Supreme Court of Canada Rules Arbitrators are Usually Bound by the Grievor’s Criminal Conviction
In Ontario v. O.P.S.E.U., 2003 SCC 64 released November 6, 2003, and the companion decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, the Supreme Court of Canada unanimously held that arbitrators hearing discipline and discharge cases are bound by the grievor’s criminal conviction to accept the grievor’s guilt. Exceptions
to this rule may be possible in unusual cases. Arbitrators remain able to decide the employer’s penalty is too severe.
Separate grievors were accused of sexual assault at work. They were criminally convicted. The employer sought to rely on the convictions at arbitration. At the unions’ urging, the arbitrators decided that the criminal convictions should not dictate the result at arbitration. Afterwards, in the OPSEU arbitration that proceeded on the
merits, the arbitrator found that the employee had not committed the act in question and that the discharge should be set aside. The employers appealed, arguing that the arbitrators were bound to follow the criminal convictions. The employer position prevailed in the Divisional Court and the Court of Appeal. OPSEU and CUPE appealed to the Supreme Court of Canada.
OPSEU counsel at the arbitration which reinstated the grievor, and throughout all court proceedings, was Craig Flood of Koskie, Minsky.
The Supreme Court held the arbitrator may not “revisit” the criminal conviction. (CUPE v. City of Toronto, para. 2) The Court stated:
…The danger of wrongful convictions has been acknowledged by this Court and other courts. Although safeguards must be put in place for the protection of the innocent, and, more generally, to ensure the trustworthiness of court findings, continuous re-litigation is not a guarantee of factual accuracy. (para.41)
The Court invoked the doctrine of “abuse of process” and said “ …what is improper is to attempt to impeach a judicial finding by the impermissible route of relitigation in a different forum” (para. 46) The Court held:
The adjudicative process in its various manifestations strives to do justice. By the adjudicative process, I mean the various courts and tribunals to which individuals must resort to settle legal disputes. Where the same issues arise in various forums, the quality of justice delivered by the adjudicative process is measured
not by reference to the isolated result in each forum, but by the end result produced by the various processes that address the issue. By justice, I refer to procedural fairness, the achieving of the correct result in individual cases and the broader perception that the process as a whole achieves results, which are consistent, fair and accurate. (para.
44)
The Court held:
There 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. (para.52)
But, it was the Court’s view that: “… the facts in this appeal point to the blatant abuse of process that results when relitigation of this sort is permitted. The grievor was convicted in a criminal court and he exhausted all his avenues of appeal. In law, his conviction must stand, with all its consequent legal effects”. (para. 56)
While it is still possible to argue that “fairness dictates” the criminal conviction should not be binding, it will be more difficult to make that argument in the future.
The full text of both decisions is attached.
OPSEU v Her Majesty (Com Soc) .pdf
C.U.P.E., Local 79 v. Toronto (City) .pdf
