HomeMy WebLinkAbout1991-1899.Lafreniere.95-03-08 ONTARIO EMPLOY~*S DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARtO
GRIEVANCE COMMISSION DE
SETTLEMENT R~=GLEMENT
BOARD. DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO .ON MEG IZ$ TELEPHONEIT~'LE'PHONE : (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TLt'I..~-COPIE ; (416) 326-1396
.~ - OLBEU # 93/91, 169/91
MAR 1 ~ 1995
PUBLIC SERVICE
APPEAL BOARDS
TI[~ ORO~'~' EMPLOYEE8 COLL~.CT'rVE BARGAINTNG &CT
Before
TE~ GRIEV~CE SETTLE~T BOA~
BET~EN
OLBEU (Lafreniere)
~r~evor
The Crown in Right of Ontario
(Libor Control Board of Ontario)
Employer
BEFORE: R.,Verity Vice-Chairperson
P. Klym Member
· R. Scott ,._ Member
FOR THE R. Davis
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR TEE S. Gleave
EMPLOYER Counsel
Hicks, Morley, Hamilton, Stewart, Storie
Barristers & Solicitors
HEARING April 16, 1993
August 23, 24, 25, 26, 27, 1993
September 1, 2, 1993
February 15, 16, 17, 1994
March 22, 23, 24r 1994
August 24, 25, 26, 29, 30, 1994
2
DECIS~ION
On August 23, 1991, Daniel Lafreniere was discharged from his position as manager
of Store #604 near Alban, Ontario for alleged breach of trust involving improprieties in the
handling of the garbage account. Mr. Lafreniere was suspended on July 19, pending
investigation and the laying of criminal charges. Subsequently, he was charged with five
counts of fraud against the Liquor Control Board of Ontario, contrary to s.380(1)(b) of the
Criminal Code of Canada. In separate grievances dated July 21, 1991 and October 10, 1991'
respectively, Mr. Lafreniere alleges .that he was suspended and discharged without just
callse. ,
The criminal allegations against Lafreniere were to the effect that between the
months of April 1987 and July 1991, he defrauded the LCBO by claiming to have paid
$40.00 per month for garbage collection while in fact he paid $10.00 a month and kept
$30.00.for his own use. Lafreniere's first criminal trial took place on January 10 .and March
25, 1992 before Judge W. F. Fitzgerald in Sudbury. However, due to the illness of the
Judge, a second thai was held at Sudbury between January 5 and January 8, 1993. At the
second trial, Lafreniere was acquitted of all five charges by Mr. Justice C. T. Murphy of the
Ontario Court of Justice (General Division).
Despite Lafreniere's acquittal, the employer continues to allege just cause for both
his suspension and discharge. The parties agree that the Grievance Settlement Board is not
bound by the disposition of the criminal proceedings and that this panel has the duty to
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hear and determine the case on its merits.'
Before turning to the evidence, it may be helpful to set out the general principles
that have guided this panel in assessing the evidence. In any disciplinary matter, of course,
the employer bears the onus of proof. The standard of proof is not the criminal standard
of proof beyond a reasonable doubt, but rather the civil standard of proof upon the balance
of probabilities. The parties agree, however, that where serious misconduct is alleged, as
in this case, there must be clear and cogent evidence to discharge the burden of proof. In
that xegard, we axe guided by the rationale of Mr. Justice O'Leary of the Ontario Divisional
Court in Re Bernstein a_nd College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d)
447 where he states at p. 470:
The i~portailt thing to remember is that in civil cases there is no precise formula as to the standard of
proof required to establish a fact. Ia all cases, before reachln~ a conclusion of fact, the tribunal must be
reasonably satisfied that the fact occurred, and whether the tribunal is so satisfied will depend on the
totality of the cilcumstances including the nature and coasequences of the fact or facts to be proved, the
seriousness of an allegatioll made, and the gravity of the consequences that wilt flow from a particular
The standard of proof in civil proceedings was considered in Hanes v. Wawanesa
Mutual Insurance Company. [1963] S.C.R. 154 in which the Supreme Court of Canada
quoted with approval from the judgment of Denn/ng, L.J., in Bater v. Bater [I950] 2 ALL
E.R. 458 at p. 459:
Thc difference of opinion which has been evoked about the standard of proof in these cases may well turn
OUt to be mom a lxlatter of words than anythln,~ el.~. It is true that by our law there is a higher standard
o[ proof in crlmin al cases than in civil cases, but this is subject to the qualification tha~ them is no absolute
4
standard in either case. In criminal cases the charge must be proVed beyond reasonable doubt, but there
may bc degrees of proof within that standard. Many great judges have said that, in proportion as the
crime is enormous, so ought the proof to be clear. So also in. civil cases. The case may be proved by a
preponderance of probability, but there may be degrees of probability within that standard. The degree
depends on the subject matter. A civil court, when considering a ~harge of fraud, will naturally require
a higher degree of probability than that which it would require if considering whether negligence xvas
established. It does not adopt so high a degree as a criminal court, even when it/s considering a charge
of a criminal nature, but still it does require a degree of probability which is commensurate with the
occasion.
The arbitration before us took the form of an exhaustive inquiry during 19 days of
hearing. We make no attempt to repeat all of the evidence adduced but sufficiently,, to
indicate the basis of our decision. The panel has, howe,~er, taken into account the whole
of the evidence and submissions of counsel in arriving at our findings.
It may be helpful to set out some facts by way of background information. The
grievor is 46 years old and has been employed with the LCBO since October 1972. The
grievor has been manager of Store #604 from the fall of 1983 until his suspension and
subsequent dismissal in the summer of 1991. However, Mr. Lafreniere was absent for
extended periods of time on two occasions. He was absent as a reSUlt of surgery between
June and October 1987 during which time Paulette Viau, a casual employee at Store #64,
served as acting manager. The second absence occurred when Lafreniere was involved in
an automobile accident on May 13, 1988. He did not return to work officially until March
27, 1989. Debbie Shaw, a classified employee from Sudbury was acting manager between
June and September 1988. After Ms. Shaw left, Paulette Viau again served as acting
manager until the grievor's return to work in March of 1989. At all relevant times Store
#604, located at the intersection of Highways #69 and #(}4, was a 300 square foot trailer
6
withdrawn from the cash register and the receipt generated is attached to the X-11 form
accompanied by the initials of the manager. The transaction is recorded in the daily sales
record, the weekly consolidated sales report, and eventually on LCBO form S-35 which is
completed at the end of the LCBO four week accounting period. According to the grievor,
he regularly paid cash to Mr. Nadon. After withdrawing the money from the cash register,
he placed it in an envelope together with the X-II expense voucher and locked it in the safe
for security purposes. The grievor maintains that when be'paid Ivlr. Nadon at a later time,
he would withdraw the envelope containing the money and the X-ii form out of the safe
and pay Mr. Nadon out of the office. The X-11 form contains a section entitled "received
payment" and it is an LCBO requixement that a payee sign the X-11 form at the time of
payment.
