Toronto (City) v. C.U.P.E., Local 79

Toronto (City) v. C.U.P.E., Local 79
Collection
Supreme Court Judgments
Date
2003-11-06
Neutral citation
2003 SCC 63
Report
[2003] 3 SCR 77
Case number
28840
Judges
McLachlin, Beverley; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie
On appeal from
Ontario
Subjects
Administrative law
Labour law
Notes
SCC Case Information: 28840
Decision Content
Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63
Canadian Union of Public Employees, Local 79 Appellant
v.
City of Toronto and Douglas C. Stanley Respondents
and
Attorney General of Ontario Intervener
Indexed as: Toronto (City) v. C.U.P.E., Local 79
Neutral citation: 2003 SCC 63.
File No.: 28840.
2003: February 13; 2003: November 6.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the court of appeal for ontario
Labour law — Arbitration — Dismissal without just cause — Evidence — Recreation instructor dismissed after being convicted of sexual assault — Conviction upheld on appeal — Arbitrator ruling that instructor had been dismissed without just cause — Whether union entitled to relitigate issue decided against employee in criminal proceedings — Evidence Act, R.S.O. 1990, c. E.23, s. 22.1 — Labour Relations Act, S.O. 1995, c. 1, Sch. A, s. 48.
Judicial review — Standard of review — Labour arbitration — Recreation instructor dismissed after being convicted of sexual assault — Arbitrator ruling that instructor had been dismissed without just cause — Whether arbitrator entitled to revisit conviction — Whether correctness is appropriate standard of review — Evidence Act, R.S.O. 1990, c. E.23, s. 22.1 — Labour Relations Act, S.O. 1995, c. 1, Sch. A, s. 48.
O worked as a recreation instructor for the respondent City. He was charged with sexually assaulting a boy under his supervision. He pleaded not guilty. At trial before a judge alone, he testified and was cross-examined. The trial judge found that the complainant was credible and that O was not. He entered a conviction, which was affirmed on appeal. The City fired O a few days after his conviction. O grieved the dismissal. At the arbitration hearing, the City submitted the complainant’s testimony from the criminal trial and the notes of O’s supervisor, who had spoken to the complainant at the time. The complainant was not called to testify. O testified, claiming that he had never sexually assaulted the boy. The arbitrator ruled that the criminal conviction was admissible evidence, but that it was not conclusive as to whether O had sexually assaulted the boy. No fresh evidence was introduced. The arbitrator held that the presumption raised by the criminal conviction had been rebutted, and that O had been dismissed without just cause. The Divisional Court quashed the arbitrator’s ruling. The Court of Appeal upheld that decision.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.: When asked to decide whether a criminal conviction, prima facie admissible in a proceeding under s. 22.1 of the Ontario Evidence Act, ought to be rebutted or taken as conclusive, courts will turn to the doctrine of abuse of process to ascertain whether relitigation would be detrimental to the adjudicative process. The doctrine engages the inherent power of the court to prevent the misuse of its procedure, in a way that would bring the administration of justice into disrepute. It has been applied to preclude relitigation in circumstances where the strict requirements of issue estoppel are not met, but where allowing litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. The motive of the party who seeks to relitigate, and the capacity in which he or she does so, cannot be decisive factors in the application of the bar against relitigation. What is improper is to attempt to impeach a judicial finding by the impermissible route of relitigation in a different forum. A proper focus on the process, rather than on the interests of a party, will reveal why relitigation should not be permitted. From the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. Casting doubt over the validity of a criminal conviction is a very serious matter. Collateral attacks and relitigation are not appropriate methods of redress since they inordinately tax the adjudicative process while doing nothing to ensure a more trustworthy result. The common law doctrines of issue estoppel, collateral attack and abuse of process adequately capture the concerns that arise when finality in litigation must be balanced against fairness to a particular litigant. There is no need to endorse a self-standing and independent “principle of finality” as either a separate doctrine or as an independent test to preclude relitigation.
The appellant union was not entitled, either at common law or under statute, to relitigate the issue decided against the grievor in the criminal proceedings. The facts in this appeal point to the blatant abuse of process that results when relitigation of this sort is permitted. O was convicted in a criminal court and he exhausted all his avenues of appeal. In law, his conviction must stand, with all its consequent legal effects. There is nothing in this case that militates against the application of the doctrine of abuse of process to bar the relitigation of O’s criminal conviction. The arbitrator was required as a matter of law to give full effect to the conviction. As a result of that error of law, the arbitrator reached a patently unreasonable conclusion. Properly understood in the light of correct legal principles, the evidence before the arbitrator could only lead him to conclude that the respondent City had established just cause for O’s dismissal.
Issue estoppel has no application in this case since the requirement of mutuality of parties has not been met. With respect to the collateral attack doctrine, the appellant does not seek to overturn the sexual abuse conviction itself, but rather contest, for the purposes of a different claim with different legal consequences, whether the conviction was correct.
Per LeBel and Deschamps JJ.: As found by the majority, this case is appropriately decided on the basis of the doctrine of abuse of process, rather than the narrower and more technical doctrines of either collateral attack or issue estoppel. There was also agreement that the appropriate standard of review for the question of whether a criminal conviction may be relitigated in a grievance proceeding is correctness. This is a question of law involving the interpretation of the arbitrator’s constituent statute, an external statute, and a complex body of common law rules and conflicting jurisprudence dealing with relitigation, an issue at the heart of the administration of justice. The arbitrator’s determination in this case that O’s criminal conviction could indeed be relitigated during the grievance proceeding was incorrect. As a matter of law, the arbitrator was required to give full effect to O’s conviction. His failure to do so was sufficient to render his ultimate decision that O had been dismissed without just cause — a decision squarely within the arbitrator’s area of specialized expertise and thus reviewable on a deferential standard — patently unreasonable, according to the jurisprudence of the Court.
Because of growing concerns with the ways in which the standards of review currently available within the pragmatic and functional approach are conceived of and applied, the administrative law aspects of this case require further discussion. The patent unreasonableness standard does not currently provide sufficiently clear parameters for reviewing courts to apply in assessing the decisions of administrative adjudicators. Certain fundamental legal questions — for instance constitutional and human rights questions and those involving civil liberties, as well as other questions that are of central importance to the legal system as a whole, such as the issue of relitigation — typically fall to be decided on the correctness standard. Not all questions of law, however, must be reviewed under a standard of correctness. Resolving general legal questions may be an important component of the work of some administrative adjudicators. In many instances, the appropriate standard of review in respect of the application of general common or civil law rules by specialized adjudicators should not be one of correctness, but rather of reasonableness. If the general question of law is closely connected to the adjudicator’s core area of expertise, the decision will typically be entitled to deference.
In reviewing a decision under the existing standard of patent unreasonableness, the court’s role is not to identify the correct result. To pass a review for patent unreasonableness, a decision must be one that can be rationally supported. It would be wrong for a reviewing court to intervene in decisions that are incorrect, rather than limiting its intervention to those decisions that lack a rational foundation. If this occurs, the line between correctness on the one hand, and patent unreasonableness, on the other, becomes blurred. The boundaries between patent unreasonableness and reasonableness simpliciter are even less clear and approaches to sustain a workable distinction between them raise their own problems. In the end, the essential question remains the same under both standards: was the decision of the adjudicator taken in accordance with reason? In summary, the current framework exhibits several drawbacks. These include the conceptual and practical difficulties that flow from the overlap between patent unreasonableness and reasonableness simpliciter, and the difficulty caused at times by the interplay between patent unreasonableness and correctness.
The role of a court in determining the standard of review is to be faithful to the intent of the legislature that empowered the administrative adjudicator to make the decision, as well as to the animating principle that, in a society governed by the rule of law, power is not to be exercised arbitrarily or capriciously. Judicial review on substantive grounds ensures that the decisions of administrative adjudicators are capable of rational justification; review on procedural grounds ensures that they are fair.
Administrative law has developed considerably over the last 25 years. This evolution, which reflects a strong sense of deference to administrative decision makers and an acknowledgment of the importance of their role, has given rise to some problems or concerns. It remains to be seen, in an appropriate case, what should be the solution to these difficulties. Should courts move to a two standard system of judicial review, correctness and a revised unified standard of reasonableness? Should we attempt to more clearly define the nature and scope of each standard or rethink their relationship and application? This is perhaps some of the work which lies ahead for courts, building on the developments of recent years as well as on the legal tradition which created the framework of the present law of judicial review.
Cases Cited
By Arbour J.
