In the matter of a Collective Agreement  
between  
the Government of the Province of Alberta  
(the “Employer”)  
and  
The Alberta Union of Provincial Employees  
(the “Union”)  
and  
In the matter of Grievance # 859603  
before  
Arbitrator William D. McFetridge Q.C.  
_
_____________________________________________________________________  
Representing the Union  
Micah Field - Blakely + Dushenski  
Stephanie Joyce - Blakely + Dushenski  
Representing the Employer  
Richard Loomer - Alberta Justice  
_
_____________________________________________________________________  
PRELIMINARY MATTERS  
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. The Employer objects to this matter proceeding on its merits because the Grievance  
was filed outside the mandatory time limits agreed to in the Collective Agreement.  
The Employer says that I do not have jurisdiction to hear and decide this Grievance.  
In the alternative, the Employer argues that the doctrine of laches applies and  
therefore the Grievance should be dismissed.  
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. A hearing into the preliminary matter was conducted via Zoom on March 1 - 4, 2022.  
. Due to the sensitive nature of some of the allegations outlined herein, the parties  
asked that the name of the Grievor as well as the names of some other persons  
referred to herein not be disclosed. The Grievor will be referred to as “the Grievor”  
throughout, certain other persons involved in this matter will be referred to by their  
position, role or their initials.  
Page 1 of 51  
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. The parties provided an Agreed Book of Exhibits which included 16 Exhibits. An  
additional exhibit was added during the hearing.  
FACT SUMMARY  
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. The Grievor is 49 years of age and grew up in Edmonton. Her mother was a  
residential school survivor who had drug and alcohol problems. The Grievor, her  
sister and her mother were abused by their step-father. She left home at age 15 and  
had a child at 17. She completed her high school while a single parent when she  
was in her early 20s.  
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. The Grievor was hired as a temporary wage employee by Correctional Services in  
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997. Her temporary employment ended in 2000. She was re-hired in 2008 and  
worked at the Edmonton Remand Centre (ERC). She began as a trainee CPO1, and  
was later promoted to CPO11. She testified that this was the best job she ever had,  
she was able to support herself and her daughter. In 2011 she purchased a home  
where she still lives.  
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. On July 9, 2015, her employment with the Government of Alberta was terminated for  
cause. The termination was the subject of Grievance #857916. It was heard by a  
panel chaired by Arbitrator Jolliffe on January 17, 18, 19 and 25 and May 1, 2, and  
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, 2017. The termination was upheld. The Arbitration Award (hereafter the Jolliffe  
Award) was issued on August 18, 2017 and is included as Exhibit 12 in the Book of  
Agreed Exhibits.  
. The grievance that is the subject of this hearing (Grievance #859603 hereinafter “the  
Grievance”), was filed July 6, 2016 approximately one year after the Grievor’s  
employment was terminated and approximately six months before the matter was  
heard at arbitration. The Grievance alleges that on or about May 28, 2011 the  
Grievor was sexually assaulted at her home by a co-worker. The Grievance alleges  
that when she brought this to the attention of the Employer, she was told to “put it in  
a book, put it on the shelf and forget about it”. The Grievance also alleges that she  
was made to work with her attacker and that the Employer’s conduct was a  
violation/misapplication/misinterpretation of the Collective Agreement in particular  
but not limited to Articles 5 - 50.  
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. The redress sought is as follows: A cleared file as related to this matter; A  
declaration that the employer has violated/misapplied/misinterpreted the Collective  
Agreement and the Employer admits to covering this up; and that the Employer  
investigates my attacker; and the the Employer investigates the actions/statements  
of (the Director); and To otherwise be made whole, and any other remedy deemed  
appropriate in the circumstances.  
The Sexual Assault  
Page 2 of 51  
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0.The particulars of the sexual assault are set out in the police report prepared by the  
Edmonton Police Service (EPS) following an interview with the Grievor at her home  
on June 01, 2011 (Exhibit 6 in the Agreed Book of Exhibits). The report was  
prepared from notes taken by the Detective during the interview. The Grievor  
testified that the report is accurate.  
1.For purposes of this Grievance it is not necessary to go over the particulars of the  
sexual assault. A brief summary is as follows: The Grievor and her assailant were  
co-workers and he was married. They had an active sexual relationship for over a  
year. It ended in July 2010. On May 27, 2011, she was out drinking with a friend and  
became “somewhat intoxicated”. Over the course of the evening she exchanged text  
messages with her former sexual partner. The messages became increasingly  
sexual and ultimately she provided him with directions to her home with the  
expectation that he would go there and they would have sex. He arrived shortly after  
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:30 am on Saturday, May 28, 2011 and they engaged in consensual sex as  
planned. He then committed a sexual act to which she had not consented. He  
refused to stop when she protested. He pinned back her arms and forced himself on  
her. When he was finished he cleaned himself off and left. About half an hour later  
she texted him. The text message does not reveal the Grievor’s distress or support  
her claim that she was raped. The text message says “Thanks for the fuck, better  
than your friend”. She did not receive a reply. Five hours later she texted him again;  
she asked him if he had been at her place as she saw that they had been texting  
and that she had given him her address. About two hours later he replied, “nope”.  
