HomeMy WebLinkAbout1989-0151.Maurice.90-06-06 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARtO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
DUNDAS STREET WEST, TORONTO, ONTARIO, MSG tZ8- SUITE 2t00 TELEPRONE/TEL/~PHONE
RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 'tZ8. BUREAU 2100 (416) 598-0688
151/89
IN TBE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Maurice)
Ggievor
- and -
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
BEFORE: R.J. Roberts Vice-Chairperson
J. McManus Member
R, Scott Member
FOR THE B. Rutherford
GRIEVOR: Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE S. White
EMPLOYER: Counsel
Ministry of Community &
Social Services
HEARING: November 9, 1989
AWARD
At the commencement of the hearing in this matter, counsel for
the Union moved for an adjournment. This was opposed by counsel
for the MinistrY. After hearing extensive argument upon the
motion, we adjourned to consider the submissions and render a
formal, written award.
The ground upon which the motion for adjournment was based
was that the grievor had yet to be tried on criminal charges
arising out of the same transaction as the discharge which he
grieved in this proceeding.- The fact that the criminal trial had
yet to commence, it was submitted, gravely prejudiced the grievor
for at least two reasons: first, the criminal charges he faced
were serious, constituting six counts of assault and carrying the
potential for incarceration for a long period of time.
Secondly, it was submitted~ any testimony given by the grievor
in the arbitration proceeding might prejudice his right to remain
silent in the criminal proceeding. This right, it was emphasized,
was secured ~o the grievor under the Canadian Charter of Rights and
Freedoms, and as such, it was submitted, ought not lightly to be
impeded. Should the arbitration go forward, the argument
continued, this right might be impeded not only by giving the
Ministry access to testimony of the grievor but also by revealing
prematurely the strategy of the defense in the criminal case. For
this reason, the Board was advised, criminal defense counsel had
2
instructed the grievor that if the arbitration were to proceed, he
should not testify.
Counsel for the Ministry submitted that it was necessary to
proceed as expeditiously as possible in order to prevent crucial
evidence from fading in the recollection of witnesses. In this
connection, it was emphasized that in cases of alleged abuse as
serious as the one at hand, it was crucial for the Ministry to be
able to do so.
It also was submitted that there was no reason to impose this
inconvenience upon the parties to this proceeding. All of the
witnesses for the Ministry were available, it was pointed out, and
the Ministry was prepared to proceed in presenting.its case-in-
Chief upon the merits. In line with this, there was some reference
to the fact that this was a case of continuing liability.on the
part of the Ministry, and that in the event that the 'grievor were
successful, the Ministry would stand to be 'liable to make payment
of considerable amounts of back pay and benefits.
Counsel for the Union attempted to meet this latter point with
an offer on behalf of the grievor to waive his right to receipt of
back pay between the date of our hearing and the date of its
resumption after adjournment. It also was indicated that the
grievor was willing to withdraw his grievance in the event he
3
~pleaded Guilty or was convicted of any of the charges against him
in criminal court.
As to the potential for the fading of the memories of
witnesses, counsel 'for the Union noted that the grievor was one of
five persons charged in the same matter. This meant that there
would be numerous preliminary hearings with essentially the same
witnesses having ample opportunity to present their testimony.
This, it was suggested, would provide suitable means for
refreshment of recollection as matter proceeded.
The panel also was advised that precisely the same issue had
been argued before another panel of the Board, chaired by Professor
Gorsky, in September, 1989. The decision, however, had yet to be
released.' Subsequently, on November 29, the award of that panel
was released under the name of Re Beard and Ministry of Community
and Social Services (1989), G.S.B. No. 371/89 (Gorsky). In
December, 1989, counsel for the Ministry was kind enough to
circulate copies of this award to ou~ panel and to counsel for the
Union.
In Beard, Professor Gorsky considered at length a number of
arbitration awards, both from this Board and the private sector,
and aiso certain civil procedure decisions of the Civil Courts.
As can be appreciated, many of these precedents overlapped those
relied upon in the present case.
One of the civil procedure cases relied upon by Professor
Gorsky was Stickney v. Trusz [1973] O.R. 469. As to this case,
he said:
Ms. White referred to Stickney v. Trusz, [1973] O.R. 469
(H.C.J.) where it is stated in the headnote, at p. 469:
"Civil proceedings will only be stayed on the ground that
related criminal proceedings are pending where the right
of an accused to a fair trial may otherwise be
prejudiced. The fact that an accused may be compelled
in the civil proceedings to incriminate himself (subject
to the protection of the Canada Evidence Act, R.S.C. 1970
c. E-10) is not sufficient reason for staying an action."