Referred to: Ontario v. O.P.S.E.U., [2003] 3 S.C.R. 149, 2003 SCC 64; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; Demeter v. British Pacific Life Insurance Co. (1983), 150 D.L.R. (3d) 249, aff’d (1984), 48 O.R. (2d) 266; Hunter v. Chief Constable of the West Midlands Police, [1982] A.C. 529, aff’g McIlkenny v. Chief Constable of the West Midlands, [1980] 1 Q.B. 283; Re Del Core and Ontario College of Pharmacists (1985), 51 O.R. (2d) 1; Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44; Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979); R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12; Lemay v. The King, [1952] 1 S.C.R. 232; R. v. Banks, [1916] 2 K.B. 621; Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Sarson, [1996] 2 S.C.R. 223; R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706; R. v. Power, [1994] 1 S.C.R. 601; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Scott, [1990] 3 S.C.R. 979; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; R. v. O’Connor, [1995] 4 S.C.R. 411; United States of America v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21; Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481, rev’d [2002] 3 S.C.R. 307, 2002 SCC 63; Franco v. White (2001), 53 O.R. (3d) 391; Bomac Construction Ltd. v. Stevenson, [1986] 5 W.W.R. 21; Bjarnarson v. Government of Manitoba (1987), 38 D.L.R. (4th) 32, aff’d (1987), 21 C.P.C. (2d) 302; R. v. McIlkenny (1991), 93 Cr. App. R. 287; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; R. v. Bromley (2001), 151 C.C.C. (3d) 480; Q. v. Minto Management Ltd. (1984), 46 O.R. (2d) 756; Nigro v. Agnew‑Surpass Shoe Stores Ltd. (1977), 18 O.R. (2d) 215, aff’d (1978), 18 O.R. (2d) 714; Germscheid v. Valois (1989), 68 O.R. (2d) 670; Simpson v. Geswein (1995), 25 C.C.L.T. (2d) 49; Roenisch v. Roenisch (1991), 85 D.L.R. (4th) 540; Saskatoon Credit Union, Ltd. v. Central Park Enterprises Ltd. (1988), 47 D.L.R. (4th) 431; Canadian Tire Corp. v. Summers (1995), 23 O.R. (3d) 106.
By LeBel J.
Referred to: Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86; Ontario v. O.P.S.E.U., [2003] 3 S.C.R. 149, 2003 SCC 64; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Miller v. Workers’ Compensation Commission (Nfld.) (1997), 154 Nfld. & P.E.I.R. 52; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Ivanhoe inc. v. UFCW, Local 500, [2001] 2 S.C.R. 565, 2001 SCC 47; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890; Macdonell v. Quebec (Commission d’accès à l’information), [2002] 3 S.C.R. 661, 2002 SCC 71; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382; Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147; Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; Canada Safeway Ltd. v. RWDSU, Local 454, [1998] 1 S.C.R. 1079; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644; Hao v. Canada (Minister of Citizenship and Immigration) (2000), 184 F.T.R. 246; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Evidence Act, R.S.O. 1990, c. E.23, s. 22.1 [ad. 1995, c. 6, s. 6(3)].
Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 48(1).
Authors Cited
Allars, Margaret. “On Deference to Tribunals, With Deference to Dworkin” (1994), 20 Queen’s L.J. 163.
Comtois, Suzanne. Vers la primauté de l’approche pragmatique et fonctionnelle: Précis du contrôle judiciaire des décisions de fond rendues par les organismes administratifs. Cowansville, Qué.: Yvon Blais, 2003.
Cowan, Jeff G. “The Standard of Review: The Common Sense Evolution?”, paper presented to the Administrative Law Section Meeting, Ontario Bar Association, January 21, 2003.
Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law. Oxford: Hart Publishing, 1997, 279.
Elliott, David W. “Suresh and the Common Borders of Administrative Law: Time for the Tailor?” (2002), 65 Sask. L. Rev. 469.
Evans, J. M., et al. Administrative Law: Cases, Text, and Materials, 3rd ed. Toronto: Emond Montgomery, 1989.
Falzon, Frank A. V. “Standard of Review on Judicial Review or Appeal”, in Administrative Justice Review Background Papers: Background Papers prepared by Administrative Justice Project for the Attorney General of British Columbia, June 2002.
Garant, Patrice. Droit administratif, vol. 2, 4e éd. Cowansville, Qué.: Yvon Blais, 1996.
Holloway, Ian. “‘A Sacred Right’: Judicial Review of Administrative Action as a Cultural Phenomenon” (1993), 22 Man. L.J. 28.
Howard, M. N., Peter Crane and Daniel A. Hochberg. Phipson on Evidence, 14th ed. London: Sweet & Maxwell, 1990.
Jones, David Phillip. “Notes on Dr. Q and Ryan: Two More Decisions by the Supreme Court of Canada on the Standard of Review in Administrative Law”, paper presented at the Canadian Institute for the Administration of Justice, Western Roundtable, Edmonton, April 25, 2003.
Lange, Donald J. The Doctrine of Res Judicata in Canada. Markham, Ont.: Butterworths, 2000.
Law Society of Upper Canada. Rules of Professional Conduct. Toronto: Law Society of Upper Canada, 2000.
Lovett, Deborah K. “That Curious Curial Deference Just Gets Curiouser and Curiouser — Canada (Director of Investigation and Research) v. Southam Inc.” (1997), 55 Advocate (B.C.) 541.
MacLauchlan, H. Wade. “Transforming Administrative Law: The Didactic Role of the Supreme Court of Canada” (2001), 80 Can. Bar Rev. 281.
McLachlin, Beverley. “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998-1999), 12 C.J.A.L.P. 171.
Mullan, David J. Administrative Law. Toronto: Irwin Law, 2001.
Mullan, David J. “Of Chaff Midst the Corn: American Farm Bureau Federation v. Canada (Canadian Import Tribunal) and Patent Unreasonableness Review” (1991), 45 Admin. L.R. 264.
Mullan, David J. “Recent Developments in Standard of Review”, in Taking the Tribunal to Court: A Practical Guide for Administrative Law Practitioners. Canadian Bar Association (Ontario), October 20, 2000.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 3rd ed. Toronto: Irwin Law, 2002.
Perell, Paul M. “Res Judicata and Abuse of Process” (2001), 24 Advocates’ Q. 189.
Perrault, Gabrielle. Le contrôle judiciaire des décisions de l’administration: De l’erreur juridictionnelle à la norme de contrôle. Montréal: Wilson & Lafleur, 2002.
Sossin, Lorne. “Developments in Administrative Law: The 1997-98 and 1998-99 Terms” (2000), 11 S.C.L.R. (2d) 37.
Sprague, James L. H. “Another View of Baker” (1999), 7 Reid’s Administrative Law 163.
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.
Teplitsky, Martin. “Prior Criminal Convictions: Are They Conclusive Proof? An Arbitrator’s Perspective”, in K. Whitaker et al., eds., Labour Arbitration Yearbook 2001-2002, vol. I. Toronto: Lancaster House, 2002, 279.
Watson, Garry D. “Duplicative Litigation: Issue Estoppel, Abuse of Process and the Death of Mutuality” (1990), 69 Can. Bar Rev. 623.
APPEAL from a judgment of the Ontario Court of Appeal (2001), 55 O.R. (3d) 541, 205 D.L.R. (4th) 280, 149 O.A.C. 213, 45 C.R. (5th) 354, 37 Admin. L.R. (3d) 40, 2002 CLLC ¶220-014, [2001] O.J. No. 3239 (QL), affirming a judgment of the Divisional Court (2000), 187 D.L.R. (4th) 323, 134 O.A.C. 48, 23 Admin. L.R. (3d) 72, 2000 CLLC ¶220-038, [2000] O.J. No. 1570 (QL). Appeal dismissed.
Douglas J. Wray and Harold F. Caley, for the appellant.
Jason Hanson, Mahmud Jamal and Kari M. Abrams, for the respondent the City of Toronto.
No one appeared for the respondent Douglas C. Stanley.
Sean Kearney, Mary Gersht and Meredith Brown, for the intervener.
The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ. was delivered by
Arbour J. —
I. Introduction
1 Can a person convicted of sexual assault, and dismissed from his employment as a result, be reinstated by a labour arbitrator who concludes, on the evidence before him, that the sexual assault did not take place? This is essentially the issue raised in this appeal.
2 Like the Court of Appeal for Ontario and the Divisional Court, I have come to the conclusion that the arbitrator may not revisit the criminal conviction. Although my reasons differ somewhat from those of the courts below, I would dismiss the appeal.
