Loading...
HomeMy WebLinkAbout1995-0810WHITE97_07_07 owrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONrARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (416) 326-1396 GSB # 810/95 OPSEU # 95D080 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (White) Grievor - and - the Crown in Right of ontario (Ministry of community & social Services) Employer BEFORE N. Dissanayake Vice-Chair FOR THE C Flood GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE C Samaras EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING May 16, 1997 June 2, 1997 2 PRELIMINARY DECISION By decision dated October 15, 1996 the Board held that a certificate of conviction for the sexual assault of a female resident would not be received as conclusive or prima facie evidence of the fact that the sexual assault occurred Upon Judicial Review, the Ontario Divisional Court [Reported at (1997) 32 o R (3d) 572] held that "In the particular circumstances of this case the Board ought to have made it clear that the conviction would be received and stand as prima facie evidence of the sexual assaultH and returned the matter to the Board The court expressly declined to rule "as to how the evidence at the hearing will unfold or as to the order to evidenceH When the hearing resumed before the Board, the parties were in disagreement as to the scope of the evidence that may be adduced by the union in order to rebut the prima facie evidence that arose from the certificate of conviction The employer's position was that the union should be restricted to "fresh evidenceH, evidence that was not available and evidence that would not have been available to the grievor if he acted with due diligence at the time of the trial The union's position essentially was that no restriction should be placed on the union as to the scope of the evidence it may lead in order to rebut the prima facie evidence arising out of the conviction Employer counsel also made reference to "estoppelH and submitted that "it could arguably apply here because the union could be described as a privy of the grievorH As the Board noted at p 26 of its decision of October 15, 1996 , it was common ground between the parties during that hearing that estoppel could not apply here since the parties at the trial and before this board were different Thus, the employer appears to be 3 changing its position in that regard in this hearing In any event, the Board finds that estoppel cannot have any application here The union is the party before the Board It had no standing or interest in the criminal trial It cannot be treated as a privy of the grievor at the trial as the employer suggests The main thrust of the employer's position was that allowing the grievor to lead evidence which was either available or ought to have been available with due diligence at the time of the trial, would result in an "Abuse of process", in that it would lead to a relitigation of the same issues decided by the courts Counsel submitted that the courts decided on the credibility of the informant, Mr Withers Now the grievor was seeking a second opining from the Board on the same issue According to him the grievor should not be allowed to do so, except to the extent that it wishes to rely on fresh evidence It is significant to note that ln judicial review of the Board's earlier award in this matter, the Divisional Court's only finding was to the effect that the conviction should have been received as "prima facie evidence" of the sexual assault in question The court was invited to make a finding that if the grievor was allowed to relitigate the same issue it would result in an abuse of process, but at p 4 the court explicitly stated that it would not deal with that issue Employer counsel referred the Board to a number of cases where the courts had used a "fresh evidence test" to determine the scope of rebuttal evidence permissible in a civil action following a conviction in criminal 4 courts Particular reliance was placed on Re Hunter v Chief Constable of the West Midlands Police (1982) 19 AC (529) (House of Lords) and Re Del Core and Ontario College of Pharmacists (1985) 51 0 R (2d) 1 The Divisional Court has made a clear and authoritative statement that this Board should have accepted the conviction as prima facie evidence that the grievor committed the sexual assault in question The effect of such prima facie evidence was considered by Blair J A in Re Del Core at p 21-22 Since evidence of prior convictions affords only prima facie proof of guilt it follows that its effect may be countered in a variety of ways For example, the conviction may be challenged or its effect mi tigated by explanation of the circumstances surrounding the conviction It is both unnecessary and imprudent to attempt any exhaustive enumeration The law of Ontario is only now emerging from the long shadow cast over it by the decision in Hollington v Hewthorn, supra It would be highly undesirable to replace this arbitrary rule by prescribing equally rigid rules to replace it The law should remain flexible to permit its application to the varying circumstances of particular cases The right to challenge a conviction is subject to an important qualification A convicted person cannot attempt to prove that the conviction was wrong in circumstances where it wold constitute an abuse of process to do so Demeter, supra, and Hunter v Chief Constable of West Midlands Police, (1982) A C 529 Courts have rejected attempts to relitigate the very issues dealt with at a criminal trial where the civil proceedings were perceived to be a collateral attack on the criminal conviction The ambit of this qualification remains to be determined in future cases Some confusion appears to have arisen between the rule that evidence of prior convictions is admissible and the doctrine of abuse of process This appears from the passage quoted above from the - 5 McArthur case and in other dicta It was argued that such evidence could only be admitted where it would be an abuse of process to challenge the conviction This is not so The admissibility of such evidence is not dependent on a determination that it would be an abuse of process to attack the conviction As I have explained above, evidence of prior convictions is admissible in all cases, where it is relevant Abuse of process doctrine can only be invoked, in particular cases, to prohibit rebuttal of such evidence What Del Core makes absolutely clear is that evidence of a prior conviction only constitutes prima facie proof, as opposed to conclusive proof, of the fact of guilt Thus at p 21 Blair J A stated I agree with my brother Houlden that such evidence constitutes prima facie and not conclusive proof of the fact of guilt in civil proceedings The prior conviction must of course be relevant to the subsequent proceedings Its weight and significance will depend on the circumstances of each case The Court in Del Core recognizes that as a general rule the prima facie evidence resulting from a conviction is rebuttable before a .,. subsequent tribunal The only qualification placed on that general principle is that "A convicted person cannot attempt to prove that the conviction was wrong, In circumstances where it would constitute an abuse of process to do so" (emphasis added) According to the court, the effect of invoking the doctrine of abuse of process is to "prohibit rebuttal of such evidence" This is also recognized in sopinka, Lederman and Bryant, The Law of Evidence in Canada (Butterworths) at p 1042 where the authors write Demeter decided that a criminal conviction is admissible as prima facie proof that the party against whom the conviction was rendered committed the offence That party can rebut this finding, but only -------------- 6 so long as it would not be an abuse of proves for it to do so On a careful reading of the case law it is my conclusion that the court decisions do not stand for the proposition that in every case where a person attempts to relitigate the issue of whether he was guilty of the offence, abuse of process results If that was the case, the Courts would have simply stated that in every case where there is a conviction it is an abuse of process to attempt to challenge the conviction in a subsequent civil proceeding and therefore that such an attempt would not be allowed This would be tantamount, in effect, to a ruling that a conviction stands as conclusive proof of the offence The courts have not made such a ruling Instead, the courts have held that an attempt to prove that the conviction is wrong will not be permitted only in circumstances where it would be an abuse of process to do so That is a clear recognition that in some circumstances, an attempt to challenge a conviction may not constitute an abuse of process The Board recognizes that the employer here is not seeking to prevent the grievor altogether from challenging the finding of guilt Rather it is only attempting to put some restrictions on his ability to do so by limiting him to "fresh evidence" However, the courts, in the cases relied on by the employer have not mandated any restrictions in the absence of circumstances resulting in an abuse of process In Hunter, where the House of Lords spoke of the "fresh evidence" concept, it arose out of the doctrine of abuse of process 7 The Divisional Court decision in this matter itself, in my vi ew , impliedly recognizes that the reli tigation of the issue of whether the grievor committed the offence in question per se does necessarily lead to an abuse of process It must be recalled that the employer's primary position before the Board, as well as before the Divisional Court, was that the conviction should be accepted as conclusive proof of the fact that the grievor committed the offence It was only in the alternative that it argued that the conviction should be received as prima facie proof The Board rejected both arguments Upon judicial review the court did not quash the Board's ruling that the conviction does not constitute conclusive proof Clearly the grievor's position before the Board was, and still is, that he did not commit the sexual assault To that extent, he is attempting to relitigate the very same issue decided at the trial The Divisional Court did not find that objectionable per se in that it did not rule that he could not do so Rather, the court has allowed him to relitigate the issue subject to the condition that the conviction will be received and will stand as prima facie evidence of the fact that the grievor committed the offence Unless the grievor is able to rebut the prima facie evidence against him, the Board will be entitled to rely on such evidence to conclude that he committed the sexual assault in question The grievor's right to rebut the prima facie evidence should be restricted only if it can be concluded that allowing him full right of rebuttal would lead to an abuse of process Therefore it must be determined whether in the circumstances of this particular case there would be such an abuse of process Since the Divisional Court declined to make any ruling as to whether there was an 8 abuse of process in this case, it falls upon the Board to make that determination It is evident from the case law that one of the factors the courts have considered in concluding that there was an abuse of process was the fact that the person who had been convicted had himself initiated a collateral attack on the result of the criminal trial Thus in Demeter v British Pacific Life Insurance Co , (1984) 48 0 R (2d) 266 (Ont Court of Appeal) at p 268 MacKinnon A C J 0 stated We are equally of the view that the use of a civil action to initiate a collateral attack on a final decision of a criminal court of competent jurisdiction in an attempt to reli tigate an issue already tried, is an abuse of the process of the court In Hunter (supra) also the person who had been convicted of the offence had initiated the subsequent action In contrast in Q and Q v Minto Management Ltd , (1984) 46 0 R (2d) 757 (Ont High ct Of Justice) at p 579-60, Steele J Distinguished Demeter and Hunter Both Demeter and Hunter differ from the present action in that in the present action it is the victim of the criminal offence that brings the action in the civil courts claiming damages for injuries suffered during the criminal attack She is not abusing the process of the court and is entitled to bring the action Having commenced the action, she must, of necessity, be prepared to meet the defences that may be set up, and one of them is that the defendant Halliday did not commit the rape The plaintiff has asked me to make an order prohibiting Halliday, or the other defendants, from introducing this defence without further leave of the court after proof of new evidence that was not before the criminal court on the grounds that it would be unfair to require the plaintiff to have witnesses available to be called to re-prove the rape The risk is that, because of lack of witnesses or other causes, it may be that the court ~_.