Mr. Richards did not take issue with this statement but argued
that these are not the only considerations that must be taken
into account by this Board. He argued that the Stickne¥ case
was a case decided in the courts and that other considerations
ought to apply before a board of arbitration. This is often
the case, but is it the case here? At p. 472 of the Stickney
case, it is stated:
"...the facts shown by the Defendant were no more than
those which would be shown by anyone who was at once an
accused in a criminal prosecution and a defendant in a
civil case as a result of the same facts. If this was
sufficient to warrant the conclusion that the matter was
exceptional and the Courts should stay the civil
proceedings there would be little or no discretion to be
exercised and we would have returned to an automatic rule
approximating the old felonious tort rule. In Roe v.
Brandon Packers Ltd. et al (1961), 29 D.L.R. 246 (Man.
C.A.) [Miller, C.J.M. stated at p. 250:
'I am unable to subscribe to any principle which
would indicate that the mere fact there is a
criminal proceedings pending at the same time as
civil proceedings is ground for either a stay or an
adjournment of the civil proceedings...'
(emphasis added in the report.) Zuber, J. went on
state at p. 472.
"Enlarging somewhat on that language, it is my
opinion that the mere fact that there are both
criminal and civil proceedings pending against a
person arising out of the same facts is not a
sufficient Ground to qualify as an exceptional case
5
in which the civil Proceeding should be stayed. It
is incumbent upon the applicant to show some
specific or particular way in which he will be
prejudiced in his criminal trial."
In this case I .see no reason to depart from the general
rule enunciated in the Stickney case .... I~d. at pp. 15-
16.
It was decided that in an arbitration case of the type before the
Board in Beard, there was no reason to depart from the general rule
of Stickney'that civil proceedings arising out of the same facts
as criminal proceedings will not be stayed in th~ absence of a
showing of an "exceptional" case, involving specific or particular
prejudice to the applicant in the criminal trial.
The case before Professor Gorsky did not involve any lesser
degree of potential prejudice to the grievor than the present case.
It involved a serious criminal matter. There, as here, the main
prejudice.was identified as the possibility that the defense
strategy would be made known to the Crown before the commencement
of the criminal tri~l {see award at pp. 1-2) and the possibility
of the grievor's testimony at the arbitration hearing being made
available to the Crown, thereby indirectly impeding the grievor's
right under' the Charter to remain silent when tried in criminal
court. (p. 4)
As to the latter point, it is evident that Professor Gorsky
rejected the argument which was made at length to us in the case
at hand that Stickney, supra was no longer good law because it pre-
6
dated the Charter. By adopting Stickne¥ and applying it to
virtually the same circumstances as are before us, the Board
rejected the notion that the Charter broadened the grounds upon
which a civil proceedin~ might be stayed pending a criminal
proceeding arising out of the same facts.
In recognition of this, and in observance of the principle
that this Board speaks with one voice, we have no alternative but
to deny the motion for adjournment. The Registrar of the Grievance
Settlement Board is hereby directed to schedule the present case
for hearing before any panel of the Board which might be available.
DATED at London, Ontario, this 6th day of June
1990.
R. errs, Vice-Chairperson
"I DISSENT" (Dissent a~ached)
J. McManuS, Member
R. Scot Member
DISSENT
151/89 OPSEU (MAURICE)
Ministry of Community &
Social Services
I am unable to agree with the majority in its decision not
to exercise its discretion to award the grievor an adjournment. The
majority has,.in my respectful submission, misconstrued the arbitral
jurisprudence that has developed as to the factors to be taken into
account when considering an adjournment request. They have, instead,
applied the civil test of treating the non-consenting party as having
a strong prima rani9 right to proceed unless extraordinary
circumstances can be shown.
The arbitral jurisprudence, as evidenced by the Williams
(33/70) and ~cWilliams (860/87) awards, clearly demonstrates that a
board of arbitration does have a discretionary power to grant
adjournments as part of its inherent authority to control its own
processes and procedure. Professor Swinton in W{~ldam-, as noted by
the majOrity on page 2 of its Award, does set out the factors that
are to be considered in coming to a decision as to whether to grant a
requested adjournment. The factors that are to be considered must be
perceived in the contex~ of a balancing of interests of'both parties.
Of prime importance is whether notice of the request has been given
prior to the hearing so that witnesses would not be called. An
additional factor mentioned is w~ether the adjournment would' cause
undue prejudice. Thus the essence of the decision-making process is
to weigh the potential prejudice on both sides. Indeed, the
McWilliams case outlines the proper balancing'of potential prejudice
in a case such as this where the grievor faces the gravest of
penalties should he be convicted of the criminal charges.
Section 7 of the Charter mandates that "everyone has the
right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of
fundamental justice". The Supreme Court of Canada held in ~eference
Re Section ~4(~) of the Motor Vehigle ~t (1985) 24 D.L.R, (dth) 536
at p. 550 that "the principles of fundamental Justice are to be found
in the basic tenets of our legal system". The'Supreme Court: has also
stated through Estey, J. in A.G. Ouebec and Keab]e v. ~,~ Canada et
al (1978) 90 D.L.R. (34) 161 at p. 193;
"One of the main bastions of the criminal
law is the right of the accused to remain
silent. In the coldest practical terms,
that right, so long as it remains
unaltered by Parliament, may not be
reduced, truncated or thinned out by
provincial action."
