Ontario Superior Court of Justice, Divisional Court

Court File Nos. 141/99; 377/99; 581/99

Date: 2000-05-05

O'Driscoll, MacFarland and Crane JJ.

Counsel:

J. Hanson, and K.J. Harbridge, for applicant, City of Toronto.

Malliha Wilson, Sunil Kapur and Fateh Salim, for applicant, The Queen in right of Ontario.

D. Wray, for respondent, Canadian Union of Public Employees, Local 79.

Craig Flood, for respondent, Ontario Public Service Employees Union.

Malliha Wilson, Sunil Kapur and Fateh Salim, for intervener, Attorney General for Ontario.

The judgment of the court was delivered by

O'Driscoll J.:—

I. Nature of the Proceedings

[1] Over the course of two (2) court days, argument was presented on three (3) applications for judicial review, each involving an arbitration award.

[2] The question in each case is: at a grievance arbitration filed by a discharged employee following his conviction in a court of criminal jurisdiction for sexual assault committed in the workplace, does an arbitrator have jurisdiction to entertain and give effect to a collateral attack on the judgment of the court of criminal jurisdiction, to treat the employee's guilt as tentative, "retry" the criminal case, pronounce the grievor "innocent" of the criminal charge of which he has been convicted and order the grievor reinstated with full compensation?

[3] The three (3) applications for judicial review succeed.

A. Application No. 141/99 — Glenn Oliver, Grievor

[4] The City of Toronto (City) applies for judicial review of the interim decision of Arbitrator Douglas Stanley, dated August 12, 1998, and his award of December 1, 1998, set out in a 108-page decision following a four (4) day hearing and finding that the City did not have just cause to terminate the employment of its employee, Glenn Oliver.

[5] Glenn Oliver, grievor, was employed by the City on May 26, 1970 and discharged from his job as a Recreationalist in the Parks Department on January 16, 1996. The employee led various programs for children and mentally disabled adults at a recreation centre operated by the City of Toronto. Glenn Oliver was assigned to the McCormick Community Recreational Centre from approximately 1982 to 1993.

[6] On July 27, 1994, Glenn Oliver was arrested and charged with sexual assault alleged to have occurred between January 31, 1985 and January 31, 1987 of a complainant, a boy, John B., born in 1974. The complainant was a minor at the time of the assaults, he was a patron of the McCormick Centre and a participant in Glenn Oliver's drama programs.

[7] Glenn Oliver was released on bail. The City placed him on a leave of absence, then on vacation, then sick leave. Finally, he was assigned temporary work in accordance with his bail conditions.

[8] The trial was held before G. Ferguson J., without a jury, at Toronto, Ontario. Both the accused, Glenn Oliver, and the complainant, John B., testified before Ferguson J. The accused/employee/grievor admitted taking the complainant shopping, to restaurants and to the theatre but denied John B.'s allegations that the accused had sexually assaulted him.

[9] On January 12, 1996, G. Ferguson J. gave oral reasons for judgment and convicted Glenn Oliver of having sexually assaulted the minor, John B., between January 31, 1985 and January 31, 1987. In his reasons, the trial judge found that the issue was one of credibility and found the complainant, John B., more credible than the accused, Glenn Oliver.

[10] On May 21, 1996, Glenn Oliver was sentenced to fifteen (15) months in jail to be followed by one (1) year of probation.

[11] Glenn Oliver appealed his conviction and sentence to the Court of Appeal for Ontario. On May 14, 1997, without reasons, the appeal was dismissed.

[12] Following the January 12, 1996 conviction, on January 15, 1996, Glenn Oliver was suspended without pay. By letter, dated January 16, 1996, the City terminated Glenn Oliver's employment; the employer relied upon the evidence at trial and the guilty verdict as the basis of discharge. The City's letter took the position that the conviction was evidence of a breach of trust and, given the responsibility to the public of the City's Parks and Recreational Department, Oliver's conviction was inconsistent with his continued employment.

[13] On the same day as the discharge, namely, January 16, 1996, the Union filed a grievance alleging that Glenn Oliver had been discharged without just cause.

[14] On June 25, 1998, the grievance went to an arbitration hearing before a single arbitrator, Douglas Stanley.

[15] On August 12, 1998, Arbitrator Stanley issued a twenty-two (22) page interim award deciding:

(a) that the certificate of the grievor's conviction on January 12, 1996 of having sexually assaulted John B., and the transcript of evidence of the trial were admissible on the arbitration, and

(b) the certificate of conviction and the transcript of evidence were prima facie evidence that the grievor had committed those acts of sexual assault but that he, the arbitrator had the jurisdiction to determine the weight and probative value of those documents and it was open to the Union to adduce evidence to rebut the certificate of conviction.

