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HomeMy WebLinkAbout2011-2731.Wild.15-05-12 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#2011-2731, 2011-2808 UNION#2011-0368-0170, 2011-0368-0185 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Wild) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Daniel Harris Vice-Chair FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Robert Fredericks Treasury Board Secretariat Legal Services Branch Counsel HEARING September 15, November 3, 2014 - 2 - Decision The Issue [1] There are two grievances before the Board filed by OPSEU on behalf of Shawn Wild, hereafter “the grievor”. The grievor was a corrections officer. He was dismissed from his employment for allegedly using excessive force in dealing with an inmate. The grievor was also charged criminally and was acquitted. He was also denied indemnification from the employer for his legal bills incurred on the criminal matter. This is a decision on a motion brought by the union seeking an order that the Board is obliged to accept the findings of the criminal court and automatically allow the grievances. It is the union's contention that the acquittal is dispositive of the justness of the grievor's dismissal as well as the employer's obligation to pay his legal fees incurred in the criminal proceedings. The Background and Submissions of the Parties [2] The union submitted that there is no dispute that the grievor used force in dealing with the inmate. The issue for determination is said to be whether or not the degree of force used was proper. It said that the circumstances required force and the force used was not excessive. [3] The altercation with the inmate took place on June 19, 2011. The grievor was charged criminally in August 2011 and had his employment terminated November 10, 2011. The union said that it was not relying upon the mere fact of the acquittal, since it accepted that there are different standards of proof at play between the criminal standard relating to the charges and the civil standard relating to the termination of employment. It acknowledged that a person such as the grievor could be acquitted, but still be - 3 - responsible civilly. The union submitted that it is the specific findings of the trial judge that are binding on the Board. It said that it would be an abuse of process to allow in these proceedings a collateral attack on the specific findings of the trial judge. It said that the trial judge found that there was no excess force used, and the Board must accept that finding. Accordingly, there is no basis to uphold the dismissal and the employer is obliged to pay the grievor's legal fees incurred on the criminal matter. [4] The trial judge summarized the facts as follows: Mr. Wild was charged as a correctional officer with assaulting an inmate, Mr. Nelson. Mr. Wilde was conducting a strip-search process with Nelson when Nelson threw his sweater towards Wild, and Wild reacted by grabbing and grounding Nelson in the search bay. [5] The union relies particularly on the following excerpts from the trial judge's Reasons for Judgment: Overall, I found Mr. Wild to be consistent in his evidence and responsive to questions. He, to his credit, acknowledged some second thoughts about how he had reacted, but was constant in his position that he did what he thought was best in the circumstances to control the risk he believed existed. His evidence did not strike me as an exaggeration or after-the-fact justification for something he knew to have been wrong at the time. In general terms, I accept his evidence. I accept that he chose to give Nelson some latitude rather than insist verbally or physically on strict compliance. I accept that Wild was operating with an awareness of a raised possibility of risk of harm from Nelson, but that it did not necessarily affect Mr. Wild's observable behavior. In my view, there is no evidence that Wild's reaction to Nelson tossing the sweater was driven by anger or retaliation. There is no testimony to that effect and nothing on the video of the event to suggest it; in fact the opposite. Wild appears relaxed and calm right up to the point of catching the sweater. While he said he was startled by the sweater coming at him, he also said that what he did was not just a knee-jerk reaction, but a rapidly considered response. I accept that Wild acted in good faith and believed in the moment that the sweater toss was a precursor to an assault. I don't think he considered the sweater toss an assault itself, nor do I. he viewed it as a "distraction" to mask a coming assault. [6] The union submitted that there were specific, positive findings in the reasons of the trial judge. - 4 - They were: 1) The grievor gave latitude to the inmate; 2) there was a raised possibility of risk of harm from the inmate; 3) the grievor's reaction was not driven by anger or retaliation; 4) the grievor acted in good faith and believed in the moment that the sweater toss was a precursor to an assault. [7] The union submitted that the grievor's response was found by the trial judge to have been justified and not excessive. It said that this is the same question now before the Board. The union found comfort in the fact that the trial judge did not merely dismiss the charges as not having been proved beyond a reasonable doubt. However, it did acknowledge that the judgment observed that, "however, the circumstances are key in the assessment of the event from a criminal law perspective." [8] The union reviewed the reasons of the Supreme Court of Canada in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E), Local 79, [2003] S.C.J. No. 64, (hereafter “CUPE”)with respect to the extent to which findings of a criminal court are binding upon an arbitrator. It conceded that where the criminal court has simply accepted a guilty plea there is no evidentiary trial from which findings might arise that would bind an arbitrator. [9] The union is asking the Board to accept the proposition that in circumstances after a full trial where the court concludes that there is no convincing evidence to sustain a conviction, an arbitration on the same issues might amount to an abuse of process. The union acknowledged that in Polgrain (infra) and Sault Area Hospital (infra) different - 5 - conclusions were reached. It sought to distinguish those cases on the basis that they misstated the principles enunciated by the Supreme Court of Canada in the CUPE case (supra). [10] The union submitted that it is the findings of the trial judge that bind the Board, which do not rely on the standard of proof. The trial judge here found that there was a basis for the use of force and that it was not excessive. The union posits that it would be an abuse of process to relitigate those findings. The trial judge’s findings were not part of her analysis relating to reasonable doubt. [11] The union also submitted that this analysis is applicable to the employer’s determination not to reimburse the grievor for his legal expenses relating to his criminal law defense. It said that the situation occurred in the course of his duties, the grievor acted in good faith and he was acquitted. Accordingly, it submitted that he should be reimbursed for his legal fees. [12] The union relied upon the following authorities: Toronto (City) v. C.U.P.E., Local 79, [2003] S.C.J. 64; Windsor (City) v. Canadian Union of Public Employees (Windsor Municipal Employees) Local 543 (Leixner Grievance), [2010] O.L.A.A. No. 519 (McLaren); Toronto (City) v. C.U.P.E., Local 416 (Crombie Grievance), [2004] O.L.A.A. No. 384 (Randall). [13] The employer submitted that the only legally binding finding made by the trial judge is that the grievor was acquitted on the basis that there was reasonable doubt as to his - 6 - criminal responsibility. It said that everything else was obiter dicta. The employer also submitted that although the primary ground for the dismissal of the grievor from his employment was the assault, there are other labor relations aspects to this matter that were not addressed by the trial judge, including the employer's concern with the grievor's actions both before and after the assault, his manner of reporting the incidents, his honesty and forthrightness with respect to the investigation, his lack of understanding of the inappropriateness of his behavior and his lack of remorse. It said that the trial judge recognized that she was only deciding the matter in the criminal law context. [14] The employer submitted that the justification for the grievor’s actions under the criminal law was grounded in section 25 of the Criminal Code of Canada, which is not the consideration before the Board. The sole question for determination by the trial judge was whether or not there was guilt beyond a reasonable doubt. That is not the test before the Board. The employer submitted that the case law establishes that an acquittal is different than a conviction, and to accept an acquittal as dispositive of civil law matters is to confuse the standard of proof required in the respective fora. [15] The employer relied upon the following authorities: Criminal Code of Canada, R.S.C. 1985, c. C-46, s.25; Toronto (City) v. C.U.P.E., Local 79, [2003] SCC 63; Crown Employees Collective Bargaining Act, S.O. 1993, Chapter 38, s. 38.1; Rizzo et al v. Hanover Insurance Co., [1993] 14 O.R. (3d) 98 (ONCA); Watson v. Catney, [2007] 