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:
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:
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:
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
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.