COURT FILE NO.: 07-DV-001283

DATE: 20071004

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Greer, hackland AND newbould JJ.

B E T W E E N:

AMALGAMATED TRANSIT UNION, LOCAL 279

Applicant

• and -

THE CITY OF OTTAWA (OC TRANSPO)

Respondent

• and -

DAVID STARKMAN

Respondent

David J. Jewitt and Allison Longmore, for the Applicant

Charles V. Hofley and Leanne N. Fisher, for the Respondent, The City of Ottawa

HEARD in Ottawa: June 15, 2007

NEWBOULD J.:

Overview

1This is an application for judicial review from an award of an arbitration board which dismissed a grievance brought on behalf of Mr. Lawrence Burt against his dismissal as a bus driver. The dismissal arose following a tragic accident in which a bus driven by Mr. Burt hit the rear of a vehicle causing the instant death of an 18-month baby, the paralyzation of the baby’s father from the chest down and serious injury to the baby’s mother, all of whom were passengers in the vehicle that was hit. Mr. Burt was charged under the Criminal Code with three counts of criminal negligence. He was acquitted by Mr. Justice Fraser of the Ontario Court of Justice of those charges as well as the included offence of dangerous driving.

2The accident occurred on July 13, 2003. On August 28, 2003, after Mr. Burt had been charged criminally, the respondent (the “City”) terminated Mr. Burt. The applicant Amalgamated Transit Union, Local 279 (“ATU”) filed a grievance on behalf of Mr. Burt with respect to his termination. The arbitration did not take place until after the criminal charges against him were dismissed on November 16, 2004. A preliminary award was made by the arbitrators on July 18, 2005 dealing with preliminary issues covering the arbitration. The final award upholding Mr. Burt’s dismissal was made on July 6, 2006.

3The applicant ATU raised five issues in this judicial review application. After giving careful consideration to each of them, we are unanimously of the view that the application must be dismissed.

Accident

4The accident occurred on Sunday, July 13, 2003. Mr. Burt had commenced his employment with OC Transpo in 1983, and had completed over 20 years of employment when the accident occurred. Traffic was very light on that Sunday morning. There were four passengers, including Mr. Burt’s young daughter in the bus that was traveling eastbound on Highway 174 at the time of the accident. The vehicle struck by the bus was driven by Mr. Appuhamy who had encountered some mechanical difficulties and whose car had broken down in a lane exclusively for use by OC Transpo busses. At approximately 11:00 a.m., on July 13, 2003, the OC Transpo bus, driven by the defendant, Lawrence Burt, drove straight into the rear of the Appuhamy vehicle, resulting in the death of a two-year-old child. The driver suffered significant head injuries, as well as spinal damage and was paralyzed from the chest down, and his wife sustained a severe fracture of her left arm.

Termination of Mr. Burt

5Mr. Burt was advised by letter dated August 28, 2003 that his employment was terminated. The letter stated, in part:

Dear Mr. Burt:

I am writing in respect of the accident that occurred on Sunday, 13 July, 2003 in which the bus you were operating struck a parked car on Highway 174. The City of Ottawa has now completed its internal investigation into that accident. Based on a review of the findings of that investigation, it has been determined that you were wholly at fault in failing to avoid what was a preventable collision.

As you are surely aware, the City of Ottawa demands a high level of professionalism from its bus operators so as to ensure the safety of OC Transpo passengers, as well as other road users. Your failure to avoid a rear end collision which resulted both in a fatality and serious injuries constitutes a marked departure from the standard of conduct the City expects from its drivers.

A further consequence of the accident is that criminal charges have now been laid against you. The City has been advised that, as a condition of your release on bail, you are prohibited from driving a public or commercial vehicle for the transport of people or goods. As you may know, clause (3) 16.3 of the collective agreement governing your employment stipulates, in part, that where an employee who is required to hold an Ontario Class CZ license or equivalent as a condition of employment has such license cancelled, suspended, or downgraded by the Provincial authorities for other than medical reasons while operating a City vehicle and engaged in work activity, such an employee shall have his or her employment with the City terminated immediately.

In light of the conclusions reached during the course of our investigation, and by virtue of the terms and conditions of the collective agreement, I regret to inform you that it is our decision that your employment with the City of Ottawa be terminated, effective immediately.

Criminal Proceedings

6Mr. Burt was charged with one count of criminal negligence causing death pursuant to s. 220 of the Criminal Code and two counts of criminal negligence causing bodily harm pursuant to s. 221 of the Criminal Code. Because the charges arose from the driving of a motor vehicle, the offence of dangerous driving contained in s. 249 (1) of the Criminal Code was an included offence to be tried along with the charges under ss. 220 and 221 of the Criminal Code. All charges were dismissed.

7In light of the issues raised by the applicant on this judicial review application, the findings made in the criminal proceedings are of importance. These will be dealt with later.

Standard of Proof in the Arbitration

8The collective agreement provided the City with the right to terminate an employee for just cause. The collective agreement required an investigation and further provided that should such investigation disclose the guilt of the employee beyond reasonable doubt, the employee was to be terminated immediately. ATU on behalf of the grievor submitted that the burden would be on the employer to establish the grievor’s guilt beyond a reasonable doubt. This position was accepted by the chair of the arbitration panel and by the union nominee in a preliminary award. The employer’s nominee dissented on the issue.

Final Arbitral Award

9The majority of the board concluded that the City had demonstrated beyond a reasonable doubt that the grievor was grossly negligent in not paying attention to the road for at least five seconds and perhaps considerably longer while traveling at a speed of between 95 and 105 kilometers per hour and that the employer had cause to dismiss him. The board stated that no credible explanation for the grievor having failed to see the vehicle stopped in the bus lane was advanced and that the grievor was not driving with the level of care and attention expected of a bus driver. It stated that the grievor’s inattention for at least five seconds while driving at a considerable speed amounted to gross negligence. The majority also held that it would not interfere with the decision of the City to discharge the grievor rather than to provide some other penalty. The union nominee dissented from the decision on the grounds that the grievor ought not to have been terminated but rather should have been placed into a non-driving position with the City.

