On February 13, 2003, the Supreme Court of Canada heard two appeals, which required the court to decide when a litigant who has previously been convicted of a criminal offence may re-litigate the conviction to show that he or she is not really guilty. In the primary appeal, between the Canadian Union of Public Employees, Local 79 and the City of Toronto, a recreation instructor was convicted of sexually assaulting a boy under his care, and an appeal from his conviction and sentence was dismissed. Relying on the conviction, the city terminated the instructor’s employment. The instructor grieved his dismissal and his union, the Canadian Union of Public Employees, Local 79 (CUPE), moved the matter to arbitration to determine whether the city had just cause for termination.
At the arbitration, the arbitrator permitted the union to re-litigate the convict’s guilt and, contrary to the findings of the criminal courts, ruled that the convict had not sexually assaulted the boy. The arbitrator ordered the convict to be reinstated to his former position with full compensation. The Ontario Divisional Court quashed the arbitrator’s decision, and the Ontario Court of Appeal dismissed an appeal from that ruling.
CUPE applied for and was granted leave to appeal to the S.C.C. to address whether the doctrines of abuse of process, collateral attack and issue estoppel precluded the relitigation of the criminal courts’ finding that the convict had sexually assaulted the boy. The S.C.C. reserved judgment.
Jason Hanson, Mahmud Jamal and Kari Abrams of Osler, Hoskin & Harcourt LLP represented the city. Douglas Wray and Harold Caley of Caley and Wray represented CUPE. The companion cases involved the Ontario Public Service Employees Union and Her Majesty The Queen in Right of Ontario. Craig Flood of Koskie Minsky represented the Ontario Public Service Employees Union. Mary Gersht, Sean Kearney and Meredith Brown represented Her Majesty the Queen in Right of Ontario.
At the arbitration, the arbitrator permitted the union to re-litigate the convict’s guilt and, contrary to the findings of the criminal courts, ruled that the convict had not sexually assaulted the boy. The arbitrator ordered the convict to be reinstated to his former position with full compensation. The Ontario Divisional Court quashed the arbitrator’s decision, and the Ontario Court of Appeal dismissed an appeal from that ruling.
CUPE applied for and was granted leave to appeal to the S.C.C. to address whether the doctrines of abuse of process, collateral attack and issue estoppel precluded the relitigation of the criminal courts’ finding that the convict had sexually assaulted the boy. The S.C.C. reserved judgment.
Jason Hanson, Mahmud Jamal and Kari Abrams of Osler, Hoskin & Harcourt LLP represented the city. Douglas Wray and Harold Caley of Caley and Wray represented CUPE. The companion cases involved the Ontario Public Service Employees Union and Her Majesty The Queen in Right of Ontario. Craig Flood of Koskie Minsky represented the Ontario Public Service Employees Union. Mary Gersht, Sean Kearney and Meredith Brown represented Her Majesty the Queen in Right of Ontario.
