HomeMy WebLinkAbout1989-0371.Beard.89-11-29~ .. ~ ' ONTARIO EMPLOY~-$ DE LA COURONNE
"~ - ~ CROWN EMPLOYEES DE L'ONTARIO
~ GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST. TORONTO, ONTARIO, MSG IZ8- SUITE 2100 TELEPHONE~TELePHONE
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371/89
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between=
OPSEU (Beard)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
Before:
M.R. Gorsky vice-Chairperson
J. McManus Member
G. Milley M~mber
For the Grievor: G. Richards
Senior Grievance Officer
Ontario Public Service
Employee Union
For the Employer: S. 'White
Counsel
Legal Services Branch
Ministry of Community & Social Services
Hearing: September 26, 1989
DECISION
The Griever, JOHN WILLIAM BEARD, was at all material times
employed b'/ the Ministry of Comm~nity & Social Services at
the Huronia Regional Centre as a Recreational Counsellor
III. On April 24, 1989, he filed a Grievance against his
dismissal by the Employer.
At the opening c,f the Hea'~ing, Mr. Richards, on behal'f of
the Griever, asked that an adjc,~lrnment be granted. Mr.
Richards informed the Board that the Employer had been
instrumental in bringing criminal cha~:ges against the
Griever with respect to the alleged incident which led tc,
his dismissal. We were not informed as to, the exact
nature of the criminal charge, but were informed that a
preliminary hearing had taken place and ~that the G~ievor
will be required to stand trial, in Orillia, sometime in
the spring c.f i990. Mr. Richards aide informed us that
the Griever's lawyer in .the criminal case, John kiss, had
instructed the Griever to request an ~djournment
arbitration hearing until the completion of the criminal
trial because ,:~f his cc, ncern t~at the conduct of the
criminal trial might be prejudiced sho~.~td the arbitration
hearing pfc, teed at this time. The nature of the prejudice
was identified as the possibility that the defence
2
strategy would be known to the Crown, or, at least might
be made known to the Crown and that this wc, uld be unfair
to, the Grievor who would be deprived c,f tl',e right to
present ~is defence witf, out the Crown being aware, in
advance, c,f the nature of the defence, and, more
particularly, the strategy that might be employed by his
lawyer in conducbing the.defence.
Mr. Richards relied on a number of ~a~s and arguments in
support of his position:
Reference was made to the case o'f Williams 33/78
(Swinton). This case involved a request by the
union for an adjournment which arose out of a
dispute between the union and the government over
the appointment of a successor to the then incumbent
Chairman of the Grievance Settlement Board. This
dispute led to the union's deciding not to continue
with further hearings before this Board until a
resolution of the question of the appointment of the
new Chairman had been rea[bed.
Prnfessor Swinton (at pp. 2-3) noted the
discretionary pr_~wer in a Board of Arbitration to
grant adjournments as part of its inherant authority
t,:, control its own processes and procedure and that
such discretionary a~.Ithority should n,:,t be exercised
in an arbitrary nr discriminatory manner' "but for
'reasons that con~rib~te tn the efficacy and raima, ss
of the arbitral prc, cess." P~ofes~or Sw
noted at, p.3, that there are a considerabl~ variety
of factc,~s tc, be cc, nsidered in coming to a
as to whether ~u g~ the requested adjournment
along with the fact of whether the other party was
given notice prior to the hearing so that w~tnesses
would not be cai led. An additional factc, r wa.s
whethel the adjc.~rn~ent ~,c,~id cause .tnoue prejudice.
Mr. Richards was not arguing that the specific
reasc, n for granting the adjournment in ~iiliams had
any relevance in the case before us but cited the
ca~e in order to highlight some of the large~
faced by a board ajudicating disp~ltes in the public
sector. In particular, P¥c~fesso~~ Swinton notes (at
p.4) that:
"This Board has been established to serve the
parties in their collective bargaining retationship~
The present members of the Board also are not
involved in the consultation process to select new
members, nor should t~ey be, for it is a political
issue to be r eso l_%ed by the parties. In this
particular case~ however, they risk being drawn into
this debate over the structur~ of the Board. In
order to avoid this the adjournment was granted in
the hope that the parties could resolve their
difficulties i~ the near future, thus allowing the
Board tc, proceed with its adjudicative ta~k~."
Rr · Richards urged us to be sensitive to the
"broader concerns about the arbit~'atic, n process
the Ontario public ~c'tor", which was a factor which
affected the decision ~n Williams (at p.4).
'2. Mr. Richard~ placed reliance on the case
McWi 1 liams 8~0/c'~ . ..
counsel had aisc, r~quested a~~, adjournment which was
,:~pposed by the employer. The u~,i,:,n~s request was
based on the existance c,f criminal charges against
the grievor in that case w~',ich arose out c,f the
incidents which !ed to the grievor's dismissal. As
in this case, the grievor felt that having the
grievance heard before the criminal charge would
p~ejudice him in the ~riminal trial. The nature of
the prejudice was because the grievor would l~kely
testify at the arbitration ~ear ing. Even though
this evidence could nc, t be used agc~inst him directly
in the criminal trial becau~.~ of hi~ rights under
The Canadian Charter .o~ Riqhts and Freedoms, the
Crown could obtain certain information that "could
pc, ssibl~ prejudice the criminal matter" (at
From the shc, rt decision of the Board, it can only be
concluded that the possibility cited was sufficient
to satisy it that an adjournment ought to be granted
on terms. That is, the Board. was naturally
"extremely sensitive and conceroed about any
possible prejudice to a Grievor facing c~iminal
charges" and, viewing the possibility referred to as
being prejudicial, granted the adjournment. The
terms imposed were that the matter be scheduled for
a hearing as soon as possible after the date
scheduled for the trial and that in any award that
might flow frc~m the hearing c,f the grievance, the
Grievor would not request cc~mpensation beyond the
date scheduled for the hearing of the case.
5
In making his representat-ions in favour of the
granting of the adjournment, counsel for the
Grievor, in addition to noting that he had
communicated his in'tention '~o ask for an adjournment
duri~lg a ~o~,versation c,f September ~, 1989, wit?,
counsel ~or the ~mployer, stated that the Grievor
was agreeable to abidi~g by a similiar undertaking
w~th respect to compensation as ~ontained in the
McWilliams case. He asked that the term p~ovide
that any order with respect to ~ompensation
cover the period arising out c,f the delay but that
the order should not extend to a period beyond that
commencing with the date of this hearing, and ending
with the date of the subsequent commencement of the
hearing.
It is of some significance that the hearing in the
McWilliams case, when the adjournment was sought,
occurred on October 22, 1987, and the hearing bf the
c~iminal case was scheduled to take place on
November 27, 1987, a period of a little over one
month. In the case before this Board, the delay
would be anywhere from five to eight months,
depending on when in the ~pring of 1990 the case
wo~ld be heard. I hav~ mI~eady indicated that
advice given to us was no mc, re specific than that
indicating t;~at the trial was scheduled for some
time in the spring of 1990~ By his order, the
Chairman in the McWilIiams case made it clear that
the matter was to be s~heduted f,~r h~a'~"ing c~fter
November 27, 1987. I take it that the process c.f
scheduling the matter would occur within a ~.hc, rt
period ,-,f tim~ after Nc, vember 27, t987. In
considerii~g the prejudice to thc' p~,rties, ~he Board
in the McWil~!iams ca~e ;,ad 't,.:, be s.~,tisfied t~,~,t
right c,f ~he Emplc, yer t,_, have th~ ;:',at'te~' dispc, s~d c,f
expedi't ic~usly w,i,:_~ i d ~ ',,/,'t be unduly affected by
delay of apprc, ximately one month. The decisio;'; of
the Bc, ard in the McWilliams case made it quit~ clear
that the launching of any appeal would not affect
the scheduling of the hearing in the arbitration
3. Mr. Richards als,.-, 'referred to the case ~:,f National
As~ociatic, n ,;,f Brc, adcast Enqineers & Technicians. and
Baton Broadcastinq L'bd.~ C.F.T.O.-T.V. (1970), 21
L.A.C. 173 (O'Shea) 173. In that case, at the
reconvening c,~ the hearing c,n February I0, 1970,
after an earlier hearing on January 8, 1970, which
had dealt with the questior~ of who had the
adducing evidence, the union, c,n behalf of the
grievor, requested that the arbitration hearing be
adjourned until such time as a private prosecution
launched by the employer, and involving some c,f the
facts material to the arbitration proceedings had
been disposed of.
