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HomeMy WebLinkAbout1994-0491.SAMAROO98_02_26 OfofTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OfofTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTOONM5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 0491/94 OPSEU 94B842 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETfLE:MENT BOARD BETWEEN OntarIo PublIc ServIce Employees Druon (Mohan Samaroo) Grievor - and - The Crown m RIght of OntarIo (Mirustry of the SolIcItor General and CorrectIOnal ServIces) Employer BEFORE Owen V Gray Vice-Chair FOR THE Craig Flood GRIEVOR Counsel Koskie Minsky Bamsters & SoliCItors FOR THE Jane Hooey EMPLOYER Counsel, Legal ServIces Branch Management Board SecretarIat HEARING April 1 and 6, 1998 June 8, 1998 DECISION [1] Mohan Samaroo gneves that he was unjustly dIsmIssed from hIs employ ment as a correctIOnal officer ThIs decIsIon addresses certam prelImmary Issues raIsed by the employer concernmg the eVIdentlary effect to be gIVen m these pro- ceedmgs to the results ofproceedmgs taken agamst the gnevor m cnmmal court Background [2] In late October 1993, two female mmates at the WhItby Jail complamed that a guard - the gnevor - had sexually assaulted them These complamts were reported to the polIce, who mvestIgated them The MmIstry's Independent InvestlgatIOn Umt (the "IIU") was also asked to conduct an mvestlgatIOn, whIch It dId The gnevor was suspended m early November 1993 pendmg completIOn of the IIU mvestlgatIOn. [3] When officers from the Durham RegIonal PolIce sexual assault umt mter vIewed the two complamants, LIsa Watson and Tracy Armstrong, they learned of a thIrd former mmate, Susan Mame, who was allegedly assaulted by the gnevor In early November 1993 the polIce charged the gnevor wIth havmg sexually as saulted Mame, Armstrong and Watson on October 6, 17 and 22, 1993, respec tlvely [4] The IIU mvestlgatIOn contmued for several months In the course of It, the mvestIgator learned of two more women - PatncIa lVl1tchell and Annette QUlbbel - who claimed to have been Improperly treated by the gnevor whIle they were mmates at the WhItby JaIl m the fall of 1993 The mvestlgator shared 2 - thIS mformatlOn wIth the polIce The mvestlgator's report m March 1994 con cluded that the gnevor had sexually assaulted all five mmates on the occaSlOns and m the manner that they had descnbed [5] By letter dated May 19, 1994, the employer mformed the gnevor that It had deCIded to dIsmISS hIm from employment because It had concluded, on the basIs of the IID mvestlgator's report, 1 That you engaged ill sexual unpropnetles agaillst five (5) female illmate offenders between the penod of August 1993 and November 1993 2. In commlttmg these offences you have senously breached the trust placed ill you as a Peace/CorrectIOnal Officer 3 You have breached the secunty prOVISIOns of the illstItutIOn as outhned ill the Standmg Orders by removillg an illmate from a segregatIOn cell wIthout a back up Mr Samaroo ImmedIately filed a gnevance allegmg that the dIsmIssal was un Just [6] The tnal of the cnmmal charges agamst the gnevor began m June 1994 before Judge Dodds The tnal Judge heard testlmony about the three assaults wIth whIch the gnevor was charged He also admItted, as "SImIlar fact" eVIdence, testlmony by PatncIa MItchell and Annette QUlbbel about the assaults they al leged the gnevor had commItted on them. The gnevor testlfied m hIS own de fence He demed each of the allegatlOns and mamtamed that they must have been the result of a conspIracy mItlated by one of the complamants At the end of the tnal, m reasons for Judgment delIvered on March 27, 1995, Judge Dodds found that all five complamants were credIble and that theIr allegatlOns were true [7] Susan Mame's allegatlOns, as the tnal Judgment descnbed them, were that on October 6, whIle escortmg her to the office of the Jail classIficatlOn officer, the gnevor had patted her on the nght buttock. She responded by askmg hIm "What are you domg?", he replIed "Do you lIke It?", she Said "No" and he sald "Then I won't do It agam." 3 [8] Tracey Armstrong's allegatIOns, as the trIal Judgment descrIbes them, were that on October 16 or 17 the grIevor dIrected her to approach the cell bars When she complIed, he reached through the bars and grabbed her breast. She backed away He mVIted her to return to the bars wIthout her ShIrt or brassIere She was astomshed, and spoke to hIm rudely [9] LIsa Watson's allegatlOns, as the trIal Judgment desCrIbes them, were that on October 22, 1993 the grIevor called her out of her cell to sharpen penCIls As they were walkmg down a hallway to the desk at whIch penCIls are sharpened, at a locatlOn out of VIew of other mmates, the grIevor told her that she was a sexy lady and, approachmg her from the rear, grabbed her breasts wIth such force that she had to use both hands to dIslodge hIS grasp [10] Annette Quibbel's allegatlOns, as the trIal Judgment desCrIbes them, were that durmg a weekend m November 1993 the grIevor made a sexIst remark to her, to whIch she responded by throwmg a cup of tea on hIm. Somewhat later that day, the grIevor asked her If she would clean a cell for hIm. She replIed that she would do so If he gave her a CIgarette He released her from the cell. As they were walkmg down a corrIdor, the gnevor suddenly commented on her breasts and reached to touch them She smacked hIS hand away and returned to the cell she was sharmg that weekend WIth PatncIa MItchell, [11] PatncIa l\ihtchell's allegatIons, as the tnal Judgment descnbes them, were that on the day referred to m QUlbbel's testImony, mmutes after Qmbbel re- turned to theIr cell, the gnevor asked MItchel to clean a cell for hIm. She agreed, and he released her from her cell. When they were about 15 feet away from the cell, he pushed her mto a corner, lIfted her shIrt and began klssmg her breasts He stopped when he heard another