GSB# 2003-1520, 2003-1526, 2003-1527, 2003-1528, 2003-1529, 2003-1530, 2003-1531, 2003-1532, 2003-1534, 2003-1536, 2003-1567, 2003-1569, 2003-1571, 2003-1573, 2003-1576, 2003-1578, 2003-1715, 2003-1716, 2003-1717, 2003-1718, 2003-1719, 2003-1825, 2003-1826, 2003-1827, 2003-1828, 2003-1829, 2003-1830, 2003-1831, 2003-1832, 2003-1833, 2003-1834, 2003-1835, 2003-1836, 2003-1837, 2003-1838, 2003-1839, 2003-1840, 2003-1841, 2003-1842, 2003-1843, 2003-1844, 2003-1845, 2003-1846, 2003-1847, 2003-1848, 2003-1849, 2003-1850, 2003-1851, 2003-3316

UNION# 2003-0248-0070, 2003-0248-0066, 2003-0248-0074, 2003-0248-0067, 2003-0248-0068, 2003-0248-0069, 2003-0248-0073, 2003-0248-0072, 2003-0248-0058, 2003-0248-0059, 2003-0248-0060, 2003-0248-0061, 2003-0248-0062, 2003-0248-0063, 2003-0248-0064, 2003-0248-0065, 2003-0248-0086, 2003-0248-0087, 2003-0248-0088, 2003-0248-0089, 2003-0248-0090, 2003-0248-0029, 2003-0248-0031, 2003-0248-0032, 2003-0248-0033, 2003-0248-0035, 2003-0248-0036, 2003-0248-0037, 2003-0248-0038, 2003-0248-0039, 2003-0248-0040, 2003-0248-0041, 2003-0248-0042, 2003-0248-0043, 2003-0248-0044, 2003-0248-0045, 2003-0248-0046, 2003-0248-0047, 2003-0248-0048, 2003-0248-0049, 2003-0248-0050, 2003-0248-0051, 2003-0248-0052, 2003-0248-0053, 2003-0248-0054, 2003-0248-0055, 2003-0248-0056, 2003-0248-0057, 2003-0248-0179

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gillis et al.)

Union

• and -

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

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Ed Holmes Ryder, Wright, Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Sean Kearney Counsel Management Board Secretariat

HEARING

September 20, 2004 & January 11, 2005.

Decision

The Union has moved for an indefinite adjournment of this arbitration pending the outcome of a related criminal matter. The Employer has opposed that motion. This Award addresses the Union’s motion.

Facts

There are approximately 50 grievances before the Board, filed by ten Correctional Officers, as a result of discipline imposed on them by the Ministry of Correctional Services. In July 2003, five of the grievors were discharged, and three were suspended in regard to an alleged excessive use of force incident against an inmate on October 18, 2002. In addition, two other grievors were suspended for a related incident on May 23, 2003, involving alleged threats made to a material witness to the October 18, 2002 incident. Subsequently, on April 16, 2004, criminal charges – specifically assault causing bodily harm – were laid against five of the grievors for the October 18, 2002 incident. On May 30, 2004, charges were also laid against the two grievors involved in the May 23, 2003 incident, specifically for uttering death threats and attempting to obstruct justice. The Union has now moved for an indefinite adjournment of these proceedings, pending the outcome of the criminal trial related to the October 18, 2002 incident. In regard to the second criminal trial, which, by agreement, will take place after the alleged assault trial, the Union advised that it was not seeking an adjournment pending that matter at this time. Instead, counsel advised that “[w]e will revisit that after the trial on the alleged assault.” The Employer opposes the Union’s request.

