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HomeMy WebLinkAbout1995-0810WHITE98_03_16 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 ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (41(1) 326-1396 GSB # 0810/95 OPSEU # 9SD080 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 Ontano (Mirustry of Commuruty and SOCIal ServIces) Employer BEFORE N DIssanayake Vice-Chair FOR THE C Flood UNION Counsel KoskIe Minsky Barnsters & SolIcItors FOR THE C Samaras EMPLOYER Counsel Legal ServIces Branch Mimstry of Commumty & SOCIal ServIces HEARING March 13, 1998 2 PRELIMINARY AWARD This interim decision deals with a motion made by the union In order to understand the nature of the motion, it is necessary to set out the background within which it was made The grievor was employed at the Huronia Regional Centre (HRC) in Orillia, ontario in the position of Residential Counsellor In August 1993, Mr Dan Wither, a fellow-employee, first raised the allegation that back in April 1989, he witnessed the grievor sexually assault a female resident of HRC The Police was contacted and the grievor was charged with sexual assault Mr wither was the sole prosecution witness at the trial The grievor pleaded not guilty, but did not testify He was convicted by the jury on March 28, 1995 The employer did not conduct any investigation of its own However, relying on the conviction, the grievor was discharged on May 1, 1995 The Board is seized with his grievance alleging discharge without just cause At the hearing, an issue arose between the parties as to the legal significance of the certificate of conviction By decision dated October 15, 1996, the Board held that for purposes of the arbitration before it, the certificate of conviction would not be received as conclusive or prima facie evidence of the fact that the sexual assault occurred Upon jUdicial review of that decision, the court partially disagreed with the Board's decision In its judgement [Reported at (1997) 32 o R (3d) 572] the court held that "In the particular circumstances of this case the Board ought to have made it clear that the conviction would be received and stand as prima facie evidence of the sexual assault" The court left 3 undisturbed, the Board's decision to the extent that it refused to accept the conviction as conclusive proof of the sexual assault When the hearing was reconvened, the union agreed to proceed with its evidence first, without conceding that any legal onus had shifted to it as a result of the court's decision It was understood between the parties that any dispute as to legal onus would be addressed in the final submissions at the end of the proceeding Accordingly the union proceeded to call its evidence Seven witnesses, including the grievor, were called by the union After the evidence of the seventh witness had been completed the union made the instant motion, which was opposed by the employer The motion by the union is for an order that at this point where the union had called seven witnesses, the Board should direct that the employer proceed with all of its evidence in support of just cause and the appropriateness of the penalty imposed, without requiring the union to close its evidence The union then would be entitled to decide at the closing of the employer's evidence, what additional evidence, if any, it ought to call Union counsel submitted that to avoid any prejudice to the employer, th~ Board may allow the employer an opportunity to call surrebuttal evidence, as it deems necessary In the course of arguing this motion, both counsel spent considerable time on general principles, which in the Board's view are not controversial nor in dispute between these parties It is therefore sufficient to merely set out some of those general principles that have a bearing on the issue here 4 It is a trite principle that in a discharge arbitration proceeding the employer is in effect the "plaintiff", who is asserting the existence of just cause for the penalty imposed In other words, the onus is on the employer and this onus is not affected by the order of proceeding Re Brown Brothers Ltd , (1973) 2 LAC (2d) 347 (Weatherill), Re International Nickel Co Of Canada Ltd , ( 1989) 20 LAC 51 (Brown) , Re Sherbrooke Metallurgical Co Ltd , (1968) 19 LAC 276 (Weatherill: See generally, Evidence and Procedure in Canadian Labour Arbitration, Gorsky, Usprich and Brandt, (Carswell ) It is also not in dispute that normally the burden of proceeding first to establish just cause for discharge is on the employer The parties appear to agree also that the Board has a broad discretion in evidentiary matters section 48 (12) (f) of the Labour Relations Act permits the Board "to accept oral and written evidence as the Board in its discretion considers proper, whether admissible in a court of law or not" There is no dispute that as the master of its own procedure, the Board has a broad discretion in procedural matters While the foregoing principles are generally applied by arbitrators, they are not carved in stone In unique circumstances, the principles may have to varied That is where the fact of the grievor's conviction and the court's decision with regard to its impact on this arbitration must be considered Counsel for the union submits that the court's ruling that the conviction should be considered as "prima facie evidence" of the sexual assault, has no bearing on the legal or evidentiary burden normally borne by parties to an arbitration in a discharge grievance Counsel points out that if the court so intended, it would have clearly stated that the union -- - 5 should bear the burden of rebutting a presumption that the grievor had corrunitted the sexual assault But the court did not do so In the circumstances, according to counsel, the proper reading of the court decision is to conclude that the conviction should be treated as "one piece of evidence" the Board ought to consider in deciding whether the employer had established just cause Counsel urged that the court decision should not result in the union being put in a situation where if it failed to rebut the presumption, it thereby loses the grievance even if the employer called no other evidence besides relying on the conviction On another occasion counsel put it in different words - that "the union had no onus to show that there was something wrong with the conviction", before it can succeed with the grievance Employer counsel conceded that it had, and continues to have, the legal onus of establishing just cause for the grievor's discharge However, his position is that if the union is not successful in rebutting the presumption resulting from the conviction, by that fact alone the alleged sexual assault can be relied upon as just cause without the need for any other evidence to be called to prove that offence Therefore counsel contended that the employer was entitled to hear all of the union's evidence that bears upon the rebuttal of the presumption before deciding what additional evidence, if any, it ought to call Counsel pointed out that if the employer ultimately calls additional evidence which the union could not reasonably have anticipated, it would be open for the Board to avoid any prejudice to the union by allowing a broad right of reply evidence However, counsel vehemently opposed the union's motion as being a clear attempt to split the evidence it is requ~red to call in order to rebut the presumption arising out of the conviction 6 In The Law of Evidence in Canada, Sopinka and Lederman, (Butterworths) at p 73 the authors write The terms "pr ima facie evidence", "pr ima facie proof" and "prima facie case" are meaningless unless the writer explains the sense in which the terms are used For clarity and conciseness it is preferable, where possible, to explain the evidentiary effect consequent upon the proof of certain facts rather than to indiscriminately use these mixed Latin-English idioms Unfortunately, the Divisional Court held that the conviction would constitute "prima facie evidence", but did not go on to explain what effect it had on the evidentiary burden of the respective parties Nevertheless, the Board does not agree with union counsel that the courts failure to elaborate should be seen as an intention on its part that the union ought not bear an onus of rebutting the presumption In Sopinka and Lederman (supra) , at p 108 it is stated Thus, a rebuttable presumption is a \\ rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent" No prescribed language or formula is necessary in order to create a statutory rebuttable presumption, for example "in the absence of evidence to the contrary", "pr ima facie proof or evidence", "unless he proves", "until the contrary is proved", and "unless he establishes" This passage includes a number of propositions First, the phrase "prima facie evidence" when used in a statute, creates a rebuttable presumption Second, such a rebuttable presumption compels the trier of facts in the absence of evidence to the contrary from the other party The Divisional Court, as noted, ruled that the conviction would stand as prima 7 facie evidence of the sexual assault The Board sees no reason why such language, when used by a court, should not have the same result as when used in a statute In any event, a review of this Board's original decision dated October 15, 1996 and the court's judgement partially quashing that decision, does not permit the conclusion urged by the union that the conviction should be treated merely as one piece of evidence before the Board Before the Board, the employer had made two alternate submissions Its primarary position was that the conviction should be taken as conclusive proof of the sexual assualt Alternatively, it was submitted that the conviction should be treated as prima facie proof The union did not object to the filing of the certificate of conviction per se However, it took the position that the conviction should not be accepted as conclusive or prima facie proof of the offence, but merely as one piece of evidence The Board in its decision dated October 15, 1996 agreed with the union It refused to treat the conviction as either conclusive or prima facie proof and at pp 30-31 held that "The conviction and transcripts, if filed, would constitute one aspect of the evidence that will be considered by the Board in making its findings H There can be no doubt that the court disagreed with this ruling of the Board The court directed that the Board ought to have held that the conviction should "stand as prima facie evidence of the sexual assault H In the Board's view, the position taken in the present motion by union counsel, that the convlctlon is only one piece of evidence, is the very position that was accepted by the Board, and quashed by the courts B The court made it clear that the union, and the Board, were wron9 in that regard and the court's pronouncement is binding on the Board Given that the union has an onus of rebuttin9 a presumption that the sexual assault occurred, which ~s the result of the eourt's judgement, it the presumption i5 not rebutted, ~he Board will be compelled to conclude that the sexual assault occurred In the circi.Unstances, the Board concl..l.des that the employer is entitled to hear all of the evidence the union has to offer in its attempt to reb1.'lt the presu!npt.ior' , before it decides what additional evidence, if any, it ought to call Ui1ion counsel appeared to draw a distinction between the union's c,bligation to call evidence to rebut the presumption and the employer's obligat~on to call evidence to establish j u:s t cause. However, in light of the court's jUdgement there is no clear distinction between the two The just c.use asserted by the employer i~ th~ alleged sexual assault It the presLm~tion arising out of the conviction is not l:eb~tted, the sexual assault, and therefore the just cause, will have to be deemed provenr whether or not the employer adduces further evidence to support the existence of just cause The union's argument in favour of its motion was two fold First, that its proposal is fair to both parties Second, that its proposal has the prospect of narrowing the scope of the ev~dence to be called and shortening the hearing Reliance was placed on Murphy V Willi3.ms Operatincr Corp., (1997) 30 C C.E.L. (2d) 90 Ont ct Of Just.ce, Gen Div While those factors may generally influence the €!xercise of the Board's discretion, in view of the Divisional CourtJg d~rectio~ that the conviction be treated as prim~ facie eV4denoe of the sex~al ~ssault, t.he Board is not prepared to exercise it$ discret~on to grant the motion 9 The union shall adduce any evidence ~t ~i~hes to lead and close its case If the employer choses to adduce additlcnal evidence in support of just cause, the union shall receive a reasonable and broad opportunity to meet that evidence in replz if it so chooses The result elf all of the foregoing is that the l.:n:o.on/s motion lS denied Dated this16thday of March, 19S8 at Hamilton, Ontario ~~~~~d~~ NJ,ma~ssanayake Vice-Chairperson