Date:
20130917
Docket:
T-1850-12
Citation:
2013 FC 956
Ottawa, Ontario,
September 17, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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MICHELLE BRIDGEN
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Applicant
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and
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DEPUTY HEAD
(CORRECTIONAL SERVICE OF CANADA)
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Adjudicator John
Steeves of the Public Service Labour Relations Board [the Adjudicator],
pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7. The
Adjudicator allowed the Applicant’s grievance in part by reducing a
disciplinary suspension imposed upon her. The Applicant argues that no
discipline is warranted.
I. Background
[2]
In
2007, the Applicant had been an employee of the Correctional Service of Canada
[the Respondent] for 23 years, and was working out of the Grand Valley
Institution [GVI]. GVI is a women’s prison which incarcerates approximately 80
inmates at all security levels.
[3]
Through
August 2007, the Applicant held the position of Team Leader at GVI. This
position involved the supervision of correctional officers. On September 4,
2007, the Applicant took the newly created position of Manager of Intensive
Intervention Strategies [MIIS]. In that position she reviewed policies and
procedures implemented by the Respondent at the national and regional level and
had no supervisory authority over correctional officers.
[4]
On
August 31, 2007, Ashley Smith, then 19 years of age, transferred to GVI for a
final time. By that point she had spent several years incarcerated in various
facilities, including a psychiatric hospital and a previous stay in GVI
starting in June, 2007. Her behaviour at GVI upon returning was very
disruptive. Among other things, she physically assaulted staff and frequently
tied ligatures around her neck to cut off her oxygen supply. This required
staff intervention. Until October 2007, Ms. Smith stated that she tied the
ligatures in order to obtain comfort.
[5]
From
October 9 to October 11, 2007, 23 members of GVI staff received training from
Ken Allen on “Use of Force” with inmates after concern was expressed by
Regional Headquarters regarding too many of these incidents with Ms. Smith. Mr.
Allen advised those in attendance that they should not enter her cell unless
they saw that Ms. Smith was not breathing. This instruction was reiterated by
GVI’s Acting Warden, Cindy Berry, in a later memorandum.
[6]
Following
October 12, 2007, Ms. Smith told staff that she was going to kill herself
during a specific manager’s shift. On October 19, 2007, during the shift of
that manager, Ms. Smith tied a ligature around her neck. Staff did not
intervene for 24 minutes, at which point Ms. Smith had died from self-inflicted
strangulation. The Applicant was not involved with Ms. Smith on the day she
died, nor at any time after October 11, 2007.
[7]
Following
Ms. Smith’s death, the Respondent initiated an investigation of various front
line and management employees working at GVI by way of a Convening Order dated
January 7, 2008 [the Investigation]. The Applicant and many other employees
were interviewed by an investigatory board and a final report was released on
January 25, 2008. Of relevance to this application, the Investigation report
came to the following conclusions:
That the…TL/MIIS Secure Unit (Michelle
Bridgen)...provided direction contrary to the SMM by telling staff they had no
reason to enter the cell, to remove Smith’s ligatures, as the A/Warden and DW
did not concur that she was in distress when there were clear signs she was.
This action contravenes CD 56;
That explicit direction was provided to CM’s and
PW’s regarding not entering Smith’s cell as long as she was breathing by…MIIS
Bridgen…(and that) this direction…and follow up actions taken by…MIIS
Bridgen…contributed to staff and CM’s belief they were not to go into Smith’s
cell as long as she was breathing.
[8]
The
primary basis for this conclusion was interviews with three employees who
worked with the Applicant at GVI and dealt with Ms. Smith prior to her death in
2007: Nancy Dickson, Heather Magee, and Angie Fancey. Ms. Dickson alleged that
there was an instance when she and others were about to enter Ms. Smith’s cell
to remove a ligature from her neck because her eyes were protruding and she was
turning blue. However, as they were entering the cell, the Applicant stopped
them, saying that Ms. Smith was still breathing. Ms. Magee testified to a similar
effect, recalling an incident where the Applicant directed staff not to enter
the cell because Ms. Smith was still breathing. Finally, Ms. Fancey spoke to an
occasion where she and the Applicant listened to Ms. Smith’s breathing, and
even after two minutes had elapsed between breaths, the Applicant maintained
that intervention was not warranted. These events all occurred prior to October
2007, and none of these witnesses were present or involved with Ms. Smith when
she died on October19.