The first day of hearing in this matter was on August 26, 2004, and at that hearing the parties set eleven additional hearing dates. On September 20, 2004, the second day of hearing, the Union moved to adjourn the hearing, pending completion of the related criminal proceedings. That motion was based, in part, on the bail conditions imposed on the grievors. The bail conditions require a number of the grievors to “abstain from communicating directly or indirectly with persons mention in attached Appendix A”, “from going within 500 metres of the residences of the persons mentioned in attached Appendix A”, and “not to be within 500 metres of any Ministry of Correctional Facility in Ontario, except for the reason of immediate employment.” On September 21, 2004, an Order was issued, requesting the grievors and counsel for the Union to discuss seeking an amendment to the bail conditions with the grievors’ criminal counsel. The Order stated that the issue would then be revisited, and “[a]t that time, the other arguments raised by the Union will also be considered…”

On January 11, 2005, counsel for the Union advised that two of the grievors’ criminal lawyers would not advise their clients to seek a change in the bail conditions, and again moved to adjourn these proceedings. He also advised that a preliminary hearing in regard to the October 18, 2002 incident was scheduled for April 2005, with some of the dates conflicting with hearing dates in this matter. The Employer agreed to adjourn the April hearing dates, but opposed the Union’s blanket request for an adjournment.

Decision

For all of the reasons set forth below, I have decided to deny the Union’s request for an indefinite adjournment.

The Union contends that in light of Section 48.1(1) of the Crown Employees Collective Bargaining Act (CECBA) and the Supreme Court of Canada’s decisions in City of Toronto and C.U.P.E., Local 79 (2003) S.C.C. 63 and OPSEU and The Queen in Right of Ontario, (2003), 2003 SCC 64, 232 D.L.R. (4^th) 443 (S.C.C.), that the adjournment should be granted. It asserts that a conviction in the criminal proceeding is now binding on this board, and should the arbitration proceed it would create the risk of inconsistent judgements, be an inefficient use of resources, and potentially lead to confusion in the public and among the grievors.

Section 48.1(1) of CECBA, which was added to the legislation in 2001, provides as follows:

48.1(1) Criminal conviction or discharge considered conclusive evidence.

If a Crown employee is convicted or discharged of an offence under the Criminal Code (Canada) in respect of an act or omission that results in discipline or dismissal and the discipline or dismissal becomes the subject matter of a grievance before the Grievance Settlement Board, proof of the employee’s conviction or discharge shall, after the time for an appeal has expired or, if an appeal was taken, it was dismissed and no further appeal is available, be taken by the Grievance Settlement Board as conclusive evidence that the employee committed the act or omission.

(2) Adjournment pending appeal to be granted.

If an adjournment of a grievance is requested pending an appeal of a conviction or a discharge mentioned in subsection (1), the Grievance Settlement Board shall grant the adjournment.

As stated by the Supreme Court of Canada in OPSEU and The Queen in Right of Ontario, supra, this provision “renders the conviction conclusive of the fact that the employee committed the crime…” In City of Toronto and CUPE, Local 79, supra, and the OPSEU case, the Supreme Court of Canada ordered a similar outcome judicially. In those cases, the Court held that a board of arbitration may not relitigate a criminal conviction, for to do so would be an abuse of process.

The Union is clearly correct when it argues that Section 48.1(1) of CECBA and the Supreme Court of Canada’s recent decisions create a “legal nexus” between the criminal trial and a related labour arbitration. Whereas before, at a labour arbitration, a criminal conviction was prima facie, but not conclusive evidence of the alleged wrongdoing, and rebuttal evidence could be tendered. That is no longer the case. Now “[t]he arbitrator [is] required as a matter of law to give full effect to the conviction.” City of Toronto, supra at par. 58. This change, although very significant, does not compel an adjournment of the labour arbitration – at least not under the specific facts of this case.

