Divisional
Court Says Unions Cannot Challenge Criminal Convictions At
Arbitration, But That Decision Is Under Appeal
In May 2000, the Ontario Superior Court of
Justice (Divisional Court) ruled that arbitrators do not have the
jurisdiction to question a grievor’s criminal conviction. OPSEU
has appealed.
The Divisional Court heard three applications
for judicial review. One involved the conviction of a City of
Toronto employee on a charge of sexual assault of a child at a
recreation centre where he worked. A second concerned an OPSEU
member, a residential counsellor employed by the province,
convicted on a charge of sexual assault against a developmentally
challenged female resident. In a third case, another OPSEU member,
a provincial Correctional Services employee, was convicted of
sexual assault against two female inmates, and assault against a
third. In each case, the conviction had been affirmed on appeal.
However, the arbitrators who heard the discharge grievances
refused to accept the convictions as conclusive evidence that the
grievors had committed the crimes. In fact, two of the arbitrators
concluded that the grievors had not committed the sexual assaults
and ordered the grievors reinstated.
The question before the Divisional Court was
whether an arbitrator may conclude that a person criminally
convicted of an act did not in fact commit it.
In the Court’s view, s. 22.1 of Ontario’s
Evidence Act, which states that "[p]roof that a person
has been convicted or discharged anywhere in Canada of a crime is
proof, in the absence of evidence to the contrary, that the
crime was committed by the person", applied to all three
arbitrations. At its arbitrations, OPSEU led "evidence to the
contrary" in the form of testimony not presented at the
criminal trial. That evidence convinced the arbitrators. But
Ontario’s Divisional Court concluded that an arbitrator could
not review a conviction. The Court ruled that "The arbitrator
has no jurisdiction or right to conduct a review, nor absolve or
pardon the conviction". The Court declared that, in each
case, the union’s attempt to initiate a collateral attack on the
convictions was forbidden.
OPSEU is appealing to the Court of Appeal on
the grounds that the criminal justice system is no better at
getting at the truth than the arbitration system, and that an
arbitrator should be free to decide if there is sufficient
evidence to cast doubt on a criminal conviction. The appeal will
likely take a year.