[16] The arbitrator held hearings on June 25, August 18, August 19 and October 6, 1998. The arbitrator had before him the certificate of conviction and a transcript of the evidence before G. Ferguson J. The grievor testified before G. Ferguson J. and before the Arbitrator where he renewed his denial that he had sexually assaulted John B. John B. did not testify before the Arbitrator.

[17] On December 1, 1998, the Arbitrator issued a 108-page award allowing the grievance and directed the City to reinstate the grievor with full compensation.

[18] During the course of his award, the arbitrator: (a) concluded that where a grievor is convicted of a criminal offence but maintains his innocence, the employer is not entitled to rely on the grievor's conviction as just cause for dismissal; (b) rejected the City's submission that the grievor's conviction of sexual assault on a minor was just cause for dismissal; (c) upon reviewing the grievor's evidence given on the arbitration, the certificate of conviction and the transcript of the evidence at the trial before G. Ferguson J., rejected the City's submission that it was an abuse of process to decide afresh whether the grievor committed the acts and assaults of which he had been found guilty; (d) notwithstanding the findings of fact made on the evidence by the trial judge, G. Ferguson J., the arbitrator concluded that the grievor was telling the truth and John B. had not told the truth before G. Ferguson J.

[19] The following are some excerpts from the Arbitrator's award:

I would only add, at this point, that it seems Kafkaesque to say that the grievor is precluded at this hearing from continuing to say that he did not commit the acts alleged by B, acts which have formed the basis for the City's conclusion that there was a breach of trust and the decision to terminate his employment. The criminal justice system is fairly resilient. I cannot see that the grievor's protestations of innocence before this arbitration tribunal is an affront to, or serves to undermine the criminal justice system.

I have made it clear to the parties that I have no jurisdiction to make a determination about wrongful conviction. However, I have to listen to the evidence and keep an open mind to the possibility that, notwithstanding the evidence of the conviction, the grievor did not do what he was accused of by B.

There is no arbitral authority for the proposition that the Employer is free to rely on a criminal conviction alone as just cause for discharge. The whole arbitral concept of just cause rests on the proposition that employees are disciplined for misconduct and the Employer must establish misconduct in the employment relationship or conduct outside the employment relationship incompatible with the continuation of the employment relationship in order to meet the just cause test.

When I balance the evidence in this case and subject it to the tests of credibility outlined in the case law above, I simply cannot believe B's story. I accept that this is a different finding on credibility than that of the Trial Judge and because of that I have taken pains to outline the evidence which I rely on. Counsel for the Employer submitted that Oliver appealed the conviction and that the Court of Appeal did not think that the grievor was wrongly convicted. Where a Trial Judge makes a finding of credibility, Appeal Courts are loathe to set aside such a finding. I am not in a position where I must pay the same deference to the Trial Judge's finding of credibility. The fact of the grievor's criminal appeal being denied does not, therefore, add any weight to the Trial Judge's findings on the issue of credibility.

On reviewing all of the evidence before me, I have to conclude that the grievor is being truthful in denying the allegation made by B. I have to conclude that B's story is dramatic and contrived and is simply not consistent with the probabilities which a practical and informed person would readily recognize as reasonable in light of all the evidence. I conclude that B's story is lacking in harmony with the preponderance of probabilities disclosed by all the facts and circumstances of this case. Because I conclude that the grievor is telling the truth and B is not, I must find there are no grounds for the grievor's termination.

The grievance is allowed. I direct that the grievor be reinstated in employment with full compensation.

[20] On March 4, 1999, this application (141/99) for judicial review was launched.

B. Application No. 377/99 — Jack R. White, Grievor

[21] The Ministry of Community and Social Services (Ministry) applies for judicial review to quash the interim decision of the Grievance Settlement Board (GSB), dated July 7, 1997, wherein the GSB decided that no restrictions should be placed on the scope of the evidence the Union may call in its attempt to rebut the prima facie evidence flowing from the certificate of conviction that the grievor committed the act(s) of sexual assault. The Ministry also seeks an order quashing the final decision of the GSB concluding that "the evidence before me has the effect of rebutting the presumed fact that the grievor engaged in sexually inappropriate conduct towards Ms. S. As a result the employer had no just cause to discharge the grievor and this grievance is allowed."

[22] Jack R. White, grievor, was employed by the Ministry as a residential counsellor at the Huronia Regional Centre, Orillia, Ontario from 1970 to 1984 and from 1984 to 1995. A residential counsellor's responsibilities included direct care and supervision, including bathing, dressing, clothing and feeding of the residents of the Centre.

[23] On August 3, 1993, another residential counsellor made a report to the Ministry alleging that on or about April 17, 1989, Jack R. White had sexually assaulted a female resident of the Centre during the course of his employment. The alleged victim was a developmentally challenged female who could not speak. The same counsellor made a similar report to the City of Orillia Police Service.

[24] On August 13, 1993, the Ministry wrote to Jack R. White and advised that as a result of the allegation, his duties and responsibilities were limited: he was prohibited from taking any of the residents of the Centre for walks unless accompanied by another staff member.

[25] On or about November 16, 1993, Jack R. White was charged with sexual assault, contrary to s. 271 of the Criminal Code of Canada in connection with the report to the Orillia Police as set out in [23], above.

[26] In response to the criminal charge, the Ministry suspended Jack R. White.

[27] On December 9, 1993, the Ministry transferred Jack R. White to a landscaping job where his contact with the residents would be minimal; there were no changes regarding White's pay or his job classification.

[28] 28] On March 27, 1995, at Barrie, Ontario, before Bernstein J., White pleaded not guilty to the charge of sexual assault. A trial by jury ensued on March 27 and 28, 1995.

[29] 29] At his trial, Jack R. White did not testify nor did the defence call any evidence.

[30] On March 28, 1995, the jury found Jack R. White guilty as charged of sexual assault.

[31] On May 3, 1995, Jack R. White was given a suspended sentence and placed on probation for three (3) years. One of the terms of the probation prohibited Jack R. White from associating directly or indirectly with children under 16 years of age or persons requiring and receiving supervision and care by reason of mental handicap, except in the presence of an adult over 21 years of age.

[32] By Notice of Appeal, dated May 25, 1995, Jack R. White launched an appeal from his conviction to the Court of Appeal for Ontario.

[33] On April 23, 1996, the Court of Appeal for Ontario, in a handwritten endorsement, dismissed the appeal. The endorsement said, in part: "There was ample evidence to support the conviction".

[34] On April 4, 1995, following the March 28, 1995 conviction, the Ministry suspended, with pay, Jack R. White.

[35] In a letter, dated May 1, 1995, the Ministry terminated the employment of Jack R. White. The Ministry relied entirely upon the conviction and upon the facts determined at trial.

[36] On May 2, 1995, the employee, Jack R. White, filed a grievance claiming that his discharge was without just cause.

[37] On June 25, 1996, the matter went to arbitration before Nimal Dissanayake, Vice Chair of the Ontario Crown Employees Grievance Settlement Board (GSB).

[38] On October 15, 1996, the GSB held that the certificate of conviction setting out the conviction of Jack R. White, employee/accused, convicted person/grievor would not be received at the arbitration "either conclusively or on a prima facie basis" of the fact that the sexual assault had occurred.

[39] On March 14, 1997, the Divisional Court, following an application for judicial review brought by the Ministry, gave oral reasons stating, in part:

In the particular circumstances of this case the Board ought to have made it clear that the conviction would be received and stand as prima facie evidence of the sexual assault on a female resident of the Huronia Regional Centre at Orillia. The evidentiary ruling was wrong, was patently unreasonable and cannot stand. The matter will be returned to the Board for continuation of the hearing against the background of this decision. [(1997), 32 O.R. (3d) 572 at p. 574.]

[40] The hearing resumed before the GSB on May 16, 1997 and June 2, 1997.

[41] In its July 7, 1997 decision, the GSB concluded that there would be no restrictions placed on the scope of the evidence the grievor and the Union might call in an attempt to rebut the prima facie evidence that resulted in the grievor's conviction.

[42] On August 20, 1997, the arbitration resumed and continued over twenty-nine (29) days of hearings ending on February 17, 1999. At those hearings, the grievor testified and maintained that he was innocent of the allegations lodged by his fellow counsellor. Mr. White denied that he had sexually assaulted the female mentally handicapped resident who could not speak.

[43] On May 25, 1999, the GSB released ninety-nine (99) pages of reasons and found:

(a) the Union and the grievor had established that the grievor did not engage in the conduct alleged by Mr. Wither (fellow counsellor) and accepted by the jury, and

(b) the Union had rebutted the presumption that the grievor had engaged in sexually inappropriate conduct, and

(c) there were no grounds upon which to discharge the grievor, and

(d) the grievor must be reinstated and compensated for all lost wages and benefits plus interest from the date of the grievor's discharge to the date of reinstatement. [Semble, the grievor, while on probation, could not have fulfilled his duties as a Residential Counsellor because the exercise of such duties would have placed the grievor in violation of the probation order.]

(e) all reference to the allegations of sexual assault that resulted in the March 28, 1995 conviction were to be removed from the grievor's file.

