Significant Findings of Fact made at Criminal Trial Cannot be Challenged in Subsequent Arbitration

By Amar Bhatia

Background

In the recent decision of Near North District School Board and Ontario Secondary School Teachers’ Federation, District 4 (Reinders Grievance), (2006) 153 L.A.C. (4th) 437 (Herman) dealt with the preliminary issue of abuse of process and the potential relitigation of findings of fact made by a judge in a previous criminal trial at a subsequent arbitration hearing.

After a lengthy suspension with pay, the grievor, Hendrik Reinders, was discharged from his teaching job in January of 2003 following concerns raised about his classroom conduct towards students in the fall of 2002. The School Board’s investigation into these concerns resulted in a report detailing ten alleged incidents of improper behaviour, including kissing a student on the cheek and placing his hand on a student’s rear end. This report was shared with the Union and, after an initial deferral pending additional interviews, ultimately led to the grievor’s termination before a special meeting of the Trustees of the Board and pursuant to the recommendation of senior administration.

While the discharge was grieved by the Union, four criminal charges were laid against the grievor with respect to the alleged kiss of a student’s cheek and inappropriate touch to her rear end with his hand. The matter proceeded to trial before Madam Justice G. Pardu, who dismissed all of the charges in her Reasons for Judgment delivered on December 9, 2004. Among other things, Madam Justice Pardu found that the grievor did not have any sexual/romantic interest in the complainant, that the complainant exaggerated or misconstrued some comments, that there was physical contact between the grievor’s hand and the student’s rear end, but that the physical contact was neither for a sexual purpose nor intentional.

Union’s Position

At the arbitration, the Union argued that relitigation of the significant findings made by the trial judge would amount to an abuse of process by the School Board. The Union relied upon the reasoning of the Supreme Court of Canada in City of Toronto and Canadian Union of Public Employees, Local 79 (2003), 232 D.L.R. (4th) 385, [2003] 3 S.C.R. 77 (“Toronto and CUPE, L.79”), where the grievor was charged and convicted of sexual assault and the Supreme Court of Canada ruled unanimously that the arbitrator was bound by the criminal conviction.

In that decision, the Court held that the “doctrine of abuse of process concentrates on the integrity of the adjudicative process”, which would be undermined by relitigation for three reasons: 1) there was no assumption that relitigation would yield a more accurate result; 2) arriving at the same result would prove to be a waste of resources, unnecessarily expensive, and a potential hardship on witnesses; and 3) arriving at a different result on the same issue would yield inconsistency undermining the credibility and authority of the judicial process and its aim of finality.

In this case, the Union did concede that the School Board could seek to establish facts in arbitration that were found not proven beyond a reasonable doubt by the trial judge.

School Board’s Position

The School Board replied by emphasizing that the labour arbitration process involved different parties, processes, issues, and onus of proof than the original criminal proceeding.

In attempting to further distinguish the grievor’s acquittal at the criminal proceeding, the Employer also argued that the arbitration would comprise all ten alleged incidents (as opposed to the two incidents dealt with at the trial), the context of the just cause standard and the standards demanded of teachers, and a significant number of witnesses that did not testify at the trial. In sum, the School Board argued that there would be no relitigation, but simply litigation for the first time of all of the relevant labour and employment matters.

In making its argument, the Employer attempted to rely on the decision in City of Toronto and Toronto Civic Employees Union, Local 416 (2004), 131 L.A.C. (4th) 188 (Randall) (“Toronto Civic Employees Union”), in which the arbitrator found “nothing inconsistent between the Crown not being able to prove criminal charges beyond a reasonable doubt and an employer proving the same allegations to a less exacting standard”.

The Arbitral Decision

Arbitrator Herman distinguished this reasoning in the Toronto Civic Employees Union decision because in that case, the arbitrator had also noted that the dismissal of charges in the middle of a criminal trial was quite different from an acquittal following a full trial that included significant evidentiary findings by the trial judge.

Instead, Arbitrator Herman noted that he had previously dealt with this issue in a prior case and then also cited the decision of O.C. Transpo and Amalgamated Transit Union, Local 279 (2005), 142 L.A.C. (4th) 343 (Starkman) (“O.C. Transpo”), to further ground his decision. In O.C. Transpo, it was held that factual findings made by the trial judge are equally binding in a subsequent arbitration regardless of whether the trial resulted in a conviction or an acquittal.

Arbitrator Herman also found that there was no distinction between a conviction and an acquittal such that the Supreme Court’s three concerns regarding relitigation would be alleviated in any way with respect to acquittals. He also noted that there would be confusion and potential for abuse of process where criminal trials over multiple charges led to mixed results (both convictions and acquittals arising from the same set of factual findings).

Although noting the Employer’s concerns, and specifically that it was not party to but nevertheless was bound by the criminal proceedings, Arbitrator Herman concluded that the same abuse of process concerns motivating the relitigation of findings of fact leading to a conviction applied to the relitigation of findings of fact leading to an acquittal. He did note that evidence put before the trial judge could still be tendered in arbitration (as long as it was arguably relevant to some issue other than the finding itself).

Context for the Decision

This decision adds to the growing line of arbitral authority that favours deference to previous factual findings and the ideal of finality among the various fora described above. Notwithstanding this ideal of finality and the desire to avoid an abuse of process, it is important to remember that a different onus applies in non-criminal proceedings such that certain conduct must be proved on the balance of probabilities and not “beyond a reasonable doubt” as in the criminal context.

This decision is also important for practitioners, professionals, unions and employers as it again demonstrates the multiplicity of proceedings potentially regulating the conduct of teachers (see Update for Professionals, Number 5, November 2005 and The Simcoe County Board of Education and Elementary Teachers’ Federation of Ontario (Sclater Grievance) (2005), 140 L.A.C. (4th) 52 (Newman)). With respect to teachers, these fora can potentially include police investigations and criminal trials, civil trials, professional discipline hearings, grievance arbitration hearings, and Children’s Aid Society investigations.

Practically speaking, and because of the overriding liberty interest triggered by criminal charges, the initial litigation of a set of allegations (or some portion thereof) will likely take place in the criminal court context. Correspondingly, it will be important for professionals to know and assert their rights at an early stage and for employers to exercise patience in their pursuit of parallel investigations or procedures.