In the Batoo case the arbitratc, r denied the union
request. One of the reasc, ns fc, r doing sc,, arises out
of the union having some ~ontrc, i c, ver when the
continuation of the hearing would take place. At
pp. 175 a~d I76 c,f the B~,ton case, the arbitrato~
stated:
"...the union was the party 'that instituted these
proceedings. ]<~':i~ the un.'L.:)~"~ made .i~s request prior
to the first hearing in anti¢ipatic, n o~f the cc, mpany
taking a£tion on its consent to, prosecute, different
considerations might apply. However, the unit, n,
with full knowledge that tl~',e ~ompany migl"~'~ '~ake the
action that it did, prepared itself for the fi'r'st
hearing and ha~, c, nly req~.tested an adjournment at the
second h~aring."
At page i76 of the Baton case, the arbi bra3c, r'
stated:
"In view of the timing ,:,f the union's request, when
it was fully aware of the very real possibility of
the company taking the action that it has and in
view ,:,'f the fact that the union could have taken
this possibility into cc, nsideration before agreeing
~c, the date of the two, hearings scheduled in this
matter and the ot[~er facts referred to above, and
especially Mr. Dugan's undertaking with respect to
the evidence adduced in this proceedings, I must
exercise my discretion against the :~nion's request."
Mr. Richard's argued that in this case the union had
no ¢ontrc, i over the setting of the date and that '
this sho,zld be a factor in fa¥¢,ur of the Board's
exercising its discretion in favour ~f the Grievor.
There was nothing in the Baton case which indicated
that but for the consent of the union to the
establishment of the hearing date, the adjournment
requested would ;',ave been granted. It was, as was
noted by Mr. O'Shea, merely an additic, nal factor
leading t,~ his decision not to exercise
discretion to grant an adjournment, in a case where
we would be disposed to exercise our di~.creti,::n
~avour of th~ Grievor, we would not be moved, as was
Mr. 0' Shea, to withhc, ld the exercising of c, ur
discretion based c.,n the case ~aving been scheduled
for hearing. Unlike ~'he Bc~ton ccu~e, i~ th~ ca~e
before us, the U~i,z,n (nc, r the Emplc, xer for that
matter) had any control over scheduling.
said that, the qu~tic, n still must be answ~r~:d
Should this Board exercise its di~.cre't-ic, n and grant
an adjourment as requested by the ,zni,:,n
4. Mr. Richards als,z, reli~.d on the case ':,f Re Nelles et
al and Branqe et al (1984) 9D. L.R. (4th) 7'9
(Ont. C.A.). The Ne!les case was nc, t relied c,n by
Mr. Richards as c, ne having facts simiiiar to, the
case before this Board. Rather~ it ,..a'~. relied c,n
expressing certain judicial sentiments in favc, ur
protecting the civil rights c,f persc, ns. He referred
us to the statement by the Court found at Page
"...in c, ur opinion the specific limit~.~i,J~''-- impo, seal
on the Commission by the Order in Council in the
circumstances was imposed c, ut =,¢ ~c, ncern for those
persons who might beccq.e invc,!ved ir~ c,t','~e r
proceedings or be called upon to stand bheir trial.
This ~oncern for fairness is traditionally c, ur way
and so what we regard as a clear direction to the
commissioner in the Order in Council ....
