HomeMy WebLinkAbout1995-0810WHITE96_10_15
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
.
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G lZ8 TELEPHONE ITELEPHONE (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPfE (416) 326-1396
GSB # 810/95
OPSEU # 95D080
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (White)
Grievor
- and -
The Crown in Right of ontario
(Ministry of community & social Services)
Employer
BEFORE N Dissanayake Vice-Chairperson
FOR THE C Flood
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE C Samaras
EMPLOYER Counsel
Legal Services Branch
Ministry of community & Social Services
HEARING June 25, 26, 1996
2
PRELIMINARY DECISION
This is a grievance dated May 2, 1995 filed by Mr Jack R
White, claiming that the employer has discharged him without cause
At the commencement of the hearing the parties argued a
preliminary issue between them on the basis of the following agreed
statement of facts
AGREED STATEMENT OF FACTS
1 Mr Jack White, the Grievor, was employed at
Huronia Regional Centre in Orillia, ontario,
in the capacity of residential counsellor He
was employed in that capacity from 1970 to
1984 and subsequently from 1984 to 1995
2 On or about August 3, 1993, Mr Dan wither
("Wi ther") , another residential counsellor,
made a statement to the Employer to the effect
that, on or about April 17, 1989, the Grievor
had sexually assaulted a female resident of
the Centre in the course of employment
wither subsequently made a similar report to
the Orillia city Police
3 In response to the report by Wither, the
Employer took various action as described in
the letter of August 13, 1993 (Exhibit 1)
4 In accordance with the employer's agreement
with the Orillia City Police if they so
requested and in accordance with the request
of the Orillia City Police in this case, the
Employer did not conduct any independent
investigation of the allegation against the
Grievor
3
5 On or about November 16, 1993, the Grievor was
charged with sexual assaul t ~n violation of
section 271 of the Criminal Code of Canada in
connection with the alleged incident reported
by wither
6 In response to the criminal charge against the
Grievor, the Employer suspended him with pay,
pursuant to the letter of November 17, 1993
Exhibit 2) On December 9, 1993 (Exhibit 3),
the Employer transferred him to a landscaping
position, where he would have little or no
contact with residents, with no loss of payor
change in classification, pending the outcome
of the criminal proceedings Neither the
Grievor nor the Union grieved this suspension
with payor the transfer
7 A trial by jury was held before the Honourable
Mr Justice J D Bernstein of the ontario
Court (General Division) on March 27 and 28,
1995 in Barrie, Ontario The Grievor pleaded
not guilty The Grievor did not testify and
the Defence called no evidence
8 On March 28, 1995, the jury found the Grievor
guilty as charged
9 On April 4, 1995 the Employer suspended the
Grievor with pay in light of the criminal
conviction (Exhibit 4)
10 On April 10, 1995, at the request of the
Employer, the Grievor provided the Employer
with his written statement with respect to the
alleged incident (Exhibit 5)
11 The Employer terminated the employment of the
Grievor pursuant to the letter dated May 1,
1995 and attached hereto as Exhibit 6
4
12 On or about May 2, 1995, the Grievor grieved
the termination of his employment, pursuant to
the grievance attached hereto as Exhibit 7
13 On or about May 3, 1995, the Grievor was
sentenced to a suspended sentence and placed
on three years probation
14 On or about May 31, 1995, the Grievor appealed
his conviction The grounds for the appeal
are set out in the notice attached as Exhibit
8
15 On or about April 23, 1996, the ontario Court
of Appeal dismissed the appeal, with the
endorsement on the record as attached as
Exhibit 9
(attachments omitted)
THE ISSUE
To put it simply, the employer takes the position that it
ought to be allowed to rely on the conviction of the grievor in the
criminal courts and the dismissal of his appeal, as proof before
this Board of the fact that the grievor committed the sexual
assault Counsel submits that the Board should make an order that
it will not hear any evidence as to whether or not that sexual
assault occurred It is submitted that the Board should accept as
a starting point that the sexual assault occurred and proceed to
hear evidence and submissions as to whether such conduct
constituted just cause for discharge and whether there are any
mitigatory factors which should lead the Board to reduce the
penalty
5
In the alternative, the employer takes the position that if
the Board is not prepared to accept the conviction as conclusive
proof of the sexual assault, it should direct the union to proceed
first in order to establish to the Board's satisfaction why,
despite the conviction, the Board should relitigate that issue In
effect, the submission was that the conviction should be accepted
as prima facie proof that the grievor committed the sexual assault
and that the onus placed on the union to rebut that presumption
The union agrees that the certificate of conviction is
admissible in evidence as proof of the fact of conviction
Similarly the union did not object to the admission in evidence of
the transcripts of the trial Counsel conceded that it may be used
at this proceeding for a number of legitimate purposes, such as
establishing prior inconsistent statements by a witness However,