84 O.R. (3d) 374 (ONCA); Her Majesty the Queen v. Mullins-Johnson [2007] 87 O.R. (3d) 374 (ONCA); Polgrain as Executor on behalf of Polgrain v. Toronto East General Hospital et al., [2008] 90 O.R. (3d) 630 (ONCA); Amalgamated Transit Union, Local - 7 - 279 v. Ottawa (City), [2007] O.J. No.3780 (ONSC); PF v. SF, [2011] ONSC 154; R.A. v. Toronto Police Services Board, [2009] HRTO 231; C.A.W. – Canada (Group of Employees) v. Presteve Foods, [2012] O.H.R.T.D. no. 1410; A.B. v. Toronto Police Services Board, [2013] HRTO 447; Sault Area Hospital v. Ontario Nurses’ Association, [2013] O.L.A.A. No.113; Essar Steel Algoma Inc. v. United Steelworkers, Local 2251, [2014] O.L.A.A. No. 105; OPSEU (Sindal/Talbot) v. Ontario (Ministry of the Solicitor General and Correctional Services) GSB#164-96 et al. (October 23, 1997) (Gray). Analysis and Decision [16] The weight of the authorities supports the view that an acquittal on a criminal charge is not dispositive of civil proceedings, including an arbitration, involving the same facts. I agree with that analysis, and for the reasons that follow dismiss the union’s motion. [17] In Polgrain, the Ontario Court Of Appeal had the following to say at paragraph 35: [35] Accordingly, in my view, the reasons of the trial judge in acquitting Mr. Cocchio are not judicial findings that attract the same relitigation concerns as does the formal verdict. To dismiss this suit as an abuse of process would attribute to the reasons of the trial judge a declaration of innocence, a verdict that was not legally open in the criminal proceedings. Again, this is not a matter of semantics. There are important policy reasons for not recognizing a verdict of factual innocence. As was explained in Mullins-Johnson, at para. 25, the most compelling is the impact on other persons found not guilty: As Prof. Kent Roach observed in a report he prepared for the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell, "There Is a Genuine Concern That Determinations and Declarations of Wrongful Convictions Could Degrade the Meaning of the Not Guilty Verdict" (p.39). To recognize a third verdict in the criminal trial [page 640] process would, in effect, create two classes of people: those found to be factually innocent and those who benefited from the presumption of innocence and the high standard of proof beyond a reasonable doubt. [36] I'm also concerned about the impact on the integrity of the judicial process in another sense. In applying the abuse of process or issue estoppel doctrines the court will be required on occasion to review the reasons for conviction to determine the matters in issue and the - 8 - essential findings: see Trang v. Alberta (Director of Edmonton Remand Centre), [2002] A.J. No.890, 322 A.R. 212 (Q.B.). But where the accused is acquitted, the only essential finding is simply that the case was not proved beyond a reasonable doubt. The trial judge may arrive at that conclusion for any number of reasons. For example, in a sexual assault trial there may be a reasonable doubt that the complainant consented, that the act occurred, that the accused was the perpetrator or that the touching was of a sexual nature. It is not essential that the trial judge find as a fact that there was consent, that the act did not occur, that the accused was not the perpetrator or that the touching was not of a sexual nature. It is enough that the trial judge had a reasonable doubt on one or more of those features of the case. The judge is not required and it is not essential that the judge make a positive finding in the accused's favor on any of those issues. To give full legal significance for abuse of process purposes to matters that were not essential to the decision would confuse the roles of the criminal and civil courts. [18] A differently constituted bench of the Ontario Court of Appeal in R. V. Mullins-Johnson, supra, reached the same conclusion. [19] In the earlier case of Rizzo v. Hanover Insurance, supra, the Ontario Court of Appeal observed the following at page 7: . . . Eminent Canadian, British and American text writers are unanimous in the view that evidence of a verdict of acquittal in a criminal trial is inadmissible in a subsequent civil trial as proof that the party did not commit the offense . . . [20] In Watson v. Catney, supra, a police disciplinary tribunal matter, the Ontario Court of Appeal applied the same approach agreeing with the Divisional Court's analysis and conclusions. The Divisional Court’s reasons are set out, in part, at paragraph 19 of the Court Of Appeal decision as follows: To allow the disciplinary hearing to proceed does not bring the criminal acquittal into question. The criminal trial and the