While we would agree with the sentiment expressed by the
Court that tribunals are concerned with fairness and that
a tribunal should be care{ul that persc, n~ whc, might beet, mc
involved in c, ther proceedings c,r be called upc, n to stand
trial should not have their cc, nditic, n prejudiced by the
proceedings which precede a subsequent adjudicatic, n, .the
Ne!Ies case was concerned with the limitations imposed by
an Order in Council c, rdering that a Cc, mmisslon be issued
to look intc, and report publicly c,n 'the circumsta~ices
sur rc, unding 't ~ ~...:, death~:. ,::,f certain children and the
subsequent criminal proceedings agai,,st Neiies. A~ such,
th~ case can hav~ little addition=i value ~,:,r t~,i~ Bc, ard
in deciding the matter befc, r~ it.
Mr. Richards particularly relied nn a statement of
th~ Court of Appeal zontai,'~ed at pp. 8B~'-8S o~ the
"Further, the fact that the findings or
conclusions made by the Commissioner are n~pt
binding or final in future prc, ceedings is not
determinative of what he will decide. What is
important is that a finding o'r c~z, ncl usion
stated by the ~'-~
~u~it~ll~s~Ioc~er wo~.l~ d be considered
by the public as a determination and might
well be seriously prejudicial if a person
named by the Commissioner as responsible for
the deaths in the circumstances were to face
such accusations in further proceedings. Of
equal importance, if no charge is subsequently
laid, a person found responsible by the
Commissioner would have no recourse to clear
his or her name.
Mr. ~ichards likened this situation to t~',e one before us.
An examination of the Nelles case demonstrates that the
restriction placed by the Court on what could be decided
by the Commissioner was "impc, sed on the Commission by the
O~der ~n Council" (p.89). We are not dealing with a
limitation imposed on a 'tribunal by an Order in Council,
and the Nelies ca~ d~es little to assist us in deciding
whether th~.re are grounds for exercising our discretion.
5. Both Mr. Richards and Ms White referred to the case
of Re University of Western Ontario and Canadian
Union of Pubiic Emplnyees, Lo_cai 23E, 1 r1988)
L.A.C. (3rd) 39(Dissanayake). In that ~ase, the
gr i ~v c:r had !'~s emp]. c,>'m~-n t ~,. ~ ?
alleged theft c,f~ property and g~'ieved claiming 'that
there ~as no just caus~ for the discharge. At the
outset of that hearing~ coc~nsel 'for ~he union
informed the board that c~iminal ~hargms had been
laid against the grievor as a result of his being
found in possession of the property and made a
motion for adjournment of the hearing until the
criminal charges were disposed of. The motion was
c, pposed by the employer.
The arbitrator in the University c,f Western Ontario
case observed at pp.40-41 that:
"The arbitration pro~e~ .~ e under a col lective
~greement is q:.~it~' distinct ~f r,z,m '~he criminal
justice system. While the factual context forming
the basis 'fc, r '~h~ arbitration and a criminal trial
may be the same, the similiarity stops there. It is
not uncommon that arbltratio~ and criminal
proceedings are concurrently carried on where
misconduct of a criminal nature is alleged by an
employer. Apart from the fact that both processes
focus on the same factual context, there is no legal
nexus between the two pr,z,c~sses. The disposition of
one process does not inhibit the consideration of
the issues before the other forum. The issue before
the board of arbitration is whether or not there was
.just cause for discipline. Whatever the factual
findings and outcome in the criminal process may
have been, the board of arbitration must try the
facts de novo on the basis of the evidence presented
before it. ~imiliarly, a criminal court is not
bound by any findings made by any prior arbitratic, n
prc~ceedings. ~.,~',d, of cc, ur'~(~, the party litigants,
th~ rules of pr,~cedu~'e and ev$dence, ~he nature of
the burden of proof and the remedial consequences
are all quite different betwee~ a criminal trial and
an arbitration proceeding."
Mr. Richards did not take issue with ~i~y of thes~
stat~,m~nts.
