OPSEU Takes Two Cases to the Supreme Court of Canada
A) OPSEU v. Ministry of Community and Social Services: Does a criminal conviction take away an arbitrator’s right to evaluate all the evidence and to rule in favour of the employee?
In two separate arbitrations, vice chairs of the Grievance Settlement Board (G.S.B.) ruled that OPSEU could call evidence to challenge the facts underlying a criminal conviction which had been relied upon by the employer to justify termination of long service employees. The vice chairs ruled that, while the
conviction constituted prima facie evidence of misconduct, OPSEU was entitled to attempt to rebut that evidence. In one of the two cases, OPSEU called extensive rebuttal evidence which the vice chair described as overwhelming. He concluded that the prima facie evidence arising from the criminal conviction had been rebutted and that in those
circumstances there was no just cause for the discharge. He ordered reinstatement and full compensation. In the other case, the vice chair ruled that he was prepared to hear the rebuttal evidence offered by OPSEU, which included evidence that was not before the criminal court.
However, before the hearing proceeded any further, the Employers sought judicial review of the decisions of both arbitrators. Ultimately, the Court of Appeal ruled that the "doctrine of finality" precluded relitigation of the findings of the criminal court in all but the most limited of circumstances. Both OPSEU
and CUPE 79 successfully sought leave of the Supreme Court to appeal the decision. The appeal is scheduled to be heard by the Supreme Court of Canada on February 13, 2003. OPSEU will be represented by Craig Flood of Koskie, Minsky.
The Appeal before the Supreme Court raises important legal issues. What is the evidentiary effect of a criminal conviction in a subsequent civil proceedings such as an arbitration? Does the party seeking to rebut the evidence arising from a conviction need to demonstrate some particular type of evidence – such
as new, previously undiscovered evidence, evidence of fraud in respect of the criminal trial? As well, which legal body gets to decide on these issues – the GSB as arbitrator or a court on judicial review? Under the Labour Relations Act and the Crown Employees Collective Bargaining Act, the GSB has the discretion to admit evidence not
admissible in a court and has the exclusive jurisdiction to determine whether there is just cause for discharge. OPSEU's position is that this means that it is the GSB as arbitrator which gets to determine what evidence it is going to hear- such as evidence offered in rebuttal of the criminal conviction. As well, it is the Union's position
that decisions made in the criminal proceeding – such as whether the accused will testify or even call a defence- should not preclude the scope of a defence in the arbitration when the person's employment is at stake.
As many know, Bill 25 has made criminal convictions conclusive evidence of misconduct before the GSB. This legislation was introduced 4 days after the appeal before the Court of Appeal and before it rendered its decision. However, it has been OPSEU's position that this legislation does not affect the rights of
the grievors in these two specific cases. Furthermore, the Appeal is still important for the many members of OPSEU who work under the Labour Relations Act and whose grievances are heard before arbitrators other than the GSB.
B) OPSEU and Parry Sound: Does a rights arbitrator have the power to rule on a human rights discrimination claim made on behalf of a probationary employee where the collective agreement does not allow grievances concerning probationary discharges?
An arbitrator ruled that OPSEU could advance a claim of discrimination on the basis of pregnancy and family status, even though the grievance concerned a probationary employee and the collective agreement arguably took away the right to grieve probationary discharges. The arbitrator reviewed her jurisdiction under the
Labour Relations Act s.48(12)(j), which gives the power to “interpret and apply human rights and employment related statutes, despite any conflict with the collective agreement”. She found that the ban on probationary grievances conflicted with the Human Rights Code, because the effect was to halt the enforcement of human rights at arbitration. The
arbitrator issued a preliminary award stating she had jurisdiction to hear and resolve the grievance claim that the probationer was not made permanent because she was pregnant.
The employer applied for judicial review and argued 1) the parties had agreed that probationary employees grievances were inarbitrable and 2) the human rights claim could be heard by the Human Rights Commission. Ultimately, the Court of Appeal held that the employee’s human rights should probably be dealt with by the
arbitrator, but the issue was resolved by the Employment Standards Act, which is incorporated into every collective agreement and provides protection against discrimination on the grounds of pregnancy. The Supreme Court granted the employer’s motion for leave to appeal. The appeal is scheduled to be heard by the Supreme Court of Canada on January 24,
2003. OPSEU will be represented by its General Counsel, Tim Hadwen.
The appeal before the Supreme Court of Canada raises important legal issues. What is the extent of arbitral power to deal with human rights? Can the collective agreement parties agree that arbitrators will not deal with human rights? If arbitrators always have jurisdiction over human rights, how should that jurisdiction be
exercised?
OPSEU's funding of these cases before arbitrators and in the courts, up to the Supreme Court of Canada, once again confirms its role as a leading defender of important legal principles on behalf of unionized employees.
The Grievance Settlement Board decision is attached.
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