disciplinary hearing, while focused on the same factual matrix, are separate inquiries, with distinct purposes and governed by different burdens of proof. . . . There is "no authority or logic for the proposition that a criminal acquittal is in despair proceedings evidence or proof that the gravamen of the criminal charge was unfounded or untrue". - 9 - [21] Accordingly, applying the reasoning of the Ontario Court of Appeal to the instant matter inexorably leads to the conclusion that the only essential finding of the trial judge in this matter was that the case was not proved beyond a reasonable doubt. [22] In applying Polgrain, the Human Rights Tribunal of Ontario has also rejected the notion that an acquittal is dispositive of the merits in a human rights complaint. In R.A. and L.A., supra, the tribunal said the following at paragraph 6: Since these decisions, however, the Court Of Appeal for Ontario has spoken on the issue. In its decision in Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427, the Court held that it is not an abuse of process to challenge, in a subsequent civil proceeding, findings made by a trial judge in the course of acquitting an accused. In my view, Polgrain applies to the present case and the respondents are entitled to argue that my findings of fact should be different from those of Weagant J. [23] In the Sault Area Hospital case , supra, arbitrator Etherington said the following at paragraph 35: 35. In addition, there is no danger of inconsistent findings bringing the administration of justice into disrepute because of the different burdens of proof being used in two different proceedings. For the Crown to succeed in obtaining a conviction for assault contrary to s.266 of the Criminal Code the trial judge has to be satisfied that all elements of the act requirement and the mens rea (an intention to apply force without consent) have been proven beyond a reasonable doubt. In a civil trial or arbitration hearing the employer need only prove misconduct amounting to patient abuse which constitutes just cause for discharge or discipline on the balance of probabilities. It is not required to prove the mental and physical requirements for a specific criminal offense. [24] Applying arbitrator Etherington's analysis to this case, the employer need only prove misconduct amounting to excessive use of force which constitutes just cause for discharge or discipline on the balance of probabilities. It is not required to prove the mental and physical requirements for specific criminal offense. - 10 - [25] This interpretation of Polgrain and of Sault Area Hospital was followed by arbitrator Roland in Essar Steel Algoma, supra. It is also consistent with the decision of vice chair Gray in OPSEU (Sindall/Talbot), supra. [26] Turning to the Reasons for Judgment of Cameron J. delivered in respect of the acquittal of the grievor, it is clear that the trial judge was conscious of the distinction between the criminal and civil proceedings. At page 7, at lines 10-20 the Reasons read as follows: Dealing with the investigation statements, although not strongly pursued at the trial proper, the statements during an internal investigation did show some inconsistencies or omissions as compared to Wild's evidence at trial. However, the manner in which Wild's statements were recorded in the investigation, from a criminal court perspective, leaves a lot to be desired, and, as a result, I've significant concerns about drawing any adverse inference about Mr. Wild’s credibility. (emphasis added) [27] The same observation that the matter is being judged quote from a “criminal law” perspective or context is reiterated at page 9, line 10 and again at line 30. The court clearly addresses the distinction between criminal proceedings and disciplinary proceedings such as these before the Board page 9, lines 20 through 31 as follows: The Crown does raise a legitimate and serious concern with respect to the threshold for use of force in correctional settings and I am mindful of that. Both correctional officers and inmates deserve to have a clear understanding of what is acceptable behavior. In this particular case it may be that the use of force event required an internal response, such as discipline or further training. While there may have been a better way to handle the situation with Nelson, I am not of the view that what Wild did was excessive in the criminal law context. (emphasis added) - 11 - The Decision [28] For the reasons set out above, the union's motion that the grievor's acquittal on the criminal charges is dispositive of the grievances before me is dismissed. Dated at Toronto, Ontario this 12th day of May 2015. Daniel Harris, Vice-Chair