II. Facts
3 Glenn Oliver worked as a recreation instructor for the respondent City of Toronto. He was charged with sexually assaulting a boy under his supervision. He pleaded not guilty. At trial before a judge alone, he testified and was cross‑examined. He called several defence witnesses, including character witnesses. The trial judge found that the complainant was credible and that Oliver was not. He entered a conviction, which was later affirmed on appeal. He sentenced Oliver to 15 months in jail, followed by one year of probation.
4 The respondent City of Toronto fired Oliver a few days after his conviction, and Oliver grieved his dismissal. At the hearing, the City of Toronto submitted the boy’s testimony from the criminal trial and the notes of Oliver’s supervisor, who had spoken to the boy at the time. The City did not call the boy to testify. Oliver again testified on his own behalf and claimed that he had never sexually assaulted the boy.
5 The arbitrator ruled that the criminal conviction was admissible as prima facie but not conclusive evidence that Oliver had sexually assaulted the boy. No evidence of fraud nor any fresh evidence unavailable at trial was introduced in the arbitration. The arbitrator held that the presumption raised by the criminal conviction had been rebutted, and that Oliver had been dismissed without just cause.
III. Procedural History
A. Superior Court of Justice (Divisional Court) (2000), 187 D.L.R. (4th) 323
6 At Divisional Court the application for judicial review was granted and the decision of the arbitrator was quashed. The Divisional Court heard this case and Ontario v. O.P.S.E.U. at the same time. (Ontario v. O.P.S.E.U., [2003] 3 S.C.R. 149, 2003 SCC 64, is being released concurrently by this Court.) O’Driscoll J. found that while s. 22.1 of the Evidence Act, R.S.O. 1990, c. E.23, applied to all the arbitrations, relitigation of the cases was barred by the doctrines of collateral attack, issue estoppel and abuse of process. The court noted that criminal convictions are valid judgments that cannot be collaterally attacked at a later arbitration (paras. 74-79). With respect to issue estoppel, under which an issue decided against a party is protected from collateral attack barring decisive new evidence or a showing of fraud, the court found that relitigation was also prevented, rejecting the appellant’s argument that there had been no privity because the union, and not the grievor, had filed the grievance. The court also held that the doctrine of abuse of process, which denies a collateral attack upon a final decision of another court where the party had “a full opportunity of contesting the decision”, applied (paras. 81 and 90). Finally, O’Driscoll J. found that whether the standard of review was correctness or patent unreasonableness in each case, the standard for judicial review had been met (para. 86).
B. Court of Appeal for Ontario (2001), 55 O.R. (3d) 541
7 Doherty J.A. for the court held that because the crux of the issue was whether the Canadian Union of Public Employees (CUPE or the union) was permitted to relitigate the issue decided in the criminal trial, and because this analysis “turned on [the arbitrator’s] understanding of the common law rules and principles governing the relitigation of issues finally decided in a previous judicial proceeding”, the appropriate standard of review was correctness (paras. 22 and 38).
8 Doherty J.A. concluded that issue estoppel did not apply. Even if the union was the employee’s privy, the respondent City of Toronto had played no role in the criminal proceeding and had no relationship to the Crown. He also found that describing the appellant union’s attempt to relitigate the employee’s culpability as a collateral attack on the order of the court did not assist in determining whether relitigation could be permitted. Commenting that the phrase “abuse of process” was perhaps best limited to describe those cases where the plaintiff has instigated litigation for some improper purpose, Doherty J.A. went on to consider what he called “the finality principle” in considerable depth.
9 Doherty J.A. dismissed the appeal on the basis of this principle. He held that the res judicata jurisprudence required a court to balance the importance of finality, which reduces uncertainty and inconsistency in results, and which serves to conserve the resources of both the parties and the judiciary, with the “search for justice in each individual case” (para. 94). Doherty J.A. held that the following approach should be taken when weighing finality claims against an individual litigant’s claim to access to justice (at para. 100):
- Does the res judicata doctrine apply?
- If the doctrine applies, can the party against whom it applies demonstrate that the justice of the individual case should trump finality concerns?
- If the doctrine does not apply, can the party seeking to preclude relitigation demonstrate that finality concerns should be given paramountcy over the claim that justice requires relitigation?