Standard of Review

10The parties differ as to the standard of review for the issues raised by the applicant. The issues are as follows:

Issue No. 1: Did the Starkman Board err in law and exceed its jurisdiction in accepting and considering evidence that directly contradicted the evidence and findings of Justice Fraser in R v Burt?

Issue No. 2: Did the Starkman Board err in law and exceed its jurisdiction when it participated in a “re-enactment” of the events of the July 13, 2003 accident which gave rise to the criminal charges and the termination grievance?

Issue No. 3: Did the Starkman Board err in law and exceed its jurisdiction when it concluded that Mr. Burt was guilty of “gross negligence” in the operation of his bus on July 13, 2003 when Justice Fraser had acquitted Mr. Burt of essentially the same offence in the criminal proceedings arising from the same accident?

Issue No. 4: Did the Starkman Board give to section (3) 8.2) of the Collective Agreement a patently unreasonable interpretation of this case?

Issue No. 5: Did the Starkman Board commit a reviewable error when it failed to consider or apply relevant evidence relating to the universally accepted mitigating factors applicable in cases of discharge?

11The applicant submits that the standard of review for the first three issues are matters that go to the arbitrators’ jurisdiction and that the proper standard is one of correctness. The respondent submits that the standard of review is one of reasonableness or patent unreasonableness rather than correctness. The parties agree that issues four and five are governed by a test of patent unreasonableness.

12It is clear that patent unreasonableness is the general standard of review of an arbitrator’s decision as to whether just cause has been established in the discharge of an employee. See City of Toronto v. Canadian Union of Public Employees (CUPE), 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 14 per Arbour J., and para. 60 per LeBel J.

13However, the same standard of review does not necessarily apply to every ruling made by an arbitrator in the course of such arbitration. Questions of law outside of an arbitrator’s expertise are generally reviewable on a correctness standard and an error of law made by an arbitrator on such an issue may be sufficient to lead to a patently unreasonable outcome. See Toronto v. CUPE, supra, at paras. 14 and 15 per Arbour J.

14In Toronto v. CUPE, supra, an employee was convicted of sexual assault and dismissed from this employment as a result of that conviction. On his grievance, the arbitrator came to different conclusion from the criminal court and held that on the evidence before him, the sexual assault did not take place. It was held by the Supreme Court of Canada that as a matter of law, it was an abuse of process to permit that issue to be relitigated and that the standard of review of the arbitrator’s decision on the question of law was one of correctness. Arbour J. stated:

15. The body of law dealing with the relitigation of issues finally decided in previous judicial proceedings is not only complex; it is also at the heart of the administration of justice. Properly understood and applied, the doctrines of res judicata and abuse of process govern the interplay between different judicial decision makers. These rules and principles call for a judicial balance between finality, fairness, efficiency and authority of judicial decisions. The application of these rules, doctrines and principles is clearly outside the sphere of expertise of labour arbitrator who may be called to have recourse to them. In such a case, he or she must correctly answer the question of law raised. An incorrect approach may be sufficient to lead to a patently unreasonable outcome. This was reiterated recently by Iacobucci J. in Parry Sound (District) Social Services Administration Board. v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42, at para. 21.

16. Therefore I agree with the Court of Appeal that the arbitrator had to decide correctly whether CUPE was entitled, either at common law or under a statute, to relitigate the issue decided against the grievor in the criminal proceedings.

15In Toronto v. CUPE it was held that the arbitrator was required as a matter of law to “give full effect to the conviction” and that as a result of the error in not doing so, the arbitrator reached a patently unreasonable conclusion. See Arbour J. at para. 58 and LeBel J. at para. 60.

16The applicant ATU contends that as the arbitrator in Toronto v. CUPE was required as a matter of law to give full effect to a conviction, so too were the arbitrators in this case required as a matter of law to give full effect to the acquittal of the grievor.

17The City takes the position that there is a difference between identifying the correct legal principle and applying that principle to the facts of the case. It relies upon statements of Doherty J.A. in Toronto v. CUPE (2001), 2001 24114 (ON CA), 55 O.R. 3rd 541, which decision was upheld by the Supreme Court of Canada in. Toronto v. CUPE, supra. Doherty J.A. at para. 35 stated:

35. In this case, the arbitrator had to decide whether CUPE could relitigate an issue decided in Oliver’s Criminal trial. As a first step in making that decision, he had to settle on the legal principles to be applied. Once he identified those principles, he then had to apply them to the facts before him. The first step in this two-step process involves a question of law alone: Canada (Director of Investigation and Research) v. Southam Inc., supra at p. 766-67.

18Doherty J.A. further stated at footnote 7:

The second part of the arbitrator’s task, the application of the correct principles to a given set of facts, may be subject to a more deferential standard of review. I need not address that issue, given my conclusion that the arbitrator did not correctly identify the relevant principles: see Canada (Director of Investigation and Research) v. Southam Inc., supra, at 767, 770-71.

19These statements of Doherty J.A. derive from Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748. In that case, Iacobucci J. stated at pages 766-7:

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what “negligence” means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa.

and at page 770:

It seems, then, that if the Tribunal erred, it was in applying the law to the facts; and that is a matter of mixed law and fact.

20The City thus contends that the first three issues are not questions of law but questions of mixed fact and law in that they deal with the application of legal principles to the facts rather than with the identification of the legal principle itself. Therefore the City contends that correctness is not the applicable standard of review for those questions.

21In Toronto v. CUPE, supra, Doherty J.A. was careful to state that the application of the correct principles to the facts of the case might be the subject of a more deferential standard of review but that he did not need to address that issue as the arbitrator did not correctly identify the relevant principle. The statements of Doherty J.A. relied on by the City were thus obiter.

22Our conclusion as to the standard of review is as follows. The standard of review generally applicable to the arbitrators’ decisions in this matter is one of patent unreasonableness. This standard of review is properly viewed on the spectrum of curial deference at the more deferential end. See Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 per Iacobucci J. at para. 45.

