HomeMy WebLinkAbout2003-1520.Gillis et al.05-02-07 Decision [Amended]
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2003-0248-0179
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(GIllIs et al) Union
- and -
The Crown In RIght of Ontano
(Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer
BEFORE RandI H. Abramsky Vice-Chair
FOR THE UNION Ed Holmes
Ryder Wnght, Blair & Doyle
BarrIsters and SOlICItorS
FOR THE EMPLOYER Sean Kearney
Semor Counsel
Management Board Secretanat
HEARING September 20 2004 & January 11 2005
2
DeCISIon
The Umon has moved for an Indefimte adJournment of thIS arbItratIOn pendIng the
outcome of a related cnmInal matter The Employer has opposed that motIOn. ThIS Award
addresses the Umon' s motIOn.
Facts
There are approxImately 50 gnevances before the Board, filed by ten CorrectIOnal
Officers, as a result of dIscIplIne Imposed on them by the Mimstry of CorrectIOnal ServIces In
July 2003 five of the gnevors were dIscharged, and three were suspended In regard to an alleged
exceSSIve use of force IncIdent agaInst an Inmate on October 18 2002 In addItIOn, two other
gnevors were suspended for a related IncIdent on May 23 2003 InvolvIng alleged threats made
to a matenal wItness to the October 18 2002 IncIdent. Subsequently on Apnl 16 2004
cnmInal charges - specIfically assault causIng bodIly harm - were laid agaInst five of the
gnevors for the October 18 2002 IncIdent. On May 30 2004 charges were also laid agaInst the
two gnevors Involved In the May 23 2003 IncIdent, specIfically for uttenng death threats and
attemptIng to obstruct JustIce The Umon has now moved for an Indefimte adJournment of these
proceedIngs, pendIng the outcome of the cnmInal tnal related to the October 18 2002 IncIdent.
In regard to the second cnmInal tnal, whIch, by agreement, wIll take place after the alleged
assault tnal, the Umon advIsed that It was not seekIng an adJournment pendIng that matter at thIS
tIme Instead, counsel advIsed that "[w]e wIll reVIsIt that after the tnal on the alleged assault."
The Employer opposes the Umon' s request.
3
The first day of heanng In thIS matter was on August 26 2004 and at that heanng the
partIes set eleven addItIOnal heanng dates On September 20 2004 the second day of heanng,
the Umon moved to adJourn the heanng, pendIng completIOn of the related cnmInal proceedIngs
That motIOn was based, In part, on the ball condItIOns Imposed on the gnevors The ball
condItIOns reqUIre a number of the gnevors to "abstaIn from commumcatIng dIrectly or
IndIrectly wIth persons mentIOn In attached AppendIx A" "from gOIng wIthIn 500 metres of the
resIdences of the persons mentIOned In attached AppendIx A" and "not to be wIthIn 500 metres
of any Mimstry of CorrectIOnal FacIlIty In Ontano except for the reason of Immediate
employment" On September 21 2004 an Order was Issued, requestIng the gnevors and counsel
for the Umon to dISCUSS seekIng an amendment to the ball condItIOns wIth the gnevors' cnmInal
counsel The Order stated that the Issue would then be revIsIted, and "[a]t that tIme, the other
arguments raised by the Umon wIll also be consIdered "
On January 11 2005 counsel for the Umon advIsed that two of the gnevors' cnmInal
lawyers would not advIse theIr clIents to seek a change In the ball condItIOns, and agaIn moved to
adJ ourn these proceedIngs He also advIsed that a prelImInary heanng In regard to the October
18 2002 IncIdent was scheduled for Apnl 2005 wIth some of the dates conflIctIng WIth heanng
dates In thIS matter The Employer agreed to adJourn the Apnl heanng dates, but opposed the
Umon's blanket request for an adJournment.
Decision
For all of the reasons set forth below I have decIded to deny the Umon's request for an
Indefimte adJournment.
4
The Umon contends that In lIght of SectIOn 48 1(1) of the Crown Employees Collective
Bargaining Act (CECBA) and the Supreme Court of Canada's decIsIOns In City of Toronto and
C UP.E. Local 79 (2003) S C C 63 and OPSEU and The Queen in Right of Ontario (2003)
232 D.L.R. (4th) 442 (S C C), that the adJournment should be granted. It asserts that a
convIctIOn In the cnmInal proceedIng IS now bIndIng on thIS board, and should the arbItratIOn
proceed It would create the nsk of InCOnsIstent Judgements, be an IneffiCIent use of resources,
and potentIally lead to confusIOn In the publIc and among the gnevors
SectIOn 48 1(1) of CECBA, whIch was added to the legIslatIOn In 2001 provIdes as
follows
48.1(1) Criminal conviction or discharge considered conclusive evidence.
