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HomeMy WebLinkAbout1992-0491.Samaroo.99-05-25 ~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ~.. 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSfMfLE/TELECOPfE (416) 326-1396 GSB # 0491/94 OPSEU #94B842 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD .BETWEEN . Ontario PublIc ServIce Employees Umon (Samaroo) - Grievor - and - The Crown III RIght of Ontano (Mimstry of the SolIcItor General and CorrectIOnal ServIces) Employer BEFORE Owen V Gray Vice-ChaIr FOR THE Craig Flood GRIEVOR Counsel Koskie Minsky BarrIsters & SolIcItors FOR THE DavId Strang EMPLOYER Senior Counsel, Legal ServIces Branch Management Board Secretariat HEARINGS February 23 and 24, 1999 - '~ DECISION [1] My decIsIOn of September 15, 1999, dealt wIth certam prelImmary Issues raIsed by the employer concermng the eVIdentIary effect to be gIVen m these pro- ceedmgs to the results of proceedmgs taken agamst the grIevor m crImmal court. This decIsIOn addresses further Issues of that sort raIsed by the employer after the release of that decIsIOn. Background [2] The nature and hIstory of these ppoceedmgs up to ItS date were described m my decIsIon of September 15, 1999 I do not mtend to cover all that ground agam here ThIS decIsIOn should be read together WJ.th that one for a full appre- ciatIOn of the context. [3] BrIefly put, the grIevor was dIsmIssed from hIS employment as a correc- tIonal officer In May 1994 because the employer had concluded that 1 he had "engaged In sexual improprietIes" agamst five (5) female inmate offenders between the period of August 1993 and November 1993, 2. m doing so he had serIously breached the trust placed In hIm as a Peace/CorrectIOnal Officer; and, 3 he breached the securIty prOVISIOns of the InstitutIOn as outlmed m the Standing Orders by removing an mmate from a segregatIOn cell WIthout a back up Mr Samaroo then filed the grIevance now before me, allegIng that the dIsmIssal was unjust. [4] The female mmates WIth whom the grIevor was alleged to have "engaged In sexual ImprOprIetIes" were LIsa Watson, Tracy Armstrong, Susan MaIne, PatrICIa Mitchell and Annette Quibbel. When he was dIsmIssed, the grlevor was - 2 -- awaItIng trIal In crImInal court for sexual assault of Watson, Armstrong and MaIne DurIng the enSUIng crImInal trIal, the trIal Judge admItted, as "sImIlar fact" eVIdence, testImony by MItchell and Quibbel about assaults they alleged that the grIevor had commItted on them. The grIevor testIfied In hIs own defence He demed each of the allegatIOns and maIntaIned that they were the result of a conspIracy ImtIated by one of the complaInants The trIal Judge found that all five complaInants were credible and that theIr allegatIons were true He con VIcted the grIevor of sImple assault on Susan MaIne and sexual assault on LIsa Watson and Tracy Armstrong, and sentenced hIm to two months' mcarceratlOn followed by two years' probatIOn. The grIevor appealed the convIctIons. That ap- peal was dIsmIssed by a Judge of the OntarIo Court, General DIVISIOn (as It was then known) m late March 1996 [5] Mr Samaroo's grIevance first came on before me for hearIng on Decem ber 18, 1996 The course these proceedIngs took between then and February 1998 IS described In my decIsIOn of February 25, 1998 At least part of the delay m brIngIng thIS matter back on for hearmg resulted from the partIes' agreement to awaIt the outcome of an applIcatIOn to the DIVIsIOnal Court for JudICIal reVIew of the October 15, 1996 decIsIon of the Board (dIfferently constItuted) m Whz.te, 810/95 (DIssanayake) In that case, the Court later coneluded that the board was obhged to treat a grIevor's conVIctIOn as prz.ma facz.e eVIdence that he commItted the CrIme of whICh he had been convIcted. Re the Queen z.n Right of Ontarw as represented by the Mimster of Commun'ity and Socz.al Servz.ces and Ontarz.o Crown Employees Grz.evance Settlement Board et al. (1997), 32 O.R. (3d) 572 (hereafter referred to as "WhIte") [6] When the hearmg In thIS matter resumed on February 18, 1998, employer counsel took the posItIOn that thIS grIevor's convIctIOns should be treated as con elusIve, irrefutable proof, not merely prz.ma facz.e eVIdence, that he commItted all five of the alleged assaults for whICh he was dIsmIssed, not Just the three as- saults for whICh he was convIcted. The umon conceded that the three conVIctIons regIstered agamst the grIevor could be receIved as prz.ma facz.e eVIdence that he -.