1940/J  
IN THE MATTER OF AN ARBITRATION  
BETWEEN  
ONTARIO PROVINCIAL POLICE  
(“the OPP” / “the Employer”)  
- AND -  
ONTARIO PROVINCIAL POLICE ASSOCIATION  
(“the OPPA” / “the Union”)  
CONCERNING THE INDIVIDUAL GRIEVANCE of KEVIN GRUCHY (“the Grievor”)  
Christopher Albertyn - Sole Arbitrator  
APPEARANCES  
For the Union:  
Nini Jones, Counsel  
Lauren Pearce, Counsel  
Kevin Gruchy, Grievor  
Marty McNamara, Executive Officer, OPPA (until May 3, 2021)  
Trent Bierworth, Executive Officer, OPPA (from May 3, 2021)  
For the Employer:  
Regina Wong, Counsel  
Benjamin Parry, Counsel (not on August 13, 2021)  
Felix Lau, Counsel (on August 13, 2021)  
Sandra Thomas, Chief Superintendent, Human Resources (days 1-2)  
Stephanie Patterson, Chief Superintendent, Field Support Bureau (after first two days)  
Dan Alakas, Superintendent, Director of Operations for Field Support Bureau (certain  
days)  
Josh Fowler, Coordinator, Strategic Issues  
Lisa Fredrickson, Advisor, Strategic Issues (on some dates)  
Nichol Orecchio, Advisor, Strategic Issues (on some dates)  
Hearing held in TORONTO and by videoconference on January 31 and October 22, 2018; July  
17 and 23, 2019; April 22, May 26 and 27, June 17, September 25, and November 26, 2020;  
May 3, 10 and 27, June 4, July 26, August 13, October 26, and November 4 and 9, 2021.  
Award issued on June 7, 2022.  
1
AWARD  
Issue  
1.  
This award concerns the termination grievance filed by the Ontario  
Provincial Police Association, the OPPA, on behalf of the Grievor, Kevin Gruchy.  
The grievance is filed under the civilian collective agreement between the OPPA  
and the Ontario Provincial Police, the OPP. The Grievor was terminated on  
November 8, 2016. He had 11 years of service.  
2.  
The Grievor’s termination followed an investigation of harassment  
complaints against him under the Employer’s Workplace Discrimination and  
Harassment Prevention Program (WDHP), now known as the Respectful  
Workplace Policy.  
3.  
4.  
I heard from 10 witnesses called by the OPP and three called by the OPPA.  
The Grievor admitted to most of the misconduct accusations made against  
him. He breached the WDHP in several ways. He apologized during the  
investigation and thereafter, and at the hearing.  
5.  
The contest between the parties is less over the Grievor’s misconduct and  
more over how much responsibility he should bear for it, how much his misconduct  
was ameliorated by the workplace culture that prevailed, and about whether or not  
he is a suitable person to be returned to the workplace.  
6.  
The Employer takes the position that the Grievor was responsible for his  
actions and, particularly, for the offensive things he said, and that his termination  
was for just cause.  
2
7.  
The Union takes the position that the Grievor is manifestly repentant and  
understands the wrongs he committed. The Union claims that the workplace culture  
was such that, over an extended period of time, the Grievor became inured to the  
toxic behaviour that was endemic; such that he behaved badly with impunity, and  
therefore that the blameworthiness of his misconduct was mitigated. The Union  
argues that he should be returned to work, particularly in circumstances where he  
is the only person to have been disciplined for misconduct that was widespread.  
Content of the decision  
8.  
This decision is organized as follows:  
Issue  
Content of the decision  
Anonymization  
Background  
The incident leading to the WDHP investigation  
The WDHP investigation into the misconduct  
Completion of the Report and the Grievor’s termination  
WDHP Training  
The workplace culture:  
The workplace atmosphere generally  
The WDHP complaints between Witness D and Team Lead RM  
The full-time – part-time divide  
The morale boosting meeting in October 2015  
The Barrie courthouse washroom graffiti  
The Grievor’s behaviour towards subordinates  
Conclusions on workplace culture  
The Grievor’s personal circumstances  
Review of the evidence  
Submissions:  
Employer submissions  
3
Union submissions  
Decision:  
Management awareness of the workplace culture and condonation  
Misconduct  
Just cause and assessment of penalty:  
The Grievor’s service and clean record  
Insight and remorse  
Summary of conclusions  
Anonymization  
9. The parties agreed that those individual employees and their manager who  
testified will be not named in this decision. They will be referred to as Witness A,  
B, C, etc. I have provided the parties with a log so they can identify each witness  
mentioned.  
Background  
10.  
The Grievor was hired by the OPP, on February 12, 2006, as a fixed term1  
Special Constable performing the work of an Offender Transportation Officer  
(OTO) in the Midland-Penetang Offender Transportation Unit (OTU / the Unit).  
Prior to this he had worked for six months on an OT Unit in the downtown Ottawa  
detachment. The Grievor became a full-time, permanent Officer in June 2006.  
11.  
There are five such units across Ontario, of approximately 500 Offender  
Transport Officers (OTOs), with each Unit headed by a Staff Sergeant.  
1 There are two categories of Offender Transportation Officers (OTOs) – fixed term and full-time,  
permanent. The fixed term OTOs are often referred to by the parties and the witnesses, and in this  
decision, as the part-timers.  
4
12.  
Special constables, like the Grievor, are employed under the Police  
Services Act, RSO 1990, c P.15. The OTOs wear uniforms identifying them as  
Special Constables with the OPP.  
13.  
The job of an OTO involves the safe and secure transporting of offenders  
from detention or correctional centres or from mental health institutions to courts  
for their court appearances and, after those appearances, returning the offenders to  
the detention centre where they are held in custody. The OTOs also “ensure the  
proper working order of security and restraining equipment and OPP vehicles used  
in the performance of duties. They search the offenders for contraband and  
weapons. They document each stage of the transportation of the inmates and  
provide that documentation to the appropriate police or court personnel, as required.  
14.  
Typically, there are two OTOs in each vehicle: the driver and the driver’s  
co-worker, who is primarily responsible for monitoring the inmates in the vehicle.  
15.  
The Midland-Penetang Unit of the OTU was initially based at OPP  
headquarters in Orillia, Ontario. The office of the Staff Sergeant, the manager of  
the Unit, was located there. The other members of the Unit worked from a different  
location. They were based at the Central North Correctional Centre on Georgian  
Bay. This fact is mentioned because the Unit worked for a lengthy period (in the  
Grievor’s case from 2006 to 2014) without a manager present with them at the same  
location.  
16.  
In May 2014 the entire Unit, including the Staff Sergeant, moved into their  
own premises in Midland, Ontario. The Unit was relatively small, with one Staff  
Sergeant in charge. Three Senior OTOs, known as Team Leads, reported to the  
Staff Sergeant. Although members of the same bargaining unit as the OTOs, they  
5
acted as their supervisors.  
17. During the relevant period of the Grievor’s employment leading to his  
termination, Witness D was the Staff Sergeant. She was in charge of the Unit from  
April 1, 2013 to April 10, 2017, by which time the Grievor had been terminated.  
She reported to the Program Manager, the Provincial Commander of the OTU. The  
Provincial Commander reported to the Bureau Commander, the Chief  
Superintendent.  
18.  
There were several short-term acting Unit managers prior to Staff Sergeant  
Witness D’s appointment. Also, Staff Sergeant Witness D reported to several  
Acting Program Managers of the Offender Transportation (OT) Program. On  
January 4, 2016 – shortly before the Grievor was suspended pending the  
investigation into his misconduct – Inspector Mike Demeules was appointed as the  
permanent Program Manager.  
19.  
So, there was considerable turnover in the management of the Unit until  
Staff Sergeant Witness D was appointed, as well as above her until Inspector  
Demeules was appointed.  
20.  
The conclusion I draw from the above, including from the evidence of the  
workplace culture described below, is that there was little stability in the  
management of the Unit, and relatively remote management of the Unit for most of  
the period of the Grievor’s employment.  
21.  
Staff Sergeant Witness D had the following bargaining unit employees  
under her authority: three Senior OTOs (the Team Leads), the OTOs, and an  
administrative assistant. The group of OTOs was divided into about 18 permanent,  
full-time employees, and a much smaller group who were on fixed term, renewable  
contracts.  
6
22.  
The fixed term officers – more commonly called “part-timers” – could  
work up to 40 hours a week. They were hired to cover holidays and extra busy  
days, when additional transport was needed to convey offenders. There were also  
typically two part-timers scheduled to work on weekends2.The part-timers have no  
guaranteed hours, no pension, and no benefits.  
23.  
The precariousness of their work made them dependent on work  
assignments. This was open to manipulation and favouritism by the Team Leads  
who assigned the work (as will be seen below in the review of the evidence on the  
treatment of the part-time employees). If there was no work for them on a particular  
day, they would be sent home with two hours’ minimum pay.  
24.  
The incidents described herein, save for the background circumstances,  
were revealed a few days before Inspector Demeules took charge of the OT  
Program. Upon assuming office, he was therefore immediately faced with the  
responsibility of deciding how to deal with the violations of the WDHP, including  
those by the Grievor.  
25.  
The OTOs, like the Grievor, had had relatively little contact with Staff  
Sergeant Witness D when she worked from different premises. After the move to  
Midland in May 2014, although the Staff Sergeant was based with her staff at the  
Midland Unit office, she still had relatively little to do with the OTOs. She was  
available if there was some issue to address. But the more regular contact of the  
OTOs was with the Team Leads. If their vehicle left the Unit later, they would  
attend a morning briefing at the start of the workday. If their vehicle was scheduled  
to leave before the morning briefing, the OTOs would take their vehicle and leave,  
without any Team Lead contact.  
2 Exhibit 59, at 6:15 minutes.  
7
26.  
Typically, the Team Leads worked in the office at the Unit, organizing the  
work of the OTOs, while the OTOs were out on the road. The OTOs could  
communicate by phone with the Team Leads if they needed any assistance or  
guidance.  
27.  
Just as there had been turnover of the Staff Sergeant position until Staff  
Sergeant Witness D was appointed, there was a turnover of Team Leads in the  
period leading to the Grievor’s suspension in January 2016, pending the  
investigation of his misconduct. There were the same three Team Leads from 2013  
to 2015, when two of them left. They were replaced by acting Team Leads, first in  
February 2015, then in the summer of 2015, until the time of the Grievor’s  
suspension.  
28.  
If there is no Senior OTO working on a particular day, an OTO is  
designated the “2IC”. They fill in and do some of the Senior OTO duties for the  
day, such as assigning loops and ensuring all the routes are covered during the day.  
29.  
Some OTOs act as coach officers, or peer mentors, after they complete a  
training course. The coach officers are assigned more frequently with new officers,  
so the new officer learns the work. The coach officers report to the Senior Officers  
on the progress of the new officers.  
30.  
At the time of the Grievor’s suspension from work when the WDHP  
investigation began, he was both a 2IC and a coach officer. The Grievor was also  
being considered for an Acting Team Lead position.  
31.  
At each stop – detention centre or court – the two OTOs check to ensure  
the institution’s record of which inmates are being transported coincides with their  
own record, they supervise the movement of the inmates into the transport truck,  
8
and they secure them in their seats. At their destinations, the OTOs off-load the  
inmates into the custody of the police officers at the court, or into the custody of  
the correctional officers at the detention centres.  
32.  
The OTOs interact with correctional staff, police officers, and inmates.  
33.  
While in the vehicles each day, the two officers are out of earshot of the  
inmates. They talk. Many of the odious comments made by the Grievor to his  
various fellow officers, over several years of conversation in the vehicle, were later  
recalled in the harassment investigation that led to his termination.  
34.  
The Grievor had no record of misconduct during the 11 years of his  
employment until an incident on December 8, 2015.  
The incident leading to the WDHP investigation  
35.  
The Unit had a potluck Christmas party on December 8, 2015. The Grievor  
did not attend. The potluck had ended by the time the Grievor returned to the Unit  
after completing his loop.  
36.  
The Grievor thought it would be amusing to take a cookie off the tray of  
left-over cookies, go to the washroom and, using his cellphone, take a photograph  
of the cookie placed on top of his penis.3  
37.  
After doing this, the Grievor then went back into the main office to  
complete his Daily Prisoner Transport Log. There, at about 4pm, he texted the  
photograph to two friends, fellow OTOs, saying “Merry Xmas”. The reply in  
3 Exhibit 01.11(C).  
9
evidence of one recipient was, “You are a sick fucker”, to which the Grievor  
replied, “I put it back on the plate when I was done.”  
38.  
The response of the Grievor – that he had placed the cookie back on the  
tray – conjured the thought that someone might subsequently have taken the cookie  
and eaten it.  
39.  
In fact, the Grievor did not put the cookie back onto the tray. He kept it  
with him, in the console of his truck for some time. When the investigation began,  
on the advice of the OPPA, he kept it available in case he was asked about it.  
40.  
The Grievor was at the end of his shift, but on duty at work, when he took  
the photo and distributed it.  
41.  
One of the two OTOs who had been sent the photograph shared it with  
other workmates. A few people at work saw it. Witness A heard of the photo from  
a workmate and was curious because he had eaten some cookies and taken some  
home and given them to his daughter. He requested and was sent a copy of the  
photo.  
42.  
Witness A found the photo so disgusting and disturbing – believing that the  
Grievor had put the cookie back onto the plate for someone to eat – that he reported  
to and shared the photograph with management. He was so troubled by the thought  
of possibly eating the cookie himself that he did not sleep for three or four nights.4  
43.  
Management learned of the photograph on January 10, 2016 and initiated  
the WDHP complaint that eventually resulted in the Grievor’s termination.  
4 See Exhibit 01.11(A), p.  
10  
44.  
I accept the Employer’s argument that the above actions of the Grievor  
were totally unacceptable and that distributing the photograph, even to only two  
friends, was reckless.  
45.  
At the hearing, the Grievor acknowledged the utter stupidity of taking and  
distributing the photo.  
46.  
The Grievor did not give a very convincing explanation for why he kept  
the cookie. I determine that the reason he initially did so was that he suspected some  
consequence may result from his actions, and he wanted to be able to prove that he  
had not actually put the cookie back on the plate. Later, once he was suspended, the  
Union told him to continue to keep it.  
47.  
Neither of the two OTOs to whom the Grievor sent the photo were  
interviewed as part of the investigation that followed. The investigation did not  
establish whether either of the two individuals who received the photo regarded it  
as unwelcome.  
48.  