10 Ultimately, Doherty J.A. dismissed the appeal, concluding that “finality concerns must be given paramountcy over CUPE’s claim to an entitlement to relitigate Oliver’s culpability” (para. 102). He so concluded because there was no suggestion of fraud at the criminal trial, because the underlying charges were serious enough that the employee was likely to have litigated them to the fullest, and because there was no new evidence presented at arbitration (paras. 103-108).
IV. Relevant Statutory Provisions
11 Evidence Act, R.S.O. 1990, c. E.23
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.
Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A
48. (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
V. Analysis
A. Standard of Review
12 My colleague LeBel J. discusses at length our jurisprudence on standards of review. He reviews concerns and criticisms about the three standard system of judicial review. Given that these issues were not argued before us in this case, and without the benefit of a full adversarial debate, I would not wish to comment on the desirability of a departure from our recently affirmed framework for standards of review analysis. (See this Court’s unanimous decisions of Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20.)
13 The Court of Appeal properly applied the functional and pragmatic approach as delineated in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (see also Dr. Q, supra), to determine the extent to which the legislature intended that courts should review the tribunals’ decisions.
14 Doherty J.A. was correct to acknowledge patent unreasonableness as the general standard of review of an arbitrator’s decision as to whether just cause has been established in the discharge of an employee. However, and as he noted, the same standard of review does not necessarily apply to every ruling made by the arbitrator in the course of the arbitration. This follows the distinction drawn by Cory J. for the majority in Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, where he said, at para. 39:
It has been held on several occasions that the expert skill and knowledge which an arbitration board exercises in interpreting a collective agreement does not usually extend to the interpretation of “outside” legislation. The findings of a board pertaining to the interpretation of a statute or the common law are generally reviewable on a correctness standard. . . . An exception to this rule may occur where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently as a result. [Emphasis added.]
15 In this case, the reasonableness of the arbitrator’s decision to reinstate the grievor is predicated on the correctness of his assumption that he was not bound by the criminal conviction. That assumption rested on his analysis of complex common law rules and of conflicting jurisprudence. The body of law dealing with the relitigation of issues finally decided in previous judicial proceedings is not only complex; it is also at the heart of the administration of justice. Properly understood and applied, the doctrines of res judicata and abuse of process govern the interplay between different judicial decision makers. These rules and principles call for a judicial balance between finality, fairness, efficiency and authority of judicial decisions. The application of these rules, doctrines and principles is clearly outside the sphere of expertise of a labour arbitrator who may be called to have recourse to them. In such a case, he or she must correctly answer the question of law raised. An incorrect approach may be sufficient to lead to a patently unreasonable outcome. This was reiterated recently by Iacobucci J. in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42, at para. 21.
16 Therefore I agree with the Court of Appeal that the arbitrator had to decide correctly whether CUPE was entitled, either at common law or under a statute, to relitigate the issue decided against the grievor in the criminal proceedings.
B. Section 22.1 of Ontario’s Evidence Act
17 Section 22.1 of the Ontario Evidence Act is of limited assistance to the disposition of this appeal. It provides that proof that a person has been convicted of a crime is proof, “in the absence of evidence to the contrary”, that the crime was committed by that person.
18 As Doherty J.A. correctly pointed out, at para. 42, s. 22.1 contemplates that the validity of a conviction may be challenged in a subsequent proceeding, but the section says nothing about the circumstances in which such challenge is or is not permissible. That issue is determined by the application of such common law doctrines as res judicata, issue estoppel, collateral attack and abuse of process. Section 22.1 speaks of the admissibility of the fact of the conviction as proof of the truth of its content, and speaks of its conclusive effect if unchallenged. As a rule of evidence, the section addresses in part the hearsay rule, by making the conviction — the finding of another court — admissible for the truth of its content, as an exception to the inadmissibility of hearsay (D. M. Paciocco and L. Stuesser, The Law of Evidence (3rd ed. 2002), at p. 120; Phipson on Evidence (14th ed. 1990), at paras. 33-94 and 33-95).
19 Here, however, the admissibility of the conviction is not in issue. Section 22.1 renders the proof of the conviction admissible. The question is whether it can be rebutted by “evidence to the contrary”. There are circumstances in which evidence will be admissible to rebut the presumption that the person convicted committed the crime, in particular where the conviction in issue is that of a non-party. There are also circumstances in which no such evidence may be tendered. If either issue estoppel or abuse of process bars the relitigation of the facts essential to the conviction, then no “evidence to the contrary” may be tendered to displace the effect of the conviction. In such a case, the conviction is conclusive that the person convicted committed the crime.