The grievor maintains that from the time Store #604 opened in 1983, the
arrangement for payment to Mr. Nadon for garbage collection was $40.00 an LCBO pay
period or $10.00 a week, regardless of the number of garbage pick-ups. Appareittly, there
are four weeks in an LCBO pay period and 13 pay periods in a financial year. According
to the grievor, he made cash payments to Mr. Nadon in the amount of $40.00 each pay
period at which time Mr. Nadon signed his name or that of Diane Gauthier or Hector
Gauthier on a typed-up X-Il expense voucher.
According to the grievor, Nadon picked-up the garbage two or three times a week
during the "high season" (from Victoria Day weekend to mid-November) and twice a week
8
on to say that all of the cheques he received were given to his daughter, Diane, and her
husband, Hector Gauthier. 'In the words of Mr. Nadon, "the cash was mine, the cheques
were theirs."
At the hearing, Mr. Nadon was shown 56 LCBO X-II expense vouchers for the
period April 2, 1987 to July 12, 1991 (Exhibits 12A, B, C, D and E). He acknowledges that..
he wrote Adrien Nadon in the payment received column on the X-II expense voucher dated
April 2, 1987. That expense voucher contains the particulars "garbage collection A. Nad~n
for period No. 1 - 4 pick-ups at $10.00" and shows a total payment of'$40.00. Mr. Nadon
..~. .... testified that he Would not have signed the document had it contained the particulars and
" the dollar banount He denied signing his name or that of Diane Gauthier or D. Gauthier
on the remaining X-11 vouchers. He acknowledged signing Hector Gauthier on the final
X-11 expense voucher dated July 12, 1991. According to Mr. Nadon, the voucher was blank
when he signed it but he did receive $40.00 for four months at $10.00 per month.
On numerous occasions in Cross-examination, Mr. Nadon contradicted evidence that
he had given at the first and second criminal trials. At the first trial, he agreed that he had
occasionally signed the name Diane Gauthier on X-11 expense vouchers. At the first trial
he acknowledged that he had written Diane Gauthier's name on the voucher of May 19,
1989 and that thc name Diane Gauthier looked like his writing on the voucher of January
25, 1990. At the second trial, he acknowledged that he had signed Diane Gauthier's name
on the voucher of April 8, 1988 and that the voucher of January 25, 1990 looked like his
9
handwriting. At the hearing before us, he changed -that evidence and testified that he could
not remember signing his daughter's name. Similarly, he did not remember testifying before
Judge Fitzgerald that to avoid paying income tax, "I hide everything." Mr. Nadon did
acknowledge, however, that he had experienced problems with his memory.
Diane Gauthier, the daughter of Adrien Nation, is a seasonal employee with the
Ministry of Transportation. She has operated a garbage collection business known as
"Poubelle Service" for some 10 years until it ceased operation on May 1, 1993, due to her
father's declining health. She testified that her father collected the garbage with the
assistance of her son, Richard, and that she recorded the monies, "mostly the cheques?
According to her evidence, she maintained that the LCBO paid $6.00 to $8.00 a month for
1983, 1984 and 1985 until 1986 when the rate was set at $10.00 a month. Her record of
payments (Exhibit 15) contains the notation in 1986, "Don't forget LCBO reports garbage
pick-up to government in Diane's n~_m._e." The record also contains the statement ia April
or May of 1991 "Liquor store declares pick-up at $10.00 a month - $120.00." Mrg Gauthier
testified that her father retained the cash for garbage collection which he used to pay his
expenses. She further testified that she did not sign any LCBO expense voucher. Her
evidence was to thin effect: that by the summer of 1991 Poubelle Service had 20 to 30
business operations; that the highest rate charged a business for garbage collection was
$30.00 a month wh/ch was paid by the Alban Community Centre; that Rivard's Gas Bar and
Beausejour Hotel paid $20.00 a month; that Mr. R/yard paid by cheque on many occasions;
that the Beausejour Hotel generally paid in cash; that most cheques received by Poubelle
10
Service Were reported on Diane Gauthier's income tax return but that most ff not all cash
payments were not reported; that 60% of the customers of Poubelle paid by cheque; and
that in her words "Nobody paid us $40.00 a month, for garbage collection between 1983 and
1991."
Paulette Viau, now Ethier, has worked as a cashier at the Caisse Populaire in
NoelviIle since December 1989.- Previously, she was employed for 6-1/2 years with the
LCBO, the last five years of which she worked with the grievor at Store #604. Ms. Viau'
testified that she served as acting manager during the grievor's first absence between June
.... ' and October, 1987. During the grievor's second extended absence beginningMay 13, 1988,
Debbie Shaw was acting manager for the period between May to September while Ms. Viau
performed that duty from October 1987 to the grievor's return in March of 1989.
At the hearing, Ms. Viau testified that during the grievor's 1987 absence, she typed
out garbage vouchers in her capacity as acting manager, and pursuant to the grievor's '
instructions, on each occasion she withdrew $40.00 from the cash register, placed the money
in an envelope with the X-ll form and later gave the envelope to the grievor to pay Mr.
Nation outside the store. Exhibit 12A established that Ms. Viau's name as acting manager
appears on five X-11 expense vouchers between the period June 17 and September 21, 1987.
The thrust of her evidence was that dur/ng this period she never saw anyone sign the
garbage expense voucher under the category of "received paymenff'
Ms. Viau testified that during the grievor's second absence as a result of a car
accident on May 13, 1987, she was greatly upset with the LCBO decision to appoint Debbie
Shaw, a classified employee, as acting manager of Store #604. When told of the decision
in late May by Regional Manager Duhammel, she recalled, "I was in turmoil." According
to her evidence, she expressed her feel/rigs/n no uncertain terms to the grievor following
Mr. Duhammel's visit. Ms. Viau testified that the grievor replied that he would let her
on "a little secret" and then told her of his practice o~f withdrawing $40.00 for garbage
collection expenses, paying Mx. Nadon $10.00 and retaining the difference. According to
Ms. Viau, the grievor suggested that if site would continue preparing the X-11 vouchers he
would pay Nadon $10.00 a period and Ms. Viau would keep the difference of $30.00. Ms.