Witness J was one of the two individuals to whom the Grievor sent the  
cookie photograph. When testifying, he said he could not recall receiving it. He  
said lots of such photos were circulated. He accepted he might have received it  
because he got lots of images from colleagues and friends, and that, if so, it would  
not have bothered him.  
The WDHP investigation into the misconduct  
49.  
In this section I describe:  
a.  
b.  
what was investigated by the OPP;  
what findings were reached;  
11  
c.  
my conclusions on each item of misconduct, in light of all the  
evidence at the hearing.  
50.  
Upon learning of the photograph, the Program Manager, Inspector  
Demeules, contacted the OPP’s Professional Services Branch (PSB) to determine  
whether it might involve a criminal incident. He was advised that it was not a  
criminal incident, but a professional matter. Inspector Demeules then liaised with  
the Career Development Bureau (CDB), which deals with professional infractions,  
which recommended that the incident be investigated under the WDHP.  
51.  
Although seeing the photograph was the impetus for Witness A to report it  
to his manager, it gave him the opportunity to express his dissatisfaction with his  
treatment generally in the Unit.  
52.  
That complaint made on January 10, 2016 was that, as a part-time  
employee (fixed term employee), he was being treated unfairly by the full-time  
OTOs and by the Team Leads, who always reminded him that he was part-time. He  
said he had been called “ballwasher” by lots of people. He did not single out the  
Grievor in his complaint. His reason for bringing the complaint was that he feared  
the loss of his part-time hours and the loss of his contract. Despite Witness A not  
singling out the Grievor in his complaint, other than to mention the photograph,  
management decided that the WDHP investigation would involve only the Grievor.  
53.  
The initial OPP Briefing Note of January 11, 2016 – with regard to the  
cookie photograph and allegedly re-placing it on the serving dish – records that the  
Chief Superintendent supported a 20-day suspension for the misconduct.5  
5 Exhibit 43.  
12  
54.  
Superintendent Karen Meyer (then Inspector Meyer, the manager of the  
OPP Wellness Unit within the Career Development Bureau (CBD)) was appointed  
to conduct the WDHP investigation.  
55.  
The Grievor was suspended with pay on January 12, 2016, pending the  
outcome of the investigation.  
56.  
After the Grievor’s suspension, certain other OTOs came forward on  
January 18, 2016 and complained to Staff Sergeant Witness D about the Grievor.  
Based on their complaints the Employer initiated additional WDHP complaints  
against the Grievor, and they became part of Superintendent Meyer’s investigation  
(WDHP 2016-001, -003, and -005).  
57.  
The complaints received on January 18, 2016 identify the Grievor among  
other OTOs as being guilty of inappropriate and offensive behaviour, in violation  
of the WDHP.  
58.  
At least two of the complainants, Witness A and Witness H, were under the  
impression that their complaints were against the Unit as a whole, and not  
specifically against the Grievor. Witness H thought the investigation was about a  
poisoned work environment, and only later learned that it was about the Grievor.  
He was surprised to discover that was the only investigation. He, and others among  
the complainants, had set out examples of mistreatment at work by others, besides  
the Grievor. Witness F came forward with complaints directly concerning the  
harassment she was subjected to by an OTO other than the Grievor. These were not  
investigated.  
59.  
Superintendent Meyer could not explain why the Grievor was the only  
respondent to the investigation.  
13  
60.  
Superintendent Meyer interviewed the complainants against the Grievor  
from February 10 until May 11, 2016.  
61. Superintendent Meyer interviewed the Grievor on June 10, 2016. He had  
an opportunity to respond to the allegations against him. He admitted many of them.  
He showed remorse at the time, and at all stages subsequently.  
62.  
Besides the distribution of the cookie photo and the treatment of part-time  
employees, the allegations against the Grievor were of comments he made. There  
is no date as to when the statements were made; they happened sometime during  
the Grievor’s employment in the Unit, ranging over a period of approximately ten  
years.  
63.  
Superintendent Meyer found – in her report to those who decided on the  
Grievor’s discipline – that all the incidents and claims against the Grievor had been  
substantiated. However, at the hearing, Superintendent Meyer admitted that there  
was no evidence supporting certain of the allegations, and there ought not to have  
been a finding that those allegations were established.  
64.  
Superintendent Meyer’s report refers to 16 incidents. The allegations were  
the following. I add below each what was established in evidence at the hearing.  
Incident #1  
65.  
Incident #1: “In December 2015, it is alleged that the Respondent, at the  
staff Christmas potluck, took a cookie from a platter to the staff washroom. The  
Respondent then allegedly placed the cookie on his genitals and took a picture of  
it. The Respondent then distributed the picture to other colleagues via text,  
allegedly further advising that he had replaced the cookie back on the platter,  
unbeknownst to other potluck attendees. It is unknown if the cookie was  
14  
consumed.”  
66. At the hearing: The Grievor admitted he took the photo and distributed it  
to two of his colleagues. The evidence is that the Grievor did not put the cookie  
back on the platter. Superintendent Meyer admitted it was not fair of her to have  
concluded that “it is unknown if the cookie was consumed”, when she accepted the  
Grievor’s evidence that he was still in possession of the cookie and could produce  
it.  
67.  
This does not exonerate the Grievor. His message that he put the cookie  
back on the plate resulted in considerable disquiet among those who attended the  
potluck and ate or took home cookies from the plate. His sending the message was  
reprehensible, even if it was intended as a baseless joke.  
Incident #2  
68.  
Incident #2: “Referring to a female co-worker as “Dirty Mexican” and  
“sanchez”.” [This was corrected to referring to a male co-worker].  
69.  
At the hearing: The Grievor admitted to calling a male colleague and friend  
of Mexican origin, “you Dirty Mexican”, in jest. The evidence is that he did not  
refer to the co-worker as “sanchez”. Superintendent Meyer admitted that the  
inclusion of the allegation of the use of the word, “sanchez”, was a mistake.  
70.  
The individual to whom the Grievor made the comment did not testify, nor  
did Superintendent Meyer interview him to ask him about the comment. The  
Grievor explained the context of saying “Dirty Mexican”, in a phone conversation  
between the Grievor and the individual concerned. They lived five houses apart and  
knew each other well. The individual asked the Grievor if he was at his “restaurant”  
15  
(meaning his home). The Grievor replied that he was working. The individual then  
said that he was at the Grievor’s place. The Grievor then replied, “Hey, you Dirty  
Mexican, what are you doing at my house with Steph [the Grievor’s girlfriend]?”  
The individual laughed and replied, “No, I'm at the restaurant”.  
71.  
There is no evidence that this comment was unwelcome. The recipient was  
not called to testify, and from the Grievor’s explanation, the comment was made in  
the context of a teasing and jocular conversation, over which the two of them  
laughed.  
72.  
However, the evidence of the Employer’s witnesses, Witnesses E and F, is  
that the Grievor referred to the individual as “the Mexican” or “dirty Mexican” on  
more than one occasion. The Grievor was not specially asked about this. He and  
other witnesses admitted that the individual was commonly called a “Mexican” by  
many of the OTOs. The Grievor likely also used the individual’s place of origin as  
the way of referring to, and speaking to, him. That is not an acceptable way to speak  
to or of a fellow employee. As the Employer found, it breaches the entitlement in  
the WDHP of an employee to be addressed respectfully and not by reference to  
their place of origin.  
73.  
When questioned by Superintendent Meyer about the use of disparaging  
nicknames, the Grievor explained it was widespread and that he, being partly  
indigenous, was called “savage” on the Unit. When he was an acting supervisor,  
the OTOs referred to him as “Little Hitler”. He mentioned that sometimes a fellow  
OTO would say to an indigenous inmate coming out of the detention centre, “Hi,  
Mr. Gruchy”, referencing the Grievor’s name.  
74.  
The use of disparaging nicknames seems to have been common. The  
Grievor saw it as banter and explained that that was how the Unit operated.  
16  
75.  
The Grievor recognized in his interview with Superintendent Meyer, and  
consistently subsequently, that the use of any demeaning nickname is offensive and  
unacceptable in a respectful workplace.  
Incident #3  
76.  
Incident #3: “Referring to a female co-worker as a “guy” because she plays  
broom ball which is a game for men.”  
77.  
At the hearing: This allegation was not established. Superintendent Meyer  
admitted in evidence that likely the Grievor did not call Witness F “a guy”. Her  
report says that the Grievor did so.  
Incident #4  
78.  
Incident #4: “Sharing photos of the same female co-worker and her same-  
sex partner and making disparaging comments about her lifestyle choices, e.g.,  
calling her the “angry lesbian”.”  
79.  
At the hearing: The Grievor admitted to sharing a photo of a female co-  
worker and her same-sex partner on her Facebook. The evidence did not establish  
that he made disparaging comments about her sexuality while looking at the photo.  
Superintendent Meyer admitted this in evidence.  
80.  
The Grievor admitted to describing Witness F, on one occasion, as “an  
angry lesbian” to Witness H.  
81.  
This occurred on January 5, 2016. Witness F was the coach of Witness H,  
not long before the Grievor’s suspension. Witness F had placed Witness H, a new  
OTO, on a Work Improvement Plan. The Grievor thought this was unfair to Witness  
H. He told Witness H not to take it personally, but to just concentrate on his work.  
17  
The Grievor then added that Witness F was “an angry lesbian”.  
82.  
Witness H testified that he understood the Grievor was trying to be  
supportive. The Grievor apologized to Witness H immediately after making the  
comment, saying that was not the right way to describe Witness F.  
83.  
The Employer characterized the communications between the Grievor and  
Witness H as the Grievor attempting to put down Witness F and play on stereotypes  
to build some comradery with the new OTO.  
84.  
The Union takes issue with this characterization. It says the Grievor uttered  
the comment in reaction to the new OTO being placed on a Work Improvement  
Plan, but immediately apologized for using it.  
85.  
When Witness F testified, she explained it had been hard for her to come  
out, and hearing that she was being ridiculed over her sexuality was troubling for  
her.  
86.  
I find the comment did play on stereotypes. It was inappropriate, and the  
Grievor immediately recognized that by apologizing. His making the comment was  
a breach of the WDHP, partially mitigated by his immediate apology.  
Incident #5  
87.  
Incident #5: “Using the “N” word in the workplace.”  
88.  
89.  
At the hearing: The Grievor admitted this.  
The evidence of some of the witnesses was that the Grievor used “the n-  
18  
word” a lot.6 In contrast, Witness B recalls the Grievor using the term only on one  
or two occasions, in 2006 or 2007, soon after the Grievor started working for the  
Unit.  
90.  
The Grievor admits to having used “the n-word”. To Superintendent  
Meyer, he said he never used it in an angry or malicious way. He said he might  
have used it on an occasion when repeating what inmates had said, when they came  
out of the Central North Correction Centre, and he searched them.  
91.  
To Superintendent Meyer and in evidence at the hearing, the Grievor  
explained that the term was used by various OTOs in the workplace. The Grievor  
acknowledged that its use was completely unacceptable and that he would not use  
the term again.  
92.  
The Employer suggested in argument that the Grievor used the word to rile  
up the inmates, and that his use of the word could have created a safety risk to the  
Grievor and his OTO colleagues. Witness E alleges that the Grievor would get the  
prisoners riled up by making inappropriate comments.7  
93.  
Both Witness I and the Staff Sergeant Witness D said that the Grievor  
ameliorated difficult situations with offenders, and de-escalated conflict. That is the  
evidence I accept as regards the allegation that he created a safety risk, which I find  
is not substantiated. However, that is separate from the fact of his using “the n-  
word”, which is unacceptable in any context.  
94.  
There was evidence from various witnesses that the term was used by other  
OTOs in the Unit, not just the Grievor.  
6 For example, Exhibit 01.10(A), p.1 and p.3.  
7 Exhibit 01.12, p.3.  
19  
95.  
None of the above exonerates the Grievor from his blame for using “the n-  
word”. The use of “the n-word” is a serious breach of the WDHP.  
Incident #6  
96.  
Incident #6: “Referring to a male co-worker as “Gay Rae”.”  
97.  
98.  
At the hearing: The Grievor admitted this.  
A fellow OTO, Witness G, is gay. The Grievor referred to him as “Gay  
Rae” on many occasions, often to his face.8 Many OTOs used that nickname to refer  
to Witness G.  
99.  
The Grievor responded to Superintendent Meyer that Witness G was a  
friend of his, although Witness G said that they were not close.  
100.  
The Grievor said that from the time Witness G came to the unit, roughly  
five years before the interview, he was referred to as “Gay Rae” by most of the  
OTOs.  
101.  
I find that the use the epithet, “Gay Rae”, was a breach of the WDHP. Use  
of the term was unacceptable and the Grievor should not have used the term at all.  
102.  
At the hearing, and in his earlier apologies, the Grievor recognized that the  
term was offensive and hurtful, and unacceptable.  
Incident #7  
8 See, for example, Exhibit 01.10(A), p.3.  
20  
103.  
Incident #7: “Calling a male co-worker “Down syndrome baby” since the  
co-worker was hired.”  
104.  
At the hearing: The Grievor admitted to calling Witness C, “Down  
Syndrome Kid”.  
105.  
The accusation against the Grievor was that he used the term, “down-  
syndrome baby” when referring to a fellow OTO, Witness C, whose child had  
recently been diagnosed with autism. The Grievor said to Superintendent Meyer he  
thought he used the term, “down-syndrome kid”, rather than “down-syndrome  
baby”. Nothing turns on this difference. Witness E never actually heard the Grievor  
use the term but heard of it from others. He thought the Grievor used the term for  
Witness C because he has a round face, and that the Grievor did not know of  
Witness C’s personal circumstances.  
106.  
The Officer called by this offensive nickname learned of it subsequently,  
and he was extremely offended to know that the Grievor had referred to him by  
reference to the disability of his child.9  
107.  
Like the other comments the Grievor made, this was offensive, wholly  
unacceptable, and wrong. In acting as he did, the Grievor breached the WDHP.  
Incident #8  
108.  
Incident #8: “After a female co-worker told the Respondent that they had  
had a good shift and left the room, the Respondent turned to co-workers still in the  
room and said something to the effect of “you bet it was a good shift, I fucked her  
every way, all day and then ripped pages from her bible and wiped off my dick”.”  
9 Exhibits 01.10(A) and (B).  
21  
109.  
110.  
At the hearing: The Grievor admitted to saying this.  
This likely occurred some years before June 2016, when the Grievor was  
interviewed. The female employee is known to be a devout Christian, which  
appears to be why the Grievor referenced her Bible.  
111.  
The Grievor told Superintendent Meyer he said it in the office to a group  
of people, “joking around”. In evidence at the hearing, the Grievor said he was  
“one-upping”.  
112.  