---- - 3 -- I ~ had commItted the mIsconduct for whICh he was convICted. the sexual assaults on LIsa Watson and Tracy Armstrong and the sImple assault on Susan Mame At the employer's request, the followmg Issues became the subject of a prehmmary determmatIOn. . whether Issue estoppel applIed so as to preclude the umon and the grlevor from dlsputmg m thIS proceedmg the cnmmal tnal Judge's findmgs of mIsconduct by the gnevor toward the five female mmates, that IS, the three mCldents of mIsconduct that were the subject of con vlctIOns plus the two mCldents of mIsconduct that were the subject of the "sImilar fact" eVIdence at the crImmal tnal, . whether the umon and the grIevor were or should be precluded from dlsputmg m thIS proceedmg the crlmmal tnal Judge's findmgs of mIS- conduct toward the five female mmates, that IS, the mIsconduct for whIch the grievor was convIcted and the mIsconduct whIch was the subject of the "sImilar fact" eVIdence at the cnmmal tnal, on the baSIS that dlsputmg those findmgs would be an'''i:lbuse of process", and . If the answer on the first two Issues was "no" WIth respect to the crlmmal tnal Judge's findmgs of mIsconduct toward Patncla Mitchell and Annette Quibbel, whether those findmgs, WhICh were not the subject of convICtIOns, could or should be receIved as pnma fac~e eVI dence of that mIsconduct. [7] There were two days of testimony on these prelImmary Issues, followed by a day of argument. For reasons set out m my deCISIon of September 15, 1998, I concluded that whIle the gnevor's conVIctIOns for sexual assaults on LIsa Watson and Tracy Armstrong and sImple assault on Susan Mame were pnma fac~e eVI dence that he had commItted those cnmes (as the umon had conceded), they were neIther proof nor eVIdence that he had sexually assaulted Patncla MItchell and Annette Quibbel, and further, that the grlevor was not precluded by doc 4 -- trmes of Issue estoppel or abuse of process from attemptmg to rebut the allega tIons of whICh the conVIctions dId constitute pnma facle eVIdence [8] In VIew of the Issues now before me, I note that one of the bases for em ployer counsel's argument that any attempt to rebut the result of the crImmal trIal would be an abuse of process m thIs case was that It appeared that the grIevor mIght have no eVIdence to offer m these proceedmgs that had not been put before the crImmal court. I made these observatIOns about that argument. [44] The employer argues that It IS an abuse of process for the grIevor to seek to prove that he dId not commIt the CrImes of whIch he was conVIcted if he has no fresh eVIdence or evidence of fraud or collusIOn to offer ThIS appears to confuse the abuse of process issue WIth another Issue that may well arise m this case but IS not yet properly before me for determination. [45] The remarks of Associate ChIef Justice MacKinnon in Demeter (quoted above at paragraph [37]) indIcate that ciVIl proceedings imtIated WIthout any apparent mterest m the outcome, with the intentIOn of challenging a prIor convictIOn, may not amount to an abuse of the process of the CIVIl court If the plamtIff offers fr~sh eVIdence or eVIdence of fraud or collusIOn that meets a certain standard. In other words, proceedmgs that would otherWise be an abuse of process may not be so if the plamtIff offers such eVIdence It does not follow that the failure to offer that kmd of fresh eVIdence or eVIdence of fraud or collusion transforms proceedings into an abuse