  
capacity until he retired. Goff was active in the Union throughout the 1980s and  
1990s when he held various positions on the Local Executive. He was elected Vice-  
President in 2012 and elected President of the Local in 2014.  
26 Prior to 2013 Goff understood that employees cut and bagged scrap copper, took  
the copper to a recycler and distributed the proceeds amongst themselves, although  
he was not involved. Goff estimated in cross-examination that this practice had  
occurred for as much as five years prior to the arrival of Section Manager Ravi  
Chinna in May 2013. In cross-examination, Goff testified that he did not believe that  
he told the Employer that scrap copper was being cashed in, although he took no  
direct issue with the words attributed to him when he was questioned on June 27,  
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2018 to the effect that “…there was a period where scrap was pulled out of the  
ground and brought in for cash.” I find that Goff did make that representation to the  
Employer when questioned on June 27, 2018. Goff understood that the practice  
ended when Ravi Chinna was hired in 2013. Goff testified that Chinna told him he  
would speak to employees at crew talks. Goff told the Employer when questioned  
on July 11, 2018, in part, “it’s not proper. Post Ravi, there was a line in the sand and  
as far as I know, after that it did not happen.” Goff understood after that point that  
scrap copper was to be left in the ground or placed in the recycling bin—as he put it  
in his testimony, once the copper is removed from the ground it is “the property of  
the City”. Further, Goff acknowledged in cross-examination that if the crew were  
cutting up copper during work hours in order to obtain cash proceeds, it would  
detract from their ability to complete the work.  
2. Ravi Chinna  
27 Ravi Chinna was hired as Section Manager for the Utilities Department in May 2013.  
In February 2014, he was promoted to Manager of Engineering and Operations until  
his departure for another job in August 2014. Within several months of his arrival,  
Chinna became aware that employees in the Utilities section and other divisions of  
Engineering operations had engaged in a practice of obtaining personal benefits  
from their status as employees. For example, employees had used City equipment  
for personal use and the City garbage bin was used to dispose of personal garbage.  
Employees also obtained personal services from City contractors. Chinna was  
concerned that the latter practice gave rise to a conflict of interest as some front-line  
supervisors are required to sign off on the equipment and staff provided by  
contractors. Such conduct was contrary to the City’s Conflict of Interest Policy.  
Chinna also noticed that the City had a recycling bin for scrap metal in the Public  
Works Yard. The value of the scrap metals went to general revenue. That impressed  
Chinna because employees had been terminated for the theft of scrap metals at his  
previous municipal job.  
28 Chinna and his fellow managers addressed the above-noted concerns at crew talks  
in June and July 2013. Employees were advised to avoid personal gifts from  
contractors, not to use the City garbage and not use City property for personal  
benefit. Chinna did not know at the time that employees had cashed in scrap copper.  
Nonetheless, Chinna also told employees they were expected to place scrap metal  
into the recycling bin. Goff understood at the time, that Chinna had drawn “a line in  
the sand” regarding this practice. Shop Steward and Foreman Roy Savage testified  
to the same effect. As far as Goff and Savage were aware, the practice of cashing  
in scrap copper had ended at that point in time.  
29 The evidence shows that Grievors Steele and McBoyle attended crew talks during  
which these topics were discussed.  
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30 On July 30, 2014, Mani Deo (then Manager for Trades and Solid Waste) stepped  
into Chinna’s position. Deo met with all the staff and advised that there was to be no  
personal garbage brought to work, that staff must communicate respectfully and that  
there was to be no personal use of City equipment or materials. Deo testified that  
he understood at the time that employees were putting scrap copper in the recycling  
bin.  
31 There is no allegation that management was aware of the copper scheme at the  
material time. Indeed, Kim MacKenzie was acutely aware that the Employer took a  
very “black and white” view of the use of City property for personal gain. For  
example, she understood that it would be viewed as inappropriate to even use the  
City air compressor to fill her flat tire. Further, it must be noted that none of the  
Grievors who admitted to knowing or participating in the copper scheme, believed it  
was appropriate or tolerated by City management.  
3. Nick Duran  
32 Nick Duran began employment with the City on October 30, 2017, as a Trades 1.  
His previous employment provided him with limited exposure to the type of work  
performed by the Water Crew. His employment with the City was subject to a four-  
month probation.  
33 Over the first three or four months of Duran’s employment he worked on the Water  
Crew, Sewer Crew and the Construction Crew. Duran observed the copper scheme  
within two weeks of starting his job.  
34 In direct-examination, Duran testified that in his opinion, the Water Crew over-  
measured the lengths of new copper required to perform a job. He also observed  
that the leftover new copper and used copper taken from the ground was brought to  
the Water Van, cut into smaller sized pieces and placed into burlap sacks. Those  
burlap sacks were then placed behind the door to a compartment at the back of the  
Water Van—sometimes referred to as a cupboard.  
35 Duran testified that copper was cut or bent in the Water Van for the purpose of  
bagging it. This practice occurred when the crew had time to do so throughout the  
day. If there was not enough time to cut the copper for bagging, three to five-foot  
pieces of copper were placed in the back of the van and cut into pieces suitable for  
bagging when the crew arrived at the Public Works Yard. Duran testified that he  
observed the Water Crew do this while parked away from plain sight at the southwest  
corner of the Public Works Yard—time permitting—or inside the van while parked in  
the Water Bay.  
36 Duran testified that he observed Lewis, McBoyle, MacKenzie and Baranec engage  
in this practice. He described this practice as occurring whenever he worked on the  
Water Crew but that he never cut and bagged the copper during the first three to  
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four months of his employment. Duran was not trained to cut and bag copper to  
avoid a tripping hazard or for any other safety-related reason, nor was he ever asked  
to do so.  
37 I note that in direct-examination, Duran was specifically asked to speak to the first  
three to four months of his employment. Duran did not independently volunteer a  
specific timeframe regarding his observations of Lewis, McBoyle, MacKenzie or  
Baranec.  
38 Duran testified that he asked his co-workers why they were cutting the copper but  
did not initially receive a response apart from vague comments to the effect they  
“just hang onto it.” Duran persisted with his questions. Duran testified in direct-  
examination, in part as follows:  
Q. In the first three or four months how many times did you  
observe this practice of cutting and bagging?  
A. The first three months or four months, it happens so often,  
pretty much every time I worked on the Water Crew.  
Q.  
When you first started observing that practice at some point  
did you raise it with your coworkers?  
A. Yes, at first I asked what are you doing, what’s up or hey  
what are you cutting the copper for. And I did not get any  
reply. And then five minutes later they are still cutting it, so I  
asked, “hey what are you doing?” Sometimes people  
wouldn’t say anything that day and then I drop it and then the  
next time I would work on the crew they will be doing it again,  
so I’d ask. And then they would tell me that the copper was  
being cut up and that depending on how much one would  
work on the Water Crew they would get a certain percentage  
from the sale.  
39 In cross-examination, Duran conveyed a vague recollection of initial conversations  
in which he asked MacKenzie, Lewis, Baranec and McBoyle what is done with the  
bagged copper. Duran did not a have a firm recollection of those initial inquiries. He  
testified that his initial questions were ignored and although he could not recall the  
exact words used, he did recall that no one gave him a straight answer and that  
eventually he got the response we “just hang onto it” or “save it,” or words to that  
effect.  
40 Duran added that there were a few instances when he attempted to steer his co-  
workers away from the scheme by suggesting that they donate the copper proceeds  
to help the homeless. He testified that he did this because he did not want his co-  
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workers to get into trouble. Duran testified that suggestion was rebuffed. In cross-  
examination, Duran recalled that he made that suggestion to Lewis and McBoyle but  
struggled to recall the surrounding details, apart from his claim that Lewis and  
McBoyle both responded with the same phrase, “no fucking way” on different  
occasions. Duran agreed in cross-examination that the scrap copper was not his to  
give away.  
41 Brenda Nadeau provided Duran’s post-hire job orientation. She told him that scrap  
metal, including copper was supposed to be thrown in the metal recycling bin.  
42 Lewis was the first to explain the scheme to Duran. Duran testified in direct-  
examination this disclosure occurred within two weeks after he started work. That  
accords with what Duran told the Director of Human Resources, Steve Traviss, on  
June 20, 2018. In cross-examination Duran testified Lewis made this disclosure  
sometime between when he started and mid-February 2018—most likely mid-  
November. Duran testified that after initially saying the copper was just held onto,  
Lewis explained that copper was cut up, sold and that members of the crew received  
a portion of the proceeds depending on one’s time spent working on the crew. Duran  
testified, “I asked him [Lewis] if he was afraid of getting caught and he replied no,  
I’m close to retirement.”  
43 Duran testified in cross-examination that he did not ask anyone else if they were  
afraid of getting into trouble for participating in the copper scheme. Rather, he  
suggested they give the copper away to a homeless person. Duran agreed in cross-  
examination that he could have done other things to act on his concern for his co-  
workers.  
44 When asked in direct-examination if other colleagues had disclosed the elements of  
the copper scheme within the first three to four months of his employment, Duran  
testified that happened during a coffee break conversation in the Water Van with  
McBoyle and Plasman. Duran testified that McBoyle was sitting in the driver’s seat  
and Plasman was sitting in the passenger seat and that he brought up the subject  
of the copper scheme during idle conversation. Duran testified that at first they  
ignored the question but when he repeated his inquiry McBoyle said, “copper was  
cut up and Harold [Lewis] would sell it and, those who worked on the Water Crew  
would receive a certain percentage and Ian [Plasman] chimed in and said that we  
don’t talk about that.”  
45 Duran also testified that MacKenzie disclosed the elements of the copper scheme  
to him. In direct-examination Duran testified this conversation occurred when he  
happened upon MacKenzie when entering the back of the Water Van. Duran testified  
in part:  
So I walked in and she had the copper in the vice, she was getting  
ready to cut it with the sawzall, I said ‘hey what are you doing.’ She  
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didn’t respond and then I asked, ‘are you cutting up the copper?’ and  
she went ‘hm, hm.’ And I said, ‘are you going to bag it?’ — 'yeah’,  
And I said, ‘we all get a certain percentage of the proceeds for the  
copper that is sold?’ And she said, ‘yes but we don’t talk about that.’  
And she said it firmly, with a firm voice, so I just dropped our  
conversation, and went back to my lunch bag and grabbed a bite to  
eat. And then she started cutting the copper up.”  
46 Duran could not recall exactly when he had his conversation with MacKenzie. Again,  
when questioned in direct-examination, counsel directed Duran’s attention to the first  
three or four months of his employment when asking if his colleagues had explained  
the scheme to him.  
47 In cross-examination, it was put to Duran that MacKenzie denied having this  
conversation with him. Duran simply said that he hoped that she would be honest or  
words to that effect. Duran did not have a good recollection of where the van was  
and when this conversation took place.  
48 Duran also described in direct-examination two conversations he had with Baranec  
sometime during his first three to four months of employment—he could not recall  
the date except that it happened after Harold [Lewis] had explained the scheme to  
him. The first conversation Duran described occurred in the Water Van while he was  
looking for a tool (the van compartments containing bags of copper also contained  
tools). Duran testified that he came across a bag of copper and asked Baranec, “oh  
what’s this, there’s a bag of copper”? Duran testified that Baranec responded, “that’s  
the copper that we cut up and is sold we get proceeds from, depending on how much  
we work on the Water Crew.” According to Duran’s account, Baranec completed the  
statement stating, “we don’t talk about that”. Duran testified that he also recalled a  
second conversation while he worked with Baranec on the pump truck. Duran came  
across copper on the ground when he and Baranec were at the Public Works Yard  
to look for a tool. At the time Duran said to Baranec that the copper should be thrown  
into the recycling bin, and Baranec responded that Duran should leave it there  
otherwise “Harold will get upset.”  
49 It was put to Duran in cross-examination that Baranec denied both conversations  
had occurred. Duran responded that he hoped that Baranec would be honest. It was  
also put to Duran that he and Baranec only worked five shifts together. Duran did  
not have a good recollection of where the conversation in the van occurred. Nor did  
he did have a good memory of when either conversation about the scheme with  
Baranec took place.  
50 Duran also described an incident where he observed McBoyle comment to the effect  
“it was sure worth it” after McBoyle and MacKenzie had struggled to remove a piece  
of copper from the ground. Duran testified that from his perspective, there was no  
operational reason to remove old, used copper from the ground.  
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51 Duran testified in direct-examination about a conversation he had with then Sewer  
Operator Marco Stevens concerning scrap copper. Duran testified that he observed  
a large container of scrap copper inside the Sewer Bay and asked Stevens “oh  
what’s with all the copper” and Stevens replied, “I don’t care, I like my job, I have my  
family, I don’t give two shits about it.”  
52 Duran testified that he never saw Coral Steele cut up and bag copper, nor did he  
ask her why it was being cut up and bagged. Duran testified that from his perspective  
Steele could have observed copper being cut up and bagged. However, he did not  
know if Steele saw the bags stored in the Water Van. Duran had no specific  
recollection in any of these regards, only to say that cutting copper to put in bags  
was a commonplace event. Duran testified that he had no knowledge of whether  
Steele had obtained money for scrap copper.  
C. DURAN’S PROBATIONARY EVALUATIONS  
53 On January 24, 2018, the Employer and the Union agreed to extend Duran’s  
probation. That was 26 days before Duran disclosed the copper scheme to  
management. Part of the reason for the extension was that the City was waiting for  
Duran’s environmental operator certificate from Manitoba. The extension was also  
based on performance issues as recorded in Duran’s first evaluation.  
54 Duran received his first probationary evaluation on February 1, 2018. The evaluation  
was signed by Gary Goff, albeit the Union’s First Vice-President, Les Nerdahl, was  
directly involved in approving it. Duran’s supervisors were identified as Gary Goff,  
Coral Steele, Travis Buizer and Steve Becket. Under the heading of “job knowledge  
and skills,” Duran was assessed as not fully meeting expectations however it was  
noted that Duran had been progressing and was gaining experience working with  
the different crews. Under the heading of “quality of work,” Duran was evaluated as  
not fully meeting expectations.  
55 The comments recorded on the probationary evaluation indicate that Duran was  
improving but was still learning the details of the work, that he responded to  
correction, but had to be repeatedly instructed on the “hot tap” procedure. Under the  
heading “organizational skills and productivity,” Duran was evaluated as fully  
meeting expectations. Under the heading “teamwork flexibility and ability to adapt,”  
Duran was assessed as fully meeting expectations however the comments indicate  
that while Duran adapts to changes, he requires more time working with the crews  
to be properly assessed. Duran was not favourably assessed under the heading of  
“communication skills.” There it was noted he communicates in a clear concise and  
organized manner. However, it was also observed that he sometimes does not  
listen, acknowledge or respond to others’ ideas and/or needs and had difficulty in  
listening, acknowledging or responding to directions. It was also noted that he may  
not always keep others informed and could provide more constructive and positive  
feedback. Among other things, the notes indicate that Duran should communicate  
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with Steele more often and that Duran on one occasion had disregarded Steele’s  
work instructions. Duran testified that he felt the performance review was fair on  
balance. He recognized that he needed more experience working with the crews.  
56 Steve Traviss testified that the fact Duran was on extended probation was not a  
factor that stood out in his assessment of Duran’s credibility. In his view, extensions  
to probation were a non-contentious matter between the Employer and the Union.  
57 On March 28, 2018, Duran was nearing the end of his extended probation. Goff and  
Bell signed off on a passing final evaluation. Goff noted that Duran had expressed  
an interest in increasing his hours with the Water Crew and that he would attempt to  
do that when possible. Duran testified in cross-examination that he could not recall  
the date he passed his probation and that he attributed no importance to the matter.  
D. DURAN FIRST DISCLOSES THE SCHEME TO MANAGEMENT  
58 On February 19, 2018, Lewis approached Duran in the Water Bay at the end of the  
workday. Lewis handed Duran $50.00 from a stack of $50.00 bills. Lewis told Duran  
this was his share of the copper money. Duran testified that Lewis added, “don’t be  
talking to your co-workers or anybody to discuss that he got this much and he got  
that much, especially don’t tell Coral.” Duran became upset as he did not want  
anything to do with the scheme.  
59 Duran then proceeded to Bob Bell’s office where he found Bell and Dave Kidd. He  
placed the $50.00 bill Lewis provided on Bell’s desk. Duran testified he said, “here’s  
the $50.00 that was given to me for copper that was sold. I don’t want it, its dirty  
money, I do not want anything to do with it.” Bell asked who gave the money to  
Duran. Duran responded that he did not want to say. Kidd thanked Duran for the  
information and commented that he would do what he could to protect his identity  
and maintain confidentiality. Duran then left the office, changed, and went home.  
60 The City had implemented a whistleblower policy in 2017. Among other things, the  
City undertakes to use its best efforts to provide confidentiality consistent with the  
need to investigate claims. Bell’s notes of that interaction record his statement to the  
effect that the City would investigate Duran’s report. Duran did not recall hearing that  
statement when he was cross-examined.  
E. DURAN’S DISCLOSURE SETS EVENTS IN MOTION  
1. Duran is asked for Additional Information on February 20, 2018  
61 On February 20, 2018, a management meeting was convened to discuss the matter.  
In attendance were Kidd, Bell, City Manager, John Leeburn, Director of Engineering  
and Public Works, Kristin Dixon, Director of Human Resources, Steve Traviss and  
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Human Resources Advisor, Hannah Park. It was decided at that meeting to learn  
more from Duran before deciding the next steps.  
62 February 21, 2018, Kidd and Bell met with Duran over lunch at a Starbucks in  
Coquitlam. Kidd and Bell had prepared questions and wanted to meet Duran at a  
location they were unlikely to be observed. Duran was reluctant to disclose who gave  
him the money. He did not want anybody to get fired. He suggested the copper  
money be used for a staff party with the hope it might avoid that outcome. Duran  
eventually told Bell and Kidd that Lewis gave him the money after being asked  
several times. Duran testified that he decided to make this disclosure to be honest  
and transparent.  
63 Duran reiterated to Kidd and Bell that Lewis told him not to discuss the matter with  
Steele. Duran also mentioned that Stevens keeps copper in the Sewer Bay. Bell’s  
typewritten notes of the February 21, 2018 meeting record in part:  
2. Who knows about the copper scheme? - Everyone, it’s common  
knowledge that the crew cuts the copper into small pieces and put  
them in sandbags. Andrew and Dan Code pulled copper today and  
cut it into sandbags.  
Marco and Steve have a stash of copper in the sewer Bay also. It’s  
in a garbage bin but Marco said he doesn’t want to take it out of the  
yard.  
This has been confirmed by Tom and Bob on February 21 (photos  
taken)  
3. Have you told anyone else about this? - No  
4. Who else received money? Keifer, Andrew, Ian, and Kim  
sometimes depending if she worked on the Water Crew. Harold told  
me not to tell anyone, even Coral.  
64  
Bell’s handwritten notes of the February 21, 2018 meeting record in part:  
Coral is not informed of copper funds when money is distributed.  
65 Duran also recounted the elements of the copper scheme including the cutting,  
bagging and placement of the bags in the Water Van. Duran conveyed the  
conversations he had with Baranec, MacKenzie, Plasman and McBoyle confirming  
their participation in the scheme (as previously noted). Duran added that the Water  
Crew wasted copper and time. Kidd asked Duran if Goff was involved. Duran replied  
that he was not sure. Duran re-conveyed his conversation with Stevens concerning  
the container of copper in the Sewer Bay. Duran was concerned about his  
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confidentiality and Kidd assured him that they would do what could be done to  
protect his identity and to maintain confidentiality.  
66 Duran had difficulty recalling the location of the February 21, 2018 meeting when he  
was cross-examined.  
2. Spot Checks Begin on February 21, 2018  
67 Kidd decided that Duran had provided enough information to begin an investigation.  
Traviss testified that it was important to confirm Duran’s own description of the  
scheme. Accordingly, Kidd and Tom Madigan completed visual checks of the Water  
Van and the Construction Van on February 21, 2018. The visual check of the Water  
Van confirmed what Duran had described. Kidd found four to five burlap sacks filled  
with 12-inch cut up pieces of copper in the right-hand cabinet in the Water Van. The  
contents appeared to be 80% new copper and 20% old copper. At the Sewer Bay  
there was a 240 litre container of larger copper pieces. Visual check of the  
Construction Van and Construction Bay disclosed no evidence of cut up copper or  
sacks filled with copper pipe.  
68 Kidd and Madigan decided to continue to do daily spot checks to monitor the  
situation. They observed the daily accumulation of copper in burlap sacks in the  
Water Van. There was no movement of the copper at the Sewer Bay. Nor was there  
evidence of cut up copper or bags of copper at the Construction Bay or in the  
Construction Van. After two weeks of seeing no evidence of copper being cut and  
bagged by the Construction Crew or the Sewer Crew, management directed its  
investigation solely to the Water Van. The copper sacks continued to accumulate in  
the Water Van until there was no more room in the cabinet. On March 20, 2018 the  
cabinet previously full of sacks of copper was found empty.  
3. Fire Hydrants  
69 On April 3, 2018, Duran and Buizer were working alongside a contractor tasked to  
remove a fire hydrant. The contractor asked Buizer and Duran what they should do  
with the hydrant. Duran immediately spoke up and asked Buizer if he could keep it.  
Buizer said he could. The fire hydrant was scheduled to be removed the next day.  
Duran arranged with the contractor to take it then.  
70 I note that the scrap value of hydrants is included in the contractor’s quote. The  
hydrant belongs to the contractor and the disposal of the hydrant is the responsibility  
of the contractor removing it.  
71 On April 4, 2018, Duran worked with Buizer and MacKenzie. At 10:31 AM, Duran  
decided to text Bob Bell to advise that the contractor was about to throw away a fire  
hydrant and asked, “Is there a procedure on who can have it.” Bell asked if this was  
the City’s hydrant to which Duran responded affirmatively. Bell then advised Duran  
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that the fire hydrant is to go into the scrap metal bin as the City makes money with  
scrap metal. Duran asked if he could buy the fire hydrant. Bell told him he could not.  
Approximately 30 to 40 minutes after that text exchange the contractor asked Duran  
if he still wanted the hydrant. Duran testified that MacKenzie spoke up before he  
could speak and sternly said that Duran could not have the hydrant as she had  
seniority over him. Duran testified that he did not challenge MacKenzie based on her  
manner of speaking. He simply returned to work. In cross-examination Duran  
conceded that he did not tell MacKenzie or Buizer that Bell said no one was to take  
the fire hydrant.  
72 That Friday Duran noticed a fire hydrant placed in the back of Buizer’s work pickup  
truck while parked in the Public Works Yard.  
73 The following Monday, April 9, 2018, Duran noticed that the fire hydrant was no  
longer in the back of Buizer’s pickup when leaving the Public Works Yard. Duran  
then sent a text message to Bell advising that the hydrant was no longer in the  
pickup. He added that hydrant sells for about one thousand dollars (he had obtained  
that information from eBay). Bell asked if the hydrant was there Friday evening.  
Duran responded that it was there Friday at 3:15 PM.  
4. GPS installed  
74 The removal of the burlap sacks from the Water Van prompted Kidd to install a GPS  
locator on the Water Van, the Construction Van, and the Sewer Van. The purpose  
of doing so was to determine if any of the vans were being used to move the sacks  
of copper stored in the Water Van and to determine where the copper was being  
unloaded.  
75 Kidd continued to monitor the Water Van and observed that new sacks of copper  
began to accumulate in the cabinet. Nothing changed in the Sewer Bay.  
5. April 27, 2018 - Private Investigator Retained and Surveillance Begins  
76 Between March 20 and April 26, 2018, Kidd observed the continued accumulation  
of bags of cut copper in the Water Van. On April 26, 2018, Kidd observed the Water  
Van compartment was full of sacks of copper.  
77 It was decided at that point to retain the services of the private investigation firm  
Xpera Investigations (“Xpera”). The investigator subsequently watched Steele,  
Lewis, and the Water Van. Later, the investigator was retained to observe the  
activities of the Water Crew and Buizer’s handling of a fire hydrant. The reasons for  
doing so were as follows: 1) it was anticipated that the copper bags would be  
transferred from the Water Van as had happened in March 2018; and 2) Lewis and  
Steele were in key supervisory positions over the Water Crew and would likely be  
involved given that each frequently worked on the Water Crew, (taking into account  
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Duran’s report that Lewis admonished him not to tell Steele how much money he  
had received); 3) to track Buizer’s handling of a fire hydrant; and 4) to determine if  
there was evidence the Water Crew was malingering.  
78 Xpera was initially asked to observe Steele and Lewis regarding the suspected  
copper theft. Bell and Kidd were the City contacts. Xpera immediately prepared  
individual background profiles of Steele and Lewis. The profiles included a review of  
social media postings, property holdings, as well as the review for records of civil  
and criminal proceedings. The profiles included a review of available social media  
postings of Steele and her daughter (which were limited by restrictive privacy  
settings). The investigator obtained and provided this information as a matter of  
standard investigation practice. The purpose is to ensure the correct identification of  
the subject and associates (including friends and family members) that may appear  
during the investigation. The City had already provided the investigator with a picture  
of Coral Steele held in its records.  
79 Lead Investigator John Orimaco testified the focus of the surveillance was the Water  
Van as that is where the bags of copper were located.  
80 On April 27, 2018, the investigator observed Lewis enter the Public Works Yard in  
his personal vehicle just after 7:00 PM and exit shortly after. Kidd was advised. Kidd  
then proceeded to the Public Works Yard shortly thereafter and saw that the burlap  
sacks of copper he observed on April 26, 2018 had been removed. On April 28,  
2018, the investigator reported he had observed burlap sacks in Lewis’s personal  
vehicle. Consequently, Kidd asked the investigator to focus his surveillance on  
Lewis.  
81 Kidd continued spot checks of the Water Van after April 28, 2018. He observed the  
renewed accumulation of bags of cut copper in the Water Van compartment.  
82 Individual surveillance of Steele picked up on May 4, 2018 because she was  
observed driving her personal vehicle into the Public Works Yard after regular work  
hours, vacuuming her personal vehicle, subsequently placing her belongings in a  
company vehicle and then departing the yard. Orimaco understood that employees  
were not to enter the secure yard with their personal vehicles after hours. He was  
curious as to why Steele then took her belongings to a company vehicle and left the  
yard after regular work hours.  
83 On May 11, 2018, the Employer asked Xpera to watch Buizer. That decision was  
made because an employee observed Buizer and McBoyle loading what appeared  
to be a heavy object from a City vehicle into Buizer’s personal vehicle. That  
happened the morning of May 11, 2018. On May 11, 2018, the investigator observed  
a fire hydrant in the back of Buizer’s personal vehicle. On May 12, 2018, Buizer’s  
wife was observed driving Buizer’s vehicle from his residence. The investigator  
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followed Buizer’s wife as he was tasked with tracking the fire hydrant located in the  
vehicle. The surveillance of Buizer ended on May 13, 2018.  
84 Kidd testified in direct-examination that fire hydrants that remain City property hold  
value for recycling or for parts salvage. If a contractor decommissions a fire hydrant  
it becomes the property of the contractor. Nonetheless, Kidd testified that employees  
are not to accept gifts from contractors as that puts them in conflict of interest.  
85 Xpera conducted surveillance of Lewis on April 27, 28, 29, 30, and May 1, 2, 3, 4, 5,  
13, 14, 15, 16, 17 and 18, 2018.  
86 On May 18, 2018, the investigator observed Lewis meet McBoyle at the Chester  
dump and stash bags of copper—that much is undisputed. Lewis returned after his  
shift that day and loaded the bags of copper into his personal vehicle. On May 19,  
2018, Lewis was observed selling the copper at a recycler.  
87 After May 19, 2018, the Employer continued its surveillance to determine if there  
was evidence of malingering. That was based in part on data obtained from the GPS.  
That continued for about two weeks until it was called off due to the investigator’s  
concerns they may be exposed to employees.  
6. June 20, 2018 – Management Begins Questioning  
88 In June, the Employer decided to interview employees in connection with the  
information it had gathered. It was decided to re-interview Duran in order to confirm  
details and assess the credibility of his account. It was further decided to interview  
Coral Steele as she was the Foreman 2 of the Water Crew and Gary Goff as the  
Foreman 3 of the Utility section. Dan Code and Britton Ayers were identified as  
interview candidates because they had worked with Duran. Buizer, MacKenzie,  
Plasman, Lewis and McBoyle were interview candidates as they had been identified  
as participants in the scheme. Stevens was not selected for questioning. Traviss  
testified the rationale for that decision was that Duran’s reports and the ongoing spot  
checks did not disclose sufficient evidence he was a party to the scheme.  
7. June 20, 2018 - Interview of Nick Duran  
89 Traviss interviewed Duran on June 20, 2018. Traviss’ goal was to assess Duran first-  
hand and to ask follow-up questions. Traviss was particularly curious about Marco  
Stevens. Duran had reported that Stevens made a comment to the effect that the  
scrap copper accumulated in the Water Bay, “was not worth his job.” Traviss also  
wanted to ask about Steele’s involvement in the cutting and bagging copper or if  
others had participated.  
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90 On June 20, 2018, Duran told Traviss that he had first learned about the copper  
scheme in November 2017 (shortly after he was hired). Duran’s account included  
some of the following key points. Duran described to Traviss how co-workers initially  
ignored his questions about what was done with the bags of scrap copper. Duran  
added that “in the second month” Lewis, MacKenzie, Buizer, Plasman and McBoyle  
later disclosed the elements of the scheme with the common admonition that “we  
don’t talk about it.” Duran told Traviss that he never approached Steele about the  
matter and that he never saw any of his co-workers receive money in connection  
with the scheme. He also said his co-workers had rebuffed his suggestion that the  
money be used for other purposes.  
91 Duran disclosed a comment attributed to Marco Stevens about scrap copper in a bin  
located at the Sewer Bay. Traviss testified in direct-examination that he entered the  
June 20, 2018 meeting with the understanding that Stevens had told Duran words  
to the effect that the Sewer Crew had not had a chance to bring the scrap copper at  
the Sewer Bay to the recycler so it piles up and has not been dealt with. Traviss was  
also aware that Stevens said to Duran words to the effect “it was not worth my job.”  
Traviss’ notes record that disclosure in relevant part as follows:  
4. Has anyone else received copper money? How do you know?  
Have you seen it being passed out? Do you know how much is  
typically passed out?  
Not aware of anyone else, not that I know of. In the Sewer Bay, there  
is lots of scrap copper, asked Marco, now knowing what was  
happening on the water side. He said, previously we used to take it  
(implied to the scrap dealer) have been too busy so it’s just piling up.  
92 The parenthetical phrase appearing in the preceding quotation records Traviss’ own  
conclusion about what Duran was trying to convey. Traviss testified in direct-  
examination that what he took from that statement was that the Stevens and the  
Sewer Crew was too busy to recycle the copper accumulated in the bin, not that they  
was too busy to cash the copper in for personal benefit. Traviss testified in part:  
A. … In the context of how that question [question 4] was asked and  
how Marco [Stevens] answered it, what I took from that was the crew  
was busy and they have not had a chance to deal with that, not that  
it was anything like what was going on with the Water Crew where  
they were concealing, bagging it and cashing it out for their personal  
gain. I read it that the Sewer Crew had the copper piled up and the  
proceeds went to the City. It’s a very different description than what  
Nick [Duran] told us was going on with the Water Crew. I did not read  
into that any inference that Marco [Stevens] personally did not have  
the time to go to the recycler to get the money for his gain. The  
copper was in a big bin and anybody could see it in the Sewer Bay.  
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93 In cross-examination, Duran was unable to recall exactly what he said to Traviss on  
June 20, 2018 about the statements he had attributed to Stevens concerning copper  
in the Sewer Bay.  
94 Traviss was aware that a large bin of copper remained relatively undisturbed in the  
Sewer Bay throughout the spot checks. It was put to Traviss in cross-examination  
that the inference to be taken by Stevens’ comment to the effect that the scrap  
copper was “not worth risking his job”, was that Stevens “did not want anything to  
do with any copper scheme”. Traviss testified that there was an “inference” that  
Stevens “had some idea” regarding such a scheme.  
95 Duran reported that he observed Plasman, McBoyle, Lewis, Baranec,  
and  
MacKenzie cut up copper. Duran told Traviss that he never saw Steele, Britton Ayers  
or Ian Plasman cut copper.  
96  
Traviss scripted a question about why Lewis told Duran not to tell Steele about the  
$50.00. Traviss’ notes record Duran’s reply as follows:  
“They have a weird relationship (Coral [Steele] and Harold [Lewis]).  
They’re always yelling and bickering calls her the c and b word, other  
times, lovey-dovey. She takes her job seriously, doesn’t want to lose  
her job over this. She would see all the copper in the van that has  
been cut up. She is not stupid. She is aware of what is going on. She  
is astute, smart, but don’t know if she gets any money for the  
copper.” (emphasis added)  
97 Traviss asked Duran if he knew Steele was aware of the copper sales. Traviss noted  
Duran’s reply as follows: “She knows the copper doesn’t go into the scrap bin. Knows  
about the sandbags, the cutting in the cupboards in the van.” In cross-examination  
Traviss conceded that he did not ask Duran on what basis he claimed to know that  
Steele knows these matters. Traviss also asked questions about malingering. Duran  
expressed the view that the crews were inefficient and wasted time. Duran also  
recounted the events concerning the fire hydrant. Finally, Duran reported that the  
very week he was on the job with MacKenzie, Plasman and McBoyle, McBoyle  
commented about a piece of copper that was difficult to remove from the ground,  
“Man this is hard, but was sure worth it.”  
98 In cross-examination, Duran was asked to identify the date that he had initial  
conversations with his co-workers about the copper scheme. Duran initially testified  
sometime in the four to six weeks following November 2017, he had individual  
conversations about the copper scheme with Lewis, MacKenzie and Baranec, as  
well as a conversation with McBoyle and Plasman. When pressed to identify when  
he first discussed the matter with Lewis, Duran testified that it occurred sometime  
between when he started and mid-February 2018 — a period of 3 ½ months. Duran  
testified in part as follows:  
- 20 -  
Q. So I will ask you about the first conversations when they did  
not tell you the whole story? Do you recall the first  
conversation with Harold [Lewis], approximately when you  
had that conversation?  
A.  
No it happened between when I started and mid-February.  
Q.  
So this was for five or six weeks, but it may have been over  
a period of 3 ½ months?  
A. I know for sure the conversations happened between when I  
started and mid-February.  
Q.  
Not five or six weeks?  
A. Possibly, all I know is it happened between when I started  
and mid-February.  
Q. On June 20, you identified these conversations as happening  
in the first month of November when you started working  
there is that right?  
A.  
I don’t recall.  
Q. Were you being careful to tell the truth when you spoke to  
the managers on June 20?  
A. I wanted to tell the truth. I don’t know what you mean by  
careful. I don’t understand what you mean by careful.  
99 Duran was unable to identify the specifics of his very first conversation with  
MacKenzie when he questioned her about what happens with bags of scrap copper,  
and she explained “we just hold onto it”. When later pressed to recount his initial  
conversation with Baranec, Duran testified as follows:  
Q. So you also had a conversation with Keifer, not the  
conversation where he told you the whole story, just a  
conversation where he did not really answer the question?  
When was that conversation with Keifer to the best of your  
recollection?  
A. I don’t remember, I remember speaking with each one of the  
people I mentioned and each one did not give a straight  
answer the first time I asked each person, each individual.  
- 21 -  
Q.  
A.  
Did that conversation with Keifer occur as late asFebruary?  
I don’t know I’m sure there’s records when we work together.  
Q. You don’t recall whether or not it would’ve happened in  
February? As far as you recall that could have happened in  
February is that right? Could that have happened in January?  
A.  
I know the conversation happened and I don’t recall the  
dates. I think it happened at least two weeks in.  
Q.  
A.  
Q.  
A.  
So not on your second day?  
That’s correct.  
Do you recall where the conversation took place?  
No I don’t.  
Q. Recall anything in particular about what either of you said in  
that conversation?  
A.  
Q.  
A.  
I remember asking and getting no response.  
What do you remember asking?  
I asked, I don’t know the exact words, it was along the lines  
of what we do with copper being cut up and there was no  
response.  
Q.  
A.  
Keifer just ignored the question?  
Everyone at first ignored the question.  
100 It later emerged in cross-examination that Duran had a limited recollection of when  
those conversations happened with his co-workers about the copper scheme:  
Q. In June and you thought that initial conversations occurred in  
November and the second ones in December. But now a lot  
of these conversations could have happened any time  
between October 30 and February 19, is that correct?  
A.  
Could have, no. I know these conversations happened.  
- 22 -  
Q. I’m not saying you say they couldn’t have happened, it’s just  
the date is not necessarily November or December? It’s  
between October 30 and February 19th?  
A.  
I know they happened between those months.  
F. The June 27 and July 5, 2018 Interviews  
1. Organization of June 27, 2018 Interviews  
101 The Employer decided to question the selected employees for interview on June 27,  
2018. Traviss testified that date was chosen as it best fit with employee availability,  
particularly in view of upcoming vacation schedules. Traviss acknowledged in cross-  
examination that he knew the Chief Shop Steward Ron Narayan was on a medical  
leave that day. Narayan was the point person that Traviss typically contacted to  
arrange for shop steward representation. Normally, Traviss would give Narayan  
advance notice to arrange for a shop steward unless an investigation was  
immediately required. In that case the immediate attendance of a shop steward is  
requested.  
102 Traviss expected the Local Union President Gary Goff would be at work. He only  
learned the afternoon before the scheduled questioning (June 26, 2018) that Goff  
needed a last-minute absence to attend a specialist appointment the morning of  
June 27, 2018.  
103 The following steps were taken in what Traviss described as an attempt to preserve  
the integrity of the investigation—both by minimizing the potential for collusion and  
otherwise controlling discussion between employees about the questioning: 1) the  
group was sequestered in invigilated meeting rooms before and after the interviews,  
2) non-emergency cell phone communications were prohibited; 3) the entire group  
was questioned on one day, and 4) a manager was assigned to escort employees  
through a common area to the washroom. Traviss testified in cross-examination that  
these measures were motivated by the following concern, “I was very concerned  
that if there was an opportunity to converse with others, I would not be getting their  
story, I will be getting other people’s input so it was very important to ensure that  
when I met with each person, what I was hearing was not influenced by others.”  
104 Employees waiting to be questioned in the Training Room did not know exactly what  
was being investigated so they were not in a position to make disclosures that  
compromised the investigation. When it was put to Traviss in cross-examination that  
employees in the Training Room were prohibited from making phone calls to prevent  
them from speaking to a Union representative, Traviss testified this was not  
contemplated as a risk to the investigation. Traviss further testified that his  
- 23 -  
instructions to escort employees to the washroom did not include watching them at  
the urinal.  
105 Two teams of managers were assigned to handle the number of persons questioned.  
Managers Traviss and Kidd interviewed Andrew McBoyle, Dan Code, Keifer  
Baranec, Coral Steele and Gary Goff. Managers Tom Madigan and Ross Maki  
interviewed Ian Plasman, Britton Ayers, Travis Buizer, Kim MacKenzie, and Harold  
Lewis.  
106 McBoyle, Baranec, MacKenzie, Lewis and McBoyle were selected for questioning  
as they had all worked on the Water Crew and had been identified by Duran as  
participants in the scheme. Steele was identified for questioning given her role as  
Foreman 2 of the Water Crew and the frequency with which she worked on that  
crew. Goff was selected for questioning given his role as the Foreman 3 above  
Steele. Dan Code and Britton Ayers were questioned as they had worked with the  
Water Crew and were on the same jobsite as Duran. Stevens was not selected for  
an interview until Travis Buizer identified him as an individual who was involved in  
the scheme.  
107 Traviss testified about why Sewer Foreman Marco Stevens was not initially selected  
for questioning. Traviss explained in direct-examination that it was concluded that  
there was not enough evidence to suggest that he was part of the copper scheme.  
Spot checks disclosed the bin of copper at the Sewer Bay remained undisturbed.  
Nor was there any evidence that Stevens had cut or bagged copper. Traviss testified  
in direct-examination that he understood that Stevens had told Duran that he had  
not gotten around to putting the copper at the Sewer Bay into recycling and that it  
was “not worth his job,” or words to that effect. In cross-examination Traviss  
conceded that one could infer from the comments Duran attributed to Stevens, that  
Stevens was aware of the copper scheme but chose not to participate. Kidd testified  
in direct-examination that he recalled that Duran had talked to Stevens about the  
copper accumulated in the Sewer Bay. Kidd recalled that Stevens told Duran when  
questioned about the copper in the Sewer Bay that, “it wasn’t worth his job to be  
involved in that”.  
108 The Employer prepared scripts to read to the Union representatives. Article 7.6(b)  
of the Collective Agreement provides a right to Union representation when a  
manager intends to question an employee for disciplinary purposes:  
7.6 Representative of Canadian Union of Public Employees  
(b) Where a supervisor intends to interview an employee for  
disciplinary purposes, the supervisor shall so notify the Union in  
advance of the purpose of the interview in order that a shop steward  
or other Union representative may be present at the interview. In a  
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disciplinary interview, no employee shall be required to answer  
charges without a Union representative present.  
109 Traviss and Kidd approached the Union’s First Vice-President, Les Nerdahl at the  
6:30 AM shift start on the morning of June 27, 2018. Nerdahl was the most senior  
Union representative available that morning. Traviss read from the following script  
shortly before the 7:00 AM shift start:  
We are investigating serious allegations about staff conduct with  
potential disciplinary outcomes for a number of staff.  
We will be commencing interviews immediately and will be running  
two interview rooms.  
Identified staff are assembling in the training room now.  
We will be calling the staff: Andrew, Ian Plasman, Kim, Britton,  
Keifer, Coral, Travis, Harold, Dan and Gary.  
The staff have the right to representation and as such, we will require  
two union observers, one for each room.  
The initial investigation is focused in the utility section. As such,  
union representatives need to come from other work sections and  
be available immediately.  
We will require a union representative to be in Dave’s office  
(interview number one) and in Tom’s office (interview room number  
two).  
Do you have any questions?  
110 Nerdahl did not have follow-up questions for Traviss. Nerdahl subsequently asked  
Shop Stewards Roy Savage and Rick Williams to attend the interviews. Savage had  
previously represented five employees accused of misconduct and Williams had  
previously represented four employees at disciplinary interviews.  
111 Nerdahl phoned Goff at approximately 7:00 AM to inform him that the questioning  
was in process. Goff arrived at the office at approximately 8:30 AM that day. At 8:40  
AM, Bob Bell asked Goff to wait in the Training Room as he had been designated  
for questioning. Goff did not object to any of the questions or the process that had  
been invoked that morning. He had been present for the questioning of other  
employees during disciplinary investigations in the past.  
- 25 -  
112 While Traviss spoke to Nerdahl, Bob Bell met with each of the employees to be  
questioned that morning. Bell directed those employees to the Training Room.  
113 The Administration Room was designated for employees to wait after the initial  
interviews, should there be additional follow-up questions. The Administration Room  
seats 8 to 10 and is smaller than the Training Room. Senior Human Resources  
Advisor Hannah Park was assigned to invigilate the Administration Room. She took  
notes of employee discussions and demeanour. She did not instruct employees to  
refrain from speaking about what happened in the interviews but there was no talk  
about that in any event.  
114 When employees designated for questioning were assembled in the Training Room,  
Dave Kidd read the following statement:  
We are investigating serious allegations about staff conduct with  
potential disciplinary outcomes for a number of staff.  
We will be commencing interviews immediately and will be running  
two interview rooms.  
Todd [Gross] will be in the room while you are waiting for your  
interview.  
While you are waiting, do not use your phone. If you have to take a  
personal emergency call, notify Todd of your intent before taking the  
call or text. This is to ensure our investigation is not compromised.  
Do you have any questions?  
115 Todd Gross was assigned the task of monitoring the Training Room. As noted  
above, Hannah Park was assigned the task of monitoring the post-interview  
Administration Room. A shop steward was not assigned to the Training Room and  
employees were asked not to make phone calls except for personal emergencies.  
When it was put to Traviss in cross-examination that employees assembled in the  
Training Room had no opportunity to telephone the Union to obtain advice, Traviss  
testified that employees had not asked to do so, that employees were permitted to  
make urgent calls, and had employees asked to call the Union, the Employer would  
have addressed that.  
116 Bob Bell was tasked with escorting employees called out for questioning to their  
assigned meeting room. The employees met the Shop Steward and management  
representatives at the assigned meeting room at which point questioning began. The  
protocol did not include time for employees to speak to the Shop Steward in advance  
of the questioning. Traviss testified in cross-examination that had there been a  
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request for such a meeting it would have been addressed but there had been no  
such request, and the protocol did not preclude such meetings.  
117 The questioning proceeded over a seven-hour period between 7:00 AM and 2:00  
PM.  
118 Scripts were also prepared to guide the questioning of each employee. The  
questions were preceded by a statement that read as follows:  
I have a number of questions to ask you about behaviours that have  
been occurring in public works. This is a very serious matter and it  
is important that you think carefully about your answers and answer  
truthfully. Take the time you need to answer the question and if you  
don’t understand the question, tell me and I can rephrase or ask the  
question again.  
There have been some serious allegations made about theft of City  
property, we have conducted a lengthy investigation and are fully  
aware that a problem exists and I expect that you will be able to help  
us resolve it.  
119 Following the introduction, an opening line of questions was scripted including the  
following:  
1. How long have you been with the City?  
2. What is your job on the utilities crew?  
3. Do you understand that theft of City property is a serious offence?  
4. Some employees were asked, do you understand it can be a criminal offence?  
5. Have you ever taken City property?  
6. Have you received money for the sale of City property?  
7. Have you ever observed this taking place?  
8. Give me an example of City property?  
120 A reminder to be honest and a follow-up statement for Steele, Ayers and Goff was  
added to the script:  
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I want to remind you of the importance of being truthful through this  
process and let you know we have been investigating this for an  
extended period of time and we have significant evidence and  
reason to believe you have either observed or been involved. See  
next note.  
For Coral [Steele], Britton [Ayers] and Gary [Goff], we have  
significant evidence that there is a practice of selling copper. It is  
really important that you are honest and forthright about what you  
know.  
2. Exhibit 5  
121 The Union and the Employer agreed to submit into evidence a non-exhaustive  
statement of words spoken at the June 27, 2018 interviews and at follow-up  
interviews on July 5, 2018, subject to one exception: (“Exhibit 5”). The exception  
concerns whether the Grievor Kim MacKenzie identified persons involved in the  
copper scheme on an organizational chart put to her during her interview. It is agreed  
that Exhibit 5 is not an exhaustive statement of what was said at the interviews.  
Some of the Grievors could not recall words attributed to them or contested aspects  
of Exhibit 5. Steele went so far as to contest the entirety of that document. I will  
elaborate when reviewing Steele’s testimony below.  
122 I have reviewed Exhibit 5 along with the notes taken at the interviews and the  
witnesses’ testimony both individually and taken together with the whole of the  
evidence in arriving at factual findings. I have reviewed the agreed-upon statement  
against the notes taken by management representatives and the respective Shop  
Stewards at the interviews. None of the notes were verbatim. None of the notetakers  
are professional witnesses or stenographers. The basis for some of the critical  
answers given to questions was not explored. None of the notes were put to the  
employees that were questioned for verification at the end of each interview. For  
these reasons, the notes are inherently fallible as a completely accurate record.  
However, as set out more fully in the reasons to follow, despite these infirmities I am  
satisfied that the agreed statement is accurate as a guidepost in some material  
respects. What follows is a record of what I find to be some key points of the  
accounts given by each of those interviewed as recorded by Exhibit 5, the notes  
taken, as well as testimony given in this proceeding.  
3. Harold Lewis  
123 Harold Lewis did not testify in this proceeding. However, his account at the June 27,  
2018 interview is in evidence by way of Exhibit 5 and the notes taken of his interview.  
124 As noted above, Lewis was the Water Operator. As such, he occupied a lead hand  
type of position and stepped in as Foreman 2 in the absence of Steele. He played a  
key part in supervising and organizing the performance of jobs assigned to the Water  
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Crew. Lewis was a 12-year employee at the interview. He had worked at a wide  
variety of jobs in the Utilities Department prior to becoming the Water Operator.  
125 When questioned, Lewis initially denied taking City property, receiving money for the  
sale of City property or observing this taking place. When specifically asked about  
what happens with copper Lewis responded that it was regarded as scrap and that  
he cashed it in. When pressed, Lewis admitted that he had been cashing in scrap  
copper since he had worked as a Water Operator. He said he was never told what  
to do with scrap copper. When asked if other people knew about selling copper  
Lewis advised that he did not know and that he only knows what he does. He said  
that he came up with the idea of selling the copper on his own and that he kept the  
money for himself and that no one else was involved. Lewis refused to implicate  
anyone else in the scheme and said it was all on him. He understood that he would  
be fired. The notes taken by the Shop Steward and management indicate that Lewis  
refused to implicate any other employee in the copper scheme. He was only  
prepared to disclose his own participation. Lewis was recorded to say several times,  
“I’m not throwing other people under the bus.” At one point in the questioning, Lewis  
asked to privately speak to his Shop Steward Roy Savage. Madigan and Maki  
acceded to that request.  
4. Travis Buizer  
126 Buizer started working for the City in 2001 as a Trades 1 in the Operations Division  
of the Engineering Department. In 2006 he moved to Trades 1 in Sewer and Water  
which was eventually moved from Engineering to Utilities in 2013. In February 2008,  
Buizer was temporarily appointed as Foreman 2 on the Construction Crew. He acted  
in that role for five years until he was awarded that position permanently in February  
2013. Buizer mostly performed storm and sanitary, and water main replacement  
work on the Construction Crew. He also filled in for the higher rated Foreman 3 on  
an as needed basis.  
127 Buizer was interviewed by Tom Madigan and Ross Maki on June 27, 2018. The  
Shop Steward in attendance was Roy Savage.  
128 When questioned on June 27, 2018 Buizer responded to the introductory questions  
by denying taking City property, receiving money for the sale of City property or  
observing others taking City property. When asked about what happens when  
hydrants are replaced, Buizer admitted to taking a fire hydrant and indicated that he  
did not know if it was City property. He said that McBoyle helped him to put it in his  
car. Buizer added that other staff had taken hydrants home, however, he was unable  
to name anyone.  
129 When specifically asked what the Construction Crew does with scrap metal after a  
job Buizer replied they “do not pull out much copper.” He said that copper goes into  
recycling. Madigan pressed Buizer to be honest. Buizer then disclosed “we have all  
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done it. I haven’t done it in a while because I haven’t been on the crew.” He also  
said that he had not received money in a while. Madigan asked, “who is we?” Buizer  
then replied that, “all the foremen in water” had done it.  
130 When Madigan pressed Buizer to identify who else had done it Buizer advised that  
he did not want to give up other people and this had occurred for a long time. Maki  
handed Buizer an organizational chart and said if he did not want to say names, he  
could mark down who was involved. After a long pause, Buizer identified the names  
of himself, Harold Lewis, Ian Plasman, Marco Stevens and Coral Steele. He added  
Brenda Nadeau to the list of persons involved.  
131 When asked to estimate how much money he had received, Buizer estimated that  
he had personally taken $5,000 to $10,000 and that he distributed some of that  
money to others.  
132 In direct-examination, Buizer testified that he and others had cashed in scrap copper  
since he had worked for the City. Buizer also explained in cross-examination that  
the scrap copper was obtained from the ground and from the “tail ends” of new  
copper. That copper was put in the Construction Van and stored in sandbags which  
were then placed in plain sight at the Construction Bay.  
133 Buizer also testified that pieces of copper were cut to fit in a burlap sack at the  
worksite. Buizer testified that he and others distributed the proceeds between  
members of the crew. When asked how long he had participated in this scheme  
Buizer testified that he had been involved, “I worked there for 17 years, pretty much  
to the end of the Construction Crew when we moved into Utilities,”—which occurred  
in 2013.  
134 Buizer testified that he had stopped participating when the Construction Crew moved  
into the Utilities Department because he was making pretty good money when he  
started filling in as Foreman 3, he did not want the hassle, and that his wife talked to  
him out of it. Buizer added that he worked with copper less often after the  
Construction Crew moved under the umbrella of Utilities.  
135 When asked in direct-examination if he recalled who he had identified on the  
organizational chart, Buizer responded that he had identified Plasman, Nadeau, and  
Stevens. When it came to the fact that he had identified Steele, Buizer testified, “I  
know I put an X on Coral’s name but I don’t remember doing that, that might’ve been  
a mistake but I don’t remember putting an X there.” When asked why he put an X  
next to Marco Stevens’ name, Buizer testified, “because I knew he had taken copper  
money. I just knew that.” However, when asked how he knew that, Buizer was only  
able to state, “well it’s common knowledge. I mean you see copper in the bay, it  
leaves, I mean you just know it, you don’t talk about it but it’s, you know it’s going  
on, I mean I been a big part of it for a long time, I know how it works right.”  
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136 Buizer further testified in direct-examination that he identified Plasman simply  
because Plasman had worked on his crew on the McLean Road job in 2016 or 2017.  
Buizer recalled Plasman bagging copper and putting it in the van at the end of the  
shift.  
137 When asked why he had identified Coral Steele, Buizer stated “I don’t remember  
doing that and I don’t know why I ever would because we never work together. I  
never, we worked side-by-side, but we were never on the same crew. We were never  
together on the crew. To do the copper stuff together.”  
138 Buizer testified in cross-examination that he had worked as a Trades 1 and the  
Foreman 2—mostly on the Water Crew—between June 2006 and February 2008.  
Buizer recalled in his testimony that Steele had worked either as the Water Operator  
or as a Trades 1 on the Water Crew in that period of time.  
139 It was put to Buizer in re-examination that Steele became a Trades 1 on the Sewer  
Crew and had not worked on the Water Crew from 2006-2008. Buizer was unable  
to offer a precise recollection of whether Steele had worked with him on the Water  
Crew in that timespan. However, in that period of time Trades 1s were moved  
between crews and that Steele was qualified to work on the Water Crew.  
140 Buizer testified that copper was bagged and cashed in between June 2006 and  
February 2008. Scrap copper was never put in the recycling bin. He added in cross-  
examination that the copper scheme was not a secret but was not talked about. He  
did not recall who distributed the money at that time and estimated that copper was  
cashed in about twice a year.  
141 When asked in cross-examination what he meant when he told Madigan that “we’ve  
all known about it,” Buizer testified that he assumed that everyone knew about it, “it  
wasn’t a giant secret,” that it was not something that was talked about and that he  
assumed all of the foremen were aware, including Steele.  
142 Buizer reiterated in cross-examination that he did not recall identifying Coral Steele  
as a person who had participated or received money from the scheme. He testified  
that he knew the City would rely on what he had said at the interview and was careful  
to be truthful.  
143 Buizer also testified in cross-examination that during the last few years of his  
employment, the Construction Crew would occasionally work alongside the Water  
Crew under the supervision of the Foreman 2 of the Water Crew.  
144 Buizer testified in direct-examination that he was stressed and confused during the  
interview. He objected to the way he was treated on the basis that he was “corralled”  
in a stuffy room and unable to use his phone. Buizer later conceded that he phoned  
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his wife when he was in the meeting room. He added that when he went to the  
bathroom that a manager, the name of whom he could not recall (the Manager of  
Parks), had followed him and watched him.  
145 Buizer attended a meeting with the Employer for additional questioning on June 29,  
2018. When Madigan asked Buizer about Steele’s involvement in the copper  
scheme, Buizer stated “I know she did it, but we never did anything together. I know  
it’s been done, but we were on separate crews.” The Employer ended that session  
shortly after it began because the Employer objected to the Union’s insistence on  
caucusing after every question.  
146 When asked in cross-examination how Buizer knew that Steele had participated in  
the scheme Buizer testified, “Well for one thing I was under a lot of stress. And  
basically, I assumed she did. And I assume she did it because, well it’s simple,  
because it always happened. But we never discussed it, or I never seen anything  
because let’s face it, I mean, me and Coral we respected each other but we were  
kinda like water and fire, didn’t really mix. We work together but that was about it.”  
Buizer added in cross-examination that the last couple of years he was not involved  
in the scheme. He did not care enough to pay close attention to Lewis’s conduct on  
the Water Crew.  
147 Buizer was terminated by letter dated June 29, 2018. The termination letter alleged  
in part as follows:  
You were interviewed on June 27, 2018 and on June 29, 2018. The  
City’s investigation has revealed that you have been engaged in the  
theft and sale of City property, specifically copper piping. Further,  
you have confirmed that you have taken a City fire hydrant.  
Questioned about this matter during the City’s interview of you on  
June 27, 2018, you initially denied taking any City property or  
receiving money for City property.  
When questioned again, you stated it’s old copper, distributed  
money to other employees from the proceeds of selling City copper  
and confirmed you would have taken City fire hydrant.  
You failed to be fully forthcoming in the interviews.  
You have irreparably breached the trust of the City and your  
employment is no longer tenable.  
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5. Kim MacKenzie  
148 MacKenzie started work for the City in November 2016 as an Operation and  
Maintenance Worker. MacKenzie entered the City workforce with previous Water  
Crew experience from another municipality.  
149 In April 2017, MacKenzie was appointed full-time as a Trades 1 – Utilities. In that  
capacity, she worked on hydrants, exercising water valves, on the flush truck, the  
pump truck, the Water Crew, the Sewer Crew, and the Construction Crew.  
MacKenzie was enrolled in the Leadership Program and was a member of the Health  
and Safety Committee as well as the Emergency Operations Team. She worked as  
acting Section Manager in place of Tom Madigan on several occasions. Kidd  
testified that MacKenzie was a leader who asked questions and demonstrated a  
strong moral compass. Accordingly, she was selected to serve as acting Section  
Manager.  
150 MacKenzie testified in direct-examination about the dates she was recorded to have  
worked on the Water Crew as recorded on Exhibits 10 and 11. These exhibits were  
prepared by the Employer based on timecards generated in the ordinary course of  
business. Exhibits 10 and 11 record which of the Grievors recorded hours on  
individual jobs. The total number of hours is accurate however the exact number of  
hours spent at each job is not exact. Further, these exhibits do not disclose specific  
tasks employees performed at each of those jobs. For example, the fact MacKenzie  
would sometimes record work on the Water Crew as a flagger is not recorded. Goff  
testified that Exhibits 10 and 11 are based on timecards which are generally  
accurate, give or take up to 30 minutes. Timecards can be completed by an  
individual employee working alone on a job or by a Foreman 2 or an Operator for  
the crew on a job. Goff conceded in cross-examination that the timecards are subject  
to a measure of fallibility as it does not necessarily record the type of job performed.  
151 MacKenzie identified the following dates between November 2017 (the month Duran  
started) and February 2018 (the month Duran made his disclosure) when she  
worked on the Water Crew as well as whether the job involved copper or the crew  
included Duran: November 6, 2017 - no copper / likely flagging; November 16, 2017  
– no copper; December 18, 2017- no copper; December 19, 2017 – with copper;  
December 20, 2017 - no copper; December 21, 2017 – no copper; December 24,  
2017 – copper; December 26, 2017 – no copper; December 28, 2017 – no copper;  
January 19, 2018 no copper / with Duran / flagging; February 5, 2018 – copper;  
February 14, 2018 – no copper. Based on MacKenzie’s testimony and the records,  
of the 12 times she worked on the Water Crew in that time period, MacKenzie worked  
once with Duran and that job did not involve the use of copper.  
152 In cross-examination, MacKenzie identified 15 times between March 24, 2017 and  
June 19, 2018 that she had likely worked on the Water Crew.  
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153 Shop Steward Roy Savage represented MacKenzie at the June 27, 2018 interview  
and took notes.  
154 MacKenzie testified in cross-examination that she recalls Kidd read from a script to  
employees assembled in the Training Room before the interviews began.  
MacKenzie recalled that Kidd said, “we are investigating serious allegations about  
staff conduct with potential disciplinary outcomes for a number of staff.” MacKenzie  
agreed in cross-examination that she knew at the beginning of her interview there  
were potential disciplinary outcomes at stake.  
155 Exhibit 5 records that when questioned on June 27, 2018, MacKenzie was asked if  
she had ever taken a fire hydrant. MacKenzie admitted to taking a fire hydrant. She  
told Madigan that Buizer said she could take it because she was senior to Duran.  
MacKenzie added that she thought the hydrant was scrap, and she did not know if  
it was City property as she believed the contractor owned the hydrant. She offered  
to return it. MacKenzie advised Madigan that it was common practice for employees  
to take fire hydrants from jobsites. When Madigan asked MacKenzie to identify on  
an organizational chart which employees would be aware of the practice of taking  
fire hydrants. MacKenzie said that she did not want to check off names and did not  
want to make assumptions. She then added that, “a very large group of people  
know.”  
156 In cross-examination MacKenzie was unable to identify the basis for her assertion  
that this practice is a matter of common knowledge—apart from her assertion that  
“people were talking about it.”  
157 Traviss testified in cross-examination that it was not brought to MacKenzie’s  
attention at the interview that the fire hydrant she obtained was slated for disposal  
by the contractor who removed it.  
158 MacKenzie said at the June 27, 2018 interview that she had not taken City property  
for financial gain or received money from the sale of City property. When Madigan  
advised MacKenzie that copper was being sold by employees and asked about her  
involvement, MacKenzie stated, “she just did as she was told, ... wants to do a good  
and not cause trouble.” She said she wanted her supervisors to think she was doing  
a good job.  
159 MacKenzie was asked how long the scheme had been happening and she said she  
did not know. She was asked who was also involved and was specifically asked  
about Lewis and Steele. MacKenzie said that she did not know who knows about  
the scheme.  
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160 Madigan asked MacKenzie who received money for the sale of copper. MacKenzie  
maintained she did not know anything. She also denied that she herself ever  
received any money.  
161 Madigan then asked what the crew does with scrap copper leftover from a job.  
MacKenzie said the copper is cut up, bagged and then put into a cupboard. When  
MacKenzie was asked why the copper is cut up, she said that she did not know and  
just did as she was told.  
162 MacKenzie explained that everyone on the Water Crew cuts up scrap copper.  
MacKenzie said that she cut copper as she was told to do so by the foreman.  
MacKenzie refused to identify which foreman. When Madigan asked MacKenzie if  
she cut up pieces of copper and put them in burlap sacks to conceal them, she said  
that she just did as she was told and tried to do a good job. MacKenzie advised  
Madigan that she did not know who had received money from the sale of scrap  
copper and that she did not receive any money.  
163 As noted above, Exhibit 5 (an agreed-upon, albeit incomplete record of words  
spoken at the June 27 and July 5, 2018 employee interviews) is subject to one  
exception. That exception pertains to the last paragraph recorded for the June 27  
interview. There it is recorded that MacKenzie was directed to an organization chart  
a second time—at the very end of the interview. This note indicates that MacKenzie  
was asked whether she could identify any individuals on the chart who know about  
the copper scheme. The notes indicate that MacKenzie said that it would be easier  
for her to say who is not involved. She said it was common knowledge and that  
everyone knows. She indicated she was uncomfortable indicating who knows, and  
that it was, “hearsay for me to speak on their behalf. Not comfortable indicating on  
the org chart.”  
164 When MacKenzie was questioned on July 5, 2018, she began by making an opening  
statement that she was not in an ideal state of mind. Madigan indicated that others  
had identified her as someone who had received money from the sale of copper.  
MacKenzie denied that allegation. When MacKenzie was asked about her  
involvement in cutting up and concealing copper, she responded that she was not  
involved. She claimed that she cut it up as a safety precaution on any truck she was  
on. Madigan pointed out to MacKenzie that in her June 27, 2018 interview, she said  
she did not know why copper was cut up and bagged because she just did as she  
was told. Madigan pointed out that her previous statement was inconsistent with her  
claim the copper was cut up for safety reasons. MacKenzie said she had a week to  
think about it.  
165 MacKenzie denied telling the protected person (Duran) words to the effect that “we  
all get a cut” and that allegation was “totally false.”  
166 I now leave Exhibit 5 and return to summarize MacKenzie’s testimony.  
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167 MacKenzie testified in direct-examination that she did take a fire hydrant as a  
“symbol of a milestone of a new beginning.” It was a style of fire hydrant that she  
had learned on with her previous employer. She testified that she took the hydrant  
with Buizer’s permission. MacKenzie added that she was very much aware of the  
City’s black and white stance on the theft of its property and would not have taken a  
fire hydrant had she thought it belonged to the City. MacKenzie added in cross-  
examination that it was her understanding that the fire hydrant belonged to the  
contractor and that she did her due diligence by asking her foreman if she could take  
it. She testified that it did not occur to her to ask a manager.  
168 MacKenzie testified in direct-examination that she cut up copper and threw it into a  
box. No one instructed her to do so. MacKenzie added in her testimony, “I just cut it  
up and threw it in the box. The stuff that you pull out is rarely straight, at times it can  
be quite long. So, to me cutting it up and moving it out of the way rather than leaving  
it in the narrow walkway of the van just makes sense. No one will trip on it or cut  
themselves on it. I like to keep the van clean and tidy.”  
169 MacKenzie also testified in direct-examination that she never said at her June 27,  
2018 interview that her foreman had instructed her to cut copper. MacKenzie denied  
that she ever had a conversation with Duran where it was discussed that copper was  
cut up and bagged so that Lewis could cash it in and that everyone gets a cut of the  
proceeds, or words to that effect. MacKenzie added that she worked on the Water  
Crew sporadically and had no idea that money was distributed from the sale of  
copper to members of the Water Crew. Further, MacKenzie testified she only  
referred to the organizational chart once during her June 27, 2018 interview, and  
only regarding her contention that it was common practice to take fire hydrants from  
contractors, not about the copper scheme.  
170 Madigan testified that the organizational chart was put to MacKenzie twice at the  
June 27, 2018 interview. It happened once in respect of the hydrants and the second  
time near the end of the interview when MacKenzie indicated it was common  
knowledge why scrap copper is cut. Madigan recalls that at that point he asked who  
knows about the scheme. Maki then referred to the organizational chart placed on  
the table between Madigan and MacKenzie. MacKenzie paused, looked at the chart  
for and indicated that she was uncomfortable identifying anyone. Maki testified that  
MacKenzie stated at that point it would be easier for her to indicate who did not  
know. Maki testified that he recalled the organizational chart was presented to  
MacKenzie only once, not twice as Madigan recalled.  
171 Savage testified that he took notes in the order the questions were asked, that his  
notes were not word-for-word and he had missed some points. I note that Savage  
missed recording the fact that Buizer had identified employees on the organizational  
chart when he was questioned.  
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172 In cross-examination, Savage recalled that the organizational chart was on the table  
during questioning. He testified in part as follows:  
Q. Do you remember Mr. Madigan pointing to the org chart and  
asking Ms. MacKenzie “is there anyone on this org chart who  
doesn’t know about the copper scheme.”  
A.  
I believe so, yes.  
Q.  
And do you remember her taking a long pause and looking  
at it?  
A.  
Yes. She had a look at it, yes.  
Q. And do you remember her saying it’s common knowledge,  
everyone knows?  
A.  
I do remember that in my notes, yes.  
173 MacKenzie testified that she had waited about four hours in the Training Room for  
her interview on June 27, 2018. MacKenzie described the post-interview  
Administration Room as crowded and stuffy. She waited in that room for several  
hours and played cards to pass the time. The Employer provided lunch but she did  
not eat.  
174 MacKenzie testified that she was devastated, angry and upset at being terminated.  
She found it difficult to explain the matter to family members and friends.  
175 MacKenzie applied for employment insurance benefits after she was dismissed. Her  
application was initially granted. The City contested that determination. While in  
Australia, MacKenzie spoke on the phone to a Service Canada representative to  
answer questions about what had happened leading up to her dismissal. MacKenzie  
testified in direct-examination, in part, “At this point I was in Australia for a vacation  
I had planned for over a year and I was on the phone at midnight Australia time so I  
could talk to the woman from Service Canada to explain to her my side of the story  
and she decided I would be eligible.” Service Canada sustained its approval of  
MacKenzie’s application for benefits.  
176 The City contested that determination but did not show up at the hearing. Again,  
MacKenzie received benefits. MacKenzie testified in direct-examination that she felt  
that the City had acted punitively by contesting her application for benefits.  
177 In cross-examination, counsel for the City put to MacKenzie a statement recorded  
by the Service Canada representative on August 2, 2018 in which the representative  
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attributes to MacKenzie a statement to the effect that the Employer had provided her  
with a chart and asked her to provide the names of all those involved in the copper  
theft. The representative’s record reads as follows:  
An investigation was held, the claimant was questioned on July 4,  
2018 regarding the theft of copper pipes and then the claimant was  
suspended without pay pending further investigation. The claimant  
then answered another round of questioning on July 9, 2018. The  
claimant was given a chart and asked to provide names of all the  
people involved in the copper pipe theft. This was the whistleblower  
policy. The claimant did not know anything about the copper theft  
and did not provide any names. Because the claimant worked with  
the crew that were allegedly stealing copper pipes and she did not  
provide any names to satisfy the whistleblowing policy she was  
thought to be an accomplice.  
178 MacKenzie denied making the preceding statement to the Service Canada  
representative. The Service Canada representative did not testify in this proceeding.  
179 It was also put to MacKenzie that her lawyer submitted in her appeal that MacKenzie  
had acknowledged cutting and bagging scrap copper “as she was directed to do so  
by her superiors.” MacKenzie testified she did not recall reviewing that submission  
before it was sent to Service Canada. MacKenzie maintained in cross-examination  
that none of her superiors directed her to cut up and bag copper.  
180 MacKenzie’s attention was also directed in cross-examination to the following  
statement by a Service Canada representative, the source for which was attributed  
to MacKenzie: “I asked if she had union representation present [at the June 27, 2018  
interview] and she stated that on this particular day the senior union representatives  
were unavailable and she could only take her own notes.” When MacKenzie was  
asked if she gave that information to the Service Canada representative MacKenzie  
testified, “don’t believe I did” and when counsel asked if the representative was  
making another error MacKenzie testified “it’s possible she’s making an error, yes.”  
When asked if the representative got it completely wrong when she said that she  
could only take her own notes at the June 27 interview MacKenzie testified, “I’m  
saying it is very likely, judging from the statement that they got it wrong, yes.”  
181 Counsel also directed MacKenzie to the Service Canada representative’s record of  
a discussion with Director of Human Resources, Steve Traviss: “I advised the  
employer of the claimant’s statement that there was no union representation during  
the interviews. He indicated that was incorrect because they had two interview  
rooms with two shop stewards present during the interviews one for each room.”  
When asked in cross-examination if MacKenzie told the representative she did not  
have the benefit of union representation, MacKenzie testified “no, that’s not what I  
said.”  
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182 MacKenzie testified that she was unaware of that statement and therefore did not  
correct that part of the record when she filed her appeal. MacKenzie testified in part:  
Q.  
A.  
Did you review this draft before it was submitted?  
I don’t recall.  
183 It was also put to MacKenzie in cross-examination that the fire hydrant was  
transferred from a truck to her car at a location that was less obvious to management  
scrutiny than the employee parking lot where she had originally parked. MacKenzie  
testified there was not enough room to park two cars end-to-end when people are  
leaving after work albeit she could have waited for people to disperse before making  
the transfer. MacKenzie denied transferring the hydrant at a location less obvious to  
management. She noted that managers could see the transaction if driving out of  
the Public Works Yard.  
184 Counsel for the Employer asked MacKenzie in cross-examination if her opening  
comment at the July 5, 2018 interview, “I’m not in an ideal state of mind”, was  
something that she came up with on her own. MacKenzie testified “I believe I did”.  
When asked if anyone suggested that she say those words, MacKenzie testified, “I  
don’t recall.”  
185 In cross-examination, MacKenzie identified 15 times between March 24, 2017 and  
June 19, 2018 that she had likely worked on the Water Crew. She testified that she  
would cut and bag copper when working on the Water Crew either inside the truck  
or outside the truck, depending on what was going on. She could not specifically  
recall anyone other than Lewis cutting and bagging copper. MacKenzie testified that  
she was usually responsible for clean-up when on the Water Crew so she would  
have been the only one doing it. MacKenzie agreed in cross-examination that Steele  
was the foreman of the Water Crew and Steele would likely see her cutting and  
bagging scrap copper.  
186 MacKenzie did not recall working with copper on the Sewer Crew.  
187 MacKenzie was dismissed by letter dated July 10, 2018. The dismissal letter reads  
in part as follows:  
You were interviewed on June 27 and July 5, 2018. The City’s  
investigation has revealed that you have been engaged in the theft  
of City property, specifically copper piping, and received proceeds  
from the sale of that piping.  
When questioned about this matter during the City’s interview of you  
on June 27, 2018, you denied taking any City property or receiving  
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money for City property. You noted that you and other members of  
the Water Crew cut up copper and bagged it, but you claim you did  
not know why. Later in the same interview, however, you changed  
your answer and said that it was “common knowledge” and everyone  
knew about the copper scheme.  
On July 5, 2018, you gave the explanation that you cut up copper as  
a safety precaution. This explanation was not truthful, given the  
City’s evidence of your involvement in the copper scheme and  
receipt of money for copper.  
You admitted during the June 27 interview to taking a fire hydrant,  
which was the property of the City. You claimed you thought it was  
scrap, but also said you knew it goes in the recycling bin. As you  
know, the City received money from the metal in the recycling bin.  
Your taking of the hydrant for your own use amounts to a further  
instance of theft.  
The City has determined that you were not forthcoming in your  
interviews about your participation in the copper scheme, your  
knowledge of how it works or your receipt of money for copper. The  
City also finds you engaged in the theft of City property when you  
took a fire hydrant.  
You have irreparably breached the trust of the City and your  
employment is no longer tenable.  
6. Keifer Baranec  
188 Keifer Baranec began work with the City as an Operations and Maintenance Worker  
in November 2016. On January 23, 2017, Baranec was appointed as a Trades 1 in  
Utilities. In that capacity he worked on the pump truck, the flush truck, the Water  
Crew, the Construction Crew and the Sewer Crew. Baranec spent most of his time  
working on the pump truck. On May 15, 2018, Baranec was appointed as a Water  
and Sewer Maintenance Operator, after which he no longer worked on the Water  
Crew. Baranec was selected to participate in the Leadership Program.  