The Grievor was deeply ashamed of what he had said, particularly as he  
liked and respected the fellow OTO he was referred to. He was sincerely remorseful  
for the stupidity and nastiness of this comment.  
113.  
The comment was sexist, disgusting, and offensive to his religiously  
observant colleague. It was a breach of the WDHP.  
Incident #9  
114.  
Incident #9: “The Complainant has been referred to as a “pedophile”, and  
these comments are repeated and happening to date.”  
115.  
116.  
The Grievor denied saying this.  
At the hearing: This was not established. Superintendent Meyer found, in  
her report, that the Grievor had likely said it. The evidence before her was that  
Witness A said he had been called a pedophile at work. When asked if the Grievor  
called him that, he replied, “I can't pinpoint him saying it, but I've heard it”.  
22  
Superintendent Meyer admitted in her evidence that it was not established that the  
Grievor said this, although her report (on which the discipline against the Grievor  
was based) concluded that he had.  
Incident #10  
117.  
Incident #10: “The Complainant has been referred to as a “ballwasher” by  
several members of the unit.”  
118.  
At the hearing: The Grievor admitted this. He and several other OTOs  
referred to Witness A as a “ballwasher”, meaning someone who ingratiated himself  
to those in authority. The Grievor saw that as a comment made in jest. The term  
was used in front of at least one supervisor, who joined in the laughter at the  
description. This likely occurred 18 months to two years before the Grievor’s  
suspension.10  
119.  
Other witnesses said this term was commonly used by several OTOs for  
any OTO who went into the office and met with Staff Sergeant Witness D or with  
the Team Leads with the door closed.  
120.  
There was no investigation about other OTOs using this term and only the  
Grievor was disciplined for doing so.  
121.  
The term was disrespectful, and a violation of the WDHP.  
Incident #11  
122.  
Incident #11: “A member of the OTU has been referred to, by the  
Respondent, as a Jew, Jesus and having obsessive compulsive disorder.”  
10 See Exhibit 01.10(A), p.2.  
23  
123.  
At the hearing: The Grievor admitted to referring to Witness E as “OCD”.  
The likelihood is that the Grievor also called him “a Jew” and “Jesus”, saying, “Jew  
or Christian, they’re all the same”. The Grievor also admitted to calling him, “God”,  
explaining that Witness E called him, “GM”, short for Grand Master, in response.  
124.  
Several OTOs, including the Grievor, referred to Witness E as “OCD”  
(obsessive compulsive disorder) because he was so fastidious.  
125.  
Use of these terms was disrespectful towards Witness E, which is a  
violation of the WDHP.  
Incident #12  
126.  
Incident #12: “Respondent has a member of the OTU, listed on his phone  
as “God” and when she calls his phone the name “God” comes up.”  
127.  
At the hearing: The Grievor admitted to having the co-worker listed in his  
phone as “Church Lady”. This complaint came from Witness E, who found it  
offensive. Superintendent Meyer found the Grievor to have been guilty of this  
incident.  
128.  
The Grievor says he had one of his female co-workers listed as “Church  
Lady” in his cellphone. At the hearing, Witness E and Witness A said that they saw  
the contact saved as “God”. The Grievor denies this. The Grievor says he saved the  
individual in his phone as “Church Lady”, and that he referred to her as “Church  
Lady”. The Grievor says that others also referred to her as “God”, among them  
Witness E.  
129.  
Whether the Grievor recorded the individual as “God” or as “Church  
24  
Lady”, that – and him referring to her as “Church Lady” – shows a degree of  
stereotyping and disrespect towards her and her religious belief. His doing so was  
a violation of the WDHP.  
Incident #13  
130.  
Incident #13: Respondent has referred to two members of the OTU as  
“bible thumpers”.  
131.  
At the hearing: The Grievor admitted this. Although this is likely a minor  
violation of the WDHP, it is an example of disrespect towards another employee’s  
religious belief.  
Incident #14  
132.  
Incident #14: “Respondent has on multiple occasions referenced going to  
the washroom to have a bowel movement as, “taking a [Witness D’s name]” or  
taking a “[Witness B’s name]”.” Witness B was a Team Lead.  
133.  
At the hearing: The Grievor admitted this.  
134.  
The Grievor and other OTOs used the names of the Staff Sergeant and of  
one or other of the Team Leads when announcing they were going to the washroom  
to defecate. This practice, referring to a superior when going to the washroom, was  
apparently common.  
135.  
The Grievor admitted this was disrespectful and undermined the authority  
the Staff Sergeant and the Team Leads. I find it offensive and highly disrespectful.  
The term was demeaning of the Grievor’s superiors, and its use with reference to  
25  
any person is a breach of the WDHP that cannot be tolerated in a respectful  
workplace.  
Incident #15  
136.  
137.  
138.  
Incident #15: “Respondent has referred to Aboriginal people as “savages”.”  
At the hearing: The Grievor admitted this.  
The Grievor sometimes referred to an indigenous person as “a savage”. As  
mentioned, the Grievor is indigenous himself. He said he used the term when  
responding to other officers who were commenting on his own background. He  
says he never used the term in a derogatory way. I do not accept that. Calling  
someone “a savage” is derogatory.  
139.  
The Grievor explained that many OTOs referred to indigenous people as  
“savages”, and he himself was called “savage” by them. Sometimes, when the  
Grievor was with other OTOs dealing with inmates, they would refer to an  
indigenous inmate, as “your Dad”, or “your uncle”, or as “Mr. Gruchy”.  
140.  
The term is hurtful, disparaging of indigenous people. It is not acceptable,  
not in the workplace, nor elsewhere. The Grievor felt the insult of it, yet he used  
the term himself. It is not appropriate, and its use is a violation of the WDHP.  
Incident #16  
141.  
Incident #16: “Respondent will go out of his way to intimidate members of  
the OTU and make them feel that he has the ability to influence their jobs by the  
comments he makes or how he says things to them.”  
26  
142.  
At the hearing: There is some evidence that, on occasion, the Grievor did  
not treat the part-time OTOs respectfully. Superintendent Meyer found that this  
allegation had been established. This is dealt with in greater detail below.  
***  
143.  
At the interview with Superintendent Meyer, the Grievor asked for the  
opportunity to apologise to the individuals affected by his comments, above. He  
said he wished to be actively involved in restoring the workplace to a more  
respectful environment. The Grievor also made the point that there is a culture  
within the Unit that needed to be addressed as a whole.  
144.  
As mentioned, Superintendent Meyer found that all the allegations against  
the Grievor had been established and that he had breached the standards of  
respectful conduct expected of all employees under the WDHP.  
145.  
Many of the witnesses described the Grievor as vulgar, racist, and  
unprofessional11. They perceived that he sought to win favour by making crude  
jokes. Witness E describes him as always belittling and bullying other staff  
members. Witness G described him as “a tyrant at work”, always putting people  
down and saying disparaging things about people behind their backs.12 Witness H  
described the Grievor as “having a disruptive nature, which is just the norm for  
him”.13  
146.  
Witness H did not see the Grievor as being hateful or malicious in his  
comments. He saw it more as trying to elicit humour, using language that was  
11  
See, for example, the statement of Witness C, Exhibit 01.10(A), p.1, and of Witness F, Exhibit  
01.13, p.1.  
12 Exhibit 01.14, p.1.  
13 Exhibit 01.15(A), p.1  
27  
intentionally provocative, as distinct from malicious.  
147.  
Witness F claims that the Grievor was aware of his misconduct because,  
when engaged in some nasty behaviour, he would say that he was untouchable, as  
if exempt from the risk of discipline.14  
148.  
Superintendent Meyer acknowledged concerns she had with the  
supervision of the Unit, and she explained the steps she would have taken to remedy  
the workplace culture. She acknowledged that she had been involved in five  
relatively recent, separate WDHP investigations involving the same relatively small  
work Unit of 32 staff members.  
Completion of the report and the Grievor’s termination  
149.  
Superintendent Meyer completed her report on August 10, 2016. She found  
the allegations against the Grievor to have been substantiated. All the complaints  
were upheld, as I have mentioned, despite some not being established. The Grievor  
was found to have engaged in conduct that variously constituted harassment, sexual  
harassment, creating a poisoned work environment based on a prohibited ground of  
ethnic origin, race, disability, religion, sex, and sexual orientation.  
150.  
Superintendent Meyer identified concerns with the Unit that she  
recommended required further review, to be addressed by management. These  
concerns are relevant to the Union’s case that the workplace environment was toxic,  
and that the Grievor’s misconduct must be understood in that context.15  
151.  
Superintendent Meyer ended her report with the following paragraph:  
14 Exhibit 01.13, p.2.  
15 For example, Exhibit 01.10(A), p.4.  
28  
The following is not a finding of fact, but a subjective observation of  
examples provided outside the scope of the investigation by witnesses  
which outline concerning behaviours in the workplace. The  
investigator notes the following concerns regarding the style/approach  
and possible failure of management to intervene. The investigator felt  
it necessary to comment on these observations as there appears to be  
a direct failure on the part of management to intervene and address  
known issues. These issues appear to be systemic and left unchecked  
for several years. Management has a responsibility to address  
potential issues within the workplace and take action to resolve and  
restore the workplace to a healthy work environment. Based on the  
statements of the witnesses, management has been aware of some of  
the issues and concerns surrounding the Respondent's conduct and  
behaviour and failed to take the appropriate action required of a  
"responsible manager" and in turn potentially contributed to an  
unhealthy work environment.  
152.  
Superintendent Meyer could not explain, in cross-examination, considering  
the many allegations against others in the workplace, why the OPP had decided to  
investigate only the Grievor.  
153.  
Despite Superintendent Meyer’s final paragraph recommendation, the  
Employer conducted no broader analysis of the workplace culture.  
154.  
At the hearing Inspector Demeules was given several examples by Union  
counsel of indications of a poisoned work environment in the Unit, examples that  
are explained in more detail below. He was then asked whether, in this context, a  
broader investigation into the workplace as a whole, rather than only into the  
conduct of the Grievor, would have been warranted. Inspector Demeules conceded  
it might have been worthwhile.  
29  
155.  
When the Employer later considered Superintendent Meyer’s report and  
the Grievor’s misconduct, apparently no regard was paid to the workplace culture  
that Superintendent Meyer described in her report as a potential factor providing  
context.  
156.  
The Grievor attended a WHDP closure meeting on August 24, 2016. He  
was informed that the allegations against him had been substantiated.  
157.  
When Inspector Demeules received the Report, he was shocked to find that  
every allegation had been substantiated (recognizing that, in fact, it was not so). He  
took a dim view of the misconduct, finding it wholly unprofessional, unacceptable,  
and prohibited. He particularly noted the allegation of intimidation of fellow OTOs  
and that he would not tolerate that in Units under his command.  
158.  
Inspector Demeules and Superintendent William (Bill) Davies, to whom  
Inspector Demeules reported, met with the Grievor and his OPPA representative in  
a pre-disciplinary meeting on September 1, 2016.  
159.  
Superintendent Davies was assigned responsibility for the Grievor’s matter  
on August 11, 2016. He reviewed the file and Superintendent Meyer’s report. The  
cookie incident shocked him, particularly his placing the cookie back on the platter.  
He felt that would have caused stress and anxiety among those attending.  
160.  
Superintendent Davies was under the mistaken impression that the potluck  
was still in progress when the incident occurred, and he believed that the cookie  
had been placed back on the plate.  
161.  
Superintendent Davies was also under the impression that the Grievor  
commonly used the “n-word” in front of prisoners and offenders in his care, and  
that the offenders had become upset, angry, and enraged, leaving the offenders in  
30  
an agitated state that the other OTOs had to deal with. Superintendent Davies  
therefore saw that there were safety issues, as well as harassment and misconduct,  
arising from the Grievor’s use of the “n-word”. The safety risks were not  
established in evidence.  
162.  
At the pre-disciplinary meeting the Grievor had an opportunity to answer  
questions and give further information. At that meeting the Grievor attempted to  
read an apology but became too emotional to continue16. The Grievor’s apology  
reads17:  
I am writing this letter to address my actions that have affected my  
employer, co•workers, friends and family.  
I am very sorry for the things that I have said and done that were  
inappropriate and offensive.  
I understand that I did not uphold the OPP promise or my Special  
Constable designation.  
I accept full responsibility for my inappropriate behaviour and comments.  
It was never my intention to hurt or offend anyone as I am not a hateful  
person. I have said and done things in bad taste and bad humour which has  
[sic] unfortunately has had a negative effect on my co-workers, friends  
and family.  
I have had time to reflect on my actions. I realize that although, no harm  
was intended by my behaviour, I have harmed many people by my actions.  
I have not only embarrassed myself, but also the OPP organization, my  
coworkers, and my family. I have spent a great deal of time preparing  
myself to return to the workplace with a positive attitude and my goal is to  
develop positive relationships and a positive working environment. I will  
16 There is a recording of this meeting, at Exhibit 52, with notes of it by an attendee, Exhibit 53.  
17 Exhibit 54.  
31  
assist in any way possible to create a healthy, positive workplace that is  
free from discrimination and harassment. […]  
I am sorry for my behaviour that has caused grief for the organization,  
members of the OTU and my family. I am truly sorry for my actions and  
for the embarrassment to the OPP, members of the unit and my family.  
163.  
Typically, the pre-disciplinary meeting is followed by a briefing note being  
prepared for the senior officers who must make the decision on discipline. The  
briefing note has the option of a 20-day suspension or termination. On September  
26, 2016, Superintendent Davies recommended to the Employer’s Human  
Resources team that the option of a 20-day suspension be removed from  
consideration of disciplinary penalty as, in his view, that penalty would not be  
appropriate given the circumstances.18 The option left for further consideration was  
termination.  
164.  
During October 2016, five senior executive officers of the OPP supported  
the decision to terminate the Grievor’s employment. The briefing note has a  
summary of the principal conclusions from Superintendent Meyer’s report, with an  
analysis of the impact of the Grievor’s misconduct on the OPP.  
165.  
On November 8, 2016, the Grievor was terminated for violating the WDHP  
Policy, the Conditions of Appointment for a Special Constable – Code of Conduct19,  
and the OPP Promise (Section 6.10 – Professionalism in the OPP)20. These  
standards all require respectful treatment of all others, and they require Officers to  
refrain from any behaviour that demeans the dignity of others. The Grievor was  
18 Exhibit 58.  
19 Exhibit 51.  
20 Exhibit 31.  
32  
found to have engaged in conduct that was disrespectful and unwelcome, which he  
ought reasonably to have known was unwelcome, and which contributed to a  
hurtful or poisoned work environment.21  
166.  