- - 9 may ultimately come to a different conclusion than that of the criminal court as to who committed the rape, and that there should not be differing decisions on the same issue They submit that it would be contrary to public policy and an injustice to allow Halliday to raise this defence I cannot say that the defendants are abusing the court process They did not commence this action They are merely defending themselves, and I refuse to make an order excluding the defence unless and until further evidence is produced I realize that this may give rise to problems and additional witnesses being required to stand by for the trial At p 760 the Court further stated The decision of a criminal court cannot constitute a conclusive presumption that cannot be rebutted in a civil court Where a convicted criminal, as plaintiff, brings a civil action, it may be an abuse of the process of the court Where the victim brings the action against the convicted criminal, nothing stops the defendant from raising the defence that he did not do it The conviction is not conclusive but is prima facie evidence that the defendant may rebut He mayor may not give evidence at trial and the plaintiff should not have to reprove the entire offence in the first instance However, the plaintiff must prove the extent of her injuries and prove her damages She will be subject to cross- examination To totally tie the hands of the defendants would be unfair The weight given to evidence that the defendants may call to show that Halliday did not commit the offence, is for the court to determine at the trial In coming to its conclusion the court can regard the certificate of conviction in the criminal court If the defendants introduce evidence to show that Halliday was not the person who committed the offence, subj ect to the direction of the trial judge, the plaintiffs have the right to call whatever reply evidence they may deem necessary In tl1e present case, it is not the grievor who is initiating a collateral attack on the validity of the conviction It is the employer 10 who has discharged the grievor alleging just cause and the grievor is defending himself Moreover, it is clear on the evidence that at the time of the trial there was no "lis pendens" between the grievor and the employer The grievor had been initially suspended with pay and then transferred by the employer to a landscaping position with no resident contact He suffered no loss of payor any change of classification as a result of these actions of the employer and he had not grieved either the suspension with payor the transfer In other words, at the time of the trial there was no grievance or other litigation between him and the employer As the Board noted in its decision at p 25, the employer had not given any undertaking to the grievor that the result of the criminal trial, whether it be one of guilt or acquittal, would be treated as binding on the employer It was in this context that the grievor faced the criminal trial While he had alleged throughout that the informant, Mr Withers had - concocted an untrue allegation and had specific motives for doing so, he did not take the stand to testify to these issues The decision to not testify was taken on the advice of the grievor's defence counsel As a result, the court and the jury did not get to hear the grievor's evidence, particularly as it related to the truthfulness of the allegatlons made by Mr Wlthers The employer submits that the grievor had his opportunity to testify, and having elected not to testify he must now live with the consequences The consequence of the trial was the conviction and the sentence that followed The Board would agree that the grievor must, subject to his 11 right to appeal, live with the conviction and the sentence He has not asked the court for a further opportunity to testify to prove his innocence Nor has he initiated an action to challenge the conviction The point, however is, that at the time the grievor elected to follow his defence counsel's advice not to testify, he had not been discharged The employer had not made any commitment, either that the grievor would be discharged in the event of a conviction or that his employment status would be fully restored in the event of an acquittal The loss of his employment was not necessarily a reasonably foreseeable consequence, in the absence of such an indication from the employer The grievor could not have known with any certainty, for example, whether in the event of a conviction, the employer would discharge him or restrict him permanently to jobs with no resident contact It is in this context that the grievor followed his counsel's advice, which presumably was designed to obtain the best result at the trial The discharge from his job came only after the end of trial Now the grievor has a further and new problem to worry about, ie He has been deprived of his livelihood Now he has decided to lead all of the evidence at his disposal in order to attempt to defend himself against the allegations and save his job, a concern which did not exist at the time of the trial In the particular context, the Board concludes that his change of strategy does not constitute an abuse of process There is a further consideration which supports a finding in favour of allowing the grievor a full right of defence in this case This, in the Board's view, is the single most compelllng reason agalnst a flnding of abuse of process here Under the Crown Employees Collective Bargaining Act 12 and under the collective agreement the parties to the grievance before the Board are the employer and the trade union It is the union and not the individual grievor, who is the party litigant before the Board The union has not had any opportunity whatsoever to carry out its statutory obligation to represent the grievor as one of its members It was not a party to the criminal trial and it would not have had any standing at the trial There is no evidence that it had any input or any role whatsoever to play in the criminal proceeding Now, before the Board, it is seeking to exercise its statutory right of representing the grievor against the allegations raised by the employer Is it an abuse of process to allow that? In these circumstance, I do not think so Indeed in my viewr to place any restrictions on the union's ability to adduce evidence to the best of its ability would be tantamount to binding the union to decisions made at the trial by defence counsel, who would not have had any responsibility relating to the grievor's employment and collective agreement rights, particularly considering that at the time the grievor had not been discharged Considering all of the circumstances of this case, in the Board's vi ew , considerations of unfairness to the grievor and the denial of the union's statutory right to represent the grievor for outweigh any possibility of an abuse of process Therefore the Board concludes that no restrictions should be placed on the scope of the evidence the union may call in its attempt to rebut the prima facie evidence that has resulted from the grievor's conviction in the criminal courts This hearing will continue on the appointed dates on that basis 13 Dated this 7th day of July, 1997 at Hamilton, Ontario ~eJ~ Nimal V Dissanayake Vice-Chairperson