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Court of Appeal upholds court order quashing reinstatement of worker convicted of sexual assault

In October 2000, we reported the decision of the Divisional Court in City of Toronto v. CUPE, Local 79, in which it was held that arbitrators are bound by the findings made in a superior court (see "An "absolute verity": Court quashes arbitration awards reinstating workers convicted of workplace sexual assault" on our Publications page). The case arose out of the grievance of Glenn Oliver, a recreationist at Toronto's Parks Department, who had been arrested and charged with the sexual assault of John B., a minor.

Oliver denied the allegation of sexual assault. At his trial the issue was one of credibility, and the trial judge found John B. to be more credible. Oliver was convicted. His appeal was dismissed without reasons by the Ontario Court of Appeal.

Oliver grieved his dismissal and won reinstatement. The arbitrator held that the conviction was not conclusive proof of Oliver's guilt. He stated that he did not accept John B.'s story, thereby concluding that Oliver had been truthful in denying the sexual assault.

This decision was quashed by the Divisional Court, which ruled that the arbitrator had no authority to go behind the criminal conviction and substitute his own assessment of the facts as found at the trial.

The Court of Appeal dismissed CUPE's appeal. The interest in justice was not exclusive to the party seeking to relitigate, the Court noted. Others, including the previously successful party, witnesses, the justice system itself, and the community at large are all affected by the relitigation of a settled matter. To these other interests, the Court stated,

"finality is a central feature of justice and to the extent that relitigation uproots finality, it invites injustice. … In deciding whether to permit relitigation, a court or tribunal must decide whether finality concerns should outweigh an individual litigant's claim that the justice of the specific case warrants relitigation".

By not considering the need for finality, the arbitrator could only undermine the integrity of the criminal justice process. While the interests of finality could be outweighed by the interests of the party seeking to relitigate, Oliver's was not such a case. No new evidence had been brought forward, and there was no indication that the criminal process had been tainted by fraud or procedural failing. For more recent developments, see "A "blatant abuse of process" - Supreme Court of Canada rejects bid to reinstate employee convicted of sexual assault" on our What's New page.

For further information, please contact Steven Williams at (613) 563-7660, Extension 242.