guard callmg for hIm, and MItchell returned to her cell. [12] Judge Dodds found the gnevor gmlty of sexual assault on LIsa Watson and Tracy Armstrong He concluded that there was reasonable doubt whether 4 the gnevor's unwanted touchmg of Susan Mame had the reqUIsIte sexual ele ment, and found hIm gUIlty of common assault wIth respect to that mCIdent. [13] The gnevor was sentenced on June 12, 1995 In hIs submIsSIOns on sen tence, the gnevor's counsel submItted that the sentence should focus on specIfic deterrence and rehabIlItatIOn, rather than on general deterrence As for specIfic deterrence he submItted that There s no reason to suppose that.rvlr Samaroo IS a threat to anyone at the present trme. While he's trvmg to get hIs Job back through the gnevance procedure, I submIt that It IS perfectly ObVIOUS that wIth three convIctIOns agamst hrm for assaultmg mmates he will not get that Job back, and I submIt that thIS fact would mdIcate that a harsh sentence IS not necessary for purposes of specuic deterrence because he IS deterred from ever workmg m that posItIOn agam. He IS not gomg to be m that posItIon. [14] In hIS reasons for sentence Judge Dodds stated that he had "no doubt that thIs man WIll not offend agam m the manner m whIch he has offended m the past." He Said he would not take the SImIlar fact eVIdence mto account m sen tencmg, as he belIeved that "he should be sentenced for the matters for whIch he stands convIcted" He held that whIle speCIfic deterrence was not a factor, gen eral deterrence was He sentenced the gnevor to two months' mcarceratIOn fol lowed by two years' probatIOn. [15] The gnevor appealed the conVIctIOns That appeal was dIsmIssed m late March 1996 [16] Thereafter, Mr Samaroo's gnevance first came on before me for hearmg on December 18, 1996 The course these proceedmgs took between then and Feb ruary 1998 IS descnbed m my decIsIOn of Februarv 25, 1998 It IS noteworthy that part of the delay m brmgmg thIS matter back on for hearmg resulted from the partIes' agreement to awaIt the outcome of an applIcatIOn for JudICIal reVIeW of the October 15, 1996 deCISIOn of the Board (dIfferently constItuted) m Wlute, 810/95 (Dlssanayake) [17] In Wlute, the gnevor was dIsmIssed from hlS pOSItion as a reSIdential counsellor for sexually assaultmg a female reSldent m the course of hIS employ - 5 ment, after he had been charged wIth and conVIcted of sexually assault on the resIdent. He gneved. He also appealed the conVIctIOn. The appeal was dIsmIssed When the gnevance came on for hearmg, the employer asked the Board to rule that It would accept the convIctIOn as conclusIve proof that the gnevor had sexu ally assaulted the resIdent, and would refuse to allow the gnevor to re-lItlgate that Issue m the gnevance proceedmgs In the alternatlve, It asked that the Board rule ~hat the convIctIOn was pnma facLe proof of the assault. WhIle ac knowledgmg that the Board could admIt eVIdence of the convIctIOn, the umon took the posItlon that the Board could not and should not treat It as proof of the sexual assault for purpose of the arbItratIOn proceedmgs before It. The Board concluded that although the certIficate of convIctIOn would be admItted mto eVI- dence, It would not be appropnate to accept It as proof of the sexual assault, eI ther conclUSIvely or on a pnma facLe baSIS [18] The employer applIed for JudIcIal reVIew of that deCISIOn. In an oral decI SIOn smce reported at (1997) 32 0 R. (3d) 572 sub nom Re the Queen Ln R~ght of Ontarw as represented by the Mimster of Commumty and SOCLal SerVLces and Ontano Crown Employees Gnevance Settlement Board et al, the DIvISIonal Court saId In our VIew the Board wa~ m error as to the u~e whIch may and should properly be made of the conVIctIOn of the gnevor on a charge of sexual assault the very alleged assault that IS apparently rehed on by the employer for dIsmIssal. The deCISIOn made ~eems to have been that the certIficate or other proof of conVIctIOn would be recelVed, but not as pnrna facIR eVIdence of the fact of the assault. That flIes ill the face of recent Court of Appeal decIslOns ill thIS provmce illcludillg DernefRr v Bnt~sh Pac~fic L~fe lnsurcmce Co (1984), 48 0 R. (2d) 266 and Re Del Core and Ontarw College of Pharrnacl))ts (1985) 51 0 R. (2d) 1 Proceedmg on the baSIS of U E S. v B~beault, [19881 2 S C R. 1048 the ruhng by the board IS not one whIch can or ought to attract Juchcwl deference by reason of the Board's speCIal expenence and expertIse and the ruhng goes to the very heart of the carrymg out of ItS statutory dutIes There IS nothmg m sectIOn 48(12)(f) of the Labour Relatwns 4.ct that could support the concluslOn arnved at by the board m ItS prelImmary ruhng As a matter of rmportant publIc polIcy, It IS not permISSIble for a board m the exerCIse of ItS duties srmply to Ignore a relevant determmatIOn made ill a crrmmal tnal, sustamed by our Court of Appeal, as to the accused havmg committed a certam kmd of assault. 6 In the partIcular CIrcumstances of thIS case the Board ought to have made It clear that the convictIOn would be receIVed and stand as pnma fOCLe eVidence of the sexual assault on a female resident of the Huroma RegIOnal Centre at Onlha. The eVidentiary rulIng was wrong, was patently unreasonable and cannot stand. The matter will be returned to the Board for contmuatIon of the hearmg agamst the background of thIS decision We do not deal with the submissIOns alternatIVely made for the first tune at thIS hearmg on the Issues of abuse of process and estoppel. We make no ruhng as to how the eVidence at the hearmg will unfold, or as to the order of eVIdence. That would be mappropnately to trespass m advance on Issues for the Board m the conduct of the hearmg [19] It IS not apparent from the decIsIOn what submISSIOns the employer made before the court "for the first tIme" that It had not made before the Board at first mstance m support of ItS pnmary pOSItIOn that the conVictIOns should be treated as conclUSIve, Irrebutable proof of the mIsconduct for WhICh the gnevor had been convicted Whatever the dIfferences m presentatIOn may have been, m the end the court dId not dIrect that the Board treat the conVictIOns as conclUSIve of the questIOn whether the gnevor m that case commItted the mIsconduct for whIch he had been conVIcted The Preliminary Issues [20] When thIS matter come on for hearmg on February 18, 1998, employer counsel raIsed certam matters as "prehmmary obJectIOns" My deCISIOn of Febru ary 25, 1998 descnbed those matters The employer s prehmmary ObjectIOn IS that the gnevor s conVIctIOns are conclUSIve proof of certam Issue~ of fact m these proceedmgs ThIS obJectIOn" rests on these assertIOns of fact that the deCISIOn to dIsmISS the gnevor was based on five assaults allegedly commItted by the gnevor on female mmates and that those five assaults are the three assaults m respect of which the gnevor was conVicted m crunmal court together With the two assaults about WhiCh the cnmmal court heard Slmuar fact te~tunony The employer asserts that doctrmes of Issue estoppel and abuse of process reqUIre that I treat the certIficate of the conVIctIOns together With the Judge s reasons for Judgment (and perhaps other matenals relatmg to the crunmal proceedmgs) as concluswe eVidence of all five assaults, and preclude the gnevor from chsputmg that eVidence m these proceedmgs In the alternatIVe It contends that the results of the crunmal proceedmgs are pnma foclR eVidence of the assaults on which the employer relIes m these proceedmgs. Employer counsel proposed that I determme as a prehmmary matter whether and to what extent doctnnes of Issue estoppel and abuse of process have the effects for which she contends m thIS case In that connectIOn employer 7 - counsel mtends to call the IID mvestIgator and the pollce officer whose mvestIgatIOn led to the cnmmal proceedmgs, m an effort to establlsh congruence between the basIs of the dIscharge decIsIOn and the basIs of the cnmmal conVIctIOn [21] I determmed that the matters descnbed would be addressed as prelImI nary Issues Havmg regard to the hIstOry of the matter and the course the hear mg took on February 18, 1998, I gave detaIled dIrectIOns WIth respect to the de lIvery of partIculars and dIsclosure of documents m advance of the eVIdentiary portIOn of the hearmg on the prelImmary Issues, WhIch were confirmed m my de CISIOn of February 25, 1998 [22] The umon conceded that the three conVIctIOns regIstered agamst the gnevor could be receIved as pnma facLe eVIdence that he had commItted the mIS conduct for WhICh he was convIcted the sexual assaults on LIsa Watson and Tracy Armstrong and the common assault on Susan Mame The Issues m dIspute that were to be the subject of prelImmary determmatIOn were, therefore, . whether Issue estoppel applIes so as to preclude the umon and the gnevor from dIsputmg m thIS proceedmg the cnmmal tnal Judge's findmgs of mIsconduct by the gnevor toward the five fema!e mmates, that IS, the three mCIdents of mIsconduct that were the subject of con vIctIOns plus the two mCIdents of mIsconduct that were the subject of the "sImIlar fact" eVIdence at the cnmmal tna!, . whether the umon and the gnevor are or should be precluded from dISputmg m thIS proceedmg the cnmmal tnal Judge's findmgs of mIS conduct toward the five fema!e mmates, that IS, the mISconduct for whIch the gnevor was convIcted and the mIsconduct whIch was the subject of the "sImIlar fact" eVIdence at the cnmmal tnal, on the baSIS that dIsputmg those findmgs would be an "abuse of process", and . If the answer on the first two Issues IS "no" WIth respect to the cnmmal tnal Judge's findmgs of mIsconduct toward PatncIa MItchell and Annette QUlbbel, whether those findmgs, whIch were not the subject of 8 convIctIOns, can or should be receIved as pnma fac~e eVIdence of that mIscond uct Evidence With Reference to the Preliminary Issues [23] Employer counsel called Rolph Kluem, of the Durham RegIOnal PolIce, to testIfy about the mvestIgatIOn he and another officer conducted m 1993 con- cermng the allegatIOns that led to the cnmmal charges agamst the gnevor She called Bnan Scott, an mvestIgator wIth the IID, to testIfy about the mvestIga tIOns he conducted that led to the report on whIch the employer allegedly acted m dIsmIssmg the gnevor As much of theIr eVIdence as IS necessary for determI natIon of the Issues at hand has been recIted above m describmg the background agamst whIch the prelImmary Issues arose [24] Dmon counsel called the gnevor, whose testImony m chIef addressed hIS motIvatIOn m pursumg thIS gnevance HIS gnevance seekmg remstatement and compensatIOn had been filed before the cnmmal tnal started The gnevance and arbItratIOn process was the only forum through whIch the gnevor understood he could claim remstatement and compensatIOn. He stated that he had not aban doned hIS claims to those remedIes and that he stIll WIshed to be remstated and compensated. In cross-exammatIOn, he stated that he felt he should be rem stated because he was not gmlty of any of the mIsconduct alleged m the dIs mIssal letter He acknowledged, or at any rate dId not deny, that the allegatIOns agamst hIm at cnmmal tnal had been as I have already descnbed, that he had demed those allegatIOns and stIll demed them, and that he knew of no new eVI dence WIth respect to them. Issue Estoppel [25] In an exchange of correspondence durmg the hearmg, umon counsel as serted, WIth reference to the matter of Issue estoppel, that the employer " was neIther a party nor a pnvy to the cnmmal proceedmg" Employer counsel replIed 9 - that "[t]he Employer does not dIspute that It was not a party or prIVY to the CrImmal proceedmgs" She also asserted that The requrrements Issue estoppel [SlC] are i) that the same questIOn has been decIded, ri) that the Juchclal decIsIOn