189 Baranec testified that Bob Bell directed him to the lunchroom on June 27, 2018. He  
recalls that Dave Kidd read a script advising that there would be interviews into  
serious allegations. Baranec was then directed to Kidd’s office for questioning.  
Present in the room were Kidd, Traviss and Shop Steward Rick Williams.  
190 Exhibit 5 (the agreed-upon, incomplete record of words spoken at the June 27 and  
July 5 interviews) indicates that Baranec denied any knowledge or involvement in  
receiving money from the sale of City property when asked the opening series of  
questions. When asked what the crew does with scrap metal, Baranec told Kidd that  
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it is put in the truck and saved for repairs or for another job. He said that scrap metal  
was left on-site and is garbage for the contractor. He added that contractors leave  
copper in the ground or bury it. Baranec denied seeing copper being cut into smaller  
pieces or being put into burlap sacks. He denied obtaining a share of the proceeds  
from the sale of scrap copper. Baranec indicated that he was aware that there was  
a garbage can full of copper but said it was there when he started, perhaps in the  
Construction Bay. Baranec estimated that he may have worked about 30 days as a  
member of the Water Crew during his employment. When questioning Baranec, Kidd  
expressed skepticism that Baranec was unaware of the copper scheme or that he  
had not received money. Baranec responded that he was not part of it and if he was  
going to be blamed that he would want an apology.  
191 Baranec testified in direct-examination that before June 27, 2018, his understanding  
was that scrap copper on the jobsite was left on-site for the contractor and that any  
new copper leftover that was unusable was put in the scrap metal bin. In cross-  
examination, Baranec testified that longer pieces of leftover new copper were  
strapped to the wall of the Water Van for use on the next job, that old copper was  
left in the ground and that if the contractor did not want it, the Water Crew would  
normally throw it the recycling bin. Baranec further testified that most old copper was  
left in the ground and that smaller pieces of old copper were placed in a basket in  
the trench which was then secured in the Water Van.  
192 In cross-examination, it was observed that notes taken of the June 27 interview do  
not reflect a statement by Baranec that copper was placed in the recycling bin. When  
pressed to explain how he knew copper was thrown into the recycling bin, Baranec  
explained that is what he was told during orientation. Baranec added that he never  
put copper in the scrap metal bin as it was usually done the next day and he was  
not present to clean up the Water Van. Nor had he seen any of his colleagues put  
copper in the recycling bin. Baranec testified that his job as a Trades 1 included  
cleaning up tools and putting tools away in the Water Van. Baranec testified that he  
had no knowledge prior to June 27, 2018 that co-workers on the Water Crew had  
collected and cashed in scrap copper. In cross-examination, Baranec testified that  
he never observed sacks of copper in the Water Van compartment. Nor had he ever  
been instructed to cut copper for safety reasons or to eliminate a tripping hazard.  
193 Baranec testified in direct-examination about the dates he was recorded to have  
worked on the Water Crew recorded on Exhibits 10 and 11. Exhibits 10 and 11  
record entries by the Foremen 2 or the Operator. As previously noted, those entries  
record the number of hours worked by each of the Grievors on certain jobs. The total  
number of hours is accurate however the number of hours spent at each job is not  
exact. Nor do those exhibits record all employees working at each job—only hours  
worked by the Grievors are recorded on those exhibits.  
194 In direct-examination, Baranec identified (from Exhibits 10 and 11) the following  
dates between November 2017 (the month Duran started) and February 20, 2018  
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(the day Duran disclosed the scheme to management) when he worked in the Water  
Crew as well as whether the job involved copper and/or the crew included Duran:  
November 1, 2017 - no copper / Duran on crew; November 2, 2017- no copper / no  
Duran; November 3, 2017 – no copper / no Duran; November 21, 2017 – no copper  
/ no Duran; November 28, 2017 no copper / Duran on crew; December 7, 2017- no  
copper / no Duran; December 20, 2017 – no copper / no Duran; January 11, 2018  
copper / no Duran / called in from hydrants; January 12, 2018 – copper / no Duran;  
January 15, 2018 – no copper / no Duran; January 24, 25, 2018 – no copper / Duran  
on crew; January 30, 2018 – no copper / no Duran; February 1, 2018 – copper / no  
Duran; February 2, 5, 2018 - no copper / no Duran; February 8, – copper / no Duran;  
February 13, 2018 – copper / Duran on crew 1 hour; February 14, 2018 – copper /  
no Duran; February 16 – no copper; February 20, 2018 – no copper except for 2.5  
hour cap-off / Duran on crew.  
195 In sum, according to Exhibits 10 and 11, the first and only time Baranec and Duran  
were on the Water Crew, working with copper prior to Duran’s disclosure was  
February 13, 2018. However, I note that the conversation Duran described—in  
which Baranec admitted to his knowledge and participation in the scheme—did not  
necessarily occur on a job involving copper.  
196 Baranec agreed in cross-examination that he had worked on the Water Crew 12  
times between December 9, 2017 and February 17, 2018 and estimated that he had  
worked on the Water Crew a total of 30 times through his employment.  
197 It was further pointed out in cross-examination that for the period December 9, 2017  
to February 17, 2018, Lewis had cashed in copper four times. Baranec maintained  
in cross-examination that despite those facts, he had never observed copper being  
cut and placed into burlap sacks, or burlap sacks stored in the Water Van  
compartment.  
198 Baranec testified that he was directed to the Administration Room after the June 27  
interview. He testified that the blinds were shut and the windows were closed. He  
asked to open the blinds and was told that he could not but did so in any event.  
Baranec testified that he felt claustrophobic despite the fact that he works in confined  
spaces. Baranec asked to leave the Administration Room and was told to sit in  
manager Ian Wind’s office.  
199 Baranec testified that he was greatly distressed by his termination and the  
subsequent local news coverage.  
200 When interviewed on July 5, 2018, Baranec provided an introductory statement to  
the effect that he was not in the “greatest frame of mind” and had been “on a roller  
coaster.” Baranec testified in cross-examination that he came up with those phrases  
entirely on his own. Baranec denied Duran’s contention that he said, “we all get a  
- 42 -  
cut” in relation to the scheme. Baranec continued to deny that he had ever cut up  
copper or put it into sacks or that he had ever seen anyone doing that.  
201 Baranec was terminated by letter dated July 10, 2018. That letter reads in part as  
follows:  
You were interviewed on June 27 and July 5, 2018. The City’s  
investigation has revealed that you have been engaged in the theft  
of City property, specifically copper piping, and received proceeds  
from the sale of that piping.  
When questioned about this matter during the City’s interviews of  
you on June 27 and July 5, you denied taking any City property or  
receiving money for City property. You also denied any knowledge  
of the copper scheme.  
Your denials are not believable in light of the City’s evidence of your  
participation in the copper scheme in receipt of money for copper.  
You have failed to be forthcoming and honest with the City.  
You have irreparably breached the trust of the City and your  
employment is no longer tenable.  
202 Traviss testified that he was taken aback at what he viewed to be Baranec’s refusal  
to directly answer questions that were put to him about the use of scrap copper.  
Traviss testified that Baranec’s explanation of what was done with scrap copper did  
not make any sense to him at the time it was given.  
7. Ian Plasman  
203 Ian Plasman was initially employed by the City in 2011 to work as a casual employee  
in the Parks Department. He left employment and returned to employment on March  
28, 2014 as a casual Operations and Maintenance Worker. On October 20, 2014,  
Plasman was appointed to work in the position of full-time Operations and  
Maintenance Worker. In that role he worked on the paving crew, on floodgates and  
snow clearing.  
204 On January 3, 2017, Plasman was appointed to work full-time as a Trades 1 in  
Utilities. He was employed in that capacity until he was dismissed in July 2018. As  
a Trades 1, Plasman was rotated between different crews including the Water Crew.  
205 Plasman testified that he was directed to attend the Training Room on June 27,  
2018. He waited there until he was asked to meet with Ross Maki and Tom Madigan.  
His Shop Steward was Roy Savage.  
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206 Exhibit 5 (incomplete notes in evidence of words spoken at the June 27 and July 5,  
2018 interviews) records that Plasman initially denied taking City property for  
financial gain or received money for the sale of City property or observed that taking  
place. He repeated that denial three times until Madigan revealed that management  
was aware of the copper scheme and that employees were selling copper for money.  
At that point, Plasman admitted that approximately one year before, on one  
occasion, he received $50.00 from the sale of copper. Plasman indicated that the  
reason he only received copper money once was that he did not work on the Water  
Crew very often and mostly worked with Buizer (on the Construction Crew). When  
asked who gave him money from the sale of copper Plasman offered that he  
received the money from Lewis or Steele but then settled on Lewis. Plasman  
explained that he took the money because he did not want to be considered a rat.  
He said he feared retribution from his peers and foreman. He added that he  
suspected that if he did not take the copper money he would be ostracized. Plasman  
also expressed that he did not want to get anyone in trouble. He said he knew stuff  
was going on, but he was not regularly involved and tried to stay out of it.  
207 When Plasman was asked at the initial interview about how the scheme works, he  
said he did not know how it worked. He said no one talks about it and he “turns a  
blind eye.” Plasman denied ever taking copper and selling it himself. He said he did  
not know how long the copper scheme had been going on. Madigan asked Plasman  
if others were involved in the practice of selling copper. Plasman said he was not  
sure who else received money for copper but people on the Water Crew know about  
the practice. When Madigan asked whether the Foreman 2 knows about the  
scheme, Plasman said that Coral Steele must know. Plasman said he was not sure  
if the Foreman 3 Gary Goff knew about the practice. When asked again if Coral  
Steele knew about the practice of selling copper, Plasman responded, “yes”.  
208 Exhibit 5 indicates that Plasman provided an opening statement in which he stated  
that he was a wreck the previous week, had developed a rash, and said “my mind is  
a wreck, not in a great frame of mind to answer questions.” When asked what his  
involvement was in cutting up, concealing copper, and receiving cash for copper  
Plasman responded, “I’m not part of it” and that he had received money only one  
time. Plasman maintained that day that he only received $50.00 once and only from  
Lewis—adding he did not know what it was for. When asked how he knew that  
Steele was involved in the copper scheme, Plasman responded that he had never  
seen Steele cut copper, bag copper or sell copper, and that he did not know why he  
previously said that she knew about the practice of selling copper. He added “that  
was a long day and honestly I don’t know why I said that.” Plasman denied that he  
ever told Duran “we all get a cut” in reference to the copper scheme. He denied that  
any such conversation ever took place or that he had ever cut copper and concealed  
it in bags.  
209 I now address Plasman’s testimony.  
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210 Plasman testified in direct-examination that the practice when pulling old copper  
from the ground or dealing with leftover pieces of new copper from a job, was to put  
it in the back of the Water Van. He testified that he was told to do that by Lewis.  
Lewis then took the copper placed on the floor of the Water Van, cut the copper into  
smaller pieces, put the copper into bags and then placed the bags in a van  
compartment. In cross-examination, Plasman testified that he was never instructed  
to clear copper out of the way because it was a tripping hazard. He further explained  
that Lewis would cut the copper on the workbench in the Water Van during breaks  
and that bags of copper were visible alongside other materials behind a closed  
compartment door.  
211 Plasman testified that he was aware that Lewis was cashing in the copper at a  
recycler. He became aware of that when Lewis provided him with a $50.00 bill.  
Plasman testified that when he asked, “what is this for?”, Lewis responded “for being  
on the crew.” Plasman added that he told Lewis he did not do anything for the money  
and Lewis responded, “don’t worry about it” and drove away before Plasman could  
say anything else. Plasman testified that that occurred sometime in the summer of  
2017 to the best of his recollection. Plasman explained in cross-examination that  
Lewis approached him several times before he accepted the $50.00 payment.  
Plasman understood that Lewis distributed copper money based on the amount of  
time that one had worked on the Water Crew.  
212 Plasman added in direct-examination that he received money after working on the  
McLean Road job. His co-worker Lucas Adamic handed him $60.00 and said this is  
from the McLean Road job. Plasman testified that he said that he did not want to  
take it but that Adamic persisted and said, “no it’s yours, take it, don’t worry about  
it.” Plasman testified that he took the money but should not have. Plasman testified  
that he did not mention the money received from Adamic when he was interviewed  
on June 27, 2018 because he did not remember it at the time.  
213 Plasman further explained in direct-examination that he was caught off guard when  
asked who gave him money and had inadvertently mentioned Steele’s name. He  
added that he had never seen Steele involved in the copper scheme. Plasman  
elaborated in direct-examination as follows, “yes when they asked about Coral  
[Steele] I just, I guess just being the water foreman, I just figured, assumed, that she  
knew about it but I never seen her talk about it or witnessed her having anything to  
do with the copper money.” In cross-examination, Plasman testified that Steele was  
safety-oriented and wanted to be kept apprised of jobs. Plasman described how  
Steele had occasion to enter the Water Van when she was present at a job-site. In  
re-examination, Plasman explained that Steele would make an appearance to check  
out the job, ensure that everything was done safely and then return to the office to  
complete her paperwork.  
214 When asked why he did not report the copper scheme Plasman testified, “Honestly,  
I just wanted to keep my head down and do my job and I did not want to get into  
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anything. All these people have been there for a long time and I assumed they knew  
what they were doing but I did not want to be part of it and after I, yes after that  
incident with Harry, a week later I felt super bad about it and I told Harry to no longer  
involve me in copper money. He just said okay and then never did it again.”  
215 In cross-examination Plasman conceded that his concern about being viewed as a  
rat and wanting to fit in was premised on his understanding that others on the Water  
Crew were aware of the copper scheme. When asked how he knew other people on  
the Water Crew were aware of the scheme he testified, “I figure that if I got it,  
someone else might get it.” When asked in cross-examination why Buizer identified  
Plasman as being involved in the copper scheme, Plasman surmised that Buizer  
must have been aware from Lucas Adamic that he had received money from copper  
obtained on the McLean Road job.  
216 Plasman testified that after he was questioned on June 27, 2018, he was directed to  
wait in the Administration Room. He added that Todd Gross accompanied himself,  
Andrew McBoyle and Travis Buizer to the washroom and that Todd Gross had stood  
by while they relieved themselves. Plasman testified, “I did not enjoy that.” This  
particular evidence was not put to Gross when he was cross-examined. Accordingly,  
Gross was permitted to provide his account in reply. Gross’s account in reply is  
stipulated as follows:  
Mr. Gross was apprised of the evidence of McBoyle, Plasman and  
Buizer that on June 27, 2018 he escorted these three individuals at  
the same time to the washroom and stood in the washroom watching  
over them as they use the urinals.  
Mr. Gross’s reply evidence is that he escorted only one employee to  
the washroom that day, though he cannot recall which one, and did  
not stand in the washroom with him. Rather, he entered the  
washroom first to ensure no other individuals were inside. After Mr.  
Gross left the washroom, the employee entered. Mr. Gross testifies  
that he stayed in the hallway outside of the washroom and waited  
while the employee used it.  
217 Plasman testified the Administration Room was hot so he asked to go outside. Gross  
escorted him outside to get some air. He believed that Hannah Park was recording  
what the employees had to say in the room although she had denied that when  
asked. As noted above, Park was in fact recording the employee’s comments in the  
Administration Room (her evidence in reply is that she does not recall if employees  
asked if she was taking notes of their discussions).  
218 Plasman testified that he was devastated by having been dismissed and having to  
respond to family and friends about coverage in the local news portraying an alleged  
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theft of $75,000 of copper. Plasman denied ever having a discussion with Duran and  
McBoyle concerning the copper scheme.  
219 Plasman was dismissed by letter dated July 10, 2018. That letter reads in part as  
follows:  
You were interviewed on June 27 and July 5, 2018. The City’s  
investigation has revealed that you have been engaged in the theft  
of City property, specifically copper piping, and received proceeds  
from the sale of that piping.  
When questioned about this matter during the City’s interview of you  
on June 27, 2018, you initially denied taking any City property or  
receiving money for City property. You were asked again, and after  
the importance of honesty was stressed, you still denied taking any  
City property or receiving any money.  
When questioned a third time, you said you received $50 in the sale  
of copper a while ago, and only once. You also claimed you said you  
did not know how the copper scheme worked.  
The City has determined that you were not forthcoming in your  
interviews about the number of times you received money for  
copper, your awareness of how the copper scheme worked or your  
assistance in carrying out the scheme.  
You have irreparably breached the trust of the City and your  
employment is no longer tenable.  
8. Andrew McBoyle  
220 Andrew McBoyle started employment with the City as a seasonal worker in 2007.  
He next worked as an Operations and Maintenance Worker. On May 15, 2015,  
McBoyle was appointed as a Trades 1 in Utilities. As a Trades 1, McBoyle worked  
on the Water Crew, Sewer Crew and on the Construction Crew. He also worked on  
the pump truck, the flush truck, drove a dump truck, serviced hydrants, inspected  
valves, did unidirectional water main flushing and worked on water metres.  
221 Exhibit 5 records that McBoyle was interviewed by Dave Kidd and Steve Traviss on  
June 27, 2018. Rick Williams was the Shop Steward assigned to represent McBoyle  
at that meeting. McBoyle initially denied taking City property, receiving money for  
the sale of City property or observing others taking City property when presented  
with the City’s opening salvo of questions. At that point, Kidd reminded McBoyle  
about the importance of being truthful and said there was significant evidence and  
reason to believe that McBoyle either observed or was involved in the theft of City  
property. Only at that point did McBoyle admit copper was taken. McBoyle stated he  
- 47 -  
was involved in the copper scheme for about three or four years since he moved to  
Utilities but had never cashed in copper for money. McBoyle told Kidd most of the  
metal goes in the scrap bin except for copper. He never put copper in the recycling  
bin. McBoyle said that he did not recall any of his colleagues on the Water Crew  
cutting copper and that he did not know who else knew about the scheme. When  
asked if Steele was involved, McBoyle stated that he believes she was aware but  
did not recall. He said that he may have seen Steele cut up copper long ago and  
indicated that he thought she was aware because it would be hard for her not to see  
it. McBoyle agreed that he had helped transfer bags of copper from the Water Van  
on two occasions. When Kidd asked if McBoyle had recently assisted Lewis to  
unload copper sacks at the Chester dump, McBoyle responded that he did not dump  
any bags at the Chester dump in the last six months. When asked if he had observed  
people taking fire hydrants, McBoyle responded that he heard of others taking fire  
hydrants, but that he does not know who is taking hydrants and denied ever taking  
a hydrant for himself.  
222 Exhibit 5 records that McBoyle was also questioned the afternoon of June 27, 2018.  
At that interview, McBoyle told Kidd he could not recall whether Baranec or  
MacKenzie had participated in the copper scheme or cut copper. He repeated that  
he assumed that Steele was aware as a matter of common sense but did not  
remember seeing her participate in the process. And when presented with the fact  
that there was video footage of McBoyle meeting Lewis at the Chester dump on May  
18, 2018, McBoyle apologized and explained that he earlier thought that event  
occurred long ago.  
223 Exhibit 5 also indicates that McBoyle was presented with the contention that he had  
helped Buizer load a hydrant into his vehicle. At that point, McBoyle explained that  
he had forgotten about that incident. When it was put to McBoyle that several  
witnesses said the practice of selling copper was common knowledge, he responded  
to the effect that it was not his place to say, that his earlier comment that it would be  
very hard for Steele not to see it was only his opinion, and that he could only convey  
what he had seen. McBoyle added that he thinks everyone knew about the practice  
but that he never spoke with others about it and added, “no one talks about it”.  
McBoyle acknowledged that he had made a wrong choice in participating in the  
copper scheme and not reporting it to management. He added that he was a new  
guy and did not want to be the one to draw attention to it.  
224 I now address McBoyle’s testimony.  
225 In direct-examination, McBoyle testified that long pieces scrap copper left over from  
water jobs would be placed in the back of the Water Van to be broken into smaller  
pieces (either cut or bent until broken) and put in a compartment. Tiny pieces were  
put in a small bin on the counter of the van. McBoyle testified in direct-examination  
that he helped Lewis to break the copper into smaller pieces during the last couple  
of years of his employment. He added that Lewis never cut the copper in front of him  
- 48 -  
but that in the end, Lewis asked him a couple of times to break it and put it in the  
cupboard. When asked if Lewis talked to him about why the copper was broken and  
put in the compartment, McBoyle testified, “no we never discussed it”. McBoyle  
testified that he initially believed the copper was cut and bagged for recycling. He  
testified he only learned the practice was done to collect money when Lewis put  
money in his pocket and walked away without explanation. McBoyle added that he  
received money from Lewis without explanation six or seven times. When asked if  
he had spoken to anyone else in the Utilities Department about the copper or the  
money, McBoyle testified that he did not speak to anyone else about it as he  
concluded that this is not something Lewis would want him to do.  
226 McBoyle testified in direct-examination that he understood that scrap copper was  
supposed to go into the large metal recycling bin at the Public Works Yard. He  
explained that he had never received any specific instructions about what to do with  
scrap copper. McBoyle assumed this was an unwritten practice of the Water Crew  
and testified that he did not think too much of it, as this was a sporadic event given  
that he rotated between different crews and would go weeks without handling  
copper. In cross-examination, McBoyle conceded that he knew it was wrong to  
participate in the copper scheme.  
227 When asked whether it occurred to him that participating in the copper scheme was  
dishonest, McBoyle explained his mindset as follows, “it never felt like I was doing  
something really bad, and so the first time I saw the burlap sacks go somewhere, I  
kinda didn’t feel as good, but it was something that my foreman [Lewis] was doing  
and I just let it happen and I should not of, but I did.” McBoyle conceded that he  
knew it was wrong to cut and place the copper into burlap sacks and take money for  
his participation in the scheme. He agreed in cross-examination that Duran’s  
response to receiving money was a better option than the choice he had made.  
McBoyle further agreed that he and Lewis stashed the bags of copper at the Chester  
dump to conceal their activity and did so in a manner that improperly used City  
vehicles and detracted from their workday. In cross-examination, McBoyle agreed  
that any day he had worked on the Water Crew and copper was cut, was another  
day that he had participated in the copper scheme and that his conscience did not  
act on him until he was caught—at which point he realized how severe it was and  
how bad it looked to management.  
228 In cross-examination, McBoyle testified that although Steele was not present  
continuously on the Water Crew, he assumed that she was aware of the scheme as  
a matter of common sense. He agreed that Steele would go into the van to get tools  
however when asked if it would have been difficult not to see the bags of copper in  
the Water Van compartment, McBoyle testified, “they would see the bags but they  
might not know right away what’s in them, but they would see the bags.” McBoyle  
testified that he had never discussed cutting and bending or bagging copper for  
safety reasons with Lewis or Steele.  
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229 McBoyle testified that he twice helped Lewis to unload bags of copper from the  
Water Van to be later transferred to Lewis’s personal vehicle. It was on the second  
occasion that the private investigators observed McBoyle assist Lewis to stash bags  
of copper at the Chester dump.  
230 McBoyle testified that on June 27, 2018 he was directed to the Training Room and  
then asked to attend questioning in Dave Kidd’s office. When asked in direct-  
examination, “Do you recall anything else happening in that Training Room before  
you went to Dave Kidd’s office?” McBoyle testified, “No, me and Harry were the first  
ones to be pulled out.” When asked if McBoyle was present when Kidd read the  
script explaining the questioning, McBoyle testified, “I don’t remember Dave Kidd  
coming in to read this or telling us anything.” He added that he had no idea what was  
going on when directed to attend Kidd’s office and was confused.  
231 McBoyle described the post-interview room as small and stuffy. He testified that it  
appeared that Hannah Park (who was assigned to supervise the room) was typing  
whenever employees would speak. McBoyle added that a group of employees were  
led outside to get some fresh air and to go to the washroom after asking several  
times. McBoyle testified that Todd Gross escorted him to the bathroom and observed  
him in the bathroom while he stood at a urinal during his first bathroom break.  
McBoyle testified that when Bob Bell escorted him to the bathroom for his second  
bathroom break that Bell stood outside the washroom in the hallway.  
232 Gross testified in reply that he only escorted one employee to the washroom that  
day, though he could not recall which one, and did not stand in the washroom with  
him. Rather, he entered the washroom first to ensure no other individuals were  
inside. After Gross left the washroom, the employee entered. Gross testified that he  
stayed in the hallway outside of the washroom and waited while the employee used  
it.  
233 McBoyle sent the following text message to Bob Bell after being sent home pending  
further investigation on June 27, 2018:  
I am freaking out Bob, I’ve barely broken a rule let alone a law in my  
whole life. Show up every day eager to do a good job and now I’ve  
just handed in my keys. What the hell am I supposed to do?? I’ll pay  
the couple hundred bucks I might have gotten over the years I’ll take  
a suspension and earn your guys trust back. I can’t lose my job!  
234 On June 28, 2018, McBoyle sent the following email addressed to management and  
all the Union employees at the City of Port Coquitlam. The subject line read “my  
sincerest apologies:”  
With the whirlwind of events in the last 24 hours, I really do not know  
what is going to happen to me and I just want to officially say how  
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sorry I am before any decisions are made. I cannot put into words  
how disappointed in myself I am, that I have let down my family, my  
coworkers and my employer especially. I have always prided myself  
in my work ethic and what kind of employee the city has in me. Right  
now I have not lived up to the standard I want to consider myself at.  
My involvement in these events under investigation is by far the  
worst decision I’ve ever made, it wasn’t something I ever planned, it  
just sort of crept up on me, and I made the very wrong choice of not  
saying no. I never thought it through far enough to realize the  
severity of what was going on and how many people I could  
potentially affect, no matter how small my role. That is one of my  
biggest regrets, and that is absolutely on me. I know I have been a  
quality employee for 11 years now and I come to work every day and  
try to bring a great attitude and do a great job. With that in mind I feel  
like a great employee made one very bad choice, and I would do  
anything to have a chance to make it up, and earn the city’s trust  
back bit by bit. I absolutely love working for Poco and I love my job  
dearly, I never wanted to do anything to risk what I have worked hard  
to build here. My two boys and my wife depend on me and I feel like  
I’m letting them down, and that really hurts more than anything. If I  
get the opportunity to keep working I will do everything I can to be  
the best employee the city could ask for. No matter the outcome, I  
would just like to let everyone know how genuinely and deeply sorry  
and regretful I am. I hope most of all to have a chance to continue to  
be a valued employee with the city of Port Coquitlam.  
235 McBoyle testified that he was devastated at having been dismissed from his job and  
having to reply to his family and friends about the negative portrayal of employees  
in ensuing media coverage.  
236 Traviss testified that he did not believe that McBoyle was being honest when he  
claimed to have forgotten about helping Buizer to load a fire hydrant into his vehicle.  
From Traviss’ perspective, McBoyle had answered questions in a way that was  
aimed at protecting others.  
237 McBoyle was terminated from employment by letter dated July 10, 2018. That letter  
reads in part as follows:  
You were interviewed on June 27 and July 5, 2018. The City’s  
investigation has revealed that you have been engaged in the theft  
of City property, specifically copper piping, and received proceeds  
from the sale of that piping.  
When questioned about this matter during the City’s interview of you  
on June 27, 2018, you initially denied taking any City property or  
receiving money for City property. When questioned again, you  
admitted to your involvement and said you would receive money  
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multiple times in the sale of copper. You also admitted to cutting up  
copper for this purpose.  
You were not forthcoming in our interviews of you about your  
complete involvement in the plan to sell copper and receive the  
proceeds of the sale. For instance, you initially denied other  
assistance in the copper scheme beyond cutting it up and bagging  
it, but when later confronted with the City’s evidence, acknowledged  
your assistance in moving bags of copper out of City vehicles. You  
also denied knowing whether any other City employees knew of the  
copper scheme, which is not credible given the City’s evidence.  
You are also dishonest in your interviews about the assistance you  
provided to another employee to commit a theft of City property,  
specifically a fire hydrant, again only admitting your involvement  
after being confronted with the City’s evidence. In your first interview  
on June 27, you claim that while you had heard of employees taking  
hydrants, you did not know of any particular employees who have  
done so. You repeated that statement in the July 5 interview. Only  
when confronted with the City’s evidence that you had recently  
assisted Travis Buizer in loading a hydrant into his vehicle did you  
admit to your assistance. Your claim that you had simply forgotten  
this recent event is not accepted by the City as true.  
You have irreparably breached the trust of the City and your  
employment is no longer tenable.  
9. Coral Steele  
238 Steele began employment with the City in 1996 as a part-time Building Service  
Worker. From that point it is fair to say that Steele had an excellent work record. She  
applied herself to course studies necessary to advance within the City. The following  
record of her career trajectory demonstrates that commitment. For example, Steele’s  
personnel file documents recognition from residents for her work. In addition to the  
many courses she completed, Steele also participated in the City Leadership  
Program and was recognized with a leadership award in 2017. Many witnesses  
testified to Steele’s commitment to work quality, attention to detail and workplace  
safety. In all these respects, Steele had demonstrated the attributes of a model  
employee.  
239 In the late 1990s, Steele was appointed to time-stated positions in Public Works.  
She then took water and sewer courses with the goal of securing a position in  
Utilities. She also filled in on the garbage trucks in 2001 and 2002. In January 2003  
Steele was appointed as a Labourer I (later re-named the Operations and  
Maintenance Worker) in the Operations Division of the Engineering Department.  
That job exposed Steele to a wide variety of work including asphalt, sewer, water, a  
flush truck and on the pumps.  
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240 Steele took the next step in her career in 2006. At that point she was appointed to a  
time-stated position as Trades I Sewer. That job exposed Steele to work on sewer  
blockages, sewer repairs, cleaning out inspection chambers, inspecting manholes,  
installing new services and capping off old services for demolitions, among other  
things. Sewer work occasionally involves the use of copper. In June 2008 Steele  
was appointed as a full-time Sewer Trades 1.  
241 In May 2011, Steele successfully applied for the position of Water Operator on the  
Water Crew. Steele worked at that job under a Foreman 2. The Water Operator is  
expected to fill in for the Foreman 2 when the Foreman 2 is away from the jobsite  
and to direct the Trades 1. In that capacity, Steele tapped water mains, installed new  
water services, fixed water main breaks, did service leak repairs, and completed  
water cap offs. The Water Crew also attended to resident calls for service, among  
other tasks.  
242 In cross-examination, Steele confirmed that she was frequently in the Water Van  
when employed as a Water Operator. However, Steele was called away from the  
Water Crew to work on the flush truck to perform unidirectional flushing in March,  
April, and May and again from mid-to-late September, October and November of  
each year. She was also assigned to work on water meters for periods of one to two  
weeks on a quarterly basis—in January, April, July and October. Apart from these  
assignments, Steele was taken away from the crew due to a workplace injury for 15  
weeks in 2012, and another 8 weeks in 2013 for a related surgery.  
243 Work on the Water Crew involves copper pipe. In direct-examination Steele testified  
that if she had a piece six to eight inches long she would throw it in the bucket in the  
Water Van or leave it in the ground. Larger pieces that had to be removed were  
pushed, bent and placed out of the way to avoid a hazard.  
244 On October 29, 2013, Steele was appointed to Foreman 2 Water. In that capacity,  
Steele scheduled crews/equipment and tended to necessary paperwork to complete  
work orders. As noted above, the Water Operator exercised operational supervision  
over the Water Crew in the absence of the Foreman 2. Steele’s role as Foreman 2  
was to review jobs with the Water Operator. She would be required to leave the  
jobsite to attend to resident requests (“green sheets”), service fire hydrants,  
complete meter reads, address emergencies, attend staff meetings (1.5 to 2 hours  
per week), work on flushing, attend training sessions and attend to other matters as  
directed by the Foreman 3. It should be noted that Steele drove the Foreman 2  
pickup when she was the Foreman 2, not the Water Van.  
245 Steele testified in direct-examination that the Water Crew was short-handed when  
she was called away. Steele described the optimal configuration of the Water Crew  
as including a Foreman 2, the Water Operator and the Trades I posted to the Water  
Van. In 2015, Trades I employees were rotated between the Water Crew, the Sewer  
Crew and the Construction Crew. Steele did not see that as a positive development  
- 53 -  
as crews were often short-staffed and inexperienced Trades Is were sometimes  
assigned to crews.  
246 Beginning in June 2017, Steele was regularly called away from the jobsite to fill in  
as Foreman 3 in Goff’s absence. When Steele stepped up as Foremen 3, Lewis  
stepped up to the role of Foreman 2. As Foreman 3, Steele was responsible to do  
monthly safety site inspections of the Water, Sewer and Construction Crews. Steele  
was advised by Goff and her Section Manger not to micro-manage the crews. As  
Foreman 3, Steele was busy with administrative duties. The Foreman 2s were  
primarily responsible for supervision of their jobsites. Steele testified that to the best  
of her recollection beginning in June 2017 her time was split with 65 to 70% as a  
Foreman 3 and 30 to 35% as a Foreman 2.  
247 In cross-examination, it was put to Steele that she was able to describe jobs  
performed by the Water Crew in extensive detail because she was very familiar with  
them as a result of her experience working as a member the Water Crew for many  
years. Steele was reluctant to concede she was an experienced member of the  
Water Crew, apart from stating that she worked “occasionally” on that crew. That is  
despite the fact she worked as a Trades I between 2000 and 2006 and was the  
Water Operator from May 31, 2011 until October 2013, at which point she was  
appointed Foreman 2 Water. It was also put to Steele in cross-examination that she  
must have been closely watching the crews between 2013 and 2016 because three  
Section Managers in Utilities (Chinna, Kyle Shaw and Bell) had urged her not to  
micro-manage the crews. Steele initially avoided a direct response but eventually  
conceded that she did supervise the crews to ensure that work was done safely and  
effectively to City standards. She testified in response to questions in cross-  
examination, in part as follows:  
Q. But that was your management style? You took pride in your  
level of attention to detail and you watched your crews  
closely?  
A. I set a high standard for myself, I wanted to do a good job for  
the City and a good job for the residents. I had high standards  
of quality of work.  
Q. And if that entailed you being right there watching your crews  
on the site, watching what they did and directing them, that’s  
what you did? That was part of your job?  
A. I was called away from my job frequently. I had a high  
standard for the work. I wanted it done effectively and I  
wanted it done efficiently.  
- 54 -  
Q. And so sometimes you were away from the site but other  
times you were on the site supervising your crew closely?  
A. I was on the site, setting up the job making sure that it was  
done safely. Making sure the signs were up and that the job  
was done safely and effectively to the City standards.  
Q. Sometimes it was necessary that you get right down there in  
the trench and work with the crews?  
A. Sometimes it was necessary to work and help complete the tie-  
ins because it took everybody working to get the job done.  
* * *  
Q. You could not leave them to their own devices, you had to be  
there supervising them?  
A. Not true. I left the site frequently. I was told not to micro-  
manage and I had to leave many times. As long as the job is  
done correctly, that’s what mattered. I was called away  
frequently to get parts, to attend to emergencies.  
248 In direct-examination, Steele was asked to comment on Duran’s observation that  
Lewis and Steele had a difficult relationship. Steele testified that although Lewis was  
a knowledgeable and hard worker who could be trusted in charge of a jobsite, she  
found he was difficult and argumentative at times. Steele testified that Lewis was  
angry at her for participating in the Leadership Program and that in 2018, she  
complained to Goff about how Lewis had raised his voice with her. Goff attempted  
to reconcile that conflict by facilitating a meeting between Lewis and Steele.  
249 I pause to note that Kidd and Traviss testified in cross-examination that the City  
never told Steele during her questioning at the interviews, that Duran said that Lewis  
reminded him not to “tell Coral” about the amount of money distributed from the  
scheme, or words to that effect.  
250 Traviss did not interpret Duran’s report as evidence that Steele was uninvolved or  
unaware of the copper scheme. He testified in cross-examination that he interpreted  
Lewis’s comment to Duran in context with Lewis’s reminder to Duran, that Duran  
should not trust Steele as she would “throw him under the bus,” or words to that  
effect. Traviss testified in cross-examination that it never occurred to him that Lewis’s  
reference to throwing Duran “under the bus,” meant that she might tell management  
he participated in the copper scheme. I find that assertion strains credulity in the  
circumstances at hand.  
- 55 -  
251 Further, Kidd knew that Duran had reported on February 21, 2018 that Steele was  
not informed when the money from the copper scheme was distributed. He chose  
not to inform Steele of this fact when he questioned her on June 27, 2018. In cross-  
examination, he testified that his assessment was that Duran was a new employee  
and explained that Steele was the foreman responsible for the supervision of all the  
other crew members who were participating in the scheme. Therefore, Steele was  
not informed. Steele was thus left to respond without being apprised of what I find to  
be a significant element of the case against her.  
252 Steele testified in direct-examination about her understanding of what the Water  
Crew was supposed to do with scrap copper. She explained that scrap copper was  
left in the ground unless it was necessary to remove it. Copper that had to be  
removed from the ground was typically old and mangled. It was brought into the  
Water Van and pushed, bent, or cut and placed out of the way as it was considered  
a tripping hazard. Steele added that a longer piece of copper could be tucked into  
one of the sign racks. A basket on the bench was used to store smaller sized pieces  
of scrap copper.  
253 Steele added in cross-examination there were additional buckets in the Water Van  
used to hold pieces of copper. Excess new copper was on a roll stored in the Water  
Van and put in the Water Bay. Steele expected that small excess new pieces of  
copper be placed in the metal recycling bin.  