The Grievor admits he did so.  
167.  
Notably, there is no accurate account of when the Grievor made most of  
his offensive comments. When Superintendent Meyer conducted her investigation,  
the witnesses were asked of anything they could recall regarding the statements the  
Grievor had made. So, the allegations described range over a period of many years  
when the Grievor made offensive comments and used offensive terms, to one or  
more persons at a time, with relatively little evidence of the frequency of such  
comment. Consequently, anything inappropriate or offensive that the Grievor had  
said over the 11-year period of his employment was considered in the determination  
of his misconduct.  
WDHP training  
168.  
The Grievor underwent periodic training in issues of diversity, equity, and  
workplace decency and respect. The most recent was on March 31, 2015:  
“Diversity – Differences Matter: Diversity Foundations” (e-learning), and “Let’s  
Start with Words”; and a few days earlier, on March 29, 2015: “Aboriginal and  
First Nations Awareness”, and “Recognition of Emotionally Disturbed Persons”.  
Educational courses appear to have been roughly twice a year, many of them on  
how to behave respectfully towards one’s co-workers and others.22  
169.  
Through periodic emails and the annual performance appraisal, Staff  
21 The recording of the termination meeting is Exhibit 59.  
22 A record of the training the Grievor attended is contained in Exhibit 25, p.2.  
33  
Sergeant Witness D reiterated the need for maintaining a respectful workplace.23  
There were also some emails to members of the Unit from more senior officers in  
the Central Region of the OPP reiterating the importance of, and the values of, a  
respectful workplace;24 and the OPP periodically issued WDHP InfoNotes, that  
explained that harassment and discrimination were prohibited.25  
170.  
In his annual appraisals, the Grievor would confirm he had reviewed and  
discussed the various documents that espouse and explain an Officer’s obligations  
to maintain a respectful workplace.  
171.  
There is no question, even aside from the extensive training received, that  
the Grievor was aware that his comments and his misbehaviour on December 15,  
2015 were wholly unacceptable and worthy of serious discipline.  
The workplace culture  
172.  
The Union’s case is that the culture of the workplace was poisoned by  
inappropriate behaviour on a significant scale, and that the Grievor’s admitted  
misconduct must be seen as a feature of that dysfunctional culture.  
The workplace atmosphere generally  
173.  
The Grievor contrasted his experience of the workplace culture in Ottawa,  
where he worked prior to joining the Unit in Midlands. The Ottawa Unit was more  
disciplined, more regulated, and the leadership was more accessible to the OTOs.  
23 Exhibit 20 sent on October 30, 2013; Exhibit 21, May 29, 2014; Exhibit 22, July 25, 2014.  
24  
Exhibit 23, from A/Inspector Tony Wanamaker, September 23, 2015; Exhibit 24, from Chief  
Superintendent, Central Region, John Todd, December 17, 2015.  
25 See, for example, Exhibits 30A & 30B issued in October 2013.  
34  
The difference in culture was immediately apparent to the Grievor when he joined  
the Midlands Unit. Each OTO was on their own. There was little camaraderie. The  
supervision was much less apparent. The professionalism that characterized the  
Ottawa operation was missing. There was a turnover of staff sergeants, who did not  
work on site. For some of them, they never even met their OTO staff before they  
were replaced. There was also a high turnover of Team Leads. From the OTOs  
perspective, the management of the operation was sporadic and chaotic.  
174.  
Staff Sergeant Witness D moved to work with the Unit in 2014, when the  
Unit obtained its own premises. She was regularly called to attend meetings at the  
General Headquarters, a distance from the Unit’s premises. She was also at the Unit  
only during office hours, 8 to 5, when the OTOs were generally on the road between  
5am and 8am, coming back late in the day. Staff Sergeant Witness D admitted she  
had relatively little contact with the OTOs. The Team Leads effectively ran the  
Unit. The evidence suggests that they permitted a culture of mild contempt to  
prevail, in which individuals used nicknames for each other – often disparaging  
nicknames – and in which jokes and somewhat nasty banter were the common  
forms of communication.  
175.  
The use of nicknames was very widespread. Virtually everyone had a  
disparaging nickname. The Grievor, for example, was called “Kandahar Kevin”  
(because of his beard), and “Chief” (because he is indigenous), and “Savage”, as  
mentioned, and “Little Hitler” (when he was an acting Team Lead).  
176.  
Virtually every witness who testified described the workplace as divided  
and fractious. Witness H said it was poisoned, Witness J said it was toxic, Witness  
I described it as a cancer.  
177.  
Bullying and inappropriate language, as well as general unprofessional  
35  
behaviour, were widespread. The witnesses described it as taking place openly,  
with the Team Leads tolerating and even participating in it.  
178.  
There was evidence of a culture of practical jokes being played by the  
OTOs on each other, e.g.: turning wiper blades on their vehicles around backwards  
on windshields, writing messages or comments on people’s vehicles in the snow,  
and parking extremely close to someone’s vehicle where they can't access the  
driver’s door.26 Witness I described the behaviour as being “like school-house  
antics”.27  
179.  
Witness J described the work environment as being managed through  
fearmongering and manipulation of the OTOs. In his words, management (meaning  
the Staff Sergeant and the Team Leads) did their best to turn employees against  
each other, causing a lot of stress and anxiety. He said it affected him at work and  
at home. The workplace, from his perspective, was not a healthy place. He  
mentioned threats to the part-timers not to raise concerns lest they lose the  
possibility of being appointed full-time. He said the tension was such that he had  
tightness in his chest each time he went to work.  
180.  
Witness J confirmed that there were several bad relationships, where  
individuals treated each other disrespectfully. Joking around was the norm, he  
thought, as an escape from some of the harrowing tasks involved in the work, using  
humour as an outlet.  
181.  
Witness J confirmed the Grievor’s evidence that many individuals used the  
disparaging epithets that the Grievor was charged with using in the incident  
indictments of his investigation, including “Dirty Mexican”, “Gay Rae”,  
26 Statement of Witness I, Exhibit 60, p.7.  
27 Ibid, p.8.  
36  
“ballwasher”, and “Down Syndrome Kid”. Witness I gave similar evidence,  
suggesting that most of the OTOs used these terms. He said the individual whom  
the Grievor called “Church Lady” was called that by others too.  
182.  
Witness I suggested that conversations that were racist, sexist, or  
homophobic were common, regular occurrences within the Unit. No-one was  
disciplined for such use of language before the Grievor.  
183.  
Witness J strongly felt that the Team Leads and the Staff Sergeant were  
aware of what was being said, and the language being used.  
184.  
Witness B said the morale of the Unit progressively declined during the  
tenure of Staff Sergeant Witness D.28 He attributed the decline in morale to  
unnecessary changes in the Unit that caused turmoil among the OTOs.  
185.  
Witness A thought that each of the supervisors was involved in  
inappropriate, harassing behaviour towards the OTOs. As he put it, if one were to  
look at the WDHP Refresher guide, for each bullet of inappropriate behaviour  
(“potential violations”)29, he could pick out a supervisor who had done just that.  
186.  
Witness A’s perception was that the Grievor was close to Staff Sergeant  
Witness D and that it was common knowledge at the time he made his complaint  
of the cookie photo that the Grievor would be the person appointed to the vacant  
Team Lead position30.  
187.  
Witness H contrasted the workplace he had been at prior to working on the  
Unit with the working environment on the Unit. His former place of work, the  
28 Exhibit 01.09 p.4.  
29 Exhibit 01.08(B), p.3  
30 See the statement of Witness B, Exhibit 1.09, p.1.  
37  
Ministry of Natural Resources, was professional and cohesive with good  
leadership. He contrasted that with the Unit which he found to be volatile, with  
power based on a hierarchy, with those at the top in complete control.  
188.  
Witness I said there were continuous practical jokes, a lot of backstabbing  
and everybody had a nickname. He explained that it was easy for what one said to  
be misinterpreted and later taken out of context. He said the Team Leads were all  
former OTOs, and so knew of the culture and engaged in it. Witness I had issues  
with one of the Team Leads, which eventually resulted in him filing a WDHP  
complaint against her (in 2018), after the Grievor had been terminated, that resulted  
in findings that upheld his complaint.31  
189.  
My overall impression of Staff Sergeant Witness D is that she was  
somewhat remote from what was happening in the Unit. She says that she tried to  
encourage teamwork, and she invited the OTOs to reach out to the Team Leads or  
to her if they had any concerns. In practice, the OTOs did not do this. They kept  
things to themselves, and within the Team Leads, who seem to have conveyed  
relatively little to Staff Sergeant Witness D of the problems in the workplace.  
190.  
Witness A explained that he had reached the end of his toleration of the  
unpleasant, toxic workplace when he filed his complaint following his seeking and  
receiving the cookie photo. He had had enough. In his words, “I was losing  
control”; he was so upset by what was going on at work. He turned to Human  
Resources for help. His view of the situation was that the Staff Sergeant enjoyed  
the chaos going on in the office because she did nothing to stop it. He regretted  
inappropriate things he had said. In his words, “people treated each other like shit,  
and it was allowed, [the Staff Sergeant] didn't manage anything. I was not an angel  
31 Exhibits 62 and 63.  
38  
too. You get into this culture, and it eats you away, like a cancer in that place.”  
191.  
Witness B’s evidence was similar. He felt that Staff Sergeant Witness D  
and her predecessor were both poor commanders who contributed to the tension in  
the workplace.  
192.  
There was also a lot of individual conflict between OTOs. Several did not  
get on with each other. Some of this was manifested in physical confrontations or  
yelling matches, often in inappropriate comments and name calling, some in  
WDHP complaints, and some in requests not to be assigned with the other person.  
The WDHP complaints between Staff Sergeant Witness D and Team Lead RM  
193.  
The relationship between Staff Sergeant Witness D and Team Lead RM  
broke down in the summer of 2015. They each filed a WDHP complaint against the  
other. Virtually everyone on the Unit was interviewed as part of the investigation,  
which covered both reciprocal complaints. This created a divide among the OTOs,  
some supporting Staff Sergeant Witness D, some supporting Team Lead RM.  
194.  
Following the cross-complaints between Staff Sergeant Witness D and  
Team Lead RM, Team Lead RM left the Unit and took a position elsewhere.  
195.  
Witness G was among those interviewed. His statement, on November 19,  
2015 (two months before the Grievor’s suspension), gave a strong impression of a  
thoroughly poisoned work environment with relationships between the OTOs, the  
Team Leads and the Staff Sergeant in chaos, without effective leadership.32  
32 Exhibit 07, p.3 & 4.  
39  
The part-time - full-time divide  
196. Central to the dysfunctional workplace culture was the division between  
the part-timers and the full-timers. Typically, employees started as part-time and  
then were later appointed to full-time. The work of the part-timers was uncertain.  
Without guaranteed hours they were dependent on the assignments made by the  
Team Leads. There was a perception of favouritism. Some of the part-time OTOs  
who testified thought that those liked by the assigning Team Lead would be kept  
on and given some work on the worksite, while others were sent home if there was  
no work on the trucks, with the minimum two hours’ pay.  
197.  
Staff Sergeant Witness D explained in her evidence that she had a system  
in place to try to equalize the work hours of the fixed term, part-time employees.  
She would review the hours they worked with the Team Leads and arrange for  
assignment of work at the Unit of those whose hours were less than others. This  
system of checking the assignments does not appear to have been appreciated by  
the part-time OTOs, who saw the assignments as being arbitrary and the result of  
favouritism.  
198.  
The common perception among the OTOs was that management of the Unit  
– chiefly the Team Leads – allowed the division between the full-timers and the  
part-timers to fester. The part-timers were the butt of bullying and joking by the  
full-timers and, it seems, by the Team Leads. This culture of abuse towards the part-  
timers had a corrosive impact on the culture of the workplace.  
The morale boosting meeting in October 2015  
199.  
Staff Sergeant Witness D said she became aware of the bullying of the part-  
40  
timers when she held a morale boosting meeting on October 3, 2015. She had two  
meetings with staff: first with all staff33, then with the part-time staff34.  
200.  
The Grievor was interviewed on November 18, 201535, about a month after  
the October meeting. His close recollection of the meeting was positive. He  
appreciated Staff Sergeant Witness D convening the meeting to enable the staff to  
air their concerns.  
201.  
The part-timers asked to meet with Staff Sergeant Witness D by  
themselves. She did so and she says she discovered that they had serious concerns  
with their treatment in the workplace, that their morale was particularly low, and  
that their experience of the workplace was far from positive.  
202.  
There was a perception among the part-timers that promotion to full-time  
depended on being in Staff Sergeant Witness D’s favour. She was asked by the part-  
timers why promotion to full-time was not done by seniority, as it was in other OT  
units in Ontario.  
203.  
From documents provided to Superintendent Meyer by Witness A36 it  
seems that Staff Sergeant Witness D was interested in appointing those part-timers  
who showed initiative, complained less, and contributed to the Unit.  
204.  
Staff Sergeant Witness D’s evidence is that she tried to make the  
appointments on merit, however, they were perceived as being influenced by her  
33 See Exhibit 40, October 8, 2015, for Staff Sergeant Witness D’s summary report to staff of what  
was discussed at the meeting.  
34 See Exhibit 41, Staff Sergeant Witness D’s communication to the part-time staff after the meeting.  
35 As part of the WDHP investigation involving Staff Sergeant Witness D and Team Lead RM. The  
Grievor’s interview was recorded and is Exhibit 59.  
36 Exhibit 01.08(B), p. 1-2.  
41  
personal preferences.  
205. Staff Sergeant Witness D explained that, because of the complaints of  
Witness G concerning the unhappiness of the part-timers, and the other information  
she had from the part-timers, she approached her superiors to arrange for  
relationship building or morale boosting among the staff. That training only  
occurred much later, during 2016, long after the Grievor had been suspended from  
work pending the outcome of his investigation.  
The Barrie courthouse washroom graffiti  
206.  
During the latter period of the Grievor’s employment, a discovery was  
made that the toilets used by the OTOs and other police officers at the Barrie  
courthouse had a lot of graffiti on the toilet walls and doors, graffiti that was  
disgusting and disparaging of individual OTOs. One of the acting Team Leads  
informed Staff Sergeant Witness D of this on January 6, 2016. The writing on the  
Barrie courthouse toilet walls had apparently gone on for several years, perhaps  
from 2006. The writing included references to OTOs that were sexist, racist, and  
homophobic.  
207.  
Staff Sergeant Witness D had a meeting with the Barrie Police on January  
7, 2016, where she viewed the writing on the washroom walls for the first time and  
received a copy on disk of the photographs taken of the graffiti.  
208.  