[44] At p. 93 of the GSB's reasons of May 25, 1999, the following is found:

I would not lightly reach a conclusion which is directly opposite to the verdict reached in the criminal courts. However, this is an extreme case, where the evidence is overwhelming and drives me to the conclusion that the presumed fact does not exist. In other words, the evidence before me has the effect of rebutting the presumed fact that the grievor engaged in sexually inappropriate conduct towards Ms. S. As a result the employer had no just cause to discharge the grievor and this grievance is allowed.

[45] On June 7, 1999, this application (377/99) for judicial review was commenced.

C. Application No. 581/99 — Mohan Samaroo, Grievor

[46] The Ministry of Correctional Services (Ministry) applies for judicial review to quash the September 15, 1998 and May 25, 1999 interim decisions of the Grievance Settlement Board (GSB). The GSB held that neither the doctrine of issue estoppel nor that of abuse of process applied to preclude the grievor from attempting to rebut the prima facie proof of the allegations of the grievor's guilt. And moreover, the grievor's convictions are only prima facie, but not conclusive evidence that the grievor committed the crimes for which he had been convicted.

[47] Mohan Samaroo, grievor, was employed by the Ministry as a guard at the Whitby, Ontario jail.

[48] In October 1993, two (2) female inmates of the Whitby jail complained that Mohan Samaroo had sexually assaulted them. The complaints were reported to the Durham Regional Police. The Ministry's Independent Investigation Unit (IIU) commenced its own investigation.

[49] In November 1993, in response to the allegations, the Ministry suspended the grievor pending the completion of the IIU's investigation.

[50] In November 1993, the Durham Regional Police charged Mohan Samaroo with three (3) counts of sexual assault involving three (3) female inmates.

[51] During the IIU's investigation, it learned of two (2) more women who alleged that Mohan Samaroo had sexually assaulted them while they were inmates of the Whitby Jail in the Autumn of 1993.

[52] In March 1994, the IIU issued its report and concluded that Mohan Samaroo had, as alleged, sexually assaulted all five (5) female inmates.

[53] By letter, dated May 19, 1994, the Ministry terminated the employment of Mohan Samaroo.

[54] On January 7, 1994, Crown counsel elected to proceed by way of summary conviction.

[55] The trial judge, His Honour Judge D.B. Dodds, Ontario Court, Provincial Division, at Oshawa, Ontario, heard evidence on June 9, 10, 15, 1994, September 26, 27, 1994 and November 17, 1994.

[56] On March 27, 1995, Judge Dodds found Mohan Samaroo guilty of two (2) counts of sexual assault and one (1) count of assault.

[57] On June 12, 1995, Mohan Samaroo was sentenced to imprisonment for two (2) months followed by two (2) years probation on count 1 and similar concurrent sentences on counts 2 and 3.

[58] On June 12, 1995, Mohan Samaroo launched an appeal from his convictions and sentences.

[59] On June 29, 1995, Mohan Samaroo abandoned his appeals against sentence.

[60] On March 27, 1996, LaForme J. heard the appeals against conviction.

[61] On May 17, 1996, LaForme J. released twenty-eight (28) pages of written reasons dismissing the appeals against conviction. LaForme J. said, in part [summarized 31 W.C.B. (2d) 191]:

In conclusion, read as a whole, the reasons of the learned trial judge make it abundantly clear that he accepts the versions of events as testified to by the complainants over those of the Appellant. Moreover, not only does the trial judge properly acknowledge that in the face of conflicting evidence he is obliged to see if he can make up his mind "beyond a reasonable doubt", he, on several occasions, concludes by confirming that he is in fact satisfied to this degree.

[62] On May 19, 1994, the same day as his employment was terminated (see: [53] above) Mohan Samaroo filed a grievance with the Crown Employees Grievance Settlement Board (GSB) claiming that he had been discharged without just cause.

[63] On December 18, 1996, the grievance came before Owen Gray, a Vice Chair of the GSB. The matter was adjourned to await the outcome of the Jack R. White judicial review matter that was pending in the Divisional Court. The Divisional Court's oral decision was given on March 14, 1997 (Ontario (Minister of Community & Social Services) v. O.P.S.E.U., 32 O.R. (3d) 572).

[64] The grievance proceeded before the GSB on April 1 and 6, 1998.

[65] On September 15, 1998, an interim decision was released.

[66] On page 21 of the reasons for the interim release, the GSB said:

The union has conceded that the three convictions registered against the grievor can be received as prima facie evidence that he had committed the misconduct for which he was convicted: the sexual assaults on L.W. and T.A. and the common assault on S.M. The same does not apply to Judge Dodds' findings that the grievor assaulted RM. and A.Q., which assaults were not the subject of convictions. The grievor is not precluded by doctrines of issue estoppel or abuse of process from attempting to rebut the facts of which the convictions will be treated as prima facie evidence.

[67] On February 23 and 24, 1999, the grievance was back before the GSB. On this occasion, the Ministry requested that the GSB make:

(1) preliminary decisions regarding the evidence relating to the criminal convictions, and

(2) the reliability of the criminal convictions as proof of the grievor's guilt.

[68] The grievor proposed to introduce "new evidence" and add to his original defence.

[69] It was the Ministry's submission that the "new evidence" was either:

(1) evidence that had been placed before the Court on the criminal charge,

(2) known to the grievor at the time of the criminal trial and appeal,

(3) could not have affected the outcome of the criminal trial.

[70] On May 25, 1999, the GSB released its decision whereby it declined to make any rulings with respect to the issues raised by the Ministry and concluded that the grievor's convictions were only prima facie, but not conclusive evidence that the grievor committed the crimes of which he had been convicted.

[71] On September 2, 1999, the Ministry launched this application for judicial review.

II. The Issues

A. Ontario Evidence Act

[72] Section 22.1 of the Ontario Evidence Act, R.S.O. 1990, c. E.23, was enacted by S.O. 1995, c. 6, s. 6, and came into force on June 11, 1996. It reads:

22.1(1) Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person, if,

(a) no appeal of the conviction or discharge was taken and the time for an appeal has expired; or

(b) an appeal of the conviction or discharge was taken but was dismissed or abandoned and no further appeal is available.

(2) Subsection (1) applies whether or not the convicted or discharged person is a party to the proceeding.

(3) For the purposes of subsection (1), a certificate containing the substance and effect only, omitting the formal part, of the charge and of the conviction or discharge, purporting to be signed by the officer having the custody of the records of the court at which the offender was convicted or discharged, or by the deputy of the officer, is, on proof of the identity of the person named as convicted or discharged person in the certificate, sufficient evidence of the conviction or discharge of that person, without proof of the signature or of the official character of the person appearing to have signed the certificate.

[73] In my view, this amendment to the Ontario Evidence Act applied to all three (3) arbitrations.

B. Collateral Attack on a Court Order

[74] In Wilson v. The Queen, [1983] 2 S.C.R. 594, 4 D.L.R. (4th) 577, McIntyre J. (Laskin C.J.C. and Estey J. concurring), wrote (p. 599):

In the Manitoba Court of Appeal, Monnin J.A. said:

"The record of a superior court is to be treated as absolute verity so long as it stands unreversed."

I agree with that statement. It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.

Page 604:

The cases cited above and the authorities referred to therein confirm the well-established and fundamentally important rule, relied on in the case at bar in the Manitoba Court of Appeal, that an order of a court which has not been set aside or varied on appeal may not be collaterally attacked and must receive full effect according to its terms.

[75] The conviction(s) of each grievor followed a trial. The conviction(s) have been affirmed on appeal and cannot be collaterally attacked at a subsequent arbitration.

[76] The convictions in question are valid orders/judgments and are binding upon all those who were parties to the court proceeding.

[77] In my view, it is not open to an arbitrator to treat a certificate of conviction as anything other than what the certificate states, i.e. the person named was convicted of the stated offence at the place and date indicated. The certificate is not "a piece of evidence" that may or may not be persuasive depending upon the view taken by the arbitrator of the evidence adduced at the arbitration.

[78] Even if the arbitrator concludes that the grievor is "not guilty" of the offence stated in the certificate of conviction, the grievor remains convicted of the criminal offence(s). The arbitrator has no jurisdiction or right to conduct a review, nor absolve or pardon the conviction. If a convicted person claims that there has been a wrongful conviction, the convicted person's counsel pleads that issue in a court and not before an arbitrator.

[79] In Canada, there is an elaborate criminal justice system in place to process alleged breaches of the Criminal Code of Canada. Nowhere in that system do we find the presence of arbitrators. In short, it is totally immaterial whether the arbitrator agrees, disagrees or is uncertain of whether a grievor is guilty of the offence set out in the certificate of conviction.

C. Issue Estoppel/Abuse of Process

[80] In McIlkenny v. Chief Constable of West Midlands, [1980] 2 All E.R. 227 (C.A.), Lord Denning, M.R. gave a history of "issue estoppel". In that case, the six (6) "Birmingham Bombers", on a voir dire at their trial for twenty-one (21) murders, testified that they had been assaulted and beaten up by the police, actions which would render their statements to the police inadmissible. The trial judge had disbelieved the accused and admitted the statements, the only evidence against them.

[81] Following their convictions, the six (6) commenced a civil action against the police. The police moved to strike out the action as the issue had been decided in favour of the police on the voir dire of the murder trial. In holding that issue estoppel was applicable, Lord Denning, M.R. said: p. 235:

Our friends in the United States have been just as scathing as Jeremy Bentham. They have rejected the doctrine of mutuality altogether, and they have limited the doctrine of privity. They take a distinction between a decision in favour of a man and a decision against him. If a decision has been given against a man on the identical issue arising in previous proceedings and he had full and fair opportunity of defending himself in it, then he is estopped from contesting it again in subsequent proceedings. Not only is he estopped but so are those in privity with him. But there is no corresponding estoppel on the person in whose favour it operates.

This is no new departure. It was foreseen as long ago as 1776 when the judges of England advised the House of Lords in Duchess of Kingston's Case 2 Smith's LC (13th Edn) 644 at 647-648, [1775-1802] All ER Rep 623 at 627:

"But in all these cases, the parties to the suits, or at least the parties against whom the evidence was received, were parties to the sentence, and had acquiesced under it; or claimed under those who were parties and had acquiesced."

Lord Denning, M.R. went on to quote [at p. 236] from Eagle, Star and British Dominion Insurance Co. v. Heller, 140 S.E. 314 (1927), where the Supreme Court of Appeals of Virginia said:

"To permit a recovery under a policy of fire insurance by one who has been convicted of burning the property insured, would be to disregard the contract, be illogical, would discredit the administration of justice, defy public policy and shock the most unenlightened conscience. To sustain such a judgment would be to encourage and give support to the current thoughtless and carping criticisms of legal procedure, and to justify the gibe that the administration of the law is the only remaining legalized lottery. Our conclusion, then, under the facts of this case, is that the court erred in refusing to admit evidence of the conviction; that, when admitted, the precise finding of fact, that the accused was criminally responsible for the fire, unquestionably incendiary, which destroyed his goods, is conclusive upon the plaintiff, Heller; that this judgment of a court of competent jurisdiction was a determination of that particular and decisive fact as against him; that this judgment cannot be attacked except upon the ground of fraud, perjury, collusion, or some other such ground of invalidity; and that when so admitted in evidence there could have been but one proper verdict, and that a verdict for the defendant. We shall, therefore, reverse the judgment in favour of the plaintiff and enter judgment here in favour of the defendant." (My italics.)

[82] Lord Denning, M.R. continued:

Notice that in that case there was no privity between the police and the insurance company. Yet the insurance company were given the benefit of the estoppel against the shopkeeper.

Page 237:

Exceptions

It has long been recognized that estoppel per rem judicatam or issue estoppel is not an absolute bar to the matter in dispute being tried again. The party concerned can avoid the effect of the previous decision if he can prove the same to have been obtained by fraud or collusion ... But in order to avoid the effect of an estoppel (when there is no re-hearing) the fresh evidence must, I think, be decisive. It must be such as to show that the previous decision was wrong. Oath against oath will not do. An 'important influence on the result' will not do. It must be conclusive.

Page 239:

Abuse of process of the court

In some cases in the past when the self-same issue has been decided against a party in previous proceedings, the courts have said that they will not allow him to raise it again in a subsequent proceeding. These decisions have been put on the ground that it is an abuse of the process of the court. But I cannot help thinking that, at the present time, they should be regarded as cases of issue estoppel. Take the words of Lord Halsbury LC in Reichel v. Magrath (1889) 14 App Cas 665 at 668:

"... it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action." (My emphasis.)

In that case the previous action was between different parties. It was presumably for that reason that the House of Lords at that date did not put it on issue estoppel; but the point was not raised or discussed, so it is no authority on the doctrine of privity or mutuality.

Take also the words of A. L. Smith L.J. in Stephenson v. Garnett, [1898] 1 QB 677 at 680:

"I put my decision on the ground that the identical question raised in this action was raised before the county court judge ... and was heard and determined by him ... The plaintiff was present at the hearing before the county court judge, and had every opportunity of putting forward his case. The judge heard evidence upon the question and decided it. The issue now sought to be raised in this action has been determined by a court of competent jurisdiction, and the cases of Reichel v. Magrath ((1889) 14 App Cas 665) and Macdougal v. Knight ((1890) 25 QBD 1) shew that it would be an abuse of the process of the Court to allow a suitor to litigate over again the same question which has already been decided against him." (My emphasis.)

It is plain from those observations that the real reason why the claim was struck out was because the selfsame issue had previously been determined against the party by a court of competent jurisdiction. What is that but issue estoppel?