Viau testified that she agreed to participate in the scheme, and that between the months
of June and September 1988 the procedure was as follows: on Debbie Shaw's day off, Ms.
Viau would type out and sign the X-Ii garbage voucher; the grievor would come into the
store and be given the $40.00 which Ms. Viau had withdrawn from the cash register, the
grievor would give her $30.00 and leave the store with $10.00 presumably to pay Mr. Nation.
According to Ms. Viau, the procedure changed in October 1988 when she was
informed by the grievor that she would be the one to pay Mx. Nadon. She testified that Mr.
Nadon came into the store, that he signed a blank X-II form and would be given $10.00
each pay period.
12
· In examination-in-chief, Ms. Viau testified that she saw the grievor write the name
"A. Nadon" in the received payment column on the X-11 expense vouchers.of June 25, 1988,
August 18, 1988 and September 1, 1988. However, in cross-examination Ms. Viau was
referred to the transcript of her testimony at'the criminal proceeding on January 7, 1993 at
which time she was Unable to identify any particular. X-II expense' voucher where the
grievor had signed the name Diane Gauthier or Hector Gauthier or Adrien Nadon or A.
Nadon. There is no dispute that Ms. Viau changed her evidence after testifying at the first
hearing on June 10, 1992~ Apparently, after giving evidence on that date she called LCBO
lmspeetor Maciuk in Toronto with words to the effect that she had additional information
-. ' to prov{de. 'After admitting her own involvement in the scheme to Noelville OPP Officer
Vincelette, she paid $150.00 to the LCBO by way of restitution.
At the hearing before us, in cross-examination Ms. Viau testified that she saw Mr.
Nadon sign the X-ii expense voucher for December 21, 1988, January 1989 and February
24, 1989.
The employer called Mary Duncan of M.I. Duncan and Associates as an expert
Witness. Ms. Duncan is a noted forensic'document examiner who is frequently called upon
to give evidence both in court and in arbilxations. She was provided with 51 form X-11's
relating to garbage expenses and alleged known signatures of the writing of Adrien Nadon;
namely, (1) a 31 page receipt book for 1991 and 1992 containing handwritten names of
business customers generally marked paid but without the amount of payment included, and
13
(2) a receipt from Poubelle Service to the Beausejour Hotel dated May 5, 1992 and
purportedly signed by Adrien J. Nadon.
In particular, Ms. Duncan was asked to examine 18 original form X-11 expense
vouchers purportedly signed by Adrien Nation or A. Nadon ia the received payment column
and to determine whether or not any of the 18 questioned signatures (labelled Qi to Q18)
were written by the writer of the known documents. The expense vouchers were dated
April 2, 1987, May 9, 1987, June 17, 1987, June 30, 1987, July 29, 1987, September 12, 1987,
December 8, 1987, March 1, 1988, May 27, 1988, June 25, 1988, August 10, 1988, September
1, 1988, October 7, 1988, October 29, 1988, December 21, 1988, January 1989 and February
24, 1989. She was also asked to determine if the same person wrote A. Nation on all 18
questioned X-Il expense vouchers. Ms. Duncan testified at length as to the methods used
and the manner in which she conducted her investigation. Her report dated January 24,
1994 was submitted as an exhibit (Exl~'bit 29). Ms. Duncan concluded on the basis of
firm opinion" that the writer of the known standards, Adrien J. Nation, wrote the questioned
signature, Adrien Nadon, on the form X-Il dated April 2, 1987 but did not write A. Nadon
on any of the remaining 17 questioned X-il forms. Ms. Duncan ventured the opinion that
the remaining 17 X-II forms were written by the same person. She also offered the opinion
that the person who signed in the received payment column was using "disguised writing."
The employer called 11 witnesses while the union called four.
14
For his part, the grievor adamantly denies any impropriety in the handling of the
garbag6 account. In particular, he ,maintains that he paid $40.00 a pay period to Mr.
Nadon, including th~ period when Ms. Viau was acting manager, that there was no scheme
with Ma Viau or with any other person to defraud either the LCBO or Mx. Nadon, and that
at no ~ne did he sign anyone else's name. in the received payment column of the X-11
garbage expense vouchers. The grievor 'testified that Mr. Nadon always signed his own
name in the received payment column or the name of either Diane Gauthier or Hector
Gauthier. The grievor attributes his difficulties to the fact that he refused to state that
District Manager Norm Duhammel was stealing from Store #604. According to the
grievor's evidence, LCBO Inspcctor'Maciuk told him in July 1991 that ff be would co-
operate in incriminating Duhammel, he (Maciuk) would put in "a good word" at the LCBO
and that the OPP '~vould go easy~' on him.
Gaetan Rivard owned Rivard Gas Bar, a Petro Canada station, between May 1, 1986
and December 12, 1988. His business was located adjacent to Store #~4 on Highway 69.
At that location, Mr. Rivard operated a gas bar, a propane service, a coffee shop, a live bait
outlet, a tire changer and balancer operation, and. a beer bottle exchange. Mr. Rivard
testified that Mr. Nadon collected his garbage from six 45 gallon drums three times a week
in the summer and twice a week in the winter. According to Mr. Rivard, he usually paid
Nadon $40.00 a month or $i0.00 a week._ Mr. Rivard's evidence was to the effect that he
always paid Mr. Nadon in cash,, although he acknowledged that he occasionally gave
Cheques to Diane Gauthier. He was unable to recall the amount paid by cheque.
15
Gerard Bedard has owned the Beausejour Hotel :near Alban since .1982. He testified
that Mr. bladon picked up his garbage three times a w~ek in the summer and less irequenily
at other seasons. According to his recollection, he regularly paid cash to Mr. Nadon. His
evidence was to the effect that he paid approximately $40.00 a month to Mr. Nadon,
although in cross-examination he acknowledged that in the absence of any meaningful
record he could on]}, est/mate what his payments were for garbage collect/on.