The graffiti was investigated by the Barrie police. No arrests were made,  
and no consequences resulted from the investigation. The Barrie police later  
decided to paint over the graffiti.  
209.  
Staff Sergeant Witness D viewed the photos of the graffiti with an acting  
42  
Team Lead who was able to decipher for her the nicknames written in the graffiti,  
so she could understand who on the Unit was being referred to disparagingly. She  
determined that most of the comments were written by her staff. She discussed with  
her new superior, Inspector Demeules (who had just taken office as the Program  
Manager), whether there ought to be an investigation, likely by engaging a  
handwriting analyst.  
210.  
On January 15, 2016, within days of the WDHP complaints being made  
against the Grievor, Inspector Demeules contacted the Career Development Bureau  
(CDB) regarding the Barrie courthouse graffiti. The CDB recommended that he  
send a strong communication on the inappropriateness of writing such graffiti, and  
that no investigation be done. Inspector Demeules followed this advice and no OPP  
investigation followed.  
211.  
The Grievor testified that he was never involved in writing any graffiti in  
the Barrie washrooms.  
212.  
The Union suggests that the Employer’s decision not to investigate the  
graffiti was a failure to investigate harassment and discrimination within its  
workforce.  
213.  
The Employer points out that management did not simply ignore the graffiti  
revealed on the Barrie courthouse washroom stalls. Inspector Demeules wrote a  
strong message to the OTOs, among others, on January 18, 2016, reiterating the  
importance of abiding by the WDHP policy and behaving professionally.  
The Grievor’s behaviour towards subordinates  
214.  
Among the allegations against the Grievor was that he intimidated some of  
43  
the part-time and new OTOs by suggesting he could influence their prospects of  
gaining promotion to full-time status. Witness E says that the Grievor took pleasure  
in making the part-timers feel nervous and worried.37  
215.  
In evidence at the hearing, Witness G said that the Grievor made comments  
to the part-timers that undermined their confidence, suggesting they might get their  
hours cut.  
216.  
Witnesses E and F both were part-time for most of the time they worked  
with the Grievor. Both felt he took some pleasure in pointing out their vulnerability,  
their difficulties in getting regular hours of work. Witness E testified that the  
Grievor appeared to go out of his way to make the new part-timers nervous and  
confused.  
217.  
The Grievor expressed regret for being party to what he saw as a gang  
mentality, where the full-timers teased the part-timers. He expressed  
disappointment in himself for participating in mistreating the part-timers. He  
recognises that some felt hurt by things he said, and he acknowledged that he  
shouldn't have carried on as much as he did, or at all.  
218.  
Witness E said that the Grievor had a terrific sense of humour, but he liked  
to use it to shock and get a reaction, often at the expense of a subordinate or some  
other OTO. He felt that the Grievor was much more destructive than others who  
behaved inappropriately, in that he was more disrespectful and more demeaning  
than others.  
219.  
Team Lead Witness B’s impression of the Grievor’s interaction with the  
part-timers was that he did not invite them to engage with him, so they didn't feel  
37 Exhibit 01.12, p.2.  
44  
they could go to him with issues. However, Witness B thought that nothing in the  
Grievor’s behaviour towards the part-timers violated the WDHP.  
220.  
Despite the evidence of maltreatment of the part-timers by the Grievor, he  
was occasionally protective of some part-timers and of some new employees just  
learning the job. Also, the Grievor was among those full-timers who gave up hours  
to stay for the shift, from their banks, so that the part-timers could work. Witness  
G makes the point that the Grievor was kind to certain people, and would help them  
out.38 However, the Grievor also suggested to one of those he was coaching that he  
might have some influence with “the white shirts” (the Team Leads), and that he  
might be able to advance an individual’s prospects of permanent employment.  
221.  
My impression overall was that the Grievor was rarely sympathetic to the  
plight of the part-timers who had little job security, and he did not like what he saw  
as favouritism by some of the Team Leads towards some part-time employees over  
others. However, as in his behaviour with other OTOs, he was inappropriately  
dismissive and rude.  
Conclusions on the workplace culture  
222.  
In summary, the workplace from which the complaints against the Grievor  
arose was riven by division and insufficient supervision. The Team Leads appear  
to have tolerated the bullying and the inappropriate language used in the workplace.  
223.  
The Employer points out that there are several positions within the Ontario  
Public Service (OPS) that have similar, very limited supervision. That, in the  
Employer’s submission, does not alter the responsibility of the individuals who  
38 Exhibit 01.14, p.1.  
45  
occupy these positions to behave professionally and to exercise even greater  
responsibility because of the lack of supervision. In other words, remote  
supervision is not an excuse for bad behaviour.  
224.  
It seems clear that the cookie incident that started the investigation into the  
Grievor’s conduct was a catalyst for complaints of maltreatment in the workplace  
to be raised. There were specific complaints against the Grievor that management  
pursued. There were also many other complaints about the workplace generally that  
were not pursued.  
225.  
Witness A, who first complained against the Grievor following his receipt  
of the cookie photo, left work on stress leave after he made the complaint. He has  
not returned. The Union submits his complaint was a cry for help more about the  
work environment than about the Grievor.  
226.  
The Union submits that the Employer failed, while the Grievor was  
employed, to ensure a safe and respectful workplace; and that fairness requires that  
I evaluate the Grievor’s misconduct against the background of the manifestly  
widespread anti-social behaviour that had become acceptable, open, and was even  
encouraged by the example of some of the Team Leads.  
227.  
The above description of the workplace culture strongly suggests that there  
was a toxic atmosphere in the workplace and that it could properly be described as  
a poisoned workplace. The Grievor played a central role in that environment. He  
sustained, encouraged, and participated in the unpleasant, threatening work  
environment. He was the author of many inappropriate and unacceptable  
comments. The photograph and his accompanying comment were the culmination  
of his bad behaviour; behaviour that appears to have been ignored by the Team  
Leads, and that was accepted in the workplace. He was enabled by the tacit support  
46  
for his own inappropriate behaviour by one or more of the Team Leads and by the  
behaviour of many of the OTOs. He was not solely to blame, but he was not a mere  
victim of the harassment within the workplace culture. He was an active participant  
in the toxic culture and has responsibility for his misconduct.  
The Grievor’s personal circumstances  
228.  
Two workplace performance evaluations were produced of the Grievor’s  
work. The first was on February 23, 2015. It is overall complimentary of the  
Grievor’s work and of his contribution to the Unit.  
229.  
The most recent performance appraisal was done on December 24, 2015, a  
short period before the Grievor’s suspension in January 2016. He received a  
glowing report from his supervisor. Among the comments are the statements that:  
he “possesses the ability to build rapport with others, demonstrate self-control and  
be level-headed when he is involved in stressful situations. It has been further  
recognized that on several occasions [he] has utilized his quick wit and humour to  
reduce and diffuse both stress and acting out behaviours from irate or troublesome  
inmates”. Also, that he “remains alert and attentive when dealing with offenders.  
He is also able to quickly assess and adapt to any presented forms of negative  
behaviour.”  
230.  
The Supervisor’s overall comment was that he “assists his fellow co-  
workers and team lead supervisors when the opportunity arises and will come in  
early and on OT to assist the unit if need be.”  
231.  
Staff Sergeant Witness D was similarly complimentary. She added, “He  
recently implemented a system for tracking court dates to assist us with staffing and  
planning ahead”, among other positive comments.  
47  
232.  
From the performance appraisals, the Grievor was seen by management as  
performing effectively. He had a good work ethic with strong skills. He was also  
effective in his dealings with the inmates. Those who were asked of this among the  
OTO Employer witnesses confirmed it. He was known to be good at diffusing  
tension.  
233.  
I find that the Grievor showed commitment and dedication to his work,  
including appreciation of the opportunity he had working in the Unit, despite the  
misconduct revealed above. The Grievor’s performance appraisal is of a confident,  
assured officer. That was very different from the self-abasing individual making his  
abject apology at the Grievor’s pre-disciplinary interview. The Grievor is an  
intelligent man who appears to know and understand what is required of him and  
how deeply he betrayed the acceptable standards of decent behaviour.  
234.  
At the time he testified, on May 27, 2021, the Grievor was 51 years old. He  
has a daughter who was 14-years old when he testified. She lives with her mother.  
The Grievor said that he had not seen her for several years because he has not been  
able to maintain child support payments since his termination.  
235.  
The Grievor had a traumatic childhood in many respects, including  
spending time in foster care. He left home during his last year of high school.  
236.  
The Grievor lost contact with his mother and his siblings until he attended  
her funeral in 2012, and there again met his two brothers and sister. The Grievor  
now has very sporadic contact with his father. He has minimal contact with his  
siblings.  
237.  
The Grievor has lived an isolated life. He sees a connection between his  
48  
prior personal experience and his workplace behaviour. He says that the job made  
him feel more in control of his situation by behaving as he did. He says as a child  
he had to fight for everything he had. Despite really enjoying his work and  
appreciating where he was and what he was doing, the Grievor explains that the  
way he treated people, his meanness, was the result of the hardships he faced  
growing up.  
238.  
The Grievor spoke of the connection between his past trauma and his  
workplace behaviour. He explained that his desire to be accepted by his co-workers  
was very strong, he believes, because he felt no home, no comfort during his  
childhood. He said that much of his bluster at work, his boasting, and his daring  
behaviour was the consequence of him trying to be accepted by his co-workers.  
239.  
The Grievor’s awareness of the nastiness of his own behaviour, and his  
insight into why he behaved as he did, show that he understands how to behave  
properly and of what is needed to do so. He is aware of the need for him to get  
personal counselling and therapy.  
240.  
The Grievor was also the recipient of inappropriate and racist comments  
from his colleagues, evidence of the acceptability of such behaviour in the  
workplace.  
241.  
I interpret much of the Grievor’s bravado and braggadocio as a means of  
making himself impregnable by his own sharp language. He found solace in fitting  
in, in belonging to the group of OTOs. His status as a Special Constable was very  
important to him. He treated his work as a very important feature of his personal  
identity. Yet, because of his fundamental insecurity as a person, his sense of  
isolation, he overdid things, pretending to be more in control than he was, appearing  
to be tough and indifferent, though always very conscious of his impact and of what  
49  
he was doing.  
242. The Union submits that the Grievor’s hardship and humiliation from being  
out of work and without income for over 5 years have added to his sense of isolation  
and to his low self-esteem.  
243.  
The Grievor says he has been unable to secure work since his termination.  
When he advises he was terminated by the OPP, he has not been hired. He resides  
with a retired OPP Sergeant and his wife, who permit him to stay rent free. He does  
some odd handyman jobs.  
244.  
The Employer questions the Grievor’s failure to secure work since his  
termination. It points out that he previously worked in construction and suggests he  
could have found work on a building site. The Union explains that the Grievor has  
no letter of employment from the OPP. When he applies for work and informs  
prospective employers that he was terminated for cause by the OPP (although his  
case is in arbitration), he is not hired.  
245.  
The Employer asks why the Grievor has not sought counselling since his  
termination to address the impact of his childhood on his behaviour. The Union and  
the Grievor explain that the Grievor has been without work and income since his  
termination, and he has not been able to access any counselling service.  
246.  
The Grievor makes clear that he has reflected on the reaction to his jokes  
and derision of the people who came forward and complained against him, and he  
has realized what a serious impact his conduct had on them. He says he knows he  
can be a better person, and he will continually work on being a better person.  
247.  
He apologized to everyone for his impact on them, and for having to testify  
against him. He expressed extreme regret for what he had done.  
50  
Review of the Evidence  
248. I first comment on some of the contradictions in the evidence, and on the  
quality of the testimony given by the witnesses. Everyone testified years after the  
incidents they describe. Consequently, I find that their best evidence is what was  
recorded or put in writing at the earliest date. Even when they were interviewed as  
part of the WDHP investigation by Superintendent Meyer, they were recalling some  
events long in the past. When they testified at the hearing, their evidence was of  
recollections from at least four, five or six years before.  
249.  
The Employer particularly challenges the OPPA’s witness’s evidence of  
Witness J, a friend of the Grievor, who worked with him as an OTO. At the hearing  
he described the Staff Sergeant as “terrorizing the office”, though, when he worked  
as part of her staff, he wrote emails to her praising her willingness to help and  
appreciating her follow-up39. Witness J also never complained about her when the  
OPPA filed a harassment complaint on his behalf. The Employer also argues that  
Witness J was selectively forthcoming in his evidence: recalling some incidents,  
but not his own use of disparaging terms that others had testified to, calling a  
colleague “Down Syndrome Baby”, and not identifying who used disparaging  
terms that he said were used frequently in the workplace.  
250.  
The Union challenges the Employer’s characterization of Witness J’s  
evidence. The Union says that he praised Staff Sergeant Witness D in his emails to  
her because she had addressed the concern that he had raised with her. That does  
not, the Union submits, preclude Witness J from giving his critical opinion on the  
39 Exhibits 64 and 65.  
51  
overall quality of the management of the Unit, as he did. The Union argues that  
Witness J’s evidence overall, having regard to how long before the events occurred  
from when he testified, was genuine and straight forward.  
251.  
The Employer says that the Grievor was not forthcoming in his evidence  
because he failed to name others who used offensive language. The Employer also  
says that the Grievor was not wholly acknowledging of his misconduct because he  
qualified his admissions by saying that others spoke in a similar way.  
252.  
While it is true generally that blaming others for one’s misconduct does not  
assist a grievor engaged in misconduct, in this case the Grievor was genuinely  
apologetic and remorseful, taking responsibility for his own misconduct, while  
describing the workplace culture. He explained that his words and his use of  
language were akin to how other OTOs spoke, and that he was part of a culture of  
disrespect, couched as humour or familiarity. To have not mentioned how others in  
the Unit spoke would have been unfair to himself, as if he were the only person  
using inappropriate language. Explaining the context of the Grievor’s unacceptable  
comments was necessary for a reasonable understanding that his misconduct was  
partly explained by the culture in which the Grievor worked.  
253.  
The Employer’s characterization of the Grievor as the single wrongdoer in  
the workplace is not consistent with the evidence. He may have been among the  
worst, perhaps the worst, but he was living and speaking within a context that had  
become familiar and normal among many of the OTOs. Regarding the offensive  
terms he used, many of them were also used by other OTOs on the Unit.  
254.  
Witness A made clear that the use of sick jokes and sexist, racist and  
homophobic comments were rampant in the Unit, including use of the “n-word”.  
The Grievor was one among others who used such terms.  
52  
255.  
The Employer makes the point that there was little evidence of  
management’s knowledge of the Grievor’s misconduct. Witness A and others had  
a quite different view. In his view, the Staff Sergeant knew a lot of what was going  
on, and of the different camps of people, each against the other. Witness A thought  
that she knew what was going on, but did nothing to stop the derogatory comments,  
other than to protect her favourites.  
256.  
Staff Sergeant Witness D said that she had no knowledge of the Grievor  
using the type of language he did.40 The Team Leads certainly knew of the types of  
verbal exchanges between the OTOs. I recognize that the Grievor was careful not  
to show his bravado to Staff Sergeant Witness D. From her perspective, he was a  
good, reliable worker, a good coach, and a candidate for possible promotion. The  
Team Leads likely had a much fuller experience of the less than respectful way the  
OTOs communicated with each other. There was no evidence that the Team Leads  
conveyed to Staff Sergeant Witness D the detail and extent of the inappropriate  
behaviour among the OTOs.  
257.  
Workplace cultures operate on a continuum: from respect and appreciation  
to forms of incivility and disrespect, to harassment and verbal abuse and – in the  
extreme – to instances of physical or overt sexual harassment and violence. The  
stage of incivility includes gossip, telling offensive jokes, using disparaging  
nicknames, and treating nastiness as humorous. All these forms of incivility were  
described in the evidence. Most of the Grievor’s misconduct falls within this type  
of disrespectful, offensive, and inappropriate behaviour.  
258.  
From the evidence presented to Superintendent Meyer and the evidence  
presented in the hearing, the workplace culture of the Midland-Penetang OTU fell  
40 Exhibit 0.11(A), p.4.  
53  
within the stage of incivility and disrespect. The Senior OTOs (the Team Leads)  
were likely aware of this culture and, to an extent, played a part in it through  
favouritism and by overlooking the instances of it that they witnessed. The  
undercurrent of disrespect among many of the OTOs was not seriously addressed  
and the incivility continued.  
259.  
I suspect that the lack of any change in the uncivil workplace culture was  
because the OTOs mostly kept it to themselves. Their mutual disrespect was mostly  
manifested when they were with each other, less than with the Team Leads, and  
notably not in front of Staff Sergeant Witness D.  
260.  
The Grievor was a key player in this culture. He plainly contributed to the  
unsavory culture that had entered the spectrum of harassment: making comments  
that are objectionable or unwelcome that the speaker knows, or reasonably ought  
to know, will cause offence or humiliation or affect the wellbeing of the person  
being spoken to. The Grievor was a recipient of, but also a contributor to, this  
undesirable workplace culture.  
261.  
While acknowledging the wrongfulness of using the unacceptable epithets,  
the Grievor said that: the words used were a joke; or the recipient of the slur was a  
friend of his; or everyone was doing it; or the intention was to amuse, not to hurt.  
It seems that, in varying degrees, the Grievor was not alone in thinking that the kind  
of disrespectful behaviour that was prevalent – concealed under the guise of  
humour – was normal and acceptable, despite the lessons they were learning in their  
formal online training to maintain a respectful workplace.  
262.  
The trouble with such a culture is that it is actually hurtful. Everyone who  
receives an offensive or disrespectful epithet is demeaned by it. Everyone working  
within a disrespectful workplace culture bears some scars from the nastiness spoken  
54  
to them as if it were funny. It creates a toxic workplace environment.  
263.  
Had the Employer approached the matter holistically, as Superintendent  
Meyer did in the last paragraph of her Report, it would have noticed that the  
complaints involved more than the ones directed against the Grievor. There had  
been a history of WDHP complaints and countercomplaints. Staff Sergeant Witness  
D herself had been both the recipient and the initiator of a WHDP complaint against  
a Team Lead. These occurred in the year prior to the complaints against the Grievor.  
264.  
WDHP complaint and countercomplaint are a good indication that all is not  
well in the workplace, that individuals are not feeling the respect they think they  
warrant, and that the culture needs attention. The complaints show, as did the  
evidence in this case, that the problem was not just the Grievor’s highly  
inappropriate behaviour, but that he was part of a toxic culture that needed to be  
corrected.  
265.  
The importance of the evidence of the workplace culture is that it serves to  
contextualize the Grievor’s misbehaviour. His misconduct was enabled by the  
culture that prevailed between him and his co-workers.  
266.  
Nonetheless, the failure by the Employer to act against other employees  
does not justify the Grievor’s misconduct (see CHEO41, cited below, for a similar  
circumstance).  
Submissions  
Employer Submissions  
41  
Children's Hospital of Eastern Ontario and OPSEU, Re, 2015 CarswellOnt 13987, 260 L.A.C.  
(4th) 147 (Parmar).  
55  
267.  
The Employer characterizes the Grievor’s remorse as regret for getting  
caught for the things he mostly said and the things he did.  
268. The Union’s case is that the Grievor’s work environment was such that his  
behaviour, although contrary to the various rules and standards that applied to him,  
was like that of many others in his Unit, and that his misbehaviour was tolerated.  
269.  
Among the issues in this case are the extent to which management had  
knowledge of the type of inappropriate behaviour that was prevalent in the Unit,  
and the extent to which management accepted, tolerated, and perhaps condoned and  
participated in it.  
270.  
The Employer submits that there was no evidence of anyone using  
offensive language to the extent the Grievor did. The Employer suggests this shows  
that no-one else came close to the same scope, scale, and level of abusive and  
inappropriate language as did the Grievor.  
271.  
The Employer says that the evidence shows that the Grievor liked picking  
on people. Implicitly, he is not the type of person that the Employer should be  
required to have back in its employment because bullying behaviour is inherently  
unwelcome.  
272.  
The Employer makes the point that some of the individual incidents  
established against the Grievor are such that termination is the appropriate sanction  
on their own, let alone in combination with the Grievor’s accumulated misconduct.  
273.  
The Employer argues that, if the finding is that there was no just cause for  
the Grievor’s termination, then he should not be reinstated but rather be awarded  
damages in lieu of reinstatement, given the poisoned workplace he created.  
56  
274.  
The Employer argues that the impact of the Grievor being returned to work  
would be dreadful. By some accounts there have been considerable improvements  
in the workplace since the Grievor’s termination. His work requires minimal  
supervision and a high degree of personal responsibility. As the Employer says, he  
would be with a partner all day, interacting with stakeholders. He and his colleagues  
will have time without assigned duties while they wait for pick-up, away from the  
office, while representing the OPP. While at the jail, his colleagues are around him  
and inmates are uncuffed. The Employer suggests that the Grievor cannot be trusted  
to behave decently and appropriately in these relatively unregulated circumstances.  
275.  
The Employer says that the Grievor has shown such disrespect towards his  
colleagues and his superiors that he cannot be re-integrated into the workplace.  
There is also a risk of him retaliating against those who made the accusations  
against him that resulted in his termination. Some of those who complained  
indicated that they would not be comfortable working with him again.  
276.  
The Employer refers to Levi Strauss & Co. v Workers United Canada  
Council, 2020 44271 (ON LA) (Luborsky); Canadian National Railway v.  
CAW-Canada, 2010 CarswellNat 6076 (M. Picher); Ontario Lottery and Gaming  
Corporation v. Ontario Public Service Employees Union, Local 111, 2010  
1107 (ON LA) (Albertyn); Ontario (Ministry of Community Safety and  
Correctional Services) and OPSEU (Caron), Re, 2016 CarswellOnt 4228, 269  
L.A.C. (4th) 225 (Watters); Trillium Health Centre v. C.U.P.E., Local 4191, 2001  
CarswellOnt 5990, 102 L.A.C. (4th) 48 (Surdykowski); Toronto (City) v CUPE  
Local 416, 2009 CarswellOnt 4556 (Springate); Calgary (Corporation of the City)  
v Canadian Union of Public Employees, Local 37, 2018 53476 (AB GAA)  
(Swainston) (Casey); Unifor, Local 2215 and I.M.P. Group Ltd. (AB), Re, 2019  
CarswellNS 335, 303 L.A.C. (4th) 82 (Richardson); Canada Post Corp. v.  
57  
C.U.P.W., 2012 CarswellAlta 449, 216 L.A.C. (4th) 207 (Ponak); Mississauga Fire  
Fighters Assn IAFF Local 1212 and Mississauga (City) Re, 2020 CarswellOnt  
2232, 143 C.L.A.S. 24, 313 L.A.C. (4th) 13 (Rogers); Canstar Sports Group Inc.  
and A.C.T.W.U., Local 308, Re, 1994 CarswellOnt 6599, 34 C.L.A.S. 387 (Bendel);  
Hastings (County) and CUPE, Local 1133, Re, 1994 CarswellOnt 6221, 35  
C.L.A.S. 418 (Charney); Dalhousie College & University v. C.U.P.E., Local 1392,  
1996 CarswellNS 623 (Veniot); DuPont Canada Inc., Kingston Works v. Kingston  
Independent Nylon Workers Union, 1983 CarswellOnt 2409, 10 L.A.C. (3d) 424  
(Swan); BC Public School Employers' Assn. and BCTF (Zakreski), Re, 2014  
CarswellBC 3757, 121 C.L.A.S. 63 (Korbin); Nova Scotia (Public Service  
Commission) and NSGEU (MacLean), Re, 2005 CarswellNS 717, 80 C.L.A.S. 329  
(Veniot); Toronto Harbour Commissioners v. Toronto Harbour Commissioners  
Employees Union, Local 186, 1992 CarswellOnt 1257, 29 L.A.C. (4th) 428  
(McLaren); Stelco Inc. and United Steel Workers of America, 2003 52707  
(Shime); Tenaris Algoma Tubes Inc and USWA Local 9548 (D), 2014 CarswellOnt  
8009, 244 L.A.C. (4th) 63 (Trachuk); Children's Hospital of Eastern Ontario and  
OPSEU, Re, 2015 CarswellOnt 13987, 260 L.A.C. (4th) 147 (Parmar); MGEU v  
Manitoba Housing Authority, 2012 CarswellMan 415, 221 L.A.C. (4th) 186  
(Gibson); Teck Metals Ltd. and USW, Local 480 (Oliver), Re, 2015 CarswellBC  
1006, 254 L.A.C. (4th) 333 (Nichols); Thames Valley District School Board and  
OSSTF, District 11 (Thomas), Re, 2016 CarswellOnt 8459, 270 L.A.C. (4th) 312  
(Goodfellow); Toronto (City) and IAFF, Local 3888 (Bowman), Re, 2014  
CarswellOnt 19312, [2014] O.L.A.A. No. 507 (E. Newman); MVT Canadian Bus,  
Inc. v Amalgamated Transit Union, Local 1775, 2018 57405 (ON LA)  
(Price); S.G.E.U. v. Saskatchewan (Ministry of Corrections, Public Safety &  
Policing), 2009 CarswellSask 913 (Denysiuk); McKenzie v. Deputy Head  
(Correctional Service of Canada), 2010 CarswellNat 6260, 101 C.L.A.S. 89  
(Quigley); Vancouver School District No. 39 v. U.A., Local 170, 2011 CarswellBC  
1983, 212 L.A.C. (4th) 248 (Sanderson); Langley Memorial Hospital v. H.E.U.,  
58  
Local 180, 1985 CarswellBC 2921, 18 L.A.C. (3d) 123 (Thompson); Delta Chelsea  
Inn v. Hotel Employees Restaurant Employees Union, Local 75, 1998  
18116 (ON LA) (Albertyn); Hinton Pulp & Hinton Wood Products v. C.E.P., Local  
855, 2009 CarswellAlta 2317 (Sims); de Havilland Inc v. CAW-Canada, Local 112,  
1999 CarswellOnt 5421, 83 L.A.C. (4th) 157 (Raynor).  
277.  
Relying on SGEU, above, at paragraph 125, the Employer points out that  
peace officers are held to a higher standard in both their work and private lives:  
“Their conduct is subject to greater scrutiny by the public which necessarily leads  
to greater scrutiny by their employer.” See also McKenzie, above, where, at  
paragraph 80, the point is made that correctional officers are held to a higher  
standard of conduct than other public service employees, and that such officers  
must adhere to the standards of conduct expected “with a high degree of integrity  
and trust” because they are entrusted with the responsibility of the care and custody  
of offenders. In that case, where the fundamental level of trust, honesty and  
integrity was missing, the correctional officer could not be reinstated to her former  
position. On the enhanced responsibility of those with persons in their care and  
custody, the Employer refers also to Vancouver School District No.39, above.  
278.  
The Employer points out the risk of reinstating an employee who has  
behaved very badly in circumstances where the OTOs, by the nature of their work,  
do not have close supervision and must be relied upon to exercise good judgment,  
as in Langley Memorial Hospital, described at paragraph 43. The Employer submits  
that the Grievor has shown a long history of disreputable conduct that was hidden  
from the Employer and argues that he cannot be trusted to work as an OTO in  
circumstances where the OTOs necessarily work mostly on their own, outside of  
regular supervision.  
279.  
The Employer draws attention to Arbitrator Sims’ approach in Hinton Pulp  
59  
and Hinton Wood Products, above. There, an employee with 29 years of service  
and with no previous related discipline stabbed the chair of a co-worker and left the  
knife in it for her to find. The grievor in the matter admitted that what he did could  
appear to be a threat, although he said he intended it as a joke. The Employer draws  
the analogy with the Grievor’s situation, that his threat of putting the cookie back  
on the plate, although untrue, had a similarly menacing effect on his co-workers.  
280.  
As regards the Employer’s alternative submission that, if I find no just  
cause, the Grievor ought not to be reinstated, the Employer refers to de Havilland  
Inc., above. The criteria suggested there, at paragraph 5, for when an arbitrator  
might substitute compensation in lieu of reinstatement, are the following:  
1. The refusal of co-workers to work with the grievor.  
2. Lack of trust between the grievor and the employer.  
3. The inability or refusal of the grievor to accept responsibility for any  
wrongdoing.  
4. The demeanor and attitude of the grievor at the hearing.  
5. Animosity on the part of the grievor towards management or co-workers.  
6. The risk of a "poisoned" atmosphere in the workplace.  
281.  
The Employer submits that several of these factors apply in this case.  
Union submissions  
282.  
The Union describes the Grievor as an employee with 11 years’ service and  
an unblemished record being terminated for sharing racist, sexist, and homophobic  
comments over the course of his career for which he has apologized from the outset  
and repeatedly thereafter.  
60  
283.  
The Union points to several mitigating factors, some not available to the  
Employer at the time of the Grievor’s termination, and others disregarded by the  
Employer.  
284.  
The Union submits that inappropriate comments were pervasive and  
unchecked in the workplace for many years. Every witness, including almost all of  
those who testified for the Employer, said that it was a toxic workplace. The Union  
suggests that this showed an institutional failure by the OPP.  
285.  
Notably, the Union submits, the Employer did not give any weight to the  
toxic workplace that the Union says the Employer allowed to fester. The Union  
argues that the Grievor’s misconduct must be evaluated within the context of a toxic  
workplace.  
286.  
The Union argues that the OPP took an extremely passive approach to  
maintaining a respectful workplace. When specific allegations were raised, leading  
to the investigation into the Grievor’s conduct, the Union says that the OPP actively  
declined to address the systemic issues that were being raised by employees,  
preferring to have all the blame for what occurred levelled against the Grievor.  
287.  
The Union draws attention to the final paragraph of Superintendent  
Meyer’s investigation report (quoted above), in which she found that the issues  
appeared to be systemic, and had not been addressed by management for several  
years, and which “potentially contributed to an unhealthy work environment”.  
288.  
The Union’s principal argument is that the OPP permitted a culture of  
harassment and impunity to prevail in the Unit. The Union argues that the  
Employer’s obligation was to provide a workplace free from harassment. Instead,  
the leadership of the Unit – chiefly the Team Leads – allowed a culture of disrespect  
to prevail. The Union suggests that it was insufficient for Staff Sergeant Witness D  
61  
to periodically circulate the WDHP policy by email to the OTOs, rather than to  
properly manage the workplace through direct controls and guidance.  
289.  
The Union points out that many witnesses referred to there being rival  
camps in the workplace, a clear indication of division and disrespect. The Union  
refers to the evidence of one of the Employer witnesses: that there were so many  
camps, one against the other, that the experience of working in the Unit was quite  
the opposite of a coherent, well-functioning organization. In his view, Witness A  
said there was constant chaos, with no steps taken to settle differences or to  
encourage respect for each other.  
290.  
In the Union’s submission, the Grievor’s behaviour must be understood in  
this context. His behaviour was defensive, to protect himself against a generally  
hostile environment with little coherence or mutual regard.  
291.  
The Union submits that the poor treatment of the part-timers was  
effectively sanctioned by the Team Leads, and then acted on by the full-time OTOs,  
who treated the part-timers disrespectfully. The bullying and teasing of the part-  
timers were widespread and tolerated by the Team Leads. There was generally low  
morale, particularly among the part-timers who saw no clear method by which they  
could move from part-time to full-time.  
292.  
The Union submits that management perpetuated the division between the  
full-time and the part-time employees, allowing a level of bullying and  
maltreatment which was itself contrary to the principles of the WDHP.  
293.  
The Union submits that when the Employer knew of specific examples of  
a poisoned workplace culture – the Barrie courthouse toilet walls, the use of sexist  
language on the phone – it did not investigate properly, and it did not take steps to  
address the situation.  
62  
294.  
The Union draws attention to the fact that the WDHP complaints, when  
made by the employees to management early in January 2016, were only partially  
about the Grievor, but mostly about a poisoned workplace. Management took the  
complaints, which the Union submits were about a failure of leadership in the Unit  
and converted then into a complaint solely against the Grievor. Management then  
focused only on the Grievor’s misconduct, to the exclusion of any of the systemic  
workplace problems identified by the complainants and commented upon by  
Superintendent Meyer in her investigation.  
295.  
The Union points out that one of the complainants, Witness F, had  
complained of being harassed by an OTO other than the Grievor, but nothing was  
done about that.  
296.  
For mitigation of the sanction against the Grievor, the Union refers to his  
traumatic childhood and his isolation from his indigenous heritage and his parents.  
297.  
The Union relies on the following authorities:  
- for the criteria to be used to determine the fairness of a termination: Messier-  
Dowty Inc v International Association of Machinists and Aerospace Workers,  
Local Lodge 905, 2015 56078 (ON LA), (Surdykowski); Re United  
Steelworkers of America, Local 3257 and the Steel Equipment Co. Ltd (1964),  
14 LAC 356 (Reville);  
- for the mitigating impact of an institutional failure to address a problematic  
workplace culture: Algoma Steel Inc v USWA, Local 2724, 2006 53945  
(ON LA) (Randall); United Food and Commercial Workers, Local 649 v  
Federated Co-operative Association Limited, 2004 72103 (SK LA)  
(Priel); Ontario Public Service Employees Union v Ontario (Ministry of  
Natural Resources), 2005 55137 (ON GSB) (Petryshen);  
63  
- on the need to be reinstated: Royal Ottawa Health Care Group v Canadian  
Union of Public Employees, Local 942, 2013 8016 (ON LA)  
(Albertyn); Kruger inc v Unifor, Local 1646, 2014 66101 (ON LA)  
(Albertyn); OPP v OPPA (Braun and Davey), Decision dated September 21,  
2017 (Unreported) (ON LA) (Stephens).  
298.  
The Union says that the Grievor was fully forthcoming in acknowledging  
his misconduct. The Union answers the Employer’s argument that the Grievor’s  
reference to the context in which he was working was not a failure to admit his  
wrongdoing. Rather it was providing context for his misbehaviour, which was  
common throughout the workplace. He also expressed sincere remorse for his  
misconduct.  
299.  
The Union points out that, because the Grievor was immediately  
forthcoming and admitted many of the allegations against him, the Employer was  
not put to proving when they occurred. The Union suggests that many of the  
allegations occurred a long time prior to the Grievor’s suspension and termination,  
and that, in the ordinary course, if the Employer had had to prove the accusations,  
they would likely have been untimely.  
300.  
The Union characterizes the cookie photo as actually a relatively minor  
matter: the Grievor took a picture and sent it privately to two friends as a joke, after  
he had finished his day’s work. No-one bothered to check if the photo was  
unwelcomed by the two recipients. One of the two testified at the hearing and he  
made clear that he viewed it as a joke. The Union points out there was no  
investigation of how the photo was circulated, and who passed it on. The Grievor  
had intended to send it to only two friends; it was not, in the Union’s submission,  
intended for wide circulation. The person who revealed it to management had  
himself sought out a copy of the photo.  
64  
301.  
The Union acknowledges that the risk of circulation is inherent in  
electronic messaging, but says that the act of sending a photo as a joke to friends is  
far less culpable than deliberately sending obscene imagery to others to offend  
them.  
302.  
The Union submits that taking the photo and sending it to two friends  
cannot amount to harassment.  
303.  
The Union argues that the Grievor was denied the benefit of progressive  
discipline afforded by the collective agreement and its sunset clause. It says many  
of the things he said occurred at some indefinite date during his 11-year  
employment; yet he was disciplined as if it had occurred recently. In many  
instances, the date or time when the offensive statement was made was clouded in  
memory and the witness could not say how long before the statement had been  
made. The Union submits that the Grievor cannot be disciplined for behaviour long  
in the past for which a sunset would likely have applied had it been addressed at  
the time.  
304.  
Referring to the relevant factors in Steel Equipment, above, at p.357, the  
Union makes the following submissions:  
1. The previous record of the Grievor.  
He had no prior discipline.  
2. The long service of the Grievor.  
He had reasonably long service.  
3. Whether or not the offence was an isolated incident in the employment  
history of the Grievor.  
The Grievor was guilty of a pattern of unsatisfactory conduct in a  
65  
context, the Union submits, in which there was no effective supervision  
of the OTOs. They looked after themselves, and the Unit was not run  
professionally. More importantly though, the Union points out that the  
Grievor was never disciplined at any time, irrespective of any sunset  
provision, in his whole career with the Employer. He had a completely  
clean record. Superintendent Davies, who took the decision to terminate  
the Grievor, made clear in his evidence that he did not give any weight  
to the Grievor’s clear disciplinary record.  
4. Provocation.  
This is not a feature of this matter.  
5. Whether the offence was committed on the spur of the moment as a  
result of a momentary aberration, due to strong emotional impulses, or  
whether the offence was premeditated.  
Other than taking the cookie photo, the complaints of the Grievor’s  
conduct all related to things he said. His comments were made on the  
spur of the moment, though his disparaging nicknames for people were  
premeditated.  
6. Whether the penalty imposed has created a special economic hardship  
for the grievor in the light of his particular circumstances.  
The Union submits that is the case.  
7. Evidence that the company rules of conduct, either unwritten or  
posted, have not been uniformly enforced, thus constituting a form of  
discrimination.  
The Union relies on this ground, arguing that only the Grievor was  
singled out for punishment when abusive language, nasty nicknames,  
and unacceptable descriptions of people were commonly used by the  
Unit’s staff, including the Grievor.  
8. Circumstances negativing intent, e.g., likelihood that the grievor  
misunderstood the nature or intent of an order given to [them], and as  
a result disobeyed it.  
The Union does not rely upon this consideration.  
66  
9. The seriousness of the offence in terms of company policy and  
company obligations.  
The Union recognises that the Grievor’s admitted and established  
misconduct was serious.  
10. Any other circumstances which the board should properly take into  
consideration, e.g., (a) failure of the grievor to apologize and settle the  
matter after being given an opportunity to do so; (b) …; (c) failure of  
the company to permit the grievor to explain or deny the alleged  
offence.  
The Union relies particularly on the poisoned work environment in  
which the Grievor worked as the context in which is misconduct must  
be judged. Further, the Union relies on the Grievor’s consistent  
apologies and what it claims is his remorse and his suitability for being  
reinstated.  
305.  
The Union refers to Algoma Steel, above. It does so with respect to  
Arbitrator Randall’s comment in that case that there was, at p.12-13, “an  
institutional failure to address, contain, modify, prohibit and/or rationalize the  
practice”. By analogy, the Union submits that the Employer did not take sufficient  
steps, given the various indications of a toxic workplace culture, to act stridently to  
change it. The issuing of occasional email reminders to be more respectful and to  
read the WDHP, and the annual refresher training the OTOs received, were  
insufficient to address the situation, the Union says.  
306.  
Consequently, the Union argues that the Grievor’s misconduct is mitigated  
by the level of toxic behaviour that was common in the workplace, of which he was  
just one part. The Union submits this misbehaviour was condoned by the Team  
Leads of the Unit.  
67  
307.  
The Union submits that the appropriate discipline that the Grievor ought to  
have been given considering all the relevant circumstances, including the toxic  
workplace culture in which he was working, was a 20-day suspension without pay.  
The Union requests the Grievor’s reinstatement, with full compensation for his loss  
of earnings and benefits from the date of his termination.  
308.  
In the alternative, based on the decision in Ontario Public Service  
Employees Union (Lunario) v Ontario (Community Safety and Correctional  
Services), 2015 60425 (ON GSB) (Luborsky), the Union suggests that the  
Grievor be reinstated with retroactive compensation back to the first date of hearing  
– when the parties joined issue, when it was clear what that the Grievor was contrite  
for what had occurred, and both parties had a better understanding of the underlying  
workplace culture than they did at the time of the Grievor’s termination.  
309.  
The Union refers to the award in OPP v OPPA (Braun and Davey),  
Decision dated September 21, 2017 (Unreported) (ON LA) (Stephens). In that case,  
two OTOs were disciplined for failing to stop the repeated assault of an inmate in  
the vehicle they were operating. Their failures were: not providing safety, security,  
and control of the offenders; failing to record properly what occurred; failing to  
maintain continuous observation of what was happening to the inmates in their  
vehicle; and failing to share the relevant information with the various authorities.  
Arbitrator Stephens found that the transgressions deserved serious discipline, but  
not termination. He substituted a one-month suspension for the OTO responsible  
for observing the offenders during the journey, and a one-week suspension for the  
driver. The Union submits I should similarly reduce the penalty of termination in  
this case.  
310.  
The Union argues strenuously against a remedy in which the Grievor does  
not return to work. The Union says that the value of being at work as a Special  
68  
Constable is much more important to the Grievor’s psychological well-being, to his  
sense of his personal worth, than any financial compensation as an alternative to  
his returning to work. The Union suggests there is no evidence of any potential  
negative impact of the Grievor returning to work. Also, that his reinstatement could  
be to any detachment of the Transportation Unit services, not necessarily to where  
he worked before at the Midlands Unit.  
Decision  
Management awareness of the workplace culture and condonation  
311.  
The first witness to bring a complaint against the Grievor, leading to the  
investigation, made clear in his initial statement that he was being harassed by many  
members of the Unit, not specifically the Grievor. His complaint was generalized  
against the toxic environment at work, across the Unit.  
312.  
When management initiated the complaints against the Grievor, leading to  
the investigation, all the allegations against various members of the Unit were  
concentrated on the Grievor, as the focus of attention. So, the general complaints –  
such as those made by Witness A – were treated as specific complaints against the  
Grievor. This led to findings against the Grievor only, and no investigation of any  
other OTO mentioned generally in the original complaint. Other than the reference  
to the workplace in the final paragraph of Superintendent Meyer’s investigation  
report, there was no mention of the complaints raised generally against the staff of  
the Unit in the original complaints.  
313.  
The context of the workplace culture, which continued unchecked over a  
long period of time, does partially explain the Grievor’s behaviour. However, that  
69  
context is no excuse for what he said and did. This is for two reasons: firstly, the  
Grievor knew that what he was doing was wrong; and secondly, the milieu in which  
we live and work has changed. This is explained in Teck Metals Ltd., above, at  
paragraph 72. Arbitrator Nichols said this:  
… [T]he characterization of and significance given to the work environment  
must be addressed. This is an industrial workplace and it cannot be compared  
to an office environment, for example. It can be loud, physically taxing, and  
dirty. The interactions between employees (and, possibly, with certain  
supervisors) have historically been "rough and tumble" where profanity,  
jokes, name-calling, etc. have occurred. Yet, there is also no question that  
what is considered to be appropriate workplace behaviour has changed over  
time, both from a societal and legal perspective. Certain conduct is no longer  
acceptable, no matter what has historically taken place (or may still be  
occurring in some instances). The importance of deterring inappropriate  
behaviour and maintaining a respectful and safe workplace is firmly  
established. There certainly are benefits to all if the workplace culture is  
respectful, diverse and mature. But, regardless of whether those benefits are  
embraced by everyone in the workplace, it is critical to recognize that the  
requirement to provide a non-toxic workplace has been clearly reflected in  
the changes in the legal landscape — not only in the evolution of arbitral  
jurisprudence, but even more significantly in the applicable statutory  
framework. Human rights and workplace safety legislation have established  
rights, protections and obligations that, if violated, could lead to legal  
liabilities for workplace participants. Thus, while arguments that the 'shop  
floor' environment should be a consideration may still have some  
application, there are obvious limits. The expectations that employees must  
not engage in behaviours that amount to bullying, racism, sex  
discrimination, etc. are, at this point in our society, basic and fundamental.  