[9]
The
Applicant rebutted these claims in a memorandum to the Respondent on March 12,
2008. With regard to Ms. Dickson’s testimony, she labels it as confusing and states
that she cannot pinpoint the specific incident referred to. However, she says
that generally she would tell staff to not go into Ms. Smith’s cell when it was
unsafe or when when Ms. Smith was not in distress. With regard to Ms. Fancey,
she claims that after using all alternative measures to ascertain whether Ms.
Smith was in distress, they entered her cell. With regard to Ms. Magee, she
stated that she told staff not to go into Ms. Smith’s cell but to develop a
plan of action to ensure everybody’s safety.
[10]
The
Respondent reviewed the Investigation report and the Applicant’s March 12
memorandum. On May 5, 2008, the Respondent informed the Applicant that she was
being suspended for 20 days without pay. The reasons for the suspension were
(in part):
I am of the view that in your role as Manager
Intensive intervention Strategies (MIIS), you provided Correctional Managers
and Primary Workers with explicit direction not to enter the cell of an inmate
on high suicide watch, as long as she was breathing/talking and that this
contributed to their confusion also to when interventions were required with
inmate Smith.
You erred in the interpretation of what constituted
a medical emergency or medical distress. The direction you provided to staff not
to intervene and to withdraw/reassess contravened CD (Commissioner’s Directive)
800, CD 843 and CD 567. I believe that the misdirection you provided to
employees and managers contributed to the slow response to the inmate’s
self-injurious behaviour on October 15th and 19th, 2007.
[11]
The
Applicant grieved this disciplinary decision before the Adjudicator over six
days in 2011 and 2012. On September 7, 2012, the Adjudicator rendered his
decision.
[12]
The
Adjudicator describes at length the disciplinary process to date, including the
background facts which led up to Ms. Smith’s death, the convening of the
Investigation, its processes, the evidence presented, its conclusions, the
Applicant’s March 12, 2008 memorandum, and the Respondent’s discipline
decision.
[13]
The
Adjudicator’s analysis focuses chiefly on competing testimony of the Applicant
and Ms. Dickson, Ms. Magee, and Ms. Fancey. The Adjudicator found that the
evidence of these witnesses was reliable and preferable where contradicted by
the Applicant. However, the Adjudicator also found that Ms. Bridgen’s actions
were not directly responsible for or related to Ms. Smith’s death (para 180 of
the Adjudicator’s decision) and that Ms. Bridgen was misled by management
superiors about how to manage Ms. Smith and her threats of suicide (para 181 of
the Adjudicator’s decision). Further, Ms. Bridgen was following instructions as
part of a broader management initiative in instructing primary care workers for
Ms. Smith.
[14]
The
Adjudicator refused to draw an adverse inference based on the lack of video
evidence of the incidents described by the three witnesses (Vieczorek v
Piersma, [1987] 58 OJ No 124 (Ont CA) at para 17). He notes that there is
no requirement that such an inference be made, and since this is not a case involving
dishonesty or a failure to raise any material evidence, such an
inference is not warranted.
[15]
The
Adjudicator also determined that despite an error in the Applicant’s discipline
letter, which stated that she was in the MIIS position when she gave misdirection
to staff members, the grounds of discipline were sufficiently clear to the
Applicant. The Adjudicator finds that the Investigation clearly gave the
Applicant notice of the discipline case against her, such that the principle in
Aerocide Dispensers Ltd v United Steelworkers of America (Walker Grievance),
[1965] 15 LAC 416 at para 24, which
requires that a cause of discipline remain consistent throughout the discipline
process, was not offended.
[16]
On
the whole, he found that the witnesses’ testimony demonstrated these instances
rose to the level of “Medical Emergency” and the Applicant’s misdirection
contributed to confusion among the staff. However, the Adjudicator found that
since the Applicant only contributed to the misdirection as a result of largely
following the position of management, her discipline should be reduced. With
limited information about the other individuals who had been disciplined in
relation to the death of Ms. Smith, he was unable to form a meaningful
comparative basis for her discipline. Ultimately, he reduced her suspension to
ten days.
II. Issue
[17]
The
issue raised in the present application is as follows:
A. Was the
Adjudicator’s decision unreasonable?