She immediately responded “good” and “I was plastered. That can never happen  
again” to which he replied “Nope.” She explained to the police that she knew he’d  
been there but wanted to know what he’d say if she asked him.  
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2.The fact that the Grievor’s emails do not reveal her distress and are not consistent  
with her having been raped is not mentioned here to cast doubt or question her  
claim that she was raped but may be relevant to an understanding of why she did  
not want to proceed with criminal charges and whether she told the Employer that  
she did not want the matter investigated. The Employer did not see the Police report  
until years later and at all material times accepted that the Grievor had been raped in  
her home.  
3.In the afternoon of Saturday, May 28, 2011, her ex-brother-in law came by her home  
and found her crying and in distress. He arranged for her to go with a friend to the  
Sturgeon Hospital in St. Albert to be examined by a sexual assault nurse. They  
arrived at about 6:00 pm. They were directed to wait in a private room. A female  
RCMP Officer came to speak with her however the Grievor would not talk to her as  
she did not feel that she was ready. The Grievor and her friend were at the Hospital  
for several hours but returned home without being examined by a sexual assault  
nurse.  
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4.She saw her own family doctor at 5:00 pm on Monday, May 31, 2011.  
5.She later attempted to contact the RCMP Officer but was advised that because the  
assault occurred in the City of Edmonton, it would have to be reported to the  
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Edmonton Police Service (EPS). She did so later that day and a male and a female  
EPS Detective came to her residence and interviewed her on Tuesday, June 1,  
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011.  
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6.Near the end of the interview, the EPS Detective asked the Grievor what she  
thought would be the best course of action. She was informed that these types of  
actions are victim driven. She indicated that she wasn’t sure and asked for time to  
think about it. She told the Detective that she had disclosed the assault to three  
friends and provided him with their names and phone numbers.  
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7.She told the EPS Detectives that she had not slept in her bed since the assault and  
they took away her sheets and the towel that her assailant had used. It was agreed  
that they would speak again in a few days.  
8.The EPS contacted the Sturgeon Hospital and confirmed that the Grievor had been  
there on May 28, 2011. According to the Program Director for Emergency and  
Outpatient Services, the Grievor had not been examined by a sexual assault nurse  
due to “a failure in communications”. There was no explanation as what was meant  
by that phrase.  
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9.The Grievor was contacted again by the EPS on June 6, 2011. Their discussion  
lasted 50 minutes. The EPS Detective asked the Grievor whether she wanted them  
to proceed with the investigation past the reporting stage. The Grievor asked what  
would happen if the EPS spoke to the co-worker who had assaulted her, if there  
were sufficient grounds to charge him and what the court process would be like. She  
was advised that the next step would normally be for her to consent to a DVD  
recorded interview and that the Detectives would then speak to witnesses including  
the suspect. She was told that it was up to her whether the police would proceed to  
the next stage. She was advised that if charges were laid and the suspect plead not  
guilty, she would likely have to give evidence in court. She indicated that she would  
think about it but at this point, did not wish to proceed any further. The Detective  
suggested that she avoid contact with her assailant to the extent possible and if he  
contacted her, she should advise him that a police report had been filed and give  
him the Detective’s name and the case file number.  
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0.The Detective called her again the next day, June 7, 2011. The Grievor advised him  
that she had decided not to pursue the matter further and was dealing with this  
issue, as well as past issues, with a psychotherapist. He asked her about the sheets  
and the towel and she said she didn’t want them and asked him to dispose of them.  
1.The Grievor was off work on general illness leave for two shift rotations (about 18  
days) . During this time she stayed with her sister who lives out of the city. On her  
return to work she discussed the assault with NT, a female supervisor (CPO 111)  
and personal friend who was also a union steward. NT discussed the Grievor’s  
circumstances with another supervisor and arranged for the Grievor to meet with the  
Centre Director of the ERC (hereinafter the Director). The Director is the most senior  
manager at the ERC with overall responsibility for the operation of the institution. At  
the time, there were between 300 - 400 staff employed at the ERC.  
Page 4 of 51  
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2.The Grievor met with the Director sometime between June 18 and July 4, 2011. She  
was accompanied by SH, a friend and union steward. No one took notes. There is  
some conflict in the evidence concerning what was said during the meeting. SH, still  
works at the ERC but was not called to give evidence. The Employer argued that an  
adverse inference should be drawn from the Union’s failure to call SH to give  
evidence. SH testified under oath at the hearing into the Grievor’s termination and  
was questioned about the meeting. Her evidence was summarized by Arbitrator  
Jolliffe in his August 18, 2017 decision.  
3.Arbitrator Jolliffe summarized her evidence at p 98 of his award:  
Coworker SH, currently holds a CPO111 position at the ERC and at one time was  
a union steward. She acknowledged being a personal friend of the (Grievor)  
having known her for some 20 years. It was in her shop steward capacity that she  
attended (the Grievor’s) meeting with (the Director) in 2011. She took no notes. It  
may have been the second meeting between them, recalling that they discussed  
the grievor having been sexually assaulted by a more senior coworker who held an  
in-scope supervisory position with (the Grievor) choosing not to file any formal  
complaint. She said that she did not recall (the Grievor) indicating that she wanted  
an internal investigation, or even that (the Director) should discuss the situation  
with the perpetrator. … She recalled (the Director) offering mediation services with  
which the grievor was plainly not comfortable, not wanting to have any contact  
whatsoever with this individual. They raised the issue of not having her ever  
assigned to work with him. With (the Grievor) not wanting to proceed on any formal  
basis, she recalled (the Director) suggesting that she would have to “put it in a  
book and set it on the shelf”, which she took to be a very insensitive remark, even  
an “atrocious” one. By her recollection, (the Grievor) seemed upset and frustrated  
at the insensitivity and (the Director) not seeming to do anything “to help her out”  
including the insensitivity of offering mediation. …  
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4.While I appreciate that the above is hear-say and not a transcript of the testimony  
given by SH at the hearing into the Grievor’s termination, it has probative value. It is  
Arbitrator Jolliffe’s summary of the evidence of a material witness that was given  
under oath. What was said at this meeting is important to the Union’s case and SH  
was not called as a witness. Further, the decision of Arbitrator Jolliffe was not simply  
included as an authority, it was included by the parties in the Agreed Book of  
Exhibits and is an exhibit in these proceedings. The above quoted summary  
provides substance to the adverse inference to be drawn from the Union’s failure to  
call SH as a witness.  
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5.The Director testified that after the Grievor disclosed that she had been sexually  
assaulted at her home by a supervisor, they discussed how this was affecting her  
mentally. He asked if she was aware of the services available through Employer  
sponsored programs and encouraged her to seek counselling. The Director asked if  
she had reported this to the police and whether she would be bringing criminal  
charges against her assailant. She advised him that she had reported the incident to  
Page 5 of 51  
the police but was not going to bring charges and had told them not to interview her  
assailant.  
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6.According to the Director, she indicated that she wanted to continue in her job at the  
ERC and did not want her co-workers to know about the sexual assault. The Director  
testified that they discussed whether the Employer should conduct an investigation  
and she indicated that she did not want the Employer to do so.  
7.According to the Director, the Grievor expressed concern that if she filed criminal  
charges or made a formal complaint to the Employer, it would be difficult for her to  
continue working at the ERC. Although it appears that she had many friends among  
the staff at the ERC, she feared that if it became known that she had reported her  
assailant, she might be labelled a “rat”, treated badly by co-workers even to the  
extent that they might abandon her in an emergency. The Director indicated that the  
Grievor was emotionally distraught and that he understood the basis for her  
concerns.  
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8.The Director testified that all staff, including the Grievor, are aware of Standing  
Operating Procedure 2.20.04 (Exhibit 13) which stipulates that members who are  
questioned by the police concerning alleged criminal activity or are charged with a  
criminal offence, are required to report it to the Centre Director. He said that if such a  
report was received, the Employer would likely conduct its own investigation. An  
investigation by the Employer would involve interviews with her assailant and  
possibly other staff at the ERC.  
9.The Director understood that the Grievor wanted the sexual assault kept confidential  
and agreed to abide by her request. He did not order an investigation, did not speak  
to the police and did not speak to her assailant. He did not share the information  
about the sexual assault with anyone who did not need to know. It was his evidence  
that the Grievor and her Union Steward knew that an investigation into the assault  
by either the Police or the Employer, would involve questioning her assailant and  
the Grievor did not want that.  
0.To accommodate the Grievor’s desire to continue in her job at the ERC but not work  
with her assailant, the Director offered to arrange for them to be scheduled on  
different shifts. He testified that both the Grievor and her Union Steward agreed to  
this proposal. The Director testified that there was no discussion of transferring the  
Grievor or her assailant to another institution. He explained that the Grievor wanted  
to stay in her job at ERC and her assailant could not be transferred without good  
reason which would likely require a full investigation of the Grievor’s allegations.  
1.The Director testified that there was no thought that this would become a grievance.  
The discussion was about the best way to proceed and he believed that he was  
doing what the Grievor and Union wanted. He proposed that the Grievor and her  
assailant be scheduled on different shifts and believed the Grievor and her Union  
Steward saw this as an acceptable solution. He also told the Grievor that if she  
wanted to continue in her job at the ERC but not have this matter investigated, she  
would have to put the incident behind her. He provided an analogy of a couple who  
Page 6 of 51  
decide to make a go of their marriage despite one of them having cheated. He said  
that the only way that it could work is if they put the cheating aside and forgot about  
it. He said he advised the Grievor that if she did not want to have this matter  
investigated but continue in her job, she would have to do the same. He admitted  
saying “she could put it on a piece of paper, put the piece of paper in a book and put  
the book on the self.”  
