GSB# 2004-1719

UNION# OLB458/04

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bailey)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Jim Gilbert Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Michael Horvat Ogilvy Renault Barristers and Solicitors

HEARING

March 27, 2007.

Decision

The Proceedings

This matter involves the discharge of David Bailey from his employment with the LCBO as a result of an altercation with Dave Delin at the Cumberland Street Store in Thunder Bay, Ontario on June 26, 2004. Mr. Bailey suffered a broken nose and Mr. Delin took 20 staples to close a knife wound inflicted by Mr. Bailey. Mr. Bailey was charged with aggravated assault; he was acquitted on the basis of self-defence.

The parties now seek direction as to the evidentiary effect on these proceedings of the Court’s acquittal on the criminal charges.

The Submissions of the Parties

The Union submitted that the findings of the Court are binding on this Board, particularly that Delin unlawfully assaulted Bailey. The Union emphasized paragraph 32 of the Court’s Reasons as follows:

32To decide whether Mr. Bailey was therefore acting in lawful self-defence, I must consider three issues: one, was Bailey unlawfully assaulted by Delin; two, did Bailey use force against Delin because Bailey reasonably feared that Delin would seriously injure him; three, did Bailey use force against Delin because Bailey reasonably believed that he could not otherwise save himself from being seriously injured.

The trial judge found in the affirmative on all three branches of the test and acquitted Bailey because he acted in self-defence. The Union said that it would be an abuse of process to relitigate those findings of the Court.

The Employer submitted that for Bailey to succeed with the claim of self-defence he must have committed an aggravated assault, which is excused thereby. It is open to the Employer to argue that there was just cause for the discharge notwithstanding the acquittal, because of the lower civil standard. Self-defence was said to be a criminal law concept based in substantive assumptions as exemplified in paragraphs 26 through 28 of the Court’s Reasons:

26The key issue is whether there was an air of reality to the defence of self-defence in this case.

27As noted by the Supreme Court of Canada in R. v. Cinous: “The air of reality test imposes a burden on the accused that is merely evidential rather than persuasive.” In applying the test I must consider the totality of the evidence and assume the evidence relied upon [by] the accused is true.

28The term “air of reality” simply means that I must determine that if the evidence put forward is such that if believed, a reasonable jury or fact-finder properly charged, could have acquitted.

Essentially, by operation of the criminal law, these are not findings of fact so much as they are parts of the “air of reality” test. The employer would be constrained from arguing against the Court’s determination that Bailey acted in self-defence. However, I would still need to hear the evidence since I am not, strictly speaking, bound by the facts, other than those that directly support the judgment.

In reply, the Union emphasized that this Board is not able to make findings of fact that are contrary to those of the Court. The Union relied upon OC Transpo v. ATU, Local 279 [2005] O.L.A.A. No 43 (Starkman).

Reasons for Decision

This was brought as a preliminary application by the parties to seek direction as to what findings of fact made by the Court are binding upon this Board. The difficulty with providing such explicit direction is that to do so the Board would be required to adopt an inquisitorial rather than adversarial model for the hearing of the case. Rather, it is for the parties to determine what facts they need to prove in order to present their case. To the extent that those facts are also “essential findings of fact” made by the criminal court, they shall not introduce evidence which has the effect of contradicting those findings. Beyond that, the Board cannot be of further assistance. The Court upheld Mr. Bailey’s claim of self-defence. To do so it made certain findings of fact. This Board must accept those facts. In the least, Delin unlawfully assaulted Bailey. Bailey used force against Delin because Bailey reasonably feared that Delin would seriously injure him. Bailey used force against Delin because Bailey reasonably believed that he could not otherwise save himself from being seriously injured.

I understand and appreciate the parties’ desire to obtain a shorthand version of what binds them and the Board. However, in my view, that would require the Board to make decisions about relevant facts without the parties’ specific submissions, made in the context of the facts placed in issue before the Board, which would be inappropriate.