23In testing for reasonableness on a judicial review application, the reviewing court must avoid asking the question whether the decision is correct. The court may be required to accept a decision that is reasonable even if it is unlikely that the court would have reasoned or decided as the tribunal did. A decision would be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, the decision would not be unreasonable and the reviewing court must not interfere with it. The question to be asked is, “After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision”. See Law Society of New Brunswick v. Ryan, supra, per Iacobucci J. at paras. 46, 47, 51 and 55.

24However, the issue as to whether the arbitrators were required under the doctrine of abuse of process as enunciated in Toronto v. CUPE to gave full effect to the acquittal of the grievor is a matter of law and thus the standard of review on that issue is one of correctness. If there was any incorrectness in the decision of the arbitrators on that question of law, further consideration would be required to determine if as a result of that error of law, the outcome reached by the arbitrators was patently unreasonable.

25I will now deal with the issues raised on behalf of the grievor.

ISSUES 1, 2 and 3

26In the first three issues, the applicant on behalf of the grievor raises in large measure the same issue, namely the effect to be given to the abuse of process doctrine as enunciated in Toronto v. CUPE.

27At the preliminary hearing in the arbitration, ATU submitted that in light of the acquittal of Mr. Burt on all criminal charges, it would be an abuse of process to permit the employer to call evidence which challenged the essential findings of fact of the trial judge. Emphasis was placed on the decision of the Supreme Court of Canada in Toronto v. CUPE, supra. The arbitrators unanimously agreed that it would be an abuse of process to permit either party to challenge the essential findings of fact of the trial judge. They stated:

In this arbitration proceeding however, the reasons for grievor’s discharge, while arising from the same incident as the criminal charges, are somewhat different, inasmuch as the Employer is alleging gross inattention and gross dereliction of duty. As such, the Employer is entitled to present evidence concerning facts which either were not presented to the trial judge, or were not found to be facts by the judge and is entitled to endeavour to convince this Board of Arbitration that the grievor is guilty of an offence which gave it just cause for discharge.

As a general proposition however, neither party shall introduce evidence which has the effect of contradicting an essential finding of fact as set out in the decision of Mr. Justice Fraser in R v. Burt, [2004] O.J. No. 5184.

28ATU’s position on behalf of the grievor is that the arbitrators in conducting the hearing acted contrary to the principle established in Toronto v. CUPE, supra, that it is an abuse of process to relitigate an issue already finally decided in other proceedings.

(a) Applicability of the Abuse of Process Doctrine

29Toronto v. CUPE was a case in which the convicted accused attempted in a subsequent arbitration to relitigate the very issue involved in his criminal conviction. Because the opposite party in the arbitration, his employer, was not the opposite party in the criminal case, being the Crown, the res judicata/issue estoppel principle did not apply. It was held that the abuse of process doctrine prevented him from relitgating his conviction.

30There are a number of differences in this case from Toronto v. CUPE. Firstly, the City was not a party at all to the criminal case against Mr. Burt. Therefore an issue arises as to whether the abuse of process doctrine applies to prevent the City from “relitigating” an issue that it had never litigated in the first place. Secondly, if the principle does apply to the City, an issue arises as to what it would mean to give full effect to his acquittal. Thirdly, the cause for dismissal alleged by the City does not raise the precise issues that were raised in the criminal proceedings.

31It is apparent from the preliminary award of the arbitrators that the City took the position that the issues in the arbitration were different from the issues in the criminal proceeding but that it did not intend to challenge any of the essential findings of fact of the trial judge. The preliminary ruling of the arbitrators concluded it would be an abuse of process to permit either party to challenge the essential findings of fact made by the criminal trial judge.

32What is the effect of the City not being a party to the criminal proceeding?¹ The language used in Toronto v. CUPE and in Hunter v. Chief Constable of the West Midlands Police, [1982] A.C. 529, which was stated in Toronto v. CUPE to be the locus classicus for the modern doctrine of abuse of process, is broad.

33In Toronto v. CUPE, Arbour J. referred to with approval the following statement of Goudge J.A. in Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. 3rd 481:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

34Arbour J. in Toronto v. CUPE also referred to the primary focus of the doctrine of abuse of process being less on the interest of the parties and more on the integrity of the judicial decision making as a branch of the administration of justice. See: paras. 43 and 51.

35In Hunter v. Chief Constable of the West Midlands Police, supra, Lord Diplock was clear that in his view there should not be any fixed categories for the exercise of the inherent power of the court to prevent misuse of its procedure. He stated:

My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.

36While all of these cases dealt with a party to the prior proceedings attempting to relitigate an issue in later proceedings, the language used, as quoted, would appear to permit the use of the doctrine even if the party sought to be prevented from litigating was not a party to the prior proceeding.

37It is clear from Toronto v. CUPE , however, that there is an element of discretion in a decision as to whether the doctrine of the abuse of process is applicable. One of the examples referred to by Arbour J. of a situation in which the doctrine might not apply was where fairness dictated that the original result should not be binding in the new context, or proceeding. See: Toronto v. CUPE, supra, para. 52.

38The cases applying the doctrine of the abuse of process appear for the most part to be cases in which it was a party to the prior proceeding who was attempting to relitigate an issue. However, in Canam Enterprises Inc. v. Coles, supra, the decision of Goudge J.A. in dissent in the Court of Appeal was expressly adopted by the Supreme Court of Canada in allowing the appeal. See: 2002 SCC 63, [2002] 3 S.C.R. 307. In that case, Coles, a solicitor for Canam in the purchase of property, was permitted to make a third party claim against realtors who had acted for Canam in spite of an action by Canam against the vendor National Trust having been dismissed. Goudge J.A. held that the issue in the third party claim was different from the issue in the previous litigation against National Trust, which was a reason not to apply the abuse of process doctrine. However, he also considered the fact that Coles was not a party to the previous litigation and, in doing so, made the following statement:

58. This issue can be addressed by looking not just at the claim but also at the party bringing it. Here it cannot be said that the third party claim is an attempt by Coles to relitigate a claim which he has previously raised but lost. Coles has not raised this issue before in any legal proceeding. Nor could Coles have forced Canam to raise this issue and sue the Realtors in the action in contrast against National Trust before Day J. Coles has not had his day in court on this issue.