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2.The Director denied that he told the Grievor that she must forget about the incident  
but did advise her that if she did not want to proceed with an investigation and  
continue to work in the building, she would have to put it aside; compartmentalize it  
so that it would not interfere with her ability to work at the ERC. The Director  
acknowledged that he had offered to mediate but explained that his proposal for  
mediation was not to mediate the sexual assault but to get the Grievor and her  
assailant together to permit them both to continue working at the ERC.  
3.The Grievor’s testimony at the hearing reveals a different recollection of the meeting.  
She indicated that the Police had told her that because her assailant was her  
supervisor at the institution, she had to talk to the Director. She confirmed that she  
told the Director that she had been raped and that she did not intend to lay criminal  
charges. She testified that she told him that she wanted to continue in her job at the  
ERC but did not want to work with her assailant. In her testimony at this hearing, she  
denied that she told him that the matter must be kept confidential or that she did not  
want the Employer to conduct an investigation. However, she also testified that she  
had voiced her concern that if it became known that she had reported a co-worker,  
there might be serious consequences to her. When asked about the consequences  
of an investigation she testified; “I would be ostracized, crazy shit happens, rats on  
your locker, tires slashed, no one talks to you, leave you alone with inmates, might  
as well get another job.”  
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4.It was her evidence that the Director only gave her two choices; mediation which  
would require her to meet face to face with her assailant or she could put it in a  
book, put the book on a shelf and forget about it. She understood that she had to  
either face her assailant or forget about it.  
5.There were a series of emails between the Grievor and the Director shortly after  
their meeting. In an email on July 4, 2011, the Grievor requested a brief meeting to  
convey her “decision”. The Director indicated that she confirmed that she would not  
proceed with either a police or an in-house investigation. She wanted to stay in her  
job as a CO11 at ERC but on a different shift than her assailant. This is consistent  
with the Director’s evidence and with what was done over the next year or more.  
3
6.The Grievor next contacted the Director by email about eight months later. At 8:16  
a.m. on Wednesday, February 22, 2012 she informed him that, for the second time,  
her assailant had been assigned to work as the CO111 on her shift. She told the  
Director that she found it traumatizing. In the email she also reported that she had  
further evidence that her assailant had used a false name at a swingers bar and that  
she had confirmed this with female inmates and another woman who worked as a  
Page 7 of 51  
bartender at the swingers bar. She indicated that female inmates knew of his  
reputation and that it was consistent with her experience with him. The email stated:  
I wanted to email in regards to two issues about my day 6 at work. First off let me  
start by saying how traumatizing it was to have Mr. (her assailant) as my CO111.  
This is the second time this has happened to me. I don’t think I need to say  
anymore about how this effected me & continues too.  
Second off these female inmates are well aware of this CO111 and his alter ego  
(use of an alias). They have told many staff & (sic) and many inmates. I am well  
aware of this and the whole story and I know it to be true due to what has  
transpired with me. This whole “( she names her assailant’s alias)” story is very  
well known up here and very well known to me.  
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7.The Director responded at 9:51 a.m. as follows:  
Apparently Mr. (her assailant) worked a shift exchange. The confidential  
information you provided me with respect to your relationship with Mr. (assailant)  
has remained that, and therefore the A-shift managers would not be aware of any  
issues.  
As for the (“alias”) story, it has been addressed on an official level.  
That said we should get together and discuss these concerns regarding any new  
directions that you feel may be necessary.  
I am in a meeting today but give me a call tomorrow.  
Thanks  
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8.On Friday, February 24, 2012, they met at about 9:30 a.m.. The Grievor attended  
with JH, a union steward. The Director testified that until he received her email on  
February 22, 2011, he understood that scheduling them on different shifts was  
working reasonably well as there had been no problems over the previous eight  
months. He agreed with the Grievor that it was unfortunate that she and her  
assailant had been scheduled on the same shift but explained that due to the  
Grievor’s request that the incident be kept confidential, he had not told the A-shift  
manager why the Grievor and her assailant were not to work the same shift. He said  
that operational managers were not aware of the reasons for keeping them apart  
and therefore “didn’t put the brakes on" when he changed shifts. The Director’s  
recollection was that the meeting focussed on how best to respond to her concern  
about being scheduled to work with her assailant. He testified that although the  
Grievor appeared to be upset, “there was no confrontation, she did not ask us to do  
something and we refused to do it.” According to the Director, there was no thought  
that this would become a grievance. When asked why he did not have the matter  
investigated, he replied; “She (the Grievor) wanted us to keep it confidential. She  
wanted to continue working at ERC.”  
