Greater Niagara Transit Commission v. Amalgamated Transit Union, Local 1582 (Niagara Falls), (1987) 23 O.A.C. 321 (DC)

• Judge: Watt, Austin and McKeown, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: July 08, 1987
• Jurisdiction: Ontario
• Citations: (1987), 23 O.A.C. 321 (DC)

GNTC v. ATU (1987), 23 O.A.C. 321 (DC)

MLB headnote and full text

In The Matter Of an application under the Judicial Review Procedure Act, R.S.O. 1980, c. 224, as amended;

And In The Matter Of an arbitration hearing conducted on August 11, 1986, held pursuant to a Collective Agreement between the parties hereto concerning the dismissal of Allen Ernest;

And In The Matter Of an award made pursuant to the aforesaid arbitration hearing dated the 11th day of November 1986, by Richard H. McLaren, Chairperson, Arthur H. Burke, as to the majority decision, and Barry M. Adams, as to the dissenting decision.

The Greater Niagara Transit Commission (applicant) and the Amalgamated Transit Union and its Local 1582 (Niagara Falls) (respondent)

(No. 1212/86)

Indexed As: Greater Niagara Transit Commission v. Amalgamated Transit Union, Local 1582 (Niagara Falls)

Ontario Divisional Court

Watt, Austin and McKeown, JJ.

September 17, 1987.

Summary:

An employee was suspended from his job with a transit company because he was taking money from the fare boxes of buses. He was charged with theft under $200 contrary to the Criminal Code. At trial he was acquitted because the police had denied his right to counsel (Charter, s. 10(b)) and therefore a statement he gave to police was excluded under s. 24 of the Charter. The transit company then dismissed the employee. The employee and his union grieved. The majority of an arbitration board ordered that he be reinstated, but not necessarily to his former job or any position of trust. The majority of the board felt bound by the ruling in the criminal trial that the employee's statement be excluded from evidence and therefore the board refused to consider the statement. The transit company applied for judicial review of the arbitration board's decision.

The Ontario Divisional Court allowed the application for judicial review and quashed the arbitration board's award. The court held that the board committed a reviewable jurisdictional error when it failed to consider the admissibility of the statement itself, but rather relied on the ruling in the companion criminal proceedings.

Arbitration - Topic 4565

The hearing - Evidence - Admissibility - Effect of court ruling - An employee was charged with theft from his employer after giving a statement to police - At trial the statement was excluded under s. 24(2) of the Charter, because the police denied the employee his right to counsel (Charter, s. 10(b)) - The employer subsequently dismissed the employee - The employee grieved - The arbitration board, feeling bound by the trial court's ruling, also excluded the employee's statement to police and therefore held that the employee was improperly dismissed - The Ontario Divisional Court held that the board erred in law in treating as dispositive or determinative of the admissibility issue in the arbitration proceedings, the ruling of the trial judge in the companion or related criminal proceedings - The court thereafter set out five reasons for its conclusion - See paragraphs 1 to 59.

Arbitration - Topic 4565

The hearing - Evidence - Admissibility - Effect of court ruling - The Ontario Divisional Court discussed the discretion of an arbitration board to receive or admit evidence under s. 44(8)(c) of the Labour Relations Act (Ont.) - The court stated that "an arbitration board is not to take as dispositive or determinative of an admissibility issue arising in arbitration proceedings a ruling in allied or unrelated proceedings in which the self same evidence has been tendered for admission", even where the ruling rested on constitutional grounds - See paragraphs 46 to 52.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - Court of competent jurisdiction - What constitutes - The Ontario Divisional Court opined that an arbitration board under the Labour Relations Act (Ont.) could not be considered to be a "court of competent jurisdiction" within the meaning of s. 24(1) of the Charter - See paragraph 51.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first Arbitration - Topic 4565 above].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Ontario Divisional Court discussed generally the remedy of evidentiary exclusion under s. 24(2) of the Charter - The court also discussed whether a ruling in a proceeding with respect to the admissibility of certain evidence was limited to that particular proceeding or whether such a finding applied to other proceedings as well - See paragraph 43.

Estoppel - Topic 382

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In interlocutory proceedings - The Ontario Divisional Court stated that "as a general rule, interlocutory findings of fact made in one proceeding, as for example a criminal trial, do not engage the operation of the doctrine of issue estoppel in subsequent proceedings, whether the same or different type, between different parties, in view of the absence of elements of finality and identity of issues critical to the operation of that doctrine" - See paragraphs 44, 45.

Labour Law - Topic 7052

Industrial relations - Collective agreement - Enforcement - Arbitration - Arbitrator or board - Jurisdiction or powers of - Evidence - Effect of court ruling on admissibility - [See first Arbitration - Topic 4565 above].