11
Further in the U. Di. yersity c_,f Western Ontaric, case,
at p.41, t~,e arbitrator stated:
"There may be exceptional ~ir cumstances where
arbitration pr,z, ceeding may be adj,-,:.~'n~,d p~i"~dii~b
disposition of a related criminal charge. Hc, wever,
apart from a general suggestion that it may be
disadvantageous to the Grievc, r t~z, go through the
~r~a~ while the criminal trial was pending,
~OU~Se~' was not able to pc, int to any special or
specific reasons. The union is merely ~peculating
that there may be .' something in the pc, lice witness
statements that may assist the Grievc, r's position at
arbitratic, n. The employer ~as n,~,t relying on
statements, in my view, the union is not entitled
tc, those statements as a pre-condition c,f proceeding
w~th the arbitration. The pc, l~ce ir~vestigation is
irrelevent to, the arbitratio~'~ except to the extent~
if any, that the ~mploye~· had ~e! ied on such
investigation in disciplining the Grievc, r. There
no claim ~that there is any reliance by the employer
in the investigation undertaken by the London police
in discharging the Grievor." (These considerations
are aisc, not material in the case before us.)
While it can not be said that the basis for the
Union request for an adjournment is absent "any
special or specific reasons", the reason¢ given are
not very illuminating. In the'University ,:,f Western
Ontario case, there was eviden6e that the Brievor's
defence lawyer in the criminal trial had advised him
not to testify at t~e arbitration and union counsel
warn prepared to file an affidavit frc, m the defence
counsel confirming his advice t,:, the grieve, r,
stating his opinion that testifying at the
arbitration wc, uld prej,.~dice his defence in the
criminal trial. This infc, rmatic, n was held to be
n,:,thing more than a general suggestic,~ that it might
be disadvantagec, u~ '~,:,r 'thc. ~ri,.~....,:,r Lc:, ,~,:,-t~rc, ugh the
ar'.i,&ti-~'t:i.,z,:"~ whi].c., t',~? ~:~'.i.~,',i.,',c,i 't', 2~l was p~.~"~d:;.~'~g.
12
In the case before this Bc, ard, we have a general
suggestior, that it might bs. disadv,:lntageous for the
Grievc, r to go through the ~,rL, i tra ti~n while
advantages might be forgone. What the tactical
advantages might be were not given to us, and they
are little more that "a general suggestic, n", as
referred to in the University of ~estern Ontario
What Mr. Richards was arguing was that once i'~ had
been demonstrated that the Employer had been given
timely notice ~f the Union's intention to ask for an
adjournment, and once there was an undertaking with
respect to a.ny assessment that might be made as
above set out, an adjournment shc, uld be granted in
these circumstances in order to, protect the Grievor
from having to give away informatic, n as to tactics
which might be employed at the trial c,f the criminal
case, which information might be derived by the
Crown on making inquiries concerning wha.~ had
transpired at the arbitratic, n hearing. He also,
added that information might al=o be gained by the
Crown as to the kind of witness the Gri~vor might be
at the criminal t¥'ial base~ on his demeanor during
the arbitration hearing. I ~,,c,u I d re~ rd this
situation as similiar to that id~,~'tified by the
board in the University of Western Ontario, case at
"... considering the absence c,f any extraordinary
circumstances, to grant an adjournment in this c~se
would be tantamc',~.~nt to a ~",-,!ding that ~n a~-b.~.tratic, n
c'r iminal trial i~ comiJ!eted. GJ. vec~ the dist~L,',c't
nature of t~e criminal and a~.bi, tral processes, ~LIch
a position is untenable i~, law and as a matter of
cc, mmon sense.
Mr. Richards did not agYee with that :;.rate, merit
submitted that we stil i c,::;uld, on the facts
pre~ented he~e, exercise c,~.~r diLscretic, n ,Dne way or
the c, ther. i did nc, t regard t~is Board's choices as
being as flexible as Mr. Richa'~"d,~ argued. Ail we
heard was a general statement that the defenc~
tactics might becom~ kn,:,w~ tc~ th~ Crown shouid
make inqui'~-ie~ cc~ncerning what had taken place at
the arbitration hearing. ~,_,u nse I could, always
quite honestly, make ~uch ~ statement. The B,;,ard
would never know how ~otent~al ly serious the
prejudice might be and~ ~f it ac~ded to such
argument would have to grant adjournments as
right.