Page 8 of 51  
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9. The Grievor’s testimony at the hearing concerning the February 24, 2012 meeting  
was different from that of the Director. She said the purpose of the meeting was to  
find out why her assailant had been scheduled to work the same shift as her. She  
also wanted to advise the Director that she had obtained further evidence that her  
assailant used a false name at the swingers bar and there were now two women (an  
inmate and the bartender at the swingers bar) who could confirm that. It was her  
evidence that when she requested an investigation his response was “we don’t want  
this to go next door” which she, understood to mean that he didn’t want it to go to his  
superiors who work next door in the Brownlee Building. She concluded that the  
Director was not willing to investigate her assailant and gave her just two choices; to  
mediate the dispute which would require her to meet face to face with her assailant  
or put the incident on the shelf and forget about it.  
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0.The Union Steward, JH, attended the February 24, 2012 meeting with the Grievor.  
His brief notes were entered as Exhibit 17. He testified that he first became aware  
that the Grievor had been raped just before the meeting. He confirmed that “it was  
most certainly not common knowledge around the jail”. It was his evidence that in  
the meeting they discussed why the Grievor’s assailant had been scheduled to work  
on the same shift as the Grievor and he recalled that the Director said he’d spoken  
to the shift manager. The Grievor indicated that her assailant was still working on her  
shift and the Director agreed to look into it to ensure that she would not be assigned  
to work with him in future. The Union Steward asked the Director when he’d get  
back to them and the Director agreed do so within three weeks. The Union Steward  
testified that when the Director suggested that the matter be mediated, the Grievor  
became very upset because she did not want to have any contact with her assailant  
and understood that mediation would involve a face to face meeting. His notes show  
that following the Director’s offer to mediate, the Grievor stated “he should be moved  
and investigated.” According to the Union Steward, the Grievor was crying  
uncontrollably both during and after the meeting. He also testified that the Director  
never did get back to him.  
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1.According to the Union Steward (JH), the Grievor was frustrated and upset but there  
was no discussion about filing a grievance either during or after the meeting. This is  
consistent with the evidence of the Director. JH agreed that there was no  
confrontation, the Director agreed to speak to the shift manager to ensure she did  
not have to work on the same shift as her assailant. At that time, the Director was  
moving to the position of Director at the Fort Saskatchewan Correctional Centre but  
told the Grievor that he had informed his replacement at the ERC of her  
circumstance and that if a problem arose after he left, she could still contact him.  
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2.The Director pointed out that the Grievor’s allegation that her assailant had used an  
alias, at the Swinger’s Bar (and that this was well known to female inmates at the  
ERC) was looked into at an official level as he had advised the Grievor in his email  
but testified that when they looked into it there was no basis for the Employer to take  
action.  
3.The Grievor next contacted the Director by email on May 16, 2012. Her email states  
that her assailant had contacted her twice again after she told him to leave her  
Page 9 of 51  
alone. She stated “I know you said to put it in the book and put its on the shelf, but  
this is impossible for me to forget as he still works up on the 5th (the floor where she  
works) at times …and he text (sic) twice asking to meet him. The Director responded  
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6 minutes later advising her as follows:  
If I recall, you indicated that you had reported the incident to the police at the  
time, and although they did not confront him, they kept a file. If he has  
contacted you again after you told him you were not interested, I  
might suggest  
update on the situation, as the  
criminal.  
you go back to them and provide them with the  
behaviour you describe could be  
Regarding the work factor, I had discussed the issue with (his successor) when I  
left, so I will follow up with him and one of us will get back to you.  
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4. Her response was “Ok thanks”. There was no evidence concerning whether she  
reported this to the police as he suggested or if anyone got back to her.  
5.The Director moved to the Fort Saskatchewan Correctional Centre in late February  
2
012, and in 2014 was promoted to Executive Director, Adult Centre Operations  
Branch. He retired in April, 2020.  
4
4
6. In October of 2013, the Grievor and another Correctional Officer were injured in an  
altercation with a serving inmate. The Grievor suffered a head injury and was off  
work for approximately 12 months. When she returned to work in November or  
December 2014 the ERC was in a new and larger building.  
7.About six months later in June of 2015, the Grievor filed a respectful workplace  
complaint against another supervisor (a CPO 111). She complained that he was  
treating her unfairly because she had rebuffed his sexual advances. She claimed  
that he had started harassing her and her son-in-law (also an employee at ERC)  
when she began a personal relationship with another CPO at the ERC. She  
complained that he had refused her requests to work overtime, referred to her as a  
bitch in conversations with her co-workers and was out to get her. The Grievor’s  
respectful workplace complaint was reviewed by the Employer however no action  
was taken.  
4
8.About a month later on July 9, 2015, the Grievor’s employment was terminated for  
cause. Her dismissal was as a result of misconduct that occurred in April, 2015. The  
Grievor secretly copied an internal ERC security video left open on a normally  
secured computer terminal. The video showed an inmate physically assaulting a  
correctional officer. She forwarded the video to several correctional officers with the  
expectation that the video would passed on to the media. A few days later the  
security video was shown on the evening news on the local CTV outlet. The Grievor  
was aware that the safety of CPO’s at the ERC had become an issue between the  
Union and the Employer and the video was intended to generate public support for  
the Union’s position.  