39This exercise of discretion by Goudge J.A. was an example of a court exercising fairness in the application of the doctrine of the abuse of process. A more recent example of the exercise of fairness resulting in the doctrine not being applied is the decision of Perell J. in Engles v. Merit Insurance Brokers (2007), 2007 6455 (ON SC), 84 O.R. (3d) 647. One of the factors in that case was that Mr. Engles was not a party to a tax appeal undertaken by his alleged employer with respect to his status as an independent contractor.

40This is not a case in which it can be said that the issue as to when Mr. Burt was able to see the stalled car was not fully litigated by the Crown and Mr. Burt in the criminal proceedings. It clearly was one of the main issues in the criminal proceedings. While the entire record before the court in the criminal proceedings was not before us, it would appear likely that the manner in which the issue was treated in the criminal proceedings was “robust”, to use the word of Arbour J. in Toronto v. CUPE, supra, at para. 53.

41Whether the doctrine of abuse of process is applicable in this case is a matter of correctness. This includes a decision as to how the discretion not to apply the doctrine should be exercised. I am of the view that the doctrine of the abuse of process should not apply to this case.

42The City with all of its transportation expertise was not a party to the criminal case and did not have the opportunity to contest the factual issues in the criminal proceeding or to make any submissions thereon. It is in the public interest to allow the City to do all that it can to administer a safe transit system, including dealing with transit drivers who do not comply with the City’s safety policies. This is a very different matter from punishing criminal conduct. The City did not have its day in court prior to the arbitration and it would be unfair to deny the City that opportunity.

43Nor is it unfair to Mr. Burt to be denied the right to plead abuse of process, although obviously he would like to be able to do so. It was always anticipated that Mr. Burt would have to defend himself from more than criminal charges and that he would confront different civil law complaints that addressed different issues. The criminal trial judge recognized this in his statement that the actions of Mr. Burt might expose him to civil sanctions. Such sanctions would include the dismissal proceedings that were underway and the kind of evidence regarding training and policies that the City eventually called in the arbitration.

44If the doctrine of the abuse of process were to apply, I agree that it would probably lead to the prevention of material facts found by the criminal trial judge from being relitigated in the arbitration. This appears clear from the reasons of Binnie J. in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, a case dealing with the issue estoppel. Although the technical requirements of issue estoppel are not required for the abuse of process doctrine, the following statement of Binnie J. at para. 54 would appear to be applicable:

A cause of action has traditionally been defined as comprising every fact which it would be necessary for the plaintiff to prove, if disputed, in order to support his or her right to the judgment of the court: Poucher v. Wilkins (1915), 1915 514 (ON CA), 33 O.L.R. 125 (C.A.). Establishing each such fact (sometime referred to as material facts) constitutes a precondition to success. It is apparent that different causes of action may have one or more material facts in common. In this case, for example, the existence of an employment contract is a material fact common to both the ESA proceeding and to the appellant’s wrongful dismissal claim in court. Issue estoppel simply means that once a material fact such as a valid employment contract is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be relitigated in subsequent proceedings between the same parties. The estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that “issue” in the prior proceedings.

45The decision that the abuse of process doctrine should not apply to the City is a sufficient reason for Issues 1, 3, and perhaps 2 to be decided against the applicant. Nevertheless, I will now deal with those issues on the assumption that the abuse of process doctrine is applicable to the City.

(b) Findings in the Criminal Proceedings

46ATU’s essential complaint is that the arbitrators failed to carry out their preliminary ruling in the manner in which they conducted the arbitration. The findings of fact made by Fraser J. in the criminal proceedings are central to their position.

47In order for there to be criminally negligent conduct, it must be established that the person charged showed wanton or reckless disregard for the lives or safety of other persons. Justice Fraser dismissed the charges of criminal negligence and, in doing so, made the following statements:

70. The phrase “wanton and reckless disregard for the lives or safety of other persons” was considered by the Supreme Court of Canada in the case of R v. Tutton and Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392, 48 C.C.C. (3d) 129. Reading from the headnote, specifically the part of the judgment authored by Justices Wilson, Dickson and Laforest:

The phrase “wanton or reckless disregard for the lives or safety of others” signifies more than gross negligence in the objective sense, and requires some degree of awareness or advertence to the threat to the lives or safety of others or, alternatively, a wilful blindness to that threat which is culpable in light of the gravity of the risk that is prohibited.

83. Following this analysis, Mr. Burt’s mens rea or guilty mind for the crime of criminal negligence can be determined objectively by an examination of whether he recognized and ran an obvious and serious risk to the lives and safety of others, or alternatively, whether he gave no thought to the risk involved.

84. In light of the foregoing, and taking the Crown’s case at its highest, it is my finding that the offence of criminal negligence cannot be made out against Mr. Burt.

48Justice Fraser then dealt with the included offence of dangerous driving. He made findings of fact and other statements as follows:

86. The crime of dangerous driving is established where the prosecution proves a marked departure from the standard of conduct of a reasonably prudent driver in all the circumstance. Again, that’s referenced in R v. Hundal.

87. Reading from the headnote in Hundal, the Supreme Court of Canada held that the trier of fact may convict if satisfied beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was dangerous to the public, having regard to all the circumstances including the nature, condition, and use of such place, and the amount of traffic that at the time is or might reasonably be expected at such place. In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation.

88. On the basis of the evidence that I do accept, I am prepared to make the following findings:

• There was no change in the speed of the bus prior to the collision. Several Crown witnesses testified to that fact, and I accept their evidence on that point.

• There was no application of the brakes by the defendant prior to the point of impact. The defendant did not see the car until it was essentially too late for him to react, or take action that would avoid a collision.

• I acknowledge that there was at least one vehicle following behind the bus, but on the evidence that I accept, the defendant could not have taken evasive action to drive around the disable vehicle, because his recognition of the vehicle in the buses lane came too late.

• The defendant should have been able to see the car from at least 116 metres away.

• The defendant was driving his bus as a speed between 95 kilometres an hour, and 105 kilometres an hour. At a speed of 95 kilometres an hour, it would take ten seconds to travel from the overpass to the area of impact.

