Ontario v. Ontario Public Service Employees Union, (1990) 37 O.A.C. 218 (DC)

• Judge: Reid, Osborne and Gray, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 26, 1990
• Jurisdiction: Ontario
• Citations: (1990), 37 O.A.C. 218 (DC)

Ont. v. OPSEU (1990), 37 O.A.C. 218 (DC)

MLB headnote and full text

In The Matter Of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108;

And In The Matter Of an application for judicial review of the decisions of the Ontario Crown Employees Grievance Settlement Board, dated the 4th day of November, 1987 and the 28th day of July, 1988, with respect to the grievance of Barry Cahoon;

And In The Matter Of the Judicial Review Procedure Act, R.S.O. 1980, c. 224, as amended.

Between:

Her Majesty The Queen in Right of Ontario (applicant) v. Ontario Public Service Employees Union, Barry Cahoon, and Ontario Crown Employees Grievance Settlement Board (respondents)

(No. 974/88)

Indexed As: Ontario v. Ontario Public Service Employees Union

Ontario Divisional Court

Reid, Osborne and Gray, JJ.

April 26, 1990.

Summary:

An Ontario Development Corporation loans officer was dismissed for misconduct in defrauding the corporation and others. He thereafter pleaded guilty to two criminal fraud charges. The loans officer grieved his dismissal. At the grievance hearing the officer's union moved for a non-suit at the close of the employer's case and elected to call no evidence.

The Ontario Crown Employees Grievance Settlement Board granted the non-suit motion on the basis that there was no cogent evidence to explain the dismissal. The board opined further that even if the non-suit motion should not have been granted, the dismissal was invalidated because of the employer's delay in imposing the dismissal. The board was reluctant to order reinstatement because of the guilty pleas, but awarded special damages, based on lost salary because of the period of delay and general damages in lieu of reinstatement. The employer applied for judicial review.

The Ontario Divisional Court allowed the application and quashed the award. The court opined that the award was both patently unreasonable and wrong and riddled with error such that the board failed to carry out its mandate. The errors destroyed jurisdiction.

Note: The Ontario Divisional Court issued an addendum which is found at paragraph 121.

Labour Law - Topic 9128

Public service labour relations - Adjudication of grievances by boards - Jurisdiction of boards - Following non-suit - An Ontario Development Corp. loans officer was dismissed for fraudulent misconduct - He later pleaded guilty to two criminal fraud charges - He grieved the dismissal - At the hearing his union moved for a non-suit without calling evidence - The Ontario Crown Employees Grievance Settlement Board allowed the non-suit motion, but then considered other issues, including making an award of damages - The Ontario Divisional Court held that the board erred in considering other issues following a non-suit - See paragraphs 69 to 74, 81 to 91.

Labour Law - Topic 9134

Public service labour relations - Adjudication of grievances by boards - Consideration of common law principles - The Ontario Divisional Court held that the Ontario Crown Employees Grievance Settlement Board erred in awarding damages to a wrongfully dismissed employee, without regard to the common law principle that no one can profit from his own wrong - See paragraphs 106 to 119.

Labour Law - Topic 9138

Public service labour relations - Adjudication of grievances by boards - Re discipline and dismissal - Evidence and proof - An Ontario Development Corporation loans officer was dismissed for fraudulent misconduct - The officer grieved his dismissal - The Ontario Crown Employees Grievance Settlement Board granted his union's non-suit motion, holding that there was no cogent evidence to explain the dismissal - The board ignored part of the evidence presented by the employer - The Ontario Divisional Court held that the board erred in ignoring this evidence - See paragraphs 64 to 68.

Practice - Topic 5389

Dismissal of action - Motion for dismissal - Non-suit - At close of plaintiff's case - Procedure - [See Labour Law - Topic 9128].

Practice - Topic 5389

Dismissal of action - Motion for dismissal - Non-suit - At close of plaintiff's case - Procedure - The Ontario Divisional Court discussed the general principles governing non-suit motions - The court opined that the law that governs the courts respecting non-suits should also be applied to administrative tribunals - See paragraphs 34 to 59.

Practice - Topic 5389

Dismissal of action - Motion for dismissal - Non-suit - At close of plaintiff's case - Procedure - The Ontario Divisional Court stated that "over the years there has been some variation in the practice on non-suits turning on the question of whether the mover must concurrently elect to call no evidence. That has now been settled. A motion will not be entertained without an election to call no evidence" - See paragraph 40.

Cases Noticed:

Hall et al. v. Pemberton (1974), 5 O.R.(2d) 438 (C.A.), refd to. [para. 37].

Re Gallant and Sudbury Roman Catholic Separate School Board (1985), 7 O.A.C. 309; 56 O.R.(2d) 160 (C.A.), refd to. [para. 38].

Ontario Motor Sales Ltd. v. Steeves, [1959] O.W.N. 205 (C.A.), refd to. [para. 39].

Bank of Montreal v. Horan et al. (1986), 54 O.R.(2d) 757, refd to. [para. 40].

Nadler v. Chornij, [1973] 2 O.R. 1 (C.A.), refd to. [paras. 43, 81].

Blanchard v. Control Data Canada Ltd. et al. (1984), 55 N.R. 194; 14 D.L.R.(4th) 289 (S.C.C.), refd to. [para. 54].

Toronto Newspaper Guild v. Globe Printing Co., [1953] 2 S.C.R. 18, refd to. [para. 67].

Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (1977), 14 L.A.C.(2d) 1, dist. [paras. 80, 91].

Re Motor Transport Industrial Relations Bureau of Ontario and General Truck Drivers Union, 4 L.A.C.(2d) 154, refd to. [paras. 80, 89].

Michaels et al. v. Red Deer College (1975), 5 N.R. 99; 57 D.L.R.(3d) 386, refd to. [paras. 80, 83, 85, 87].

Statutes Noticed:

Public Service Act, R.S.O. 1980, c. 418, sect. 22(1) [paras. 4, 5].

Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108, sect. 18, sect. 19 [para. 6].

Authors and Works Noticed:

Brown and Beatty, Canadian Labour Arbitration (2nd Ed.) [para. 77].

Gertner, Eric (ed.), Studies in Criminal Procedure (1979) [para. 42].

Rock, Allan M., Q.C., The Principles of Non-Suit in Ontario, in Studies in Criminal Procedure, Eric Gertner (ed.) (1979) [para. 42].

Sopinka, The Trial of an Action, p. 124 [para. 34].

Williston and Rolls, The Conduct of an Action, p. 45 [para. 34].

Counsel:

Dennis Brown, Q.C., for the applicant;

Colin Stevenson, for the respondent Board;

Chris Paliare, for the respondent Union.

This application was heard before Reid, Osborne and Gray, JJ., of the Ontario Divisional Court. The decision of the court was delivered by Reid, J., and released on April 26, 1990: