Sean Kearney

The Ministry applied for judicial review of a Grievance Settlement Board decision finding that the Ministry breached the collective agreement by failing to create and fill a single Probation Officer 3 (PO3) position.

The Divisional Court dismissed the application, holding that the Board's interpretation of the collective agreement was reasonable and entitled to deference, as a literal interpretation would have led to an unrealistic result with no sensible purpose.

The employer appealed a Divisional Court decision dismissing its application for judicial review of an arbitrator's award.

The arbitrator had allowed a union grievance on a preliminary motion because the employer's consultant inadvertently destroyed documents relevant to the grievance, concluding that a fair hearing was impossible.

The Court of Appeal allowed the appeal, finding that the Divisional Court erred in applying a reasonableness standard to an issue of natural justice.

The Court held that the inadvertent destruction of documents in a civil context is a procedural matter calling for procedural remedies, such as adverse inferences, rather than the extraordinary remedy of granting the grievance without a hearing on the merits.

The award was quashed and the matter remitted for a hearing on the merits.

Two government employees were dismissed after being convicted of sexually assaulting people under their care.

The appellant union grieved their dismissals, and the grievance settlement board ruled that the criminal convictions were only prima facie evidence of guilt, allowing the union to lead rebuttal evidence.

The Supreme Court of Canada held that the doctrine of abuse of process bars the relitigation of the employees' guilt for the offences for which they were convicted.

The appeal was dismissed.