• The defendant would not have heard the OC Transpo Code 50 broadcast, because the accident took place just prior to the broadcast being issued.

94. The distance from the Rockcliffe overpass to the area of impact was estimated to be 232 metres. If the defendant’s bus was being driven at a speed of 95 kilometers an hour, it would have taken him approximately ten seconds to travel that distance. If the defendant was driving his bus at a speed of 100 kilometers an hour or slightly higher, he would understandably have covered the 232-metre distance in less than ten seconds.

95. It stands to reason therefore, that the distance of 116 metres, which I found to be the point at which a car should have been recognized, would have been covered in a time of approximately five seconds, if the bus was traveling at 95 kilometres an hour; and slightly less than five seconds, if the bus was traveling at 100 kilometers an hour.

96. The evidence before me indicates that Mr. Burt had noticed Ms. Malone heading to the front of the bus.

97. He made this observation while looking at his overhead mirror. He admits looking at the mirror again after Ms. Malone had inquired about the time. He then testified that he took a quick look at the road, then lifted up his right arm and looked at his watch. Before he could tell Ms. Malone the time, he saw the rear lights of the vehicle in the bus lane. This sequence of events is taking place within the final five-second window that Mr. Burt would have had to clearly recognize the vehicle and take evasive action.

98. Did the defendant’s conduct in looking up at his mirror, while speaking to a customer, and then taking his eyes off the road to look at his watch amount to a marked departure from the standard of care that a reasonable person would observe in his situation? I am not satisfied beyond a reasonable doubt that it did.

99. The actions of Mr. Burt on the day in question may well expose him to civil sanction, but that is for another forum to determine. This had been a terrible tragedy for the Appuhamy family. My heart goes out to them. However, having regard to all the circumstances presented in this case, I am not satisfied beyond a reasonable doubt that the defendant, Lawrence Burt, was driving in a manner that was dangerous to the public.

(c) Issue Nos. 1 & 3

(i) Issue No. 1

49The applicant first contends that the arbitrators erred in law and exceeded their jurisdiction in accepting and considering evidence that directly contradicted the evidence and findings of Justice Fraser in R v. Burt. In particular, it is contended that the arbitrators improperly heard evidence from witnesses called by the City to the effect that Mr. Burt should have seen the stalled vehicle more than five seconds before he hit it.

50The City contends that it was open to it to call such evidence and that the criminal trial judge did not make a conclusive finding in respect of the distance from which the vehicle could have been visible. The City relies upon statements of the trial judge as follows:

(i) Mr. Burt should have been able to see the car from at least 116 metres away.

(ii) The discussion by Mr. Burt with a passenger took place within the final five-second window and that Mr. Burt would have had to clearly recognize the vehicle and take evasive action.

(iii) The criminal trial judge stated that the distance of 116 metres, which was the point at which a car should have been recognized, would have been covered in a time of approximately five seconds at 95 kilometers per hour and slightly less than five seconds at a speed of 100 kilometers per hour. The City contends that this finding does not detract from the other statements relied upon by it indicating that there was no conclusive finding as to the distance which the vehicle would have been visible to Mr. Burt.

51In my view, on the assumption that the doctrine of abuse of process enunciated in Toronto v. CUPE is applicable, there are two answers to the submissions made on behalf of the grievor. The first is that there was sufficient ambiguity as to what the criminal trial judge determined as to the distance and time at which the stalled vehicle could have been seen so as to permit the evidence called by the City on this point. The second is that if the evidence heard by the arbitrators was contrary to findings of fact made in the criminal case, the hearing of the evidence alone would not necessarily result in the ultimate outcome of the arbitration being patently unreasonable. If the findings of fact made by the arbitrators were not inconsistent with the findings of fact made in the criminal case, i.e., the inconsistent evidence was not acted on by the arbitrators, then the outcome of the arbitration would not be patently unreasonable because of the evidence heard by the arbitrators. In the end, the more important issue would be whether or not the ultimate outcome was patently unreasonable if the arbitrators made findings of fact contrary to the essential findings of fact made in the criminal case.

52The applicant contends that the arbitrators did make findings contrary to findings in the criminal court. It contends that it was concluded by the criminal court judge that five seconds was the maximum amount of time at which Mr. Burt would have had to react whereas the arbitrators, in holding Mr. Burt to be grossly negligent, made statements that he was not paying attention to the road for at least five seconds and perhaps considerably longer. However, the criminal court judge made findings as to distances and the time to cover those distances, but did not make findings as to how long Mr. Burt was not paying attention to the road or, more importantly, that Mr. Burt was paying attention to the road up to a time five seconds before the accident. The arbitrators’ finding that the grievor was not paying attention to the road for at least five seconds and perhaps longer was not contrary to findings made by the criminal trial judge and cannot be said to be patently unreasonable.

53It is also contended on behalf of the grievor that the arbitrators erred in their findings regarding no reasonable explanation having being given for the accident. They point to the following finding of the arbitrators:

He was 100% responsible for the accident, no reasonable explanation was offered for his inattention to the road for at least five seconds and perhaps longer.

54It is contended that this conclusion cannot stand in the face of the following findings made by the criminal trial judge:

96. The evidence before me indicates that Mr. Burt had noticed Ms. Malone heading to the front of the bus.

97. He made this observation while looking at his overhead mirror. He admits looking at the mirror again after Ms. Malone had inquired about the time. He then testified that he took a quick look at the road, then lifted up his right arm and looked at his watch. Before he could tell Ms. Malone the time, he saw the rear lights of the vehicle in the bus lane. This sequence of events is taking place within the final five-second window that Mr. Burt would have had to clearly recognize the vehicle and take evasive action.

98. Did the defendant’s conduct in looking up at his mirror, while speaking to a customer, and then taking his eyes off the road to look at his watch amount to a marked departure from the standard of care that a reasonable person would observe in his situation? I am not satisfied beyond a reasonable doubt that it did.