the union submits that the fact of conviction should not be
accepted by the Board as proof of the facts alleged nor should it
in any way alter the onus a grievor normally has before the Board
in a discharge case The union submits that as in any other case,
the onus should remain on the employer to prove, with due regard to
the rules of natural justice, the facts relied upon as constituting
just cause for the discipline imposed
Union Submissions
The union relies on several statutory provisions in arguing
that the Board would be declining its jurisdiction, if it allows
6
the relief the employer seeks Section 48(1) of the Labour
Relations Act stipulates that the Grievance Settlement Board "shall
make a final and conclusive settlement of the differences between
the parties", Section 48(1)(a) gives the Board the power "to
determine the nature of the differences in order to address their
substance", Section 48(12) (f) gives the Board the power "t.o admit
and act upon such oral or written evidence as he, she or it
considers proper, whether admissible in a court of law or not", and
section 48(17) states that where the Board "determines that an
employer has imposed a penalty on an employee for cause", it may
"substitute such lesser penalty as (it) considers just and
reasonable in all the circumstances" Similarly Section 19(1) of
the Crown Employees Collective Bargaininq Act requires the Board
when seized with a grievance to "decide the matter" Counsel
submits that the "matter" required to be decided by the Board
includes all issues including factual issues
Counsel points out that the Board is not part of the court
system Its powers are derived not from the Courts of Justice Act,
but the Crown Employees Collective Bargaining Act and The Labour
Relations Act As such, it is not bound by the civil court's Rules
of Procedure nor is it bound by any court decisions, except on
those matters relating to jurisdiction where the Board is required
to be correct Counsel submits that S 19(1) of the Crown
Employees Collective Barqaininq Act requires that the Board give
"full opportunity to the parties to present their evidence and to
7
make submissions", before deciding the matter before it
Therefore, it is the Board that must decide the matter and its
decision must be based on the evidence and submissions that it has
received
with regard to the grievor's case, counsel points out that the
grievor had maintained throughout that the allegation by Mr wither
was a complete fabrication At the trial he pleaded not guilty
In his statement to the employer on April 10, 1995, he directly
took the position that Mr wither had fabricated the allegation and
gave reasons as to why he believed Mr Wither was motivated to do
so Thus this was not a case where an employee who had pleaded
guilty or had previously admitted to the wrong-doing was attempting
to "back-track"
Counsel further points out that the grievor did not testify at
his criminal trial Therefore the court had no opportunity to
consider the grievor's position that Mr Wither had a motive to
fabricate the allegation He submits that it is trite law that an
accused in criminal proceedings has no obligation to testify The
grievor should not be penalized for exercising that right on the
advice of his defence counsel Counsel assured the Board that the
grievor was not only prepared to testify at this arbitration, but
was willing to waive the sOlicitor/client privilege, so that his
defence counsel at the criminal trial could testify before the
Board, if necessary, as to why he chose not to call any evidence on
8
behalf of the grievor at the trial Counsel submits that there is
credible evidence that the union is anxious to offer to the Board,
which was not adduced at the trial The evidence will prove that
Mr Wither lied and had a motive for doing so
Union counsel submits that it is well established that in a
discharge case before the Grievance Settlement Board an allegation
of criminal or quasi-criminal conduct must be proved by evidence of
a particular standard, namely, "clear, cogent and convincing
evidence" In each case the Board must determine whether there is
sufficient evidence of the quality required for it to be satisfied
that the conduct had occurred as alleged If the employer's
position is accepted, the Board will be reaching a conclusion that
the alleged offence took place, with no direct evidence whatsoever
before it relating to those events The only evidence before it,
~
the certificate of conviction, would be of a hearsay nature
Counsel relies on Re Girvin and Consumers Gas Co (1973) lOR
( 2d) 421 Ont Div ct as supporting the proposition that even
though hearsay evidence is admissible before the Grievance
Settlement Board, by excluding the evidence of the grievor and
relying exclusively on the conviction and depriving the union an
opportunity to cross-examine the evidence presented, the Board
would be denying a fair hearing to the union
union counsel filed with the Board numerous authorities In
Re Casey, 100/78 (Adams) the employer had discharged the grievor
9
following the release of the Royal Commission on the Toronto Jail
and Custodial services by the commissioner, Judge Barry shapiro
At the Grievance Settlement Board hearing, the employer sought to
introduce the Royal Commission Report and the transcripts of the
inquiry for the truth of the matters therein relating to all events
giving rise to the grievor's discharge While not refusing to call
additional evidence, the employer took the position that the Report
and the transcripts should be accepted as sufficient evidence
before the Grievance Settlement Board The report had made
findings of misconduct against the grievor The employer was
relying on those findings as constituting just cause for the
grievor's discharge The union, relying on Re Girvin and Consumers
Gas (supra) objected to this process, claiming that the employer
ought not be permitted to base its whole case on hearsay evidence
The Board at p 3-4 held
It is our opinion that the Report of the Royal
Commission is not admissible in these proceedings to
establish the truth of the matters therein reported The
policy for this approach is, of course, found in the
hearsay evidence rule, the requirements of natural
justice, and section 9(1) of the Public Inquiries Act,
1971 The Board ought to be provided with the best
evidence available in support of an employee's dismissal
and, in turn, the employee must be provided with a
meaningful opportunity to cross-examine those persons who
tender evidence against him To rely exclusively on the
Royal Commission Report would fly in the face of these
fundamental principles
At p 4-5, the Board observed
But such public access and the undoubted diligence
of the Commissioner do not mean that the Report's
findings with respect to highly controversial facts and
allegations are correct They are one man I s opinion
after having had the opportunity to observe the response
10
and demeanour of all the witnesses brought before him
It is the duty of the Grievance Settlement Board to
perform this same function and come to its own judgement
with respect to the issues relevant to this grievance
Re Fov, 99/79 (Swinton) was also a discharge case The
grievor, like Mr White, was a residential counsellor He was
discharged on the basis of two alleged culpable acts, including an
alleged assault of a resident The grievor was convicted of
assault in the criminal courts and his appeal to the County Court
was dismissed The Board at p 8 stated as follows with regard to
the relevance of the assault conviction
It must first be noted that while Foy has been
convicted in a criminal court of assault, that court is
a different forum and the conviction cannot determine our
findings here Counsel for management agreed with this
at the hearing This Board must decide whether an
assault occurred and the gravity thereof on the basis of
the evidence and argument presented before us It should
perhaps be noted that we have heard different witnesses,
including the grievor, who did not testify at his trial
because he was physically unable to do so due to the
state of his alcoholism
The Board went on to make its own findings based on the
evidence before it
In Re Silverwood Dairies, (1982) 3 LAC (3d) 289 (O'Connor)
the two grievors had been given a 10 day suspension following their
conviction in the criminal courts for common assault The union
did not object to the filing of the conviction as evidence of the
same, but took the position that
11
the arbitrator has available to him or ought to have
available to him all the witnesses which gave evidence at
the earlier trial and accordingly the arbitrator is in
the best position to weigh their evidence, observe the
witnesses and draw his own conclusions from the evidence
as to the facts in question and in conclusion states that
the arbitrator is entitled to hear all the evidence which
was placed before the trial Judge and be free to draw his
own inferences from evidence provided
Referring to the Divisional Court decision in Re City of
Toronto and C.D.P.E. Local 79, (1981) 125 D L R (3d) 249,
Arbi trator 0' Connor held that the transcript of the trial was
admissible However he went on
As to what weight the arbitrator will give the
official transcript in reviewing the discipline imposed
by the employer can only be considered when all the
evidence has been presented by counsel for the union and
the employer In an arbitration hearing concerned with
the matter of the imposition of discipline upon an
employee, the arbitrator is concerned only with the
employment relationship between the employer and the
employee The reason for the discipline,t he severity of
the discipline, the justification of the discipline are
matters to be considered upon a full review of the
evidence The relevancy of a transcript of conviction in
a Court for common assault will be one of the matters
considered in that full review and it is at that time
that the relevancy of the contents of that transcript
will be considered
In Re City of Toronto, (1978) 19 LAC (2D) 388 (Christie)
the grievor had been dismissed from his job following receipt by
the City Council of a report of Judge G F H Moore arising out of
a judicial inquiry pursuant to s 240 of The Municipal Act Before
the arbitrator, the employer took the position that it should not
be required to adduce evidence on the facts The employer went on
to submit
12
You will be aware that His Honour Judge G F H Moore
made a report dated October 5, 1977 in respect of the
grievor to the Council of the corporation of the City of
Toronto respecting certain allegations against the
grievor and that Judge Moore's report was submitted
pursuant to section 240 of The Municipal Act The
Inquiry conducted by Judge Moore took 29 hearing days,
Mr Risdon had reasonable notice of the misconduct
alleged against him, he was given a full opportunity
during the Inquiry to give evidence and to call and
examine or cross-examine witnesses, and upon conclusion
of the evidence, through his counsel, he was given a full
opportunity to make submissions to Judge Moore
The action taken by the Employer in respect to the
grievor was based entirely upon the matters dealt with by
Judge Moore in his report
At arbitration, the Employer intends to rely on
Judge Moore's report, a copy of which is enclosed
Arbitrator Christie held that "Because in my view no such
report standing alone has sufficient cogency in law to justify the
denial of grievances such as those before us, it makes no sense to
admit the report" Thus he ruled the report inadmissible
At p 405 the Board observed
It follows that each arbitration board must fulfil
the particular function for which it is appointed It
must find its own facts on the basis of the evidence
presented before it and reach its own interpretation of
the collective agreement with regard to the latter
function arbitrators and arbitration boards commonly
afford respect to the principles developed by their
predecessors, particularly where they are dealing with
the same collective agreement, but each arbitrator or
arbitration board must find the facts for its case on the
basis of the evidence that it hears As Paul Weiler,
sitting as a single arbitrator, stated in Re Douglas
Aircraft of Canada Ltd and U A W (1972) 2 LAC ( 2d)
56 at p 58
13
Although (a previous arbitrator's) general
legal judgments may be of persuasive value
before me, the same cannot be said for his
findings of fact I can only decide what
probably happened on the basis of the evidence
in the record before me
That this is true as between arbitrators and
arbitration boards has never been doubted even though
different findings of fact based on the same event may
tend to bring the process into disrespect Because
arbitration has its own unique dynamic, a fortiori an
arbitration board cannot give over its fact-finding
function to some other decision maker It therefore
involves no disrespect whatever to His Honour Judge Moore
to suggest that it might be quite improper for this board
of arbitration, in effect, to accept His Honour's
findings of fact as our own It might be that if the
city had chosen not to agree to have the cogency in law
of Judge Moore's report dealt with as a preliminary
matter, the report could have been of assistance in
attempting to assess any other evidence the city might
choose to call, but to rely on such a report, standing
alone, would be to abdicate our function under the
collective agreement
The Divisional Court [at (1981) 125 D L R (3d) 249] quashed
arbitrator Christie's award However on a careful reading of the
court's decision it is apparent that the court did not disagree
with arbitrator Christie's observations quoted above, including the
proposition that the report standinq alone did not have sufficient
cogency in law to justify the denial of the grievances The
problem the court had was that, because the arbitrator felt that
the report by itself would not be of sufficient cogency, he refused
to admit it at all In effect the court held that the report
should have been admitted and its cogency and weight determined
after all of the evidence was in Thus at p 251 the Court wrote
14
The board herein has unduly restricted the powers of
such a board when it has ruled that it could not take
account of findinqs of fact made by any County Court
Judge under s. 240. All relevant evidence should be
before it. We are given to understand that it is the
practice to exclude hearsay in spite of s 37(7)8c) We
were referred to four other instances where boards of
arbitration have refused to admit in evidence reports of
other bodies In each case, the report itself was
considered There will be cases where such a report will
be excluded because it can have no relevancy or because
the principles of natural justice were offended or where
the employee had little or no opportunity to participate
But in each case the particular report must be considered
before the discretion is exercised. Where there is some
relevancy, the general tendency will be to admit it as
the board and the Divisional Court in obiter here
indicated it would have done It may well be that it
will have little or no weight but until all the evidence
is in the question of weight must remain undecided The
lack of opportunity for cross-examination, for
observation of the witnesses, the absence of other
evidence, all would tell against weight
(Emphasis added)
In Re Chrysler Canada (1983) 11 LAC ( 3d) 415 (Palmer) , in
dismissing the grievor, the employer had relied on a culminating
incident, namely theft of a radio In the criminal courts the
grievor was convicted of the theft based on the testimony of a
witness who testified that he had paid the grievor $ 200 to steal
the radio for him Since the trial that witness had moved to the
United states and was unavailable to testify at the arbitration
Therefore, the only evidence the employer had to establish the
culminating incident was the hearsay evidence of the conviction and
the transcripts of the trial The Board's response in the
circumstances is found at p 416
At the hearing, counsel for the company argued
strenuously that the fact of conviction and the
15
transcript should be admitted as legally admissible
evidence in this matter However, it was my ruling that,
while the fact of conviction could be admitted, such
cannot be used to prove the underlyinq facts of the
conviction. Similarly, while I was prepared to exercise
my discretion under The Labour Relations Act, R.S.O.
1980, c. 228, to accept the transcript, such was not
evidence which would be admissible in a court of law and
could be only used for corroborative purposes in this
matter. Consequently, as no evidence admissible in a
court of law was present in this matter, but only
evidence of either a hearsay or circumstantial nature, it
was my decision that the company had not established the
facts upon which they wished to base their culminating
incident
(Emphasis added)
In Re city of Timmins, (1994) 43 LAC (4th) 35 (Betcherman)
the grievor had been convicted of assault At arbitration the
employer requested that the transcript of the criminal trial be
admitted as proof of conviction and proof of the facts While
taking the primary position that the transcript should be accepted
as proof of the facts, the employer nevertheless adduced direct
evidence before the arbitrator to establish the alleged offenses
At p 43 arbitrator Betcherman indicates that she was not prepared
to accept the transcript as proof of the facts She observed
While taking to account the transcript of the
grievors' trial and conviction for assault, I have made
my factual determinations on the basis of the evidence
before me, which was fuller and differed in some respects
from the evidence before the court
In Re Barber Hydraulic Turbine Ltd. (1978) 19 LAC ( 2d) 247
(0' Shea) the grievor had alleged that a fellow employee had set
fire to his work overalls Following a fire Marshall's
16
investigation it was determined that the grievor himself had
ignited his clothing He was charged and convicted of giving a
false statement Following the conviction the grievor received
notice of termination which stated inter alia that "You are thus
dismissed today based essentially upon the judgement of the court,
more skilled than the company in these matters"
Over the union's objections, the arbitrator admitted the
transcript of the criminal trial to establish the fact of
conviction The company nor the union called any direct evidence
relating to the incident that led to the conviction However, the
Board held that "In view of the nature of the offence of which the
grievor was convicted and the company's obligation to operate the
plant safely and efficiently" the evidence of the conviction by
itself gave just cause for disciplinary action since the grievor
tendered no probative evidence which would establish that he was
without blame
However, the Board ruled that "it was not bound by the
findings of fact contained in the reasons for judgement", and
clearly indicated that had the grievor adduced probative evidence,
it would not have hesitated to make findings of fact different from
those found by the court Thus at p 251 it wrote
In light of the grievor's conviction, we find that
an onus of explanation shifted to the grievor Had the
grievor adduced evidence which would have permitted this
board to make a finding that the grievor had not been
guilty of any misconduct prior to his injuries or that he
in no other manner engaged in deceptions to the detriment
17
of the company, we would have no hesitation in accepting
such evidence even though the Provincial Court, on other
evidence, reached a contrary conclusion We do not
presume to sit as some kind of an appellate tribunal over
the Provincial Court Our jurisdiction is separate and
distinct from the jurisdiction exercised by the
Provincial Court Our jurisdiction is limited to
interpreting and giving effect to he provisions of the
collective agreement between the parties
In Re Government of Nova Scotia, (1990) 13 LAC (4th) 443
(MacLellan) the grievor was charged with being unlawfully in
possession of a narcotic She pleaded not guilty but was
convicted Her conviction was upheld on appeal to the County
Court As a result of the conviction the grievor was dismissed
from her employment
At arbitration the Board noted that the grievor had not
testified at the trial and that "as a result the crown evidence
that was placed before the trial judge enabled him to draw an
inference from the facts, that the grievor had knowledge of the
three marijuana plants in the shed" and that on appeal the court
concluded that the trial judge was entitled to draw that inference
At p 447, the arbitrator noted
It is to be noted that the grievor did not testify
at her trial and as a result the trial judge did not have
the benefit of hearing her testimony and, therefore, was
not able to assess her credibility as regards the
truthfulness of her complete denial
At this hearing the grievor testified and completely
denied having any knowledge of the marijuana field or of
18
the three marijuana plants that were found in the
upstairs of the shed
Having reviewed the testimony of the grievor, the arbitrator
held
Having had the benefit of hearing the grievor
testify I have to determine whether or not she was
truthful Of course, if I find that she was telling the
truth then the employer would not have grounds to dismiss
her, because of any involvement that she may have had
with non-medically prescribed drugs I have already
found that there was not sufficient evidence to link the
accused with the cultivating charge Also, I have
summarized some of the more relevant portions of the
testimony and the decision of the trial court Clearly
I have to weight the entire evidence I have before me
which now includes the testimony of the qrievor which was
not forthcoming at her trial.
Having observed the grievor's demeanour while she
testified which included the way that she answered the
questions under careful cross-examination I have come to
the conclusion that I believe her testimony She has
vehemently denied any knowledge of the marijuana and she
was not shaken in her extensive cross-examination I
have to say that there were certainly suspicious
circumstances linking the grievor to these narcotics,
absent any explanation on her part She has testified at
this arbitration and I have accepted her testimony
Having accepted her testimony I must therefore order that
she be reinstated without loss of wages or benefits
(Emphasis added)
with regard to the employer's alternate submission that the
union be required to proceed first with its evidence, union counsel
submits that that is appropriate only if the employer can establish
that its evidence is not available to be adduced before the Board
Since the employer does not suggest that the evidence is no longer
available, the employer should be directed to lead its evidence
19
first as usual The employer can adduce the conviction and the
transcripts of the trial as part of its evidence, but it does not
constitute prima facie proof of the facts They are pieces of
evidence the Board has to consider along with all of the other
evidence led by the employer and the union The admission of the
conviction and the transcripts should not, according to union
counsel, in any manner change the nature of the evidentiary or
legal onus normally applied in a discharge arbitration
Emplover submissions
Employer counsel points out that the standard of proof
required to obtain a conviction in the Criminal Courts is higher
than that applied by the Grievance Settlement Board Therefore he
submits that the Board should hold that findings of fact made by
the Criminal courts are reliable as proof of the facts
Counsel points out that in this case the employer elected to
forego its right to carry out its own investigation of the alleged
assault and to defer to the police investigation and the results of
the criminal proceedings Counsel submits that that was a
reasonable approach to take and having taken that the employer
should be entitled to rely on the guilty verdict returned by the
jury
Counsel submits that in this particular case the factual issue
before the courts and the issue before Grievance Settlement Board
20
were identical, namely, whether the grievor committed the alleged
sexual assault Since it has been proven "beyond reasonable doubt"
before the court that he did commit that sexual assault, it must
necessarily satisfy the lower standard of proof on a "balance of
probabilities by clear, cogent and convincing evidence" required
before the Grievance Settlement Board Counsel submits that the
Board's expertise in labour relations matters do not corne in to
play in determining whether a sexual assault occurred, since the
criminal court was as qualified or more qualified in that regard
Counsel submits that by defering to the findings of the criminal
justice system the employer conferred a significant advantage on
the grievor, in that, he received the benefit of a higher standard
of proof
The employer cited a number of cases where arbitrators had
admitted convictions and criminal court transcripts However, that
is not in issue, since the union does not object to their
admissibility per se. The issue is whether the Board should treat
them as proof of the facts for the purpose of determining the
grievance The employer did not cite any arbitration decision
where a guilty verdict had been treated as proof of the facts
\
\, before the arbitrator However, counsel relied on a public policy
argument citing Demeter v British Pacific Life Insurance Co.
(1983) 43 o R ( 2d) 33 (High Court of Justice), upheld on appeal
(1948) 48 0 R (2nd) 266 (C A ) In that case the plaintiff sued
three insurance companies on policies by which the defendants
21
agreed to pay the survivor of the plaintiff and the plaintiff's
wife specific sums of money upon the death of the other Prior to
the civil action, the plaintiff had been convicted of murdering his
wife, and the defendants pleaded the conviction by way of defence
The plaintiff denied the allegations of criminal wrongdoing on his
part and alleged that there was evidence to suggest that his wife
had been killed by someone unconnected with the plaintiff The
court dismissed the action Counsel relied on the following parts
Osler J's judgement
the circumstances of this case, the fact of conviction
for the non-capital murder of his wife, the dismissal of
his appeals up to and including the Supreme Court of
Canada, and the refusal of the Minister of Justice to
reopen the case, persuade me beyond peradventure that to
permit these actions to go forward would result in a
travesty of justice and would bring the administration of
justice into disrepute It would be, in the most fitting
phrase of Schroeder J A , in Kennedy v Tomlinson et al
(1959) , 20 D L R ( 2d) 273, 126 C C C 175, "an
unedifying spectacle" (p 50)
Nothing is put forward, therefore, by the plaintiff
to justify me in concluding that, if the prior conviction
were admitted in the present actions as prima facie
evidence of the fact that the plaintiff killed his wife,
any evidence is available to the plaintiff that would
cast doubt upon that proposition In view of the solemn
verdict of the jury, properly charged with respect to the
burden of proof, the fact that proof must be beyond a
reasonable doubt, and the identify of the issue before
the jury with the issue in the present actions, it would
be an affront to one's sense of justice and would be
regarded as an outrage by the reasonable layman to let
these actions go forward In the exercise of the court's
inherent jurisdiction they will each be dismissed with
costs (p 51)
22
Employer counsel disagreed that the inability of the union to
cross-examine witnesses and to have the Board make its own findings
on the basis of the evidence it hears, would result in a breach of
natural justice Counsel argued that the grievor had ample
opportunity to lead any evidence he had and to cross-examine the
crown's witnesses during his trial While conceding that neither
the employer nor the union were parties at the trial, counsel
submits that their participation could not have made any difference
to the factual issue According to counsel the union could not
have had any labour relations issue to raise before the court and
it has no such purpose in coming before the Board The issue was
a simple factual issue of whether or not a sexual assault occurred
As counsel put it "He either did it or he did not" Counsel argued
that the union's only purpose at the Grievance Settlement Board is
to relitigate the same issue which had been determined at the
trial While conceding that the conviction and transcript may be
technically "hearsay", counsel distinguishes them from the normal
hearsay evidence which the Board will be reluctant to rely upon
He points out that the conviction was based on evidence received
under all of the strict safeguards and evidentiary rules in the
criminal justice system Therefore he submits that the conviction
and the transcripts though hearsay before the Board, are reliable
evidence before the Board
--
23
DECISION
The employer's position on its face has much appeal "What
more is there for the employer to prove, when the sexual assault
has been proven beyond reasonable doubt in a court of law", one may
ask with some justification However, a closer analysis of the
criminal justice system and the regime of collective bargaining and
this Board's role mandated by legislation readily reveals that the
issue is not so simplistic After very careful consideration of
the able submissions of both counsel and the case law presented,
the Board concludes that, even if it is a proper exercise of the
Board's jurisdiction to do so, it is not appropriate to accept the
conviction of the grievor as proof before the Board of the fact of
the sexual assault, either conclusively or on a prima facie basis
The employer placed much emphasis on the fact that it had made
an "election to defer to the criminal justice system" It was
submitted that it should be entitled to do so Reliance was placed
on cases such as Re Phillips Cables Ltd. (1974) 5 LAC (2d) 274
(Adams) which recognize that employers may suspend without pay an
employee who has been charged with a criminal offence, and await
the outcome of the criminal justice process It was argued that
similarly the employer should be entitled to elect to not take any
action until the result of the criminal justice process is known
and to be bound by it However, in the Board's view the analogy
between the two situations, suspension while charges are pending
24
and discharge following conviction is not appropriate In the
former situation the suspension is allowed not because of any
presumed guilt of the employee, but because the Board of
Arbitration has been convinced that the risk or the uncertainty
about his guilt while charges are pending, by itself is just cause
for his removal from the work place If the employer satisfies an
arbitrator that the mere existence of the charges poses a
detrimental effect on its operation, its election to suspend the
employee pending the disposition of the charges may be upheld In
doing so the employer takes a risk that the employee will be found
guilty If he is found not guilt~ the employer would either have
to rescind the suspension and compensate the employee, or maintain
the suspension and be prepared to prove the offence before an
arbitration board Thus in Re Phillips Cables, at p 283 the Board
stated
The employee cannot be treated as if he has
committed the offence Rather, he is labouring under the
risk of his guilt, and so may be his employer and fellow
employees Accordingly, the company must establish that
this risk of guilt presents a substantial and immediate
hardship to itself or to its workers, and that this
hardship cannot practicably be met by anything other than
the suspension of the employee This requirement
accommodates situations where workers or customers refuse
justifiably to deal with the employee, or where he cannot
be transferred or watched more closely pending an
official determination of his status
To meet this requirement the company will have to
investigate the criminal charges to the best of its
abilities in order to assess the extent of this risk of
conviction and thereby assess what can be reasonably done
in the circumstances
25
In the case at hand, the employer has not discharged the
grievor because of the conviction per se It is not saying that it
cannot have an employee with a criminal conviction on its payroll
The just cause relied upon is not the conviction per se, but the
conduct which led to be conviction, ie that the grievor sexually
assaulted a resident It is asking the Board to make a finding
that a sexual assault occurred based on the fact of conviction
Moreover, there is no evidence that in this case the employer
made any commitment to be bound by the results of the criminal
justice system No agreement was sought nor received from the
grievor or the union to be so bound Nor was the grievor or the
union informed that the employer had elected to be bound by the
results of the criminal process More specifically, there was no
commitment made that it would be bound by an acquittal There was
nothing that would have prevented the employer from attempting to
prove before the Grievance Settlement Board that the grievor
sexually assaulted the resident in question, even if the grievor
had been acquitted of the criminal charge
As the authorities presented by the union recognize, the
criminal justice process and the proceedings before an arbitration
board are quite distinct in purpose and in relation to the rules
that apply The grievor here had maintained throughout that he was
innocent Prior to his discharge he informed the employer that Mr
Wither had fabricated the allegation and gave reasons as to why he
26
was motivated to do so That information has not been the subject
of adjudication by any competent body In deciding not to testify
at the trial, after pleading not guilty, he was following the
advice of the defence counsel The defence counsel in a criminal
trial is not necessarily concerned with the employment
consequences His task is to obtain for his client the best result
in the criminal justice process
On the other hand, the union has a statutory obligation to
represent the grievor in relation to his employment interests The
union is the party before the Grievance Settlement Board It had
never had an opportunity to represent the grievor in relation to
his alleged offence since it had no standing or role to play at the
trial It is not proper in these circumstances to bind the union
to the decisions and strategies adopted by a defence counsel and
the results thereof
It is common ground that no doctrine of Res Judicata or
estoppel can apply here since the parties at the trial and at the
Grievance Settlement Board are completely different Nevertheless,
is it reasonable to take the position as the employer suggests,
that having elected not to testify or to call other evidence about
the alleged fabrication by Mr Wither at the trial, the grievor and
his union should now be prohibited from leading such evidence
before the Board? I think not An accused in a criminal trial is
entitled to certain rights, one of which the right not to testify
27
The accused is entitled, within the confines of the law, to adopt
any strategy that serves his best interests in relation to the
charges he faces A strategy which is advantageous in the criminal
courts where the facts are tried by lay persons may not be as
advantageous in another forum I do not consider it appropriate to
force the grievor to take a step at the trial which he does not
consider to be in his best interests as far as the charges are
concerned, as a result of concern that taking the most advantageous
strategy at the trial may jeopardize him before another tribunal
An accused must be able to put forward his best defence at the
trial without fear or concern that that would in any way take away
the rights he would otherwise have before another tribunal In the
present case the grievor had informed the employer before his
discharge that he had evidence to establish that Mr Wither had
fabricated the allegation and that he had motives for doing so He
even described those alleged reasons for Mr wither's motivation
I do not consider it proper to bar the union from leading that
evidence before the Board, merely because the grievor failed to
adduce that evidence at the criminal trial on the advice of his
defence counsel
I agree with the approach of the Board in Re Casey (supra)
While there the employer was attempting to rely on a Royal
commission Report as opposed to a conviction in a criminal court,
the rationale still is valid Vice-Chair Adams (as he then was)
clearly recognized the integrity of the Commissioner (a judge) and
28
the process under the Public Inquiries Act Yet he ruled that the
Grievance Settlement Board ought to be provided with the best
evidence available in support of the grievor's discharge and that
the union must be provided a meaningful opportunity to cross-
examine those persons who tender evidence against the grievor
While recognizing the function carried out by the commissioner, the
Board ruled that "It is the duty of the Grievance Settlement Board
to perform this same function" Similarly, the Board in Re Foy
(Supra) determined that the "Court is a different forum and the
conviction cannot determine our findings here"
Furthermore, the facts at the trial were assessed by a jury,
which comprises of peers from the community A jury examines the
evidence presented and arrives at a "guilty" or "not guilty"
verdict on the specified charge The jury does not give reasons
for the verdict Noone ever gets to know why a particular juror
reached the particular verdict and what portions of the testimony
against the grievor was accepted as proven and what was not In
arbitration proceedings, the Board is concerned with the gravity of
the conduct itself more than the label that is attached to it For
example, anything from sexual touching to a violent rape may lead
to a conviction for sexual assault At arbitration, the fact that
a sexual assault occurred is not the only relevant information
The nature of the assault, whether it was premeditated, where it
was committed and what impact that had on the victim and the
employer and a variety of other factors will determine the degree
29
of a grievor's culpability The conviction or the transcripts of
the trial will not reveal what the jury's findings were in relation
to any of these factors
Furthermore, the Board does not consider it appropriate to
defer to the findings of fact made by a jury The jury system, no
doubt, has been long recognized as a valuable and respected
institution in jUdicial systems in most democratic countries They
no doubt serve the purpose for which they were established The
system of trial by jury consisting of one's peers has necessarily
built into it the prevailing social norms, prejudices and beliefs
within the particular community That is an inherent
characteristic of a jury system The elaborate jury selection
process which is allowed recognizes this and attempts to allow the
parties an opportunity to minimize any prejudice
In contrast, when the Crown Employees Collective Barqaininq
Act, S 18(2) gives an employee an unconditional right to have his
discharge arbitrated before the Grievance Settlement Board, the
legislature would not have intended that determinations will be
made by community peers with all of the influencing factors
Rather, the intention was that all decisions, including factual
decisions, will be made by the Board which consists of trained and
experienced arbitrators To bind the grievor to a finding made by
a jury of peers in a different forum under a different process
30
would be to deny him his statutory right to arbitration before the
Grievance Settlement Board
In the Board's view, while the policy expressed in Demeter,
(supra) may be valid within the Court system, the same is not true
where the union is seeking to represent the employee under a
completely different set of rules before a wholly different Forum
Any policy considerations that favour the employer's position, in
my view are far outweighed by the considerations that lead to a
conclusion that the grievor must have the opportunity to have his
arbitration heard by the Board in full, including determination of
facts Besides, in Demeter, Osler J notes that the plaintiff did
not claim that "any evidence is available that would cast doubt"
upon the proposition that he killed his wife The same cannot be
said here If the grievor can convince this Board that Mr wither
fabricated his allegation, it will certainly cast doubt on the
proposition that the grievor com~itted the alleged sexual assault
For all those reasons, the conviction of the grievor and the
transcripts of his trial will be admitted, but not as proof of the
facts Subject to the union's right to object, the employer may
use those for any purpose during the hearing When this hearing
resumes, the employer will be required to proceed first and to
prove the facts upon which it relies on to establish just cause in
the normal manner The conviction and the transcripts, if filed,
- -
31
would constitute one aspect of the evidence that will be considered
by the Board in making its findings
The Board remains seized and directs the parties to consult
with the Registrar for purposes of scheduling this matter
Dated this 15thday of October, 1996 at Hamilton, Ontario
... -- L.
~ ~ /'?/c ..I~A..-< ~~J -' I..
.---'-_:.--.. ~ .' . . /' -~
i ~---_.-. I
-- Nimal~1ssanayake
Vice-chairperson