Page 10 of 51  
4
9.This was regarded by the Employer as a serious breach of security and throughout  
the Employer’s investigation into the matter the Grievor denied any involvement.  
She maintained her false version of the events over a period of several months and  
pressured a junior co-worker to do likewise. Later in the Employer’s investigation  
other internal CCTV footage was discovered that showed the Grievor and a co-  
worker viewing the security video and the Grievor using her cell phone to copy it.  
She continued to deny responsibility even after the incriminating CCTV footage was  
discovered and after her junior co-worker admitted the she had copied the video and  
instructed him not to disclose what she had done. The decision to terminate her  
employment was based on her misconduct in copying and forwarding the security  
video in violation of her statutory obligation as a Correctional Peace Officer and her  
dishonesty during the investigation in attempting to cover up her actions and for  
coercing her junior co-worker to corroborate her dishonesty.  
5
0.Two months after the termination of her employment but several months before her  
grievance was heard, she confessed to having recorded the video on her cell phone  
and having forwarded it to a co-worker with the expectation it would be made  
available to the media. She explained that she had done this to please her boyfriend  
as he was involved in the campaign to improve working conditions for CPOs at the  
ERC. Her confession was offered by the Union as a mitigating factor with respect to  
the termination of her employment. The arbitration board was not persuaded that her  
admission, coming as late as it did, was enough to restore the essential trust  
necessary for a viable employment relationship. Her termination was upheld.  
5
5
1.On July 9, 2016, approximately 12 months after her employment was terminated and  
about 6 months before her grievance concerning the termination of her employment  
went before by the arbitration board, the Grievor filed this Grievance.  
2.In March of 2017, the Grievor made an application to the Alberta Victims of Crime  
Financial Benefits Program. She was initially turned down because her application  
was outside the 2 year time limit. She sought help from the Sexual Assault Centre of  
Edmonton. Dr. Karen Dushinski, who was then the Director of Client Services for the  
Sexual Assault Centre, wrote a letter in support of the Grievor’s appeal. The Appeal  
was ultimately successful and the Grievor received compensation from the Victims  
of Crime Financial Benefits Program for the rape that had occurred on March 28,  
2
011.  
5
5
3.Dr. Dushinski is a registered Psychologist and has a Phd in Counselling Psychology.  
She was with the Edmonton Sexual Assault Centre from 2006 until 2020. She is now  
in private practice. Dr. Dushinski testified on behalf of the Union as an expert in  
sexual assault trauma. The Employer did not object to Dr. Dushinski being qualified  
as an expert in sexual assault trauma. Dr. Dushinski prepared a written report in  
which she responded to a number of specific questions posed by the Union. Her  
report is Exhibits 16 in the Agreed Book of Exhibits.  
4.Dr. Dushinski first met the Grievor in April, 2017 when the Grievor came to the  
Edmonton Sexual Assault Centre for assistance in preparing her appeal after her  
claim for compensation from the Victims of Crime Compensation Program was  
Page 11 of 51  
refused. Dr. Dushinski helped her with the appeal and later provided 38 individual  
counselling sessions. According to Dr. Dushinski, the Grievor demonstrated severe  
post-traumatic responses including hyper vigilance (for example she would not allow  
anyone to walk behind her in the hallway of the Sexual Assault Centre, booked her  
appointments early in the day so that the waiting room would have fewer clients,  
removed the doors from the closets in her home and installed a security system) and  
intense flashbacks that resulted in her appearing to be stuck in the memory of her  
assault, (she froze, started crying and shaking and on one occasion appeared to  
have become unaware of her surrounding). The Grievor reported significant sleep  
disturbances, nightmares and flashbacks that worsened with the stress of her  
involvement in various legal processes. Dr. Dushinski testified that the Grievor told  
her that she became involved in a series of unhealthy relationships that had further  
detrimental impact on her mental health, withdrew from family and friends, and at  
one point was hospitalized as a result of a suicide attempt.  
5
5.When Dr. Dushinski was asked if the Grievor’s delay in prosecuting her grievance  
was because of her trauma, Dr. Dushinski indicated that the delay was because of  
the trauma but also because she perceived that there was a lack of safety in the  
ERC work environment. According to Dr. Dushinski, working in a correctional facility  
has inherent risks of violence and if a sexual assault victim did not feel safe with  
colleagues, it would be extremely difficult for them to fulfill their duties in this  
environment. It was Dr. Dushinski’s opinion that, for a number of reasons, the  
Grievor did not feel that it was safe to begin the formal grievance procedure while  
she was employed at the ERC and as a result she did not initiate the formal  
grievance procedure until after the termination of her employment.  