III. Standard
of review
[18]
The
parties agree that the standard of review applicable to the Adjudicator’s
decision is reasonableness (Bernard v Canada (Attorney General), 2012
FCA 92 at para 39; Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
IV. Analysis
[19]
The
Applicant argues that there are four factual grounds that, when taken together,
make the decision unreasonable:
i)
The
Applicant’s conduct was authorized by the Respondent;
ii) The
Adjudicator failed to consider the Respondent’s work place policies concerning
staff safety and did not give proper consideration to what constitutes a
“medical emergency”;
iii) The
Adjudicator had no evidentiary support to conclude that the Applicant was aware
that Ms. Smith was on suicide watch before she moved into the MIIS position;
and
iv) The
Adjudicator failed to draw on adverse inference against the Adjudicator in
failing to call GVI employees who were present on the day of Ms. Smith’s death
to testify.
[20]
The
Applicant also alleges two grounds of legal error:
i)
The
Adjudicator erred in that the discipline letter sent to the Applicant
erroneously states that she was in the MIIS position when she gave instructions
to staff members which led to confusion and delay in responding to incidents
involving Ms. Smith on October 15 and 19, 2007. However, during the Applicant’s
initial discipline hearing the Minister’s position changed: only then did the
Adjudicator rely on alleged confusion caused by Ms. Bridgen through
instructions given prior to September, 2007 to three witnesses who were not
involved with Ms. Smith on October 15 and 19, in her role as Team Leader; and
ii) The
Applicant also argues that the penalties received by other individuals involved
in Ms. Smith’s death are inconsistent with that received by the Applicant,
contrary to Re Canron Ltd and International Molders & Allied Workers, Local
16, [1975] OLAA No 147.
A. The Applicant’s conduct was
authorized by the Respondent
[21]
The
Applicant did not raise the argument that the Applicant’s conduct was
authorized by the Respondent with the Adjudicator, and cannot raise it for the
first time on judicial review. While I agree that the Applicant was just
following orders, she was, as were others, found to have contravened the
Respondent’s policies. This fact was acknowledged by the Adjudicator and was
reflected in his lessoning of her punishment. This outcome is reasonable.
B. The Adjudicator failed to
consider relevant evidence
[22]
This
argument is effectively a guise to asking this court to re-weigh the evidence
evaluated by the Adjudicator. The Adjudicator accepted the testimony of the
witnesses, and Ms. Dickson in particular, who stated that pursuant to
instructions of Ms. Bridgen and other management that GVI, including Acting
Warden Cindy Berry, employees were not to intervene because Ms. Smith was still
breathing. He did not accept a health and safety rationale. As a result, his
findings gave due regard to relevant evidence and his conclusion was
reasonable.
C. The Adjudicator made
findings without evidentiary support
[23]
The
Applicant emphasizes that Ms. Smith only declared her intentions with regard to
suicide after the Applicant had left her Team Leader position. However, it
would be inappropriate for this to be viewed as the determining factor on the
facts of this case. There is a sufficient factual basis to reasonably establish
that the Applicant knew, before leaving her Team Leader position, that Ms.
Smith was a suicide risk to some degree.
D. The Adjudicator failed to
draw an adverse inference
[24]
The
Adjudicator performed a correct analysis in his decision. The Adjudicator was
not required to draw an adverse inference based on the facts of this case.
[25]
Moreover,
as Vieczorek v Piersma, [1987] 58 OJ No 124 (Ont CA) states, the
evidence in question was not particularly and uniquely available to the
Respondent. The Applicant could have requested that the Adjudicator exercise
his power under section 226(1)(e) of the Public Service Labour Relations Act,
SC 2003, c 22 to compel the production of documents. The Applicant did not do
so. It was reasonable that the Adjudicator did not draw an adverse inference.
E. The Adjudicator changed the
grounds or basis for the discipline
[26]
This
ground must also fail. While there was an error in the discipline letter, the
extensive communication during the Investigation and the Applicant’s
submissions, as discussed at paras 136-154 of the Adjudicator’s decision,
clearly establish that she had appropriate notice of the case against her.
Moreover, the misdirection of the Applicant to employees and managers was held
to have contributed to the slow response to Ms. Smith’s injurious
behaviour, not to have caused it. This is a reasonable finding.
F. The penalty was
inconsistent with penalties to others
[27]
While
it would be inequitable to punish only one of a number of responsible
management, here, other staff were disciplined to various degrees. In addition,
considering the limited evidence provided on the other staff members
disciplined, it would be unreasonable to attempt to tailor the Applicant’s
punishment to a de-contextualized list of other individuals who received
punishment for unspecified transgressions.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
Application is dismissed; and
2.
Given
the circumstances of this case, including the fact that the Applicant’s conduct
was consistent with the position of management, no costs are awarded.
"Michael D.
Manson"
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