HomeMy WebLinkAboutLaviolette/Labreche 12-01-25IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 426
(the union)
-AND-
VALORIS FOR CHILDREN AND ADULTS OF PRESOTT-RUSSELL
(the employer)
Grievances in respect of the terminations of Labrèche and Laviolette
Mary Ellen Cummings, arbitrator
Appearances:
Laura R. Johnson, Diane Meilleur, Patrick Labrèche and Dominic
Laviolette for the union
Daryn M. Jeffries, Lynn Rivard, Marjo Bissonette and Lise Laponsée
for the employer
Hearing held at Ottawa on November 4, 2011
Award released at Georgetown Ontario on January 25, 2012
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AWARD
1. The Ontario Public Service Employees’ Union has brought grievances
challenging the terminations from employment of Dominic Laviolette and Patrick
Labrèche. The grievors were terminated from their employment with an agency now
known as Valoris for Children and Adults of Prescott-Russell. Among other services,
Valoris provides residential care to adults with developmental and intellectual
disabilities. Mr. Labrèche and Mr. Laviolette were responsible for caring for Valoris
clients in one of those homes. Valoris alleges that the grievors committed physical and
mental abuse, over an extended period of time, against these vulnerable clients.
2. In addition to losing their jobs, the grievors were tried criminally for the alleged
abuse. They were acquitted at trial. When the hearing into the terminations began, the
union sought to rely on findings made in the criminal trial. The union argued that the
positive judicial findings made by the criminal court ought not to be relitigated before
me. The employer argued that I have a discretion and ought to apply it to permit the
employer to call its case as it sees fit, in its entirety, recognizing that I have to make
determinations in an employment context, and not a criminal context and with due regard
to the lesser civil standard of proof that applies.
Background
3. The employer said that it began to learn about instances of gross abuse in April of
2009. The incidents include physical abuse, verbal abuse through taunting, teasing and
using trigger words to escalate the behaviour of clients until they had crises. Mr.
Labrèche and Mr. Laviolette were terminated from their employment at the end of April
2009. The employer learned of other instances of alleged abuse after the termination of
employment. The union takes issue with the employer’s ability to rely on those events but
the parties have agreed that the employer may call the evidence and the union will deal
with it in final argument.
4. In the hearing before me, the employer relies on 23 events of alleged abuse. The
criminal trial proceeded on the basis of fewer incidents. The parties agree that whatever I
decide about whether I must or should accept the judicial findings from the criminal trial,
I will still hear about other incidents of alleged abuse.
The case law around reliance on previous judicial findings
5. The Supreme Court of Canada issued a decision in Toronto (City) v. CUPE Local
79, (2003 SCC 63) concluding that the integrity of the judicial process is undermined
when an arbitrator permits the re-litigation of issues that have already been determined in
another judicial process. In that case, the grievor had been convicted of sexual assault in a
criminal trial. The labour arbitrator hearing the subsequent discharge case had permitted
the re-litigation of the issue about whether the sexual assault had taken place. The
arbitrator held that the criminal conviction was admissible evidence but was not
determinative. The arbitrator decided that the presumption raised by the criminal
conviction has been rebutted when he accepted the grievor’s testimony that the sexual
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assault had not taken place. The arbitrator concluded that the grievor has been terminated
without just cause.
6. The employer took the matter to judicial review and was successful in the
Divisional Court and in the Court of Appeal.
7. The Supreme Court of Canada determined that the re-litigation was an abuse of
process The Court said at paragraph 43 that “…the focus is less on the interests of the
parties and more on the integrity of judicial decision making as a branch of the
administration of justice.” At paragraph 46, the Court reasoned that parties have the right
to appeal a judicial decision though its proper review or appeal mechanisms. Once
appeals are exhausted, however, the judicial decision becomes final. “What is improper is
to attempt to impeach a judicial finding by the impermissible route of relitigation in a
different forum”.
8. At paragraph 51, the Court explained how characterizing relitigation of judicial
findings as an abuse of process advances the integrity of the adjudicative process:
First, there can be no assumption that relitigation will yield a more accurate result than the
original proceeding. Second, if the same result is reached in the subsequent proceeding, the
relitigation will prove to have been a waste of judicial resources as well as an unnecessary
expense for the parties and possibly additional hardship for some witnesses. Finally, if the result
in the subsequent proceeding is different from the conclusion reached in the first on the very
same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial
process, thereby diminishing its authority, its credibility and its aim of finality.
9. It is evident that the Court is very concerned about undermining judicial decision
making by creating the possibility of a different decision through relitigation of an issue
in a different forum. In addition, at paragraph 58, the Court concluded that “…the
arbitrator is considerably less well equipped than a judge presiding over a criminal court-
-or the jury--, guided by rules of evidence that are sensitive to a fair search for the truth,
an exacting standard of proof and expertise with the very questions in issue, to come to a
correct disposition of the matter”. The Court has decided that criminal court judges are
better able to decide these issues than labour arbitrators.