254 Steele testified in direct-examination that the crew was to do its best to keep the van  
clean and that scrap copper was to be disposed of at the end of the shift or the next  
day, time permitting. She testified that she had been trained to manage copper in  
this manner. Members of the Water Crew were expected to keep the Water Van  
clean and safe.  
255 In cross-examination, Steele explained that although she and Lewis put scrap  
copper in the recycling bin and expected others to do so, she did not recall telling  
anyone else to do that. Nor did she specifically recall observing anyone (other than  
a non-specific recollection of Lewis and once Brenda Nadeau) depositing scrap  
copper in the recycling bin. Steele further testified in cross-examination that she had  
never directed members of the Water Crew to cut scrap copper into smaller pieces  
or gave any directions to the crew regarding the disposal of scrap copper in order to  
address a tripping hazard. She claimed that she never saw anyone cut scrap copper  
or observed a bag of copper in the Water Van when opening compartments to obtain  
parts or tools, such as a repair clamp, a fitting, or sockets. Steele testified in  
response to questions on this point that she simply trained people the way she was  
trained.  
256 When it was put to Steele in cross-examination that she would not have known how  
the crew handled scrap copper if she had not provided direction on that point or  
observed its handling, Steele maintained that she was only asked at the interviews  
- 56 -  
how she handled scrap copper, not how others handled it. Steele testified in cross-  
examination that she could only speak to her conduct and not to the practice of  
others.  
257 I will now summarize some key points from Exhibit 5 in evidence. As noted above,  
Exhibit 5 is an agreed-upon record of words spoken at the June 27 and July 5, 2018  
interviews save for a paragraph attributed to Kim MacKenzie—it is not a complete  
record of what was said.  
258 Steele maintained in evidence that Exhibit 5 is inaccurate. Steele testified in cross-  
examination that Exhibit 5 was a “carefully crafted story by the Employer” and had  
omitted some of the questions and answers given as well as altered what was said.  
For example, Steele insisted that the City repeated the same series of opening  
questions posed at the outset of the June 27 interview when she was questioned a  
second time on June 27 and on July 5. I find the notes of the second June 27  
interview and the July 5 interview do not support that contention. Second, Steele  
insisted that the City told her during her initial June 27 interview that Lewis admitted  
to the copper scheme when the notes do not support that contention. Steele insisted  
in her testimony that her recollection of these meetings was exact, despite the  
passage of time and her claim that she had felt traumatized at the interviews. Third,  
Steele insisted in cross-examination that she never said that scrap copper was  
bagged or words to that effect. The notes contemporaneously taken by the Employer  
at the June 27 and the July 5, 2018 interviews record Steele using words to that  
effect. The Union’s notes taken at those meetings do not. The Union’s notes record  
that Steve Traviss asked, “what do you do with old copper?” to which Steele replied,  
“it goes into recycle bins in the yard”. Traviss next asked “why do you bag it and cut  
it?”, to which Steele replied, “to get it out of the way.” In direct-examination, Traviss  
testified that to the best of his recollection Steele said that “copper was cut up to get  
it out of the way so that people don’t trip on it.” Steele maintained in her testimony  
that she only said, “If scrap copper came into the van, it’s considered to be a trip  
hazard. It is pushed, bent or cut and placed out of the way.” Steele further maintained  
in cross-examination that she had never once seen burlap sacks filled with copper  
in the Water Van.  
259 I now proceed to summarize some key points from Exhibit 5.  
260 At the morning interview, Steele responded to the opening salvo of questions  
denying having taken City property, receiving money for the sale of City property or  
observing others taking City property. Kidd then described the copper scheme  
generally and Steele maintained her denials. Steele explained that she was regularly  
on and off the jobsite and that copper was cut up and thrown into the recycling bin  
in the yard. She said that she did not know who puts the copper in the recycling bin.  
She explained that the copper was cut up so it is not tripped on and Exhibit 5  
indicates that she said it was shoved into a bag. When asked where the copper was  
put Steele replied that it was just put out of the way. She added that scrap metals  
- 57 -  
go into the recycling bin and that she did not know who did that and did not direct  
anyone to do that although she had done so herself. When confronted with the  
disclosure that other employees had indicated they had received cash for copper,  
Steele responded that she could not speak for others that she did not know.  
261 At the afternoon interview on June 27, 2018, Kidd told Steele it had come to his  
attention that she was aware of the copper scheme. Steele denied knowledge of  
that. When Steele was asked “do you cut up, conceal and get money for the  
copper?” Steele responded, “I’m not going to respond to that. We put the copper out  
of the way so people don’t trip on it.” Traviss repeated that others interviewed  
admitted that they had received money for copper. Steele maintained that she had  
not received any money for copper.  
262 Steele was also interviewed on July 5, 2018. Steele provided an introductory  
statement in which she said that she was not in the “greatest state of mind” and that  
the last seven days were a “roller coaster.” Kidd asked what happens to scrap  
copper and Steele explained that it is bagged so people don’t trip on it, and to the  
best of her knowledge is deposited into the metal recycling bin. Steele stated that  
she does not bag or cut copper but that she moves it out of the way. She added that  
she has no clue about the copper scheme. Kidd recounted Goff’s statement that  
Chinna had told everybody the sale of copper had to stop and as far as he knew it  
did stop. Steele maintained that she was unaware of any copper scheme in the face  
of this disclosure.  
263 At the July 5, 2018 interview, Kidd told Steele that Plasman, Buizer and a protected  
person had indicated that she was involved. Steele responded that she could not  
speak about what others say, only her own actions. And when presented with the  
contention that Buizer had indicated that she had received cash, Steele answered  
that she would not respond to allegations made against her but that she had never  
received money for copper.  
264 I pause to note that at the June 27, 2018 interview, Plasman said that he had  
received money from either Lewis or Steele but then settled on Lewis. Plasman also  
indicated that he was unsure about who else received money for copper and said  
that Steele knew about the practice of selling copper. At the July 5 interview,  
Plasman retracted his allegation that Steele knew about the practice. He reported  
that he had never in fact observed Steele cut, bag or sell copper and that he did not  
know why he had said that on June 27. Plasman never said that Steele had received  
cash. Further, Duran (the protected person) had never said that Steele had received  
cash.  
265 I now return to Steele’s testimony.  
266 On the morning of June 27, 2018, Bob Bell advised Steele that there would be an  
investigation into allegations concerning the Utilities Department and there would be  
- 58 -  
interviews. Bell explained that the interviews might take all day and to tell the crew  
to go to the lunchroom. Steele did not feel right about the situation and went to Les  
Nerdahl’s office to tell him about the interviews and to ask if he knew what was going  
on. Nerdahl was unable to provide her with information. Steele then advised Nerdahl  
to call Gary Goff as he was the Union President.  
267 Steele testified that Kidd read from a prepared statement. She recalls that he  
conveyed that there was an investigation into a serious matter involving the Utilities  
Department and there would be interviews in two different rooms where the  
employee is to be expected to answer honestly and truthfully. Steele testified that  
Kidd told employees not to use their cell phones and they needed to be escorted to  
the washroom in order to protect the integrity of the interview process.  
268 In cross-examination, Steele was adamant that when Kidd read from the script that  
he only referred to a “serious matter” and did not refer to “potential disciplinary  
outcomes.”  
269 Steele waited in the room as employees were called in to be interviewed. She  
testified in chief that she had no idea about what was going on, felt confused and  
became upset. Steele was asked in cross-examination, “you knew what the matter  
was about, you were being asked questions about theft in the workplace, right?”  
Steele’s answer was non-responsive, “They asked me the questions. I answered the  
questions.”  
270 Steele testified that she was called into Kidd’s office to be questioned. Steve Traviss  
and Shop Steward Rick Williams were also present in the room. In direct-  
examination Steele testified as follows with respect to what happened during that  
interview:  
Mr. Kidd advised that he was conducting an interview into a serious  
matter regarding Utilities. He said he would be asking me some  
questions and wanted me to answer truthfully and honestly. He told  
me think long and hard before you answer. If there is anything I didn’t  
understand that to just ask him. I said I would do my best.  
He asked me how long I had worked for the City of Port Coquitlam.  
I replied, almost 22 years. I was two months short of 22 years. He  
asked me how long I had been in Utilities. I think I replied, because  
I had been a labourer and bounced around, I said I don’t know. Since  
approximately 2000, because that’s when I was brought on as a  
labourer garbage swamper.  
He asked me how long I had been foreman of the Water Crew. I said  
I wasn’t sure, 2012 or 2013, and I said you would know because you  
have my posting.  
- 59 -  
He asked me had you ever taken City property and I said no. He  
asked me if I’d ever received cash for City property and I said no. He  
asked me if I’d ever seen anyone else receive cash for City property  
and I said no.  
He asked me what is done with scrap metal and I said if scrap metal  
is ever brought into the van, it’s considered a trip hazard and it is  
pushed, bent or cut or placed out of the way.  
He asked me why would you cut the copper and I said to get it out  
of the way, because it’s a trip hazard.  
He asked me what did you do with the scrap copper and I said it was  
thrown into the metal bin. He asked me if I’d thrown it into the metal  
bin and I said yes I had put it into the metal bin.  
He said we never received revenue from the metal bin for scrap  
copper. How do you explain that? I said well that does not make any  
sense because I had thrown it in. He repeated that we never  
received any revenue from scrap copper, how do you explain that?  
I said I don’t know who takes the metal bin or how often he goes or  
if it’s the same driver. I said I don’t have to explain it because I don’t  
know what happens to the metal bin.  
He asked me if all metals go into the metal bin and I said lots of  
metals go into the metal bin, all different stuff. I name things like blow  
offs and valves, water valve boxes and daigles, fire hydrants and  
copper. I said all kinds of stuff goes into the metal bin. He asked me  
if copper is treated differently and I said no. It’s all treated the same.  
He reminded me again to answer truthfully and honestly and I said I  
was. He asked if I’d ever received or taken City property and I said  
no.  
He said they had been investigating for some period of time and had  
evidence that there was a serious matter in Utilities, he said there  
was a highly sophisticated, coordinated, covert, what he deemed as  
the copper scheme. Where he described that new copper was being  
cut up, bagged and concealed and he said that it was being removed  
from sites or premises, taken in for money and distributed among  
men and members of Utilities.  
I told them I did not believe it. He said it was true and they had  
evidence. I told them again I did not believe it. He asked I believe  
you said you are a foreman and you’re not aware of this practice?  
And I said I’m not aware of it. I have no knowledge of it. I was  
confused and in disbelief. I believe I said I did not believe it again  
and he said we have evidence, we know it’s going on, Harold has  
admitted to it. And I said I have no knowledge of this.  
- 60 -  
He said as the foreman you were on the site on and off. I said yes, I  
am on and off the site all the time. And he repeated, you are  
frequently on the site and you have no awareness of it? And I stated  
I am on and off the site frequently and I have no knowledge of it.  
I believe he stated that they did not believe me. They believed that I  
knew or had knowledge and I denied it. He stated I believe, others  
said you had knowledge or other said you were involved. And I said  
I cannot respond to what people said or may have said or may not  
have said, I have no knowledge.  
He said why would the guys say things about you that are untrue? I  
said these guys say things about me all the time and spread  
rumours, some of the things that I hear about, but most of the things  
I do not.  
I said you are aware that people make statements about me and say  
things. No one has ever done anything about it around the workplace  
so why would they start now. I believe at that point, there was a point  
where they said that they would go caucus. By this point I was deeply  
upset. My head was spinning. I thought I was going to throw up, I  
had a splitting headache and I was dizzy, my heart was racing.  
And Rick, so I didn’t even know he was there, and he hadn’t said  
anything, said you just need to answer all their questions and answer  
truthfully and honestly. I felt attacked by Rick at that point because I  
had answered all the questions and cooperated and answered  
truthfully and honestly. So I actually cringed away from him because  
I felt like I was being attacked by him.  
Mr. Kidd and Mr. Traviss came back in and closed the door. They  
said they do not believe me. Others have said. We don’t believe you  
so we think you are aware, we think you have knowledge.  
271 Steele testified in direct-examination that she perceived Kidd as becoming angry  
with her for denying her involvement. She testified that Kidd repeatedly stated that  
they had knowledge that she was involved. Yet she maintained her innocence. Kidd  
testified in reply that he maintained a calm demeanour throughout the duration of  
the interviews of Steele. Stevens did not testify in support of Steele’s recollection of  
Kidd’s behaviour in this regard.  
272 Steele was directed to wait in the Administration Room. Steele testified she felt dizzy  
and nauseous. She later proceeded to the washroom without asking for an escort.  
Steele testified that she ran cold water over her face, at which point Hannah Park  
abruptly opened the door to the washroom, narrowly missing her. Steele testified  
that she asked if Park was there for her. Park answered affirmatively, at which point  
Steele moved past Park to enter the bathroom stall. Park testifies in reply Steele  
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proceeded to the washroom alone after her interview. Park did enter the washroom  
to ensure that Steele was not using her phone. Park testified that she did not  
vigorously open the door and almost hit Steele, nor did she recall any conversation  
with Steele. Park stayed in the washroom at the washroom exit—not in view of the  
washroom stall—and then accompanied Steele back to the Administration Room.  
273 Steele waited in the Administration Room until she was called into a second  
interview that day. In direct-examination, Steele testified about that interview, in part  
as follows:  
I was then marched in for my second interview. Again, the same  
questions. Did you take City property, no. Did you receive money for  
City property, no. Did you observe anybody else taking money or  
City property, no. Again, the accusations, we have evidence that you  
have been involved. We have evidence that you have been involved  
in taking money and receiving money. I said I have not. They stated  
you telling me that you’re the foreman and you’re unaware. I said I  
am unaware and I have no knowledge. When they started down the  
line again of why would the guys say this and why would the guys  
say that I just said that I would not respond to any accusations or  
anybody else and that I would not speak for them and I can only  
speak for myself.  
When they said to me at one point, they made a statement saying,  
okay we know you were involved in the copper scheme. And I said I  
don’t know how you get that. And basically, the questioning ended  
when they asked me three questions, have you ever taken City  
property, no. Have you ever received money for City property, no.  
Have you ever seen others receive money or take City property? No.  
I told him I had answered all the questions and they can keep asking  
me the same questions but my answers were not likely to change. I  
was traumatized by the experience.  
274 Steele was subsequently asked in direct-examination, “If you had found out about  
the copper scheme while you were in your Foreman 2 role what would you have  
done?” Steele testified she would have reported it to Goff or to Bell. When asked in  
cross-examination if she had ever thought it was possible that other members of the  
crew were taking scrap copper to cash it in Steele testified, “I never thought about  
it.”  
275 Steele was asked in cross-examination how it was that the copper scheme could  
have escaped her attention in her role as Foreman 2 when Gary Goff was aware of  
it since 1990 in the role of Foreman 3. Steele simply responded that she had no  
knowledge about what Goff knows and reiterated that she had no knowledge of the  
copper scheme.  
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276 Steele was asked to return City property and sent home at the end of the day on  
June 27, 2018, pending further investigation into the matter.  
277 As noted above, Steele was questioned again on July 5, 2018. She was represented  
by a Union National Representative at that meeting. Tammy Graham took notes of  
that meeting for the Union. In direct-examination, Steele testified about that  
interview, in part as follows:  
We went into the room. I believe the City basically reiterated what  
their rights were and asked us more questions. I advised them that I  
was not in the right state of mind. I had been ill, had migraines,  
diarrhea and could not control jerky movements of my body. And I  
had nightmares of my experience. I thanked Tammy for being part  
of the caucus that day. … I felt safer having a female in the room for  
the questioning.  
Again, they asked similar questions regarding the alleged copper  
scheme. Had I taken City property, I answered no. Had I received  
cash or City property, I answered no. Had I seen others take City  
property or receive cash, I answered no.  
I was advised that during Mr. Goff’s interview, Mr. Goff had said that  
he had a conversation with Ravi Chinna and that Mr. Goff had stated  
something to the effect that it had gone on before or something like  
that and that Mr. Goff had felt it had stopped, that’s what the  
Employer was telling me, and why would Gary say that and have  
knowledge of this practice and I’d be completely unaware. I  
answered that I did not know what Gary had testified to and I had  
not talked to Gary so I had no knowledge of Gary’s comments. I said  
I have no knowledge of conversations Gary may have had with Ravi  
Chinna. I said I have no knowledge, and that Gary did not include  
me in many conversations. I had never been to a crew talk regarding  
copper. So I did not know of any conversations that Gary had had.  
278 The Employer had also asked Steele about malingering. She advised the City that  
she had no knowledge of such activity. In cross-examination, the Employer directed  
Steele to the record of her comments at the outset of the July 5, 2018 interview to  
the effect that she was “not of the greatest state of mind and that the last seven days  
were a roller coaster.” Steele was directed to a record of similar words spoken by  
Baranec at the outset of his interview on July 5, 2018. She was asked if she had  
been coached to use those words. Steele maintained that these words reflected how  
she felt. When pressed to answer if she had been coached or advised to use those  
words, Steele eventually testified that she was not coached.  
279 Kidd testified that he had heard Steele cite safety as the premise for cutting copper  
—three times at the June 27 interview and another three times the July 5 interview.  
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Kidd testified that he visits the worksites occasionally and has acted as the Employer  
representative of the Occupational Health & Safety Committee doing monthly site  
inspections. Kidd testified that scrap copper has never been brought up as a safety  
concern, and that accident reviews and incident reviews have never disclosed a  
safety concern connected with copper piping. He added that currently, the crews  
take scrap copper to the recycling bin in lengths of three to five feet and that  
sometimes longer lengths are cut or bent to fit into the recycling bin. To his  
knowledge, copper is never cut into pieces sized to fit into burlap sacks. Kidd  
acknowledged in cross-examination that he was unaware of a tripping accident in  
the van in 2015. However, it is unclear whether that accident was tied to the  
presence of scrap copper. Kidd agreed that it would be unsafe to have pieces of  
bent and cut copper on the floor of the Water Van while employees were walking  
about in that space.  
280 Kidd further testified that he observed Steele adopt a hands-on management style  
working side-by-side with and directing the Water Crew. However, his opportunity to  
observe is limited by the fact that he does not normally attend worksites, apart from  
monthly safety visits and emergency situations.  
281 On July 10, 2018, the City dismissed Coral Steele from employment. Traviss testified  
that he did not believe that Steele had cut up, bagged and concealed copper.  
However, he concluded that she was aware of the scheme and based on Buizer’s  
identification of Steele on the organizational chart, that she had received money.  
The dismissal letter records the grounds for dismissal as follows:  
You [Steele] were interviewed on June 27 and July 5, 2018. The  
City’s investigation has revealed that you have been engaged in the  
theft of City property, specifically copper piping, and received  
proceeds of the sale of that piping.  
When questioned about this matter during the City’s interview of you,  
you denied taking any City property or receiving money for City  
property. The City’s evidence is that you have received money in the  
past from the sale of copper.  
You also denied any knowledge of the copper scheme at all during  
your interviews. Given your frequent presence of the worksite as a  
working foreman, the City does not accept your claim as being true.  
When confronted with the City’s evidence that it knew of the practice  
of cutting and bagging copper, you claim this practice takes place as  
a safety precaution. Your claim is not believable in light of the City’s  
evidence.  
You failed to be forthcoming during your interviews in respect of your  
participation in or knowledge of the copper scheme. Your lack of  
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candour is very concerning, given your responsibilities as a foreman  
2.  
You have irreparably breached the trust of the City and your  
employment is no longer tenable.  
282 Steele testified that she was upset at the media coverage concerning the copper  
scheme. Steele added in direct-examination that she was devastated by reports  
disclosed in this proceeding concerning the investigator’s attempt to look at her and  
her children’s social media postings. The contents of Steele’s and her children’s  
social media accounts were publicly accessible albeit on a limited basis.  
Nonetheless, Steele was offended by the investigator’s conduct which she  
characterized in part as, “creeping my daughter’s Facebook when they clearly had  
a photo identifying me given to them by the Employer.”  
10. Marco Stevens’ Interview  
283 Traviss testified that Stevens was not initially selected to be interviewed on June 27,  
2018. That changed when Travis Buizer identified Stevens as a person he believed  
had received money from the copper scheme.  
284 Stevens did not testify in this proceeding.  
285 Traviss testified that Stevens advised when questioned on June 27, 2018, that he  
was unaware of the copper scheme and that he did not cut up, conceal or bag  
copper. There was a bin of old scrap copper kept at the Sewer Bay.  
286 The notes in evidence record that when the Employer put to Stevens that the copper  
scheme was common knowledge, Stevens replied to the effect that that the rules  
about equipment and borrowing tools changed several years before and that he did  
not know anything about copper.  
287 It was put to Traviss in cross-examination that the inference to be taken from  
Stevens’ comment to Duran about the scrap copper not being worth risking his job  
over was that Stevens did not want anything to do with the copper scheme. Traviss  
testified that he would draw a similar conclusion. However, Madigan never directly  
confronted Stevens with the discrepancy between his stated ignorance of the copper  
scheme, and the inference to be drawn from comments Duran had attributed to him  
regarding the copper accumulated at the Sewer Bay. Stevens was confronted with  
allegations that he had been paid money from the sale of copper and was asked  
how long the copper scheme had happened, as well as whether Lewis and Steele  
were involved. Stevens denied any knowledge or participation in the scheme. It was  
not put to Stevens that Duran had attributed comments to him that suggested  
Stevens might be aware of the scheme. Nor was Stevens called in for additional  
questioning on July 5, 2018, to explore the discrepancy between his state of  
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awareness as implied by Duran’s report, and Steven’s claimed ignorance of the  
copper scheme. Maki asked Stevens what he did with his cut of the $10,000, but it  
was never specifically put to Stevens during his questioning that Buizer had  
identified him as a person involved in the copper scheme.  
288 Traviss testified that Stevens was not disciplined because the Employer concluded  
that it had no evidence that anyone had seen him cut up, conceal or bag copper.  
Further, the bin of copper remained unchanged in the Sewer Bay during the  
Employer’s spot checks and Stevens’ answers in the investigation were consistent  
with the evidence the Employer had garnered with respect to his involvement.  
11.The Shop Stewards  
289 The Union selected Rick Williams and Roy Savage to act as Shop Stewards at the  
June 27, 2018 interviews. Savage and Williams testified about what happened  
during the questioning and Savage provided evidence concerning his knowledge of  
the copper scheme over the years.  
a. Roy Savage  
290 Savage began employment with the City in September 1987 in the Public Works  
Department. He is trained as an Equipment Operator and worked in the Utilities  
Department rotating between various jobs. In the early 1990s, Savage took courses  
in water and sewer. He was assigned to work back and forth between crews,  
including the Water Crew. In 1994 he was awarded the posting for Sewer Operator.  
From 1998 to 2015 he was the Sewer Foreman and later worked as a Foreman 3.  
For the past three years he has worked as a Foreman 2 in Roads and Drainage.  
291 Savage serves as Shop Steward and recalls taking a Shop Steward course about  
four years ago. He does not recall learning about employee rights and obligations  
regarding self-incrimination when unionized employees face misconduct allegations.  
292 Savage testified that Union First Vice-President, Les Nerdahl asked him if he would  
act as a shop steward on the morning of June 27, 2018. Savage only recalls Nerdahl  
advising him that there were two separate interview rooms and to ensure that he  
brought a pen and paper. Savage met Madigan and Maki at Madigan’s office,  
whereupon he was told to expect a long day and to feel free to take notes. Savage  
did not ask any questions at that point. Savage’s previous experience as a shop  
steward included three disciplinary matters.  
293 Savage did not ask for a chance to speak to Lewis, Plasman, Buizer, or MacKenzie  
before the questioning began. Nor did Madigan offer that opportunity. Savage  
testified in direct-examination that he was not sure why he did not ask for a moment  
alone with each of the Grievors before questioning started. He offered that he did  
not know if it was his place to dictate what was happening. After the first interview,  
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Savage spoke to Les Nerdahl and said “You better get us some help. We are getting  
shit kicked” and said that he felt “overwhelmed.” He did not have a mobile phone but  
could have accessed a phone in Nerdahl’s office across the hall. Savage did have  
an opportunity to speak to the Grievors or make a call when Madigan and Maki took  
a break to caucus.  
294 Savage felt the atmosphere at the interviews was tense and uncomfortable. He was  
taken aback because he had thought that the copper scheme had stopped long  
before. Savage described Madigan as a bit harsh at times but understanding. He  
agreed in cross-examination that Madigan appeared to ask questions as sensitively  
as possible albeit in his opinion, the interviews with Lewis and Buizer did not go as  
well as interviews with Plasman and MacKenzie.  
295 In cross-examination, Savage testified there were crew talks led by Ravi Chinna,  
and later by Mani Deo and Kyle Shaw at which employees were told “no personal  
garbage and copper had to stop.” Savage testified that he did not know whether  
copper was sold (he testified that he had “no idea” what happened to the bags of  
copper), and did not see anyone cut copper but knew it had been cut up and bagged.  
Savage recalled observing burlap sacks of copper stored in the watershed going as  
far back as 1999 until the above-noted crew talks.  
296 Savage testified that he just took notes, that he could have asked more questions,  
taken breaks, asked for clarification and that he would have liked to obtain advice  
but was busy taking notes.  
297 In cross-examination, Savage recalled that an organizational chart had been given  
to Buizer during his questioning. Savage testified that Buizer looked at the  
organizational chart for a long period of time before he marked the names of those  
he thought were involved in the copper scheme. However, Savage did not make a  
note of that. Savage agreed that his notes may not have recorded a few events.  
298 With respect to MacKenzie, Savage recalled in his testimony that the organizational  
chart was on the table during questioning. He testified in part as follows:  
Q. Do you remember Mr. Madigan pointing to the org chart and  
asking Ms. MacKenzie “is there was anyone on this org chart  
who doesn’t know about the copper scheme.”  
A.  
“I believe so, yes.”  
Q.  
And do you remember her taking a long pause and looking  
at it?  
A.  
Yes. She had a look at it, yes.  
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Q.  
And do you remember her saying it’s common knowledge,  
everyone knows?  
A.  
I do remember that in my notes, yes.  
b. Rick Williams  
299 Williams has been employed by the City for eight years. He began employment as  
an Operations and Maintenance Worker and has worked on the Construction Crew,  
paving and then moved to trades and sanitation. He is currently posted as a Crane  
Truck Operator and a Flush Truck Operator.  
300 Williams has acted as a Shop Steward for the last five years. He took a course in  
grievance analysis when he was first appointed Shop Steward and subsequently  
completed a course in conflict resolution. He does not recall learning anything about  
employee rights in disciplinary interviews. Williams had experience representing five  
or six employees facing discipline before the June 27, 2018 interviews.  
301 Williams was assigned to act as Shop Steward for those employees interviewed by  
Steve Traviss and Dave Kidd. He understood his role was to take notes and did not  
believe it was appropriate to cause interruptions. He believed the Employer did not  
want him to make phone calls, albeit Nerdahl’s office was four rooms down the hall  
from the interview room.  
302 In cross-examination, Traviss testified that he did not recall saying words to the effect  
that it would be better if Williams avoided interrupting the questioning.  
303 Williams did not ask for time to meet with McBoyle prior to his interview. He testified  
in direct-examination that he felt pressured and did not understand what was  
happening. Williams added “looking back I should have asked for some time to talk  
to him.” He added that he felt that he had let people down at the interviews. Williams  
only understood that the meeting concerned theft after the first round of scripted  
questions. Williams described the tone during McBoyle’s questioning as “pretty  
serious.”  
304 Williams testified that he did have a bit of time alone with Baranec before the  
interview started. Williams also testified in direct-examination that at one point during  
Steele’s interview that Steele became upset and he took a break to speak to her. He  
encouraged her to continue to be honest and forthright. Williams testified that Steele  
appeared to be emotionally shaken during the interview.  
I.  
July 4, 2018 - Nick Duran is Re-interviewed  
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305 Steve Traviss and Bob Bell met with Nick Duran on July 4, 2018. Traviss testified in  
direct-examination that the purpose of the meeting was to explore inconsistencies  
between what was reported at the June 27 and July 4 interviews and to confirm what  
Duran had reported in terms of who was involved with cutting and bagging copper  
as well as who saw that happening. Traviss also wanted to confirm Duran’s  
recollection of conversations he had reported having with Plasman, McBoyle,  
Baranec and MacKenzie as to how the scheme operated. Some key points that  
emerged from that interview are summarized as follows:  
a. Duran’s receipt of $50 was confirmation that his co-workers  
were actually engaged in the scheme.  
b. McBoyle, Plasman, Lewis, MacKenzie and Baranec all  
explained to Duran that each crew member gets “a cut” of the  
proceeds, depending on time worked on the Water Crew.  
c. The previous November, Duran suggested that the copper  
proceeds go to homeless people but was rebuffed.  
d. Duran had discussed the scheme individually with MacKenzie,  
Baranec and Lewis. He discussed it with McBoyle and Plasman  
together. A common refrain was “we don’t talk about it.”  
306 Traviss concluded that Duran’s account was accurate and proceeded on that basis.  
H. Union’s July 4 Notice and Employer’s July 6 Memo and Media Disclosure  
307 On July 4, 2018, the Union issued a notice to the bargaining unit which read as  
follows:  
As most of you know, last week was a new low for Labour Relations  
in the City of Port Coquitlam resulting in the termination of two long  
term and very hard-working employees following a loaded  
interrogation process. It is extremely unsettling that the Employer  
decided to take this course of action when a simple Meeting or Crew  
Talk would have stopped any alleged action immediately.  
Apparently, they came to believe around February that ongoing acts  
of theft were occurring but instead of taking immediate action to  
enforce their expectations, or point out any existing policies to put a  
stop to any alleged activity, they conducted a prolonged investigation  
for approximately six months. These members have families and this  
heavy-handed action is heartbreaking.  
Management felt the actions were so outrageous that it resulted in  
two terminations and suspension without pay of another 5  
employees with investigations still ongoing and no end date at this  
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point. During this time many of us continue to participate in Volunteer  
and Public Events when management knew this impending action  
was in the works. We have filed grievances and have asked for the  
Grievance Procedure to be waived and want to proceed directly to  
Arbitration.  
We have been working through the weekend, contacting lawyers  
and affected members, assisting them in obtaining alternate  
employment as they have no idea on a return date at this point. We  
will continue to support these members in any, and every way we  
can, and we hope you will do the same. We have to let management  
know that treating our members in this way is unacceptable. This  
further perpetuates the feeling that we are only a number and that  
dedication to the job and loyalty mean nothing. As we stated in our  
last bulletin, labour relations are damaged even more so now with  
this action.  
It is very ironic that the interrogation process started on the very day  
of the cancelled Employee Appreciation BBQ. Our Executive  
Members involved that day did an excellent job and what was a very  
difficult and stressful day, we were ambushed in a planned attack on  
our members.  
The union will be having a special meeting on Thursday, July 12 at  
5 o’clock at the Kinsman Hall in Coquitlam on Flint to provide more  
information and answer any questions we can regarding the issue.  
Please plan to attend!  
308 On July 6, 2018, then City Manager, John Leeburn issued an email addressed to all  
employees—close to 300 in total. The stated purpose of that email was to “provide  
an update into the property theft in public works” and to “clarify the misinformation  
out there.” At that point, the Employer had dismissed Lewis and Buizer. Decisions  
regarding the other dismissals were still pending. The email read in part as follows:  
I am able to share with you the following:  
1. Theft is a very serious offence, an offence the employer must  
investigate thoroughly.  
2. The theft scheme was highly coordinated by those involved,  
including multiple steps, each step carried out covertly.  
3. The thefts have been taking place for more than a decade.  
4. The total value of the property stolen is challenging to finitely  
quantify but is conservatively estimated at $75,000.  
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5. The majority of what was stolen was new material, the remainder  
was recyclable material.  
6. The City is very carefully reviewing the information gathered during  
the investigation and is nearing conclusion of its process. I’ll  
provide another update next week.  
309 Traviss testified that the estimated value lost was based on Buizer’s report to the  
effect that the scheme had been perpetrated for 17 years and that he had personally  
collected and distributed $5,000 to $10,000. However, it was established in Traviss’  
cross-examination that Buizer did not disclose he had collected $5,000-$10,000 a  
year. Rather, he disclosed that he had collected and distributed $5,000 to $10,000  
in total. Traviss added in cross-examination that he could not speak to whether  
Leeburn had contemplated the risk that the information contained in the above-noted  
email would be disclosed to a broader public audience.  
310 On July 11, 2018, a local newspaper published an article titled “Poco fire seven  
employees for alleged theft scheme that lasted 10 years.” The byline read, “the  
coordinated scam has been going on for a decade, CAO John Leeburn said.” Traviss  
testified in cross-examination that the newspaper article contained information that  
Leeburn had provided in his July 6, 2018 email to all employees. For example, the  
article stated in part “the workers, whose length of service ranges from 1½ to 21  
years, are accused of taking part in a coordinated theft—an estimated loss to the  
city of more than $75,000 over the past 10 years. Each employee is alleged to have  
received cumulative cash amounts ranging from less than $100 to $10,000.”  
III.  
POSITIONS OF THE PARTIES  
A. THE EMPLOYER  
311 The Employer cites long-standing arbitral authority for the proposition that theft and  
dishonesty are inimical to the trust necessary for a viable employment relationship:  
Phillips Cables Ltd. and International Union of Electrical, Radio and Machine  
Workers, Local 510 (1974), 6 L.A.C. (2d) 35 (Adams). The Employer adds this is  
especially the case where individuals access public resources outside of an  
employer’s direct supervision. In that context, an employer must rely on an  
employee’s trustworthiness lest it be compelled to implement invasive security  
precautions: Weiser Inc. and CAIMAW, Local 20 (1985), 23 L.A.C. (3d) 331  
(Greyell); City of Kingston and CUPE, Local 109 (2017), 276 L.A.C. (4th) 219  
(Nyman) (“Kingston”); Edmonton (City) and Civic Service Union 52, [2010] A.G.A.A.  
No. 51 (Wallace); Capitol Regional District and CUPE, Local 1978, [2013]  
B.C.C.A.A.A. No. 101 (Nichols); ICBC and OTEU, Local 378 (Dunsome Arbitration),  
[1988] B.C.C.C.A.A. No. 255 (Hope).  
- 71 -  
312 The Employer relies on the proposition that employees are obligated not to advance  
false or misleading explanations to their employer. Further, an employee’s silence  
may be culpable if it damages the employer’s legitimate business interests: Tober  
Enterprises Ltd., BCIRC No. C54/90; Vancouver School District, [2007]  
B.C.C.A.A.A. No. 182 (Sullivan); Toronto Transit Corporation, [1998] O.L.A.A. No.  
276 (Brown).  
313 The Employer submits that employees may not acquiesce to an act of theft by other  
employees by remaining silent. The Employer argues an employee’s duty to act  
honestly in the discharge of their duties imposes a positive obligation to disclose to  
the employer what they know. The duty is not an obligation to disclose the  
misconduct of others. Rather, it is an obligation to account for one’s own conduct in  
the context of one’s duty of fidelity to the employer: White Spot, unreported  
(February 21, 1983) (Hope, Q.C.) (“White Spot”); British Columbia Hydro, [1985]  
B.C.C.A.A.A. No. 345 (Munroe); Vancouver (City), [2004] B.C.C.A.A.A. No. 53  
(Nordlinger); and the decision of the B.C. Supreme Court in Houlihan v. McEvoy et  
al., 2002 BCSC 16; affirmed 2003 BCCA 228; and in Air Canada, [1996]  
B.C.C.A.A.A. No. 64 (Keras) where dismissal was upheld for refusing to identify an  
accomplice.  
314 The Employer submits that on the whole of the evidence it has established a prima  
facie case of just cause for dismissal, such that the Union carries an evidentiary  
burden to establish a credible, innocent explanation for each Grievor: Kingston,  
paras. 106 and 108; Toronto (City) (2017), 285 L.A.C. (4th) 422 (Sheehan), para. 51;  
Sarens Canada Inc. (2017), 280 L.A.C. (4th) 186 (Casey). The Employer adds there  
is only one standard of proof, that being proof on a balance of probabilities: F.H. v.  
McDougall, 2008 SCC 53.  
315 The Employer submits that Duran was a credible witness. It argues that every  
element of the copper scheme he disclosed to the City was borne out by subsequent  
surveillance and the evidence, save for the Grievors’ denials about their  
conversations with him about the scheme. Further, Duran’s evidence at the hearing  
was consistent with what he told management at different interviews about the  
copper scheme.  
316 The Employer submits that Duran had no motive to lie and that key elements of his  
evidence concerning the elements of the copper scheme are consistent with the  
evidence of other witnesses and other independent evidence. The Employer says  
that despite the fact Duran was unable to recall incidental details like the dates, times  
and locations of conversations, there is no basis to conclude that Duran’s  
recollection is unreliable on the material points. The Employer points in particular to  
Duran’s reports that everyone receives a portion of the proceeds based on their  
participation on the crew, and the use of the common admonition, “we don’t talk  
about it” when Lewis and Grievors MacKenzie, Baranec, McBoyle and Plasman  
informed Duran with respect to the scheme. The Employer submits the latter claim  
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was supported by Plasman and McBoyle at their interviews and by Buizer in his  
testimony. Further, McBoyle, Plasman and Buizer all testified that it was their  
understanding that members of the crew received a portion of the copper proceeds.  