5
6.Dr. Dushinski also testified that sexual assault survivors sometime can’t accurately  
recall aspects of the traumatic event. Their memory of trauma may be unclear or  
incomplete. She testified that a trauma victims’ memory can be like a strobe light;  
the memories are not integrated properly and may just come as flashes triggered by  
a variety of stimulus. Dr. Dushinski also indicated that trauma victims sometimes  
experience cognitive distortions where their thoughts cause them to perceive reality  
inaccurately. Their recollection of the traumatic event may change over time; what  
sexual assault survivors recall of the events may change and can be influenced by  
choices made around the time of the assault. Their recollection may be influenced  
by the support system they have, their family, work group, and society at large. She  
testified that a survivor’s ability to function may be affected by their support system;  
the response of their support system may affect their ability to function in the future  
and if a sexual assault victim does not feel safe, it is difficult for them to heal.  
5
7.According to Dr. Dushinski, victims of trauma do not all react in the same way.  
Persons such as the Grievor, who had experienced multiple trauma in the past, may  
find it more difficult to cope with a sexual assault. Dr. Dushinski said that there is no  
set period of time within which a victim of sexual assault can be expected to heal, it  
depends on many things including whether they get help, the type of help they get  
and whether the help available is actually helpful. Recovery can be impeded by the  
Page 12 of 51  
victim’s perception of safety, the victim’s previous history and how previous trauma  
was dealt with. Sobriety is also a factor, sobriety is necessary to the healing process.  
5
8.Although the Dr, Dushinski is well qualified and well meaning her evidence must be  
assessed in the context of her relationship with the Grievor. Dr. Dushinski didn’t  
meet the Grievor until 2017, six years after the events that form the subject of this  
Grievance. She had no contemporaneous knowledge of the Grievor’s mental state at  
times most relevant to this case. Dr. Dushinski’s relationship with the Grievor began  
when she assisted her in an appeal of a decision of the Alberta Victims of Crime  
Financial Benefits Program. She then took on the Grievor as a patient and provided  
her with 38 counselling sessions. She has extensive experience as an advocate on  
behalf of victims of sexual assault and testified that victims of sexual assault  
generally don’t get the support they need. She admitted that in her report and in her  
testimony, she was advocating on behalf of the Grievor.  
5
6
9.Dr, Dushinski also indicated that her opinion was based on the usual reactions of  
sexual assault victims with the caveat that not all sexual assault victims respond in  
the same way. She further qualified her opinion on the basis that she only had the  
information provided to her by the Grievor and no way of verifying whether it was  
accurate. It was her opinion that sexual assault victims may not accurately recall  
aspects of the trauma, may have a distorted recollection regarding the cause of the  
trauma and may have distorted perceptions around issues of safety and trust.  
0.Dr, Dushinki’s response to questions asked by the Union was based, in part, on  
facts not in evidence. She was asked about the psychological impact of a sexual  
assault victim working in proximity to their assailant. The Expert’s response  
assumed that when the Director was informed of the sexual assault, there was no  
systemic response and he required her to work with her assailant. That is not the  
evidence. The Director was informed of the assault when the Grievor returned from  
1
8 days of general illness leave, he was sympathetic to her circumstances, he  
enquired as to her mental health, encouraged her to seek counselling and attempted  
to accommodate her requests. He agreed not to proceed with an investigation, he  
agreed to keep the assault confidential and he agreed to arrange for her to be  
scheduled on a different shift than her assailant. According to the evidence, the  
Employer was not unresponsive. Dr. Dushinski’s opinion assumes that the Grievor  
was required to work with her assailant. That is not the evidence. The Employer  
scheduled her on different shifts from her assailant and at the same time  
accommodated her desire to avoid an investigation into her assault, avoid anyone  
interrogating her assailant. The Employer honoured her request to keep the assault  
confidential from her co-workers at the ERC. Dr. Dushinski was not advised that the  
Employer’s response to the reported sexual assault was immediate and tailored  
specifically to the Grievor’s expressed preferences.  
6
1.This Grievance was filed on July 6, 2016, the parties attempted to schedule level two  
hearings three times (May 18, 2018; December 7, 2018; January 31, 2019) but each  
time the hearings were postponed at the Union’s request. The parties ultimately  
agreed to dispense with the level two hearing and proceed directly to arbitration. The  
Page 13 of 51  
arbitration was initially scheduled November 17, 18 and 19, 2021 but was  
rescheduled at the Union’s request. A hearing into the Employer’s preliminary  
objection to the this Grievance proceeding was conducted via Zoom, March 1 - 4,  
2
022.  