Mr. Richards also relied on the fact that the
University of Western Ontario case concerned a
procedure under 8.45 of the Labour Relations Ac~
where there was a special need for expedition over
and 'above the "general need for expedition". I do
not view the University of Western Ontario, case to
have been m~.~ch influenced by the procedure whereby
the matter came before the arbitrat,:,r. I am much
more affected by the further statement of the
arbitrator at p.4I:
"In my view, t,;~ not proceed in these circumstances
is to decline my j~.~)'isdicti,:,n under bi,at prc, visior~.
The particular prejudice to the Employer is that the incident in
questlon is said to have taken place in January of 1989. We are
told that the discharge occured in April of 1989 when the Employer
is said to have first learned of the facts. The Employer is
concerned that any further delay will have an effect on the memory
of witnesses and this is a factor which can not be overlooked. In
addition, the Employer has the right to the expeditious
determination of the issue which is one of considerable importance
to it.
While this Board is in the words of the Board in the McWilliams
case, at p.2: "...extremely sensitive and concerned about any
possible prejudice to a Grievor facing criminal charges..., we
have to balance the extent of the prejudice on either side. The
essential basis for the Grievor's request is based on a fairly
general statement concerning the giving up of certain tactical
advantages. Such a position is insufficiently precise and would
have the effect referred to in the University-of western Ontario
case of requiring that a Board automatically grant the request in
these circumstances. Furthermore, the delay requested would be
too great and the chance of memory eroding too real to ignore the
Employer's tight to an expeditious hearing.
There may be cases where we have more information relating to the
prejudice that could arise if we heard the arbitration case before
the completion of the criminal case. Here, for the reasons about
set out, the granting of an adjournment would not, in the words of
Professor Swinton in the Williams case at pp.2-3:
"...contribute to the efficacy and fairness of ~he arbitral
process."
Ms. White referred to Stickney v. Trusz,-[1973]O.R. 469 (H.C.J.)
where it is stated in the headnote, at p.~69:
"Civil proceedings will only be stayed on the ground that
related criminal proceedings are pending where the right
of an accused to a fair trial may otherwise be prejudiced.
The fact that an accused may be compelled in the civil
proceedings to incriminate himself (subject to the
protection of the Canada Evidence Act, R.S.C. 1970
c.E-10) is not sufficien( reason for staying an action."
Mr. Richards did not take issue with this statement but argued
that these are not the only considerations that must be taken into
account by this Board. He argued that the Stickney case was a
case decided in the courts and that other, considerations ought to
apply before a board of arbitration. This is 0~ten the case, but
is it the case here? At p.472 of the Stickney case, 'it is stated:
"...the facts shown by the Defendant were no more than
those which would be shown by anyone who was at once an
accused in a criminal prosecution and a defendant in a
civil case as a result of the same facts. If this was
sufficient to warrant the conclusion that the matter was
exceptional and the Courts should stay the civil
proceedings there would be little or no discretion to be
exercised and we would have returned to an automatic rule
approximating the old felonious tort rule. In Roe v.
Brandon Packers Ltd. et al (1961), 29 D.L.R. 246
(Man.C.A.) [Miller, C.J.M. sta~ed at p. 250:
'I am unable to subscribe to any principle which
would indicate that the mere fact there is a
criminal proceedings pending at the same time as
civil proceedings is ground for either a stay or
an adjournment of the civil proceedings...'
(emphasis added in the report.)) zuber, J. went
on to state at p. 472:
"Enlarging somewhat on that language, it is my
opinion that the mere~fact that there are both
criminal and civil proceedings pending against
a person arising out of the same facts is not a
sufficient ground to qualify as an exceptioaal
case in which the civil proceeding should be
stayed. It is incumbent upon the applicant to
show some specific or particular way in which he
will be prejudiced in his criminal trial."
In this case I see no reason to depart from the general rule
enunciated in the Stickney case.