whIch IS smd to create Issue estoppel was final, ill) That the partIes to the Juchclal decIsIon or therr pnVIeS were the same persons as the partles to the proceeclmgs m whIch Issue estoppel IS raIsed or therr pnVles In response, umon counsel wrote We note the Employer's agreement that the UnIOn had no status wIth respect to and that the Employer was not a party or pnvy to the cnmmal proceeclmg We also note that you have IdentIfied the requrrements Issue estoppel (SIC)" to mclude ~nter aha, that "the partIes to the Juchclal decIsIOn or the pnVles were the same persons as the partles to the proceechngs m whIch Issue estoppel IS rmsed or theIr pnvles " In lIght of thIS we will be requestmg at the outset of the hearmg on April 6 1998 that the Board chsmlss, wIthout hearmg any further eVIdence, the Employer's request for a finclmg of Issue estoppel as between the cnmmal and arbItratIOn proceeclmgs gIVen the acknowledged absence of IdentIcal partles or pnVIes. [26] At the outset of the hearmg on AprIl 6, 1998 (the second day of eVIdence on the prelImmary Issues, before the umon had presented any eVIdence on the prelImmary Issues) umon counsel dId ask that I rule that there was no Issue es toppel, on the baSIS of the admIsSIOn that the employer was not a party or prIVY to the crImmal proceedmgs and employer counsel's deSCrIptIOn of the reqUIre- ments for Issue estoppel. Employer counsel dId not attempt to wIthdraw the ad mISSIOn at that pomt. She explamed that she had mIsstated the reqUIrements of Issue estoppel She saId she would be argumg that the applIcatIOn of Issue estop pel dId not reqUIre that all of the parties or theIr prIVIeS be the same as the par ties to the proceedmgs m whIch Issue estoppel IS raIsed or theIr prIVIeS but, rather, that It was suffiCIent that one of the partIes or ItS prIVY be the same as one of the partIes to the proceedmgs m whIch Issue estoppel IS raIsed or ItS prIVY She submItted that the matter of Issue estoppel should not be deCIded before I had heard that argument I agreed The sIgmficance of the admISSIOn was left to - 10 be addressed m argument after the hearmg of eVIdence on the prelImmary IS sues [27] After the hearmg of eVIdence on the prelImmary Issues had been com- pleted, durmg her closmg argument on those Issues, employer counsel contra dIcted the earlIer admIssIon that the employer was not a party or pnvy to the cnmmal proceedmgs She dId thIS wIthout seekmg leave to wIthdraw the admIs SIOn or even expressly acknowledgmg that she was domg so She read from her wntten submIssIOns that "Mr Samaroo and the Crown m RIght of Ontano were partIes to hIS cnmmal conVIctIOns and of [SIC] the appeal of hIS cnmmal conVIC tlons" and that "[t]he Dmon and the Crown m RIght of Ontano are partIes to" thIS proceedmg Havmg noted that the Dmon was the agent of Mr Samaroo m thIs proceedmg for purposes of advancmg hIS gnevance that there was no cause for dIscharge, she argued that the CIrcumstances she had reCIted satIsfied the thIrd of the reqUIrements for applIcatIOn of Issue estoppel IdentIfied by the Court of Appeal m Rasanen u Rosemount Instrurnents Lwuted (1994), 17 0 R 267 [28] Counsel for the umon objected to counsel's assertmg m argument the con trary of a fact that she had admItted durmg the eVIdentlary portIOn of the hear mg He argued that the employer should be held to the earlIer admISSIOn. I agree My agreement has nothmg to do WIth the fact that I made an order re qUIrmg the delIvery of certam partlculars Indeed, the subject matter of the ad mISSIOn arguably fell outSIde the scope of the matters that my order reqUIred the partIes to partIculanze Nevertheless, emp loyer counsel clearly made and re peated an admISSIOn of fact on a relevant pomt durmg the eVIdentlary portIOn of the hearmg on these prelImmary Issues I have not been asked for and do not grant leave to the employer to WIthdraw ItS admISSIOn. The clalm that Issue es toppel applIes here must be assessed m lIght of that admISSIon. [29] The doctrme of Issue estoppel In the law of Ontano was descnbed thIS way by MIddleton J.A. m McIntosh u Parent (1924), 55 0 L R 552 (C.A.) at 555 Any nght, questIOn or fact chstmctly put m issue and drrectly determmed by a court of competent JunschctIOn as a ground of recovery or as an answer to a 11- claun set up cannot be re-tned ill a subsequent SUlt between the same partlRs or theLr prwlRs though for a chfferent cause of actIOn. The nght questIOn, or fact, once determmed, must, as between them be taken to be conclusIvely estabhshed (emphasIs added) [30] In McIlkenny v Ch~ef Constable and the West Midlands et al, [1980] 1 Q B 283 (C A.), Lord Dennmg and SIr George Baker held that Issue estoppel could apply so as to preclude a party from relItIgatmg m CIVIl proceedmgs an IS- sue decIded agamst hIm as defendant m prevIOUS crImmal proceedmgs, even If the OpposIte party m the CIVIl proceedmgs was not the prosecutor or a prIVY of the prosecutor m the earlIer crImmal proceedmgs On appeal to the House of Lords ([1982] A. C 529, sub nom Hunter v Chwf Constable of West Midlands Pol~ce et al), however, Lord Dlplock observed (at pp 540-1) that m EnglIsh law the deSCrIptIOn "Issue estoppel" should be applIed only to "that speCIes of estoppel per rem Jud~catum that may arIse m CIVIl actIOns between the same partIes or theIr prIVIeS" The test applIed by the Ontano Court of Appeal m Rasanen v Rosemount Instruments L~m~ted, supra, followmg McIntosh v Parent, supra, re- qUIred that the partIes to the proceedmgs m whIch estoppel IS to be applIed must be the parties or prIVIeS of the partIes to the proceedmgs saId to have gIven rIse to the estoppel [31] In VIew of the employer's admISSIOn that It was neIther a party nor a pnvy of a party to the cnmmal proceedmgs, ItS claim that the outcome of those pro- ceedmgs gIves rIse to Issue estoppel m thIS one must fall I leave to a more SUIt able occaSIOn consIderatIOn of the questIOn whether Issue estoppel on the baSIS of findmgs m a crImmal proceedmg can or should apply m labour relatIOns matters even If the gnevor was the accused and the employer was, or was the pnvy of, the prosecutmg entity m the crImmal proceedmgs Abuse of Process [32] The Judgments m McIlhenny v Ch~ef Constable of West M~dlaTtds PolLce et al, supra, and Hunter v Ch~ef Constable of West Midlands PolLce et al, supra, 12 dealt wIth CIVIl actIOns brought by the BIrmmgham SIX, who had been convIcted m 1975 on 21 counts of murder ansmg out of the bombmg of two pubs They were sumg the polIce for assault. The assaults alleged were the same assaults they had alleged m theIr cnmmal tnal as the basIs for theIr claIm that confes SIOns they had gIVen whIle m polIce custody were mvoluntary and therefore m admIssible After a vo~r d~re, the tnal Judge m the cnmmal tnal had found that the SIX had not been beaten whIle m polIce custody, and had ruled the confes SIOns admIssible EVIdence of the confessIOns had then been put before the JUry, as had the accuseds' eVIdence that the confessIOns had been beaten out of them The tnal Judge mstructed the JUry that If they dId not accept that the confessIOns were voluntary, It would not be safe to convIct them. The JUry convIcted them, from whIch It appeared that the JUry had rejected theIr claIm that they had been assaulted by the polIce [33] The SIX mtended to mtroduce through theIr CIVIl tnals new eVIdence m support of theIr claIm that the polIce had beaten them, apparently m the hope that If they succeeded on that baSIS m the CIVIl proceedmgs thIS would pressure the Home Secretary mto pardomng them or reopemng the cnmmal case The polIce moved to have the actIOns dIsmIssed on the baSIS that the findmgs of the Judge and Jury gave nse to an estoppel or, alternately, that the actIOns were an abuse of the court's process The Court of Appeal granted the motIon on both grounds The House of Lords sustamed the result solely on the ground of abuse of process Lord DIplock observed (at p 451) that the plamtIffs' dommant pur pose m pursumg the actIOns was not to recover the monetary remedy aVaIlable to them m those actIOns, It was "to establIsh that the confessIOns on the eVIdence on whIch they had been convIcted were mduced by polIce VIOlence WIth a VIew to puttmg pressure on the Home Secretary to release them from the lIfe sentences " He observed that The abuse of process whIch the illstant case exemplIfies IS m the illItwtIOn of proceedmgs m a court of JustIce for the purpose of mountmg a collateral attack upon a final deCISIOn agamst the mtendmg plamtill whIch has been made by another court of competent JUriSdIctIOn ill prevIOUS proceedmgs m 13 whIch the mtendmg plamtill had a full opportumty of contestmg the decIsIOn m the court by whIch It was made. [34] ThIs doctrme of abuse of process was applIed m Ontano m Demeter v Bnt~sh Pac~fic L~fe Insurance Co et al (1983), 43 0 R. (2d) 33 (Osler, J), affd, (1984), 48 O.R (2d) 266 (Ont C.A.) Peter Demeter had been convIcted of the murder of hIS wIfe, Chnstme The convIctIOn had been confirmed by the Ontano Court of Appeal and by the Supreme Court of Canada Mr Demeter contmued to proclaIm hIs mnocence He brought CIVIl actIOns agamst three msurance compa mes, to enforce polIcIes that provIded for payment to the survIvor of hIm and hIS wIfe upon the death of the other In ItS defence, each msurer alleged that Mrs Demeter had dIed as a result of the cnmmal conduct of Mr Demeter, and that the polIcies were therefore unenforceable (because publIc polIcy precludes any person from benefitmg from hIS or her own cnmmal act) They pleaded that be- cause he had been conVIcted of the murder of hIS wIfe he was estopped from dIS putmg hIS cnmmal responsibIlIty m the CIVIl actIOn and, m the alternative, that It would be an abuse of process for hIm to do so [36] Durmg a pre-tnal de bene esse exammatIOn he conducted, Mr Demeter had stated that he was not there for the money, he was there to re-open hIS case, to establish hIS mnocence After pleadmgs had been completed and examma tIons for-dIscovery conducted, the msurers sought a determmatIOn of the effect that mIght be gIVen to the conVIction m the tnal of Mr Demeter's actIOns and whether those actIOns should be dIsmIssed as an abuse of court's process Mr Demeter's counsel argued that the law m OntarIO was as stated m Hollmgton v F Hewthorn & Co Ltd, [1943] 1 K.B 687 (C.A.) There, the plamtIff m a negli- gence actIOn ansmg out of a motor vehIcle collISIOn asserted that the defendant had been conVIcted of careless dnvmg m connectIOn WIth the collISIOn, and sought to enter a certIficate of the defendant's convIctIOn as pnma faCIe eVIdence of the defendant's neglIgence The EnglIsh Court of Appeal upheld the tnal Judge's rulmg that the certIficate was madmIssIble for that purpose 14 - [36] In Demeter, Mr JustIce Osler concluded (at 48) that HollLngton u Hew- thome was not good law m Ontano On the questIOn of the eVIdentiary effect to be gIven to the convIctIOn, he determmed that proof of It "may be receIved m eVI dence and, If thIS IS done, should be regarded as pnma facLe proof of that Issue, subject to rebuttal by the plamtIff on the ments" On the Issue of abuse of proc ess, however, he found that the actIOns were an abuse of process m the sense de- scnbed by LE)rd Dlplock m Hunter, and for that reason could not proceed [37] The Court of Appeal upheld JustIce Osler's deCISIOn. 48 0 R (2d) 266 In an oral Judgment that quoted m full the passage from the de bene esse examma tIon m whIch Mr Demeter Said he was not there for the money but to re-open hIS case and prove hIS mnocence, the Court saId (at 268) that Weare equally of the VIew that the use of a CIvil actIOn to mItIate a collateral attack on a final decIslOn of a cnmmal court of competent JunsillctIOn m an attempt to relItIgate an Issue already tned, IS an abuse of the process of the court. The alleged fresh eVIdence or eVIdence of fraud or collUSIOn falls far short of supportmg an argument that an exceptIOn should be made to the general rule of publIc polIcy [38] One of two Issues before the Ontano Court of Appeal m Re Del Core and Ontarw College of PharmacLsts (1985), 51 0 R (2d) 1, was whether the dIscIplme commIttee of the respondent college had commItted revIewable error by accept mg a certlficate of conVIctIOn as proof that the pharmaCIst named m It had com mltted the offence for whIch he had been convIcted All three members of the court found that It could Although m that case the pharmaCIst had not pre- sented a rebuttal, all three members of the court addressed the questIOn whether he could have done so [39] Mr Justlce Fmdlayson saId that the pharmaCIst could have called "evI dence m mItlgatIOn or by way of excuse for the offence," but that by mSlstmg that the tnbunal be satlsfied by mdependent eVIdence that the offence dId take place the pharmaCIst was Imtlatmg a collateral attack on a final deCISIOn of competent JunsdIctIOn. ThIS seems to suggest that somethmg lIke the abuse of process doc trme would have applIed so as to prevent the pharmaCIst from attemptmg to 15 - persuade the dlscIplme commIttee that he had not commItted the offence wIth whIch he had been convIcted [40] Mr Justice Houlden dIsagreed He revIewed a number of authontIes whIch, he concluded, supported Mr JustIce Osler's conclUSIOn m Demeter, supra, that a certIficate of convIctIOn was pnma facLe but not conclUSIve eVIdence of the commISSIOn of the offence He then observed (at p 18ff) that the abuse of process doctrme does not apply to every SItuatIOn m whIch a party to CIVIl proceedmgs takes a pOSItion contrary to the outcome of earher cnmmal proceedmgs agamst hIm. The remammg Issue IS whether the defendant should have been prohibIted from mSlstmg m hIS defence on havmg the substance of hIS conduct retned because thIS would be an abuse of process defined m the Demeter case As It was m thIs case the defendant who was seekmg to contest a convlctlOn whIch was tendered by the party who was m effect, the plamtllf m the proceedmgs the doctrme of abuse of process m the Demeter case has no apphcatlOn. The doctrme of abuse of process enunciated m Demeter was formulated by the House of Lords m Hunter u Clnef Constable West lYhdlands Pol~ce et al. (1982] A.C 529 The doctrme apphes accordmg to Lord Dlplock, where a plamtllf mltIates CIVIl proceedmgs, WIthout any real mterest m the outcome m an attempt to challenge a pnor convlctlOn. That the rule apphes only where the plamt~ffhas been convIcted and IS mltlatmg the ClVll proceedmgs IS made clear by Lord Dlplock at p 541 The abuse of process whIch the mstant case exemplifies IS the mltwtlOn of proceedmgs m a court of JustIce for the purpose of mountmg a collateral attack upon a final declslOn agamst the Lntendmg plamtLff whIch has been made by another court of competent JunsdlctlOn ill prevlOus proceechngs m whIch the mtendmg plamtLff had a full opportulllty of contestmg the declslOn m the court by whIch It was made (EmphaSIS added.) The eXIstence of an ultenor motlVe for brmgmg the proceedmgs IS unportant ill the abuse of process cases As Lord Dlplock stated m Hunter at p 54 1 the dommant purpose of thIS actlOn has not been to recover damages but IS brought m an endeavour to estabhsh that the confesslOns on the eVIdence on whIch they were convIcted were mduced by pohce vlOlence WIth a VIew to puttillg pressure on the Home Secretary to release them from the lIfe sentences The motlVes of lYlr Demeter were apparently unportant to the Court of Appeal m Demeter because MacKmnon A.C J 0 quoted, ill an otherwIse very short Judgment, an excerpt from a de bene esse exammatlOn m whIch the appellant said. "I am not here for the money I am here to reopen my case" 16 - The abuse of process doctrme does not apply m thIS case because .Mr Del Core IS not the notIOnal plamtllf who mItlated the proceedmg he IS the defendant. Further he IS very mterested m the decIsIOn that the cIvIl court comes to potentIally a chscIplmary suspensIOn whIch, as the Supreme Court of Canada has noted, can have grave and permanent consequences upon a professIOnal career WIth respect, I cannot agree wIth Fmlayson J.A. that by mSIstmg m hIS defence on havmg the substance of hIS mIsconduct retned, the respondent IS mItIatmg a collateral attack on a fmal decISIOn of a crunmal court of competent JunschctIOn. If that proposItIOn IS correct, the Demeter case has brought about an astoundmg amalgamatIOn of crunmal and cIvIl law whIch has heretofore been unknown m Canachan law [41] Mr JustIce BlaIr agreed wIth Houlden, J.A. that the certIficate of conVIC tIon was pnma facLe but not conclusIve eVIdence mother proceedmgs of the commISSIOn of the CrIme, and added (at p 22) that Smce eVIdence of pnor convIctIOns affords only pnma facw proof of guIlt It follows that ItS effect may be countered ill a vanety 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 unprudent to attempt any exhaustIve enumeratIOn. The law of Ontano IS only now emergmg from the long shadow cast over It by the decIsIOn m Holhngton v Hewthorn, supra. It would be hIghly undesIrable to replace thIS arbItrary rule by prescnbmg equally ngId rules to replace It. The law should remam fleXIble to permIt ItS apphcatIOn to the varvillg CIrcumstances of partIcular cases As for the doctrIne of abuse of process, Mr Justice BlaIr noted that thIS IS a qualIficatIOn to the general rule that a conVIction IS only pnma facLe proof of gUilt m subsequent proceedmgs and subject to rebuttal. The nght to challenge a conVIction IS subject to an unportant qualliicatIOn. A convIcted person cannot attempt to prove that the conVIctIOn was wrong ill CIrcumstances where It would constItute an abuse of process to do so Demeter supra, and Hunter v ChlRf Constable of West L1-hdlands PolLce, [1982] AC 529 Courts have rejected attempts to rehtIgate the very Issues dealt WIth at a crunmal tnal where the CIVIl proceedillgs were perceIVed to be a collateral attack on the cnmmal conVIctIOn. The ambIt of thIS qualliicatIOn remams to be determilled ill future cases Some confUSIOn appears to have ansen between the rule that eVIdence of pnor conVIctIOns IS admISSIble and the doctrme of abuse of process ThIS appears from the passage quoted above from the McArthur case and ill other mcta. It was argued that such eVIdence could only be admItted where It would be an abuse of process to challenge the conVIctIOn. ThIS IS not so The admISSIbIlIty of such eVIdence IS not dependent on a determmatIOn that It would be an abuse of process to attack the conVIctIOn As I have explamed above eVIdence of pnor conVIctIOns IS admISSIble ill all cases where It IS 17 relevant. The abuse of process doctnne can only be mvoked, m partIcular cases to prohIbIt rebuttal of such eVIdence [42] If the abuse of process doctrme dIctated that no one convIcted of a CrIme could seek to counter the eVIdentiary effect of a certIficate of that convIctIOn m subsequent CIVIl proceedmgs, then the abuse of process exceptIOn would swallow up the rule that the conVIctIOn IS pnma facLe but not conclUSIve eVIdence of gUIlt. That IS clearly not what the maJorIty m Del Core had m mmd In Hutchmgs v Nevm (1992), 9 0 R. (3d) 776, Mr Justice Hames summed up the doctrme m a sentence (at 783) The doctrme of abuse of process as set out m Demeter and referred to m Del Core apphes where a plamtili has mItIated CIVIl proceedmgs WIthout any apparent mterest m the outcome WIth the mtentIOn of challengmg a pnor conVIctIOn. As descrIbed by the maJorIty m Del Core, the doctrme does not apply to a party, whether defendant or plamtIff, who has a real mterest m the outcome of the CIVIl proceedmgs m whIch he or she seeks to rebut the eVIdentIary effect of a pnor convIctIOn. Taylor v Banbeau (1985), 51 0 R. (2d) 541 (Ont DIV Ct), RLdley v Blanchard Mutual Insurance Company, [1995] I L R. ~1 3209 (Ont. Ct, Gen. DIV) [43] I do not find It necessary to assess whether, as the umon argues, the pOSI tIOn of a gnevor m a dIscharge case IS more akm to that of a defendant m CIVIl court proceedmgs than to that of a plamtIff. The grIevor clearly has a real mter est m remstatement and compensatIOn, the remedIes sought m these proceed mgs The grIevor attacks the convIctIOns only m answer to the employer's claIm that they prove he has done somethmg that Justified ItS termmatIOn of hIS em ployment It does not appear to me that the grIevor IS usmg these proceedmgs to mount a collateral attack on the earlIer crImmal proceedmgs of the sort that would attract applIcatIOn of the abuse of process doctrme m the CIVIl courts [44] The employer argues that It IS an abuse of process for the gnevor 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 18 - the abuse of process Issue WIth another Issue that may well anse m thIS case but IS not yet properly before me for determmatIOn. [45] The remarks of ASSOCiate ChIef JustIce MacK.Innon m Demeter (quoted above at paragraph [37]) mdlcate that CIVIl proceedmgs mltIated wIthout any apparent mterest m the outcome, wIth the mtentIOn of challengmg a pnor con vlctIOn, may not amount to an abuse of the process of the CIVIl court If the plam tIff offers fresh eVIdence or eVIdence of fraud or collusIOn that meets a certam standard In other words, proceedmgs that would otherwIse be an abuse of proc ess may not be so If the plamtlff offers such eVIdence It does not follow that the fallure to offer that kmd of fresh eVIdence or eVIdence of fraud or collusIOn trans forms proceedmgs mto an abuse of process If they would not otherWIse be so, havmg regard to the convIcted person's motIvatIOn m those proceedmgs I have found that the gnevor's motIvatIOn m challengmg the convIctIOn does not brmg thIS matter wlthm the ambIt of the abuse of process doctrme In those CIrcum stances, the apparent absence of fresh eVIdence or eVIdence of fraud or collusIOn does not make these proceedmgs an abuse of process [46] In Wlnte, the DIVIsIOnal Court dIrected that the Board receIVe a certIficate of conVIctIOn as pnma facLe eVIdence that the gnevor had commItted the cnme of whIch he had been convIcted The Court dId not say what standard rebuttal eVI dence would have to meet m order to outweIgh the pnma facLe effect that publIc polIcy reqUIred that the Board gIVe to the certIficate If a gnevor attempts to re- but a certIficate of conVIctIOn by presentmg the same eVIdence that the cnmmal court reJected m convlctmg hIm, and nothmg more, would treatmg that eVIdence as havmg 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 determmatIOn made m a cnmmal tnal? That questIOn WIll have to be answered m thIS case If, mdeed, thIS gnevor has no eVIdence to offer m rebuttal that the cnmmal court dId not hear It IS not one of the prelImmary Issues I undertook to address m thIS phase of the proceedmgs, however 19 [47] Employer counsel also argued that the submIssIOns on sentence quoted at paragraph [13] above amounted to a submIssIOn that the grIevor's sentence "should be mItIgated due to hIS Job loss," and that It was an abuse of process and contemptuous for the grIevor to seek remstatement m these proceedmgs after havmg made that submIssIOn to Judge Dodds The grIevor's counsel at the crImmal trIal told Judge Dodds that the grIevor was trymg to get hIS Job back through the.grIevance procedure In the remarks that followed, counsel appears to mVIted the Judge to assume that hIS attempts would be unsuccessful It would be premature for me to assess the accuracy of that predIctIOn. It IS for the CrImI nal court, not thIS Board, to determme whether the grIevor's havmg contmued to try to get hIS Job back through the grIevance arbItratIOn process amounts to con tempt of that court. In any event, It does not appear to me that there was any contempt The court was not mIsled about the grIevor's mtentIOn to pursue the claim now before me There was no undertakmg that the grIevor would abandon hIS claim for remstatement The sentence Imposed dId not reqUlre that he aban don It The submIssIOns hIS counsel made to the crImmal court WIth respect to sentence do not make the grIevor's seekmg remstatement an abuse of thIS Board's process The Evidentiary Status of the Findings of Judge Dodds Concerning the Alleged Assaults on Patricia Mitchell and Annette Quibbel [48] The last of the prelImmary Issues IdentIfied m paragraph [22] above IS whether the crImmal trIal Judge's findmgs of mIsconduct toward PatrICIa MItchell and Annette QUlbbel, mIsconduct whIch was not the subject of any con vIctIOn, can or should be receIVed as pnma facLe eVIdence of that mIsconduct m these p roceedmgs [49] Taylor v Banbeau, supra, was a CIVIl actIOn arIsmg out of a collISIOn be tween automobIles drIven by Band J A passenger m J's vehIcle dIed m the COllI SIOn. The passenger's estate sued Band J B was convIcted of dangerous drIvmg on the occaSIOn of the collISIOn. In hIS reasons for Judgment, the crImmal trIal Judge found B solely responsIble for the aCCIdent. One of the Issues raised m the 20 CIVIl proceedmgs thereafter was whether that and other findmgs of fact by the cnmmal tnal Judge would constitute pnma facLe eVIdence of theIr truth as agamst B The DIvIslOnal Court noted that will.le dangerous dnvmg "WIll trans late mto CIVIl neglIgence," the Issues m the two proceedmgs were not IdentIcal because there were Issues of contributory neglIgence and causatlOn m the CIVIl actIOn. It observed (at 51 0 R. (2d) 545-6) that "[e]ven though Judge Zalev may have felt that Issues of causatlOn and contributory neglIgence had some bearmg on the Issues m the cnmmal proceedmg, he was not reqwred to deCIde them." Agamst that background, It held that although a certIficate of the convIctlOn was pnma facLe proof, the reasons for conVIctIOn or findmgs of fact m support of the convIctlOn were not admISSIble m eVIdence m the CIVIl proceedmgs [50] A findmg that the gnevor assaulted PatncIa MItchell or Annette Qmbbel or both was not a logIcal or legal prereqmsIte to findmg hIm gmlty of the offences of WhICh he was convIcted The findmgs that the cnmmal tnal Judge dId make m that regard were not reqwred m that sense They do not have the same eVIden tIary sIgmficance as the Judge's findmgs that the gnevor was gmlty of the cnmes for whIch he was convmced In the absence of the clearest authOrity, I am not persuaded that I am oblIged to treat the cnmmal tnal Judge's findmgs that the gnevor assaulted PatncIa MItchell and Annette Qmbbel as pruna facLe eVIdence m these proceedmgs that he dId so Restrictions on Remedy [51] When argument of the prelImmary Issues Identified m paragraph [22] be- gan, employer counsel asked me to determme a further Issue m a prelImmary way She asked me to rule m advance that If I accepted as fact the conVIctIOns and SImIlar fact findmgs of the cnmmal court, then the pOSSIble outcomes m thIS proceedmg would be lImIted to upholdmg the gnevor's termmatIOn or awardmg hIm a sum of money m lIeu of remstatement [52] If I ultimately find that the gnevor "applIed force" to an mmate "except the mmImum force necessary for self-defence or the defence of another person" or 21 that he "sexually molested" an mmate, then even If I conclude that hIS mlscon duct was msufficlent cause for discharge, subsectIOn 7 (4) of the Crown Employees Collectwe Bargammg Act, 1993, S 0 1993, c.38 ("CECBA") provides that I am without power to order that he be remstated to a posItion that mvolves "direct responsibilIty for or that provides an opportumty for contact with" mmates Sub sectIOn 7(6) of CECBA prOVIdes, however, that I could m those Circumstances or der that he be returned to employment m another "substantially eqUIvalent pOSI tIon." What counsel for the employer was seekmg, then, was an advance deter mmatIOn that I would not exerCise that power m the gnevor's favour [53] In support of tills submIssIon, assertIOns were made about the gnevor's qualIficatIOns and the unavailabIlity of "substantially eqUIvalent posItIOns" There was no eVidentiary support for those assertIOns, as employer counsel con ceded Further, and more fundamental, the submissIOns were Simply out of or der ThIs was not an Issue I undertook to determme on a prelImmary baSIS, and was premature I declme to deal WIth It at thIS stage Summary [54] The umon has conceded that the three conVictIOns registered agamst the gnevor can be receIVed as pnma fane eVIdence that he had committed the mIS conduct for whIch he was conVicted the sexual assaults on Lisa Watson and Tracy Armstrong and the common assault on Susan Mame The same does not apply to Judge Dobbs' findmgs that the gnevor assaulted PatncIa MItchell and Annette QUlbbel, which assaults were not the subject of conVictIOns The gnevor IS not precluded by doctnnes of Issue estoppel or abuse of process from attempt mg to rebut the facts of which the conVIctIOns WIll be treated as pnma facLe eVI dence [55] QuestIOns about the nature of the eVIdence necessary to rebut the facts of whIch the conVIctIOns Will be treated as pnma facLe eVIdence, and particularly whether the burden of persuaSIOn would be shifted to the employer If the gnevor were to present the eVidence that the cnmmal court rejected m convlctmg him 22 and nothmg more, are not properly before me at thIS prelImmary stage Nor are questIOns about the remedy that mIght be granted If I am ultImately persuaded that dIsmIssal was an exceSSIVe reactIOn to any mIsconduct of whIch the gnevor IS found gUIlty m these proceedmgs Such questIOns may be raIsed at a more ap propnate stage of the proceedmgs IS 1J~ Dated at TOl'onto thIs JAth day of September, 1998