In Re Maple Villa Long Term Care Centre and Service Employees International Union, Local 532 (2004), 123 L.A.C. (4^th) 355 at 383 (Davie), the arbitrator accepted that the Court’s ruling in the City of Toronto “impacts upon the issue of whether or not an adjournment should be granted”, but she determined that the decision of whether or not to grant an adjournment was still one of “balancing the competing interests of the parties.” As she concluded at p. 384:

The effect of the Supreme Court’s judgment in City of Toronto and the nexus between the criminal and arbitral process created by that decision, is therefore a factor which the arbitrator may consider in deciding an adjournment request. That factor, however is not the only factor to consider, and, given particular facts and circumstances, may not be the predominant factor. Simply put, the nexus which may exist between the two processes because of the Supreme Court’s decision does not dictate that an adjournment should always be granted. Whether or not to grant an adjournment continues to depend on the facts and practicalities of the situation. The Supreme Court’s decision does not say that grievance arbitration must be deferred or put on hold until the criminal proceedings have been concluded.

In this case, a number of factors lead me to rule against the Union’s request for an indefinite adjournment. First, and very importantly, there is no trial date set. The preliminary hearing is scheduled for April. If the case then proceeds, given the large number of defendants and the schedules of three defense counsel, the Crown Attorney and the Court, a trial date is likely to be many months away, and if appeals are considered, the delay may well be measured in years. What the Union is asking for is an indefinite adjournment – one likely to be very lengthy.

In a number of the case cited which allowed for an adjournment, the trial date had already been set and the length of the adjournment was known and measured in months. For example, in Toronto District School Board and CUPE, Local 4400 (January 9, 2001, unreported decision of Arbitrator Tims), the arbitrator ruled that an additional six month adjournment “will not in itself jeopardize the expeditious resolution of this case at arbitration.” In OPSEU (Miller) and Ministry of Correctional Services, GSB No. 0008/90 (1990) (Verity), the Board granted a request to adjourn in regard to a criminal trial scheduled for 2 ½ months away, finding that it was “not an inordinate delay.” In OBLEU (McWilliams) and LCBO, GSB No. 860/97 (1997) (Fisher), the Board adjourned the hearing where the criminal trial was scheduled for the following month.

In contrast, where the length of the requested adjournment is unknown, arbitrators have been very concerned about delay. In Re McMaster University and Service Employees’ International Union, Local 532 (1993), 1993 CanLII 16783 (ON LA), 33 L.A.C. (4^th) 33 (Brunner), the arbitrator denied the union’s request for an adjournment where no trial date had been set. The arbitrator concluded at p.35 that “it cannot be said with any certainty when the criminal charges will be heard and the University has a legitimate interest in having the matter dealt with expeditiously.” Likewise, in Re Maple Villa Long Term Care Centre, supra at pp. 384-85, the date of the criminal trial – and therefore the length of the requested adjournment - was unknown. The arbitrator stated:

[T]his is not a case where the outcome of the criminal process is likely to be determined over the next several weeks or even months. If that were the case, a more cautious approach and a delay in commencing the arbitration might be warranted in order to avoid the possibility of inconsistent decisions and the impractical consequences which could arise, and to which the Supreme Court referred, if for example, the grievor was reinstated to employment yet subsequently convicted of the assault.

Where, as here, a significant length of time will elapse before the disposition of criminal charges (leaving aside entirely the matter of potential appeals to which counsel referred), such a cautious approach is less attractive, especially when it is impossible to predict the outcome of either process. In the face of a lengthy delay before the conclusion of the criminal process, and given the uncertainty in the results of either process, to delay the arbitration process to await the uncertain conclusion on the criminal process is less appealing and less compelling.

In this case, if the case proceeds after the preliminary hearing, the potential delay to the arbitration hearing may be very substantial. Yet the collective agreement, and the case law, recognize that the grievance arbitration process should be expeditious. Article 22.1 of the collective agreement states that it “is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the…alleged contravention of this Agreement.” . The Board has also recognized the “need for expeditious disposition of a dismissal case.” OPSEU (Miller), supra at p. 4. Expedition is not just an interest of the grievor or the Union, it is an interest of the Employer as well. Accordingly, where the adjournment sought is for an uncertain and likely very lengthy period of time, the impact on the Employer’s right to an expeditious hearing must be considered.