EMPLOYER ARGUMENT  
6
6
2.The Employer’s preliminary objection is based on Article 29.03(a) of the Master  
Collective Agreement states:  
An Employee wishing to pursue a grievance, shall submit it in writing to the  
Designated Officer at Level 1 within fourteen (14) days of the date upon which the  
subject of the grievance occurred or the time when the Employee first became  
aware of the subject of the grievance. (Emphasis added)  
3.According to the Employer timelines and procedures in the Collective Agreement are  
mandatory and can only be extended by written agreement. Here there was no  
written agreement extending the time for filing this Grievance. Failure to pursue a  
grievance within the mandatory time limits results in abandonment of the grievance:  
2
9.07 Procedures and Time Limits  
a) Time limits and procedures contained in this grievance procedure are  
(
mandatory. Failure to pursue a grievance within the prescribed time limits and in  
accordance with the prescribed procedures shall result in  
abandonment of the grievance. Failure to reply to a grievance in a timely  
fashion shall advance the grievance to the next level. Grievances so  
advanced  
the last allowable  
shall be subject to time limits as if a reply had been made on  
day of the preceding level of procedure.  
(b) Time limits in this Article may be extended by written agreement between  
the Employing Department or the Employer and the Union.(Emphasis added)  
6
4.The Employer pointed out that arbitrators do not have the authority to add to, alter,  
modify or amend the terms of the Collective Agreement:  
Article 29.05 Power of Arbitration Boards  
…
(b)  
Arbitration Boards, single arbitrators and mediator -arbitrators shall not  
add to, alter, modify or amend any parts of the terms of the Collective  
Agreement by their decision, nor make and decision inconsistent with it nor to  
deal with any other matter that is not a proper matter for grievance under  
the  
Collective Agreement. (Emphasis added)  
6
5.The Employer acknowledged that since November 2018, the parties’ Collective  
Agreement includes language that permits an arbitrator to extend time limits.  
However, this language is not in either the 2011 or 2014 Collective Agreements. The  
2
011 Collective Agreement was in effect when the subject of the Grievance occurred  
Page 14 of 51  
and the 2014 Collective Agreement was in effect when this Grievance was filed and  
when the Grievor’s employment was terminated in 2015.  
6
6
6.The Employer further pointed out that in 2011, when the subject of the Grievance  
occurred and in 2016, when the Grievance was filed, the Public Service Employee  
Relations Act stipulated that Sections 134 to 146 of the Labour Relations Code  
applies to arbitrations under that Act. Section 142(1) of the Labour Relations Code  
stipulated that, subject to s. (2) no arbitrator, arbitration board or other body shall by  
its award alter, amend, or change the terms of a collective agreement.  
7.According to the Employer, I have no statutory authority to grant relief from  
mandatory time limits in a collective agreement. The legislative amendment to the  
Labour Relations Code giving arbitrators the powers to relieve against mandatory  
time limits was not in effect in 2011 when the subject of the Grievance occurred nor  
in 2016 when the the Grievance was filed. Further, s.142(3) of the Labour Relations  
Code, which permitted arbitrators to relieve against mandatory time limits found in  
collective agreements, was only in effect from 2017 until it was repealed on July 29,  
2
020.  
6
6
8.Counsel referred Article 29.05 of the Labour Relations Code which expressly  
prohibits an arbitrator from rendering a decision which alters, modifies, or amends  
any part of the terms of a Collective Agreement.  
9.The Employer acknowledged that for a period of time between 2017 and 2020,  
section 142(3) of the Labour Relations Code did allow arbitrators to relieve against  
mandatory time limits but pointed out that the Legislature of Alberta removed this  
power in 2020. An arbitrator’s power to relieve against mandatory time limits was not  
in force in 2011 when the subject of the grievance arose, it was not it in force in July  
2
016 when this Grievance was filed and it not is not in force now. The current  
Alberta Labour Relations Code in section 142(1) states that an arbitrator is not  
permitted by its award to alter, amend or change the terms of a collective  
agreement.  
7
7
0.The Employer quoted a number of authorities which held that an arbitrator in Alberta  
does not have the statutory authority to relieve against the mandatory time limits in  
collective agreement (See AUPE and Alberta Health Services (Press), Re, 133  
C.L.A.S. 35, 284 L.A.C.(4th) 166 (McFetridge) at paras 144 - 147; U.S.W.A., Local  
5
220 v GenAlta Recycling Inc. , 124 L.A.C. (4th) 331, 76 C.L.A.S. 124 (Hornung) at  
paras 67 - 70 and Core-Mark International Inc. and UFCW, Local 401 (Hu), Re, 125  
C.L.A.S. 306, 127 C.L.A.S. 64, 267 L.A.C. (4th) 47 (Kanee) at paras 60 -62.  
1.In Core-Mark International v UFCW (supra) at para 65 Arbitrator Kanee adopted the  
reasoning of Arbitrator O’Shea in U.S.W.A., Local 6962 v Union Carbide Canada  
Ltd. (1968), 19 L.A.C. 412 (Ont. Arb.) at paras 414 - 418 (upheld by the Supreme  
Court of Canada):  
An arbitrator has no power, in such event, to weigh the harshness of the result in  
order to justify giving relief against what might be a minor variance from the time  
Page 15 of 51