The employer contends that the board has heard signlficant new evidence not before
the courts. In particular, Mr. Gleave argued that the evidence of handwriting expert Mary
· '.. Duncan and the contents of the manager's log between 1983 and 1986 contradict the
grievor's testimony, and that the board must conclude that the grievor was not a creda'ble
witness. Mr. Gleave submits that the more l/kely explanation is that the grievor signed
Nadon's name or that of Diane Gauthier on numerous X-11 forms~ Counsel for the
employer contends that Ms. Viau was a credfole witness and that the evidence of Mess~
Rivard and Bedard as to what they paid Mr. Nadon for garbage collection service was for
the most part speculative. In support, the employer cited the following authorities: R__~e
Ministry of Finance & Corporate_Relations and British Columbia Governmem Employees'
Union (1987), 33 L.A.C. (3d) 284 (Wefler); Ri2zo et al. v. Hanoverlnsurance Co. (1993), 14
O.R. (3d) 98 (Ont. C.A.); _.Re Steel Co. of Canada and United Steelworkers, Local 1005
(1991), 21 L.A.C. (4th) 242 (Rayner); Better Beef Limaed and United Food and Commercial
Workers International Union, Local 617P (unreported, April 21, 1993 (Verity)); Nones
Masonry Limited and Muia Bros. Contract°rs Ltd. & Masonry and Muia Bros. Contractors Ltd.
16
(unreported, April 10, 1991 (Anderson J.) (Ont. H}C.J.)); Canada Safeway Limited and
United Food and Commercial Workers' Union, Local 2000 (unreported, December 10, 1991
. (Hope)); Rex v. Kadeshevitz (1934), O.R. 213 (Ont. C.A.); Hathewa. B et al v. Chaplin [1892],
2i S.C.R. 23 (S.C.C.); Wigmore on Evidence, ChadbournRevision Vol. 2 (1979), Sections 654
and 655; Re Fitzmartin and Village of Newburgh (1911), 24 O.L.R. 102 (Ont. Div. Ct.); Regina
v. Smith_. '(1992), 94'~D.L.R. (4th) 590 (S.C.C.); Re Province of Manitoba and _Manitoba-
Government Em. plovees' Union (Jackson) (1993), 32 L.A.C. (4th) 339 (Schulman); Regina v.
Moore (1990), 63 C.C.C. (3d) 85 (Moldaver J.) (Ont. H.C.J.); Kendall's Ex'r v. Collier (1895),
30 S.W. Reporter 1002 (Kentucky C.A~); State v. Young (1936), 187 S.E. Reporter 561 (N.C.
." "'~' "- S.C.); The Ontario Produce Company The Oshawa Foods Division of the Oshawa Group
Limited and Teamsters Local Union No. 419 (unreported, February 26, 1988 (Joyee)); R_.~e
Hercules Canada Ltd. and United Steelworkers, Local 13159 (1974), 5 L.A.C. (2d) 257
(O'Shea); OLBEU (Brian McWdliams) and The Crown in Right of Ontario (Liquor Control
Board of Ontario), 860/87 (Fisher); OLBEU ~Errol Mehmeti) and The Crown in Right
. . Ontario (Liquor Control Board of Ontario), 1197/87 (Draper); OPSEU (Nelson Denomme)
and The Crown in Right of Ontario (Minist~. Of Transportation and Communications), 664/83
(Verity); Re Canadian National'Railway Co. and Brotherhood qf Locomotive Engineers
(1993), 35 L.A.C. {4th) 88 (M. G. Picher); Re City of Saint John and Canadian Union of
Public Employees. Local I8 (1989), 4 L.A.C. (4th) 314 (Collier); The Ottawa-Carleton Public
Employees' Union, Local 503 (Canadian Union of Public Employees) and The Corporation of
the City of Ottawa (unreported, December 14, 1990 (Foisy)); The Corporation o[ the City o]'
Ottawa and The Ottawa-Carleton Public Employees' Union, Canadian Union of Public
17
Employees, Local 503 (unreported,/Ianuary 20, 1992 (Burkett)); and OLBEU (Huffnegel) and
The Crown in Right of Ontario (Liquor Control Board of Ontario), 1594/91, 2990/91 (Kaplan).
The thrust of the union's argument is that neither Mr. Nadon nor Ms. Viau were
credible witnesses. Mr. Davis maintains that Ms. Duncan's evidence is hearsay and cannot
be relied upon. In the alternative, he argued that her evidence should be given little weight.
The union requests the board to find that the employer failed to establish just cause for
either the suspension or the dismissal in that it failed to establish that the grievor carried
out a scheme as alleged by the LCBO. Mr. Davis seeks reinstatement with full
compensation for lost wages and benefits. Reference was made to the following authorities:
Re Madame Vanier Childrqn's Services and Ontario Public Service Employees' Union (1992),
25 LA.C. (4th) 242 (Verity); Palmer v. Wilbur (1857), 8 N.B.R. 443; andRe Gin,in et.at and
Consumers' Gas Co._ (1973), 40 D.L.R. (3d) 509 (Ont. Div. Ct.).
We do not accept the union's submission that the evidence of Mary Duncan is
hearsay. It was admitted by all part/es that the signature of Adrien Nadon on the X-11
expense voucher of April 7, 1987 was genuine. The LCBO provided Ms. Duncan with
known signatures of Mr. Nation's writing (F_,xhibits 25 and 27) which Ms. Duncan sa/d was
the same writing as in Q-l, the X-11 expense voucher of April 7, 1987. In the particular
circumstances of this case, complicated as it was by Mr. Nadon's declining health and his
inability to reattend the hearing, we are sat/sfied that Ms. Duncan had the correct standard.
18
In this case, credibility is a determining factor. In assessing the credibility of the
principal witnesses, we are guided by the oft quoted rationale of Mr. Justice O'Halloran of
the British Columbia Court of Appeal in Fa~.na v. Chorn. y_, [1952] 2 D.L.R. 354 where he
states at pp. 357:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely .-
by the test of whether the personal demeanour of the particular witness carried conviction of the truth.
The test must reasonably subjoct his story to an examination of its consistency with the probabilities that
surround the currently existing conditions. In short, the real test of the truth of the story of a witness in
such a case must be its harmony with the preponderance of the probabilities which a practical {md
informed person would readily recognize as reasonable in that place and in those conditions. .....
Allowance must be made for the fact flaat when Adrien Nadon testified before us on
August 25 and 26, 1993 he was unwell. Both parties sought to recall Mr. Nadon later in the
hearing. Unfortunately, his reattendance was not possible due to his general physical
deterioration as evidenced by a letter from his physician (Exhibit 59). When Mr. Nadon
testified in August 1993 he readily acknowledged that he had difficulties with his memory. .
There were a number of inconsistencies in his evidence at the hearing when' compared with
testimony that he had given in the criminal proceedings. We are satisfied that Mr. Nadon
retained monies paid by the LCBO in cash for his own personal use and that he kept no
record of the amounts paid. Mr. Nadon was adamant, however, that during the period that
Lafreniere was manager of Store #604 he received cash payments in the amount of $10.00
per month. However, we view Mr. Nadon's evidence with reservation.
Diane Gauthier's evidence supported her father to the extent that at the relevant
19
times her understanding was that the grievor was paying $10.00 a month for garbage
collection and that the highest monthly payment charged by Poubelle Service was $30.00 a
month which was paid by the Alban Community Centre.
In weighing the evidence of Panlette Viau, we must give very serious consideration
to the fact that she changed her testimony during the course of the first criminal proceeding:~
Having made allowance for this change and for inconsistencies in her evidence given at the
hearing when compared with selected portions from the transcript of the criminal
proceedings, we are'satisfied from the surrounding circumstances that her story told to this
board was the correct version of events. Simply stated, despite the union's argument to the
contrary, we cannot bring ourselves to believe that she would perjure herself to admit to
acts which' amounted to conspiracy to defraud. In the totality of the evidence; we accept
Ms. Vian's evidence given to this board.
: :..-.... We have no difficulty in saying that Mary Duncan, an experienced forensic document
examiner, was a thoroughly cre&~ble witness. The parties acknowledged that the expense
voucher dated April 7, 1987 (Exhibit 12a) was genuine and was signed by both Adrien
Nation and by the grievor. Ms. Duncan-testified that with regard to Adrien Nadon it was
the same writing as in the known samples of Nadon's writing provided to her by the LCBO.
Ms. Duncan established that Mr. Nadon did not write any of the signatures appearing under
the received payment column for 17 X-ii forms on which the name A. Nadon appeared.
In that respect, she corroborated the evidence given to us by Mr. Nadon and directly
20
contradicted the evidence of the grievor. For the most part, Ms. Duncan's evidence is
consistent with the testimony of Ms. Viau.
There was insufficient evidence before us to establish the amount of monies actually
paid by either Mr. Rivard or Mr. Bedard to Mr. Nadon for garbage collection services. We
find that the evidence of Messrs. Rivard and Bedard is speculative at best. It is significant,
we think, that in Diane Gauthier's records (Exhibit 15) there is a notation that a cheque was
received in April 1988 from Rivard's Gas Bar in the amount of $240.00 by way of annual
payment. The evidence established that the Tak family purchased Rivard's Gas Bar in
December 1988 and operated it as a family business until October 1990. The documentary
evidence introduced by Guljinder Tak established that he initially paid $15.00 a month for
garbage collection, but the charge was raised to $20.00 less than a year later. On the
evidence, the more probable account is that Rivard was paying $I5.00 a month to Nadon
and Bedard was paying $20.00 a month for garbage collection services.
This has not been an easy decision and has been made more difficult given the
grievor's 19 years of apparently unquestioned service. In our view, the grievor's version of
events is not in harmony with the preponderance of probabilities in the light of compelling
evidence to the contrary. The grievor's evidence that the initial agreement which carried
on through the years for garbage collection was $40.00 a month or per pay period is
contradicted by the manager's log (Exhibit 47). That piece of evidence established that
between October 1983 and October 1986 payments allegedly made by Lafreniere to Nadon
22 ''
mitigation of penalty. In the result, this grievance must be dismissed.
DATED at Brantford, Ontario, this 8 t h day of ga rc-h, 1995.
IL L VERITY, Q.C. - VICE-CHAIRPERSON
"l Dissent" (dissent attached) . .
P. KLYM - MEMBER.
R. SCO2~1' - MEMBER'
1
G.S.B. # 1899/91
O.L.B.E.U. (Lafreniere)
and
Liquor Control Board of Ontario
DISSENT OF UNION NOMINEE
I have studied the decision of the Chair and again thoroughly reviewed all the evidence
and I must strongly disagree with the conclusions reached by the majority.
The majority decision correctly accepts that the standard of proof in a case such as this
is the civil standard of proof based on the balance of probability and that there must be
dear and cogent evidence to discharge the burden of proof.
In my opinion, the evidence before us does not come anywhere dose to being dear and
cogent to substantiate the discharge of the grievor.
In particular, besides other evidentiary problems, to arrive at the conclusions of the
majority, the evidence of Mr. Adrien Nadon and Ms. Paulette Viau would have to be
accepted as being dear and cogent and to be determinative of several key issues in this
case. In my opinion this requires one to dose one's eyes and swallow hard when faced
with facts when assessing their testimony. ~
First of all, Mr. Nadon admits to hiding income from his tax return by not declaring any
income he received in cash. Obviously his testimony regarding the amount he charged
for garbage collection is .at least highly suspect if not an outright lie. He is highly
motivated in sticking to his story of only charging $10 per month for the garbage
collection because he fears that admitting he received significantly more income could
affect his income tax for the years in question. At the Court hearing of January 10, 1992,
he told the Court that to avoid paying income tax, he hides everything. When
questioned about this at our hearing he took the convenient cop out of saying "I don't
remember",
Indeed at our hearing Mr. Nadon consistently answered "I don't remember" to questions
in cross examination and was either contradicting or vague frequently. To be fair, he
obviously was in ill health and it is understandable that on many matters he could be
vague or forgetful and he testified he had difficulties with his memory.
2
I note that in their decision, the majority states that they view Mr. Nadon's evidence
with reservation. Yet, as will be shown later, they obviously accept his evidence over
that of other witnesses who had no memory impediment such as he did nor had they
any vested interest like his income-tax avoidance.
Regarding Paulette Viau, her credibility is extremely suspect. She is an admitted
perjuror during the Court proceedings and her. evidence before us has numerous
inconsistencies.
We should not ignore the fact that after her testimony in Court in January 1992, Mr.
Nadon testified. 'In spite of her testimony, Mr. Nadon then testified to only being paid
$10 per month even during the 'period when she was paying him directly. If he was
telling the 'truth, she was implicated and the LCBO would be hard pressed not to also
charge her with fraud as the grievor had been charged. By then she was in a ne~-job
at the Caisse Populaire and she testified that, if. she was charged with fraud, she would
be fired from her employment immediately simply for having the charge laid.
· ~ She obviously had a serious 'problem even if Mr. Nadon was not telling the truth by
'" '~ ::..-'.- implicating lier. I have difficulty in aCCepting her story .that she had a feeling of guilt
about not telling the truth initially and so she called Mr. Maduk of LCBO security and
.~ offered to repay the amount she had "taken fraudulently" and to change her story in
court. Firstly, she only paid the LCBO $150.00 as full "restitution"; I note this is only
5 months worth of "restitution" while she testified that she had been pocketing the $30
monthly for 11 months.'
Questions are raised as to whether Ms. Viau contacted Mr. Maduk or whether he
initiated the contact. There are further questions as to why charges were not in fact laid'
and why less than full "restitution" was agreed upon. In light of serious problems with
Ms. Viau's credibility and the fact that virtually the same story she gave us was not
believed by the Court, we could have benefited from testimony from Mr. Maciuk
regarding these arrangements. Because Mr. Maduk was not called, we must draw a
negative inference and the failure to back up Ms. Viau's version of these events serves
to destroy her credibility further.
So-in assessing the various aspects of this case, I believe we should give very little
weight to the evidence given to us by Mr. Nadon and Ms. Viau. Certainly their
evidence gives no assistance to .establishing the dear and cogent standard required.
Amount Paid For Garb_age Pick-up
The real issue in this case is to decide the amount actually paid to Mr. Nadon for the
garbage pick-ups at the LCBO store.
The evidence from both the grievor and Mr. Nadon was that in the high season Nadon
picked up the garbage three times a week and in the low winter season twice a week.
Mr. Nadon testified that during the high season there were at least 25 boxes per pick-up.
These boxes had to be broken dowrt to fit on the truck and the contents of a 45 gallon
barrel had to be emptied. In addition, he cleaned up the yard of papers and cigarette
butts. In the low season the number of boxes to pick up was around 15-20. It took him
30-45 minutes to dean up the LCBO location, in addition, the evidence before us was
that the distance to the dump from the LCBO and PetroCan station location was
approximately 6 miles.
So, in addition to the 30-45 minutes per pick-up that Mr. Nadon spent at the LCBO
location, it is not unrealistic to conclude that he spent at least another 15 rain, ares driving
to the dump and unloading - perhaps even longer. Therefore, each time Mr, Nadon
picked up garbage at the LCBO store, he put in at least 45-60 minutes. At 3 times a
week, this equates to between 2 1/2 hours to 3 hours each week. On a 4 week period
basis ti'ds time spent is between I0 hours and I2 hours. In addition there is the cost of
truck operation and purchasing gas.
So it appears that Mr. Nadon was putting in anywhere from 10 to 12 hours a month in
addition to his truck expenses.
Even if we leave out any consideration for the truck expense, at $10 per month payment
by the LCBO he would be working for $1.00 per hour or less! Surely it defies.logic to
believe that Mr. Nadon was doing all this work for such minimal compensation.
Even if he was an extremely public spirited dtizen, it is doubtful he would carry on
doing such work for little or no pay for all these years, particularly when one considers
the extreme weather in this area in the winter.
In their derision, the majority makes reference to the rationale quoted by Mr. Justice
O'Halloran in assessing credibility of witnesses. I quote:
"The test must reasonably subject his story to an examination
of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the
truth of the story of a witness in such a case must be its
harmony with the preponderance of the probabilities which
a practical and informed person would readily recognize as
reasonable in that place and in those conditions."
4
Nowhere in their decisiOn do the majority apply"thi.s test to'ascertain the credibility of
Mr. Nadon's claim that.he did all this work for $10 per month. It is obvious that if such
a test had been applied Mr. Nadon's claim would have been shown tO be ludicrous and
unacceptable. '
The evidence of Mr. Rivard is at odds with that of' Mr. Nadon regardiiag the amount Mr.
Rivard paid for garbage collection when he ran the PetroCan business. Mr. Rivard was
a completely credible witness who had nothing to gain or lose from' any testimony he
would give to our heating and appeared as a result of a subpoena.
He testified that he had a very .active business. In addition to l~he' gas bar he ran a full
~offee shop, an empty bottle pick-up for beer bottles iand Cans, sold live bait, did vehicle
repairs, sold tires and did tire repairs including heavy tire repairs and wheel balan,.cing.
His business employed 16 people on two shifts and generated a lot of garbage,
particularly the empty boxes from the empty bottle returns, the 45. gallon and 15 gallon
drums he had on the property for garbage and the coffee shop.
Mr. Nadon picked up his garbage three times a week in-"the summer, sometimes four
times, and twice a week.'m the winter. He paid Mr. Nadon usually $40 per month based
.. on $5 per load. If more loads per week we.r.e required, he had to pay more.
He testified that he paid part by cheque to 19Ir. Nadon's .daughter or son-in-law and part
in cash to Mr. Nadon - about 1/2 and 1/2. In addition he did minor truck repairs for
Mr. Nadon on his truck and repaired tires for him without charge. Mr. Rivard did not
have doCUmentary proof of the actual payments made to Mr. Nadon. There is a notation
in Diane Gauthier's records that in April 1988 she received a cheque for $240 from Mr,
Rivard as annual payment. But even Nadon testified that he received cash from Rivard
in addition to the annual cheques ai~d Rivard testified that he believed he paid about'
half by cheque and half in cash to Nadon. So Nadon's daim that all he even got from
Rivard was $20 per month does not fit {he evidence before us.
In addition, the testimony of Mr.'Boulard must be considered in assessing the amount
charged for garbage pick-up. Mr. Boulard took over the PetroCan station business from
Mr. Tak in November 1990. Mr. Tak had run the business for about two years after
taking it over from Mr. Rivard. The amount of business activity had been reduced
significantly from that run by Mr. Rivard and consequently a lot less garbage was
produced. Mr.' Boulard testified that he burned most of the boxes himself. Also, he did
not dispose of any tires in the garbage as had Mr. Rivard. He did not put any car parts
or mufflers in the garbage but took them to the dump himself. His garbage for pick-up
consisted of about 8 or 9 garbage bags per week. He only had one pick-up per week
and Friday was his pick-up day. He testified that the arrangement was that if more than
one pick-up per week was required, he would pay extra but he never paid more than
$20 per month because no extra pick-ups were ever required.
5
In reviewing this evidence it is apparent that since the LCBO store and the PetroCan
station are on the same property, it is logical to conclude that the rate charged for
garbage pick-up would be close to the same for the same number of pick-ups and
amount of garbage.
Why would Mr. Nadon charge LCBO only $10 a month for 3 pick-ups a week and a
large amount of garbage and time spent while he charged the operators of the PetroCan
business $5 per pick-up?
The only rational conclusion is that the rate charged to the LCBO was not $10 per
month. Therefore, the charges of fraud against the grievor are dearly not substantiated
on this evidence alone without any necessity to analyse .all the other evidence.
Signatures on the Xll Expense Vouchers
Considerable evidence was led regarding the Xll expense vouchers for the period from
April 2, 1987 to July 12, 1991. Much of the evidence was contradictory.
Before us, Mr. Nadon testified in direct examination that he only signed the April 2,1987
voucher with his own name and the July 12, 1991 voucher with the name of Hector
Gauthier. In cross examination he was taken through several vouchers about which he
had been questioned in the Court proceedings and other parts of his testimony in Court
Regarding the Xll dated September 21, 1987 signed Dianne Gauthier, at Court in
January 1992 he said he thought it's his signature. Before us he said he did not
remember.
Mr. Nadon told the Court he signed his daughter's name on Xll vouchers twice. At our
hearing he said he could not remember first and later that it was impossible he signed
her name. Regarding the Xll dated April 8, 1988 signed Dianne Gauthier, at the Court
in January 1993 he said it was his handwriting. Before us he said it was not his
handwriting. Regarding Xll voucher dated May 19, 1989, signed Dianne Gautheir, at
the Court hearing in January 1993 he said it was his handwriting. Before us he said it
was not. Regarding the Xll voucher dated December 22, 1989 signed Dianne Gauthier,
at the Court hearing in January 1993 he said it looked like his handwriting. Before us
he said it was not. Regarding the Xll voucher dated January 25, 1990 signed D.
Gauthier, at the Court hearing in January 1993 he said he signed this one. Before us he
said this was not true.
6
This evidence' from Mr. Nadon is so contradictory and confusing.that it is impossible to
accept his claim before us that he only signed the Xll dated April 2, 1987 and the Xll
'dated July 12,~ 1991 and no others. Mr. Nadon also testified that he signed about 30
blank X11 type of receipts for the grievor.
When questioned about being paid directly by Ms. Viau, he said this happened a couple
of times, but he did not sign any Xll receipts for her.
Paulette Viau testified that'she paid Mr. Nadon herself for the months from October 1988
to March 1989. She also testified that she saw Mr. Nadon sign his~name to the Xll
vouchers dated December 21, 1988, January 1989 and February 24, 1989.
Ms. Viau testified before us that she saw the grievor sign the name A. Nadon in the
received payment column on the Xll vouchers dated June 25,1988, August 11, 1988 and
September 1, 1988. In cross-examination it was pointed out to her that this was entirely
inconsistent with her' testimony in Court in January 1993 where she said she saw the
grievor sign Mr. Nadon's name on one occasion but she could not say which Xll was
'. involved. - ·
· Certainly Mr. Nadon and Ms. Viau can't both be correct. In addition, as we shah see
:. later, Ms. Viau's evidence regarding her seeing Mr. Nadon sign the three Xlls dated
December 21, 1988, January 1989 and February 24, I989 is dramatically at odds with the
evidence of Mary Duncan regarding these three signatures which were samples Q16,17
& 18 in her study. One of them can't be right. If we accept Ms. Duncan's report
regarding these three signatures, We Would certainly have to question MS. Viau's entire
.. evidence and recollection regarding signatures on Xll vouchers.
Mary Duncan gave evidence regarding her expert opinion regarding whether Mr. Nadon
was the person who signed A. Nadon in the received payment section of eighteen Xll
vouchers from April 2, 1987 to February 24, 1989. I note that in this period, there are
six Xll vouchers where the signed name is Dianne Gauthier or D. Gauthier. Ms.
Duncan did' not express any opinion regarding these signatures and it does not appear
she was specifically asked to do so.
Ms. Dunca'n was given two alleged known samples of Mr. Nadon's handwriting.
K1 was a 31 page receipt book for 1991 and 1992 alleged to have been used by Mr.
Nadon. This book was never identified as an exhibit in our proceedings as belonging
to Mr. Nadon and stipulating that the handwriting therein was Mr. Nadon's. Therefore,
technically this book is hearsay evidence and the K1 designation to this handwriting is
not legally established.
7
K2 was a receipt for garbage pick-up dated May 5, 1992 allegedly signed by Mr. Nadon.
This receipt was Exhibit "A"-I1 from the January 1993 Court proceedings. I note that
this receipt was not properly identified at the Court and that Mr. Justice Murphy
expressed concern and displeasure that it was not properly identified and so allowed it
to be marked as Exhibit "A". So legally, even this receipt and the alleged signature is
hearsay and the K2 designation is not properly established.
These K! and K2 samples were the "known" standard to which Ms. Duncan compared
the questionable signatures Q1 to Q18. It was not up to Ms. Duncan to prove any
known signatures. Nor was she authorized to use any "questioned" signature from Q1
to Q18 as a known standard to which she could make comparisons.
Section 57 of the Ontario Evidence Act provides that comparison of a disputed writing
with a writing proved to the satisfaction of the Court to be genuine shall be permitted
to be made by a witness and such writings and the evidence of witnesses respecting
them may be submitted to the Court or jury as evidence of the genuineness of the
writing in dispute.
Admittedly, an arbitration board is not a Court. However, I believe it unwise for us to
stray from this principle when a person's livelihood is at stake and say that a signature
which is submitted in the "questioned" category should be transformed into the "known"
category and then used as a basis of comparison.
By not providing Ms. Duncan with genuinely identified known signatures as a starting
point, the employer has placed her at a disadvantage to make a "firm" opinion and I
believe her opinions should not be considered as "firm". She herself said in cross-
examination that without proper known documents she could have expressed an opinion'
· - but it would not be a firm opinion.
Regarding these "known" signatures K1 and K2 provided to Ms. Duncan, one must
wonder why they gave her these documents that were not properly identified and thus
hearsay, when properly identified signatures by Mr. Nadon were readily available.
Counsel for the employer had Mr. Nadon sign his signature three times before us at the
hearing. These signatures are in Exhibit 19. Also Mr. Nadon signed his signature before
the Court on January 6, I993 and it is properly identified as Exhibit 7 before the Court.
One is left to wonder why these undisputed and identified signatures were not provided
to Ms. Duncan but instead two hearsay documents were provided. It is logical for the
Board to draw a negative Lrfference from this behaviour by experienced counsel for the
employer.
I note that the majority has stated that they consider the Xll voucher dated April 2, 1987
should be considered as a "known" signature. But this is not the basis from which Ms.
8
Duncan Worked.' The above signature was a "questioned" signature before her (Q1). It
was not the known basis from .which her opinions sprung. The majority is working
backwards. Ms. Duncan did not state that her report was based on using Q1 as a
known signature. Indeed her report states she compared each of Q2 to Q18 with K1 and
K2 and not with Q1.
Ms. Duncan's report states that she made a preliminary examination of the known
writing of the grievor, Mr. Lafreniere and of the questioned signatures on 51 Form Xlls
of A. Nadon, D. Gauthier and H. Gauthier.
Interestingly, she makes no further comments in her report (nor does it appear that she'
was asked) regarding the handwriting of the signature D. ~Gauthier, Dianne Gauthier or
Hector Gauthier. Her opinion is limited to the 18 Xll vouchers that were signed A.
Nadon. '~
Also she did not express an opinion, nor was she asked to do so, regarding whether Q2
to Q18 signatures are in the handwriting of Mr. Lafreniere although she had known
samples of his handwriting before her. Nor does she express any. opinion regarding
whose handwriting is involved in signing-D. Gauthier, Dianne Gauthier or Hector
Gauthier on the other 33 Xll vouchers provided to her. Her report does state that, in
her opinion, Mr. Nadon did not sign Q2 to Q18. If her opinion is reliable, then this
obviously disproves Ms. Viau's testimony regarding her seeing Mr. Nadon sign Q16,17
& 18.
The grievor testified in direct examination that he did not sign any of these 51 Xll
vouchers in the received payment section. Interestingly, he was not cross-examined at
all on this point.
Also, the following should be noted: Xll ~rouchers d~ted December 21, 1988, January
1989 and February 24, 1989 are typed out saying garbage collection by D. Gauthier and
are signed A. Nadon.
Xll vouchers dated February 1, 1988, April 8, 1988, December 22, 1989 are typed out
saying garbage collection by D. Gauthier are signed Dianne Gauthier.
All other vouchers made out to garbage collection by D. Gauthier are signed D.
Gauthier.
It is highly questionable that a person running a scam would not be consistent and
neglect to sign the same name as that to whom the voucher referred if they were
fabricating signatures.
In view of all this conflicting and contradictory evidence, ! would find that there is no
clear and cogent evidence for us to draw the inference that counsel for the employer
asks us to make - that the grievor in fact signed ail of these questioned signatures.
Paulette Viau's Evidence Regarding The $cam
Ms. Viau said that, when she was not given the Acing Manager job in May 1988 when
th~ grievor went off sick, she was extremely upset and was ready to quit. At this point,
she said that, to placate her, the grievor offered to ¢~t her in on the scare and let her
keep the $30 per month.
Again, putting this into context of what is probably from a reasonably informed and
practical person's perspective, one is botmd to ask - is it logical that he would do this
and does it make sense in the circumstances?
Why would the grievor risk exposing such a scheme to a person in an extremely agitated
state, threatening to quit on the spot and extremely angry at him because she felt he had
not done enough to influence the District Manager to give her the Acting Manager job?
When he was off sick the previous year, there was no problem with his carrying on
paying Mr. Nadon monthly. Surely he could have carried on doing the same this year
and in fact he did so until October.
When one considers Ms. Viau's lack of credibility in various other instances, it is difficult
to conclude that she is telling the ~ruth here.
· - Ms. Viau also gave confusing testimony about how she carried on this scam during the
months she paid Mr. Nadon directly. During cross-examination she contradicted herself
when taken through the alleged routine she followed to process the Xll vouchers, get
the $40 out of the till and get Mr. Nadon to sign the voucher. She contradicted herself
as to whether she put a completely blank Xll through the cash register to get the $40
or whether it was an XII already signed by Mr. Nadon. She contradicted herself
regarding which Xll was sigfied by Mr. Nadon - a completely blank Xll or the Xll that
had been put through the cash register procedure and had the details imprinted on it
from the cash register.
She also told us that she had Mr. Nadon sign a completely blank Xll which she kept to
use next time. However, she neglected to tell us where she kept such a signed Xll
voucher for a month before putting it through the cash register.
When pressed as to when she first had Mr. Nadon sign a blank Xll and when she got
him to sign the Xl 1 for the first time she paid him directly (Xl 1 dated October 29, 1988)
she was extremly confused.
10
It is a reasonable' expectation that, if someone was invOlved in this type of scheme, they
would have been well aware of the details of how they ran the scheme. Ms. Viau's
evidence in this regard is so confusing that it is impossible to give it any definitive
weight and it certainly is not up to a clear and cogent standard.
If there truly was a scheme to defraud the employer, one would expect that a willing
participant, who allegedly volunteered to disclose the scheme, would at least be able to
supply clear details as to how the scheme worked.
'The Credibility of the Grievo~'
The' majority questions the grievor's credibility essentially on the basis of one issue - he
could not readily explain why the manager's log for the period between October 1983
and October 1985 (Exhibit 47) showed that payments in excess of $40 per pay period
were made for garbage collection.
After October 1985, the log indicates payments of $40 for each LCBO period for garbage
collection. The log has an authorization to pay Mr. Nadon $10 a trip for garbage
collection, signed by R. Mayer who was the District Manager when the store first
opened. The grievor had not been presented with this log during any of the proceedings
from the time he was suspended until his cross-examination before us. The investigation
and explanations had centered on the period commencing with April 1987. He could
not remember the exact details of the transactions with Mr. Nadon in 1983, but believed
the original arrangements were to pay as authorized by Mr. Mayer and that in the fall
of 1985 Mr. Duhamei replaced Mr. Mayer as District Manager. He speculated that Mr.
Duhamel may have required a change but could not recall.
. Bearing in mind that these payments are for periods back to 1983, some 11 years prior
to when the grievor testified at our hearings, in my opinion it is not surprising that the
grievor could not remember exact details of payments made in those years.
But, to conclude that these log book entries from 1983 to 1985 indicate the grievor was
involved in fraud from that time would require us to accept the testimony of Mr. Nadon
that he was only charging $7.00 per month back then. As stated earlier, Mr. Nadon's
testimony is completely unreliable. In addition, we would have to conclude that the
grievor was involved in a fraudulent scheme from the first month of his assignment as
store manager in October 1983.
Is it logical that on his first assignment as store manager, where he is not yet completely
familiar with all LCBO checks on managers and auditing proccedures, he would
immediately launch into a scam to steal money?
11
Also would he immediately put into jeopardy a well paying job with excellent job
security, close to his home for $30 a month or $360 a year?
On balance it is my opinion that the grievor's credibility withstands challenge.
Conclusion
On the basis of the above analysis of the evidence, I find it impossible to conclude that
the evidence shows that the grievor is guilty of the fraudulent acts charged. Certainly
the clear and cogent evidence standard has not been met even remotely.
I would allow both grievances and order that the grievor be reinstated in his former
position with full back pay with interest and benefits and seniority credits.
Peter