Accordingly, the weight given to a historically 'rough' or disrespectful  
workplace culture diminishes significantly, if not completely, in the face of  
these basic expectations.  
314.  
The Team Leads knew of the levels of gossip, disrespectful joking, name  
calling, nicknaming. Some of them were among those engaged in abusive  
70  
behaviour towards some OTOs, and in witnessing hurtful jokes that caused  
humiliation to some of the OTOs. However, I cannot find that Staff Sergeant  
Witness D knew of the offensive behaviour that has been described above. She  
knew of some inappropriate behaviour that fell short of what is expected in a  
respectful workplace. That is why she issued emails reminding staff to comply with  
the WDHP. But she had no knowledge of the scale of the offensive behaviour that  
existed. When she held the separate meeting with the part-time OTOs to hear their  
grievances she learned of their concerns at being treated disrespectfully. But, even  
then, she did not know, in detail, the offensive behaviour of the full-time OTOs,  
including that of the Grievor.  
315.  
For condonation to apply, management must have had full knowledge of  
the extent of a practice, and then give either express or implied consent for the  
continuation of the practice. To condone misconduct, management must be “in  
possession of all the facts” (Nova Scotia, above, paragraph 51).  
316.  
Here, as in Dalhousie College, above, and other cases referred to by the  
Employer, complete knowledge was lacking.  
317.  
It appears that there was a level of approval by the Team Leads for the  
bullying and derisive behaviour, but – as the Employer points out – the Team Leads  
are fellow bargaining unit members and their tacit consent or involvement does not  
mean that management, in the person of Staff Sergeant Witness D, was aware of  
the extent of what was going on. From the evidence, it is likely that Staff Sergeant  
Witness D was not kept apprised of this and was not aware of what has been  
described above.  
318.  
Given this context, I find that management, in the person of Staff Sergeant  
Witness D, did not condone the Grievor’s behaviour, nor the bad behaviour by the  
71  
other OTOs, upon which the Union relies for its condonation argument. There was  
therefore no condonation by management of the Grievor’s egregious behaviour.  
319.  
However, I do find that the culture permitted by the Team Leads, and to  
some extent engaged in by them, had the effect over a period of several years of  
emboldening the Grievor into thinking that, despite the clear rules against abusive  
and inappropriate comments, he would not suffer consequences if he continued  
speaking in the disrespectful manner he did.  
320.  
Nonetheless, the Grievor knew what he was doing was wrong.  
321.  
A toxic environment where bad behaviour is tolerated, as here, does not  
justify wrongdoing; though it explains why an individual might feel empowered to  
act badly and to do offensive things, as the Grievor did. It does not justify his  
misconduct, but the weight of evidence shows that he was able, with his colleagues,  
to treat others disrespectfully for a long period of time. It became their habit and  
their way of communicating with each other. That does not excuse his misconduct,  
but it does mitigate it.  
Misconduct  
322.  
I find that in several ways, as described above, the Grievor breached the  
WDHP policy. He engaged in harassment, disrespectful behaviour, and  
contributing to a poisoned work environment. In addition, the Grievor breached the  
Conditions of Appointment for a Special Constable – Code of Conduct, the OPP  
Promise42, and Section 6.10 of Professionalism in the OPP43.  
42 Exhibit 32.  
43 Exhibit 31.  
72  
323.  
As the Employer points out, it disciplined the Grievor, in part, because his  
conduct violated the guarantee in section 5(2) of the Human Rights Code, that  
employees are to be kept free from harassment on account of who they are, and  
because the Grievor’s behaviour contributed to a poisoned work environment.  
324.  
Further, as the Employer points out, in disciplining the Grievor, the  
Employer acted in accordance with its obligations under section 1(1)(a) the  
Occupational Health and Safety Act, to protect employees from those “engaging in  
a course of vexatious comment or conduct … in a workplace that is known or ought  
reasonably to be known to be unwelcome”. There are also provisions of the  
collective agreement between the parties, Articles 2.01, 2.02 and 2.03, that affirm  
the need for a respectful workplace free from harassment, which the Employer says  
it has fulfilled by disciplining the Grievor.  
325.  
The Employer makes the point that the distribution of the photo was a form  
of harassment because it conjured the extremely offensive thought that a co-worker  
might have eaten the cookie that the Grievor’s genitals had been on.  
326.  
I accept all the submissions that the language used by the Grievor is not  
tolerable in a workplace, nor was his behaviour in taking and sharing the photo, and  
claiming he put the cookie back on the plate. I accept also that the Grievor knew  
this behaviour was not acceptable.  
327.  
With respect to the comments the Grievor made that were established in  
evidence, he knew or ought to have known that the comments were completely  
unacceptable. Certain of his comments were profane, abusive, and insulting related  
to a person’s race, ancestry, colour, ethnic origin, citizenship, creed, sex, sexual  
orientation, or handicap.  
73  
328.  
Despite the Grievor’s evident pride in his position as an OPP Special  
Constable, he abused his position by the way he communicated with his colleagues  
and, on occasion, with inmates.  
329.  
The Grievor showed a lack of professionalism in that he did not show the  
courtesy, self-control, and humility that is expected of a police officer. He did not  
treat others in the manner he would want them to treat him, nor did he enable others  
to maintain their dignity. He was, during the exchanges complained of by the  
Employer, not a good role model, as he ought to have been. Therefore, he did not  
promote a positive professional image.  
330.  
The Union and the Grievor recognise that the use of racial slurs is not  
acceptable in the workplace or anywhere else. This was explained in Levi Strauss  
& Co., above, at paragraph 188:  
[188] In my view, given the evolution of thinking on the matter discussed  
below, racially demeaning language and racial slurs can never be excused as  
mere “shoptalk” or as having a lesser import when not directed at anyone in  
particular. Rather, if such words are capable of being overheard in the  
workplace, at a minimum they contribute to a poisoned work environment,  
which if not appropriately redressed leads to the impression that minority  
racial groups are somehow less entitled to equality.  
…
[207] Thus in the prevailing environment, given the progress towards the  
societal goal of eliminating all forms of harassment in the workplace,  
consistent but not limited by the recent amendments of the OHSA, it is in  
my opinion now appropriate to regard any use of demeaning racial or ethnic  
slurs by one employee to another as very serious misconduct falling within  
the category of workplace offences that prima facie justifies terminating the  
employment relationship, amongst the appropriate disciplinary measures as  
part of the “corrective action” (in the words of sec. 32.0.7 (b) of the OHSA)  
that the employer is obliged to consider in response to workplace  
harassment, because of the hurtful nature of such conduct that undermines  
the smooth running of a diversified workforce.  
74  
[208] The fact that certain offences are prima facie deserving of dismissal  
or at least termination is included amongst the punitive sanctions presumed  
reasonable even for a first offence by a long-service employee is not unusual  
in the labour relations context. Offences such as theft, sexual assault or  
assaulting a supervisor, deliberate sabotage and conflicts of interest, among  
others, are typically recognized in the arbitral jurisprudence as justifying  
termination of employment unless circumstances exist properly militating  
against that result. This reflects an appreciation that certain workplace  
offences so seriously undermine the essential trust in the employee to fulfil  
the expectations of the employment contract and/or are so disruptive to the  
smooth operation of the enterprise and to basic notions of decency, that it is  
impossible to continue with the relationship in the face of such fundamental  
breach. …  
331.  
In City of Toronto, above, Arbitrator Springate found that the Grievor’s use  
of racist language was “so numerous and so improper as not to require the use of  
progressive discipline by the City” (para 165). The union, in that case, relied on a  
workplace culture where inappropriate language was used. The arbitrator found that  
the grievor’s conduct in that case “differed in nature and degree from that of the  
other employees” (paragraph 158). The grievor’s termination was upheld, despite  
long service and no prior discipline, “due to the manner in which the grievor treated  
fellow employees over an extended period of time”. The Employer urges the same  
result here.  
332.  
In that case, the employee was requested by the person to whom the  
comments were directed to cease making racial insults, but he continued to do so.  
333.  
334.  
Similar circumstances applied in Calgary (City), above.  
I find that the erroneous conclusion in the Investigation Report – that the  
investigator was unable to determine whether the cookie was returned to the platter  
75  
– had a prejudicial effect on those in management considering the evidence against  
the Grievor. Had Superintendent Meyer stated in her report what she admitted in  
evidence at the hearing, that the Grievor likely did not put the cookie back on the  
platter, that would have created a different impression of the Grievor’s misconduct.  
While recognizing that the Grievor saying he put the cookie back on the plate was  
reprehensible, and deserving on its own of serious discipline, a more accurate  
reporting in the Investigation of what actually occurred would have removed the  
thought of someone actually eating the defiled cookie.  
335.  
Nonetheless, the Grievor’s misconduct was significant. Of the incidents  
complained of by the Employer, virtually all are serious. They involve the use of  
grossly inappropriate language because it necessarily has the effect of creating a  
poisoned work environment, by singling out individuals based on their ethnicity,  
their religion, their sexual orientation, their disabilities (or those of their loved  
ones). The language he used was horrible. His taking the cookie picture at work,  
sharing it with others in the workplace and suggesting that it was put back on the  
platter were offensive and reckless.  
Just cause and assessment of penalty  
336.  
The Grievor’s actions show a serious breach of the Employer’s Respectful  
Workplace Policy.  
337.  
Consequently, and having regard to the evidence and my analysis above,  
the Employer had just cause for severe discipline. Its decision to terminate the  
Grievor fell within the range of reasonable responses to his misconduct.  
338.  
In assessing the penalty of termination, I must consider section 48(17) of  
the Labour Relations Act, 1995:  
76  
Substitution of penalty  
(17) Where an arbitrator or arbitration board determines that an  
employee has been discharged or otherwise disciplined by an  
employer for cause and the collective agreement does not contain a  
specific penalty for the infraction that is the subject-matter of the  
arbitration, the arbitrator or arbitration board may substitute such  
other penalty for the discharge or discipline as to the arbitrator or  
arbitration board seems just and reasonable in all the circumstances.  
339.  
There is no specific penalty for the Grievor’s misconduct. What penalty  
“seems just and reasonable in all the circumstances”?  
340.  
“All the circumstances” include the following:  
the seriousness of the misconduct,  
the persistence of the misconduct,  
the willingness of the Grievor to admit his wrongdoing,  
the Grievor’s contrition,  
the context at work – the workplace culture – in which the Grievor’s  
conduct is to be understood,  
the absence of prior discipline,  
the period over which the misconduct occurred,  
and – based on the above considerations – the reasonable likelihood,  
or otherwise, of the Grievor resuming work for the Employer and  
acting appropriately for the foreseeable future.  
The Grievor’s service and clean record  
77  
341.  
The Grievor had 11 years of service, which is a moderately long period. He  
was not disciplined before his termination. These factors weigh in his favour.  
342. Staff Sergeant Witness D thought that the Grievor was quite a successful  
employee, making useful contributions to the Unit. She said that her comments in  
his recent performance appraisal were all accurate (that he worked cooperatively  
and collaboratively, that he demonstrated professional, respectful, and positive  
working relationships, and that there were no concerns with the Grievor’s  
communication or his ability to interact professionally with his peers) until the  
complaints were filed, following the surfacing of the cookie photograph.  
Insight and remorse  
343.  
Does the Grievor show the necessary insight into how negatively he  
impacted his fellow employees? By “necessary insight” I mean, does the Grievor’s  
contrition indicate such a clear understanding of his wrongdoing that the Grievor  
will most likely not repeat his wrongful, offensive, inappropriate and anti-social  
behaviour if he were reinstated?  
344.  
As the Union argues, the Grievor showed genuine insight into his offensive  
and disgusting behaviour. He expressed remorse at the impact on his colleagues,  
and a sincere desire to contribute to a better workplace, should he be reinstated.  
345.  
As the Union points out, at each stage of the investigation and the hearing  
the Grievor has consistently expressed thorough remorse and honest contrition for  
his misbehaviour.  
346.  
On September 1, 2016, at the Grievor’s pre-disciplinary meeting, the  
Grievor tried to express his remorse for his misconduct, and to acknowledge that  
78  
he had behaved badly. He apologized for his actions. He understood the harm he  
had caused to his colleagues, to the OPP, and to his family. The Grievor admitted  
what he had said and done was inappropriate, and that it had had a bad effect on his  
co-workers, his friends, and his family. He acknowledged that he had embarrassed  
himself, the OPP, his family, and his co-workers. He committed to working towards  
a non-discriminatory workplace. He explained that the OPP was very much part of  
his life, and he committed to upholding the principles of the WDHP and that he  
would help to build better relationships.  
347.  
Inspector Demeules accepted that the Grievor’s apology was genuine and  
heart-felt. Superintendent Davies did not. I agree with Inspector Demeules. I find  
that the Grievor has understood his misconduct, he has reflected seriously on what  
he did, he deeply regrets it, and I believe he has the will to prove that he capable of  
complying professionally with workplace expectations.  
348.  
The Grievor knows what is expected of him, how and to what extent he  
failed to meet those standards, and he has committed that he will abide by those  
standards if reinstated.  
349.  
Some of the witnesses were concerned by the possibility of the Grievor  
being reinstated at work. They felt that most people on the Unit were relieved that  
he was gone, and that him coming back would cause a huge problem for the Unit.44  
350.  
The Union answers this by suggesting that the Grievor could be returned  
to a different Unit. There were also other witnesses from the Unit, who felt the  
Grievor could return to work without any problems.  
351.  
I find that the Grievor understands how inappropriately and offensively he  
44 See, for example, Exhibit 01.14, p1.  
79  
behaved and what harm he did by his cruel comments towards and about his  
colleagues. Taking all the relevant factors into consideration, including the  
Grievor’s sincere contrition, I find that the Grievor has the necessary rehabilitative  
potential, and that he can comply with the requirements of a respectful workplace.  
352.  
Accordingly, I am prepared to exercise my discretion to reinstate the  
Grievor and to substitute a lesser penalty than discharge.  
Summary of conclusions  
353.  
The Grievor is reinstated without compensation, but without loss of  
seniority. The Grievor need not be placed in his former Unit.  
354.  
I exercise my authority to substitute the penalty of discharge with a three-  
month suspension.  
355.  
356.  
The Union’s grievance is therefore upheld in part.  
I remain seized of the implementation of this award and of any dispute or  
disagreement arising from it.  
357.  
Finally, I thank all four counsel for conducting this hearing in a most  
thorough and skillful manner over a long period.  
DATED at TORONTO on June 7, 2022.  
“Christopher Albertyn”  
_____________________  
80  
Christopher J. Albertyn  
Arbitrator  


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