If a Crown employee IS convIcted or dIscharged of an offence under the CnmInal
Code (Canada) In respect of an act or omISSIOn that results In dIscIplIne or
dIsmIssal and the dIscIplIne or dIsmIssal becomes the subJect matter of a
gnevance before the Gnevance Settlement Board, proof of the employee's
convIctIOn or dIscharge shall, after the tIme for an appeal has expIred or If an
appeal was taken, It was dIsmIssed and no further appeal IS avaIlable, be taken by
the Gnevance Settlement Board as conclusIve eVIdence that the employee
commItted the act or omISSIOn.
(2) Adjournment pending appeal to be granted.
If an adJournment of a gnevance IS requested pendIng an appeal of a convIctIOn or
a dIscharge mentIOned In subsectIOn (1) the Gnevance Settlement Board shall
grant the adJ ournment.
As stated by the Supreme Court of Canada In OPSEU and The Queen in Right of Ontario supra,
thIS provIsIOn "renders the convIctIOn conclusIve of the fact that the employee commItted the
cnme " In City of Toronto and CUPE, Local 79 supra, and the OPSEU case, the Supreme
Court of Canada ordered a sImIlar outcome JudIcIally In those cases, the Court held that a board
of arbItratIOn may not relItIgate a cnmInal convIctIOn, for to do so would be an abuse of process
5
The Umon IS clearly correct when It argues that SectIOn 48 1(1) of CECBA and the
Supreme Court of Canada's recent decIsIOns create a "legal nexus" between the cnmInal tnal and
a related labour arbItratIOn. Whereas before, at a labour arbItratIOn, a cnmInal convIctIOn was
prima facie but not conclusIve eVIdence of the alleged wrongdoIng, and rebuttal eVIdence could
be tendered. That IS no longer the case Now "[t]he arbItrator [is] reqUIred as a matter of law to
gIve full effect to the convIctIOn." City of Toronto supra at par 58 ThIS change, although very
sIgmficant, does not compel an adJournment of the labour arbItratIOn - at least not under the
specIfic facts of thIS case
In Re Maple Villa Long Term Care Centre and Service Employees International Union,
Local 532 (2004) 123 LAC (4th) 355 at 383 (DavIe) the arbItrator accepted that the Court's
rulIng In the City of Toronto "Impacts upon the Issue of whether or not an adJ ournment should be
granted" but she determIned that the decIsIOn of whether or not to grant an adJournment was stIll
one of "balancIng the competIng Interests of the partIes" As she concluded at p 384
The effect of the Supreme Court's Judgment In City of Toronto and the nexus
between the cnmInal and arbItral process created by that decIsIOn, IS therefore a
factor whIch the arbItrator may consIder In decIdIng an adJournment request.
That factor however IS not the only factor to consIder and, gIven partIcular facts
and cIrcumstances, may not be the predomInant factor SImply put, the nexus
whIch may eXIst between the two processes because of the Supreme Court's
decIsIOn does not dIctate that an adJournment should always be granted. Whether
or not to grant an adJournment contInues to depend on the facts and practIcalItIes
of the sItuatIOn. The Supreme Court's decIsIOn does not say that gnevance
arbItratIOn must be deferred or put on hold untIl the cnmInal proceedIngs have
been concluded.
In thIS case, a number of factors lead me to rule agaInst the Umon's request for an
Indefimte adJournment. FIrst, and very Importantly there IS no tnal date set. The prelImInary
heanng IS scheduled for Apnl If the case then proceeds, gIven the large number of defendants
and the schedules of three defense counsel, the Crown Attorney and the Court, a tnal date IS
6
lIkely to be many months away and If appeals are consIdered, the delay may well be measured
In years What the Umon IS askIng for IS an indefinite adJournment - one lIkely to be very
lengthy
In a number of the case cIted whIch allowed for an adJournment, the tnal date had already
been set and the length of the adJournment was known and measured In months For example, In
Toronto District School Board and CUPE, Local 4400 (January 9 2001 unreported decIsIOn of
ArbItrator Tims) the arbItrator ruled that an addItIOnal SIX month adJournment "wIll not In Itself
JeopardIze the expedItIOus resolutIOn of thIS case at arbItratIOn." In OPSEU (Millel) andMinistlY
of Correctional Services GSB No 0008/90 (1990) (Venty), the Board granted a request to
adJourn In regard to a cnmInal tnal scheduled for 2 1Iz months away findIng that It was "not an
InordInate delay" In OBLEU (McWilliams) and LCBO GSB No 860/97 (1997) (FIsher) the
Board adJourned the heanng where the cnmInal tnal was scheduled for the folloWIng month.
