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A "blatant abuse of process" - Supreme Court of Canada rejects bid to reinstate employee convicted of sexual assault

The Supreme Court of Canada has unanimously dismissed the union's appeal in City of Toronto v. CUPE, Local 79 (November 6, 2003) (see "An "absolute verity": Court quashes arbitration awards reinstating workers convicted of workplace sexual assault" and "Court of Appeal upholds court order quashing reinstatement of worker convicted of sexual assault" on our Publications page). The case involved the grievance of a recreationist with Toronto's Parks Department who had been terminated following his conviction for sexual assault of a minor. An arbitrator reinstated the employee. That award was then quashed by the Divisional Court, which characterized the union's attempt to grieve the dismissal as a collateral attack on a valid judgment. The Divisional Court's decision was upheld by the Ontario Court of Appeal.

In dismissing the union's appeal, the Supreme Court of Canada relied on the doctrine of abuse of process, which, the Court stated, focuses on the integrity of the adjudicative process, rather than simply on the motives of the party attempting to relitigate a settled matter. While proper review by way of an appeal process increases confidence in the ultimate result and affirms its finality, relitigation risks undermining confidence in the justice system as a whole and should be avoided unless it is necessary to enhance the system's credibility and effectiveness. The Court went on to clarify the circumstances in which relitigation would not be an abuse of process:

"There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context."

Noting that courts will permit relitigation of a settled matter to meet fairness concerns, the Court pointed to its decision in Danyluk v. Ainsworth Technologies Inc. (see ""Seeds of injustice": Supreme Court of Canada allows employee who lost ESA claim to sue in court" on our Publications page) and gave the following examples of situations in which fairness concerns outweigh the need to maintain finality in litigation:

"If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision."

In this case, however, the union was attempting to relitigate a criminal conviction. The arbitrator's award had the effect of casting doubt on the validity of the conviction, whether or not that effect was intended. The Court expressed the view that, while it was important to use all legitimate means to avoid wrongful convictions, collateral attacks and relitigation are not appropriate means to do so, because they inordinately tax the adjudicative system while doing nothing to ensure a more trustworthy result.

Based on this analysis, the Court concluded that relitigation of the grievor's conviction in the context of an arbitration constituted an abuse of process:

"[T]he facts in this appeal point to the blatant abuse of process that results when relitigation of this sort is permitted. … [T]he arbitrator is considerably less well equipped than a judge presiding over a criminal court … to come to a correct disposition of the matter. Yet the arbitrator's conclusions, if challenged, may give rise to a less searching standard of review than that of the criminal court judge. In short, there is nothing in a case like the present one that militates against the application of the doctrine of abuse of process to bar the relitigation of the grievor's criminal conviction. The arbitrator was required as a matter of law to give full effect to the conviction."

For further information, please contact Colleen Dunlop at (613) 940-2734.