GSB# 2001-1573, 2001-1578

UNION# 2001-0582-0054, 2001-0582-0055

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Mondesir et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors and Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Lisa Compagnone Counsel Management Board Secretariat

HEARING

June 9, 2005.

Decision

This is another interim application brought by the employer in the matter of the discharge grievances of Tim Collin and Robert Mondesir. The grievors were both found guilty on January 27, 2004 of being “parties” to an assault causing bodily harm against an inmate at the Toronto East Detention Centre. On April 29, 2004, the grievors received conditional discharges for “assault causing bodily harm,” as it is put on their Probation Orders. That is, the findings of guilt are in regard to the charge of assault causing bodily harm. That day two other co-accused had convictions registered against them. In the course of the reasons for sentence, the actions of one of the co-accused were described as particularly vicious. That is, the grievors were found guilty of an assault that was vicious and caused bodily harm, on the basis that they were parties to the assault.

The employer previously brought an application to have the grievances summarily dismissed. That request was denied [see: Ministry of Community Safety and Correctional Services (Sammy et al) (2004), GSB #2001-0224 et al. (Harris, December 17, 2004)]. The employer subsequently provided the union with a proposed set of agreed facts, said to flow from the trial judge’s findings in her disposition of the criminal charges. Those facts were set out by reference to various numbered paragraphs in the trial judge’s reasons. The union agreed that some of those paragraphs bind this board but did not agree to the full list provided by the employer. As an aside, I note that in the course of hearing the parties’ submissions I did not call on the union for a response regarding paragraph 51 because it was apparent that it was not a finding of fact.

The employer now requests an “order” acknowledging that this Board is bound by all of the factual findings made by the trial judge and the findings of guilt made against these grievors. It also requests an order that the union disclose the material it intends to rely upon with respect to mitigation of the penalty. It characterizes this request as “identifying the issues in dispute”. It was also submitted that the employer needs to know what it needs to prove and what it does not need to prove.

On behalf of Mr. Collin, it was submitted that this application is an attempt by the employer to get a legal opinion from the Board as to what evidence it should call. In any event, the legal effect of City of Toronto and CUPE, Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (S.C.C.) is to prevent the admission of evidence that would serve to impugn the findings of guilt of the trial judge who presided over the criminal charges.

On behalf of Mr. Mondesir it was also submitted that to adopt the employer’s approach would require a line-by-line parsing of the reasons of the trial judge which would be wasteful and an abuse of process. It was submitted that the onus is on the employer to prove that the discharge was just. No obligation arises on the part of the grievors until the employer has put in its case.

Reasons for Decision

Reduced to first principles, the resolution of the employer’s preliminary request is reasonably straightforward. It seeks to draw from the criminal findings various facts which it says bind this board. It has forwarded a proposed list of such facts to union counsel. In some instances, the union agrees that those are facts that need not be proven. As to the remaining proposed facts, the union does not agree that those facts need not be proven.

It falls to the employer to decide how to prove those facts. If it is of the view that, as a matter of law, it need do no more than assert them as the trial judge’s findings then it need call no evidence. However, I am not prepared to tell the employer at the outset of its case how it should proceed. This is an adversarial proceeding. The union has agreed to some facts and not to others. It is for the employer to decide how it will establish any other material facts it believes it requires in order to discharge its onus to prove that these two grievors were justly discharged from their positions as unclassified correctional officers in the context of their having been found guilty of a criminal assault that caused bodily harm to an inmate.

The employer’s application is dismissed.

Dated at Toronto this 7th day of September 2005