10. Labour arbitrators have applied the reasoning in Toronto (City) v. CUPE Local 79
where a criminal court has convicted an employee for the same misconduct that has led to
termination and arbitration of that termination. But more significant to the case before
me, arbitrators have applied Toronto (City) v. CUPE Local 79 where the criminal court
has made judicial findings in the course of acquitting an employee.
11. In Near North District School Board and OSSTF District 4 (Reinders), (2006)
153 LAC (4th) 437, Arbitrator Herman was asked by the union to rely on positive judicial
findings that were made in the course of the grievor’s criminal trial for sexual assault. For
example, the criminal court has found that a kiss between the grievor and a student had
not taken place. And the court was satisfied that the grievor had no sexual or romantic
interest in the grievor. Ultimately the criminal court found that there was no inappropriate
relationship between the grievor and the student and that any physical contact had been
accidental.
12. Arbitrator Herman concluded that there was no basis in the reasoning of the
Supreme Court to assume that Toronto (City) v. CUPE Local 79 applied only in cases
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where the judicial findings resulted in a conviction. Arbitrator Herman referred to the
excerpt from paragraphs 46, 51 and 58 that I have set out above. At paragraph 17 of his
decision, Arbitrator Herman wrote that since the Court concluded a judge was more
capable than an arbitrator at determining whether someone was guilty of criminal conduct
“I cannot see how a factual determination made by the trial judge in acquitting a grievor
would be more or less reliable than a finding on the same evidence and factual issue
made by a trial judge when convicting a grievor” .
13. Arbitrator Herman concluded that the Court would be concerned about the same
abuse of process issues and integrity of the administration of justice whenever a party
sought to impeach the findings of a trial judge in a subsequent arbitration. He determined
that no party could challenge the significant findings made by the trial judge.
14. In that case, both parties agreed that the employer could seek to establish facts
that the judge said had not been proved beyond a reasonable doubt, for example, whether
the teacher kissed the student. The employer could seek to prove that fact at arbitration,
needing only to meet the lower civil standard of the balance of probabilities.
15. A.T.U., Local 279 v. Ottawa (City), (2007) 165 L.A.C. (4th) 225 is a decision of
the Divisional Court in a judicial review of a labour arbitration decision. A bus driver had
been acquitted of criminal charges stemming from an accident that resulted in the death
and the serious injury of two members of the same family. The driver was acquitted at the
criminal trial. At the labour arbitration concerning the driver’s discharge for the same
misconduct, the employer indicated that it did not contest any of the judicial findings
from the criminal trial but wanted to call additional evidence in the arbitration. The
arbitrator upheld the discharge, finding that the employer had demonstrated beyond a
reasonable doubt that the driver had been grossly negligent.
16. The union brought a judicial review application alleging that the arbitrator had
been unreasonable in failing to follow Toronto (City) v. CUPE Local 79 and permitting
the employer to call evidence instead of giving full effect to the acquittal at trial. The
Divisional Court conclude that the arbitrator had followed Toronto (City) v. CUPE Local
79 and did not permit the employer to call evidence to challenge the judicial findings. But
the Court also recognized that Toronto (City) v. CUPE Local 79 recognized that there
was a discretion to be exercised about whether to apply the abuse of process doctrine.
The Divisional Court said that because the employer had not been party to the criminal
case it had not had a chance to contest the factual issues or make submissions. “It is in the
public interest to allow the City to do all that it can to administer a safe transit system,
including dealing with transit drivers who do not comply with the City’s safety policies.
This is a very different matter from punishing criminal conduct. The City did not have its
day in court prior to the arbitration and it would be unfair to deny the City that
opportunity” (¶ 42).
17. In Re Chinook Health Region and HSAA (Burgo), (2009) 188 LAC (4th) 10
(Tettensor) the grievor had pleaded guilty to a charge of assault on a patient, based on
facts that had been agreed to by him, the Crown, the police and the victim. At the
arbitration of his termination for abuse of the same patient, the union had sought to limit
the evidence to the facts that had been agreed in the plea bargaining, on the basis of the
Supreme Court’s decision in Toronto (City) v. CUPE Local 79. The majority of the
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arbitration board held that the principles in Toronto (City) v. CUPE Local 79 did not
apply because in the case before them, there had been no trial, no sworn evidence and no
findings of fact by a judicial decision maker. The board concluded that “it is in the public
interest for to allow this employer to take all reasonable steps to administer a safe
environment in its health care facilities. This is quite different than punishing criminal
conduct. It is not unfair to the Grievor here to be denied the right to plead abuse of
process. The matters at issue in the termination were not fully litigated in the criminal
proceedings” (page 17).
