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Home My WebLink About2011-2789.Barbro.12-11-20 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-2789 UNION#2011-0411-0037 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Barbro) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Wassim Garzouzi Raven, Cameron, Ballantyne & Yazbeck LLPS Counsel FOR THE EMPLOYER Stewart McMahon Ministry of Government Services Labour Practice Group Counsel HEARING April 12, 2012. - 2 - Decision [1] The grievor, John Barbro, was terminated from his position as a Correctional Officer at the Ottawa Carleton Detention Centre on October 23, 2010 for his involvement in an incident in which officers used force to gain control of an inmate. The inmate suffered significant injuries which required hospitalization. The initial occurrence reports of the correctional officers and operational managers did not mention any unauthorized use of force and, while the incident had been reported to the Ottawa Police services, no charges were laid at the time. [2] The Employer initiated its own investigation pursuant to section 22 of the Ministry of Correctional Services Act. The grievor denied applying any force to the inmate and described himself as a bystander who was trying to get out of the area. However, the statements from other Correctional Officers said the grievor repeatedly struck the inmate’s head with his foot. [3] The grievor was terminated on November 29, 2011 for allegedly using authorized force on the inmate, failing to protect the inmate from harm, failing to submit a proper occurrence report, failing to co-operate with the investigation and engaging in a course of conduct intended to cover up or diminish the significance of the use of force. The grievor filed a grievance that same day but was not advanced for immediate hearing until the Employer forwarded it to Joint File Review. A mediation was scheduled before me on April 12, 2012 but was unsuccessful. In the interval the Employer had forwarded its investigation report to the Ottawa Police who had charged the grievor with assault causing bodily harm on July 19, 2011. [4] At the mediation the Union had advised the Board it intended to file a motion to adjourn these proceedings pending the outcome of the criminal trial. A conference call was arranged for June 19th but Union counsel was unavailable and the parties agreed to proceed by way of written submissions. [5] The Union has raised several reasons for its motion to adjourn. It relies on the Supreme Court decision in Re Toronto (City) and Canadian Union of Public Employees, Local 79 [2003] 3 S.C.R. 77 which held that a grievor who was convicted in a criminal proceeding could not re- litigate that factual issue in the arbitration proceeding. That ruling, the Union asserted, creates a strong nexus between the proceedings such that an adjournment request should be granted. The Employer relied on section 48.1(1) of CECBA, which states that a criminal conviction or discharge is conclusive evidence of the fact the grievor committed the act or omission. In Re Ministry of Community Safety and Correctional Services (Gillis grievance) GSB #2003-1520 (Abramsky), the Board rejected the argument that the nexus between the two proceedings compelled an adjournment and found it was one of the factors to be considered in deciding whether to grant the adjournment. In that case she found that the nexus was not the predominant factor and, because the trial date had not yet been set, declined to grant the adjournment. [6] The Union also relied on the City of Toronto case for its comments on the concern of inconsistent results. The Employer took the position that this is not possible under section 48.1 of CECBA. If the Court should find that the grievor was not guilty but the Board found he had used excessive force, it would be the result of the different standard of proof in each proceeding. The results might be different but not inconsistent. If the arbitration award found the grievor did not commit the offence alleged but the Court found he had, the results might be inconsistent but the - 3 - arbitration decision preceded the Court decision and CECBA would govern. That is possible in every case where a parallel criminal and arbitration proceeding exists but the case law has shown that, in and of itself, is not sufficient cause for an adjournment. [7] The Union has submitted that it would be a more efficient use of the Board’s resources to adjourn the hearing until the criminal proceedings are concluded. It suggested that the outcome of the latter proceeding might reduce the evidence to be called at arbitration. The Employer points out that, irrespective of the decision of the Court, the Employer will want to call evidence of the other participants to address the other reasons for the termination, that is the false reporting and misleading information the grievor provided during the investigation. There will also be necessary to call evidence with respect to penalty. I agree with its assertion that the utility gained would be minimal in the circumstances. [8] The Union has raised concerns about the potential impact of the arbitration process on the criminal proceedings. The Union witnesses, except for the grievor, cannot claim protection under the Evidence Acts. Their evidence at the hearing could be used at the Court proceedings to the grievor’s detriment. This issue was rejected in the Gillis and Beard (GSB # 371/89 (Gorsky) cases. In the Beard case (supra) the Board noted that the opinion of the grievor’s criminal attorney was merely a suggestion that it might be detrimental to the grievor to have the arbitration preceded the trial but that was not sufficient reason to grant the adjournment. [9] In all of the cases relied on by the parties it is clear that the decision to grant an adjournment was subject to many factors but the most significant one was the timing of the proceedings. Where the delay was not lengthy, such as in the Beard case where there was a month between them, the Boards were more inclined to allow the delay. On the other hand, where the delay would have been more significant, the adjournment was denied. In the instant case, the expected trial date will be in summer or early fall of 2013. Even if that date is realistic, the arbitration would not begin until late 2013, approximately one year from today. That, in my view is excessive and unreasonable for all parties. The Employer has a right to know whether the grievor is going to be reinstated and on what terms. The Employer witnesses, particularly the bargaining unit members, have an interest in knowing the future status of the grievor. The grievor also has a right to know as quickly as possible what his future holds. If he is found not guilty by the Courts, he will still have to wait for the results of the arbitration to know whether there were grounds to terminate his services. He has been off work since November of 2011. By the time all of the decisions are made about his employment status, he could have been off work for three years. [10] After considering the submissions of the parties and the cases provided to me, I am not persuaded that there are sufficient reasons to grant the adjournment. The parties are to contact the GSB with a view to scheduling this matter as soon as possible. Dated at Toronto this 20th day of November 2012. Loretta Mikus, Vice-Chair