55It must be remembered, however, that the findings of the criminal trial judge were made in the context of criminal proceedings taken against Mr. Burt. The offence of dangerous driving contained in s. 249 of the Criminal Code is in the middle of a continuum of moral blame- worthiness for driving offences, the high end being the offence of criminal negligence and the lower end being careless driving under provincial statutes. See: R v. L (J), (2006), 2006 805 (ON CA), 204 C.C.C. (3rd) 324 (Ont. C.A.).

56In R v. Beaudoin, 1973 390 (ON CA), [1973] 3 O.R. 1 (Ont. C.A.) the need for more than momentary inattention in a criminal charge of dangerous driving was stated as follows:

16. As was held in Mann v. The Queen, 1966 5 (SCC), [1966] S.C.R. 238, 56 D.L.R. (2d) 1, [1966] 2 C.C.C. 273, dangerous driving entails more than momentary inattention. It is conduct which is criminal and deserving of punishment by the state. Mens rea is required but the manner of the driving may itself be sufficient to prove the necessary state of mind.

57In R v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867, the test for mens rea required for dangerous driving was settled, and it was that test that was applied by the criminal trial judge in dealing with the charge of dangerous driving against Mr. Burt. Cory J. referred in his reasons to the R v Beaudion case. He appeared to accept the statement that more than momentary inattention was required for criminal but not civil consequences when he stated the following:

Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code

58In determining whether Mr. Burt was guilty of dangerous driving, including making an assessment whether Mr. Burt’s conduct amounted to a marked departure from the standard of care that a reasonable person would have observed in his situation, the criminal trial judge was required to find that there was more than a momentary lack of attention. If the lack of attention of Mr. Burt was only momentary, a criminal conviction could not be sustained even though it might give rise to civil responsibilities, as per Cory J., supra.

59The findings and conclusions in paragraphs 97 and 98 of the criminal trial judge’s reasons, supra, provide an explanation as to what happened prior to the accident leading to the conclusion in the criminal case that Mr. Burt looking at his mirror while speaking to a customer and then looking at his watch together did not amount to a marked departure from the standard of care of a reasonable person. That is not, however, necessarily inconsistent with the findings of the arbitrators in the civil arbitration proceedings that no reasonable explanation was offered for Mr. Burt’s inattention to the road.

60The City led considerable evidence in the arbitration as to the responsibilities of a bus driver and the standards expected by the City of Ottawa in that regard. There was evidence that the grievor and all Ottawa bus drivers were trained and obligated to continuously scan the road ahead as far as the eye can see, that they were also trained in responding to customer enquiries not to maintain eye contact with people but rather keep their focus on the road and that questions from customers might need to be deferred because of the need to focus on the road. In determining whether there was cause to dismiss the grievor, it was open to the arbitrators to rely upon this evidence in concluding that there was no reasonable explanation offered by the grievor for his inattention to the road for at least five seconds or longer. The finding of cause to dismiss in the circumstances was not patently unreasonable on the evidence before the arbitrators.

(ii) Issue No. 3

61It is asserted by the applicant on behalf of the grievor that the arbitrators erred in law and exceeded their jurisdiction by concluding that the grievor was guilty of gross negligence. It is asserted that the criminal trial judge acquitted the grievor of essentially the same offence and that it was not open to the arbitrators to make a contrary finding. The applicant asserts, surprisingly, that the only finding open to the arbitrators was whether the actions of Mr. Burt constituted “simple or ordinary” negligence.

62The applicant’s argument is as follows: The offence of dangerous driving under the Criminal Code requires “a marked departure from the standard of conduct of a reasonably prudent driver in all the circumstances”, as per Cory J. in R v. Hundal, supra. It is contended that these quoted words are very similar to language contained in McCulloch v. Murray, 1942 44 (SCC), [1942] S.C.R. 141 which dealt with a civil cause of action under Nova Scotia motor vehicle legislation where an accident was caused by “gross negligence or willful and wanton misconduct”. In that case, Duff C.J. stated:

All these phrases, gross negligence, wilful misconduct, wanton misconduct, imply conduct in which, if there is not conscious wrong doing, there is a very marked departure from the standard by which responsible and competent people in charge of motor cars habitually govern themselves. Subject to that, I think it is entirely a question of fact for the jury whether conduct falls within the category of gross negligence, or wilful misconduct, or wanton conduct. Those words, after all, are very plain English words, not difficult of application by a jury whose minds are not confused by too much verbal analysis.

63The applicant therefore contends that a charge of dangerous driving under s. 249 of the Criminal Code is essentially one of gross negligence of the kind described in McCulloch v. Murray, supra, and that as the grievor was acquitted of that charge, it was not open to the arbitrators to hold him grossly negligent. It is contended that the only question left open for the arbitrators was whether the grievor was guilty of simple or ordinary negligence. I do not accept that submission.

64The offence of dangerous driving contained s. 249 of the Criminal Code does not refer to the term “gross negligence”, nor did Cory J. do so in describing the offence in R v. Hundal, supra. Section 249(1) refers to the operation of a motor vehicle “in a manner that is dangerous to the public…”.

65It is not appropriate to lift language used by the Supreme Court of Canada in 1942 in a different civil context and apply it to s. 249 of the Criminal Code. I say this for two reasons. Firstly, the 1942 language was not intended to be definitional. Duff C.J. made that very clear in stating:

I do not think it is any part of the duty of this Court, in applying the enactment before us, to define gross negligence, or to define willful and wanton misconduct. It is necessary, of course, that the judge trying an action based upon the enactment should assist the jury by suggesting to them such tests as may seem to be appropriate in the circumstances of the case for determining whether gross negligence, or wilful or wanton misconduct has been established, and paraphrases may be useful for the purpose of dealing with the particular case, but, generally speaking, I think it is undesirable that the courts should attempt to replace by paraphrases the language which the legislature has chosen to express its meaning. A paraphrase which may in a particular case be valuable, may, in a case involving different facts, be misleading.

66Secondly, the language of Duff C.J. that referred to “a very marked departure…” relied upon by the applicant was used in reference to wanton misconduct as well as gross negligence. The words “wanton misconduct” are contained in the definition of criminal negligence in s. 219 of the Criminal Code, but it is clear that the offence of criminal negligence involves more than gross negligence in the objective sense. See R v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392 quoted by Fraser J. in his reasons acquitting Mr. Burt of the criminal charges. It is clear Duff C.J. was not using the term “gross negligence” in the sense that the applicant now seeks to use it.

