Publication
title
Criminal Convictions Conclusive of an Act or Omission
DATE
April 30, 2004
EXPERTISE
The Supreme Court of Canada has recently held that, in most circumstances, a grievor's criminal conviction is conclusive evidence of an unlawful act or omission, carrying with it all consequent legal effects. For employers, this means that an employee convicted of a criminal offence that is factually related to employment probably cannot challenge these facts at any subsequent grievance arbitration.
INTRODUCTION
In Ontario v. Ontario Public Service Employees Union 1 ("OPSEU") and Toronto (City) v. Canadian Union of Public Employees, Local 79 2 ("CUPE") , the grievors were criminally convicted of sexually assaulting individuals under their care or control and, as a result, were terminated from their respective positions. Following their convictions and subsequent dismissal from employment, the grievors filed grievances, claiming that they had been wrongfully terminated and seeking reinstatement.
CASE HISTORIES
At the arbitration hearings, the employers did not produce additional evidence to support the sexual assaults other than recorded testimony from the criminal trials. The complainants were not called to give evidence; however, the grievors testified and proclaimed their innocence. In each case, the arbitrators found that, although the criminal convictions were admissible, they did not constitute conclusive evidence that the facts had occurred as the employers alleged. In each case, the arbitrators found that, based on the evidence before them, the employers did not have just cause for dismissal and ordered the grievors to be reinstated with back pay, despite the fact that reinstatement meant the employers were forced to employ convicted sex offenders.
Judicial review applications were heard by the Superior Court of Justice (Divisional Court), which set aside the arbitration decisions. The Ontario Court of Appeal dismissed the Unions' appeals.
ABUSE OF PROCESS
The issue before the Supreme Court of Canada ("Supreme Court") was whether a grievance arbitrator could find as a fact that an act had not occurred, despite an existing criminal conviction premised upon judicial determination that the act had indeed occurred. The Supreme Court focussed its analysis on the doctrine of abuse of process, noting that:
[.] Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel [.] are not met, but where allowing the litigation to proceed would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.3
The Supreme Court asserted that it would be an abuse of process for an arbitrator to permit a grievor to utilize the arbitration hearing to challenge the facts that underlie a criminal conviction.
The Supreme Court did not go so far as to prevent arbitrators from ever allowing the relitigation of criminal convictions, noting that [t]here may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. 4
WHAT EMPLOYERS SHOULD KNOW
As a matter of typical practice, counsel for unions and employers have often agreed to await the results of a criminal trial before proceeding with the hearing of a grievance where the facts in issue would be common to both. Often, the reason for this has been to protect the grievor: in contrast to the criminal proceeding, where the accused is not a compellable witness, in an arbitral proceeding, the employer can compel the grievor to testify. In such circumstances, the union often fears that the grievor's chances of acquittal in criminal court could be jeopardized, given that, even if his arbitration testimony cannot be used against him, facts that were previously unknown to the Crown prosecutor could be revealed.
Given the Supreme Court's determination that a criminal conviction provides, in most circumstances, conclusive evidence of the occurrence of the facts that gave rise to the disciplinary measures that prompted the grievance in the first instance, tactically, union counsel can no longer take the risk of waiting for the results of a criminal trial before proceeding to arbitration.
In light of the possible resulting change in practice of union counsel, employers are advised to ensure that they conduct an investigation that is as complete as possible and to preserve the evidentiary record acquired in support of their decision to discipline. If unions do choose to proceed to an arbitration before completion of the criminal process, employers may not have the opportunity to rely upon an eventual criminal conviction as evidence of the event(s), providing just cause for the imposition of disciplinary measures.
Although the principles articulated in the Supreme Court's decision will apply equally in Quebec, the context there is somewhat different. Quebec arbitrators have always held that a criminal conviction is conclusive evidence that the facts occurred as alleged. Consequently, where union lawyers seek to use the exceptions noted by the Supreme Court to allow the relitigation of a criminal conviction in an arbitration proceeding, their strategy will likely face an even lower chance of success in Quebec, where the principle prohibiting relitigation has long been established.
Finally, it should be noted that the principle against relitigation of a criminal conviction does not work in reverse: because the burden of proof in a civil proceeding is less onerous than the reasonable doubt standard required for a criminal conviction, where a grievor has been acquitted of a criminal charge based on insufficient evidence, an employer may be allowed to present the same facts at arbitration. In such a case, it will be possible for an arbitrator to arrive at a contrary conclusion regarding the grievor's guilt.
PROFESSIONAL NOTE
Ogilvy Renault is pleased to welcome Darren Power to the Labour and Employment Law Group. Darren graduated from the University of Ottawa with an LL.B. in 1999 and was called to the Ontario Bar in 2001. Darren will practise in our Ottawa office.
- [2003] 3 S.C.R. 149. The OPSEU case is a consolidation of two different, but factually similar, individual arbitrations.
- [2003] 3 S.C.R. 77.
- Supra , note 2 at para. 37.
- Supra , note 2 at para. 52.
The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault or any member of the Firm on the points of law discussed.
©OGILVY RENAULT 2004 - All Rights Reserved
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