HomeMy WebLinkAbout2004-1719.Bailey.07-06-14 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2004-1719
UNION# OLB458/04
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Bailey) Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Daniel Harris Vice-Chair
FOR THE UNION Jim Gilbert
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Michael Horvat
Ogilvy Renault
Barristers and Solicitors
HEARING March 27, 2007.
2
Decision
The Proceedings
This matter involves the discharge of David Bailey from his employment with the LCBO as a
result of an altercation with Dave Delin at the Cumberland Street Store in Thunder Bay, Ontario
on June 26, 2004. Mr. Bailey suffered a broken nose and Mr. Delin took 20 staples to close a
knife wound inflicted by Mr. Bailey. Mr. Bailey was charged with aggravated assault; he was
acquitted on the basis of self-defence.
The parties now seek direction as to the evidentiary effect on these proceedings of the Court’s
acquittal on the criminal charges.
The Submissions of the Parties
The Union submitted that the findings of the Court are binding on this Board, particularly that
Delin unlawfully assaulted Bailey. The Union emphasized paragraph 32 of the Court’s Reasons
as follows:
[32] To decide whether Mr. Bailey was therefore acting in lawful self-defence, I must
consider three issues: one, was Bailey unlawfully assaulted by Delin; two, did Bailey use
force against Delin because Bailey reasonably feared that Delin would seriously injure
him; three, did Bailey use force against Delin because Bailey reasonably believed that he
could not otherwise save himself from being seriously injured.
The trial judge found in the affirmative on all three branches of the test and acquitted Bailey
because he acted in self-defence. The Union said that it would be an abuse of process to
relitigate those findings of the Court.
3
The Employer submitted that for Bailey to succeed with the claim of self-defence he must have
committed an aggravated assault, which is excused thereby. It is open to the Employer to argue
that there was just cause for the discharge notwithstanding the acquittal, because of the lower
civil standard. Self-defence was said to be a criminal law concept based in substantive
assumptions as exemplified in paragraphs 26 through 28 of the Court’s Reasons:
[26] The key issue is whether there was an air of reality to the defence of self-defence
in this case.
[27] As noted by the Supreme Court of Canada in R. v. Cinous: “The air of reality test
imposes a burden on the accused that is merely evidential rather than persuasive.” In
applying the test I must consider the totality of the evidence and assume the evidence
relied upon [by] the accused is true.
[28] The term “air of reality” simply means that I must determine that if the evidence
put forward is such that if believed, a reasonable jury or fact-finder properly charged,
could have acquitted.
Essentially, by operation of the criminal law, these are not findings of fact so much as they are
parts of the “air of reality” test. The employer would be constrained from arguing against the
Court’s determination that Bailey acted in self-defence. However, I would still need to hear the
evidence since I am not, strictly speaking, bound by the facts, other than those that directly
support the judgment.
In reply, the Union emphasized that this Board is not able to make findings of fact that are
contrary to those of the Court. The Union relied upon OC Transpo v. ATU, Local 279 [2005]
O.L.A.A. No 43 (Starkman).
Reasons for Decision
This was brought as a preliminary application by the parties to seek direction as to what findings
of fact made by the Court are binding upon this Board. The difficulty with providing such
4
explicit direction is that to do so the Board would be required to adopt an inquisitorial rather than
adversarial model for the hearing of the case. Rather, it is for the parties to determine what facts
they need to prove in order to present their case. To the extent that those facts are also “essential
findings of fact” made by the criminal court, they shall not introduce evidence which has the
effect of contradicting those findings. Beyond that, the Board cannot be of further assistance.
The Court upheld Mr. Bailey’s claim of self-defence. To do so it made certain findings of fact.
This Board must accept those facts. In the least, Delin unlawfully assaulted Bailey. Bailey used
force against Delin because Bailey reasonably feared that Delin would seriously injure him.
Bailey used force against Delin because Bailey reasonably believed that he could not otherwise
save himself from being seriously injured.
I understand and appreciate the parties’ desire to obtain a shorthand version of what binds them
and the Board. However, in my view, that would require the Board to make decisions about
relevant facts without the parties’ specific submissions, made in the context of the facts placed in
issue before the Board, which would be inappropriate.
Dated at Toronto this 14th day of June, 2007
Daniel Harris, Vice Chair