317 Further, the Employer observes that Duran testified that his extended probation  
played no role in his disclosure and the evidence shows that he had no axe to grind  
with his co-workers concerning his performance reviews. The Employer adds that  
any tensions Duran had with Steele played no role in his disclosure, as evidenced  
by the fact that he did not implicate Steele to the same extent as others. Rather, it  
was the fact that Lewis gave him $50.00 that prompted Duran to report the matter to  
management. The Employer argues that Duran did not want to identify Lewis until  
he later met with Kidd and Bell on February 21, 2018.  
The Grievors  
318 The Employer submits that each of the Grievors understood that the sale of copper  
for personal gain was an act of theft and that taking discarded fire hydrants from the  
jobsite was theft or at least violated the City’s Conflict of Interest Policy and its Use  
of Municipal Equipment Policy.  
Travis Buizer  
319 The Employer submits Buizer had participated in the copper scheme from the start  
of his employment in 2001 until 2013. The Employer argues it is likely Buizer  
received copper money after 2013 as he, Lucas Adamik, Plasman and Buizer all  
worked together for a month or two on the McLean Road job—which involved the  
use of copper for the installation of a new water main. Plasman testified that after  
the McLean Road job, Adamik gave him money as his share of proceeds from the  
copper scheme. The Employer submits that it is unlikely that copper was only  
delivered to the recycler once or twice a year as Buizer had described. This is  
supported, it says, by based on the frequency with which Lewis sold copper to the  
recycler. The Employer submits that regardless of the amount taken, Buizer was  
aware of the scheme and said nothing to the Employer. The Employer argues that  
Buizer testified that in the last couple of years he had not seen any money, that he  
did not ask about the scheme and he was not looking and did not care. The Employer  
submits in part that Buizer “viewed honesty, a fundamental aspect of the  
employment relationship, with complete apathy. As such, the City submits Mr. Buizer  
is properly dismissed for cause.”  
320 The Employer argues that although unnecessary to support dismissal, it also relies  
on Buizer’s misconduct in taking a decommissioned fire hydrant to give to his sister.  
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Andrew McBoyle  
321 The Employer points to McBoyle’s admission in direct-examination that he cut up  
and bagged copper on a regular basis—whenever he worked in the Water Crew—  
knowing that the copper was to be taken to a recycler for money and he received  
proceeds from the copper scheme on several occasions.  
322 The Employer also points to evidence that McBoyle helped Lewis to conceal bags  
of copper to facilitate its subsequent transfer to a recycler. The Employer submits  
that McBoyle participated in the scheme despite having been enrolled in a  
Leadership Program that included instruction on ethics and he did not report the  
matter as he did not want to “rock the boat.” The Employer argues that this evidence  
demonstrates McBoyle was an active participant in the copper scheme.  
323 The Employer further contends that McBoyle was not forthcoming with the Employer  
when questioned on June 27 and July 5, 2018. It argues that McBoyle did not  
disclose the details of his participation until he was directly confronted with the fact  
the City had surveillance evidence of his activity at the Chester dump. The Employer  
adds that McBoyle only admitted to helping Buizer load a fire hydrant when he was  
confronted with that allegation. The Employer says it is unlikely that McBoyle simply  
forgot these events when initially questioned. The Employer argues in part:  
The City submits that the evidence establishes that Mr. McBoyle had  
participated in the copper scheme for a lengthy period of time, in fact,  
every day he worked with copper on the Water Crew, and had  
received money on multiple occasions. Mr. McBoyle confessed to  
his involvement in the copper scheme only after being caught, and  
even then, he was not forthcoming about his level of involvement.  
He [McBoyle] initially denied assisting in the transfer of copper from  
the Water Van and then claimed he had not done so for quite some  
time, when the video surveillance showed he had assisted Mr. Lewis  
the prior month. He also falsely claimed not to have assisted anyone  
in taking fire hydrants. He only admitted to this when he was  
presented evidence that in fact he had helped Mr. Buizer take a  
hydrant the prior month.  
Mr. McBoyle repeatedly violated his duty of loyalty, honesty and  
good faith to his employer and the City had just cause to terminate  
his employment.  
324 Finally, the Employer argues that McBoyle pointed to Steele, MacKenzie, Plasman  
and Baranec as individuals he had worked with on the Water Crew and confirmed  
in cross-examination that it stood to reason that if anyone else beyond he and Lewis  
were bagging copper, it would be those individuals.  
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Coral Steele  
325 The Employer’s dismissal letter contends that Steele was dismissed for just cause  
on the following grounds: 1) that she was engaged in the theft of scrap copper and  
received proceeds from the sale of scrap copper; 2) that she denied receiving the  
proceeds from the sale of scrap copper at her interviews; and 3) that she was  
dishonest when denying any knowledge of the copper scheme and advancing safety  
as a rationale for cutting and bagging copper.  
326 The Employer contends that Steele was dismissed for just cause on two grounds:  
1) that she knew about the copper scheme, failed to do anything in her role as  
Foreman 2 to stop it and was dishonest about her knowledge of the scheme when  
interviewed; and 2) that Steele repeatedly attempted to mislead the City during her  
two interviews on June 27 and one interview on July 5, advancing an explanation on  
six occasions that scrap copper was cut for safety reasons, when she knowingly had  
no basis to make that claim.  
327 The Employer submits that Steele was not a credible witness. It argues that she was  
evasive in denying that she was coached or whether anyone had told her to use the  
words that she had been on a “roller coaster” and was not in the “greatest state of  
mind” at the outset of her July 5 interview—those statements coincided with  
statements made by Baranec at the outset of his July 5 interview. The Employer  
submits that it is impossible that Baranec and Steele independently came up with  
these two statements at the outset of the interview.  
328 The Employer submits Steele was dishonest about having placed scrap copper in  
the recycling bin in the Public Works Yard, as evidenced by the fact that there was  
no record of the City receiving revenue from the recycling of copper from at least  
2012 onward, as well as the evidence of Duran, Buizer and McBoyle that scrap  
copper was not put in the recycling bin. Further, Steele was reluctant to concede  
that her intimate familiarity with jobs performed by the Water Crew resulted from the  
fact she had performed them herself. The City also submits that Steele’s portrayal  
of Exhibit 5 as a “carefully crafted story” reveals the extent to which she was  
prepared to lie under oath in order to avoid unfavourable answers she had given at  
the June 27 and July 5 interviews. The Employer observes that Steele’s evidence  
concerning the reliability of Exhibit 5 stands in sharp contrast to that of the other  
Grievors each of whom, apart from MacKenzie (on one point) accepted the general  
accuracy and trustworthiness of that account.  
329 The Employer argues Steele’s testimony that she was unaware of the copper  
scheme and that copper was simply moved out of the way for safety reasons is not  
credible or reliable. It further submits that Steele’s recollection of what she said  
during her interviews on June 27 and July 5 is not credible or reliable. In particular,  
the Employer submits that Steele was wrong in her recollection that she did not say  
that copper was shoved in a bag and that the introductory round of questions had  
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been repeated at the outset of the June 27 and the July 5 interviews. Further, the  
Employer submits Steele was wrong in her recollection that the Employer told her  
that Lewis had admitted to the scheme on June 27. It submits that was not put to  
her until she was questioned on July 5.  
330 The Employer submits that Steele had in fact spent considerable time working with  
the Water Crew throughout her career, particularly after having been promoted to  
Water Operator on May 31, 2011 and until she was promoted to Foreman 2 in  
October 2013. The Employer argues that even if Steele is correct about the amount  
of time that she took off the Water Crew, while acting as a Water Operator she still  
spent the majority of that 29 months working on the Water Crew. The Employer  
submits that Steele exaggerated her absences while working in the Foreman 2  
position. It points to City records which indicate that from December 19, 2015 to the  
date of her dismissal, Steele had logged 77.9% of her hours as a Foreman 2. The  
remainder was spent working as a Foreman 3. The Employer adds that Steele had  
been reminded not to micro-manage her crews so she must have been regularly  
present at jobsites.  
331 The Employer relies on the evidence of other witnesses to the effect that the copper  
scheme was well known, including accounts provided by Gary Goff and Travis  
Buizer when interviewed on June 27. The Employer submits that Goff’s and Buizer’s  
subsequent attempt to step away from those initial accounts are not credible. The  
Employer adds that McBoyle testified that he assumed Steele was aware of the  
copper scheme as a matter of common sense. Further, Goff was aware yet he filled  
the Foreman 3 office-based role. The Employer also argues that it is not credible  
that Steele would not have seen bags of copper stored in the Water Van in the  
course of her work at the jobsite—no one cited that rationale when initially  
questioned. The Employer submits that on the whole of the evidence it is likely that  
Steele was aware of the scheme.  
332 The Employer argues that it is significant that Steele repeatedly gave evidence in  
cross-examination that she never instructed employees to put scrap copper in the  
recycling bin or to cut it or bend it for safety reasons. That was despite her attention  
to detail in managing City resources and close oversight of safety issues. The  
Employer adds that the sensible thing to do with scrap copper would have been to  
leave it in the ground or to put it to the side and deposit it in the recycling bin at the  
Public Works Yard. Instead it was cut into pieces either at the jobsite or at the Public  
Works Yard after shift—which was not disputed. The Employer submits that Kidd’s  
observation of copper on the floor of the Water Van during spot checks is  
inconsistent with a practice of keeping the Water Van floor free from tripping  
hazards. The Employer argues that Steele’s contention to this effect was false and  
misleading. The Employer argues that even if Steele did not have direct knowledge  
of the copper scheme that her deception during the interviews to the effect that  
copper was cut or otherwise handled for safety reasons was misleading and  
comprised just cause for dismissal.  
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Kim MacKenzie  
333 The Employer submits that Duran’s recollection of how MacKenzie described the  
copper scheme is consistent with the evidence given by McBoyle, Plasman and  
Buizer about elements of the scheme. The Employer submits that MacKenzie’s  
denial of that conversation with Duran is either a failure in recollection or dishonesty.  
Further, MacKenzie and McBoyle did not refute Duran’s testimony that they had  
struggled to remove copper from the ground and had said inculpatory words to the  
effect, “Man that was hard but it sure was worth it.”  
334 The Employer submits that MacKenzie was a regular member of the Water Crew  
and, consistent with the evidence of Duran, McBoyle, Plasman and Buizer all  
members of the Water Crew received money from the sale of copper. Accordingly,  
the Employer argues that MacKenzie’s evidence that she never received money is  
not credible. The Employer says that MacKenzie’s testimony that she simply cut  
copper solely at her own initiative because it made sense or to avoid a safety threat  
does not accord with the whole of the evidence. It adds that MacKenzie likely  
colluded with Steele to develop a safety justification for her conduct. Given  
McBoyle’s evidence that he was able to piece together the copper scheme by simple  
observation, the Employer argues it is unlikely MacKenzie was completely ignorant  
of the scheme. The Employer submits that at best MacKenzie knew about the copper  
scheme and was an active participant by cutting and bagging it, knowing that her  
efforts facilitated a fraud on the City.  
335 The Employer submits that when asked on June 27 who knew about the copper  
scheme, MacKenzie answered, “it was common knowledge” and later, “everyone  
knows about the copper scheme,” and when presented with an organization chart  
and asked to disclose who knows about the copper scheme, MacKenzie said words  
to the effect, “it would be easier for me to say who doesn’t know.” The Employer  
contends that MacKenzie’s subsequent denial was contradicted by the evidence of  
Madigan, Maki, Savage, and representations that MacKenzie herself made to  
Service Canada. The Employer submits, in part:  
281. On August 2, 2018, Ms. MacKenzie had a telephone  
conversation with an employment insurance official who was  
reviewing her claim. The details of that conversation were recorded.  
The official recorded the following:  
The claimant was given a chart and was asked to  
provide the names of all the people involved in the  
copper pipe theft.  
336 The Employer adds that in MacKenzie’s appeal for employment insurance she  
acknowledged that she had cut up and bagged copper, “as she was directed to do  
so by her superiors.” The Employer submits that it is very unlikely MacKenzie was  
unaware of that assertion advanced by counsel on her behalf.  
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337 The Employer submits that MacKenzie admits to taking a fire hydrant from a  
contractor which violated the Employer’s Conflict of Interest Policy and Use of  
Municipal Equipment Policy. The Employer rejects MacKenzie’s claim that she  
believed the hydrant was the contractor’s property to give away. It argues the City’s  
expectation is that old fire hydrants are placed in recycling for scrap value or kept  
for used parts. The Employer adds that MacKenzie arranged to move the hydrant to  
her vehicle at a more discrete location because she knew what she was doing was  
wrong, consistent with her understanding that the City took a very black and white  
view of the use of City equipment.  
Ian Plasman  
338 The Employer submits that Plasman gave cause for dismissal by twice accepting  
money from the copper scheme, and choosing to place his loyalty with the  
perpetrators he considered friends as opposed to his Employer. The Employer  
submits it is likely that Plasman lied when he said during his June 27 interviews that  
he only received money once and had not recently cut or bagged copper. The  
Employer argues it is unlikely that Plasman would not have immediately recalled  
Adamic (a former employee) giving him money, particularly given the long period of  
time he had between June 27 and July 5 interviews to think about occasions he  
received money from someone other than Lewis. The Employer submits that Duran’s  
recollection of speaking to Plasman and McBoyle about the scheme should be  
preferred over Plasman’s denial.  
Keifer Baranec  
339 The Employer relies on Duran’s evidence that he had observed Baranec cut and  
bag copper and that Baranec had admitted to the elements of the copper scheme in  
conversation. It further submits Duran’s evidence that Baranec’s comment, “if you  
throw it away Harold will get upset,” (when Duran suggested throwing a piece of  
scrap copper into the recycling bin) demonstrated Baranec’s knowledge of the  
copper scheme. The Employer adds that Duran’s evidence stands uncontradicted  
on this point.  
340 The Employer submits that Baranec was not a credible witness. It contends that  
Baranec’s opening statement at his July 5 interview to the effect that he was not in  
the “greatest frame of mind” and had been “on a roller coaster” coincided with  
statements made by Coral Steele which in the Employer’s submission is an  
impossible coincidence. Yet Baranec testified he did not discuss that matter with  
anyone.  
341 The Employer adds that Baranec falsely claimed that copper was placed into a  
basket and then into a recycling bin when the evidence shows the City received no  
proceeds from recycled scrap copper. Moreover, Baranec’s claimed ignorance of  
the copper scheme does not accord with evidence given by Duran, McBoyle,  
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Plasman and Buizer that proceeds from the scheme were distributed to members of  
the Water Crew. The Employer points to evidence that Baranec worked on the Water  
Crew roughly 30 times during his career and a dozen times between December 2017  
and February 2018, during which Lewis sold copper to the recycler on four  
occasions. The Employer submits that it is simply not credible in the circumstances  
that Baranec was either unaware of the scheme in the course of his work or had not  
received money in late 2017 in early 2018, particularly given that Duran had been  
given money early in his tenure.  
Marco Stevens  
342 The Employer argues that its treatment of Stevens was fair and it investigated the  
matter in an objective manner and made its decision based on the available  
evidence. The City submits that Duran did not name Stevens as an admitted  
participant in the copper scheme or that he knew Stevens received money. The  
Employer submits that Traviss’ notes of Duran’s initial disclosure on February 21  
was to the effect that there was copper in the Sewer Bay but that Stevens did not  
want to remove it. The note in question reads as follows:  
Q 4. Has anyone else received copper money? How do you  
know? Have you seen it being passed out? Do you know how  
much is typically passed out?  
A.  
Not aware of anyone else, not that I know of. In the Sewer  
Bay. There is lots of scrap copper. Asked Marco. Now  
knowing what was happening on water side. He said,  
previously we used to take it (implied to scrap dealer) have  
been too busy so it’s just piling up.  
343 The Employer adds that during its investigation, Stevens primarily worked on the  
Sewer Crew and had little exposure to copper. Further, the spot checks did not  
disclose an accumulation or removal of copper in the Sewer Bay. The Employer  
submits that Stevens was not initially selected for questioning on the preceding  
basis. The first time Stevens was implicated was when Buizer pointed to him on the  
organizational chart. At that point, Stevens was questioned and denied knowledge  
of or any participation in the copper scheme and no other evidence emerged in the  
employee interviews to implicate him. The Employer submits that despite any  
suspicions to the contrary, there was an absence of evidence implicating Stevens in  
the copper scheme.  
Evidence Obtained at the Interviews  
344 The Employer argues that it investigated Duran’s disclosure professionally and with  
an open mind. It submits that any infirmities should go to the weight attributed to the  
interview statements as opposed their admissibility. The Employer submits in part:  
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…Evidence from employee interviews is admissible. The evidence  
is also reliable if the employee was provided with an opportunity to  
respond to allegations. A fair investigation does not require an  
employer to treat an employee with kid-gloves or engage in a  
completely passive interview. Even if an employer might have  
displayed more objectivity during an interview, or otherwise  
improved upon the interview, the evidence is admissible. The  
voluntariness of the evidence may go to its weight or reliability, but  
not its admissibility. In addition, union representation rights must be  
specifically negotiated, including the right to a representative of the  
grievor’s choice.  
345 The Employer submits that it did not violate the Grievors’ right to Union  
representation at the interviews. Article 7.6(b) of the collective agreement reads as  
follows:  
7.6 Representative of Canadian Union of Public Employees  
(b) Where a supervisor intends to interview an employee for  
disciplinary purposes, the supervisor shall so notify the Union in  
advance of the purpose of the interview in order that a shop steward  
or other Union representative may be present at the interview. In a  
disciplinary interview, no employee shall be required to answer  
charges without a Union representative present.  
346 The Employer says that it provided the notice required under Article 7.6 to Union  
First Vice-President Les Nerdahl before the interviews so that Shop Stewards could  
be present at the interview. The Employer submits that it met its obligation by  
advising Nerdahl that it was investigating serious allegations which could result in  
discipline, and there was no requirement to provide particulars of the allegations  
before the interviews began. The Employer submits that any failure to properly  
instruct the Shop Stewards lies at the feet of the Union. The Employer adds that it  
has no right to scrutinize the Union’s choice of Shop Steward and it is entitled to  
assume that Stewards selected by the Union are adequately trained and competent.  
347 Further, the Employer submits that each of the Grievors were present at the Training  
Room to hear Kidd read a prepared script advising that the Employer was  
investigating serious allegations with potential disciplinary outcomes and that Union  
representation would be provided. Employees were not permitted to use their cell  
phones save for emergencies to preserve the integrity of the investigation. However,  
employees were told they could use the phone at reception. The Employer adds that  
no one asked Gross (who was supervising the Training Room) if they could make a  
phone call and that Buizer was permitted to make a phone call when he asked.  
Employees were never told to refrain from speaking to one another at the Training  
Room or at the Administration Room.  
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348 The Employer submits that it was reasonable for it to organize the interviews on one  
business day and in a manner which minimized the potential that employees would  
speak with one another so as to unintentionally contaminate their own independent  
recollection or to collude. Employees were directed to wait after the interviews at the  
Administration Room as it was the only room available in the public works  
administration area. The purpose of directing employees to that room was to have  
them available for follow-up questions. The Employer contends that evidence from  
some of the Grievors to the effect the Administration Room was unduly  
uncomfortable was exaggerated and inconsistent with their comportment as  
recorded by Hannah Park.  
349 The Employer objects to evidence given by Buizer, McBoyle and Plasman to the  
effect that Gross observed them while they went to the washroom. The Employer  
says that despite the fact Gross gave evidence in reply on this point, the Grievors’  
testimony should be given little weight, as these allegations were not put to Gross  
when he testified.  
350 The Employer submits that it asked fair, open-ended questions at the interview of  
each Grievor, and that the form and content of the questioning does not impugn the  
voluntariness of the Grievors’ responses. In any event, the Employer says it did not  
place significant weight on the responses to the opening salvo of questions posed  
at each interview. It adds that such a line of questioning informed the Grievors what  
the interview was about so there was no reasonable basis to assert confusion.  
351 Moreover, the Employer argues that the Grievors had the benefit of attending the  
July 5 interview. It asserts the Grievors’ answers did not change in any material way  
(apart from Steele), even with the benefit of about a week to reflect and a chance to  
obtain advice from a National Representative.  
Privacy  
352 The Employer submits that it was reasonable for it to undertake surveillance in the  
circumstances and the manner of surveillance was also reasonable. The Employer  
submits that it had received a credible report from Duran which was supported by  
subsequent spot checks showing the Water Crew had engaged in theft. Surveillance  
was ordered only on April 26, 2018, when the compartment was again full of copper  
and the Employer expected it would be removed. The Employer submits that  
although Lewis told Duran not to inform Steele, Kidd reasonably believed that Duran  
was a new employee and may not be aware of her level of involvement, given her  
status as Foreman 2 of the Water Crew. Between April 28 and May 3, the focus of  
the investigation was Lewis not Steele. Surveillance of Steele was picked up on  
May 4, 2018 as she was observed entering the Public Works Yard with her personal  
vehicle and later used a City vehicle for personal errands. There was no request for  
a search of social media posts. That happened at the instance of the investigator to  
create a profile and to identify possible associates. Moreover, Buizer was watched  
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only after the City had become aware that he had taken a fire hydrant. The City  
submits in part:  
484. In conclusion, the City’s surveillance was reasonable. Most of  
the work by the Water Crew is largely unsupervised and involves  
duties outside the workplace. The decision to conduct video  
surveillance only occurred after other less intrusive methods were  
used. The video surveillance was carried out in public places. Even  
if certain photos or video surveillance capture activities at the front  
and side of a house or car; none of these places have a reasonable  
expectation of privacy. Finally, the investigation was not overly  
broad.  
Manner of Dismissal  
353 The Employer submits the facts do not support a claim for damages regarding the  
manner of dismissal or its media statements. The Employer observes that it was the  
Union that first communicated the circumstances of the investigation and then  
exposed the Grievors in its July 4, 2018 notice to the bargaining unit. The Employer  
argues that its July 6 email was in response to the Union’s July 4 notice, particularly  
the Union’s claim that the alleged theft was not serious, that a simple crew talk would  
have sufficed, that the Employer does not care for its employees and that the  
Employer ambushed the Union’s Executive and the Grievors with a planned attack.  
The Employer points to Traviss’ testimony to the effect that the Employer’s email  
was sent to calm rumours circulating that more people would be interviewed and  
that everyone had already been fired.  
354 The Employer submits that it said nothing to the media that was intentionally  
inaccurate or disparaging of the Grievors. The Employer adds that its estimate of a  
$75,000 of loss was a reasonable estimate based on Buizer’s admissions at his June  
27 interview as well as the amount Lewis collected from early 2015 until the date of  
his dismissal. Moreover, the Employer points out that Leeburn did not individually  
target employees and stated there were different reasons for termination including  
a “lack of full disclosure and cooperation during the investigation.”  
Damages in Lieu of Reinstatement  
355 The Employer submits that if it did not establish just cause for dismissal  
reinstatement is not an appropriate remedy for any of the Grievors given their  
individual breach of trust, and lack of forthrightness during the investigation. Rather,  
the Employer says that in such circumstances the remedy ought to be damages in  
lieu of reinstatement.  
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B. THE UNION  
356 The Union’s main contentions are as follows:  
1. The Employer failed to establish just cause for any discipline  
with respect to MacKenzie, Baranec and Steele.  
2. The Employer established just cause for discipline with  
respect to Plasman, McBoyle and Buizer but dismissal was  
an excessive response to their individual circumstances.  
3. The Employer disregarded the Grievors’ right to Union  
representation.  
4. The Employer acted in bad faith in its manner of dismissal by  
a) providing information to the media that was untrue, for no  
proper purpose; and b) interfering with MacKenzie’s access  
to employment insurance benefits.  
5. The Employer violated employee privacy in its surveillance  
of Buizer and Steele as well as its intrusion into her social  
media account.  
Credibility  
357 The Union submits the testimony of Traviss and Duran is not credible and that where  
it conflicts with the evidence of other witnesses or the documentary record, their  
evidence should be rejected.  
Steve Traviss  
358 The Union submits that Traviss was non-responsive to questions put to him in cross-  
examination, even on non-controversial matters. The Union submits Traviss  
reluctantly acknowledged that the interviewers avoided offering exculpatory  
explanations to the Grievors; that the City had photos of the Grievors to provide to  
investigators; that 7:00 AM to 2:00 PM is a period of seven hours, or the content of  
what Marco Stevens reportedly said to Nick Duran about copper at the Sewer Bay.  
Further, the Union submits that Traviss could not bring himself to acknowledge that  
Stevens’ denial of any knowledge of the copper scheme on June 27, was  
inconsistent with Duran’s report. The Union argues the last point is of importance  
because the Employer did not ask Stevens to explain an apparent discrepancy  
between Duran’s reported conversation with Stevens and Stevens’ professed  
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ignorance of the scheme. The Union also observes the Employer only addressed  
Buizer’s report that Stevens had received money when questioning Stevens.  
359 The Union argues Traviss had a propensity to slant his testimony in favour of the  
Employer. Therefore, his account is unreliable and should be disregarded wherever  
it conflicts with other evidence.  
Nick Duran  
360 The Union submits that Duran’s evidence is unreliable in the following respects. It  
says that Duran exaggerated his experience working on water services and relied  
on that to suggest that others on the Water Crew were engaged in suspicious or  
improper practices regarding the use of copper. Further, the Union says Duran was  
evasive in cross-examination when asked if he had worked with Baranec about five  
times, whether he worked with Baranec more or less often with others, whether he  
enjoyed working with Kim MacKenzie and when asked to describe his relationship  
with Steele.  
361 The Union adds that Duran’s memory was unreliable. It says that Duran forgot things  
that happened that ought to have been memorable, such as the fact that he met  
Kidd and Bell at a Starbucks in Coquitlam on February 21, 2018. Further, Duran was  
unable to remember details about that conversation such as whether it took place  
right after he started employment, or in February when he first disclosed the scheme  
to the Employer. The Union submits that Duran’s memory of dates and details further  
deteriorated when he learned part-way through his evidence that the parties would  
put timecards into evidence. In addition, the Union points to Duran’s inability to recall  
information about the workplace complaint he had filed against Steele, testifying that  
he had “vaguely remembered” the fact that he filed the complaint without any  
recollection of what he complained about or the general subject matter. The Union  
submits that Duran lied under oath regarding his recollection of that complaint.  
362 The Union submits that Duran’s evidence concerning his alleged conversations with  
MacKenzie and Baranec is insufficient to establish that either engaged in  
misconduct.  
363 The Union argues that Duran’s account of his conversation with MacKenzie is not  
reliable. It observes that Duran had no idea when that conversation occurred and  
was unable to place the conversation in relation to other events; whether it was his  
first day on the job or the very day before he reported receiving $50.00 from Lewis.  
The Union further notes that Duran was unable to establish the location of the Water  
Van, what work was being done, whether they were working on the same crew, what  
time of day it was, or whether anyone else was around. The Union says it is  
suspicious that Duran is incapable of recalling these elements of the surrounding  
context.  
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364 The Union argues that Duran’s account of inculpatory conversations with his co-  
workers varied with each retelling. For example, the Union submits that Duran  
testified in direct-examination that he had one conversation with MacKenzie where  
she was cutting up copper and he said, “we all get a certain percentage of the copper  
proceeds” and she replied, “Yup but we don’t talk about that.” On June 20, 2018  
Duran described conversations with “basically everyone on the Water Crew” where  
it was first said “oh we just hold onto it” and then, “we don’t talk about what happens  
with the copper amongst ourselves but this is what we do with it…they told me they  
cut it up, accumulate it, bag it and then Harold takes it in and cashes it.” The Union  
submits that on July 4, 2018, Duran said, “I asked them individually” but also said  
“never asked each person one on one.” The Union observes that Duran disputed  
the accuracy of the notes upon which those statements were attributed to him but  
argues that given his poor recollection, there is no reason to prefer his recollection  
at the hearing over the notes taken at the time.  
365 The Union also submits that Duran’s testimony implicating Baranec cannot be relied  
upon as he had no idea when the conversation occurred. Further, the Union submits  
that Duran’s account varied. It says that in his direct-examination, Duran described  
one conversation with Baranec where he asked about the copper and according to  
Duran, Baranec blurted out the entire scheme. The Union says it is not credible that  
a new co-worker with no prompting and no real reason to trust Duran would provide  
a detailed confession of his participation in serious misconduct. The Union also  
submits that this account differs from Duran’s testimony in cross-examination where  
Duran testified that Baranec returned a blank stare when first questioned about  
copper, the second time Baranec said “we hold onto it.” and the third time Baranec  
disclosed the whole truth. The Union adds that on June 20, 2018, Duran only  
described two of these interactions. On July 4, 2018, he provided conflicting  
information to the effect that he “asked them individually” and that he “never asked  
each person one on one.” The Union acknowledges that memory is fallible but  
argues that given Duran’s demonstrated willingness to lie under oath, when his  
memory varies depending on whether the information he is trying to recall will  
implicate his co-workers, and where the entire case against MacKenzie and Baranec  
lies in his statement without any corroboration, the fallibility of Duran’s testimony is  
fatal to the Employer’s case.  
366 The Union argues the fact that Duran consistently conveyed to the Employer the  
same facts about the scheme and that those facts were true does not mean that his  
account is credible in every respect. It adds that prior consistent statements are not  
an indicator of credibility, except to rebut an allegation of recent fabrication which is  
not alleged in this case: R v. DC, 2019 O.N.C.A. 442, at para. 19. The Union submits  
in part:  
55. The Employer also says that the fact that Mr. Duran said that the  
grievors said “we don’t talk about it” and then some of the grievors  
said, in their interrogations, “we don’t talk about it” means that his  
testimony is all true.  
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56. It is not an “impossible coincidence” that Mr. Duran would say  
this and then the others who were aware of the scheme would also  
say it. They all said it because it was true; it was how Harry ran the  
scheme. Everyone who knew about the scheme and how it operated  
– Nick, Ian, Andrew, and Travis – all said that the workers don’t talk  
about it because they were each conveying true facts about the  
scheme. The Union has never disputed that Mr. Duran was right  
about the basic workings of the copper scheme. The fact he was  
right about those facts doesn’t mean he was telling the truth about  
Kim or Keifer’s involvement.  
57. There is no line to draw from Nick Duran, Andrew McBoyle, and  
Ian Plasman all saying that they don’t talk about the copper scheme  
to Nick Duran telling the truth about his accusations of Kim  
MacKenzie and Keifer Baranec. Mr. Duran’s allegations against  
these grievors are untrue and must be rejected.  
Unfairness of the Investigation  
367 The Union relies on the general proposition that employers are obliged to act  
reasonably in imposing discipline and in carrying out investigations: St. Paul’s  
Hospital and HEU, [1999] B.C.C.A.A.A. No. 121 (“St. Paul’s”), paras 83-85; Vernon  
v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133, paras. 277-279.  
368 The Union submits that the Employer’s investigation was flawed and biased in three  
respects. First, the Union submits that the Employer’s investigation was aimed at  
proving the guilt of those it had pre-selected as guilty. In this respect, the Union  
asserts the Employer went suspiciously easy on Stevens given that Duran had  
indicated that Stevens was aware of the copper scheme and that Stevens kept scrap  
copper in the Sewer Bay, contrary to its policy that scrap copper goes into the metal  
recycling bin. The Union observes that the Employer had placed Steele under  
surveillance on a much thinner pretext. The Union adds that Traviss testified that  
when Stevens told Duran he would normally take copper to the recycler but was to  
too busy, Stevens meant that he would take the copper to a recycler and reimburse  
the City. The Union argues that claim is not credible. The Union adds that Buizer  
marked an X next to Stevens’ name and that the Employer was unjustifiably selective  
in believing Buizer’s identification of those who had received money from the copper  
scheme.  
369 Second, the Union submits the Employer targeted Steele as a prime suspect without  
any basis to do so. It points to questions that it says pushed the Grievors to disclose  
evidence implicating Steele, some of whom did so on the assumption Steele must  
have known.  
370 Third, the Union submits that the Employer failed to put exculpatory information in  
its possession to the Grievors. For example, the Union says the Employer was aware  
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that the hydrants MacKenzie and Buizer had taken home were not City property but  
pursued the interrogations as if they were. Further, the Employer did not put to  
Steele that Lewis told Duran not to tell Steele about the scheme. The Union submits  
that had the Employer done so, it would have learned that Steele and Lewis did not  
get along—to the point that Goff had to step in to resolve the conflict. The Union  
submits that as a result, the Employer’s conclusion that Steele must be aware of the  
scheme was based on sheer speculation.  
Breach of Right to Union Representation  
371 The Union submits that an employer must tell an employee that the purpose of a  
meeting is for the investigation of a possible disciplinary matter in order to meet its  
obligation to provide union representation: Alberta v. AUPE, 2009 ABQB 208, and  
upheld 2010 ABCA 216 (“Alberta”); and CUPE Local 1603 v. Rocumaura Inc., 2016  
13810 (NBLA) (“Rocumaura”) citing Re: Canadian National Railway Co. and  
B.L.E., 35 L.A.C. (4th) 88.  
372 The Union submits that in the present case, the Grievors and the Union  
representatives were not given appropriate notice and were thus denied an  
opportunity to prepare effective Union representation. It points to the prepared  
statement by Traviss where it was said that the employees were gathered to talk  
about “serious allegations about staff conduct with potential disciplinary outcomes  
for a number of staff.” The Union submits that McBoyle was not even told that the  
meeting would be disciplinary before it began. The Union submits in part:  
83. The purpose of notice is not just so that employees have some  
shred of a clue what is about to happen when they walk into the  
room; it is so that they can prepare. The grievors in this case could  
not prepare. They could not consult with their Union. They could not  
do anything other than sit in the training room and worry.  
84. Mr. Traviss told the grievors they could not use their phones. He  
told them that if they had to take a personal emergency call or text,  
an exception could be made. He did not say that they could also  
make an exception if they wanted to speak to their union. He testified  
that if they had asked to make calls to their union, that would have  
been accommodated. That is simply not enough. The Employer  
made a point of actively restricting access to union representation. It  
is not enough for the Employer to say, well, if they’d pushed back  
against our attempt to breach their collective agreement rights, we  
would have relented.  
85. Notice given once the employees are already detained and cut  
off from communication with their Union is not effective notice.  
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86. Similarly, notice given to the Union after the employees have  
already been corralled in the training room was not effective notice.  
The collective agreement provides that not only is there a right to  
union representation, the Employer must specifically tell the union  
what the interview is about (Article 7.6b). The Union is entitled to the  
opportunity to prepare. In this case, the Employer told the Union  
about the interviews and their purpose only after the grievors were  
all in the training room, incommunicado. The Union had no  
opportunity to prepare, nullifying the purpose of the provision.  
373 The Union adds that the right to union representation takes on more importance  
where an individual may invoke their limited right to refuse to answer questions  
leading to potential criminal charges: St. Paul’s, paras. 69-71.  
374 The Union submits that the fact the Union stewards did not stop the interview  
process and demand time alone with the Grievors simply demonstrates that the  
Employer got away with breaches of the Collective Agreement. The Union contends  
that it would be unreasonable to expect the Union to halt the interview process given  
that it had no lead time to get organized and that the Union President and Chief  
Shop Steward were absent. It submits that there is no obligation on employees to  
aggressively assert their right to contact their union representative when detained in  
a room and told not to use their phones except in personal emergencies. Moreover,  
the Union argues the right of employees to Union representation is an essential  
component of the integrity of the investigation, not an obstacle to it.  
375 The Union submits that the only effective remedy in the circumstances is to set aside  
the discipline imposed, given that the grounds for discipline are based on disclosures  
made during the interviews and where the Grievors had no opportunity to be  
instructed by the Union as to their right against self-incrimination. The Union adds  
that the fact the Grievors had recourse to effective Union representation before their  
second interview on July 5 does not remedy the earlier breach. The Union submits  
that at that point, any Grievor that had answered dishonestly on June 27 would only  
cast further suspicion on themselves had they refused to be interviewed on July 5,  
2018.  
Bad Faith in Manner of Dismissal  
376 The Union submits that the Employer acted in bad faith and caused the Grievors  
unnecessary mental distress by gratuitously providing untrue information to the  
media about the dismissals. For example, the Union points to the fact that Leeburn  
identified the Grievors’ length of employment which could be used to deduce  
Steele’s identity. The Union adds that the estimated loss of more than $75,000 was  
made up. Buizer had reported that he received $5,000-$10,000 in total. The  
Employer took the figure of $5,000 and multiplied by 17 years which produces an  
estimate of $85,000. The Union contends there is no reasonable explanation for why  
Leeburn estimated the loss at $75,000.  
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377 The Union complains that Leeburn told the reporter for no good reason that the  
copper scheme was an “incredibly coordinated, deceptive, covert, long-standing  
plan” and that he planned to report the allegations to the police before he had in fact  
done so, and before the grievance procedure had run its course.  
378 The Union submits that an award of damages is an appropriate remedy given the  
probable impact of these disclosures to the Grievors’ subsequent job searches and  
consequent mental distress: Greater Toronto Airports Authority v. PSAC Local 0004,  
2011 ONSC 487, paras. 106-110.  
The Grievors’ Denials Were Not Cause for Discipline  
379 The Union attacks the Employer’s contention that the Grievors were not forthcoming  
during their interviews. It submits that the Employer’s opening questions were so  
vague that employees were confused about what was alleged. The opening  
questions are as follows:  
1.  