of process If they would not otherWIse be so, havmg regard to the convIcted person's motIVatIOn in those proceedmgs I have found that the grievor's motivatIOn m challengmg the conViCtIOn does not brmg thiS matter within the ambIt of the abuse of process doctrine. In those CIrcumstances, the apparent absence of fresh evidence or evidence of fraud or collusIOn does not make these proceedmgs an abuse of process. [46] In White, the DIViSIOnal Court dIrected that the Board receive a certificate of conVIction as prima facie eVIdence that the grIevor had committed the CrIme of which he had been convIcted. The Court did not say what standard rebuttal evidence would have to meet m order to outweIgh the prima facie effect that publIc polIcy reqUired that the Board give to the certificate. If a grIevor attempts to rebut a certificate of conVIctIOn by presenting the same eVIdence that the crimmal court rejected m convictmg hIm, and nothmg more, would treatmg that eVIdence as haVIng shIfted the burden of persuasion back to the employer amount to domg what the DiviSIOnal Court has said the Board could not do - ignore a relevant determination made in a cnminal tnal? That questIOn will have to be answered in thIS case If, indeed, this grievor has no eVIdence to offer in rebuttal that the crImmal court dId not hear It IS not one of the prelimmary issues I undertook to address m this phase of the proceedmgs, however [9] When the hearmg resumed, the parties were In dIspute about the order In whIch they should present theIr eVIdence on the merits of the grIevance It ap- 5 -- peared that the delIvery of partIculars by the umon would assIst me In resolVIng that dIspute, and mIght lead the partIes to settle It. I ordered the delIvery of par tICulars by the umon, as well as further productIOn of documents by both partIes Mter the partIculars had been delIvered, counsel then actmg for the employer advIsed the board that the employer was prepared to present. ItS case first, WhICh was consIstent WIth the umon's pOSItIOn on thIS procedural Issue [10] On the next hearIng day, counsel for the employer SaId that It would not lead eVIdence WIth respect to ItS allegatIOns that the gnevor engaged In sexual ImpropnetIes agamst Annette Quibbel and Patncla MItchell, nor WIth respect to the alleged breach of securIty prOVISIOns referred to m the dIscharge letter of May 19, 1994. She reIterated that the employer was prepared to present ItS case first. With respect to the mIsconduct of WhICh the gnevor had been conVIcted, she saId the employer relIed on the conVICtIOns and the eVIdence led m connectIon WIth the prelImInary Issues, and dId not propose to lead any further eVIdence. Employer counsel called one WItness on the Issue of breach of trust. (The umon concedes that the mIsconduct of whIch the gnevor was ,conVIcted would constI- tute a breach of trust If the gr18vor had commItted It.) Employer counsel.also an nounced that she proposed to brmg a motIon, the detaIls and scope of whIch she had yet to work out, that raIsed but mIght not be lImIted to the Issue I had Iden- tIfied m paragraph 46 of my deCISIOn of September 15, 1998 The hearmg was then adJourned to further dates, on terms confirmed m my deCISIOn dated No- vember 30, 1999 The Employer's Motion (11] Thereafter, the employer changed counsel. In early February 1999 ItS new counsel delIvered a 5 page notIce of motIOn askIng that the board a) determme whether the eVIdence that the umon proposes to present m rebuttal of the pnma fac~e effect of the gnevor's conVIctIons "raIses a trIable Issue that the board ought not to rely on the cnmI- nal conVIctIOn;" 6 -- b) rule that It WIll not seek to reVlew a crlmmal convlCtlOn based on eVldence whlCh was presented at the cnmmal tnal or was, wIth reasonable dIlIgence, aVaIlable to be produced by the defence at the cnmmal tnal, c) rule that It "will not hear eVldence wIth respect to cnmmal conVlC , hons on the baSIS o~ alleged fresh eVIdence whlCh