Labour Law - Topic 7052

Industrial relations - Collective agreement - Enforcement - Arbitration - Arbitrator or board - Jurisdiction or powers of - Evidence - Effect of court ruling on admissibility - [See second Administrative Law - Topic 4565 above].

Labour Law - Topic 7056

Industrial relations - Collective agreement - Enforcement - Arbitration - Arbitrator or board - Jurisdiction or powers of - Power to reinstate employee - An employee of a transit company was dismissed for stealing cash from fare boxes on buses - An arbitration board ordered that the employee be reinstated, but not in circumstances which would permit his connection with money, fare boxes or any position of trust - The Ontario Divisional Court opined that the board committed a jurisdictional error in ordering the employee's reinstatement on such terms in absence of evidence or admissions respecting the existence of any such position - See paragraphs 62 to 64.

Labour Law - Topic 7113

Industrial relations - Collective agreement - Enforcement - Arbitration - Judicial review - Jurisdictional error - An arbitration board in determining a grievance under a collective agreement erroneously excluded evidence on the basis that it was bound by the decision of a trial judge in companion criminal proceedings to exclude the evidence under s. 24(2) of the Charter - The Ontario Divisional Court held that this error was jurisdictional and remedial upon an application for judicial review - The court held that the arbitration board failed to exercise its statutory discretion to determine the admissibility of evidence under s. 44(8)(c) of the Labour Relations Act (Ont.) - The court therefore quashed the board's decision and remitted the matter to the board for reconsideration - See paragraphs 60, 61.

Cases Noticed:

Trumbley and Pugh v. Toronto Police Force et al. (1986), 5 O.A.C. 368; 55 O.R.(2d) 570, refd to. [paras. 17, 52].

Hollington v. Hewthorn & Co. Ltd., [1943] 1 K.B. 587 (C.A.), refd to. [para. 41].

R. v. Morgentaler, Smoling and Scott (1984), 6 O.A.C. 53; 48 O.R.(2d) 519; 16 C.C.C.(3d) 1; 41 C.R.(3d) 262 (C.A.), refd to. [para. 43].

R. v. Therens, [1985] 1 S.C.R. 613; 40 Sask.R. 122; 59 N.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97, refd to. [para. 43].

R. v. Collins (1987), 74 N.R. 276; 56 C.R.(3d) 193 (S.C.C.), refd to. [para. 43].

R. v. Hamill (1987), 75 N.R. 149; 56 C.R.(3d) 220 (S.C.C.), refd to. [para. 43].

R. v. Sieben (1987), 74 N.R. 271; 56 C.R.(3d) 225 (S.C.C.), refd to. [para. 43].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 161; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 43].

R. v. Carter (1986), 67 N.R. 375; 26 C.C.C.(3d) 572 (S.C.C.), refd to. [para. 43].

R. v. Duhamel, [1984] 2 S.C.R. 555; 57 N.R. 162; 57 A.R. 204; 15 C.C.C.(3d) 491; 43 C.R.(3d) 1, refd to. [paras. 45, 54].

R. v. Williams (1985), 7 O.A.C. 201; 18 C.C.C.(3d) 356; 44 C.R.(3d) 351 (C.A.), refd to. [para. 50].

R. v. Seaboyer and Gayme (1987), 20 O.A.C. 345 (C.A.), refd to. [para. 50].

Cohen and Attorney General of Quebec, Re, [1979] 2 S.C.R. 305; 27 N.R. 344; 46 C.C.C.(2d) 473; 13 C.R.(3d) 36, reving. 12 C.C.C.(2d) 446; 34 C.R.N.S. 362 (Que. C.A.), refd to. [para. 60].

International Woodworkers of America Local 1-118 and Sooke Forest Products Limited, Re (1968), 1 D.L.R.(3d) 622 (B.C.C.A.), refd to. [para. 64].

City of Vancouver v. Brandram-Henderson of B.C. Ltd., [1960] S.C.R. 539; 23 D.L.R.(2d) 161, refd to. [para. 64].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 10(b) [para. 29]; sect. 24 [para. 30].

Labour Relations Act, R.S.O. 1980, c. 228, sect. 44(8)(c).

Authors and Works Noticed:

Cross on Evidence (6th Ed.), p. 49 [para. 41].

Counsel:

William A. Amadio, for the applicant;

Paul J. Wintemute, for the respondent.

This application was heard on July 8, 1987, before Watt, Austin and McKeown, JJ., of the Ontario Divisional Court. The following decision of the Divisional Court was delivered by Watt, J., and released on September 17, 1987: