An “absolute verity”: Court quashes arbitration awards reinstating workers convicted of workplace sexual assault

In a stinging decision issued on May 5, 2000, the Ontario Divisional Court has severely rebuked no fewer than three boards of arbitration presiding over discharge grievances of employees criminally convicted of sexual assault.

In City of Toronto v. CUPE, Local 79, the Court held that arbitrators are bound by the findings made in a superior court. In so doing, the Court quashed two awards reinstating the grievors, and another in which the arbitrator had ruled that the grievor’s conviction was prima facie, but not conclusive, evidence that the grievor had committed the crime.

ARBITRATOR: AN “OPEN MIND” ON GRIEVOR’S GUILT

One of the three awards considered by the Court arose out of the grievance of Glenn Oliver, a Recreationalist with 26 years’ seniority at Toronto’s Parks Department. Oliver was arrested and charged with sexual assault following a complaint by John B., a minor and a participant in Oliver’s drama programs.

Oliver admitted befriending the boy, but denied the allegation of sexual assault. At his trial the issue was therefore one of credibility, and the trial judge found John B. to be more credible. Oliver was sentenced to 15 months in jail followed by one year’s probation. His appeal was dismissed without reasons by the Ontario Court of Appeal.

Four days after his conviction, Oliver was terminated by the City of Toronto. He grieved his dismissal, claiming it was without just cause. The arbitrator agreed. He stated that the employer’s position amounted to saying that it could rely on the simple fact of the conviction to establish just cause, without having to satisfy the arbitrator that Oliver actually did what he was convicted for. To this, the arbitrator responded:

“I have no jurisdiction to make a determination about [whether Oliver was wrongfully convicted]. However, I have to listen to the evidence and keep an open mind to the possibility that, notwithstanding the evidence of the conviction, [Oliver] did not do what he was accused of by B.”

The arbitrator criticized the employer for not conducting its own investigation into John B.’s allegations, but instead relying on the police probe. He expressed the view that, where a grievor maintains his or her innocence, the employer must itself prove just cause, and not rely on a criminal conviction as a basis for discharge.

Having determined that the conviction could not by itself establish just cause, the arbitrator proceeded to look into the question of the grievor’s guilt. This came down to whether Oliver or John B. was more credible. The arbitrator held that he was not bound by the trial judge’s finding in favour of John B. In the end, the arbitrator stated that he did not accept John B.’s story, thereby concluding that Oliver had been truthful in denying the sexual assault.

THE COURT: GRIEVANCES “A COLLATERAL ATTACK ON A COURT ORDER”

Stating that the issue was whether arbitrators had the jurisdiction to “treat the employee’s guilt as tentative, ‘retry’ the criminal case, pronounce the grievor ‘innocent’ of the criminal charge of which he has been convicted and order the grievor reinstated with full compensation”, the Court held firmly that they did not.

The grievors, the Court stated, were using the arbitration process to mount a “collateral attack” on the criminal courts’ rulings. It explained the meaning of this term by quoting from the Supreme Court of Canada’s 1983 decision in Wilson v. The Queen:

“The record of a superior court is to be treated as absolute verity so long as it stands unreversed. … It is … well settled [that a court order] may not be attacked collaterally – and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.”

ARBITRATORS’ VIEWS “TOTALLY IMMATERIAL”

The Court then sent a stern message to arbitrators about the use to which convictions should be put, and about the role of arbitrators in relation to the criminal courts:

“[The certificate of conviction] is not “a piece of evidence” that may or may not be persuasive depending upon the view taken by the arbitrator of the evidence adduced at the arbitration. … In Canada, there is an elaborate criminal justice system in place to process alleged breaches of the Criminal Code of Canada. Nowhere in that system do we find the presence of arbitrators. In short, it is totally immaterial whether the arbitrator agrees, disagrees or is uncertain of whether the grievor is guilty of the offence set out in the certificate of conviction.”

As a result, the Court quashed all the awards under review.

In Our View

Employer’s counsel was quoted in the press as stating the judgment makes sense, because of the higher burden of proof in criminal trials than in arbitrations. It should be noted that, in all three cases considered by the Court, the grievors had unsuccessfully appealed their convictions.

However, it should also be noted that courts do qualify somewhat their treatment of criminal convictions in subsequent non-criminal proceedings. For example, in Re Del Core and Ontario College of Pharmacists, a 1985 decision of the Ontario Court of Appeal, the Court observed that

“[t]he problem of using certificates of criminal conviction in civil actions, is that the criminal offence does not always translate freely into a civil cause of action. In cases where it does not, the proof of conviction may be of limited help, but in either case, to insist that the civil court or other tribunal is required to have proven to its satisfaction by independent evidence that the offence did in fact take place, is to relitigate the issue in a collateral proceeding.”

For more recent develoments, see “Court of Appeal upholds court order quashing reinstatement of worker convicted of sexual assault” on our Publications page and “A “blatant abuse of process” – Supreme Court of Canada rejects bid to reinstate employee convicted of sexual assault” on our What’s New page.

For further information, please contact Andrew Tremayne at (613) 563-7660, Extension 236, or Steven Williams at (613) 563-7660, Extension 242.

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