could not reason- able be expected tq have mfluenced the declslOn m the cnmmal tnal;" d) rule that no trIable ~ssue eXIsts WIth respect to the relIabIlIty of the conVlctlOns, e) dIsmISS the grIevance to the extent It purports to dIspute that the gnevor commItted sexual assaults on LIsa Watson and Tracy Arm strong and SImple a~sault o!l Susan Mame [12] Argument of the employer's motlOn occupIed two hearmg days I do not propose to reCIte here all of the ,submlsslOns put before me. It IS sufficIent for purposes of thIS decIslOn to IdentIfy the mam themes of theIr submISSIons and the authontles to whlCh they referred. , [13] I should first note that the umon's proposed rebuttal does not fit the hypo- thetIcal about whIch I spoke m paragraph 46 of my deCISIon of September 15, I 1998. It IS not "the same eVldence that the cnmmal court rejected m convlctmg hIm, and nothmg more" The UlllQn proposes to add to the ongmal defence Some of the added allegatlOns and proposed eVldence concern matters known to the gnevor or hIS counsel at the tImet of hIS tnal. For example, the umon will assert that the Internal InvestIgatlOn Umt report on whlCh the employer relIed m dlS- mlssmg the gnevor, and whICh was later produced to hIS counsel m connectlOn WIth the cnmmal proceedmgs but not put mto eVldence m the cnmmal trIal, IS mconslstent m vanous respects ~Ith eVldence tendered by the prosecutlon at the cnmmal trIal. The only "new" allegatlOn or eVIdence of whIch the grIevor claIms to have been unaware before or durmg the tnal and appeal IS that correctlOnal 7 -- .- staff members afterwards congratulated each other for theIr contributIOns to- wards the grIevor's dIsmIssal, WhICh had mcluded leakmg news of the charges agamst hIm to the press prIOr to hIS dIsmIssal. That allegatIOn, together WIth other facts known to the grIevor at the tIme of hIS trIal, are relIed on by the un IOn m support of the propOSItIOn that mformatIOn obtamed from certam staff members was and IS unrelIable because those staff members were bIased agamst the gnevor The umon does not allege that any such staff member testIfied m the crImmal trIal, but does allege, among other thmgs, that complamant Armstrong changed her allegatIOn about when the grIevor assaulted her after someone gave her mformatIOn about the tImmg of the grIevor bemg on her floor [14] Employer counsel argued that the allegatIOns and eVIdence on WhICh the umon proposes to rely to counter the eVIdentIary effect of the conVIctIOns were eIther put before the court that conVIcted the grIevor or were known to the gnevor or hIS counsel at that tIme or, m the case of the allegatIons agamst other staff members, could not have affected the outcome of the tnal m any event. Counsel submIts that to make a findmg contrary to that of the crImmal court on the baSIS of such eVIdence would amount to Ignormg the findmg of that court. ThIS, he submItted, would be contrary to the observatIOn of the DIVISIOnal Court m WhLte (32 O.R. (3d) at 573) that As a matter of important pubhc pohcy, It IS not permIssible for a board m the exerCIse of ItS dutIes simply to Ignore a relevant determmatIOn made m a crImmal trIal, sustamed by our Court of Appeal, as to the accused havmg commItted a certam kind of assault. [15] Employer counsel submItted that, as used by the court m Wlnie, the phrase "pnma facLe eVIdence" dId not mean a bIt of eVIdence that If unchallenged would carry the day but once challenged by other relevant eVIdence has no weIght, nor dId It sIgmfy eVIdence that merely shIfts the burden of proof or the burden of persuaSIOn. Counsel argued that It meant more than those thmgs, that once eVIdence of a conVICtIOn IS before an arbItrator, the Issue IS not what findmg the arbItrator should make about whether the conVIcted person's gUIlt but, rather, what authonty he or she should gIve to the findmg of the court. In that 8 - regard, he submItted that the arbItrator should not look at whether the deCISIOn was