Therefore it can be said that a well-known principle of
fundamental Justice, projected as a a~s%-right under s.7 of the
charter Qf Rights aB~_Fr99~oms, that an accused has the right to
remain silent. This is part and parcel of the workings of a fair
criminal justice system wherein an accused is presumed to be innocent
until proven guilty. The onus is. on the Crown to prove the elements
of the offence and, at least theoretically, it is not necessary for
an accused to testify at his own criminal trial in order to be
exonerated.
In this case, where the witnesses involved have executed
detailed witness statements about events which span over a
considerable length of time and there are several other persons
charged for the same types of offences in the same institution during
the same period on the basis of these same witnesses' allegations, it
is hardly worthy of prejudicing the grievor's right to a fair trial
in order to save the employer from prejudice due to supposedly
failing memories. As a practical matter in this case, by the time
those witnesses have testified at the different trials of the
different accused, as well as keeping in mind that they have already
testified at length during the preliminary inquiries, it is hard not
to come to the conclusion that they will no doubt have better
memories of the aleged incidences by the time this matter comes for
hearing, if it is adjourned until the disposition of the criminal
matters.
In addition, in keeping with the ~cW41l~am, Award, the
grievor in this case would quite properly forego the right to
compensation between the time of the adjournment and the time that
the hearing recommences. This again removes any potential prejudice
on behalf of the employer.
With respect to the majority's concern at page 5 of their
Award as to the length of time that the trial may take, it was open
to them to put a time limit on 'the award if they felt that at a
certain point the prejudice might be too great. It is precisely
because they do not define the prejudice as undue and do not weigh
how important it is versus the grievor's right to have a fair trial
and the right to remain silent, that I find the Award to be flawed.
with respect to the D£ssanayake decision, Re University o2
Western Ontario, (1988) 35 L.A.¢. (3d) 39, I again must disagree with
the majority wherein ~hey find that this case is similar to the case
that was before us. In my opinion, it is very significant that the
Arbitrator was appointed under the expedited procedure of s.45 of the
Labour Relations Act and his reference to declining Jurisdiction must
be read in this context (see 9.41). Importantly ~he arbitrator finds
that the employer is not claiming to rely on 'the police
investigation. That simply is not the case here.
In addition, it is very significant that the arbitrator
discusses at length the Union counsel's contention that there may be
something in the police statements that may assist the grievor's
position at arbitration. I would submit that the discretion is not
unduly fettered by accepting the grievor's prejudice in this case as
being sufficient to outweigh the employer's alleged prejudice of
failing memories. The granting of an adjournment in this case does
not mean that all grievance arbitrations should be adjourned when
there are criminal charges pending. However, in this case, due to
the fact that there will be no prejudice to the employer, and in fact
their witnesses' memories may improve over time because of the
circumstances mentioned above, and in. light of the very Serious
nature of the charges pending, (which factor I would say is
sufficient to distinguish this case from the Dissana~ak9 decision),
the granting of an adjournment is clearly warranted.
The side stepping of the fundamental issue in this case,
that is an accused right to remain silent and the attendant right to
have Crown counsel prove, without the help of the accused, each
element of the offence, is somewhat muddied by the majority's
reference ~o "~actical advantages". .
In addition, it is important to note that the employer in
this case is the very same party that will be conducting the
prosecution of the criminal matters. This factor, in my opinion,
increases the very real potential for prejudice to the grievor should
he be effectively forced to testify as to the allegations before the
Crown has been put to the test of proving the elements of the
criminal charges. This approximates a "legal nexus" between the two
proceedings. (See ~e University of Western Ontario, supra, p. 41}
I also wish to note that the civil law has evolved from
different circumstances than were present in an arbitral
jurisprudence history. It is important to note that the judicial
history of the law in this respect shows that there once was an
automatic rule that civil proceedings should be stayed in order to
encourage public prosecutions. Notably the restriction to
"exceptional or extraordinary, cases" appeared in cases concerned with
the demise of the old felonius tort rule designed to guard against
the stifling of prosecutions. (See Stic~nev v. Trusz (~973) 45 D.L.R.
(3d) 275 at p. 277).. Those kind of factors are not relevant in
labour relations. Furthermore, it is my opinion that a disposition
of the criminal matters will be of great assistance to the parties in
dealing with the arbitration and that should be a factor which
should be considered in,his kind of case. .
Bearing in mind that what is at stake during all of this are
two fundamental principles; a man's right to be presume4 innocent
until proven guilty in a court of law and that man's right to not be
denied his employment unless for Just cause. All of the factors
menti°ned above in my opinion support the granting of an adjournment
request in this case due to the specific factm of this case, .and