20 This interpretation is consistent with the rule of interpretation that legislation is presumed not to depart from general principles of law without an express indication to that effect. This presumption was reviewed and applied by Iacobucci J. in Parry Sound, supra, at para 39. Section 22.1 reflected the law established in the leading Canadian case of Demeter v. British Pacific Life Insurance Co. (1983), 150 D.L.R. (3d) 249 (Ont. H.C.), at p. 264, aff’d (1984), 48 O.R. (2d) 266 (C.A.), wherein after a thorough review of Canadian and English jurisprudence, Osler J. held that a criminal conviction is admissible in subsequent civil litigation as prima facie proof that the convicted individual committed the alleged act, “subject to rebuttal by the plaintiff on the merits”. However, the common law also recognized that the presumption of guilt established by a conviction is rebuttable only where the rebuttal does not constitute an abuse of the process of the court (Demeter (H.C.), supra, at p. 265; Hunter v. Chief Constable of the West Midlands Police, [1982] A.C. 529 (H.L.), at p. 541; see also Re Del Core and Ontario College of Pharmacists (1985), 51 O.R. (2d) 1 (C.A.), at p. 22, per Blair J.A.). Section 22.1 does not change this; the legislature has not explicitly displaced the common law doctrines and the rebuttal is consequently subject to them.
21 The question therefore is whether any doctrine precludes in this case the relitigation of the facts upon which the conviction rests.
C. The Common Law Doctrines
22 Much consideration was given in the decisions below to the three related common law doctrines of issue estoppel, abuse of process and collateral attack. Each of these doctrines was considered as a possible means of preventing the union from relitigating the criminal conviction of the grievor before the arbitrator. Although both the Divisional Court and the Court of Appeal concluded that the union could not relitigate the guilt of the grievor as reflected in his criminal conviction, they took different views of the applicability of the different doctrines advanced in support of that conclusion. While the Divisional Court concluded that relitigation was barred by the collateral attack rule, issue estoppel and abuse of process, the Court of Appeal was of the view that none of these doctrines as they presently stand applied to bar the rebuttal. Rather, it relied on a self-standing “finality principle”. I think it is useful to disentangle these various rules and doctrines before turning to the applicable one here. I stress at the outset that these common law doctrines are interrelated and in many cases more than one doctrine may support a particular outcome. Even though both issue estoppel and collateral attacks may properly be viewed as particular applications of a broader doctrine of abuse of process, the three are not always entirely interchangeable.
(1) Issue Estoppel
23 Issue estoppel is a branch of res judicata (the other branch being cause of action estoppel), which precludes the relitigation of issues previously decided in court in another proceeding. For issue estoppel to be successfully invoked, three preconditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44, at para. 25, per Binnie J.). The final requirement, known as “mutuality”, has been largely abandoned in the United States and has been the subject of much academic and judicial debate there as well as in the United Kingdom and, to some extent, in this country. (See G. D. Watson, “Duplicative Litigation: Issue Estoppel, Abuse of Process and the Death of Mutuality” (1990), 69 Can. Bar Rev. 623, at pp. 648‑51.) In light of the different conclusions reached by the courts below on the applicability of issue estoppel, I think it is useful to examine that debate more closely.
24 The first two requirements of issue estoppel are met in this case. The final requirement of mutuality of parties has not been met. In the original criminal case, the lis was between Her Majesty the Queen in right of Canada and Glenn Oliver. In the arbitration, the parties were CUPE and the City of Toronto, Oliver’s employer. It is unnecessary to decide whether Oliver and CUPE should reasonably be viewed as privies for the purpose of the application of the mutuality requirement since it is clear that the Crown, acting as prosecutor in the criminal case, is not privy with the City of Toronto, nor would it be with a provincial, rather than a municipal, employer (as in the Ontario v. O.P.S.E.U. case, released concurrently).
25 There has been much academic criticism of the mutuality requirement of the doctrine of issue estoppel. In his article, Professor Watson, supra, argues that explicitly abolishing the mutuality requirement, as has been done in the United States, would both reduce confusion in the law and remove the possibility that a strict application of issue estoppel may work an injustice. The arguments made by him and others (see also D. J. Lange, The Doctrine