In contrast, where the length of the requested adJournment IS unknown, arbItrators have
been very concerned about delay In Re McMaster University and Service Employees
International Union, Local 532 (1993), 33 LAC (4th) 33 (Brunner) the arbItrator demed the
umon's request for an adJournment where no tnal date had been set. The arbItrator concluded at
p 35 that "It cannot be said wIth any certaInty when the cnmInal charges wIll be heard and the
UmversIty has a legItImate Interest In havIng the matter dealt wIth expedItIOusly" LIkewIse, In
Re Maple Villa Long Term Care Centre supra at pp 384-85 the date of the cnmInal tnal- and
therefore the length of the requested adJournment - was unknown. The arbItrator stated
[T]hIS IS not a case where the outcome of the cnmInal process IS lIkely to be
determIned over the next several weeks or even months If that were the case, a
more cautIOus approach and a delay In commenCIng the arbItratIOn mIght be
warranted In order to aVOId the possIbIlIty of InCOnsIstent decIsIOns and the
ImpractIcal consequences whIch could anse and to whIch the Supreme Court
7
referred, If for example, the gnevor was reInstated to employment yet
subsequently convIcted of the assault.
Where, as here, a sIgmficant length of tIme wIll elapse before the dISposItIOn of
cnmInal charges (leavIng aSIde entIrely the matter of potentIal appeals to whIch
counsel referred) such a cautIOus approach IS less attractIve, especIally when It IS
ImpOSSIble to predIct the outcome of eIther process In the face of a lengthy delay
before the conclusIOn of the cnmInal process, and gIven the uncertaInty In the
results of eIther process, to delay the arbItratIOn process to aWait the uncertaIn
conclusIOn on the cnmInal process IS less appealIng and less compellIng.
In thIS case, If the case proceeds after the prelImInary heanng, the potentIal delay to the
arbItratIOn heanng may be very substantIal Yet the collectIve agreement, and the case law
recogmze that the gnevance arbItratIOn process should be expedItIOus ArtIcle 22 1 of the
collectIve agreement states that It "IS the Intent of thIS Agreement to adJust as qUIckly as possIble
any complaInts or dIfferences between the partIes ansIng from the alleged contraventIOn of thIS
Agreement." The Board has also recogmzed the "need for expedItIOus dISposItIOn of a
dIsmIssal case" OPSEU (Miller) supra at p 4 ExpedItIOn IS not Just an Interest of the gnevor
or the Umon, It IS an Interest of the Employer as well AccordIngly where the adJournment
sought IS for an uncertaIn and lIkely very lengthy penod of tIme, the Impact on the Employer's
nght to an expedItIOus heanng must be consIdered
Further a lengthy delay could cause real preJudIce to the Employer In the form of
ongOIng lIabIlIty If the gnevors are successful In the end. In thIS case, the Umon IS askIng for an
adJournment wIthout condItIOns (i.e wIthout any forfeIture of potentIal back pay) If the matter
IS delayed for many months, If not years, before It can even start, the Employer may face
sIgmficant addItIOnal lIabIlIty a factor whIch also must be consIdered In thIS adJournment
request. Although It IS true as the Umon suggests, that the gnevors have a duty to mItIgate theIr
losses, that duty does not negate the potentIal for substantIal lIabIlIty for the Employer The delay
8
In thIS case has already been substantIal, and the adJournment would Increase It for an Indefimte
and substantIal addItIOnal penod
In thIS regard, I do not conclude that the delay that has already occurred negates the
Employer's Interest In expedItIOn. I cannot conclude as in Re Shffit, Baking Company and
B C T Local 284 (1998), 70 L.AC (4th) 379 389 (Bendel) that all expectatIOn of expedIency
has "already been lost." Rather what IS clear IS that allowIng the Indefimte adJournment sought
would substantIally delay thIS proceedIng.