The parties’ submissions and my analysis
18. The union argued that this was a clear and obvious case where the principles of
Toronto (City) v. CUPE Local 79 should be applied in the same manner as in Near North
District School Board. The union submitted that the employer can call additional
evidence to seek to justify the termination decisions but it cannot call evidence or
otherwise seek to undermine or change the significant judicial findings made in the
criminal trials of Mr. Laviolette and Mr. Labrèche that resulted in their acquittals. To do
otherwise would amount to an abuse of process, as articulated by the Supreme Court and
has the potential undermine the integrity of the judicial system.
19. The union also agrees that the employer can call evidence in circumstances where
the court was not satisfied that a fact has been established beyond a reasonable doubt,
because in the arbitration, the employer need satisfy me only on the balance of
probabilities. But the union asserted that the court had made a number of significant
positive findings of fact in coming to it verdict and it would be an abuse of process to
permit the employer to challenge those findings before me, and run contrary to the
direction of the Supreme Court in Toronto (City) v. CUPE Local 79.
20. The union argued that all of the concerns outlined by the Supreme Court exist
here. If these issues are re-litigated there is the potential for a different result, damaging
the integrity of the judicial system. If, instead, I reach the same result, then resources
have been wasted and the grievors and witnesses have been unnecessarily put through
another difficult experience. Counsel for the union argued that there is no good reason
not to apply the principles in Toronto (City) v. CUPE Local 79. The case is very similar,
counsel argued, to the Near North District School Board arbitration award and the same
result should follow.
21. Counsel for the union noted that if the grievors had been convicted, the employer
would most certainly have relied on those convictions in the arbitration. It is manifestly
unfair if the grievors cannot similarly rely on the positive judicial findings that led to
their acquittal, counsel for the union argued.
22. Counsel for the employer acknowledged that in appropriate circumstances
arbitrators can rely on factual findings where grievors are acquitted in a criminal trial.
But the cases, counsel argued, make clear that an arbitrator possesses a discretion. Both
Re Chinook Health Region and A.T.U., Local 279 v. Ottawa (City) have applied the
discretion differently than it was applied in Near North District School Board. Counsel
for the employer argued that in both A.T.U., Local 279 v. Ottawa (City) and Re Chinook
Health Region, there was a recognition that the employer had a public interest and a
public duty to operate its facility or program in a safe and effective manner and those
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considerations were very different from the concerns of the criminal justice system.
Similarly, in the case before me, counsel for the employer argued, Valoris has a duty and
an obligation to make its services and residences safe, and provide a positive daily living
experience for its clients, which is a different obligation and concern than that of the
criminal justice system.
23. Counsel for the employer also argued that one of the positive findings the union
wants to rely on relates to the speed at which the employer terminated the grievors’
employment and whether it had sincerely given them an opportunity to explain
themselves. The employer argued that this finding was entirely unnecessary and unrelated
to the court’s determination of the criminal charges.
24. The employer is also concerned that other findings of the court are too vague or
incomplete. For example, the court made findings that the alleged abuse “left no
injuries”. The employer wants to be able to lead evidence about whether unseen injuries
were present and whether anyone looked for injuries at the relevant time. Counsel argued
that unless I exercise my discretion not to accept the judicial findings, it will not be able
to present the full case that it needs to present.
25. Counsel for the employer also expressed worries about the vague and generalized
findings the criminal court made around the motivations for various employees to make
allegations of abuse against Mr. Labrèche and Mr. Laviolette. The employer is very
concerned that it should be allowed to call evidence and permit the witnesses to explain
their motivations to me and let me make a decision, based on all of the evidence, having
proper regard to the employment context and the employer’s obligations to its clients.
26. In my view, the direction of the Supreme Court in Toronto (City) v. CUPE Local
79 to avoid undermining the integrity of the justice system by relitigating final judicial
findings should be heeded in this case. The message of the Court is clear; judges are
better than arbitrators at coming to the correct disposition of criminal issues. Moreover,
permitting the relitigation of final determinations risks either an undesirable different
result or wastes resources on a duplicated process which arrives at the same result. In my
view, Arbitrator Herman in Near North District School Board followed the direction of
the Supreme Court, accepting significant findings made by the criminal court, while
permitting the employer to call additional evidence that does not undermine or contradict
the significant judicial findings. That, in my view, is the appropriate balance.