2.  
Do you understand that theft of City property is a serious offence?  
Do you understand that theft of City property can be a criminal  
offence?  
3.  
4.  
5.  
6.  
Have you ever taken City property?  
Have you ever received money for the sale of City property?  
Have you ever observed this taking place?  
I want to remind you of the importance of being truthful through this  
process and let you know we have been investigating this for an  
extended period of time and we have significant evidence and reason  
to believe you have either observed or been involved.  
380 The Union submits that when the interrogators made it clear they were investigating  
the copper scheme, those who had participated, admitted to doing so, while those  
who did not, denied the allegations. The Union submits in part:  
The fact that those with something to confess did not make the  
confession in response to unfairly vague and open-ended questions,  
and only confessed when the conversation became more focused  
on copper specifically, does not mean they were dishonest.  
The Theory that Everyone Knew about the Scheme  
381 The Union also attacks the Employer’s contention that everyone knew about the  
copper scheme. The Union submits that if that premise is accepted, there were many  
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employees in the Utilities Department, including those who rotated on the Water  
Crew, who were not disciplined because of that knowledge. The Union argues these  
other employees were not dismissed because it is not true everyone was aware of  
the scheme or received money. The Union submits in part:  
134. We don’t know how Mr. Lewis decided who to include in the  
scheme and who to exclude. His choices seem odd – for instance,  
that he revealed the scheme to Mr. Duran – but he unarguably made  
these choices. He did not include Steve, Britton, Trent, Bryan, or  
Daryl, or, in the Employer’s view, even Marco. He didn’t testify and  
so we never learned how he made these decisions. But there can be  
no genuine assertion that “everyone knew” or that any particular  
employee must have received money from him.  
Individual Grievors  
382 The Union’s position with respect to each of the individual Grievors is as follows.  
Kim MacKenzie  
383 The Union submits that MacKenzie obtained a fire hydrant that was the property of  
a contractor. Accordingly, it was not wrong for Buizer to authorize her to take  
possession of the hydrant. Further, the Union argues that MacKenzie did not violate  
the Conflict of Interest Policy which only prohibits “gifts and other courtesies, which  
imply further obligation.” The Union argues that as a Trades 1, MacKenzie did not  
have the authority to decide whether contractors will be engaged and there was no  
implied obligation reasonably attached to her conduct. The Union adds that  
MacKenzie and Buizer acted openly to transfer the hydrant and Duran texted Bell to  
ask if it was okay to take the hydrant. That much is evinced by the fact Ian Wind was  
able to observe them transfer the hydrant from the Administration Building.  
Accordingly, these Grievors acted without knowledge of the Policy at issue. Finally,  
the Union asserts that the Employer has improperly altered the grounds for  
termination by invoking a City policy breach at a very late stage of the arbitration  
procedure.  
384 The Union submits that MacKenzie cut and bagged copper believing she acted as  
per expected practice. It adds that the only evidence implicating MacKenzie is  
Duran’s testimony regarding his conversations with MacKenzie about the subject.  
The Union submits that Duran’s account is not credible and that the timesheet  
evidence discloses that Duran and MacKenzie did not work together on the Water  
Crew on jobs involving copper in the material time period. The Union submits that  
these records overrepresented individuals’ participation on Water Crew jobs and  
some may have been recorded to be on the jobsite when simply flagging.  
385 The Union rejects the contention that MacKenzie’s credibility is undercut because  
she said she did not know why she cut and bagged copper when questioned on  
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June 27, 2018 but cited safety as a rationale for cutting copper when questioned on  
July 5, 2018. The Union submits there is no discrepancy because MacKenzie  
recalled answering two different questions on each of those dates. The first question  
was why she cut the copper without being directed to do so. The second question  
on July 5 was why the copper was cut up and put in bags. The Union submits the  
different answers are understandable in that context.  
386 The Union also rejects the Employer’s contention that MacKenzie told interrogators  
at her June 27 interview that everyone knew about the copper scheme. The Union  
submits that contention does not fit with the order of events recorded in the Shop  
Steward’s notes of that meeting. Nor is it logical that MacKenzie would say that  
everyone knew, and at the same interview deny knowledge of the scheme. The  
Union adds that if MacKenzie had conceded that everyone was aware of the copper  
scheme on June 27, the Employer would likely have reacted adversely when she  
denied knowledge when questioned on July 5, 2018. The Union submits that the  
July 5 interview proceeded as though she had never conceded knowing about the  
copper scheme because she did not make that admission on June 27.  
387 The Union submits the Service Canada representative’s notes of phone calls with  
MacKenzie and the Union’s submissions in support of MacKenzie’s appeal are  
unsworn statements. Therefore, the Employer cannot rely on these records to  
establish prior inconsistent statements to impugn MacKenzie’s credibility. The Union  
adds there is no reason to trust those conversations were accurately transcribed by  
the Service Canada representative.  
388 Finally, the Union submits the Employer acted in bad faith by asking Service Canada  
to reconsider its decision to award MacKenzie employment insurance benefits, in  
circumstances where the decision had no impact on the City and no steps were  
made to support its written submission or to attend the appeal hearing. The Union  
submits the Employer acted in bad faith by filing the appeal but not attending the  
hearing—had the Employer honestly believed it had an obligation to correct the  
record it would have attended the hearing to support its position. The Union submits  
that MacKenzie’s application was delayed several months and seeks damages on  
her behalf.  
Keifer Baranec  
389 The Union argues the Employer has failed to establish cause for discipline against  
Baranec.  
390 The Union submits that the only evidence directly tying Baranec’s involvement with  
the copper scheme is Nick Duran’s testimony which must be disregarded. The Union  
submits that Baranec and Duran only once worked on the Water Crew prior to  
Duran’s initial disclosure on February 13, 2018. Accordingly, Duran’s evidence  
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describing two or three conversations with Baranec about the copper scheme could  
not have happened.  
391 The Union submits that Baranec’s assertion that he did not cut up or bag scrap  
copper is credible despite the fact that other Grievors cut up and bagged copper. It  
cites the following points in support of that contention:  
There is no evidence that Lewis told anyone to cut and bag  
copper. MacKenzie and McBoyle testified that they observed  
Lewis doing this without asking for help. Accordingly it is  
probable Lewis did not enlist Baranec’s assistance.  
The evidence discloses that Lewis was engaged in a covert  
practice and that Lewis was in a position not to include  
everyone on the Water Crew in the scheme so decided not  
to do so.  
Kidd observed during his spot checks that the Water Van was  
in various states of organization. Sometimes there was  
copper lying around and sometimes there was not.  
Baranec rotated on and off the Water Crew so there was  
adequate opportunity for Lewis to carry out the scheme  
without involving him.  
MacKenzie observed others cutting and bagging scrap  
copper but did not work on any jobs involving copper with  
Baranec during the periods covered by Exhibit 10 and 11.  
392 The Union submits that it is credible that when Baranec was on the Water Crew that  
Lewis either did not cut up copper in front of him, or Lewis did so without Baranec  
noticing, or Baranec did notice and did not join in.  
393 The Union argues that Baranec’s introductory comment that he was on an  
“emotional roller coaster” at the July 5 interview may have been obtained in the  
course of discussions he had with other Grievors, however that does not mean that  
he was coached to say that.  
394 Finally, the Union submits that it was put to Baranec in direct-examination that Duran  
had alleged “… That he asked you and others what the crew does with copper. He  
said something to the effect that you told him that you cut it up, accumulate it, bagged  
it, and Harold takes it in and cashes it and gives everyone a cut. Did you ever have  
a conversation like this with Nick Duran?” Baranec testified he did not. The Union  
submits that his response is sufficient to rebut Duran’s allegation that Baranec had  
conveyed that it would upset Lewis if scrap copper on the ground was put in the  
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recycling bin. The Union emphasizes that the question put to him was whether he  
“ever had a conversation like that” with Duran.  
Coral Steele  
395 The Union submits the Employer dismissed Steele for theft but has now  
fundamentally altered the grounds for termination to knowing about theft but not  
reporting it. The Union submits that this is contrary to arbitral authority holding an  
employer fairly strictly to the grounds it has chosen to support discipline: USWA v.  
Aerocide Dispensers Ltd, [1965] O.L.A.A. No. 1 (“Aerocide”).  
396 The Employer also included among the grounds for termination the alleged failure  
to be forthcoming during her interviews and a lack of candour. The Union submits  
the Employer denied Steele access to meaningful Union representation during the  
interviews and therefore “cannot complain that she did not participate the way she  
should have.”  
397 The Union adds that Duran’s speculation that Steele must have known, although he  
never saw her do anything or heard of her having any involvement was merely the  
speculation of a short-term employee.  
398 The Union attacks the Employer’s premise that Steele must have known what others  
were doing with scrap copper due to her position as a Foreman 2 of the Water Crew.  
It argues as follows:  
Although Steele may have seen burlap sacks in the Water  
Van compartment, she would not necessarily have known  
what was in them, or viewed them as suspicious. And there  
may not have been bags of copper on the occasions she  
entered the Water Van as the Employer did not check its  
record of dates when the compartment had copper against  
its records of dates Steele had worked with the Water Crew.  
The fact that Steele was a hands-on Foreman is not  
probative as the scheme was perpetrated outside of the  
trench and during downtime in the back of the Water Van.  
The evidence is that Lewis did not get along with or trust  
Steele and told Duran not to inform Steele about the scheme  
as she would “throw him under the bus.”  
Lewis acted covertly and had many opportunities to cut bag  
and transfer copper away from Steele’s supervision given  
that she was taken away from Water Crew jobsites on a  
regular basis.  
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The fact Buizer observed bags of copper in the Water Van  
when he rotated onto the Water Crew between 2006 and  
2008 does not establish that Steele was aware of the practice  
as she was not the Water Operator at that time and also  
intermittently rotated onto the Water Crew. Buizer’s  
understanding that Steele worked in the Water Crew from  
2001 onwards is not reliable as he had no direct knowledge  
of her work history.  
Steele’s explanation that she cut up and put away scrap  
copper as a safety precaution is credible and logically  
coherent. The fact Steele instructed members of the Water  
Crew to keep the van clean without specifically directing  
them what to do with scrap copper is not evidence of  
dishonesty. This is consistent with Britton Ayers’ explanation  
that scrap copper was cut up and bagged for “easier  
handling.” The fact that of the six Grievors, only Steele and  
MacKenzie cited safety as a rationale is not evidence of guilt.  
It is simply consistent with the fact that Baranec was unaware  
that anyone cut copper and the remaining three Grievors  
were aware copper was cut to further the copper scheme.  
The fact others identified Steele as having known was based  
on mere speculation arrived at under pressure.  
If Steele was evasive in her testimony, it was on points that  
are not material to her knowledge of or participation in the  
copper scheme.  
The fact that records from the metal recycler indicate that no  
revenue was obtained from scrap copper is likely explained  
on the basis that the recycler does not provide a detailed  
breakdown of the types of metals it receives for recycling.  
399 The Union submits the Employer had no reasonable basis to conduct surveillance  
of Steele on her social media or in person, based on the factors set out in Vernon  
(City) and Vernon Professional Firefighters’ Association, IAFF Local 1517, [2018]  
B.C.C.A.A.A. No. 81 (Dorsey) (“Vernon Firefighters”). The Union submits that  
Steele’s entry into the Public Works Yard in her personal vehicle is simply consistent  
with the fact she had worked a standby shift. While the investigator may not have  
known this, the Employer did and should not have authorized the investigator to  
follow Steele on that basis. The Union says the Employer had a picture of Steele to  
establish her identity with the investigator. Accordingly, it was unnecessary for the  
investigator to check Steele’s social media accounts for that purpose. Further, the  
Employer had no information to suggest that Steele was involved in the copper  
scheme as Lewis had instructed Duran not to advise Steele about the matter.  
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400 The Union submits in the alternative, that if Steele is found to have committed some  
act of misconduct that dismissal is excessive in all the circumstances, particularly  
given the Employer’s violation of her right to Union representation and significant  
flaws in the investigation process. The Union adds that Steele is a 20-year employee  
with a good work record and that Steele was singled out in comparison to Stevens,  
against whom the Employer had more evidence of wrongdoing but whose denial  
was accepted without serious challenge at the interview.  
Ian Plasman  
401 The Union concedes that Plasman accepted money on two occasions, once from  
Lewis and another Adamic—the Union submits the evidence does not clearly  
establish in which order. The Union submits that Plasman told Lewis he did not want  
to be involved in the scheme and Lewis never gave him money again. The Union  
submits that dismissal is not automatically justified in every case and that dismissal  
is an excessive response given what it says are the relevant circumstances  
concerning Plasman: Black Diamond Cheese v, ECWU Local 555, (1989) 15  
C.L.A.S. 49 (Finley); and Foothills Provincial General Hospital v. AUPE, 1988  
Carswell Alta 813 (Koshman).  
402 The Union argues that although Plasman cut large and misshapen pieces of scrap  
copper to place them out of the way, he did not bag copper in furtherance of the  
scheme. The Union cites the additional mitigating factors:  
The copper scheme has gone on for many years, although it  
shifted from an open practice when the Construction Crew  
was involved to a secretive practice when Lewis was  
involved.  
Plasman was not present at the crew talks at which the  
Employer says it “drew a line in the sand” regarding this  
practice, albeit there was never a specific talk about copper  
until August 2018 after the Grievors had been fired. The  
Union submits Plasman knew that what he was doing was  
wrong but this is not a case where he had consciously  
chosen to defy the Employer’s instructions concerning the  
handling of scrap copper: Galco Food Products Ltd. v.  
Amalgamated Meat Cutters & Bucher Workmen of North  
America, Local P-1105, [1974] O.L.A.A. No. 5 (Beatty);  
Browning-Ferris Industries Ltd v. CUPE Local 1932, [1997]  
O.L.A.A. No. 693.  
The Union argues that Plasman was honest at the  
disciplinary interviews and in his testimony—even to the  
point of admitting to an additional act of misconduct that was  
not alleged.  
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Plasman admitted his misconduct, had no disciplinary  
record, suffered grave consequences because of termination  
and was faced with the dilemma of whether to stand up to  
Lewis who was his superior.  
Plasman’s right to Union representation had been violated.  
403 In sum, the Union submits that a lesser penalty would have had the desired effect of  
correcting Plasman’s behaviour, particularly in view of the Employer’s previous  
practice of providing clear instructions to employees to extinguish misconduct such  
as borrowing City equipment.  
Andrew McBoyle  
404 The Union concedes that McBoyle gave cause for discipline by helping Lewis to cut  
and bag scrap copper, receiving money from the proceeds, and assisting Lewis to  
transfer bags of scrap copper to Lewis’s personal vehicle.  
405 The Union submits that dismissal is an excessive response given the circumstances  
with respect to McBoyle including the following:  
The Employer jumped straight to discharge when in the past  
it had resorted to crew talks to reinforce expectations.  
Plasman was not present at the crew talks at which the  
Employer says it “drew a line in the sand” regarding this  
practice, albeit there was never a specific talk about copper  
until August 2018 after the Grievors had been fired.  
Accordingly, McBoyle acted on the mistaken belief the  
copper was garbage to be discarded, and was unaware that  
his actions deprived the Employer of revenue albeit he knew  
the taking of scrap copper was not allowed and acted  
surreptitiously: Metro Ontario Inc. v. Unifor Local 414, 2017  
15589 (ONLA).  
McBoyle was an 11-year employee with a clean disciplinary  
record. The Union submits his conduct was not premeditated  
as Lewis ran the scheme and McBoyle simply followed Lewis  
who was in charge. The Union adds that McBoyle was  
subjected to an unfair investigation and the violation of his  
right to Union representation.  
406 In sum, the Union submits that a lesser penalty would have had the desired effect of  
correcting McBoyle’s behaviour.  
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Travis Buizer  
407 The Union concedes that Buizer gave cause for discipline by participating in the  
copper scheme. Specifically, he personally cut up, collected, and transported scrap  
copper to metal recyclers and distributed the proceeds among his co-workers.  
408 The Union submits that while there is no direct evidence managers knew about the  
copper scheme, it was openly perpetrated until Chinna attempted to stop that sort of  
conduct. The Union submits that Buizer stopped at that time. It further argues that it  
is not open to the Employer to impose discipline years after the fact.  
409 The Union argues that there is no direct evidence that Buizer participated in the  
copper scheme when working on the McLean Road job in 2017. It says there is only  
circumstantial evidence that Adamic told Plasman words to the effect “we got money  
for the copper” when giving Plasman his cut. The Union submits that the use of the  
word “we” and a conversation recounted from memory several years after the fact is  
insufficient to establish that Buizer participated, particularly without corroborating  
evidence. Further, the use of the word “we” could have meant others who had  
worked on the job. The Union also argues there is no basis to conclude that Buizer  
must have recovered the same amount of money as Lewis when executing the  
scheme, given that the Construction Crew had less access to copper than the Water  
Crew.  
410 The Union submits in the alternative that dismissal is an excessive response in view  
of the following circumstances:  
The copper scheme had been executed openly for years and  
without management intervention until Chinna came on the  
scene.  
Buizer was a 17-year employee with no related discipline.  
The Employer did not apply any progressive discipline and  
singled out Buizer as compared to Stevens, against whom  
the Employer had as much, if not more evidence of  
wrongdoing but his denial was accepted without serious  
challenge.  
The Union argues that the Employer’s investigation was  
unfair and acted to deny Buizer’s right to Union  
representation.  
411 The Union advances the same arguments set out above with respect to MacKenzie  
regarding the alleged theft of the fire hydrant by Buizer. The Union argues the fire  
hydrant was the property of the contractor and the Employer’s Conflict of Interest  
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Policy does not apply to Buizer as he was not in a position to make decisions that  
benefit a contractor. The Union observes that Buizer drove with the fire hydrant in  
his work pickup for several days before he transferred it to his personal minivan at  
the employee parking lot. The Union submits that Buizer acted openly in handling  
the fire hydrant because he did not honestly believe that he did anything wrong.  
412 The Union submits the Employer was not justified in having Buizer and his wife  
surveilled by investigators. That is because the fire hydrant belonged to the  
contractor and was the contractor’s property to give away. Accordingly, the Employer  
had no interest in Buizer’s handling of the hydrant. The Union seeks a determination  
that the Employer violated Buizer’s privacy.  
C. EMPLOYER’S REPLY  
413 The Employer submits it is appropriate to consider the consistency of Duran’s  
account in response to the Union’s attack on him for making prior inconsistent  
statements. The Employer submits that Duran’s initial account that his colleagues  
told him “we don’t talk about it” is consistent with the use of the same phrase used  
by some Grievors when describing the copper scheme in response to interview  
questions.  
414 The Employer argues that the circumstances regarding Stevens’ handling of copper  
held in the Sewer Bay is distinguishable from that of the Water Crew, given that the  
scrap copper was left in open sight at the Employer’s premises and not taken for  
personal gain. Further, the Employer submits that Stevens’ comment to Duran when  
questioned about the copper at the Sewer Bay—to the effect that “it’s not worth his  
job”—is not unequivocal evidence that Stevens was aware of Lewis’s copper  
scheme. The Employer submits that there is no evidence that Stevens was referring  
to Lewis’s practice, and if he knew about such a practice, it could have been a  
reference to historical practice. The Employer rejects the Union’s assertion that the  
evidence against Stevens was stronger than that implicating Steele. It points to the  
fact that Stevens was on the Sewer Crew during the investigation and was not  
working with copper whereas the scheme was being perpetrated by the crew Steele  
had supervised. Hence the decision to interview Steele and not Stevens.  
415 The Employer submits that it fully fulfilled its obligations under Article 7.6(b) when  
Kidd advised Union First Vice-President Nerdahl, that employees in the Utility  
section would be interviewed about serious disciplinary matters. The Employer says  
that Article 7.6(b) requires that it “notify the Union in advance of the purpose of the  
interview in order that a shop steward or other Union representative may be present  
at the interview.” The Employer submits that it exceeded that obligation by also  
advising employees assembled in the Training Room that the interviews concerned  
potentially serious disciplinary matters.  
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416 The Employer argues the facts do not accord with the Union’s assertion that  
employees were denied access to Union representation. It points out that Nerdahl  
informed Union President Gary Goff about the interviews at 7:00 AM the same  
morning. The Employer submits there was nothing preventing Goff or Nerdahl—at  
that time or afterwards—from contacting the Stewards or providing advice. Nerdahl’s  
office was accessible just down the hall.  
417 The Employer contends that while the scheme was widely known, it had taken  
disciplinary action against the Grievors because it had significant evidence against  
them (including the fire hydrants), whereas it did not have the same basis to proceed  
against others who may have known about the scheme.  
418 With respect to MacKenzie, the Employer says that its case does not hinge on  
Duran’s evidence concerning his conversation with her. It points to evidence that  
MacKenzie had cut and bagged copper to facilitate the scheme, the fact that others  
had identified her as having participated and her statements to Service Canada. The  
Employer also submits that Duran and MacKenzie worked together on the Water  
Crew on January 19, February 26, and March 8, 2018. The Employer further submits  
that it was not improper to choose not to expend additional resources to appear at  
the final hearing of MacKenzie’s EI appeal. The Employer adds that MacKenzie’s  
claim at her July 5, 2018 interview that she cut copper for safety reasons did not  
comport with Steele’s safety rationale. That is because Steele had never instructed  
MacKenzie (or anyone else) to cut and bag copper as a safety measure.  
419 The Employer submits Duran’s account that Baranec urged him not to put a piece  
of scrap copper in the recycling bin because “Harold will get mad,” was a critical  
piece of evidence disclosing Baranec’s state of mind and stands uncontradicted.  
The Employer submits that was not a minor point and it was incumbent on the Union  
to answer that claim.  
420 The Employer notes that it was not simply that Baranec, MacKenzie and Steele had  
used similar phrases at the July 5 interview that undercuts their credibility, it was  
also the fact that they had all made those statements right at the outset of the  
interview yet denied discussing that topic beforehand.  
421 With respect to Steele, the Employer says it has not altered the grounds for  
termination as the dismissal letter alleged theft and a lack of forthrightness. The  
Employer submits it is unlikely that Lewis kept the scheme from Steele, even if she  
was away from the jobsite anywhere between 25 to 50 percent of the time. The  
Employer submits that Exhibit 11 shows that Steele was working with the Water  
Crew during the period of investigation, during which spot checks of the Water Van  
compartment disclosed that copper accumulated until bags obviously containing  
scrap copper pipe were full. Finally, the Employer submits that Steele’s account is  
clear that she had worked on the Water Crew since about mid-2000.  
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422 In response to the Union’s argument that the Grievors’ mindset was influenced by  
the Employer’s past acceptance of the copper scheme, the Employer points to  
evidence that the City had “drawn a line in the sand” regarding any such past  
practices and that MacKenzie was clear in her mind that the City had a strict stance  
about the personal use or benefit taken from City resources. Further, the Employer  
submits the Grievors did not reasonably believe they had operated in a grey zone  
and each repeatedly engaged in premeditated conduct they knew was wrong.  
Finally, the Employer observes that the Union did not allege that management was  
aware of the scheme at any point in time.  
IV.  
ANALYSIS AND DECISION  
423 The hearing of this dispute involved multiple days of testimony from numerous  
witnesses about events that spanned some 20 years. The background and positions  
of the parties set out in this award provide an extensive record of the proceeding, all  
of which I have carefully reviewed in my deliberations. The reasons that follow do  
not address every aspect of the evidence and argument. Rather, I have provided  
reasons for the resolution of those issues which in my judgement, are necessary to  
decide the substance of the matters in dispute.  
424 I begin with the Union’s submission that the Employer violated the right to Union  
representation found under Article 7.6(b) of the Collective Agreement. The core of  
the Union’s submission is that the Union and the Grievors did not receive effective  
notice and were thus denied an opportunity to prepare for the interview. As a result,  
the Union submits that it could not fulfill its representative role regarding serious  
allegations that could amount to criminal conduct. The Union adds that the Grievors  
did not know what was alleged and were not permitted to consult with the Union by  
phone when waiting for their interview. The Union says consequently, some of the  
Grievors may have made statements they might not have made had they been  
aware of their rights, including their rights regarding self-incrimination.  
425 I conclude the Union’s claim is not sustained on the language of Article 7.6(b) in the  
context of the facts at hand. Article 7.6(b) reads as follows:  
7.6(b) Where a supervisor intends to interview an employee for  
disciplinary purposes, the supervisor shall so notify the Union in  
advance of the purpose of the interview in order that a shop steward  
or other Union representative may be present at the interview. In a  
disciplinary interview, no employee shall be required to answer to  
charges without a Union representative present.  
426 The Employer notified the Union in advance of the interviews that it intended to  
interview the Grievors for disciplinary purposes. Further, a Shop Steward was  
present at the interviews. Thus, the Employer did not require a Grievor to answer  
charges without a Union representative present.  
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427 I accept the Union’s submission concerning general arbitral statements about the  
role of union representation as set out in the authorities it cited. However, it is  
necessary to observe that the content of the right to union representation is  
determined by the language of the collective agreement provision at hand. Each of  
the cases the Union cited was decided based on a violation of the provision at issue.  
428 For example, in Alberta, the Court found the employer had violated the grievor’s right  
to union representation provided under the collective agreement at issue. That  
conclusion rested on an interpretation of the relevant language. The clause at issue  
required that the employer advise employees of the disciplinary nature of the  
interview and that the employees be given their choice of shop steward: Alberta,  
paras. 38 and 52.  
429 In Rocumaura, the arbitration board considered a collective agreement provision  
that specifically obligated the employer to, “…follow the principles of procedural  
fairness and natural justice in relation to any incident that could warrant discipline of  
an employee.” The result in that case turned on the parties’ agreement to govern  
disciplinary proceedings by that standard: Rocumaura, paras. 86 and 97. In Open  
Learning Agency v. BCGEU, 2005 80 C.L.A.S. 180, the collective agreement  
provided a right to union representation prior to the imposition of discharge at a  
meeting with management and at which the employee is notified of the reason for  
discharge. The grievors in that case were denied an opportunity to attend such a  
meeting. Again, the violation arose in relation to the specific language of the  
provision at issue.  
430 In the present case, the Employer’s obligation under Article 7.6(b) is satisfied by  
providing the Union with advance notice of its intention to question an employee at  
a disciplinary interview so that a Shop Steward or other Union representative may  
be present at the interview. That obligation was met on the morning of June 27,  
2018, when the Employer notified Nerdahl—the Vice-President of the Local—that it  
intended to interview employees for “disciplinary purposes,” within the meaning of  
that provision.  
431 There is a question as to whether McBoyle was present at the Training Room when  
the Employer read its script to the Grievors assembled. The message on the script  
advised that disciplinary interviews would ensue. I find on the evidence that McBoyle  
was present. The script was read at shift start time. It was not established McBoyle  
was late for work. Hence, I find he was likely there to hear it. Regardless, the  
obligation to provide notice under Article 7.6(b) is to the Union, not to individual  
employees.  
432 The purpose of notice under Article 7.6(b) is to ensure that employees have the  
benefit of Union representation at the disciplinary interview. The Grievors were not  
being interviewed for disciplinary purposes when waiting at the Training Room on  
the morning of June 27, 2018. Nor did the Employer deny an employee request to  
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use a phone. Hence, I am unable to locate a per se violation of Article 7.6(b) based  
on the Employer’s restriction on phone use.  
433 I find that the substance of the Union’s objection under this heading raises the  
question of effective counsel as opposed to whether the Employer met its notice  
obligation under Article 7.6(b). On the morning of June 27, 2018, the Employer  
provided Nerdahl with the names of all those scheduled for interviews. It must be  
borne in mind that the Union and the Employer stand in a relationship of equals. So  
while it is reasonable to infer that Nerdahl was taken by surprise, there was no real  
ambush as Nerdahl was in a position to insist on more time to prepare or to obtain  
more experienced representatives given the obvious scale of the investigation.  
Further, the Shop Stewards were in a fair position to insist on an opportunity to  
independently consult with each Grievor, to obtain advice and to demand particulars  
of the allegations, or not, depending on how they saw fit to discharge their role.  
Indeed, Shop Steward Savage did assert himself by asking Nerdahl for help after  
the first interview. I acknowledge the Shop Stewards had received limited training  
and felt overwhelmed at the interviews. However, requests for time to consult and to  
prepare were not made to the Employer. It is notable that the Employer did not deny  
Lewis’s request to speak to Savage privately. For all these reasons, I do not find the  
Employer violated Article 7.6(b) of the Collective Agreement.  
434 The next issue is whether the Employer has established the grounds for dismissal  
advanced with respect to each of the Grievors and in view of their individual  
circumstances. The central contention is that each knowingly participated in an  
organized plan to dishonestly convert scrap copper obtained on the job for money.  
It is in that strict definitional sense that the impugned conduct comprised a scheme.  
I will refer to it as such.  
435 As noted in the introduction, there is no dispute the scheme was perpetrated. The  
Union—correctly in my view—does not challenge the proposition that knowing  
participation in the scheme was cause for some discipline. The question at the heart  
of the matter is whether the Employer has established on a balance of probabilities  
that each of the Grievors either participated in the scheme or engaged in the other  
forms of misconduct alleged in the dismissal letters.  
436 This dispute calls for the resolution of significant conflicts in the evidence. In  
resolving those differences, my assessment of the credibility of the witnesses’  
testimony is guided by the decision of the British Columbia Court of Appeal in Faryna  
v. Chorny, [1951] B.C.J. No. 152, [1952] 2 D.L.R. 354 (“Faryna v. Chorny”). In the  
matter of assessing credibility, the Court said (in part):  
The credibility of interested witnesses, particularly in cases of conflict  
of evidence, cannot be gauged solely by the test of whether the  
personal demeanour of the particular witness carried conviction of  
the truth. The test must reasonably subject his story to an  
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examination of its consistency with the probabilities that surround the  
currently existing conditions. In short, the real test of the truth of the  
story of a witness in such a case must be its harmony with the  
preponderance of the probabilities which a practical and informed  
person would readily recognize as reasonable in that place and in  
those conditions.  
437 Before considering the circumstances of each Grievor, I will record some general  
observations that inform my assessment of the evidence. In doing so, I will address  
the alleged unfairness of the investigation, including the open-ended nature of  
questions the Employer asked at the interviews.  
438 The interview notes, including those of the Employer’s interviews of Duran, are  
fraught with difficulty from an adjudicative perspective. That is not to suggest any of  
the note-takers acted in bad faith. Nor do I find an insurmountable difficulty simply  
because the notes are incomplete. The individuals who took the notes are not  
professional notetakers. Further, many of the witnesses readily conceded that the  
interview notes and Exhibit 5 are generally accurate.  
439 A primary source of difficulty is that the Employer and the Union representatives did  
not review with each person interviewed what each had recorded at the end of the  
interview. This would have provided the individual questioned an opportunity to  
confirm, deny or add to the accuracy of the notes.  
440 Consequently, at some points, the notetakers recorded comments in different  
sequence. In some cases, it is difficult to see a logical correspondence between the  
written notes and the typewritten notes. More importantly, critical context is lost given  
the inaccuracy of the notetaking and the failure to put to each of the witnesses the  
points that were recorded.  
441 I appreciate the considerable effort taken to prepare Exhibit 5 as a record of words  
that were spoken at the interviews. It is common ground that Exhibit 5 is not a  
complete record of the words spoken, including the questions that prompted those  
words. On balance, I have found Exhibit 5 helpful in the examination of witnesses.  
However, the meaning conveyed by the words spoken as recorded in Exhibit 5 must  
be assessed in context, particularly the exact wording of the question asked. Much  
of that critical context is unfortunately lost in Exhibit 5. Accordingly, I have exercised  
caution in attributing weight to the interview notes and to Exhibit 5 when assessing  
the witnesses’ credibility on critical points of contention.  
442 This caution is important in some respects. One example illustrating the frailty of the  
notes touches on the parties’ difference about whether Steele conceded on June 27,  
2018, that copper was bagged and then changed her account on July 5 to say it was  
not bagged. Steele testified that she never asserted that copper was bagged. The  
Employer’s notes simply record the question “why cut up?” The response is  
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recorded, “so you don’t trip on it, shoved into a bag.” The Union’s notes appear to  
support Steele’s testimony. The Union’s notes indicate that Traviss asked, “what do  
you do with old copper?” Steele responded, “goes into the recycling bin in the yards,”  
at which point Traviss is noted to ask, “why do you bag it and cut it,” to which Steele  
responded, “to get it out of the way.” Exhibit 5 records in part, “Ms. Steele said copper  
was cut up so you do not trip on it and it was shoved in a bag.” Steele testified in  
cross-examination that she understood the question asked was what she did with  
copper, and that it was only if larger pieces of scrap copper were brought into the  
van that it was pushed, cut, or bent and put out of the way—otherwise it was left in  
the hole. It is difficult to determine what was meant by the words attributed to Steele  
in Exhibit 5 without understanding the content and immediate context of the  
questions leading to the words attributed to her. I encountered similar problems,  
based on notes of apparently contradictory statements attributed to Duran on July  
4, 2018—about whether he spoke to employees individually about the copper  
scheme.  
443 The Union questions the weight to be attributed to the opening series of questions  
put to each employee regarding their understanding of theft and whether they had  
engaged in theft in the past. In my view it is appropriate to ask open-ended  
questions. However, the meaning to be attributed to the answers elicited by that  
opening series must be assessed in context. In the present case, the Grievors were  
confronted in a high-pressure setting with general questions that did not directly  
touch on the copper scheme. In this setting, I find it unlikely the Grievors (save for  
McBoyle) answered those vague, general questions with the dishonest intent to  
mislead the Employer about their participation in the copper scheme. I note McBoyle  
testified he knew the Employer was asking about the copper scheme in its opening  
line of questions. Apart from that qualification, I find Traviss was correct in putting  
weight on the Grievors’ answers to more specific questions asked later in the  
interviews regarding the copper scheme. I have done the same.  
444 For these reasons, I have placed more weight on the witnesses’ testimony in this  
proceeding than on the interview notes or Exhibit 5.  
445 Another point of contention concerns the Employer’s failure to put exculpatory or  
inculpatory statements to employees at the interviews. For example, Steele was not  
apprised of the fact that Duran said that Lewis reminded him not to disclose the  
scheme to Steele. Stevens was not told that Duran made a statement that might be  
interpreted on its face, as an admission that he knew about the scheme. It would  
have been appropriate to provide these individuals with an opportunity to respond to  
particulars of possibly inculpatory or exculpatory assertions made by others. I have  
factored that consideration into my assessment of the evidence. Nonetheless, I  
attribute those shortcomings to either inexperience or a simple oversight as opposed  
to bad faith. The same point applies to the Employer’s knowledge concerning the  
ownership of the fire hydrants. In my judgement, had they stopped to think about it,  
the Employer’s decision-makers would have realized that the contractor owned a  
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fire hydrant once it was removed from the ground. However, the legal importance of  
establishing an ownership interest when alleging the theft of City property likely did  
not occur to them.  
446 This brings me to the fact that the Grievors were asked to identify individuals who  
were involved in the scheme by pointing to their names on an organizational chart.  
The difficulty posed here is that none of the employees who identified co-workers  
were asked follow-up questions necessary to establish a reliable foundation for their  
claim. The same point applies to answers given to the effect that everybody knows  
about the scheme, that individuals must have known about the scheme or words to  
either effect. The interrogators never established the exact basis upon which those  
statements were advanced (apart from Duran who conceded that he had operated  
on an assumption about Steele’s intelligence). It is difficult to defend against an  
accusation that is so impressionistic and lacking in particularity. In my view, the  
Grievors’ subsequent explanations that they identified persons on the organizational  
chart under pressure and based on an assumption as opposed to a reliable  
observational foundation, is reasonable in the circumstances.  
447 The fact is that everyone who worked on the Water Crew was not necessarily  
involved or apprised of the scheme. To cite one obvious example, Duran never cut  
copper and did not receive money until February 2018—months after he had started  
employment. Duran knew about the scheme and did not report it for months. It also  
bears observation that the Employer concluded that other employees interviewed,  
including Stevens were not culpable. In Stevens’ case Duran’s report supported an  
inference that Stevens at least had some idea what was going on but like Duran,  
may have chosen not to participate.  
448 The Union contends that the Employer went easy on Stevens but there is no direct  
allegation he was involved. I find Buizer’s statement that Stevens participated in the  
scheme stands as a bald assertion. I conclude that where ultimately right or wrong,  
the Employer had a reasonable basis to conclude on all the evidence it had at the  
time, that Stevens was not involved in the copper scheme. I reject the Union’s  
portrayal of the evidence in that regard. The fact is that a large container of copper  
in the Sewer Bay remained undisturbed and in open view during the Employer’s spot  
checks. I find on the evidence that the copper stayed there because Stevens did not  
take the time to put it in the recycling bin, not because he was waiting to bring it to  
the recycler so that he could return money to the Employer. Finally, I do not find that  
the Employer acted in bad faith or was unfair by initially selecting Steele to be  
interviewed but not Stevens. Steele was the Foreman 2 of the Water Crew. She was  
in a direct reporting relationship with the crew, despite the fact she was regularly  
away from the jobsite throughout the workday and for some extended periods  
performing other jobs.  