Also very sIgmficant IS the fact that the cnmInal tnal, even If It results In a convIctIOn of
the charged gnevors, would not be dISposItIve of all of the matters In thIS case That IS because a
number of the gnevors have not been cnmInally charged The cnmInal tnal wIll not decIde theIr
actIOns Consequently there has to be an arbItratIOn heanng as to the events of October 18 2002
- no matter what the result of the cnmInal tnal turns out to be For thIS reason, the cnmInal tnal
wIll not, under any scenano obvIate the need for a heanng In my VIew thIS IS a sIgmficant
dIStIngUIshIng factor from many of the cases that allow an adJournment and sIgmficantly
undermInes any benefit In terms shortemng the heanng that mIght result from aWaitIng the
cnmInal tnal
In addItIOn, the dIscIplIne was not Just Imposed for the alleged exceSSIve use of force It
was also Imposed for matters not covered by the cnmInal charges For example It IS also alleged
that the gnevors faIled to report what occurred and "were dIshonest and deceItful In filIng"
reports and respondIng to Mimstry InVestIgators, Issues that would not be dealt wIth at the
cnmInal tnal For thIS reason as well, an arbItratIOn heanng would have to be held, regardless of
the outcome of the cnmInal proceedIng.
9
Further both partIes have taken the posItIOn that, regardless of outcome of the cnmInal
tnal, an arbItratIOn heanng would stIll need to be held. If there IS an acqUIttal, the Employer wIll
stIll take the posItIOn that, under the cIvIl standard of proof, the gnevors engaged In exceSSIve
use of force and that It had Just cause to Impose the dIscIplIne It Imposed. If there IS a
convIctIOn, the Umon wIll argue that the penalty of dIscharge, under all of the cIrcumstances, IS
stIll exceSSIve OPSEU (Sammy et al.) and Ministry of Community Safety and Correctional
Services (2004), GSB No 2001-0224 et al (Harns) AgaIn, In thIS sItuatIOn, the utIlIty gaIned by
aWaitIng the outcome of the cnmInal tnal would be mImmIzed.
Where the basIs of an employee's dIscharge IS the fact that there has been a cnmInal
convIctIOn or a cnmInal InVestIgatIOn, It may be appropnate to adJourn the arbItratIOn heanng.
In that sItuatIOn, the appropnateness of the dIscharge wIll depend on the outcome of the cnmInal
tnal That IS not the sItuatIOn here The Employer dId not rely on the cnmInal InVestIgatIOn or a
cnmInal convIctIOn to Impose dIscIplIne The dIscIplIne Imposed was based on the Employer's
own InVestIgatIOn and substantIally preceded the laYIng of cnmInal charges ThIS fact also
dIstIngUIshes thIS case from the sItuatIOn In Re Toronto District School Board, supra where the
employer relIed on the cnmInal InVestIgatIOn In ItS decISIOn to dIscIplIne the gnevor
The Umon also relIes on SectIOn 48 1(2) of CECBA That provIsIOn states
48.1(2) Adjournment pending appeal to be granted.
If an adJournment of a gnevance IS requested pendIng an appeal of a convIctIOn or a dIscharge
mentIOned In subsectIOn (1) the Gnevance Settlement Board shall grant the adJournment.
10
The Umon asserts that thIS provIsIOn presupposes an adJournment dunng the tnal and assumes
that the Board has not yet had a heanng. The Umon submIts that thIS IS the only way to read thIS
provIsIOn.
With respect, I cannot agree If SectIOn 48 1(2) was meant to reqUIre an adJournment In
all cases, It could have easIly so provIded. Instead, the provIsIOn IS far more lImIted. Further
SectIOn 48 1(2) may pertaIn to the sItuatIOn where an employee IS dIscharged because of a
cnmInal convIctIOn, as occurred In City of Toronto and CUPE, supra, as well as In the case of
Mr WhIte In OPSEU and The Queen in Right of Ontario supra Where that occurs and a
gnevance IS filed and the convIctIOn IS appealed, SectIOn 48 1(2) reqUIres that the GSB adJourn
ItS heanng. In those cIrcumstances, where the dIscharge IS based on the cnmInal convIctIOn and
the convIctIOn IS appealed, reqUITIng an adJ ournment of the arbItratIOn makes sense
Consequently I cannot conclude that SectIOn 48 1(2) presupposes that the GSB must always
adJourn ItS proceedIngs
There IS, of course, the possIbIlIty of InCOnsIstent results If the arbItratIOn process finds In
favour of the gnevors, whIle the cnmInal charges are stIll pendIng. But as ArbItrator DavIe held
In Re Maple Villa Long Term Care Centre supra at p 387 "there are a vanety of alternatIves
open to the partIes and the arbItrator" IncludIng "to eIther defer the Issue of remedy for a penod
of tIme, or taIlor the remedy avaIlable, eIther temporanly pendIng the cnmInal case, or on a more
permanent basIs" In my VIew there are Indeed a number of possIbIlItIes to handle such an
event, such as a leave of absence wIth payor reInstatement to a dIfferent posItIOn, pendIng the
outcome of the cnmInal tnal Therefore, the possIbIlIty of InCOnsIstent results IS not, under the
specIfic facts of thIS case, a sufficIent basIs to grant an Indefimte adJournment.