The truth is that at the date of those cases the doctrine of issue estoppel had not emerged as a separate doctrine. So the courts found it necessary to put it on "abuse of the process of the court". Now that issue estoppel is fully recognised, it is better to reach the decision on that ground: rather than on the vague phrase, "abuse of the process of the court". Each doctrine is based on the same considerations and produces the same result.

[83] The McIlkenny case reached the House of Lords under the name of Hunter v. Chief Constable of West Midlands Police and Others, [1982] A.C. 529. Lord Diplock gave judgment for the five (5) law lords who heard the appeal. During the argument, Lord Diplock said at p. 531:

Lord Diplock. Two issues arise: issue estoppel and abuse of the process of the court. It would help their Lordships if the plaintiff dealt with abuse of the process of the court first.

[84] In his reasons, Lord Diplock said (p. 540):

But if what Hunter is seeking to do in initiating this civil action is an abuse of the process of the court, as I understand all your Lordships are satisfied that it is, the question whether it also qualifies to bear the label "issue estoppel" is a matter not of substance but of semantics. Counsel for the appellant was therefore invited to address this House first upon the broader question of abuse of process and to deal in particular with the reasoning contained in the judgment of Goff L.J. who dealt with the matter more closely than the other members of the court and bases his decision solely on that ground. In the result, counsel for the appellant, Hunter,. . . were quite unable to persuade any of us that there was any error in the reasoning of Goff L.J ... In the result it became unnecessary to call on counsel for the police. So the debate upon semantics did not take place.

Pages 541-2:

The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

My Lords, collateral attack upon a final decision of a court of competent jurisdiction may take a variety of forms. It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the instant case. But the principle applicable is, in my view, simply and clearly stated in those passages from the judgment of A.L. Smith L.J. in Stephenson v. Garnett, [1898] 1 Q.B. 677, 680-681 and the speech of Lord Halsbury L.C. in Reichel v. Magrath (1889) 14 App. Cas. 665, 668 which are cited by Goff L.J. in his judgment in the instant case.

The passage from Lord Halsbury's speech deserves repetition here in full:

"... I think it would be, a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again."

[85] In Demeter v. British Pacific Life Insurance Co. (1983), 150 D.L.R. (3d) 249, the plaintiff had been convicted of murdering his wife. The conviction had been affirmed by the Court of Appeal for Ontario and by the Supreme Court of Canada. [See R. v. Demeter (1975), 25 C.C.C. (2d) 417; affirmed 34 C.C.C. (2d) 137.] Demeter commenced three (3) actions against insurance companies to collect money under insurance policies on his late wife's life under which he was a beneficiary. The statements of defence of the insurance companies pleaded that the policies were null and void as the plaintiff could not benefit from his own criminal conduct. The insurance companies moved to dismiss the actions as an abuse of process. After reviewing McIlkenny and Hunter, supra, Osier J. said (p. 266):

Nevertheless, the circumstances of this case, the fact of conviction for the non-capital murder of his wife, the dismissal of his appeals up to and including the Supreme Court of Canada, and the refusal of the Minister of Justice to reopen the case, persuade me beyond peradventure that to permit these actions to go forward would result in a travesty of justice and would bring the administration of justice into disrepute. It would be, in the most fitting phrase of Schroeder J.A., in Kennedy v. Tomlinson et al. (1959), 20 D.L.R. (2d) 273, 126 C.C.C. 175, "an unedifying spectacle".

Nothing is put forward, therefore, by the plaintiff to justify me in concluding that, if the prior conviction were admitted in the present actions as prima facie evidence of the fact that the plaintiff killed his wife, any evidence is available to the plaintiff that would cast doubt upon that proposition. In view of the solemn verdict of the jury, properly charged with respect to the burden of proof, the fact that proof must be beyond a reasonable doubt, and the identity of the issue before the jury with the issue in the present actions, it would be an affront to one's sense of justice and would be regarded as an outrage by the reasonable layman to let these actions go forward. In the exercise of the court's inherent jurisdiction they will each be dismissed with costs.

[86] In dismissing an appeal from Osier J. the Court of Appeal for Ontario (1984), 48 O.R. (2d) 266 at p. 268, 13 D.L.R. (4th) 318, said:

It is clear from the whole record and upon the appellant's submissions made to this Court that he is seeking to relitigate the very issue that was decided against him at his criminal trial.

We are equally of the view that the use of a civil action to initiate a collateral attack on a final decision of a criminal court of competent jurisdiction in an attempt to relitigate an issue already tried, is an abuse of the process of the court. The alleged fresh evidence or evidence of fraud or collusion falls far short of supporting an argument that an exception should be made to the general rule of public policy.

On the facts of this case it would be, as the learned motions court judge pointed out, an affront to one's sense of justice to let these actions go forward and, for the reasons given by him, the appeals are dismissed with costs as of one appeal.