correct, that the arbItrator cannot entertam any suggestlon that the court faIled to do ItS Job properly and that the arbItrator cannot go behmd the conVIC tIon, because an arbItrator's domg so would undermme the cnmmal JustIce proc ess Accordmgly, he argued, It would be Improper for an arbItrator to entertam a rebuttal that dId not rest on eVIdence that was not and could not have been be- fore the crImmal court. [16] In addItIOn to authOrItIes mentIOned in my deCISIon of September 15, 1999, m the course of hIS argument employer counsel referred to Jorgensen v News Medla (Auckland) Llmlted [1969] N.Z.L.R. 961, Kennedy v Tomlmson at al. (1960) 20 D.L.R.(2d) 273 (Ont. C A.), Holt v MacMaster [1993] A.J No 501 (AHa. Q B), Kum v 238682 Alberta Llmlted, [1997] A.J No 115 (Alta Q B , Mas- ter), G v Chaykowskl [1998] A.J No. 725 (Alta Q B), appeal allowed [1998] A.J No 1239 (Alta C A.), Be a Sohcltor (The TImes 18 3 96) [1996] NLOR No 3208, Conroy Electromcs Inc. v Webster et al. (1989) 33 C.P C 279 (Ont. H C), Cana dwn Tire Corporatwn, Llmlted v Summers et aI. (1995), 23 O.R. (3d) 106 (ant Ct. Gen. DIV), Stolar v The Queen (1988), 40 C C C (3d) 1 (S C C) and R. v Palmer, [1980] 1 S C.R. 759 [17] Umon counsel took the pOSItIon that the employer's motIon should be dIsmIssed. He argued that "pnma facle eVIdence" does not have the meamng proposed by the employer, WhICh would gIve the conVICtIOns conclUSIVe effect. He also submItted that to grant the orders sought would be to refuse to entertam relevant and admIssible eVIdence on a matter m dIspute m these proceedmgs, that the arbItr,ator has the exclUSIve JUrISdIctIon to determme the dIspute sub- mItted to arbItratIOn, that It IS not the preferred practIce of arbItrators to make such orders and that m any event It would amount to a wrongful dechnatIOn of JUrISdICtIOn to grant the motIon. He submItted that m the CIrcumstances of thIS case, the proper course at thIS stage would be to hear the umon's eVIdence and determme ItS effect at the end of the hearmg, rather than on a prehmmary mo- tIon. 9 -- [18] In addItlon to authOrItIes referred to In my decIsIOn of September 15, 1999, and those cIted by counsel for the employer, In the course of hIS argument umon counsel referred to Weber v Ontarw Hydro (1995), 125 D.L.R. (4th) 693 (S C C ), Re Ontarw Publlc Servlce Employees Umon and the Queen m Rlght of Ontarw (Mimstry of Commumty and Socwl Sermces) (1995), 27 O.R. (3d) 135 (ant. DlV Ct.), Roberval Express Ltd. v Transport Drwers, Warehousemen & General Workers Unwn, Local 106 et al. (1982), 144 D.L.R. (3d) 673 (8 C C ), Syndwat des employes professwnels de l'UnwersLte du Quebec a Trols RLmeres v l'Unwerslte du Quebec a TrolS RWleres, Laroque et al., mlS en cause (1993), 101 D.L.R. (4th) 494 (8 C C), Re Greater Niagara Transa Commlsswn and Amalga- mated Translt Umon, Local 1582 (1987), 43 D.L.R. (4th) 71 (ant. DlV Ct.), Re Sudbury Mine Workers, Local 598 & Falconbndge Nickel Mines Ltd. (1955), 6 L.A.C 263 (BIgelow), Re Corporatwn of the Cay of Timmms (Golden Manor Home for the Aged) and Canadwn Unwn of Publlc Employees, Local 1140 (1995), 43 L.A.C (4th) 35 (Betcherman), ITT Contmental Bakmg Company and Bakery and Confectwnery Workers Internatwnal Umon of Amerlca, Local 372-B 72-2 ARB 18490 (HIgh), Babcock & Wilcox 60 LA 778 (Dworkm), Roth and Roth v Roth, Roth and Stephens (1991) 4 O.R. (3d) 740 (ant. Ct., Gen. DlV), Q and Q v Minto Management Ltd. et al. (1984), 46 O.R. (2d) 756 (ant. H.C), Re Barber Hydraullc Turbme Ltd. and Umted Steelworkers (1978), 19 L.A.C (2d) 247 (O'Shea), Whlte, supra, decIsIOn dated July 7, 1997 (DIssanayake), Re Board of Educatwn for the Cay of North York and Ontarw Publlc School Teachers' Fed- eratwn, North York Dlstnct, unreported award dated February 27, 1997 (Ken nedy), Clty of Toronto and Canadlan Unwn of Publlc Employees, Local 79, unre- ported award dated December 1, 1998 (Stanley), Re Canada Post Corporatwn and Canadlan Umon of Postal Workers (Leavere) (1998), 73 L.A.C (4th) 129 (M. PlCher), and Sopmka, Lederman and Bryant, The Law of Emdence m Canada (Butterworths) at 69ff. 10 - Decision [19] In WhLte, the employer argued before the Board (dIfferently constItuted) that a grIevor's conVICtIOn for sexual assault should be treated as conclusIve proof, or alternately as pnma facle eVIdence, that he was guilty of that CrIme The board ruled that the conVICtIOns would be receIved Into eVIdence, but not as conclusIve proof nor, It seemed, as pnma facle eVIdence of guilt. The DIVISIOnal Court held that a rulIng that the conVIctIons would not be treated as pnma facw eVIdence of gUIlt flew In the face of the deCISIOns of the OntarIo Court of Appeal m Demeter v Bntlsh Paclfic Llfe Insurance Co (1984), 48 O.R. (2d) 266 and Re Del Core and Ontarw College of Pharmaclsts (1985), 51 O.R. (2d) 1 It saId that the Board ought to have made It clear that the conVlction would be received and stand as prima facie eVldence of the sexual assault The court dId not dIrect that the Board treat the conVICtIOn as conclUSIve eVI dence of that the grIevor there was guilty of the cnme of whIch he had been con vlcted. It dId not say what It meant by "pnma facle eVIdence." That must be m ferred from the court's reference to the deCISIOns of --the OntarIO Court of Appeal m Demeter and Del Core [20] The combIned effect of the deCISIOns of Mr Justice Osler and the Court of Appeal m Demeter IS that a certIficate of conVIctIOn IS admIssible In a subsequent CIVIl proceedmg as pnma faCIe proof that the conVIcted person was gUIlty of the CrIme of whICh that person was conVIcted. That eVIdence IS "subJect to rebuttal by the [convIcted person] on the merIts" unless the CIVIl proceedmg constItutes an abuse of process, m WhICh case the civil court WIll refuse to entertaIn a rebut tal unless "alleged fresh eVIdence or eVIdence of fraud or collUSIOn" brIngs the case wIthm an exceptIOn to the abuse of process doctrme see paragraphs 34 to 37 of my deCISIon of September 15,1998 [21] In Del Core, the Court of Appeal held that a dISCIplIne commIttee acted properly when It treated a certIficate of conVIctIOn as eVIdence of the conVIcted person's gUIlt. The court was dIVIded about whether such eVIdence would have ~- 11 ~- open to rebuttal m the CIrcumstances (there havmg been no attempt to rebut It m the proceedmgs before the dlsclphne commIttee) The maJonty though It was open to rebuttal. Mr Justlce BlaIr agreed wIth Mr Justlce Houlden that the cer tlficate of convlCtlOn was pnma fac~e but not conclusIve eVIdence mother pro- ceedmgs of the commlSSlOn of the cnme, and added (at p 22) that Smce evidence of prIor convictIOns affords only pnma 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 mItIgated by explanation of the CIrcumstances surroundmg the convictIOn. It is both unnecessary and Imprudent to attempt any exhaustive enumeratIOn. The law of OntarIo is only now emergmg from the long shadow cast over It by the deCISIOn m Hollington v Hewthorn, supra. It would be hIghly undesirable to replace thIS arbItrary rule by prescribmg equally rigId rules to replace It. The law should remam flexible to permit Its applicatIOn to the varymg CIrcumstances of partIcular cases. [22] The DIVlslOnal Court declslOn m Wlute went one step beyond Del Core, holdmg that an admImstratlve tribunal not only can but must treat a certIficate of convlCtlOn as pnma fac~e eVIdence of the commISSIon of the cnme I do not thmk the phrase "pnma fac~e eVldence" m that deCISIon can be taken to mean anythmg dIfferent from what It meant m Demeter and the maJonty Judgments m Del Core' eVIdence that IS open to rebuttal "on the ments " I do not thmk the DI vlslOnal Court's reference to pubhc pohcy can be taken as qualIfymg what the Court of Appeal has saId about the opportumty to counter the effect of a conVlC tIon. [23] The employer argues for a rule that the eVIdence afforded by a conVlctlOn cannot be rebutted except by eVIdence that