EDMONTON -- An Alberta arbitrator has overturned a city-imposed suspension of an Edmonton bus driver who was disciplined after fending off an abusive passenger who had spat on him.

The ruling outlines how the incident happened on April 20, 2019, when an intoxicated female boarded a bus along the number one route in west Edmonton and told the driver she was unable to pay.

She was allowed on board on the premise of paying double the next time, but quickly became increasingly agitated, and eventually spat her gum in the driver’s face, prompting him to restrain her from his seat and push her towards the door.

Following a review of bus surveillance video, the city imposed a three-day suspension on the driver three weeks later, arguing he went too far in defending himself.

But in a ruling published Dec. 22, 2020, Sole Arbitrator James Casey found the driver’s use of force to be reasonable and the city’s discipline unjustified.

“While it turned out badly, it could have been a lot worse and the grievor was not the author of this unfortunate event,” Casey wrote. “Let her go and there was a reasonable risk that he would be spat on again.”

“No discipline was justified in all the circumstances.”

Casey ordered the three-day suspension to be cleared from the driver’s work file and the city to compensate him for his lost earnings due to the discipline. 

“You as an operator have a right to react in a human way,” said Steve Bradshaw, president of ATU Local 569. 

“In the event where an assault is still ongoing, or maybe ongoing, the operator or the griever is not expected to have to press the pause button.” 

Through his union, the driver declined a request for comment from CTV News. 

In a statement, the city declined further comment, noting arbitration is the last step in its dispute resolution process with the union.

“The safety of all operators and public patrons of Edmonton Transit Service is of paramount importance and our first consideration in our operational decision-making.”

FALSE 311 REPORT

According to the ruling, the driver thought he was going to be spat on again after being initially attacked.

It describes how he used his right arm to hold the passenger while using his left hand to work the radio microphone to call for help.

“She then spat in my face with the piece of gum in her mouth bouncing off my face,” reads the driver’s written statement as contained in the ruling. 

“She started to make a throat-clearing sound for a second spit and I defended myself by restraining her with her back to me.”

The struggle lasted less than 30 seconds until she broke free, left the bus and sat down on a nearby bench, according to the ruling.

Edmonton Police, Edmonton Transit Security and a transit inspector all attended the scene.

The inspector’s notes indicate the passenger was ticketed and known to police for spitting and being drunk and disorderly in a public place. 

The city initially viewed the driver as the victim of an assault, and pursued no action against him. 

A day after the incident, the city received a report through a call to its 311 line. 

The report claimed to be from a passenger on the same bus who alleged the driver choked the unruly passenger with his seat belt and punched her multiple times in the head. 

The complaint led to an investigation where it became clear through bus surveillance video the driver had neither choked or punched the passenger.

But after reviewing the footage, the city decided to impose a three-day suspension, arguing the driver reacted in anger and not self-defence.

At arbitration, the city further noted that drivers are not to use physical force to remove passengers and that the driver’s arm had been near the passenger’s neck during the incident.

'NO GREAT OPTIONS'

The arbitrator disagreed, saying while the city was correct to take workplace violence seriously, the driver had acted appropriately. 

“There is certainly not enough evidence to conclude that the grievor was intentionally choking her.”

Casey further noted that “there were no great options” available to the driver, but that some non-disciplinary coaching would have been more appropriate. 

“Everyone can try to improve with respect to their ability to address these most difficult of situations.”

The driver has returned to work and the union says its hopeful the ruling will have implications for future investigations.

“Hopefully, there's a message for the city that [it] needs to be more careful about examining the evidence,” said Bradshaw.

“We have to examine all the facts and consider them carefully.”