67Was the question of cause for dismissal in the arbitration the same as the question of criminal negligence or dangerous driving in the criminal proceedings? Our courts take a “fastidious approach” to the “same question” test. In Heynen v. Frito Lay Canada Ltd. (1999), 1999 1386 (ON CA), 45 O.R. (3d) 776, Goudge J.A. stated the following at paras. 19 and 20:

Rather, he explained that the determination of whether the same issue requirement has been met depends on a careful analysis of the factual context and the statutory standard applied in the earlier proceeding. The specific issue determined in that earlier proceeding can thus be identified and compared to the issue to be resolved in the subsequent proceeding.

This method of analysis is consistent with the observation of Morden A.C.J.O. in Rasanen, supra, at p. 294 O.R., p. 687 D.L.R. that the courts have taken a “fastidious approach” to the “same question” test. Although at a high level of generalization, two proceedings might seem to address the same question, this requirement of issue estoppel is met only if on careful analysis of the relevant facts and the applicable law the answer to the specific question in the earlier proceeding can be said to determine the issue in the subsequent proceeding.

68The same analysis of a fastidious approach being taken to the same question test should be applicable to an abuse of process analysis.

69It is clear that the conduct required to establish dangerous driving under the Criminal Code is different from conduct giving rise to civil liability or responsibility for that conduct. See: paragraphs 55-58 of these reasons, supra.

70Unlike Toronto v. CUPE, the issues in this matter are not the same as the issues in the criminal charges for which Mr. Burt was acquitted. The criminal trial judge did not make any finding that Mr. Burt was not grossly negligent. He found that the actions of Mr. Burt were not “a marked departure from the standard of care that a reasonable person would observe in his situation”. That was neither a finding that there was no “gross negligence” nor a finding that there was no “simple or ordinary negligence”.

71In my view it was not an abuse of process or an error of law for the arbitrators to find that there was cause to dismiss the grievor. In this context, it matters not whether the arbitrators used the term “simple or ordinary negligence”, which the applicant contends was the only result that was open to the arbitrators, or the term “gross negligence” which the City contended to be the case.

72The decision of the arbitrators was not patently unreasonable. They acted on the basis of jurisprudence from labour situations that an employer can discharge an employee who has been careless when the carelessness is such as to satisfy the test of negligent misconduct amounting to an employment offence. The validity of that principle was not contested by the applicant on behalf of the grievor. There was evidence before the arbitrators that could reasonably lead them to the conclusions at which they arrived.

73As stated, the applicant’s position on behalf of the grievor was that the arbitrators were only entitled to make a finding of simple or ordinary negligence. Even if that were the case, which I do not accept, a finding of gross negligence would of necessity include a finding that the actions of Mr. Burt constituted at least simple or ordinary negligence. The applicant is not contending that the arbitrators adopted too low a test in terms of culpability, but rather adopted too high a test. Even if the applicant were correct in its assertion, it would not lead to a conclusion that the ultimate outcome of the case, being the upholding of the dismissal, was patently unreasonable.

74The applicant makes an alternative submission on Issue No. 3. It contends that the arbitrators failed to apply the appropriate standard of proof in this case of proof beyond a reasonable doubt. A majority of the arbitrators had decided in their preliminary award to apply that standard in light of the language of the collective agreement. It is contended that they failed to follow their preliminary decision in that regard. I do not agree with that submission. There is nothing in the reasons of the arbitrators to conclude that they were unmindful of the need for matters to be proven beyond a reasonable doubt or that they acted on some lower standard of proof.

75The applicant further contends that the arbitrators erred in disregarding the evidence of the grievor as to why the accident happened, in failing to give weight to the evidence that the grievor was dealing with a passenger just before the accident and in failing to take into account evidence of a number of witnesses as to what could or could not be seen. In my view there is no merit to this submission. The arbitrators expressly referred to lengthy findings of fact made by a criminal trial judge. They then dealt with the reasons why they concluded that the grievor was grossly negligent in not driving with the level of care and attention expected of a bus driver. The arbitrators were not required to expressly refer to every piece of evidence that was relied upon by the grievor at the arbitration. The factors that the arbitrators found compelling were referred to sufficiently for a review court to conclude that there was not patent unreasonableness in the conclusion reached.

(d) Issue No. 2

76This issue arises as a result of a decision by the arbitrators in the preliminary hearing.

77One of the preliminary issues raised was whether the arbitrators should take a view of the roadway and accident site. The employer submitted that the arbitrators should take a view. The arbitrators unanimously accepted the employer’s request and agreed to take a view. They stated:

Accordingly, the Board has decided to acquiesce to the Employer’s request, and to accept that viewing the roadway, and even seeing how the car was placed in the bus lane, will be of assistance in understanding the expert and other evidence to be called concerning how the accident occurred. Such a view is not evidence per se, and is only background to evidence to be called by the parties.

78This issue does not engage the abuse of process doctrine, which, even if applicable, would not prevent the arbitrators from taking a view.

79The applicant asserts on behalf of the grievor that the decision of the arbitrators to participate in taking a view was an error in law that resulted in the arbitrators exceeding their jurisdiction. I do not accept that submission.

80The arbitrators did not act on any incorrect legal principle in their preliminary decision to take a view. They reviewed the relevant authorities to the effect that the purpose of a view is in order to better understand the evidence and they made it clear in their decision that that was the purpose for which it was being undertaken. The arbitrators referred to the fact that evidence would be called by the employer to support allegations of gross inattention and dereliction of duty. The applicant concedes on behalf of the grievor that it was open to the arbitrators to decide whether the grievor was negligent in his conduct. In these circumstances, in which evidence was to be called regarding the accident, it was not patently unreasonable for the arbitrators to decide to take a view to assist in their understanding of the evidence to be called.

81The applicant also contends that the arbitrators used the viewing or “re-enactment” of what occurred as evidence as opposed to using it as a tool to better understand the evidence. I do not accept that submission. The applicant points to no statement of the arbitrators to support its argument, and there is nothing in the reasons of the arbitrators to support that contention. It is not necessary to consider whether, had the arbitrators used the viewing as evidence, that would have amounted to the ultimate conclusion being patently unreasonable.

(f) Issue No. 4

82The applicant on behalf of the grievor contends that the arbitrators rendered a patently unreasonable interpretation of article (3) 8.2 of the collective agreement in that they held that the City failed to properly interpret the article of the collective agreement but then failed to find that any consequences flowed from the improper interpretation.

89. Article (3) 8.2 of the collective agreement states:

Before terminating an employee, and while the investigation is ongoing, the City and the Union will meet prior to dismissal to seek an alternative to dismissal. Immediate suspension may take place if the City believes there is serious danger to the general public other City employees or its property. All the facts obtained by either party during the investigation will be shared.

83The position of the City was that article (3) 8.2 meant that the parties were to meet to seek an alternate penalty to dismissal but it did not mean that the parties were to meet to seek or discuss other possible workplace arrangements such as placing the grievor into a different job. The City also took the position that the article did not compel it to accept any identified alternative but only to explore alternatives to dismissal.

84The arbitrators held that the article (3) 8.2 did not restrict or proscribe the nature of the alternatives to be explored by the parties to only the issue of alternative penalties. They held that the words “alternatives to dismissal” in the article was a broad concept and could include an exploration of whether there were other positions other than bus operator into which the grievor could be placed. Thus they accepted the position of the union on this point.

85The evidence called by the City, however, was that in spite of its interpretation of article (3) 8.2, the City representatives met with union representatives to consider alternative positions for the grievor prior to his termination. Evidence was called that at the meeting, there was a discussion about alternative positions for the grievor such as a storekeeper trainee or maintenance helper but that the grievor’s skills were not transferable to those positions. There was also evidence that there were a number of persons requiring job accommodation who would have had a prior opportunity for those positions and as well there was a hiring freeze on at the City.

86The arbitrators acted on this evidence and accepted the position of the City that even if the collective agreement required the parties to explore alternative positions for the grievor, it did not require the City to place the grievor in an alternative position. They stated:

This exploration was carried out by the parties in August 2003, and even if there were other vacant non-driving positions into which the grievor could be placed, this Board has concluded that the language of article (3) 8.2 does not require the Employer to place the grievor into such a position(s).

87The applicant submits that this conclusion by the arbitrators was patently unreasonable. I do not agree. The conclusion of the arbitrators that article (3) 8.2 did not require the City to place the grievor into any alternative position was an interpretation of the article open to the arbitrators. The article states that the parties “will meet… to seek an alternative to dismissal”. It did not expressly require the City to place the grievor in another position. The interpretation of the article by the arbitrators was a clearly reasonable interpretation. Indeed, one might question an interpretation of the article that would require an employer to necessarily place the grievor in another position in spite of practical difficulties of the kind referred to in the evidence given on behalf of the City.

(g) Issue No. 5

88The applicant contends on behalf of the grievor that the arbitrators committed a reviewable error when they failed to consider mitigating factors applicable in cases of discharge. In this respect, the union nominee to the Board of Arbitration dissented from the majority decision of the arbitrators on the basis that the grievor ought to have been placed into a non-driving position rather than being terminated.

89The majority decision of the arbitrators cited the labour case of Re: Cooney Haulage and Teamsters Union, Local 91 (1987), 1987 8880 (CA LA), 28 L.A.C. (3d) 97 in which reference was made to a number of mitigating factors considered by arbitrators in deciding whether discharge was the appropriate remedy for driver carelessness. The position of the applicant on behalf of the grievor is that while the majority arbitrators identified the appropriate factors, they failed to give proper consideration to each of the factors and thereby rendered a decision that was patently unreasonable. I do not agree.

90The majority arbitral award considered s. 60 (2) of the Canada Labour Code which gave the arbitrators the power to substitute a penalty other than discharge that seemed just and reasonable to the arbitrators. They decided, however, that they would not interfere with the decision of the City to discharge the grievor. After stating that the grievor was entirely responsible for the accident with no reasonable explanation for his inattention to the road, they dealt with the issue of mitigation as follows:

The only significant mitigating factor is the grievor’s long record of good service. In circumstances such as this however where the Employer operates a public transit service, and where death and serious injury have resulted from the gross negligence of the grievor, this factor is not sufficient to convince the Board that it is just and reasonable in the circumstances to reinstate the grievor to employment either as a bus driver or into a non-driving position.

91This decision by the majority arbitrators was one within their discretion under s. 60 (2) of the Canada Labour Code. The contention of the applicant is essentially that the arbitrators ought to have considered and acted on other mitigating factors of the kind referred to other labour cases and that they out to have set aside the discharge. It was the position of the union at the arbitration that the grievor accepted that he should not be reinstated to the position of a bus driver but rather should be reinstated into a non-driving position.

92What other arbitrators in other arbitrations may have decided is not binding in any other case. The discretion to the arbitrators under s. 60 (2) under the Canada Labour Code is one to be exercised by the arbitrators on the basis of the evidence in the case before them. It was open to the majority arbitrators in this case to conclude that the only significant mitigating factor was the grievor’s long record of good service and that other mitigating factors to which it had referred earlier in its reasons were not sufficient to lead them to require the grievor to be reinstated into another position.

93It is not the role of a reviewing court to engage in a re-weighing of the evidence or to substitute for the arbitrators’ decision a result that it might consider to be a more reasonable decision. The decision of the majority arbitrators is to be accorded substantial deference. In this case I am not satisfied that the decision of the majority arbitrators to not reinstate the grievor into a non-driving position was patently unreasonable.

Conclusion

¹ In the circumstances the application for judicial review is dismissed. The City is entitled to its costs. If the parties cannot agree as to costs, written submissions may be made.

Newbould J.

I agree Greer J.

I agree Hackland J.

Footnotes

1. 1It is clear that the City could not be considered to be a privy of the Crown in the criminal proceedings. See: Ontario v. OPSEU, 2003 SCC 64, [2003] 3 S.C.R. 149 at para. 11.