449 Another factor in my assessment of the evidence concerns the contention that there  
was a credible workplace purpose to systematically cut and bag scrap copper. Goff  
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and Steele testified that the appropriate way to deal with scrap copper is to leave it  
in the ground unless it is necessary to remove it. I conclude that account fully  
accords with common sense in the circumstances at hand. From the employees’  
perspective, the Water Crew was busy and sometimes short-staffed. I do not find it  
credible that employees on short-staffed crews and who were otherwise busy, would  
undertake an additional, unassigned task to handle scrap copper when that task did  
not contribute to the completion of the job. The alternative was to put scrap copper  
safely to the side and bury it. I find the only credible explanation to systematically  
participate in this course of conduct is to act in furtherance of the scheme. That is  
not to say that there are absolutely no circumstances where pieces of copper may  
need to be taken from the ground or stored. For example, the leftover roll of copper  
used to install a new service can be easily strapped to the side of the Water Van.  
Small pieces are easily placed in a bin.  
450 An additional consideration informing my assessment of the evidence arises from  
photos taken of the bags of cut copper in the Water Van compartment. The contents  
of the bags are not immediately apparent unless opened. It must also be borne in  
mind that burlap sacks were present for legitimate uses. I find that an employee who  
is busy working in and around the Water Van would not necessarily know what the  
bags contained unless they opened the compartment and took the additional step to  
look inside the bag. Hence, the mere fact that an individual was on the crew does  
not necessarily mean that they knew about the presence of the bags or their  
contents.  
451 Another notable piece of evidence is the record of Harold Lewis’s visits to the  
recycler to recover money for scrap copper and brass. The record in evidence  
discloses that Lewis visited the recycler on nine dates between March 14, 2015 and  
November 21, 2015. In 2016 he visited the recycler on nine occasions. In 2017,  
Lewis attended the recycler on 11 dates and on seven dates between January and  
June 23, 2018. The total amount Lewis recovered in this period is $16,798.17 for the  
delivery of 6,567 pounds of metal. This is a substantial amount of copper. I infer from  
this record that Lewis relied on the cooperation of others to advance the scheme.  
The scheme did not likely happen on the scale of a one or two-person operation.  
Nonetheless, that finding must be balanced with the fact Lewis cashed in copper  
about once a month. Not every job involved the use of copper. So, it would be  
overreaching to characterize the scheme as a pervasive feature of daily work on the  
Water Crew.  
452 Further, the records from Pacific Metals from 2010 to 2018 indicate that copper was  
not among the metals for which reimbursement was paid. I find these records are  
relevant but question their accuracy. I reach that conclusion because the entries  
under the heading “material” repeatedly record all of the metals received as “steel.”  
Given the repetitive nature of these entries, the Union has raised a fair question as  
to whether Pacific Recycling provided a precise breakdown for each of the metals  
deposited in the bin. The Union notes that it can be reasonably inferred other  
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employees (such as electricians) use copper yet there is no record of copper being  
recovered by the recycler for a lengthy time. I have accounted for the fact that Pacific  
Metals has reported revenue from copper since the Grievors’ dismissal.  
Nonetheless, I have significant concerns about the reliability of the previous years’  
records and do not find it appropriate to place significant weight on these records for  
that reason.  
453 I now turn to my assessment of Duran’s testimony. The critical facts at issue pertain  
to Duran’s recollection of his conversations about the scheme with Grievors,  
Baranec, MacKenzie, Plasman and McBoyle. Plasman and McBoyle admitted to the  
scheme but denied disclosing it to Duran. Duran’s evidence is most critical  
concerning MacKenzie and Baranec. Duran testified that the above-noted Grievors  
admitted to the scheme in conversation.  
454 The Union attacks the credibility of Duran’s account. My assessment of credibility  
throughout this award is based on the test set out above in Faryna v. Chorny. The  
factors set out in Sarens Canada Inc., supra also inform my judgement, including  
the witnesses’ demeanour, memory, plausibility of their account, internal  
consistency, external consistency, motivation, and the ability to perceive.  
455 The Union submits that Duran’s evidence is unreliable in several respects. I now  
address those key points.  
456 Based on a careful review of the evidence I am not persuaded that Duran  
exaggerated his previous experience to suggest that others on the Water Crew had  
wasted copper. Rather, I find that Duran provided his honest opinion of work  
practices he had observed regarding the handling of copper. Whether Duran was  
ultimately right or wrong, I do not conclude that Duran was dishonest in conveying  
his opinion of what he had observed.  
457 The Union also points to Duran’s poor memory of specific events such as the number  
of times he had worked with Baranec and the location of his meeting at a Starbucks  
with Bell and Kidd on February 21, 2018. Similarly, Duran did not have a detailed  
recollection of the time, place, and circumstances in which he says MacKenzie,  
Baranec, Plasman and McBoyle disclosed their knowledge of the scheme. I note  
that Duran was asked to recall the specifics of events that occurred well over a year  
before he testified. Having reviewed his testimony in detail, I find that his inability to  
recall these details is a result of the passage of time as opposed to an attempt to  
mislead. Further, I do not find support for the Union’s contention that Duran’s  
recollection suddenly deteriorated when he learned that the parties were in  
possession of timecard records. As noted above, Duran was asked in direct-  
examination to direct his mind to the first several months of his employment. He did  
not claim to provide an exact or exhaustive recollection of when and where he spoke  
to the Grievors about the copper scheme. Duran readily admitted his memory was  
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weak on some points when pressed in cross-examination. I do not find he attempted  
to embellish or slant his evidence to inculpate his co-workers.  
458 The Union also submits that it is unlikely that his co-workers would disclose the  
details of the scheme in the manner Duran described. In my view, this aspect of  
Duran’s account is plausible in the circumstances. This is not a case of the Grievors  
blurting out the details of the scheme in response to an innocuous question. Duran  
asked what happened with copper. Duran’s repeated questions about the scheme  
pressed the Grievors into a position where they had little choice but to acknowledge  
what was in plain sight.  
459 Duran was uncomfortable answering some questions posed in cross-examination.  
For example, he inferred that questions about his “relationship” with Steele may have  
implied a romantic relationship. He appeared to be similarly confused and sought  
clarification of a question about how he “enjoyed” working with MacKenzie. Nor was  
Duran comfortable recounting the details of a respectful workplace complaint he had  
filed against Steele—an event that one would reasonably expect him to recall.  
460 Memory is fallible. The Union has raised cogent questions about the extent to which  
Duran’s memory is reliable regarding the time, place, sequencing, and  
circumstances in which some of the Grievors made inculpatory disclosures. In my  
judgement, many of Duran’s responses were made in the context of a lengthy and  
at times, a relatively fast-paced cross-examination. This is not a criticism. Counsel  
skillfully demonstrated the limits of Duran’s ability to recall specific details and to his  
credit Duran conceded that he was unable to pinpoint details.  
461 Despite my reservations about the reliability of Duran’s memory in those detailed  
respects, I am not persuaded that Duran was dishonest in recounting the thrust of  
the conversations he described with Baranec, MacKenzie, Plasman and McBoyle.  
In reaching this conclusion, I note that Duran had no motive to mislead the Employer  
with respect to these disclosures. It is true that Duran was on extended probation.  
Steele was frank in her testimony that she harbored reservations about Duran’s  
suitability for regular status. However, Duran did not directly implicate Steele. Nor  
do I find Duran had an axe to grind with his co-workers regarding his probationary  
assessment or any other conflict that would reasonably motivate him to lie.  
462 Duran conceded the limits of his recollection and powers of observation in cross-  
examination. For example, Duran admitted in cross-examination that although he  
inferred that Steele could observe employees cutting copper that he could not recall  
a specific event when that happened. Duran was also candid with the Employer in  
conceding that he only assumed Steele was aware of the scheme. Further, I observe  
that the thrust of Duran’s testimony is consistent with the undisputed facts  
concerning the elements of the copper scheme.  
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463 To conclude on this point, I accept the Union’s submission that the fact Duran  
provided prior consistent statements does not buttress his credibility. Moreover, it is  
true that there is no evidentiary principle that a witness is deemed to be credible  
because some of the things they say are true. Similarly, logic does not dictate that  
because a witness is wrong or uncertain about the time, place, sequencing, and  
circumstances of brief conversations that occurred more than a year previous, that  
they are lying about the material thrust of what was disclosed to them.  
464 I now turn to consider the question of whether the Employer has established just  
cause for the dismissal of each of the Grievors based on their individual  
circumstances. Guiding considerations are found under the test enunciated in Wm.  
Scott & Co., BCLRB No. 98/76, [1977] 1 Can LRBR 1 (“Wm. Scott”). First, has the  
Employer established there was cause for some form of discipline; second, if there  
was cause for discipline, was dismissal an excessive response; and third, if  
dismissal is excessive what response should be substituted as just and reasonable?  
Relevant considerations include: 1) the seriousness of the offence; 2) whether the  
Grievors’ conduct was premeditated or repetitive; or instead a momentary and  
emotional aberration; 3) whether the Grievors have a good record of service in which  
they proved to be able workers; 4) whether the Employer attempted earlier and more  
moderate forms of corrective discipline which did not prove successful in solving the  
problem; 5) whether discharge of the Grievors accords with the Employer’s policies,  
or does it appear to single out the Grievors for arbitrary and harsh treatment? (at pp.  
5-6). Additional considerations under the second and third Wm. Scott questions are  
listed in Steel Equipment Co. Ltd., as cited in Wm. Scott, supra, at p. 4.  
Keifer Baranec  
465 As recorded in the factual background, the grounds for Baranec’s dismissal  
termination are theft and dishonesty.  
466 I find that Duran provided a credible account of two conversations in which Baranec  
admitted to participating in the copper scheme and accepting proceeds. As set out  
above, the first conversation Duran recounted occurred in the Water Van. Duran  
testified that he came across a burlap sack in a compartment and asked Baranec,  
“oh what’s this, there’s a bag of copper”? Duran testified that Baranec responded,  
“that’s the copper that we cut up and is sold we get proceeds from, depending on  
how much we work on the water crew.” According to Duran’s account, Baranec  
completed the statement stating, “we don’t talk about that.”  
467 I also accept Duran’s testimony in which he recalled a second conversation when  
he worked with Baranec on the pump truck. Duran came across copper on the  
ground when he and Baranec were at the Public Works Yard to look for a tool. When  
Duran said to Baranec that the copper should be thrown into the recycling bin,  
Baranec responded that Duran should leave it there otherwise, “Harold will get  
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upset.” The material elements of that conversation are uncontradicted. I find that  
Duran’s account further demonstrates Baranec’s knowledge of the copper scheme.  
468 I observe that Duran’s account accords with evidence that Baranec worked on the  
Water Crew roughly 30 times during his career. He worked on the Water Crew a  
dozen times between December 2017 and February 2018, in which period Lewis  
sold copper to the recycler on four occasions. Baranec testified that he never once  
saw anyone cutting up copper and putting it into a burlap sack. In these  
circumstances, and given the frequency with which the copper scheme had been  
perpetrated, I reject the credibility of Baranec’s testimony that he never once  
observed copper being cut and bagged for the purpose of the scheme or never once  
saw even a burlap sack when going about his business in the Water Van.  
469 I have considered the Union’s submission concerning the import of Exhibits 10 and  
11. I find that the reliability of these exhibits is limited by the accuracy with which  
timecards are completed. These records are not exact. I further note that although  
Exhibit 10 and 11 indicate that Baranec and Duran did not always work together on  
the Water Crew on jobs that necessarily involved copper, they did work together.  
Hence, they had an opportunity to have the first conversation at issue. The second  
conversation occurred when Duran and Baranec worked on the pump truck.  
470 Having found that Duran’s account of these conversations is credible I conclude that  
Baranec was dishonest, both with the Employer and in his testimony when denying  
his knowledge of or participation in the scheme. I find that although Baranec’s  
explanation to the Employer of what happens to copper reflects how scrap copper  
should be handled and may have been handled on occasion, it did not reflect the  
crew’s prevailing practice when Lewis was unsupervised at the helm. Finally, I reject  
Baranec’s denial that he had pre-meeting discussions about making an opening  
statement at the outset of his July 5 interview, in which he stated he was “not in the  
greatest frame of mind” and had been on a “roller coaster.” The words Baranec  
used in that opening statement closely align to the words attributed to Coral Steele  
who also attended that interview. It is inherently improbable that Baranec would  
make similar statements at the outset of the interview by sheer coincidence.  
471 Baranec’s participation in the scheme amounts to more than acquiescence to theft  
as set out in White Spot. In White Spot, an arbitration board chaired by Arbitrator  
Hope, Q.C. canvassed the relevant legal terrain and concluded that while an  
employee innocent of involvement in misconduct cannot be compelled to divulge  
knowledge of workplace misconduct, employees are bound to account for their own  
failure to discharge their duties in good faith. In applying that test, Arbitrator Hope,  
Q.C. wrote for the board as follows:  
Our conclusion was that it was wrong for her [the grievor] to permit  
the head grill man to employ that subterfuge [to steal property], using  
her garbage bag for the purpose. Whatever may be said of the  
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expectation that an employee is entitled to keep silent about the  
misconduct of another employee, it is a breach of the employment  
contract for an employee to acquiesce in an act of theft. By  
acquiescence we mean a circumstance where in an employee is  
drawn into an act of misconduct with whatever measure of  
reluctance so that keeping silent or failing to take some appropriate  
action is a breach of the obligation of the individual employee to act  
honestly and in good faith.  
… Thus we are of the view that her conduct was deserving of  
discipline in that she permitted herself to be exploited as a vehicle  
for the commission of a theft. That she was as much a victim as a  
perpetrator is little comfort to the employer’s legitimate interests  
must be reconciled in our assessment of the facts. (emphasis added)  
pp. 17-18  
472 By assisting with the cutting and bagging of copper Baranec was a participant in the  
theft. He facilitated the commission of that employment offence and thereby  
committed a grave act of dishonesty. Compounding the seriousness of his  
misconduct is my assessment that Baranec did not issue credible denials when  
testifying in this proceeding.  
473 Baranec was a relatively short-term employee as of the date of his termination. He  
had no discipline record. He was otherwise a good worker and had been selected to  
participate in the Leadership Program. However, Baranec committed a serious act  
of dishonesty. He was an active participant in furtherance of the scheme as opposed  
to a passive bystander. His conduct was premeditated, he was not forthright with the  
Employer when questioned and I find his testimony denying any knowledge of or  
participation in the scheme was not credible. In these circumstances, I do not find  
that the trust required for a viable employment relationship is capable of being  
restored. Accordingly, the Employer has established some cause for discipline.  
Dismissal is not an excessive response. Baranec’s grievance is denied.  
Kim MacKenzie  
474 As recorded in the dismissal letter set out in the factual background, the grounds for  
MacKenzie’s dismissal are theft and dishonesty. The Employer also alleges the theft  
of a fire hydrant.  
475 For the reasons set out previously, I find that Duran provided a credible account of  
a conversation in which MacKenzie admitted to knowledge and participation in the  
copper scheme.  
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476 Further, and on an independent basis, I reject the credibility of MacKenzie’s  
explanation for regularly cutting and bagging copper. I find it is inherently improbable  
that MacKenzie would engage in such a course of conduct without instruction, and  
in circumstances where her efforts did not add appreciable value to the completion  
of the project. I conclude that MacKenzie knowingly engaged in cutting and bagging  
copper in furtherance of the scheme. Moreover, this aspect of MacKenzie’s conduct  
amounts to dishonesty well within the parameters of the analysis applied by  
arbitrator Hope, Q.C. in White Spot. In my view, the facts of the present case diverge  
from the server’s conduct at issue in White Spot, in that MacKenzie was more of an  
active participant in helping to facilitate the theft, as opposed to an individual who  
allowed herself to be used as a vehicle for the commission of a theft.  
477 I have considered the Union’s submission concerning the import of Exhibits 10 and  
11 in my assessment of the evidence. As with Baranec, I find that the reliability of  
the information conveyed by these exhibits is limited by the accuracy of the  
timecards. The records generally reflect which crews worked on different types of  
jobs. I am not satisfied that these records establish that Duran had no opportunity to  
have a conversation with MacKenzie in which she disclosed her knowledge of the  
copper scheme. Also factored into my assessment is that Duran recounted in his  
testimony that McBoyle and MacKenzie made a comment to the effect, “man that  
was hard but it was sure worth it” after struggling to remove a piece of scrap copper  
from the ground. The material aspects of Duran’s testimony in that regard have not  
been undermined and support a finding that MacKenzie was both aware of the  
scheme and participated in it.  
478 The Employer sought to impugn MacKenzie’s credibility based on the claim that she  
was pointed to the organizational chart twice during her June 27 interview. The  
Employer claims that on the second occasion, MacKenzie was asked to identify who  
was involved in the scheme and MacKenzie responded with words to the effect that  
she was uncomfortable identifying anyone but that it was “common knowledge and  
everyone knew.”  
479 I accept the Union’s submission that the evidence with respect to this contention is  
insufficiently cogent to impugn MacKenzie’s credibility. In reaching this conclusion,  
I have considered the fact that Shop Steward Savage recalled MacKenzie making  
this disclosure. Although Savage testified that his notes indicated as much, his notes  
actually indicate that MacKenzie was presented with an organizational chart only  
once, and only regarding the fire hydrant accusation. I prefer Savage’s notes and  
find that Savage was likely confused on this point in cross-examination. Further,  
Madigan recalled in his testimony that Maki directed MacKenzie to the organizational  
chart twice, first regarding the fire hydrant and second regarding the copper scheme.  
Maki recalled in his testimony that he directed MacKenzie to the organizational chart  
once, and only regarding the copper scheme.  
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480 I accept the Union’s submission that the Employer’s notes appear to record the  
presentation of the organizational chart out of order as it is common ground that  
questions at the interview first addressed the hydrant and then the copper scheme.  
Finally, I find my conclusion comports with the fact that the Employer is not recorded  
to express surprise when MacKenzie claimed at her July 5 interview that she did not  
know about the copper scheme. On balance, I find that Madigan and Maki’s  
recollection is incorrect on this point. In any event, even had I found in favor of the  
Employer on this point, it would make no difference to my ultimate disposition of this  
grievance.  
481 The Employer also asks me to draw a negative inference from the fact that  
MacKenzie did not cite a safety rationale for cutting copper until she was interviewed  
on July 5, 2018. I have addressed the credibility of MacKenzie’s initial account in  
view of what I find to be probable in the circumstances. The fact that MacKenzie  
added a safety rationale at the July 5 interview does not materially add to or detract  
from my assessment of her explanation for regularly cutting and bagging scrap  
copper.  
482 The Employer also seeks to undermine MacKenzie’s credibility based on notes  
made by a Service Canada representative recording statements attributed to  
MacKenzie. The Union advanced a cogent argument that there is no reliable basis  
to conclude that MacKenzie made the prior inconsistent statements attributed to her.  
These notes must be assessed alongside MacKenzie’s direct testimony. Ultimately,  
I find it unnecessary to decide this point of contention. Given my findings above,  
resolving this argument one way or the other would not impact my conclusion  
regarding the ultimate disposition of this grievance. I have reached a similar  
conclusion regarding the Employer’s argument that MacKenzie did not ensure the  
accuracy of the record in the Union counsel’s submission to Service Canada.  
Accordingly, I have disregarded this consideration.  
483 This brings me to the question of whether MacKenzie was not forthright with the  
Employer when interviewed. I find the answer to this question is “yes,” based on my  
findings above that MacKenzie was aware of the scheme and participated in it by  
cutting and bagging copper. I find it is probable in the circumstances that she  
benefited financially from this course of conduct. McBoyle and Plasman testified  
there was a common understanding that if one worked on the Water Crew that they  
received a portion of the proceeds derived from the sale of scrap copper obtained  
on the job.  
484 I do not find that the Employer has established its allegation of theft of a fire hydrant  
against MacKenzie. The fire hydrant was the property of the contractor. MacKenzie  
did not act to deprive the City of its property in the fire hydrant when she took  
possession of it. Further, I reject the Employer’s claim that MacKenzie acted  
surreptitiously when transferring the hydrant to her vehicle. The transfer occurred in  
the Public Works Yard within plain sight of anyone in the immediate vicinity.  
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485 The Employer attempted to buttress its position regarding the alleged theft of a fire  
hydrant by relying on alleged violations of its policies concerning conflict of interest  
and the use of City property. The Union provided two complete answers in this  
regard. First, I conclude the Employer has expanded the grounds for MacKenzie’s  
termination to include policy contraventions very late in this proceeding. Established  
arbitral jurisprudence holds an employer fairly strictly to the grounds it has alleged  
for discipline. This principle maintains the integrity of the grievance procedure:  
Aerocide. Second, and on a completely independent note, I am not satisfied that  
MacKenzie sought the fire hydrant or accepted the fire hydrant in circumstances that  
implied a further obligation. I do not find on the evidence that as a Trades 1,  
MacKenzie could benefit or could be reasonably seen to benefit the contractor in  
connection with her receipt of the fire hydrant.  
486 Accordingly, I do not find the Employer has established on the submissions and  
evidence that MacKenzie violated the City’s Conflict of Interest Policy. I understand  
that the Employer expected that fire hydrants that belonged to it are kept for  
recycling. However, this was not a fire hydrant that belonged to the Employer. The  
Employer also alleged that MacKenzie violated its policy regarding the improper use  
of City property. That policy requires that the City equipment be used solely for work-  
related purposes. I find there is a prime facie violation of that policy, given that a City  
vehicle was used to transport the fire hydrant back to the Public Works Yard.  
However, I do not find it is appropriate to permit the Employer to expand its grounds  
to include this violation at this point in the proceeding. Nor do I find this allegation  
would make a difference to the ultimate disposition of the grievance concerning  
MacKenzie’s termination.  
487 Finally, I do not find that the Employer acted in bad faith in its communications with  
Service Canada or a subsequent appeal proceeding before the Social Services  
Tribunal (the “Tribunal”) concerning MacKenzie’s claim for employment insurance  
benefits. To succeed with that claim the Union must establish that the Employer  
acted in a high-handed, arbitrary or capricious manner: Brown and Beatty, Canadian  
Labour Arbitration, 5th Edition, para. 2:1508; Hamilton (City) and CUPE Local 5167,  
supra, paras. 68-70. As far as I can determine on the evidence, the Employer  
appealed a decision to grant MacKenzie’s application for benefits based on a written  
submission to the Tribunal. It appears from the Tribunal’s decision, that the  
Employer’s written submission was considered as part of the record in that  
proceeding. I further observe that there is no record that MacKenzie complained to  
the Tribunal that the Employer had acted in bad faith (arguably the appropriate forum  
for such a complaint), or a finding by the Tribunal that the Employer abused the  
Tribunal’s process, by not attending to submit viva voce evidence and argument.  
488 I conclude in all the circumstances that the Employer’s decision to rely on its written  
submission and to not attend the Tribunal’s oral hearing does not impugn its overall  
good faith in making those representations or amount to bad faith in the manner of  
MacKenzie’s dismissal. The Employer had a legitimate interest in appealing and to  
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ensure that it had filed a record of its position in that proceeding. I see no basis on  
the submissions before me to conclude the Employer provided information that was  
untruthful, misleading, or otherwise acted in a manner reasonably characterized as  
unfair. In sum, I conclude the Employer’s conduct does not rise to the level of bad  
faith as set out in the authorities.  
489 In conclusion, I find that MacKenzie must be exonerated for the claim that she stole  
a fire hydrant. However, I must address the fact MacKenzie engaged in a serious  
act of dishonesty by her participation in the copper scheme.  
490 MacKenzie was a relatively short-term employee as of the date of her termination.  
She had no discipline record, was an otherwise good worker and had been selected  
to act in management capacity. However, I find the force of these mitigating  
circumstances are offset by my conclusion that MacKenzie committed a serious act  
of dishonesty. Her conduct was premeditated and repeated. She was not forthright  
with the Employer when questioned and I find her testimony denying knowledge of  
or participation in the scheme was not credible. In these circumstances, I do not find  
that the trust required for a viable employment relationship is capable of being  
restored. Accordingly, dismissal is not an excessive response and the grievance is  
denied.  
Ian Plasman  
491 Plasman was terminated for theft and dishonesty, as recorded in the dismissal letter  
set out in the factual background.  
492 Plasman’s last period of employment with the City began in March 2014 as a casual  
employee. He was appointed a Trades 1 in January 2017. Plasman had no prior  
discipline record. He was roughly a four-year employee at the time of dismissal.  
493 I accept the credibility of Duran’s account that he had a conversation with McBoyle  
and Plasman, in which McBoyle disclosed the elements of the scheme and Plasman  
added, “we don’t talk about that.” I prefer Duran’s account over Plasman’s denial  
that this conversation occurred. In reaching that determination, I note that Plasman’s  
testimony was based on an inference—Plasman testified that the conversation did  
not occur because he never discussed the scheme with McBoyle. Plasman testified  
in cross-examination that he was friends with McBoyle. I accept that the scheme  
was not a matter that was the subject of everyday conversation among crew  
members. However, I do not find it credible in the circumstances that Plasman never  
discussed the scheme with McBoyle. I find that Plasman’s evidence on this point is  
likely motivated by a continued desire not to implicate his friend.  
494 Buizer testified in direct-examination that he observed Plasman cutting and bagging  
scrap copper on the McLean Road job. When pressed in cross-examination (by the  
Union) to provide details of that observation, Buizer’s recollection was uncertain.  
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Buizer was asked to recall details of events that occurred in 2017. In my judgement,  
the fact Buizer was unable to pinpoint specific instances to support his recollection  
does not count against his credibility in that regard. I accept Buizer’s general  
recollection on this point.  
495 I find it unlikely in the circumstances that Lewis acted alone to cut and bag what  
amounted to thousands of pounds of copper over a given year, and in circumstances  
where he was tasked with the ongoing responsibility of supervising a busy and short-  
staffed crew. I add that Buizer, Plasman and Adamik were the three crew members  
of the Construction Crew on the McLean Road job. In the circumstances, it is  
probable that Plasman assisted in the cutting and bagging of copper, particularly  
given that Adamik provided him with a portion of the proceeds. I note that Buizer’s  
observation of Plasman cutting and bagging copper accords with Duran’s testimony  
that he observed Plasman cut and bag copper, albeit not on the McLean Roadjob.  
496 Plasman testified that he occasionally cut copper at the direction of Lewis but did  
not bag it in furtherance of the scheme. By Plasman’s account, Plasman was a  
bystander and it was Lewis who was responsible for cutting and bagging the copper  
in furtherance of the scheme. I do not find that is a credible assertion for the reasons  
set out above. The execution of the copper scheme required both the active and  
passive cooperation of other crew members.  
497 The parties differ about the extent to which Plasman made fulsome disclosures  
during his interviews and in his testimony. For example, there is a difference about  
whether Plasman honestly forgot to report the money he had received from Adamik  
on the McLean Road job. I find it unlikely that Plasman would not recall that incident  
until about a year had passed after the June 27, 2018 interview. Plasman had  
between June 27, 2018 and the second interview on July 5, 2018 to consider the  
matter. Further, Plasman was provided with Buizer’s report that he had received  
money from the scheme when interviewed on July 5, 2018. I accept the Employer’s  
submission that Buizer’s report likely prompted Plasman’s disclosure concerning  
money received for his participation in the scheme on the McLean Road job, that  
Plasman sought to minimize his participation by restricting his initial admission to  
one occasion.  
498 There is also a question about whether Plasman resiled from a claim that Steele had  
provided him with money from the scheme at the Employer’s interviews. I accept the  
Union’s submission that the appropriate characterization is that Plasman corrected  
himself during the interview. He did not implicate Steele. I accept Plasman’s  
evidence on that point.  
499 There is also an issue about whether Plasman asked Lewis to stop providing him  
money but later chose to accept money from Adamik. I accept the Union’s  
submission that the evidence is unclear regarding the sequence of Plasman’s  
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interactions with Lewis and Adamik. Accordingly, I do not reach a negative inference  
about Plasman’s credibility on that basis.  
500 Plasman accepted money for his participation, both in handling the copper and not  
reporting the matter to management. The Union argues that the lack of a clear policy  
regarding the disposal of scrap copper is a mitigating circumstance. In my  
judgement, that point of contention is resolved by Plasman’s testimony that he knew  
what he was doing was wrong yet chose to accept the money and maintain his  
silence. He further acknowledged in his testimony that he failed in his duty of fidelity  
to his Employer out of a misplaced sense of obligation to his peers and a desire to  
preserve good relations with his supervisor, Lewis. To that extent, I do not find that  
lack of clarity about workplace expectations played any meaningful role in Plasman’s  
circumstances. Plasman knew that what he did was wrong but proceeded  
regardless.  
501 Plasman may have accepted money on two occasions and asked not to receive  
additional money. However, I reject the credibility of Plasman’s contention that he  
played no role in facilitating the scheme by cutting scrap copper, bagging scrap  
copper and otherwise handling scrap copper. To that extent, Plasman’s role is that  
of an active participant, not a passive observer of the scheme. Accordingly, the  
Employer has established cause for discipline.  
502 The most challenging determination regarding Plasman is whether dismissal is an  
excessive response in the circumstances. In making this assessment I note that the  
purpose of discipline is corrective, not punitive. Reinstatement is an available  
remedy, even in response to serious acts of misconduct.  
503 The Union identified factors that point in favour of reinstatement. Plasman had a  
good work record. Further, I was favourably impressed by Plasman’s apparent  
insight into his poor judgement. Plasman was open in his testimony and accepted  
some responsibility for his misconduct. He did not sign blame to others for his own  
choices. Moreover, I acknowledge that while Plasman knowingly engaged in this  
course of conduct he did so partly under a self-imposed pressure to get along with  
his supervisor who orchestrated the scheme. Plasman readily conceded in cross-  
examination that the correct course of action would have been to follow Duran’s lead  
in refusing the money and reporting the matter.  
504 Another consideration pointing in favour of the viability of Plasman’s reinstatement  
is the fact that he volunteered an admission at the interview when presented with  
particulars of the allegations at hand. As noted above, I do not place critical weight  
on the fact that Plasman did not volunteer an admission in response to  
unparticularized assertions during the opening salvo of questions at the June 27,  
2018 interview.  
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505 Similar to the circumstances facing the arbitration board in White Spot I find in the  
circumstances of the present case that the Employer has a significant interest in  
deterrence. The employees working in the Utilities Department are trusted to work  
in an unsupervised setting with the City’s property. Setting this case apart from the  
circumstances in White Spot, I find that Plasman was a knowing and active  
participant as opposed to an individual who allowed himself to be momentarily  
exploited in the commission of the scheme.  
506 The crux of the question before me is whether the necessary trust relationship can  
be restored. Plasman stands apart from MacKenzie and Baranec in that he disclosed  
his participation. Plasman had the fortitude to come forth to that extent. Nonetheless,  
I find that although Plasman was honest to a point, he still mischaracterized his  
participation in the scheme by minimizing his involvement in the cutting and bagging  
of copper, testifying that he never discussed the scheme with his friend McBoyle, by  
portraying Lewis in his testimony as the lone individual responsible for cutting and  
bagging copper, and not issuing a timely disclosure that Adamik had provided him  
with money for his participation in the scheme on the McLean Road job.  
507 I conclude that Plasman has regretfully fallen short of the necessary recognition and  
acceptance of his misconduct, such that it is reasonable to conclude that the  
necessary trust to maintain a viable employment relationship can be restored. I have  
found the credibility of his testimony was wanting in several significant respects, as  
identified above. Balancing these considerations, I conclude that dismissal is not an  
excessive response in the circumstances.  
Andrew McBoyle  
508 McBoyle was dismissed for theft and dishonesty, as recorded in the dismissal letter  
set out in the factual background.  
509 McBoyle was an 11-year employee at the time of his dismissal with an otherwise  
good work record—albeit six years seasonally, and five years full-time. It is  
undisputed that McBoyle cut/bent and bagged copper in furtherance of the scheme,  
accepted money acquired from the scheme, and covertly assisted Lewis to hide  
bags of copper to facilitate their movement to the recycler.  
510 The Union submits that McBoyle did not act with the intention to deprive the City of  
its resources. It submits that McBoyle did not act with the requisite intention to  
engage in a theft and did not engage in premeditated misconduct. I reject the Union’s  
characterization based on McBoyle’s testimony.  
511 In cross-examination McBoyle confirmed that he understood Kidd had referred to  
the copper scheme when asking the opening salvo of general questions concerning  
the theft of City property. It was only when McBoyle was prompted by the direct  
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allegation that the Employer had evidence that he was involved in the theft of City  
property that McBoyle admitted to his participation.  
512 McBoyle initially testified that he did not feel like he was doing something “really bad”  
but later conceded that he knew what he was doing was wrong and that his  
acceptance of money derived from the scheme was wrong. McBoyle agreed when  
the question was put to him later in cross-examination, “You became so immune to  
the fact that you were repeatedly participating in a theft scheme that you didn’t even  
think about it?” McBoyle understood that scrap metal was to be placed in the City’s  
recycling bin at all material times. I find that McBoyle was fully aware that he was  
acting in furtherance of a theft and that he attempted to minimize his awareness of  
his culpability.  
513 I accept that McBoyle was less involved in comparison to Lewis however he was not  
a minor player as Lewis required his assistance to complete the scheme. McBoyle  
was a participant, not a passive bystander or a bit player as he attempted to portray  
himself.  
514 I further find that McBoyle withheld the disclosure of his involvement until he was  
presented with contrary evidence. I do not accept the credibility of McBoyle’s  
assertion that he simply forgot that he had recently (within the previous five to six  
weeks) helped Lewis to transfer bags of copper at the Chester dump, when  
questioned on June 27, 2018. I further reject the credibility of McBoyle’s assertion  
that he simply forgot that he had assisted Buizer to remove a fire hydrant from a  
vehicle when questioned on June 27, 2018. Further, I find it inherently improbable  
that McBoyle never spoke a word to Lewis about receiving money from him at the  
time of receipt.  
515 Although McBoyle admitted to his participation in the scheme, I conclude that he  
only did so when faced with contradictory evidence and further attempted to  
minimize his role. In his testimony, McBoyle attempted to explain away his culpability  
on the basis that he was an otherwise good worker who was simply focused on doing  
a good job. I reject the credibility of that assertion. It was manifest to a reasonable  
person that regularly cutting and bagging of scrap copper was a marginal task that  
did not meaningfully contribute to the completion of the job.  
516 McBoyle engaged in serious acts of misconduct. For the reasons set out above I do  
not find that McBoyle’s testimony in this proceeding was completely forthright. Like  
Plasman, I conclude from McBoyle’s testimony that he has not demonstrated a  
complete recognition and acceptance of his misconduct. These are critical factors in  
assessing the viability of an ongoing employment relationship. Accordingly, I cannot  
reasonably conclude that the trust necessary for a viable employment relationship  
is capable of being restored. For all these reasons, I conclude that dismissal is not  
an excessive response in the circumstances. The grievance is denied.  
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Travis Buizer  
517 Buizer was dismissed on the grounds that he stole copper, took a City fire hydrant  
and was not forthcoming at his interviews.  
518 Buizer was a 17-year employee with no related discipline at the time of his dismissal.  
519 I have reached the same conclusions concerning Buizer as with MacKenzie  
concerning the alleged theft of a fire hydrant. I do not find that the Employer has  
established its allegation of theft of a fire hydrant against Buizer. The fire hydrant  
was the property of the contractor when Buizer took possession of it. Buizer did not  
act to deprive the City of its property of a fire hydrant. Further, I reject the Employer’s  
claim that Buizer acted surreptitiously in transferring the hydrant to his vehicle. The  
transfer occurred in the Public Works Yard within plain sight of anyone in the  
immediate vicinity.  
520 The Employer attempted to rehabilitate its position regarding the alleged theft of a  
fire hydrant by relying on alleged violations of its policies concerning conflict of  
interest and the use of City property. The Union has provided a complete answer in  
this regard. I conclude the Employer has expanded the grounds for Buizer’s  
termination to include policy contraventions at a late stage in the proceeding.  
Established arbitral jurisprudence holds an employer fairly strictly to the grounds it  
has alleged for discipline. This principle is aimed at maintaining the integrity of the  
grievance procedure: Aerocide.  
521 I understand that the Employer expected that its fire hydrants are kept for recycling.  
However, Buizer did not take possession of a fire hydrant that belonged to the  
Employer.  
522 The Employer also alleged that Buizer violated its policy regarding the improper use  
of City property. That policy requires that the City equipment be used solely for work-  
related purposes. I find there is a prime facie violation of that policy, given that a City  
vehicle was used to transport the fire hydrant back to the Public Works Yard.  
However, I do not find it is appropriate to permit the Employer to expand its grounds  
to include this violation at this point in the proceeding.  
523 I find that Buizer was straightforward and honest in his testimony. Buizer testified in  
a plainspoken and matter-of-fact style. He candidly conceded that he had openly  
participated in the copper scheme until he was appointed permanent Foreman 2 of  
the Construction Crew in or about 2013. He did not shy away from making  
admissions against interest and did not embellish his recollection.  