was unavallable to the conVIcted per son at the tIme of the tnal or any appeal. The eXIstence of such a rule would largely ehmmate the dlstmctlOn that the Court of Appeal has made between a proceedmg m WhICh the attempted rebuttal IS an abuse of process and one m whlCh It IS not. Its eXIstence would also be mconsIstent WIth the admomtlOn of Mr JustIce BlaIr m Del Core agamst adumbratmg rIgId rules about the ways m whIch the eVIdentlary effect of a convlctlOn can or cannot be countered. I am not persuaded that I am bound by a rule of the sort contended for by the employer 12 ~ - [24] HaVIng saId that, what remams of the employer's motIon amounts to an mVltatIOn to assess whether It will be at all possible for the umon to counter the eVIdentIary effect of the convIctIOns by presentmg a rebuttal of the sort contem plated by the partIculars It has dehvered. I accept that the board's dIscretIOn wIth respect to procedure IS broad enough that I could enter mto that assess- ment If I thought It approprIate to do so I have concluded that that would not be an approprIate process. [25] Accordmg to transcrIpts put before me by the employer, the grIevor's trIal m crImmal court began m June 1994, followmg two attendances on prelImmary motIOns m May 1994. Between June and November 1994, mclusIVe, the court heard the evidence of the prosecutIOn and the defence over the course of SIX trIal dates, and arguments about the admIssIOn of eVIdence on one other date Fmal submIssIons occupIed one or two further days, and the trIal Judge's findmgs of guilt were pronounced on March 27, 1995 By contrast, thIS proceedmg began m December 1996, has thus far occupIed mne hearmg days, and has not concluded. Two of those hearmg days were spent hearmg eVIdence wIth respect to prelIml nary Issues, some of whIch may also bear on the merIts, and part of another day was spent hearmg the one WItness called by the employer as part of Its case m chIef. The other 6 hearmg days have been expended on procedural and prelImI- nary matters arlsmg m one way or another from the employer's contmued mSlS- tence that the umon should be precluded or restrIcted m Its attempt to counter the eVIdentIary effect of the grIevor's conVIctIons [26] As a matter of process, and from a labour relatIOns perspectIve, I thmk the approprIate course now IS to hear any relevant eVIdence that the umon has to offer to rebut the convlCtIOns (as well as eVIdence concermng Issues other than the grIevor's gmlt), and any proper reply eVIdence offered by the employer, and only afterwards determme whether or not the eVIdentIary effect of the convlCtIOn has been countered by the rebuttal. That IS preferable to rummatmg now about whether the umon could do so If gIVen the opportumty 13 . . -- [27] The extent to whIch the umon's rebuttal eVIdence was also before the Judge who convIcted the grIevor will be a relevant consIderatIOn m makmg that determmatlOn. Dependmg on the cIrcumstances, the weIght to be gIVen to rebut tal eVIdence not preVIously put before that Judge may be affected by whether the gnevor could have put It before hIm. These matters, and the possIble sIgmficance of matters that the gnevor claIms not to have known at the tIme of hIS cnmmal tnal, are best assessed after the eVIdence IS m. [28] For these reasons, on May 14, 1999 I adVIsed counsel by fax that For reasons to be delIvered at a later date, I am not persuaded that I should make any of the rulIngs, determinations or orders sought by the employer 10 Mr Strang's Notice of Motion and hIS submissIOns at the hear10gs of February 23 and 24, 1999 The grIevor's convictIOns are prima facie, but not conclUSIve, eVIdence that the grIevor commItted the crimes for whICh he was convIcted. When the hear10g resumes, the umon will have an opportunity to rebut that eVIdence. . Dated at Toronto thIS 25th day of May, 1999 - / / / cS ' ~~ '-..__ I ~,.,.. ~ \ /.-/ -v..v,,:,-- /, ;:;:Zv: L- ~_",n_': // <--/- '-" . / Owen V Gray, Vlce-G!Ycur