27. I disagree with the employer’s assertion that the Divisional Court in A.T.U., Local
279 v. Ottawa (City), applied the discretion differently. In that case, the employer was not
permitted to challenge the judicial findings in the criminal court, but was allowed to call
additional evidence. The union in that case thought that the employer should not have
been able to call any evidence and had to simply accept the acquittal. That is not the
position OPSEU takes in this case. In my view, A.T.U., Local 279 v. Ottawa (City) is
consistent with the Supreme Court in Toronto (City) v. CUPE Local 79. I agree with
counsel for the union that Re Chinook Health Region is completely distinguishable. The
grievor had entered a guilty plea in a plea bargain and the arbitration board properly
found that the agreed statement of facts that supported the plea were not final judicial
findings.
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28. I do agree with the employer that the case before me must be focused squarely on
the employment relationship and whether Mr. Labrèche and Mr. Laviolette have
fundamentally broken that relationship through their conduct. It will be entirely
appropriate for the employer to lead evidence about its duties and obligations to maintain
a safe and secure environment for its clients. But, in my view, it must do so without
challenging or contradicting the significant judicial findings.
29. In particular, the clear findings the court made about the motivations of the people
who made the allegations of abuse to the employer and the court’s findings of credibility
are precisely the kinds of judicial findings the Supreme Court says judges who hear
criminal matters are best suited to decide. I also see no reason to permit the employer to
go behind, or around the court’s findings of “no injuries” to the alleged victims. It is
appropriate to assume that the court considered the available evidence in reaching that
conclusion, and the Supreme Court has told me cannot assume that I would reach a better
answer.
30. Although the employer framed its submissions around the right to present its case
as it saw fit, unencumbered by a criminal process to which it was not a party, the
Supreme Court has placed more emphasis on the integrity of the judicial system than
fairness to litigants, as I set out at paragraph 7.
31. I agree with the employer that the findings the court made at page 38 of the
transcript about the interviews with the grievors and the speed with which the
terminations were decided are not significant judicial findings in the criminal matter and
so there is no basis for me to defer to them. The employer’s process of investigation and
how it carried out the terminations are important to the issues I need to decide but were
irrelevant to the criminal proceedings.
32. For the reasons set out above, I conclude that the employer may not challenge the
following findings, which are all taken from the transcript of the trial. As agreed between
the parties, the identities of the residents will not be disclosed:
page 24: “The evidence clearly establishes that the accused were hired and specifically
authorised to use force to control the patients of Integra. This was true for all the patients
although the anticipated degree of force required for each patient could vary significantly. In the
case of V and P, it is clear that it was anticipated that a substantial degree of force was likely to
be required.”
page 27, Count #1
physically escorting A to her room
“A was not injured and the proper technique was used.”
“There is no suggestion that excessive force was used or that it was not necessary to bring A to
her room”.
page 28–31, Count #4 “The evidence establishes that P a very big and strong man and when in
crisis he can be very violent”.
“… at the end P was controlled and had not been injured in the process.”
“Ms. Rivest only came downstairs after Mr Labrèche and P had already been there.”
page 34–35 “There is a substantial body of evidence heard during this trial that great animosity
had grown with time between the female caregivers on the one hand and the two accused on the
other. The animosity was directed mostly at Mr Labrèche but Mr Laviolette was viewed as Mr
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Labrèche sidekick who would blindly follow his lead. The degree of this animosity grew with
time gradually, slowly and included more and more of the female caregivers. By the time early
April 2009 came along, there was a general feeling of resentment by a large majority of the
female workers against the accused. I find all of the female witnesses called by the Crown were
part of this group of female workers. Whether that resentment was justified or legitimate is not
for me to enter. However, it was clearly present.”
page 35–36 “Ms. Deschamps testified she orally reported all things which she believed were
improper to Ms. Raby. Ms. Raby denied this. She described the feud between the caseworkers as
motivated by personal conflict and not in the context of the care workers’ care of the patient. The
evidence establishes that the real origin of the problem were romantic relationships which Mr
Labrèche had several other female workers namely Guylaine Robillard and Julie Mallette.”
page 37 “The accused were apparently highly regarded by their employer. Their supervisor, Ms
Raby had substantial praise for their work during her evidence.”
page 40 “Secondly, a few weeks before she [Tania Dewar] made her allegations, she had written
a going away card to Mr. Labrèche, which was filed as Exhibit 12. In that letter, she refers to all
the good times they had together. She makes reference to the winter camping trips and other
activities as some of those good times. She clearly has good memories of all those activities at
the time she wrote them. Exhibit 12 speaks for itself.”
page 43 (3) re V: “No such injury existed"
page 43–44 “The next day there was no sign of such a blow according to Ms. Dewar. Ms. Raby
saw V on her return and did not notice anything wrong either".
page 44 “The alleged repeated punching to V’s head by Mr. Labrèche in the change room and in
the van in addition to the banging of her head on the protective grill also left no injuries. At
most, Ms. Dewar testified that V had red marks on her face.
33. This matter will continue on March 19, 2012.
Dated at Georgetown, Ontario, this of 25th day January 2012.
Mary Ellen Cummings