524 Buizer participated in the scheme during a period in which the Employer had not  
taken a strict approach to the use of City resources by employees. As set out in the  
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factual background above, manager Ravi Chinna addressed the above-noted  
concerns at crew talks in June and July 2013. Manager Mani Deo also reinforced  
the same message. Employees were advised to avoid personal gifts from  
contractors, not to use the City garbage and not use City property for personal  
benefit. Chinna did not know at the time that employees had developed the practice  
of cashing in scrap copper. Nonetheless, Chinna also told employees they were  
expected to place scrap metal into the recycling bin. Goff understood at the time that  
Chinna had drawn “a line in the sand” regarding this practice. Shop Steward and  
Foreman Roy Savage testified to the same effect albeit the crew talk notes in  
evidence do not contain a specific mention of copper. Regardless, as far as Goff and  
Savage understood, the practice of cashing in scrap copper had ended at that point  
in time.  
525 The Employer did not explicitly forgive misconduct that predated the Chinna and  
Deo crew talks. There is no strict limitation period on imposing discipline for long  
uncovered acts of dishonesty. Nonetheless, I accept the thrust of the Union’s  
submission that the scheme had been perpetrated up to 2013 on a basis that it was  
reasonable for Buizer to conclude that the handling of bags of scrap copper did not  
amount to a matter that would attract more than a casual management concern. For  
example, Goff testified that bags of copper stood in open view at the Water Bay.  
These circumstances inform my assessment of Buizer’s state of mind—specifically  
the extent to which he was cognizant of the seriousness of his wrongdoing. I find the  
circumstances attenuate Buizer’s culpability for his participation in the scheme to  
2013. At that point Buizer was aware—both from the good counsel of his wife and  
his Employer—that participating in the scheme was dishonest.  
526 I accept the Union’s submission that the evidence does not establish on a balance  
of probabilities that Buizer accepted money derived from the copper scheme on the  
McLean Road job in 2017. However, that is not a complete answer to Buizer’s  
culpability regarding his conduct on that project. I have reached that conclusion  
based on Buizer’s testimony that he was aware that Plasman was cutting and  
bagging copper in furtherance of the scheme on the McLean Road job. Buizer knew  
bags of cooper were in the Construction Van when Plasman and Adamik were  
working on that job (Adamik is no longer employed). As the Foreman 2 of the crew,  
Buizer was obliged to make additional inquiries and halt this course of conduct.  
Instead, he passively observed the perpetration of the scheme. I conclude that by  
not taking appropriate action, Buizer breached his obligation to act honestly in good  
faith in the discharge of his duties as a Foreman 2. At minimum, Buizer acquiesced  
to what he had ample reason to believe was the theft of scrap copper. He did so  
while acting in a supervisory capacity.  
527 The Employer faults Buizer for not caring about the conduct of the Water Crew in  
perpetrating the scheme. In my judgement, Buizer used a clumsy expression to  
convey that he did not pay attention because the work of the Water Crew is not  
under his purview as Foreman 2 of the Construction Crew. Similarly, I find that Buizer  
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made his best attempt to estimate the value of the scrap copper that had been  
cashed in when he participated in the scheme. I do not find a reliable basis to  
conclude that he minimized the number.  
528 As set out above, the framework of governing principles is well-established.  
Industrial discipline under the just cause standard is aimed at correcting behaviour.  
Dismissal is reserved for circumstances where it cannot be reasonably concluded  
that the restoration of the employment relationship can be achieved. Hence,  
reinstatement is an available remedy even in response to serious acts of  
misconduct.  
529 I find the Employer established some cause for discipline on the basis set out above.  
Was Buizer’s dismissal an excessive response in all the circumstances? The crux  
of that question turns on whether there is a reasonable basis to conclude that the  
necessary trust relationship can be restored.  
530 In my judgement, Buizer stands apart from MacKenzie and Baranec in that he  
disclosed his participation. He also stands apart from Plasman and McBoyle in that  
he was forthcoming in disclosing his participation to the best of his recollection. I do  
not find that Buizer sought to mischaracterize his participation in the scheme by  
minimizing his involvement in the cutting and bagging of copper. As noted above,  
there are significant attenuating circumstances regarding Buizer’s participation in the  
scheme until 2013. Further, Buizer is a long-service employee without a relevant  
discipline record. These considerations point in favour of Buizer’s rehabilitative  
potential.  
531 Nonetheless, there are significant aggravating circumstances that compel me to  
conclude that the necessary trust relationship cannot be restored. One aggravating  
feature of Buizer’s misconduct lies in the elevated position of trust that he held as a  
Foreman 2, particularly his failure to act in response to the perpetration of the  
scheme on the McLean Road job. It is significant that happened when Buizer was  
well aware that the scheme was wrong. I add that the Employer has a significant  
interest in deterrence given that it trusts its Utilities crews to work in an unsupervised  
setting. I am also left with the troubling conclusion that although Buizer was a  
forthcoming witness in many respects, he was not completely honest in his testimony  
that said he forgot identifying Coral Steele when interviewed. While I accept that  
Buizer had no direct knowledge that Steele was involved, I do not find it credible that  
he would altogether forget identifying her at his interview.  
532 I conclude in all the circumstances that dismissal is not an excessive response  
regarding Buizer’s misconduct. The Employer’s legitimate interests in this matter  
cannot be reconciled with Buizer’s reinstatement. However, Buizer must be  
exonerated from the allegation that he stole a fire hydrant.  
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533 This brings me to the Union’s submission that the Employer violated Buizer’s  
privacy. The Union submits that the Employer’s investigators tailed Buizer to  
determine what he would do with the fire hydrant without justification. The Union  
submits the Employer had no justification because the fire hydrant was the property  
of the contractor.  
534 As set out above, the facts are that on May 11, 2018, the Employer asked the  
investigator to watch Buizer. That decision was made because an employee  
observed Buizer and McBoyle loading what appeared to be a heavy object from a  
City vehicle into Buizer’s personal vehicle. That happened the morning of May 11,  
2018. On May 11, 2018, the investigator observed a fire hydrant at the back of  
Buizer’s personal vehicle. On May 12, 2018, Buizer’s wife was observed driving  
Buizer’s vehicle from his residence. The investigator followed Buizer’s wife as he  
was tasked with tracking the fire hydrant located in the vehicle. The surveillance of  
Buizer ended on May 13, 2018.  
535 Kidd testified in direct examination that fire hydrants are City property that hold value  
for recycling or for parts salvage. If the contractor decommissions a fire hydrant it  
becomes the property of the contractor. Nonetheless, Kidd testified that employees  
were not to accept gifts from contractors as that puts them in conflict of interest.  
536 The Union and the Employer invoke the test enunciated in Vernon Firefighters  
regarding the Union’s privacy claim. Applying that test, the Employer must establish  
that the collection of personal information through surreptitious surveillance is  
reasonable in all the circumstances. An employee’s right to privacy is not absolute  
and must be balanced against an employer’s legitimate interests to collect personal  
information. Relevant circumstances include: 1) the reason for surveillance—the  
basis for suspicion supporting the decision to surveil; 2) efforts made to address the  
problem in other ways; 3) the availability of other sources of information; 4) employee  
expectation of privacy at the time and place of the surveillance; 5) scope of personal  
information collected (all employees or only employees about whom the employer  
has suspicion); 6) the extent of intrusion into privacy (constant or transitory), and; 7)  
the seriousness of loss of privacy by employee captured by the surveillance.  
537 In my view the Employer’s conduct fails at the initial stage. I conclude there was no  
reasonable basis for Buizer’s surveillance based on the suspected theft of a fire  
hydrant. Further, there were less intrusive steps available to reasonably address the  
Employer’s concerns. Kidd was aware that fire hydrants removed by contractors  
were the property of the contractor, not the property of the City. The fact that Buizer  
left the Public Works Yard with a fire hydrant was observed by an independent  
witness. There was little to be added to the investigation by the surveillance of Buizer  
or his wife, both at home and in the community. Buizer maintains a legitimate  
expectation of privacy at his home and regarding his private business in the  
community (attendance at a medical appointment). In my judgement, there were  
reasonable steps available to the Employer, short of engaging in surveillance of  
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Buizer at his home and personal time to address any legitimate interest it had in  
investigating Buizer’s acquisition of the fire hydrant. For all these reasons, I find that  
the Employer’s surveillance violated Buizer’s privacy. Buizer is entitled to an award  
of damages. I retain jurisdiction to decide the quantum if the parties cannot agree.  
538 In the result, Buizer’s grievance is allowed in part.  
Coral Steele  
539 The Employer contends in its dismissal letter to Steele that she was dismissed for  
just cause on the following grounds: 1) she was engaged in the theft of scrap copper  
and received proceeds from the sale of scrap copper; 2) she denied receiving the  
proceeds from the sale of scrap copper at her interviews; and 3) she was dishonest  
when denying any knowledge of the copper scheme and advancing safety as a  
rationale for cutting and bagging copper. The dismissal letter is reproduced for  
convenience as follows:  
You [Steele] were interviewed on June 27 and July 5, 2018. The  
City’s investigation has revealed that you have been engaged in the  
theft of City property, specifically copper piping, and received  
proceeds of the sale of that piping.  
When questioned about this matter during the City’s interview of you,  
you denied taking any City property or receiving money for City  
property. The City’s evidence is that you have received money in the  
past from the sale of copper.  
You also denied any knowledge of the copper scheme at all during  
your interviews. Given your frequent presence at the worksite as a  
working foreman, the City does not accept your claim as being true.  
When confronted with the City’s evidence that it knew of the practice  
of cutting and bagging copper, you claim this practice takes place as  
a safety precaution. Your claim is not believable in light of the City’s  
evidence.  
You failed to be forthcoming during your interviews in respect of your  
participation in or knowledge of the copper scheme. Your lack of  
candour is very concerning, given your responsibilities as a foreman  
2.  
You have irreparably breached the trust of the City and your  
employment is no longer tenable.  
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540 The Employer seeks to establish Steele’s culpability on the following interrelated  
grounds: 1) Buizer identified Steele as a participant in the scheme when interviewed  
and said that all the foremen had participated; 2) Steele was the Water Operator  
when the scheme was perpetrated; 3) Steele lied in her testimony that she had not  
collaborated with others regarding her opening statement at her July 5, 2018  
interview, when she said that she had been on a “roller coaster” and was not in the  
“greatest state of mind;” 4) Steele lied in her testimony that she had placed scrap  
copper in the recycling bin during her time as a Water Operator and as a Foreman  
2, and had seen Harold Lewis do so; 5) Steele was evasive when answering in  
cross-examination whether she was familiar with jobs performed by the Water Crew  
and attempted to minimize the time she spent working with the Water Crew; 6)  
Steele was unwilling to acknowledge the words attributed to her in Exhibit 5 when  
those statements were unhelpful to her; 7) Steele’s explanation that copper was cut  
for safety purposes at her interviews and her denial that she said scrap copper was  
shoved into a bag was not credible; 8) Steele’s recollection was unreliable, as  
evidenced by her assertion that the opening salvo of questions put to her on June  
27, 2018 were repeated at her July 5, 2018 interview and that Kidd disclosed at the  
June 27 interview that Lewis had admitted to the scheme; 9) Steele was likely in a  
position to observe the operation of the scheme given evidence that the scheme was  
well known, that Steele had access to the Water Van compartment containing bags  
of copper in the course of her workday, and that Steele had spent the majority of her  
work time on the Water Crew during the last seven years of her career between June  
2011 and July 2018—approximately 22% of her hours during her last two and half  
years working as Foreman 2 were as a Foreman 3 (based on City records and  
assuming Steele’s narrative of her activities); 10) Steele had worked so closely with  
the Water Crew that she had been advised to stop micro-managing its work; 11)  
Steele was in a position to observe others cutting and bagging copper in the Water  
Van while she was at the worksite.  
541 I begin by observing that the evidence of those witnesses who identified Steele  
during their interviews as having participated in or known about the copper scheme  
is based on assumptions. I understand that these statements were made in  
circumstances in which each of the witnesses were expected to give accurate  
answers. I find that each of the employees who identified Steele as a participant did  
so to the best of their ability. However, I find the observational basis for those  
assertions is too flimsy to be accorded weight in the adjudication of the facts at issue.  
542 I also find that testimony to the effect Steele must have observed or was at least in  
a position to observe the cutting and bagging of copper falls within the category of  
informed speculation. As noted above, Duran conceded that he was unable to  
identify a specific instance during which Steele was in fact able to make that  
observation. Similarly, Buizer was unable to offer a reliable foundation for his  
assumption that Steele had participated in the scheme, apart from his assumption  
that everyone was aware. Nor am I persuaded based on the recycling records that  
Steele lied when she testified that she placed copper in the recycling bin and  
believed that she observed Lewis doing the same on occasion.  
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543 Steele was on and off the jobsite on a regular basis. Scrap copper was typically cut  
and bagged in furtherance of the scheme out of direct sight and in the Water Van. It  
was often cut at lunch and on breaks. It was Steele’s practice to leave the crew alone  
on breaks. She drove to and from the jobsite in her own vehicle. In these  
circumstances, I find it is insufficient to assert that had Steele been in the line of sight  
of a person who was cutting copper that she would likely have observed that act.  
That assertion must be taken from the realm of the hypothetical into the factual by  
personal observation or the weight of relevant circumstances. I add that Steele is  
not fairly situated to mount a full answer and defence against unparticularized claims  
of this nature. For all these reasons, I do not find it appropriate in the circumstances  
to accord weight to testimony that Steele was generally in a position to observe the  
cutting and bagging of copper and therefore must have seen it happen.  
544 Factored into my deliberations is evidence that cutting and bagging scrap copper  
was a normal occurrence at the Water Crew’s jobsites. However, taking that point to  
an extreme does not accord with the evidence and circumstances at hand. I find it  
unlikely that this activity was performed so often that it would be inevitably observed  
by every individual working at a jobsite. In reaching this conclusion, I note that  
copper was not used on every job. Moreover, the cutting and bagging of copper to  
facilitate the scheme was not talked about. It was not conduct employees would  
likely perform in open view of persons who were not privy to the scheme or in  
circumstances likely to prompt questions—lest it become a discussion topic. The  
preceding inference fits with Duran’s testimony that members of the Water Crew  
would sometimes cut copper in the Water Van at the end of the day when the van  
was parked out of the way in the Public Works Yard. Steele drove her own vehicle  
and would not likely have been present to observe this.  
545 Finally, I note that Duran asked almost everyone on the crew about the scheme  
when he was presented with evidence it was being perpetrated. I find it likely that  
Duran would have asked Steele about the scheme had it been perpetrated when  
she was on site. The fact Duran did not ask Steele questions about the scheme in  
and around the time he first became aware of it, accords with a conclusion that  
Duran and Steele were not present at the same time it was being perpetrated. I am  
mindful that although Lewis told Duran not to trust Steele, Duran was not implicated  
in the scheme and had nothing to lose by asking Steele about it, particularly before  
Lewis gave him money.  
546 Despite these preceding points, I conclude on the testimony of Buizer, Goff and  
Savage, that the copper scheme had been carried out until 2013. Even if I set aside  
Goff’s interview comments and focus on his testimony, he testified that bags of  
copper were in plain view at the Water Bay up until that time. I find on the evidence  
that Steele had occasion to work on the Water Crew and in other capacities in  
Utilities in that period, initially as a Labourer I (now OMW), a Trades I, and as a  
Water Operator starting in 2011. In the circumstances, it is probable that she knew  
the scheme had been perpetrated until Chinna attempted to put a stop to it by  
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“drawing a line in the sand” during crew talks. Crew talks were held in June 2013,  
January 2014 and reinforced by Deo in July 2014. The Employer asks me to infer  
that because Goff, Buizer and Savage would be aware of the scheme before 2013  
that Steele must have participated or at least have known about it. In answering this  
question, I note that an allegation of theft and other forms of dishonesty are serious  
accusations. This is not a matter to be decided on the basis of a speculative leap  
because others were aware that Steele must also have known as well.  
547 As the Union aptly points out, there is an internal contradiction buried deep within  
the contention that Steele had to have known about the scheme prior to 2013 and  
post-2013. If Steele had to have known, then what about other employees who were  
not investigated or disciplined in connection with the perpetration of the scheme pre-  
2013 and post-2013—employees who both had occasion to work on the  
Construction Crew, the Sewer Crew or the Water Crew, and would have had  
occasion to observe bags of scrap copper? And if Steele had to have known or  
participated in the scheme because the scheme was so pervasive, how is it that the  
scheme happened to escape the attention of management personnel for a period of  
about 18 years? Having posed those questions, I fully accept that the state of the  
evidence does not support an inference that management was aware of the scheme  
at any point going as far back as 2000. But once that proposition is accepted as a  
matter of fact—as I conclude it must—I find it follows that other persons who worked  
for the City in what is now the Water Crew or the Utilities section would not  
necessarily have known about it either.  
548 For all these reasons I conclude that the evidence as a whole stops short of  
establishing on a balance of probabilities that Steele was either aware of the  
scheme, participated in elements of the scheme or accepted money from the  
scheme in the years leading to 2013. In my judgement the fact that others  
participated in the scheme during that period of time is insufficient to establish on a  
balance of probabilities that Steele must have done the same. To reflexively reach  
that conclusion comes perilously close to establishing guilt by association with other  
perpetrators—a conclusion which I do not find is justified based on my assessment  
of the direct and circumstantial evidence at hand.  
549 Unlike Buizer, I do not find that the evidence establishes on a balance of probabilities  
that Steele was an active participant in the copper scheme pre-2013 or acquiesced  
to the perpetration of that scheme. And by an active participant, I include the  
allegation that she received money for stolen copper. The most difficult  
determination is whether the scheme was carried out post–2013 in Steele’s  
presence so that she likely knew about it, and whether there is sufficient evidence  
to conclude on a balance of probabilities that Steele not only knew about the scheme  
but participated in it. Unlike other Grievors, there is no direct evidence to establish  
that Steele acknowledged the existence of the scheme. Steele became Foreman 2  
of the Water Crew on October 29, 2013 albeit she was off work and worked the flush  
truck for a period of time to recover from surgery. Steele was qualified to fill in as  
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Foreman 3 in the summer of 2017. As noted above, Steele was regularly taken away  
from the Water Crew jobsite to fulfil Foreman 2 duties and to serve as the acting  
Foreman 3.  
550 The Employer is correct in its submission that Steele was a poor witness. She was  
wrong in her recollection about some points. For example, she was certain that the  
opening series of questions was asked repeatedly and at both the June 27 and July  
5, 2018 interviews—and she was unwilling to acknowledge the frailty of her memory.  
Steele was sometimes argumentative and often nonresponsive when asked  
questions about the extent to which she worked on the Water Crew. Steele  
sometimes slanted her testimony in her favour insofar as she was unwilling to  
concede some obvious points, such as the proposition that she was so familiar with  
the Water Crew’s work because she had spent so much time doing it. To be fair, it  
must be observed that Steele was also very emotional when testifying. In my  
judgement there were times in her testimony where she was so emotional that she  
appeared to lose sight of the question asked. As with all of the witnesses, including  
Duran, each was asked to testify about details after a significant passage of time  
and in which circumstances it is reasonable to expect memory deterioration. I have  
taken these considerations into account in assessing Steele’s testimony.  
551 Although Steele’s demeanour left a negative impression, the case against her must  
ultimately rest on an objective foundation, assessed on a balance of probabilities.  
The onus remains on the Employer to establish the facts upon which it asserts just  
cause on a balance of probabilities.  
552 It is reasonable to infer based on the evidence that the post-2013 perpetration of the  
scheme was principally orchestrated by Harold Lewis with the covert participation of  
some members of the Water Crew. I add that the weight of circumstantial evidence  
supports a prima facie determination that Steele was at least aware of and  
acquiesced to the perpetration of the scheme post-2013. In these circumstances,  
the critical evidentiary assessment is whether Steele’s explanation that she was  
unaware of the scheme is credible—one that can be reasonably believed in the all  
the circumstances.  
553 Central to my assessment of the evidence is the fact that Lewis told Duran not to  
disclose the scheme to Steele or words to that effect. My interpretation of the import  
of Lewis’s admonition to Duran is informed by the fact Lewis also told Duran that  
Duran should not trust Steele lest she, “throw him under the bus.” Further, the  
evidence shows that Lewis and Steele had a strained relationship. That relationship  
was so rocky that Goff had to intervene. In the circumstances, I find it is inherently  
unlikely that Lewis would admonish Duran not to disclose the payment of money to  
Steele if she had participated in or had condoned his perpetration of the scheme.  
This finding informs my assessment of the circumstances the Employer relies on to  
establish Steele’s culpability.  
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554 The Employer raises a fair point in that Steele was regularly at the jobsite, despite  
the fact she was often away from the jobsite as a Foreman 3 and performed other  
occupational tasks. Further, Steele was known to actively work alongside employees  
in the trenches. It is uncontested that Steele had been instructed not to micro-  
manage the crews. Nonetheless, I accept the Union’s submission that Lewis and  
other Trade 1s who were complicit would likely have had enough time to perpetrate  
the scheme in Steele’s absence and behind her back. In making this assessment, I  
note that Steele primarily worked with the crew in the trenches which is not where  
the scheme was carried out. In these circumstances, the fact that Steele had micro-  
managed the crew does not necessarily mean that she was working in and out of  
the Water Van to the extent that she would inevitably see bags of copper. It is also  
reasonable to infer that bags of copper were not continuously present in the van  
such that it was inevitable for Steele to see them. The Union also raises a fair point  
in that burlap sacks were used for purposes other than storing scrap copper.  
Accordingly, the presence of a pile of burlap sacks in the compartment would not  
necessarily lead Steele to conclude that anything was amiss.  
555 I now turn to address the Employer’s contention that Steele’s credibility is  
undermined by her claim at the interviews that copper was cut and bagged for safety  
reasons—to avoid a tripping hazard.  
556 Steele testified that scrap copper was left in the ground but if it had to be removed,  
pieces six to eight inches long were thrown into a bucket in the Water Van. She  
testified that a longer piece would be pushed or bent and then placed out of the way.  
The goal was to keep the van tidy. In this context, a large piece of copper left on the  
floor would be a trip hazard. Steele was asked at the hearing to recall details of how  
often this happened while she was a Water Operator years before. Steele could not  
recall. I do not find that counts against her credibility. Steele did not train persons on  
the Water Crew to cut and bag copper for safety reasons. I find that fits with her  
account that it was unnecessary to do so, given that scrap copper could regularly be  
left in the ground and that pieces that had to be removed, could be managed in the  
common sense and time efficient manner as she described.  
557 This brings me to address the Employer’s argument that Steele’s credibility is  
undercut because she advanced a safety justification for the act of cutting and  
bagging copper. This contention also comprises a ground for dismissal. Steele  
denies that she said that.  
558 At this point I must reiterate my findings above regarding the weight that I attribute  
to Exhibit 5 and infirmities in the notes taken of the June 27, 2018 and July 5, 2018  
interviews.  
559 As set out above, the parties differ about whether Steele conceded on June 27,  
2018, that copper was cut and bagged for safety reasons and then changed her  
account when questioned on July 5, 2018. Steele testified that she did not assert  
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that copper was bagged. The Employer’s June 27 notes simply record the question  
“why cut up?” The response is recorded, “so you don’t trip on it, shoved into a bag.”  
The Union’s notes appear to support Steele’s testimony that she did not utter the  
words that copper was bagged. The Union’s notes indicate that manager Traviss  
asked, “what do you do with old copper?” Steele responded, “goes into the recycling  
bin in the yards,” at which point Traviss is noted to ask a leading question, “why do  
you bag it and cut it,” to which Steele responded, “to get it out of the way.” Exhibit 5  
records in part, “Ms. Steele said copper was cut up so you do not trip on it and it was  
shoved in a bag.” Steele testified in cross-examination that she understood the  
question asked was what she did with copper and that it was only if larger pieces of  
scrap copper were brought into the van that it was pushed, cut, or bent and put out  
of the way to avoid a tripping hazard—otherwise it was left in the hole. She added  
in cross-examination that her answer was predicated on her own practice. Again, I  
find critical context is lost given that Exhibit 5 is incomplete, the Union’s and the  
Employer’s notes do not directly correspond, and the notes do not accurately record  
the questions asked.  
560 Further, I have concluded from a review of the July 5 interview notes, that it was  
manager Dave Kidd who put to Steele that she had confirmed the scrap copper is  
cut up and put into a bag. Steele denied knowledge of the scheme. Steele also  
stopped short of confirming that copper was bagged which is critical given that  
bagging copper is an essential element of the scheme. The Union’s note-taker  
recorded the conversation in question and answer format. The Employer’s note-  
taker did not. Kidd is recorded by the Union’s notetaker to ask, in part: “have you cut  
up copper and concealed it in burlap bags?” Steele is recorded to respond as  
follows: “No. The copper is moved out of the way so people can’t trip on it. To the  
best of my knowledge any copper goes in the metal bin.” Later, Steele was recorded  
to say that copper is “moved out of the way so we do not trip on it.”  
561 To conclude on this point, I find that although Exhibit 5 is an agreed-upon partial  
record of words spoken at the June 27, 2018 interview, it is not a reliable basis to  
conclude what Steele meant by those words. Nor do the notes taken at the  
interviews convey a reliable record of the content and immediate context of the  
questions leading to the words attributed to Steele—apart from the notes taken by  
the Union’s note-taker at the July 5 meeting, which I find are the most reliable in this  
regard. In conclusion, I find that the notes of the June 27 and July 5, 2018 interviews  
do not accord with the proposition that Steele said that copper was cut and bagged  
to avoid a tripping hazard. Rather, I find she explained that if copper had to be  
brought to the van and was too long to put into a bucket, it was pushed or bent and  
put out of the way to avoid tripping hazard. Bagging copper was an essential element  
of the scheme. Steele’s explanation is credible on its face and does not accord with  
the elements of the copper scheme as it was perpetrated by Lewis and others.  
562 I do not accept Steele’s denial that she collaborated with others concerning her  
opening statement at the July 5, 2018 interview. I accept Steele’s assertion that  
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these comments honestly reflected how she felt at the time, and that may explain  
why she views her opening statement as her own. However, the fact that her words  
closely accord with those given in opening statements provided by others along with  
the fact that the statements were made as part of an opening statement are an  
unlikely coincidence. This is a troubling finding. However, I do not conclude on  
assessment of all the evidence that because Steele was dishonest in her response  
to this question, that that she probably lied about her knowledge and participation in  
the copper scheme.  
563 For all these reasons I do not find the evidence establishes on a balance of  
probabilities that Steele was engaged in the theft of scrap copper and received  
proceeds from the sale of scrap copper. Accordingly, I do not find on a balance of  
probabilities that Steele was dishonest at the interviews when she denied receiving  
the proceeds from the sale of scrap copper. Nor do I find on a balance of probabilities  
that Steele was dishonest in citing safety as part of the rationale for the manner in  
which she handled scrap copper and expected others to handle scrap copper.  
564 Accordingly, I conclude the Employer has not established on a balance of  
probabilities that Steele has given cause for discipline on the grounds alleged. I order  
that Steele be reinstated and made whole. Given my conclusion that the Employer  
has not established just cause for discipline on the grounds alleged, an award of  
damages in lieu of reinstatement is not appropriate.  
565 I retain jurisdiction regarding the implementation of this remedy.  
566 This brings me to the Union’s submission that the Employer violated Steele’s  
privacy. The Union submits that the Employer’s investigators tailed Steele on the  
basis that she went into the Public Works Yard in suspicious circumstances when it  
was reasonably known that she was justifiably present at the yard to work a shift on  
standby. Further, the Union submits that the Employer’s investigators viewed  
Steele’s social media account without reasonable justification given that it already  
had a picture of Steele available from the City’s file. The Union observes that at the  
time of these alleged intrusions the City had no evidence that Steele was involved  
in the copper scheme. Rather, Duran advised that Lewis told him not to advise  
Steele about the scheme. The Union argues that the Employer could have  
exhausted less intrusive means to develop a prima facie case that Steele was  
involved.  
567 The Union and the Employer invoke the test enunciated in Vernon Firefighters  
regarding the Union’s privacy claim. Applying that test, the Employer must establish  
that the collection of personal information through surreptitious surveillance is  
reasonable in all the circumstances. An employee’s right to privacy is not absolute  
and must be balanced against an employer’s legitimate interests to collect personal  
information. Relevant circumstances include: 1) the reason for surveillance—the  
basis for suspicion supporting the decision to surveil; 2) efforts made to address the  
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problem in other ways; 3) availability of other sources of information; 4) employee  
expectation of privacy at the time and place of the surveillance; 5) scope of personal  
information collected (all employees or only employees about whom the employer  
has suspicion); 6) extent of intrusion into privacy (constant or transitory), and; 7)  
seriousness of loss of privacy by employee captured by the surveillance.  
568 I find that the City did have a reasonable basis to identify Steele as a candidate for  
surveillance based on its ongoing spot checks and the information it obtained from  
Duran. By April 26, 2018, the Water Van compartment was again full of copper and  
management expected that the copper would be removed. It was on that basis that  
the investigator was retained to conduct surveillance.  
569 On April 27, 2018, Lewis was observed at approximately 7:00 PM entering the Public  
Works Yard with his personal vehicle and leaving about four minutes later. Shortly  
after, the bags of copper were no longer observed in the back of the Water Van. On  
April 28, 2018, burlap sacks were observed in the back of Lewis’s vehicle while it  
was parked outside a retail outlet. Bags of copper were again observed in the Water  
Van compartment on May 2, 2018.  
570 Steele was employed in a supervisory capacity over the Water Crew. It was logical  
to investigate whether she was in fact involved in the scheme. I find that the  
Employer had a reasonable basis to look at social media postings in the public  
domain to identify Steele’s associates in preparation for the investigation. I do not  
find that there were less intrusive ways to obtain that information without alerting  
Steele. This was a transitory and minimal intrusion given that information was posted  
on a public forum where there is little reasonable expectation of privacy. I add that  
this inquiry was narrowly focused on the specific purpose of advancing the  
investigation of the copper scheme.  
571 When Steele entered the Public Works Yard on May 4, 2018, the investigator  
followed Steele into the community based on an incorrect assumption that she was  
not to enter the Public Works Yard after hours with her personal vehicle. In fact,  
Steele was present on a scheduled standby shift, albeit it appears the investigator  
was unaware of that. Nonetheless, the grounds for surveillance and other relevant  
factors (identified above) must be assessed in view of the objective circumstances  
at hand.  
572 I note that as of May 2, 2018 bags of copper were once again observed in the Water  
Van. Based on information gathered in the course of the Employer’s previous  
investigation, Steele’s role as the Foreman 2, and the fact that Lewis was previously  
observed removing bags of scrap copper from the Yard after hours, I find that there  
was a reasonable basis for the investigator to watch Steele’s activities that evening.  
Given the information gathered to that point in the investigation, it was reasonable  
to conclude that the copper scheme was conducted surreptitiously and that less  
intrusive means were unavailable to uncover the scope of the scheme than those  
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involved. Included in my assessment is the fact that Steele was observed in a public  
place where she had a minimal expectation of privacy. This intrusion lies at the lower  
end of the spectrum. In all the circumstances, I conclude there was a reasonable  
basis connected to the investigation of the copper scheme to watch Steele in the  
community that evening. Considering the circumstances individually and together I  
conclude that the Employer’s surveillance of Steele was necessary for the  
investigation of employee misconduct and to manage the employment relationship.  
The intrusion was proportional to Steele’s interest in privacy at work and amounted  
to a reasonable exercise of management authority.  
Marco Stevens’ Circumstances  
573 Before concluding my analysis of Steele’s grievance I pause to address the Union’s  
argument that Stevens’ circumstances are materially similar to those of Coral Steele.  
I need not delve into that particular argument as I have not found just cause for the  
discipline of Steele. Nonetheless, I will record my conclusions concerning Stevens  
insofar as the Employer’s treatment of Stevens may have a bearing on the discipline  
imposed on Baranec, MacKenzie, Plasman, Buizer and McBoyle.  
574 I note at the outset that Stevens was a five-year employee at the time of the June  
2018 interview. His name does not appear on any of the crew talk sign-in sheets in  
evidence in 2013 or 2014. Thus it is fair to infer that Stevens was not privy to the  
long-standing perpetration of the scheme pre-2013.  
575 Stevens worked on the Sewer Crew and as far as I can determine on the evidence  
the Sewer Crew did not use copper on a regular basis. I add that Stevens did not  
testify in this proceeding, so it is a challenge to interpret Duran’s account of Stevens’  
response to an open-ended question about the bin of copper openly placed in the  
Sewer Bay. One interpretation is that Stevens was aware of the copper scheme  
perpetrated by Lewis and other members of the Water Crew and chose not to follow  
down that path. Another interpretation is that Stevens believed that Duran had  
implicitly suggested that the copper be cashed in and rejected that notion. In my  
view, the evidence of Stevens’ response is equivocal regarding his awareness of the  
scheme. The Employer did not ask Stevens follow-up questions about how he  
understood Duran’s inquiry, the content of the response attributed to him by Duran  
and his intention behind the words he allegedly used in response to Duran’s inquiry.  
Nonetheless, I am not satisfied on a balance of probabilities that Stevens acted to  
mislead the Employer in a manner that is materially similar to that of the other  
Grievors who are found to have committed misconduct in this matter. Finally, I  
observe that Buizer’s assertion that he knew Stevens accepted money was bereft of  
particulars—much like interview responses given by Buizer and other Grievors to  
the effect that Steele must have known about the scheme or must have been  
involved. For all these reasons, I do not find any of the Grievors for whom I conclude  
there was just cause for dismissal, were unfairly singled out in comparison to  
Stevens.  
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Bad Faith in the Manner of Dismissal  
576 The Union submits that the Employer acted in bad faith and caused the Grievors  
unnecessary mental distress by gratuitously providing false information to the media.  
It submits that City Manager John Leeburn provided unnecessary details such as  
the length of service of the Grievors which allowed persons to identify Coral Steele  
as a 21-year employee. Further, the Union complains that Leeburn advised a  
reporter that the estimated loss was more than $75,000 over the previous 10 years  
without a legitimate foundation. The Union adds that Leeburn told the reporter that  
the Grievors had been involved in a coordinated, deceptive, covert and long-  
standing plan before the grievance procedure had run its course and that the City  
had planned to report the allegations to the police before having done so.  
577 The parties rely on the test for bad faith as set out in Hamilton, supra. In that case,  
the arbitration board adopted the test enunciated by the Ontario Court of Appeal in  
Gismondi v. Toronto, 2003 CarswellOnt 1498—something akin to intent, malice or  
blatant disregard for the employee; Alberta Health Services and United Nurses of  
Alberta, 2016 CarswellAlta 1006; City of Windsor and CUPE Local 543 (2011), 208  
L.A.C. (4th) 130; and Purolator and Teamsters, Local 31 (2015), 264 L.A.C. (4th)  
434 (McEwen)—proof of intent or malice.  
578 As noted in the factual background above, the sequence of events leading to the  
news story originates in a war of words between the parties beginning with a July 4,  
2018 Union notice to the entire bargaining unit critical of the termination of two  
employees for their alleged participation in the copper scheme. Leeburn responded  
on July 6, 2018, with an email to all employees. It appears the Employer’s July 6,  
2018 email was leaked to the local media.  
579 It is fair to infer that Leeburn’s estimate of the total amount stolen was an informed  
guess. However, I do not find that this misstatement is evidence of bad faith. Leeburn  
made a loose calculation but that does not amount to intentional disregard for the  
truth or malice as far as I can determine on the evidence at hand. As set out above,  
Leeburn’s assertion that the copper scheme was a coordinated, deceptive, covert  
and long-standing course of action is accurate. There was a reasonable foundation  
for those assertions based on information obtained from Lewis as well as the  
investigators’ account of Lewis and McBoyle’s conduct at the Chester dump. I add  
that Buizer had informed the Employer that the scheme had been perpetrated as far  
back as 2000. The Employer has also raised a legitimate point in that Leeburn did  
not accuse all the employees of theft. Some were accused of a “lack of full disclosure  
and cooperation during the investigation.” Finally, the disclosure of the length of  
service of the individuals involved is remotely connected to the identities of the  
Grievors. Leeburn’s disclosure to the media was ill-advised and regrettable from the  
standpoint of building positive labour relations. In my view, Leeburn committed an  
act of bad judgement that only exacerbated the Employer’s difficulties re-  
establishing a constructive dialogue with the Union. However, I do not find the  
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impugned conduct meets the bar for bad faith as that doctrine is contemplated by  
the authorities.  
V.  
CONCLUSION  
580 I find the Employer has established just cause for dismissal on the grounds alleged  
for Plasman, McBoyle, and Baranec. The Employer has also established just cause  
for dismissal of MacKenzie, despite my conclusion there was no cause for discipline  
in connection with her taking possession of a fire hydrant. Similarly, I find the  
Employer has established just cause for Buizer’s dismissal, despite my conclusion  
there was no cause for discipline in connection with him taking possession of a fire  
hydrant. I further declare that the Employer violated Buizer’s right to privacy in its  
investigation of Buizer’s conduct. Buizer is entitled to an award of damages. Finally,  
I conclude the Employer has not established on a balance of probabilities that Steele  
gave cause for discipline on the grounds alleged. The Employer is ordered to  
reinstate Steele and to make her whole. I retain jurisdiction with respect to Steele’s  
remedy.  
Ken Saunders, Arbitrator  


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