[87] In Re Del Core and Ontario College of Pharmacists (1985), 51 O.R. (2d) 1, 19 D.L.R. (4th) 68 (Ont. C.A.), Finlayson J.A. held that evidence of the prior criminal conduct of the appellant was admissible to show professional misconduct under the Health Disciplines Act. The pharmacist could call evidence in mitigation or by way of excuse for the offence. However, by insisting in his defence on having the substance of the criminal misconduct retried, he was initiating a collateral attack on a final decision of a criminal court of competent jurisdiction. Moreover, although the pharmacist had not initiated the disciplinary proceedings, he was initiating a collateral attack on a final decision of a criminal court of competent jurisdiction.

III. Termination for Just Cause

[88] In each of the three (3) impugned arbitrations, the grievor has been found guilty and the conviction(s) has been affirmed on appeal. In each case, the grievor has been convicted of sexually assaulting a person the grievor had a duty to protect and help. In each case, there has been a violation of that trust. The convictions in each case present the employer with a workplace and community problem justifying the termination of the grievor's employment. (Re Oshawa General Hospital and O.N.A. (1981), 30 L.A.C. (2d) 5 (G.W. Adams, Chair).)

IV. Standard of Review

[89] Whether the benchmark is "correctness" or "patently unreasonable", in each case before us the Applicant has met the standard.

IV. "Privity"

[90] The Unions argue that there was no "privity" because in each case the Union had filed the grievance and not the grievor. In my view, that submission has no merit. In each case, although the Union filed the grievance, it was done for and on behalf of the grievor/employee/applicant. If any veil exists, it is totally transparent, if not invisible.

V. Is the Samaroo Application (581/99) Premature?

[91] Counsel for O.P.S.E.U. submitted that judicial review 581/99 (Samaroo) should be dismissed as premature because the arbitration process has only reached the point of interim decision with the merits of the arbitration yet to be heard. In my view, the facts and allegations placed before the court in judicial review 581/99 provide the exceptional circumstances required to remove the application from the "premature" category. Reference is made to:

1. University of Toronto v. C.U.E.W., Local 2 (1988), 28 O.A.C. 295 at p. 306, 52 D.L.R. (4th) 128 (Ont. Div. Ct.)

and

2. Great Atlantic and Pacific Co. of Canada Ltd. v. Ontario (Ministry of Citizenship) (1993), 62 O.A.C. 1 (Ont. Div. Ct.)

VI. Conclusions

[92] In each arbitration (Oliver, White and Samaroo), the Union, on behalf of the grievor, has attempted to mount a collateral attack on the substance of the certificate of conviction in order to "prove" that the grievor did not commit the offence set out in the certificate of conviction. On the authority of the cases cited above, that is forbidden.

[93] The doctrine of issue estoppel (as elucidated by Lord Denning, M.R., supra), applies to each of these three (3) arbitrations. The doctrine of abuse of process also applies to each arbitration.

VIII. Relief Sought

[94] In each application for judicial review, counsel for the Applicant and counsel for the Intervener sought an order quashing the decision(s) of the arbitrator. In each application, counsel for the Respondents sought an order dismissing the application for judicial review. In each case, it was an "all or nothing" situation.

IX. Result

[95] Judicial Application 141/99 — Oliver

[96] An order will go quashing the Interim Award, dated August 12, 1998, and the final award/decision, dated December 1, 1998 of Arbitrator Douglas C. Stanley.

[97] Judicial Application 377/99 — White

[98] An order will go quashing the Interim Award, dated July 7, 1997, and the final award/decision, dated May 25, 1999 of Nimal Dissanayake, Vice Chair of the Crown Employees Grievance Settlement Board.

[99] Judicial Application 581/99 — Samaroo

[100] The Interim Award, dated September 15, 1998, and the Interim Award, dated May 25, 1999 of Owen Gray, Vice Chair of the Crown Employees Grievance Settlement Board are quashed.

X. Costs

[101] 141/99 — Oliver

The respondent, C.U.P.E., Local 79 shall pay to the Applicant, City of Toronto, costs fixed at $3,000.00.

No costs to the Intervener.

[102] 377/99—White

The respondent, Ontario Public Service Employees Union, shall pay costs fixed at $2,000.00 to the Applicant.

No costs to or against the Grievance Settlement Board.

[103] 581/99 — Samaroo

The respondent, Ontario Public Service Employees Union, shall pay costs fixed at $2,000.00 to the Applicant.

No costs to or against the Grievance Settlement Board.

In each case, the amount of the fixed costs is a figure agreed upon by counsel.

[104] Applications granted.