Further, a lengthy delay could cause real prejudice to the Employer in the form of ongoing liability, if the grievors are successful in the end. In this case, the Union is asking for an adjournment without conditions (i.e., without any forfeiture of potential back pay). If the matter is delayed for many months, if not years, before it can even start, the Employer may face significant additional liability, a factor which also must be considered in this adjournment request. Although it is true, as the Union suggests, that the grievors have a duty to mitigate their losses, that duty does not negate the potential for substantial liability for the Employer. The delay in this case has already been substantial, and the adjournment would increase it for an indefinite and substantial additional period.

In this regard, I do not conclude that the delay that has already occurred negates the Employer’s interest in expedition. I cannot conclude, as in Re Shaw Baking Company and B.C.T., Local 284 (1998), 1998 CanLII 30080 (ON LA), 70 L.A.C. (4^th) 379, 389 (Bendel), that all expectation of expediency has “already been lost.” Rather, what is clear is that allowing the indefinite adjournment sought would substantially delay this proceeding.

Also very significant is the fact that the criminal trial, even if it results in a conviction of the charged grievors, would not be dispositive of all of the matters in this case. That is because a number of the grievors have not been criminally charged. The criminal trial will not decide their actions. Consequently, there has to be an arbitration hearing as to the events of October 18, 2002 – no matter what the result of the criminal trial turns out to be. For this reason, the criminal trial will not, under any scenario, obviate the need for a hearing. In my view, this is a significant distinguishing factor from many of the cases that allow an adjournment and significantly undermines any benefit in terms shortening the hearing that might result from awaiting the criminal trial.

In addition, the discipline was not just imposed for the alleged excessive use of force. It was also imposed for matters not covered by the criminal charges. For example, it is also alleged that the grievors failed to report what occurred and “were dishonest and deceitful in filing” reports and responding to Ministry investigators, issues that would not be dealt with at the criminal trial. For this reason as well, an arbitration hearing would have to be held, regardless of the outcome of the criminal proceeding.

Further, both parties have taken the position that, regardless of outcome of the criminal trial, an arbitration hearing would still need to be held. If there is an acquittal, the Employer will still take the position that, under the civil standard of proof, the grievors engaged in excessive use of force and that it had just cause to impose the discipline it imposed. If there is a conviction, the Union will argue that the penalty of discharge, under all of the circumstances, is still excessive. OPSEU (Sammy et al.) and Ministry of Community Safety and Correctional Services (2004), GSB No. 2001-0224 et al. (Harris). Again, in this situation, the utility gained by awaiting the outcome of the criminal trial would be minimized.

Where the basis of an employee’s discharge is the fact that there has been a criminal conviction or a criminal investigation, it may be appropriate to adjourn the arbitration hearing. In that situation, the appropriateness of the discharge will depend on the outcome of the criminal trial. That is not the situation here. The Employer did not rely on the criminal investigation or a criminal conviction to impose discipline. The discipline imposed was based on the Employer’s own investigation and substantially preceded the laying of criminal charges. This fact also distinguishes this case from the situation in Re Toronto District School Board, supra, where the employer relied on the criminal investigation in its decision to discipline the grievor.

The Union also relies on Section 48.1(2) of CECBA. That provision states:

48.1(2) Adjournment pending appeal to be granted.

If an adjournment of a grievance is requested pending an appeal of a conviction or a discharge mentioned in subsection (1), the Grievance Settlement Board shall grant the adjournment.

The Union asserts that this provision presupposes an adjournment during the trial and assumes that the Board has not yet had a hearing. The Union submits that this is the only way to read this provision.

With respect, I cannot agree. If Section 48.1(2) was meant to require an adjournment in all cases, it could have easily so provided. Instead, the provision is far more limited. Further, Section 48.1(2) may pertain to the situation where an employee is discharged because of a criminal conviction, as occurred in City of Toronto and CUPE, supra, as well as in the case of Mr. White in OPSEU and The Queen in Right of Ontario, supra. Where that occurs and a grievance is filed and the conviction is appealed, Section 48.1(2) requires that the GSB adjourn its hearing. In those circumstances, where the discharge is based on the criminal conviction and the conviction is appealed, requiring an adjournment of the arbitration makes sense. Consequently, I cannot conclude that Section 48.1(2) presupposes that the GSB must always adjourn its proceedings.

There is, of course, the possibility of inconsistent results if the arbitration process finds in favour of the grievors, while the criminal charges are still pending. But as Arbitrator Davie held in Re Maple Villa Long Term Care Centre, supra at p. 387, “there are a variety of alternatives open to the parties and the arbitrator” including “to either defer the issue of remedy for a period of time, or tailor the remedy available, either temporarily pending the criminal case, or on a more permanent basis.” In my view, there are indeed a number of possibilities to handle such an event, such as a leave of absence with pay or reinstatement to a different position, pending the outcome of the criminal trial. Therefore, the possibility of inconsistent results is not, under the specific facts of this case, a sufficient basis to grant an indefinite adjournment.

In terms of potential confusion to the grievors if they have to testify in both proceedings at the same time, or close in time, that matter may be dealt with if the situation arises through short adjournments, if required. Again, it is not a basis to adjourn the hearing indefinitely.

I further conclude that the grievors’ rights in relation to the criminal trial would not be infringed by proceeding with the arbitration. Section 13 of the Canadian Charter of Rights and Freedoms, provides as follows:

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

This provision has led arbitrators to conclude that an individual’s rights at the criminal trial would not be prejudiced by what transpires at arbitration. Re McMaster University, supra; Re Toronto District School Board, supra. This Board has also declined to order adjournments based on general concerns that, for tactical reasons, to proceed with the arbitration while the criminal trial was pending would be disadvantageous to the grievors. OPSEU (Beard) and Ministry of Community and Social Services (1989), GSB No. 371/89, at p. 14 (Gorsky)

In regard to the bail conditions, I conclude, as I did in the earlier Order, that they “create significant logistical problems for [counsel’s] communications at the hearing with the grievors.” It will be cumbersome and time-consuming for counsel to have to discuss matters that arise individually with the grievors, instead of as a group, but I see no basis to conclude that the bail conditions would preclude a fair hearing. The bail conditions do not preclude the grievors from associating, i.e., they may all attend the hearing and participate, albeit individually. Further, the grievors, in conjunction with their defense counsel, may decide to request a change to those conditions in light of the ruling in this case that the arbitration will proceed.

The case law reveals a number of different standards used by arbitrators in considering a request for an adjournment in light of related criminal proceedings. In Re University of Western Ontario and CUPE, Local 2361 (1988), 35 L.A.C.(3^rd) 29, 41 (Dissanayake), OPSEU (Beard), supra, and OPSEU (Maurice) and Ministry of Community and Social Services (1990), GSB No. 151/99 (Roberts), “exceptional circumstances” were required before the arbitration would be adjourned pending the disposition of a related criminal charge. In Re Shaw Baking Company, supra, the standard used was whether it makes “good sense” to adjourn the hearing. Others have applied a “balancing” standard. Re Toronto District School Board, supra; Re Maple Villa Long Term Care Centre, supra; OPSEU (Miller), supra. In my view, under any of these standards, in light of the specific facts of this case, I cannot grant the Union’s request for an indefinite adjournment.

I do find it appropriate, however, to wait until the conclusion of the preliminary hearing. The parties agreed to adjourn the April hearing dates, and I find that, in order to provide the court time to consider the matter, the May hearing dates should be adjourned as well. The hearing dates of June 21 and June 22 will remain. Additional hearing dates should be arranged by the parties in conjunction with the Board.

Conclusion:

1. The Union’s motion for an indefinite adjournment is denied.

2. To give the Court time to consider the preliminary hearing issues, the May hearing dates are adjourned. The hearing dates of June 21 and June 22 will remain, and the parties should arrange additional hearing dates through the GSB.

Issued at Toronto this 7^th day of February, 2005.