Here, the fact that we are concerned with a labour arbitration
does not affect the general principle. It could be said that in
every case where a civil proceeding (and I will include a labour
arbitration as a civil proceeding) and a criminal proceeding are
pending against a person arising out of the same facts, that
person could suffer some prejudice where the evidence given during
the arbitration case might enlighten the Crown. as to the tactics
that might be employed as part of the defence and as to such
matters as the kinds of witnesses the defence witnesses would be
at the criminal trial. Such prejudice is neither specific nor
particular and would not qualify as the exceptional case, which
even arbitrators identify as being necessary in order to secure an
adjournment where it is opposed.
Mr. Richards also submitted that there was the possiblity that the
result of the criminal case might cause the parties to review
their present positions. That is, in the case of a conviction,
the Union might decide not to proceed with the arbitration, and in
the case of an acquital the employer might decide to withdraw the
discharge. It was put to us that this was consistent with our
responsibility in the "use of scarce resources." That is, the
already over-burdened Board might be relieved of another case if
we waited for the decision in the criminal case. If we accepted
such reasoning, we would also be declining jurisdiction. The
criminal and arbitration processes are distinct and the fact that
awaiting the outcome of the criminal trial might have the effect
anticipated by Mr. Richards is not a reason to postpone the
hearing.
Accordingly, for the reasons stated above, the request for
adjournment must be denied and the Registrar is directed to
schedule this matter for a hearing with any panel that is
available.
DATED at Toronto, Ontario this 29 day of November , 1989.
M. R. Gorsky- Vice-Chairperson
"I dissent" (Dissent attached)
'J. McManus,- Member
G. Milley- Member
DISSENT
371/89 - BEARD (Ministry of
Comunity & Social Services)
I am unable to agree with the majority in its decision not
to exercise its discretion to award the grievor an adjournment. The
majority has, in my respectful submission, misconstrued the arbitral
jurisprudence that has developed as to the factors to be taken into
account when considering an adjournment request. They have, instead,
applied the civil test of treating the non-consenting party as having
a strong prima facie right to proceed unless extraordinary
circumstances can be shown.
The arbitral jurisprudence, as evidenced by the Williams
(33/70) and McWilliams (860/87) awards, clearly demonstrates that a
board of arbitration does have a discretionary power to grant
adjournments as part of its inherent authority to control its own
processes and procedure. Professor Swinton'in Williams, as noted by
the majority on page 2 of its Award, does set out the factors that
are to be considered in coming to a decision as to whether to grant a
requested adjournment. The 'factors that are to be considered must be
perceived in the context of a balancing of interests of both parties.
Of prime importance is whether notice of the request has been given
prior to the hearing so that witnesses would not be called. An
additional factor mentioned is whether the adjournment would cause
undue prejudice. Thus the essence of the decision-making process is
to weigh the potential prejudice on both sides. Indeed, the
McWilliams case outlines the proper balancing of potential prejudice
in a case such as this where the grievor faces the gravest of
penalties should he be convicted of the criminal charges.
Section 7 of the Charter mandates that "everyone has the
right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of
fundamental justice". The Supreme Court of Canada held in Reference
Re Section 94(2) of the Motor Vehicle Act (1985) 24 D.L.R. (4th) 536
at p. 550 that "the principles of fundamental justice are to be found
.in the basic tenets of our legal system". The Supreme Court has also
stated through Estey, J. in A.G. Ouebec and Keab~e v. A.G. Canada et
a__l (1978) 90 D.L.R. (3d) 161 at p. 193;
"One of the main bastions of the criminal
law is the,right of the accused to remain
silent. In the coldest practical terms,
that right, so long as it remains
unaltered by Parliament, may not be
reduced, truncated or thinned out by
provincial action."
Therefore it can be said that a well-known principle of
fundamental justice, projected as a ~_~-right under s.7 of the
Charter of Rights and Freedoms, that an accused has the right to
remain silent. This is part and parcel of the workings of a fair
criminal justice system wherein an accused is presumed to be innocent
until proven guilty. The onus is on the Crown to prove the elements
of the offence and, at least theoretically, it is not necessary for
an accused to testify at his own criminal trial in order to be
exonerated.