11
In terms of potentIal confusIOn to the gnevors If they have to testIfy In both proceedIngs
at the same tIme, or close In tIme, that matter may be dealt wIth If the sItuatIOn anses through
short adJ ournments, If reqUIred. AgaIn, It IS not a basIs to adJ ourn the heanng Indefimtely
I further conclude that the gnevors' nghts In relatIOn to the cnmInal tnal would not be
Infnnged by proceedIng wIth the arbItratIOn. SectIOn 13 of the CanadIan Charter of Rights and
Freedoms, provIdes as follows
13 A wItness who testIfies In any proceedIngs has the nght not to have any IncnmInatIng
eVIdence so gIven used to IncnmInate that wItness In any other proceedIngs, except In a
prosecutIOn for perJury or for the gIVIng of contradIctory eVIdence
ThIS provIsIOn has led arbItrators to conclude that an IndIVIdual's nghts at the cnmInal tnal
would not be preJudIced by what transpIres at arbItratIOn. Re McMaster University supra, Re
Toronto District School Board, supra. ThIS Board has also declIned to order adJournments based
on general concerns that, for tactIcal reasons, to proceed wIth the arbItratIOn whIle the cnmInal
tnal was pendIng would be dIsadvantageous to the gnevors. OPSEU (Beard) and Ministry of
Community and Social Services (1989), GSB No 371/89 at p 14 (Gorsky)
In regard to the ball condItIOns, I conclude, as I dId In the earlIer Order that they "create
sIgmficant logIstIcal problems for [counsel's] commumcatIOns at the heanng wIth the gnevors "
It wIll be cumbersome and tIme-cOnsumIng for counsel to have to dISCUSS matters that anse
IndIVIdually wIth the gnevors, Instead of as a group but I see no basIs to conclude that the ball
condItIOns would preclude a fair heanng. The ball condItIOns do not preclude the gnevors from
assocIatIng, i e they may all attend the heanng and partIcIpate, albeIt IndIVIdually Further the
gnevors, In conJunctIOn wIth theIr defense counsel, may decIde to request a change to those
condItIOns In lIght of the rulIng In thIS case that the arbItratIOn wIll proceed.
12
The case law reveals a number of dIfferent standards used by arbItrators In consIdenng a
request for an adJ ournment In lIght of related cnmInal proceedIngs In Re University of Western
Ontario and CUPE, Local 2361 (1988) 35 LAC (3rd) 29 41 (DIssanayake) OPSEU (Beard)
supra, and OPSEU (Maurice) and Ministry of Community and Social Services (1990) GSB No
151/99 (Roberts) "exceptIOnal cIrcumstances" were reqUIred before the arbItratIOn would be
adJourned pendIng the dISposItIOn of a related cnmInal charge In Re Sh~ Baking Company
supra, the standard used was whether It makes "good sense" to adJourn the heanng. Others have
applIed a "balancIng" standard. Re Toronto District School Board, supra Re Maple Villa Long
Term Care Centre supra, OPSEU (Millel) supra In my VIew under any of these standards, In
lIght of the specIfic facts of thIS case, I cannot grant the Umon's request for an Indefimte
adJ ournment.
I do find It appropnate, however to Wait untIl the conclusIOn of the prelImInary heanng.
The partIes agreed to adJourn the Apnl heanng dates, and I find that, In order to provIde the court
tIme to consIder the matter the May heanng dates should be adJourned as well The heanng
dates of June 21 and June 22 wIll remaIn. AddItIOnal heanng dates should be arranged by the
partIes In conJunctIOn wIth the Board.
13
Conclusion
1 The Umon's motIOn for an Indefimte adJournment IS demed.
2 To gIve the Court tIme to consIder the prelImInary heanng Issues, the May heanng dates are
adJ ourned. The heanng dates of June 21 and June 22 wIll remaIn, and the partIes should
arrange addItIOnal heanng dates through the GSB
Issued at Toronto thIS ih day of February 2005
,
,bnA1tEl