HomeMy WebLinkAbout2011-2731.Wild.17-04-11 Decision
Crown 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
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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 Susan Munn
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING March 16, 2017
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Decision
[1] The issue dealt with in this decision is whether the grievor should be indemnified
for his legal costs incurred in the defence of a charge of assault against an inmate
pursuant to COR 14.1.2 which reads as follows:
14.1.2
An employee charged with but found not guilty of a criminal or other
federal offence, because of acts done in good faith in the performance
of his/her duties as an employee, shall be indemnified for the
necessary and reasonable legal costs incurred in the defence of such
charges;
The Submissions of the Union
[2] The union submitted that there are three required conditions to trigger the
applicability of this article. First, the grievor must have been found not guilty.
Second, the reason for the acquittal was because of acts done in good faith. Third,
those acts were done in the performance of his duties as an employee. The union
said that it is the second condition that is at issue here, and that condition cannot
be read in isolation. The union submitted that it is necessary to read the reasons of
the Criminal Court in order to determine the reason that the grievor was acquitted.
[3] The union said that the reasons of Court are crystal clear in that regard. At page 8,
line 21, the Court's reasons read as follows:
I accept that Wilde acted in good faith and believed in the moment that
the sweater toss was a precursor to an assault. I do not think he
considered this sweater toss an assault itself, nor do I. He viewed it as
just a "distraction" to mask a coming assault.
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[4] At page 10, the Court sums up by saying "for all the reasons stated, the charge will
be dismissed."
[5] The union submitted that these reasons of the court are dispositive of the second
required condition of Article 14.1.2. The union conceded that this Board had
reached a different conclusion. However, it said that that is not the test. It is the
reasons of the Court for the dismissal of the charge that fulfills the second
condition of the article. It said that the parties had chosen to have the issue turn on
the reasons for the decision of acquittal.
[6] The union said that the language of Article 14.1.2 differs from the general thrust of
the indemnification jurisprudence, where an element of good faith is a requirement,
which leaves it to the arbitrator to determine whether or not a grievor was acting in
good faith. Also, it must be presumed that the words "because of" were intended
by the parties to have meaning. The ordinary meaning would indicate that
deference be given to the reasons of the Criminal Court. It is the words chosen by
the parties that are of primary importance in interpreting the intention of the parties.
Given the choice of these words by these parties, for this Board to substitute its
own decision with respect to good faith in the application of Article 14.1.2 would
amount to a re-litigation of the issue and a collateral attack on the decision of the
Court, amounting to an abuse of process. The application of Article 14.1.2 is not
dependent on whether the grievor was entitled to keep his job, rather, it is
dependent on whether the Court found the grievor not guilty “because of acts done
in good faith”.
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[7] The union relied upon the following authorities: Willis and Winkler on Leading
Labour Cases 2016 I: Interpretation of Collective Agreements; Canadian Labour
Arbitration, Brown & Beatty 4:2120; North York General Hospital SEIU, Local 1
(Bisram), Re (2014) 251 L.A.C. (4th) 53 (Surdykowski); Belleville Police Services
Board v. Belleville Police Association (2005), 147 L.A.C. (4th) 112 (R.L. Jackson);
Toronto (City) v. C.U.P.E., 2003 SCC 63.
The Submissions of the Employer
[8] The employer agreed that there is nothing in the text of Article 14.1.2 that links
indemnification for legal costs to the loss or retention of employment. Relying upon
the first comma in the article, the employer submitted that there must be only two
conditions required by the article. First, the grievor must have been found not guilty
of the offense. Second, it must be because of acts done in good faith in the
performance of his or her duties as an employee. It said that both of these
conditions must be found by this Board to exist. It is my jurisdiction to decide, and
for me to be bound by the Criminal Court would be to cede my jurisdiction to the
Criminal Court.
[9] The employer submitted that in determining the second condition the proper test is
to determine whether there is both a subjective and objective presence of good
faith in the actions of the grievor. It said the onus of proving objective good faith
falls to the union, and it has not discharged that onus.
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[10] The employer also submitted that Article 14.1.2 must be considered within the
overall scheme of article 14 as a whole. It referred to article 14.6.1 as an example
of the parties constraining the jurisdiction of the Board. That article reads as
follows:
14.6.1
Any disputes regarding the granting of legal indemnification shall be
resolved by way of grievance subject to the following:
a) Any finding of guilt and statutory offense proceeding, or
b) Any finding of liability in a civil action for damages
Shall be determinative of the issue of guilt or liability for the purpose of
any grievance procedure in relation to this Article.
[11] The employer said that there is no similar, specific language restricting my
jurisdiction in Article 14.1.2. Accordingly, I have the jurisdiction to determine the
issue of good faith and am required to do so. Entitlement to legal indemnification
arises out of that determination. Further, there must be both subjective and
objective evidence of good faith. The employer submitted that the comments of the
trial judge are of no assistance in interpreting whether the good faith required by
Article 14.1.2 of the collective agreement has been established. The employer
reviewed my decision on the discharge and submitted that I drew very different
conclusions from those of the trial judge and rejected that the grievor acted in good
faith both subjectively and objectively.
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[12] The employer submitted that the Criminal Court's finding of good faith should be
rejected because it did not have before it the objective evidence of Mr. Ireland.
Also, the trial judge's comments are obiter dicta. It said that the union's
interpretation of COR 14.1.2 would lead to the absurd consequence that the
entitlement to legal indemnification would depend upon gratuitous comments of the
judge in the Criminal Court. Employees in very similar circumstances may or may
not get indemnification depending upon the comments of a trial judge in Criminal
Court. The employer said the parties could not have intended such potential
inequality. Finally, the employer submitted that a judge in the criminal law context
does not expect that their decisions would reach beyond that context.
[13] The employer relied upon the following authorities: Vancouver Police Board and
VPU (Indemnity), Re 2007 CarswellBC 3471, 90 C.L.A.S.66 (Hall); South Coast
British Columbia Transportation Authority v. C.O.P.E., Local 378 2012 CarswellBC
1150 (McPhillips); British Columbia and B.C.G.E.U., Re, 1998 CarswellBC 3581;
52 C.L.A.S. 278 (Germaine); Hamilton-Wentworth Police Services Board and
Hamilton-Wentworth Police Association (Chrysler), 2000 CarswellOnt 8921,
C.L.A.S. 356 (Goodfellow); Kenora Assn. for Community Living v. O.P.S.E.U.,
LOCAL 702, 2005 CarswellOnt 7879, 141 L.A.C. (4th) 160 (Springate); Polgrain
Estate. Toronto East General Hospital, 2008 ONCA 427 (Ont. C. of A.); Sault Area
Hospital and ONA (Maione), Re 2013 CarswellOnt 4189, 231 L.A.C. (4TH) 148
(Etherington).
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[14] In reply, the union submitted, for the purposes of this case, that I found that the
grievor had not acted in good faith. It agreed that, generally speaking, court
findings are given little weight in the arbitration context. However, it said that the
language chosen by the parties in this matter is very different from the language
under consideration in the authorities relied upon by the employer. That is, none of
those cases involve collective agreement language that includes the phrase
“because of". He said that the employer provided no alternative interpretation of
that phrase. The collective agreements under consideration in those other cases
required that the arbitrator engage in the good faith analysis unlike the instant
matter which links the requirement of good faith to the reasons for the acquittal.
[15] The union referred to COR14.1.5 as an example of a situation where the parties
have decided that the board must make a good-faith determination. That article
reads as follows:
COR14.1.5
Where an employee's conduct has been called into question in the
course of a Public Inquiry or a Coroner's Inquest and the employee
was acting in good faith in the performance of his/her duties . . .
(emphasis added)
[16] The union submitted that the use of the conjunction there indicates that both
conditions fall within the jurisdiction of the Board, unlike this situation, where the
second condition is clearly linked to the acquittal by the Criminal Court. It said that
effect must be given to the words chosen by the parties in the two sub articles.
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With or without a comma the meaning is clear. Also, COR14.6.1 is simply a
particular circumstance where the parties have laid out when the finding of the
court is binding.
[17] With respect to the employer's submission that the union's interpretation could lead
to absurd results, the union submitted that the Board's role is to determine the
reason for the not guilty finding of the Criminal Court. It said that sometimes the
Court will answer that question, and sometimes it will not, for example, where a
charge is dismissed for delay. The union submitted that when the Court has
answered the question the Board must accept that answer. When the Court has
not provided a clear answer it will be for the Board to answer it. Finally, the union
submitted that the comments of the trial Judge in this instance are orbiter in a very
strict sense, but the comments clearly relate to the reasons for the acquittal.
Analysis and Decision
[18] It is well understood that the interpretation of a collective agreement is an exercise
in considering the language chosen by the parties to express their intentions. As
set out in Willis & Winkler On Leading Labour Cases, supra, at I:1 I: Interpretation
of Collective Agreements, the following principles are most prominent:
• The goal of the interpretation exercise is to discern the parties'
intention.
• The meaning of the collective agreement is sought in the express
provisions of the agreement.
• The language should be viewed in its normal and ordinary meaning.
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• The purpose of the provision should be considered.
• Words should be interpreted harmoniously within the overall scheme
of the collective agreement, the object of the agreement, and the
intention of the parties.
• It should be presumed that all words used were intended to have
meaning.
• The text of the agreement governs, and, in the absence of any
ambiguity, the words used by the parties must be given effect.
[19] Legal indemnification clauses been considered by the arbitral jurisprudence, often
in the context of the performance of the duties of police officers that have led to
criminal charges. In accordance with the above, those considerations have
involved an examination of the language of those collective agreements.
[20] In Vancouver Police Board, supra, the collective agreement language reads as
follows at paragraph 4:
(a) The Employer will indemnify for necessary and reasonable legal
costs a member who is charged with a criminal offense, or an offense
under any provincial statute (other than for minor traffic offenses)
arising from the performance, or attempted performance, in good faith
of the member's duties as a police officer.
[21] The case goes on to catalog the evidence, arguments and conclusions of the
arbitrator in determining whether the officers involved performed or attempted to
perform their duties in good faith. The test adopted to assist in making such a
determination had a subjective and objective component, which is summarized at
paragraph 107 as follows:
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In this case, despite the attendant mitigating factors, I have found the
six officers did not have the requisite honest belief in the lawfulness of
their actions when they committed an “egregious” assault on three
individuals in Stanley Park. Any potential entitlement based on "good
faith" as required by Sections 9.9 (a), (b) and (d) was forfeited when
the officers made a conscious decision at the later debriefing session
to attempt escaping detection. Their collusion after the assaults belies
good faith and aggravated the seriousness of the incident. Finally,
even if the officers themselves believed their motive was honorable
(as the Union argues on their behalf), the test is objective and any
such belief was unreasonable in the circumstances. As a
consequence, the officers cannot be found have been acting in good
faith, and are not entitled to the indemnity benefits in Section 9.9 of the
Collective Agreement.
[22] In that case, the language clearly establishes the nature of the benefit and the
circumstances within which the benefit will be available to the member. There is
nothing in the language to mold or constrain the jurisdiction of the arbitrator to
embark upon an inquiry into whether the good faith requirement of the member's
performance of his/her duties is present.
[23] In South Coast, supra, the relevant collective agreement language is found at
paragraph five, and reads as follows:
(a) An employee who is charged with a criminal or statutory offense
arising from acts done in the performance, or attempted performance,
in good faith, of the employee's duties shall be paid for legal costs
incurred in the defense of such charge. It is understood that the
employee shall have the right to select legal counsel in these cases.
[24] Again, in that case the language clearly establishes the nature of the benefit and
the circumstances within which the benefit will be made available to the member,
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without in any way constraining the jurisdiction of the arbitrator to embark upon an
inquiry into whether the good faith requirement of the member's performance of
his/her duties is present.
[25] For reasons similar to Vancouver Police Board, The claim for indemnity was
dismissed.
[26] In British Columbia and B.C.G.E.U., supra, the relevant collective agreement
language is found at paragraph 13 as follows:
32.5 Indemnity
. . .
(b) Criminal Actions - where an employee is charged with an offense
resulting directly from the proper performance of his/her duties and is
subsequently found not guilty, the employee shall be reimbursed for
reasonable legal fees.
[27] It is evident that this language requirement for reimbursement for reasonable legal
fees is only available where charges result "directly from the proper performance of
his/her duties".
[28] In that case the union sought to rely upon orbiter comments of the Criminal Court
Judge. These comments were made at the invitation of defense counsel and are
found at paragraph 12, as follows:
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Counsel: May I just in closing the case, Your Honor, ask as I think I
have done in other cases, whether or not Your Honor feels
comfortable in commenting as to whether or not you found Deputy
Sheriff Holbeche was completing his execution of his duty at the time
this force was needed. There seems to be, for some other reasons, a
doubt about that and I just in obiter, would like you to express a
comment you could, to resolve other matters.
The Court: Well, if I have not made that clear in my reasons . . . , I am
certainly prepared to say that I thought and find that Deputy Sheriff
Holbeche’s actions on this occasion were clearly within the scope of
his duty and entirely appropriate in the situation
[29] The arbitrator considered the weight to be given to the trial judge's comments in
paragraph 29 and 34, as follows:
29 It is unnecessary for me to consider the trial court's analysis
of the grievor's performance of his employment duties because that
was not the function of the trial. The learned Judge performed his
function by determining the criminal charges. His comments on the
grievor's performance of his employment duties were not necessary
for purposes of the determination of the criminal charges. I reject the
Union's contention that the term "proper performance" in Article 32.5
(b) could be determined by the unnecessary remarks of a trial judge
on a subject outside his jurisdiction.
. . .
34 The interpretation and application of the collective
agreement, including questions of whether an employee was properly
performing her or his employment duties, are matters exclusively for
an arbitrator under the collective agreement. The comments of a trial
judge in criminal proceedings on the propriety of the employee's
performance of her or his duties are therefore of no consequence for
purposes of the proper performance element of Article 32.5 (b).
[30] In Hamilton-Wentworth, supra, arbitrator Goodfellow reached a similar conclusion,
at paragraph 10, following a review of arbitral cases in which an acquittal resulted
in an inference being drawn that the member had conducted his duties in good
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faith, unless evidence is produced to the contrary. At paragraph 10, in part,
arbitrator Goodfellow said the following:
10 . . .
The question I must decide is whether Constable Chrysler was
carrying out the lawful execution of his duties in good faith when he
was engaged in the behavior that gave rise to the criminal charge. To
my mind, and with the greatest of respect to those arbitrators who may
hold a different view, the acquittal is prima facie evidence of nothing. It
is, however, conclusive evidence that the member has met a threshold
condition for entitlement – the need for an acquittal.
[31] The collective agreement language being considered by arbitrator Goodfellow is
found in paragraph 2, as follows:
28 (1) the board shall indemnify members, for reasonable legal costs
incurred,
(a) in the defense of a civil action,
(b) in the defense of a criminal prosecution, excluding a criminal
prosecution in which a member is found guilty of a criminal offense,
. . .
If the members were carrying out the lawful execution of their duties in
good faith at the time the circumstances giving rise to the cause of the
action or charge occurred.
[32] Again, the language employed in that collective agreement, and that in British
Columbia, in no way circumscribes the jurisdiction of an arbitrator to interpret and
apply the provisions of the collective agreement, including the determination of
whether or not the performance of the member meets the requirements of the
language of the indemnification clause.
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[33] That is not the case in the matter before me. For ease of convenience the
language before me is as follows:
14.1.2
An employee charged with but found not guilty of a criminal or other
federal offence, because of acts done in good faith in the performance
of his/her duties as an employee, shall be indemnified for the
necessary and reasonable legal costs incurred in the defence of such
charges;
[34] There is no disagreement between the parties that the application of the
indemnification clause has as its first condition that the employee has been
charged with but found not guilty of a criminal charge and that that condition has
been met here. The disagreement is as to the effect of the words "because of". As
stated in the analysis above, other cases considering an indemnification clause
have not in any way constrained the arbitrators from properly engaging in an
analysis of whether or not a standalone requirement of good faith, proper
performance etc. of duties has been discharged. Here, however, the parties have
chosen to link the reasons for the legal finding of not guilty to entitlement for
indemnification. The issue here is whether the not guilty conclusion reached by the
Criminal Court was because of the acts having been done in good faith. That is,
was the finding of good faith part of the reasons for the grievor's acquittal. The
plain and ordinary meaning of the sentence requires this conclusion. The question
is not whether as a matter of labour relations law, on the balance of probabilities,
the grievor acted in good faith. Rather, the question is whether the trial judge's not
guilty conclusion, based on proof beyond a reasonable doubt, was driven by
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consideration of whether it was because of acts done in good faith in the
performance of the grievor’s duties as an employee.
[35] There can be no doubt in this case that the judge's view was that the grievor had
acted in good faith. Further, there can be no doubt but that that finding is part of
the judge's reasons.
[36] The employer here raised the argument that such an approach could lead to
absurd results in that the result hinges on the verbal formulation employed by the
trial judge. However, there can be no getting around the parties' choice to
indemnify members who were found not guilty for reasons that the parties have
specified, being, because of having acted in good faith.
[37] In the cases analyzed above, there was no such direction to the arbitrator to take
into consideration the reason for which a not guilty finding has been reached in the
Criminal Court. On that basis arbitrator Goodfellow rejected a line of authority that
had established that an acquittal created an inference of good faith. That line of
authority is summarized at paragraph 8 in Hamilton-Wentworth, supra, as follows:
As to the positive effect of the acquittal, the Association relies on the
award of arbitrator Kirkwood in Metropolitan Toronto Police Services
Board, Dated March 25, 1990:
. . .Once the person is acquitted there is no finding of misconduct and
it must be said that by inference, the officer has conducted his duties
in good faith, unless evidence is produced to the contrary. As
arbitrator Shime points out at pages 8 and 9 of his decision in
Metropolitan Toronto Board of Commissioners of Police and
Metropolitan Toronto Police Association (O.B. Shime) in the matter of
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Mr. D.M.Gordon and Mr. D. Sprong, “in almost every case in which
there was an acquittal there would be an inference and even a
presumption that the acts of the police officers were performed in good
faith. That presumption of course, would be capable of being rebutted
. . . I accept the acquittal as prima facie evidence of good faith and it is
therefore incumbent upon the board to rebut the presumption through
evidence properly adduced."
[38] Here, I need not consider inferences or presumptions, because of the clarity of the
trial judge’s reasons. However, it may be that in situations lacking such clarity the
Board might have to consider drawing inferences from what is before it.
[39] The applicability of the reasons of a Criminal Court to arbitral proceedings has
arisen in the wake of Toronto (City) v. C.U.P.E., 2003 SCC 63, supra, as they
relate to the effect of an acquittal on a discharge for the same events. Indeed, that
issue arose on the merits of the related discharge grievance and was disposed of
May 12, 2015 (see: Ontario (Ministry of Community Safety and Correctional
Services) and OPSEU (Wild), Re, 2015 CarswellOnt 7109256 L.A.C. (4th) 103
(Harris)). In that decision I rejected the union’s motion for a preliminary order that
the Board was obligated to accept the findings of the Criminal Court and
automatically allow the discharge grievance. As part of my analysis, I accepted and
agreed with the decision of arbitrator Etherington in Sault Area Hospital, supra.
[40] In Sault Area Hospital, arbitrator Etherington said the following, in part at
paragraph 31:
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31 In addition, the Court Of Appeal noted that the only judicial finding
of importance in the criminal court is whether the case was proven
beyond a reasonable doubt. That is the mandate given to the criminal
trial judge and the lens through which all facts are reviewed and
findings made. Any findings by the criminal trial judge must be
understood in that context. As the Ontario Court of Appeal had
previously explained in R. V. M. (W.) (2007), 87 O.R. (3d)425 (Ont.
C.A.), an acquittal of the wrongfully convicted individual reestablishes
that person's legal innocence but does not address factual innocence.
It noted that a trial judge may have expressed in clear and strong
terms the reasons for an acquittal in the reasons for judgment but the
criminal court cannot make a formal legal declaration of an accused
person's factual innocence.
[41] In the instant matter, the parties are in agreement that my finding at the discharge
hearing was that the grievor had not acted in good faith in the performance of his
duties as an employee. Deferring on this issue of indemnity to the trial judge’s
reasons for the finding of not guilty, as required by COR 14.1.2, in no way
derogates from my conclusion to the contrary, reached on a different standard and
for different purposes. It simply entitles the grievor to indemnification. My
jurisdiction to interpret and apply Article 14.1.2 is to determine whether the grievor
was found not guilty by the Criminal Court because of acts done in good faith in the
performance of his duties as an employee. On the face of the Court record he was
and is thereby entitled to indemnity for legal costs in doing so.
[42] That is the intention of the parties based on the language that they have chosen. In
my view, that is not necessarily an unreasonable approach to take. The purpose of
the article is to indemnify the member for costs incurred in successfully defending
themselves in the Criminal Court. The grievor did successfully defend himself from
the charges brought against him. His success in being found not guilty was, in part,
because of the trial judge’s conclusion that his acts were done in good faith.
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[43] For the reasons set out above, the grievance is allowed.
Dated at Toronto, Ontario this 11th day of April 2017.
Daniel Harris, Vice-Chair