In this case, where the witnesses involved have executed
detailed witness statements about events which span over a
considerable length of time and there are several other persons
charged for the same types of offences in the same institution during
the same period on the basis of these same witnesses' allegations, it
is hardly worthy of prejudicing the grievor's right to a fair trial
in order to save the employer from prejudice due to supposedly
failing memories. As a practical matter in this case, by the time
those witnesses have testified at the different trials of the
different accused, as well as keeping in mind that they have already
testified at· length during the preliminary inquiries, it i~ hard not
to come to the conclusion that they will no doubt have better
memories of the aleged incidences by the time this matter comes for
hearing, if it is adjourned until the disposition of the criminal
matters.
In addition, in keeping with the McWilkiams Award, the
grievor in this case would quite properly .forego the right to
compensation between the time of the adjournment and the time that
the hearing recommences. This again removes any potential prejudice
on behalf of the employer.
With respect to the majority's concern at page 5 of their
Award as to the length of time that the trial may take, it was open
to them to put a time limit on the award if they felt that at a
certain point the prejudice might be too great. It is precisely
because they do not define the prejudice as undue and do not weigh
how important it is versus the grievor's right to have a fair trial
and the right to remain silent, that i find the Award to be flawed,
With respect to the Dissanavake decision, Re Un%¥prsity of
Western Ontario, (1988) 35 L.A.C. (3d) 39, I again must disagree with
the majority wherein they find that this case is similar to the case
that was before us. In my opinion, it is very significant that the
Arbitrator was appointed under the expedited procedure of s.45 of the
Labour Relations Act and his reference to declining jurisdiction must
be read in this context (see p.41). Importantly the arbitrator finds
that the employer is not claiming to rely on .the' police
investigation. That simply is not the case here.
In addition, it is very significant that the arbitrator
discusses at length the Union counsel's contention that there may be
something in the police statements that may assist the grievor's
position at arbitration. I would submit that the discretion is not
unduly fettered by accepting the grievor's prejudice in this case as
being sufficient to outweigh the employer's alleged prejudice of
failing memories. The granting of an adjournment in this case does
not mean that all grievance arbitrations should be adjourned when
there are criminal charges pending. However, in this case, due to
the fact that there will be no prejudice to the employer, and in fact
their witnesses' memories may improve over time because of the
circumstances mentioned above, and in light of the very serious
nature of the charges pending, (which factor I would say is
sufficient to distinguish this case from the DissanaYake decision),
the granting of an adjournment is clearly warranted.
The side stepping of the fundamental issue in this case,
that is an accused right to remain silent and the attendant right to
have Crown counsel prove, without the help of the accused, each
element of the offence, is somewhat muddied by the majority's
reference to "tactical advantages".
in addition, it is important to note that the employer in
this case is the wery same party that will be conducting the
prosecution of the criminal matters. This factor, in my opinion,
increases the very real potential for prejudice to the grievor should
he be effectively forced to testify as to the allegations before the
Crown has been put to the test of proving the elements of the
&
~ 23
criminal charges. This approximates a "legal nexus" between the two
proceedings. (See Re University of Western Ontario, supra, p. 41)
I also wish to note that the civil law has evolved from
different circumstances than were present in an arbitral
jurisprudence history. It is important to note that the judicial
history of the law in this respect shows that there once was an
automatic rule that civil proceedings should be stayed in order to
encourage public prosecutions. Notably the restriction to
"exceptional or extraordinary cases" appeared in cases concerned with
the demise of the old felonius tort rule designed to guard against
the stifling of prosecutions. (See Stickney v. T~us~ (1973) 45 D.L.R.
(3d) 275 at p. 277). Those kind of factors are not relevant in
labour relations. Furthermore, it is my opinion that a disposition
of the criminal matters will be of great assistance to the parties in
dealing .with the arbitration and that should be. a factor which
should be considered in this kind of case.
Bearing in mind that what is at stake during all of this are
two fundamental principles; a man's right to be presumed innocent
until proven guilty in a court of law and that man's right to not be
denied his employment unless for just cause. All of the factors
mentioned above in,my opinion support the granting of an adjournment
request in this case due to the specific facts of this case, and
these reasons contribute to the efficacy and fairness of the arbitral
process.
OPSEU\GSB\D~ssent