Dell v. Canada
T-956-94
Wetston J.
13/6/95
12 pp.
Application to set aside decision of adjudicator appointed by Public Service Staff Relations Board (PSSRB)-Applicants dismissed from positions as correctional officers following incident in bar involving status Indian colleague-Applicants dismissed on grounds: (1) assault of colleague; (2) participating in degrading act on colleague, in nature of sexual assault; (3) attending fight without attempting to prevent occurrence; (4) bringing Correctional Services into disrespect-Applicants grieving suspension -- Adjudicator determining applicants involved in altercation in washroom which, while traumatizing to colleague, neither constituting sexual assault nor motivated by racism-Adjudicator reinstating applicants after allowing [ho]11-month suspension without pay -- Applicants submitting adjudicator erred in finding [ho]11-month suspension warranted -- Adjudicator's mandate to decide whether warden's decision to discharge applicants justified-Faced with two versions of alleged incident, adjudicator determining what actually taking place to be something between facts as alleged by opposing parties -- Such approach problematic; while open for adjudicator to decide evidence to rely upon and appropriate weight of evidence, not open to adjudicator to choose middle road or engage in speculation -- Adjudicator should have found, on balance of probabilities, whether employer proving employees engaged in alleged conduct -- While making adverse finding with respect to occurrence of sexual assault, adjudicator failing to apply burden of proof to finding, i.e. employer failed to discharge burden of proof to establish applicants conducting themselves in manner warranting discipline -- As adjudicator making adverse finding with respect to sexual assault, malice and racism, decision to impose [ho]11-month suspension cannot be maintained-Adjudicator making fundamental error of principle in failing to apply appropriate burden of proof in context of decision -- Decision set aside and referred back for reconsideration -- Application allowed.