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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OLBEU (Carter)
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
BEFORE N. Dissanayake Vice-Chair
FOR THE
UNION
J. Noble
Legal Counsel
Ontario Liquor Board Employees Union
FOR THE
EMPLOYER
M.G. Sherrard
Counsel
Ogilvy Renault
Barristers & Solicitors
HEARING March 20, 1998
Grievor
Employer
INTERIM DECISION
The grievor Ms. Colleen Carter has grieved that the employer violated
article 20 of the collective agreement in that she has not received long
term income protection benefits notwithstanding that she has been totally
disabled within the meaning of article 20.
This interim decision deals with a request by union counsel, which
was opposed by the employer, that the Board exercise its discretion to
admit a number of medical reports from 5 doctors for the truth of their
contents, without requiring that the authors be produced for the purpose
of cross-examination by the employer. Alternatively, the union claimed
that if the Board disagrees, the costs of producing the doctors for cross-
examination should be borne by the employer. In this regard, counsel
advised the Board that the doctors (it was not specified how many of the
five) had indicated that they would be demanding "at least $ 1,500.OO per
day" to testify before the Board. Counsel relied upon section 48(12)(f)
of the Labour Relations Act and section 52(2)of the Ontario Evidence Act
and Re Toronto (Metropolitan), (1992), 25 L.A.C. (4th) 73 (Springate) and
Re St. Jean de Brebeuf Hospital, (1977) 16 L.A.C. (2d) 298 (Beatty)
The Right to Cross-Examination on Medical Reports
This Vice-Chair, sitting as sole arbitrator, recently had occasion
to deal with this issue in Re Air Canada & I.A.M., unreported award dated
March 12, 1998. I quote from that award as follows:
The applicable principles on this issue have been
reviewed in Re Miracle Food Mart of Canada, (1996) 58
L.A.C. (4th) 232 (Mitchnick). In that case it was the
union that' sought to file two medical reports in
evidence without calling the doctors who authored
them. The employer objected to the filing of the
documents unless the union undertook to produce the
c
3
doctors for cross-examination. At PP. 234 to 235 the
arbitrator wrote:
To begin with, it should be noted that
arbitrators, and boards of arbitration, as
a more informal alternative to the Courts,
are expressly granted in what is now
section 48(12) (f) of the Labour Relations
Act, 1995, c. 1, Sch. A, the latitude:
(f) to accept the oral or written evidence as
the arbitrator or the arbitration board, as
the case may be, in its discretion
considers proper, whether admissible in a
court of law or not.
Notwithstanding that, however, it must be
recalled that the "rules of evidence" by and large are
grounded in notions of fairness, and the Courts, in
considering the use of section 48(12) (f), have held
that arbitrators, making binding determinations on the
parties as they do, are nonetheless expected to act on
evidence having "cogency at law". See e.g. R. V.
Barber, (1968) 2 O.R. 245, 68 D.L.R. (2d) 682) (Ont.
C.A.), Girvin v. Consumers' Gas Co. (1973), 40 D.L.R.
(3d) 509 (Ont. Div. Ct.) Not inconsistent with that,
arbitrators in particular cases have ruled that, as a
recognised, statutory exception to the hearsay rule,
the reports or statements of medical practitioners are
able to be tendered into evidence without calling the
doctor - but at the very least may be entitled to
little weight. See, for example Re St. Jean de
Brebeuf Hospital and C.U.P.E., Lot. 1101 (1977) 16
L.A.C. (2d) 199 (Swan); Re Steel Co. Of Canada Ltd.
And U.S.W.. Lot. 1005 (1975), 8 L.A.C. (2d) 298
(Beatty) . In Re Toronto (Metropolitan) and C.U.P.E.,
Lot. 79 (1992), 25 L.A.C. (4th) 73, arbitrator
Springate reviewed these and other cases submitted and
came to the conclusion:
. . . the general arbitral practice is to
accept a medical report into evidence
without requiring that the doctor who
prepared it be called as witness. In light
of this general practice, this board of
arbitration is prepared to exercise its
discretion under s. 45(8) of the Labour
Relations Act and admit the reports of Dr.
Choy and Dr. Lilker into evidence with
respect to the truth of the contents of the
reports, without requiring that the doctors
be called as witnesses. The weight, if
any, to be given to the reports will be
decided in light of all the oral and
4
documentary evidence led by the parties
(page 80).
The arbitrator in the course of that conclusion
noted, however:
As indicated in the above excerpt as well
as in the Steel Co. Of Canada case, an
arbitrator is not bound to accept the
statements contained in a medical report.
In the St. Jean de Brebeuf Hospital award
an employee's claim to have been ill,
although supported by a medical
certificate, was rejected by arbitrator
(page 77).
Arbitrator Springate followed that approach some
three months later, in Re Canadian Airlines
International Ltd. And C.U.P.E., Airline Division
(1992) I 27 L.A.C. (4th) 311, and went somewhat further
in stating, at page 314:
The general practice of arbitrators is to
admit into evidence reports prepared by
physicians without requiring that the
physician be called as a witness. The
other party is, however, generally provided
with a copy of such a report prior to the
hearing. This gives the other party an
opportunity to consult with its own medical
experts concerning the contents of the
report. It also enables the other party to
decide whether to subpoena the physician
who prepared the report to the hearing so
that he or she can be questioned about its
contents. In the instant case the Company
was denied this opportunity. In the
result, I ruled that I would not accept the
April 29, 1992 report into evidence.
Given that concluding sentence, however, it can
be seen that the comment of Mr. Springate concerning
the subpoenaing of the other side's doctor was
essentially obiter. What I take the arbitrators to be
saying in cases like those referenced above is that:
"We have a statutory discretion to admit evidence not
necessarily admissible in a Court of Law; medical
reports, in particular, have been recognized by the
Evidence Act as a possible exception to the 'hearsay'
rule: if you wish to file your report without calling
the doctor, I'll let you do it; but be on notice that
that limited manner of providing the evidence before
me may go to its weight". That way of approaching the
matter, I would comment, might well be appropriate
5
where the "medical" document is of such limited and
peripheral value in any event that it can fairly be
admitted and accepted at face value without the time,
expense and inconvenience of bringing the doctor to
the hearing; for example, where it simply confirms the
date and/or occurrence of a medical appointment; or
perhaps even where it sets out in purely objective
terms a course of treatment. Where the medical report
is in any way subjective and consequential, however,
arbitrators ought to be loathe to give even the
appearance of allowing themselves to be influenced by
such evidence, without according the other side if it
insists the traditional right, in line with "natural
justice", to subject the evidence to cross-
examination. And where the arbitrator can see that
the content of the disputed report is such that, as a
matter of fairness, he or she would have no intention
of relying on it without further and better evidence,
the party tendering the report ought to be advised of
that, rather than simply having the report admitted by
the arbitrator. See, for example, Re Seagram
Distillers Ltd. Amd Distillery, Wine and Allied
Workers' International Union, Lots. 48, 64, 190, 191
& 200 (1983), 11 L.A.C. (3d) 166, wherein arbitrator
Pam Picher at page 173 observed:
Counsel for the company objected to the
admission of this (medical) document
because at the time of the hearing Dr.
Lawson was in New Zealand and could not be
cross-examined. I agree with the company
that without the support of direct
testimony and cross-examination, the
opinion cannot be used to establish that
Ms. Tutton was physically able to perform
Class A work.
(Emphasis added)
In Kapulica v. Dumancic, (1968) 2 O.R. 438 (Ont.
CA.), the court considered the effect of what is now
s. 52(2) of the Ontario Evidence Act, which states:
52(2) A report obtained by or prepared for
a party to an action and signed by a
practitioner and any other report of the
practitioner that relates to the action
are, with leave of the court and after at
least ten days notice has been given to all
other parties, admissible in evidence in
the action.
6
In that case the trial judge had admitted into
evidence a report from a doctor which supported the
plaintiff's allegation that the fracture suffered by
the plaintiff was sustained by a tremendous blow and
that it was unlikely that such an injury would result
from a fall off a set of stairs. The defendant was
denied an opportunity to cross-examine the doctor who
authored the report. At p. 441 on, the Court wrote:
The amendment to the Evidence Act now
embodied in s. 50a brings about a wholesome
procedural change made in the public
interests. It does not make any change in
the law as to the respective obligations of
parties arising out of the issues before
the Court. It merely permits certain
relevant evidence with the leave of the
Court, to be given in written form. It
recognizes the undesirability of the
encroachment on the time of medical
practitioners and of the Court that
results, in many cases, from adducing
expert medical testimony, in the
traditional manner.
The amendment is procedural: its effect is
to provide an alternative method by means
of which the Court may admit the evidence
of a professional medical witness without
the necessity of bringing that witness
physically into Court and having his
examination conducted in the face of the
Court. The use of this alternative method
in appropriate cases is beneficial to the
litigants, to the Court and to the members
of both the legal and medical professions.
It is not, however, designed to provide a
means whereby expert medical testimony may
be protected from the process of testing
and refinement by cross-examination; nor is
its purpose to deny the Court the benefit
of an objective appraisal of the nature and
extent of physical and mental disabilities
reported upon and a reasonable statement of
the observable data upon which the opinion
is based.
. . . . .
It follows from my understanding of the
purpose of the amendment that, by tendering
for admission a medical report which
complies with the requirements of s. 50a
the party tendering it constitutes the
7
medical practitioner who signs it his
witness as fully as if he had produced him
in Court and examined him under oath:
consequently, that medical practitioner, if
in the same trial brought into Court and
placed in the witness-box, continues to be
the witness of the party who tendered his
report. He is subject to cross-examination
not only upon his evidence given orally but
also on the evidence given by means of the
medical report in the same manner as he
would have been if he had given oral
testimony in the words of the report. The
only restriction with respect to the cross-
examination of the medical practitioner
whose signed report has been admitted lies
in the responsibility of the opposite party
to bring that medical practitioner before
the court and the risk as to the cost
which may be imposed upon him by virtue of
s. 50a(2).
It is apparent that in the light of the
view I have expressed, the doctor signing
the report became a witness of the party on
whose behalf the report was tendered: that
there was an absolute right of cross-
examination on the part of the defendant
and that the denial of this right of cross-
examination, particularly in view of the
relevance of the evidence as to causation,
was in itself grounds for the granting of
a new trial.
(Emphasis added)
In Briand v. Sutton (No. 2) (1986), 15 C.P.C. (2d) 36
(Ont. H.C.J.), Mr. Justice Potts, in upholding the
position of the defendant that the admission of a
medical report should be made conditional on the
availability of the author for cross-examination,
stated at p. 38:
As a matter of practice, at least in a case
where there is a contradiction between
medical reports of the respective parties,
the discretion is exercised in favour of
requiring the medical practitioner to give
oral testimony.
8
In any event, in my view, the right of
cross-examination is paramount and I would
be loathe to exercise my discretion by
denying to counsel for the defence the
right of cross-examination.
(Emphasis added)
In a decision of the Grievance Settlement Board in Re
Mayer (LCBO), decision dated December 11, 1995 at p.
7, arbitrator Roberts summarized the arbitral
principles that govern admission of medical reports as
follows:
From my review of applicable authority, it
would appear that the most appropriate
formulation of general arbitral procedure
regarding the admission into evidence of
reports of medical practitioners is as
follows: (1) upon agreement between the
parties, a report of a medical practitioner
may be admitted into evidence without
calling the practitioner to testify; (2)
however, if the opposing party wishes to
cross-examine the practitioner who wrote
the report, arbitral discretion will
generally be exercised to condition its
admission into evidence upon production of
the medical practitioner for cross-
examination; and (3) generally, it is the
responsibility of the party relying upon
the report to produce the practitioner for
cross-examination. Finally, where the
practitioner is unavailable for cross-
examination, the medical report may be
admitted or excluded in the discretion of
the arbitrator, properly exercised in light
of the circumstances of each individual
case.
In Miracle Food Mart, (supra) at p. 244, arbitrator
Mitchnick cited the above passage with approval, but
declined to exercise his discretion in favour of
admitting the medical reports without cross-
examination, stating:
I do not disagree with any of the above
formulation. Indeed, in the present case,
with the medical "reports" so subjective
and germane to a central issue in the case,
there is no possibility that I in the
9
exercise of my discretion would admit them
into evidence without the requested
undertaking by the employer to have the
doctors appear on the witness-stand for
cross-examination.
Counsel for the employer in the present case conceded
that the law as set out in the foregoing cases is
"good law". Nevertheless, he urged me to consider the
particular circumstances of this case and exercise my
discretion to admit the documents for the truth of
their contents, despite the absence of a right to
cross-examination.
The main thrust of the employer's argument was that
the admission of the reports was critical to the
defence of the employer's case. He conceded that the
absence of the right to cross-examination would result
in a denial of natural justice to the grievor and the
union. He expressed his sympathy with the union in
that regard. However, he submitted that "natural
justice is a two-way street". In other words, if the
reports are excluded in order to protect the union's
right to natural justice, the employer would be denied
critical evidence upon which it relied and which it
needs to defend its case. That, he submitted, would
infringe upon the employer's right to natural justice,
i.e. the right to a full defence. Counsel pointed out
that this was not a case where the employer was
refusing to produce the authors of the reports for
cross-examination. Rather, the law prevents it from
doing so and therefore it was beyond the employer's
control.
There is no question that in appropriate circumstances
an arbitrator has the discretion to admit evidence
that may not be admissible in a court of law.
However, in exercising that discretion arbitrators
have consistently held that a medical report will not
be admitted into evidence without the right to cross-
examination, (except on consent), where the medical
report is "subjective and germane to a central issue
in the case." (Re Miracle Mart, supra). There can be
no doubt that these two reports fall into that
category. The reports are about the physical fitness
of an individual to perform particular tasks. They are
in effect professional opinions. The subjective
nature of the reports is highlighted by the fact that
the conclusions in those reports are contradictory to
the opinions reached by another professional, the
grievor's physician Dr. R.S. Bhatia, who testified and
was subjected to cross-examination. There can be even
less doubt that the two reports are germane to a
central issue in this case. Indeed the employer has
10
itself suggested that the reports are critical to the
issue of the grievor's fitness, which is the
determinative issue in this grievance. That fact,
rather than favour the admission of the reports
without cross-examination, is reason to refuse to
exercise the discretion in favour of admission. (See
the quotation from Mr. Justice Potts in Briand v.
Sutton reproduced supra at p. 7).
The fact that the unavailability of the authors of the
reports for cross-examination was a matter beyond the
control of the employer, in my view, ought not have
any bearing. The focus is on the denial of the right
of the union to cross-examination and the resulting
prejudice and unfairness, not the employer's
intentions or good faith. This case is no different
than Re Seagram Distillers (supra) where the union
could not produce the author of the medical report for
cross-examination by the employer because he was in
New Zealand. That did not deter the arbitrator there
from refusing to admit the medical report.
I cannot agree with employer counsel that the refusal
to admit these two reports in these circumstances
results in a breach of natural justice against the
employer. The employer does have a right to fully
defend its case. However, the employer cannot claim
that this right includes a right to prove its case
through evidence which is not properly admissible
under the law.
I do not find any compelling reason here, that ought
to cause me to depart from the principle that an
arbitrator ought not exercise his discretion to admit
a medical report without providing a right to cross-
examine, where that medical report is subjective and
germane to a central issue in the case.
As apparent, in reaching the foregoing conclusion, I considered the same
statutory provisions and case law relied upon by the union in this case.
In Re Air Canada the medical reports were excluded despite the common
position of the parties that the authors of the reports were not
compellable witnesses. In the present case such a legal barrier is not
claimed. Rather, union counsel stated that the doctors in question "will
be very displeased if they are required to testify and may resist any
summons issued" and further that they are "demanding payment of at least
11
$ 1,500.OO a day for testifying." Upon being questioned by the Board as
to whether there is any law that treats doctors any differently with regard
to the obligation to comply with a summons to witness, counsel could only
point to S.52(2) of the Ontario Evidence Act. However, as evident from the
emphasized portion in the excerpt from Kapulica v. Dumancic, (at p.6
Supra) , that statutory provision was not intended to circumvent or restrict
the right to cross-examination of authors of medical reports. No law has
been brought to the Board's attention which indicates that a doctor under
a summons to witness is in any different position than any other person
under summons.
There are no circumstances here which persuades the Board to exercise
its discretion any differently than in Re Air Canada. I have had the
benefit of reviewing the medical reports in question. Generally it is fair
to state that they contain subjective opinions by the authors. In the
majority of cases the authors do not make it clear as to how and why such
opinion was reached. Also the reports contain opinions which, according
to the employer, are in conflict with the opinions expressed by other
doctors, whose reports and testimony will be relied upon by the employer.
And finally, there is no dispute that these medical reports directly relate
to the central issue in this case, namely the ability or disability of the
grievor to perform the duties of her position. As indicated by the
jurisprudence reviewed earlier, these are all considerations that favour
the exercise of the adjudicator's discretion in favour of requiring cross-
examination. On the other hand, there is little in favour of the union's
position in terms of prejudice or unfairness. Unlike in Re Air Canada,
these doctors are compellable pursuant to a summons. The fact that the
doctors may be displeased if required to testify is not, in the Board's
12
view, a consideration that can have any bearing on the issue. On the issue
of monetary costs, the union has not pointed to any law which obliges it
to pay to a doctor under summons any amount. of money in addition to the
legal entitlement for conduct money.
In all of the circumstances the Board rules that the medical reports
will be admitted as permitted by s. 52(2) of the Evidence Act, but on
condition that their authors will be produced for cross-examination, if so
requested by the employer.
The responsibility for producing the doctors for cross-examination and for
the associated costs
The Board next turns to the union's alternate position that, if the
employer wishes to cross-examine the doctors who authored the reports in
question, the responsibility for securing their attendance to testify and
for the costs involved should be borne by the employer.
The issue of responsibility for producing a doctor for cross-
examination in these circumstances was directly addressed by Potts J. In
Briand v. Sutton (No.2) (1986), 15 C.P.C. (2d) 36 (Ont. H.C.J.) at pp. 38-
40 as follows:
The next but very narrow issue before me at this
juncture is who is responsible to require the
attendance of the doctor.
Counsel for the defendant referred me to Carew v.
Loblaws Ltd. (1977), 18 O.R. (2d) 660, 83 D.L.R. (3d)
603(0nt. H.C.), a decision of Holland J., who said at
p. 663 [O.R.}:
"I am of the view that adoption by a party
of the procedure in s. 52 by the filing of
a medical report obliges the party to have
available for cross-examination, if
13
required by the party adverse in interest,
the doctor whose report has been adopted.
Nothing has been said in any of the cases
as to the procedure for having the doctor
before the Court and it may well he that a
party adverse in interest could by subpoena
require the attendance of that doctor. In
my view, once a party files a medical
report that party becomes obligated to
produce that doctor before the Court and
for the purpose of cross-examination by the
party adverse in interest, if so
requested."
He goes on:
"In the present case I hold that the
plaintiff is obliged to file the letter of
November 1, 1977, and, if requested to do
so by the defence, is obliged to provide
for the attendance of Dr. Johnston before
the Court as part of the plaintiff's case
so that Dr. Johnston may be cross-examined
by the defence."
. . . I don't agree with counsel for the plaintiff that
either s. 52(4) or the decision in Kapulica, supra, is
authority for the proposition that there is an
obligation upon the party objecting to the filing of
a medical report to require the attendance of that
medical practitioner at the trial. . . .
Equally, the statement of Kelly, J.A., which says
"The responsibility of the opposite party to bring
that medical practitioner before the Court . .." is
consistent with the same interpretation, i.e., of
requiring the party who is tendering the report to
arrange for the attendance of the medical practitioner
at trial.
Even if the statement was to be construed in
accordance with the argument of counsel for the
plaintiff I consider that it is obiter and is not
binding upon me because the issue in that trial was
not this narrow issue.
14
Moreover, the fact that Kelly, J.A., referred to
the procedure which, in fact, had taken place where
counsel for the defendant had compelled-the attendance
of the doctor by means of a subpoena, was only a
commentary as to what, in fact, had happened and it
did not cast the procedure in stone.
At p. 41 Potts J. summed up as follows:
Accordingly, I find that the obligation is on
counsel for the Plaintiff to produce the medical
practitioner in any instance where I exercise my
discretion and sustain an objection to the filing of
the report and permit the moving party to require the
medical practitioner to give oral testimony.
The following statement by Kelly J.A. about what is now section 52(2)
of the Ontario Evidence Act in Kapulica v. Dumancic (supra) at p. 441-42
is entirely consistent with the ruling by Potts J:
[The section] does not make any change in the law as
to the respective obligations of parties arising out
of the issues before the Court.
. . . . .
. . . by tendering for admission a medical report which
complies with the requirements of s .50a, the party
tendering it constitutes the medical practitioner who
signs it his witness as fully as if he had produced
him in Court and examined him under oath . . .
In Re Miracle Food Mart (supra), arbitrator Mitchnick was faced with
the issue as to "which party . . . was responsible for making the necessary
arrangements to have the doctor at the hearing and flowing inferentially
out of that, for paying the doctor's "costs"." At PP. 241-244, the
arbitrator reviewed the jurisprudence with approval:
There is ample arbitral "jurisprudence" now
understanding and applying the section in the same
15
way. In Re Metropolitan Toronto Association of
Community Living and C.U.P.E., Lot. 2191 (McMillan),
an unreported decision of Maureen Saltman dated
February 14, 1994 [summarized 34 C.L.A.S. 391, the
arbitrator noted that:
The Union asked that I exercise my
discretion to admit the medical reports
without requiring that the doctor be
produced for purposes of cross-examination.
Ms. Saltman's ruling was not equivocal in any respect:
In my view, the Employer's position must
prevail. Firstly, the courts have
recognized (1) that there is an obligation
on party who seeks to file a medical report
to produce the doctor who prepared the
report for purposes of cross-examination;
and (2) as a corollary, that the doctor
becomes the witness of the party on whose
behalf the report is filed: see Kapulica v.
Dumancic, [1968] 2 O.R. 438 (Ont. C.A.);
Carey v. Loblaw's (sic) Ltd. (1977), 18
O.R. (2d) 660, 83 D.L.R. 603 (H.C.J.);
Briand et al. V. Sutton (1986), 57 O.R.
(2d) 629 (H.C.J.). To similar effect are
the following arbitral awards: Re Brampton
Hydro-Electric Commission and International
Brotherhood of Electrical Workers, Local
union 636; Grievance of Cook, February 16,
1990 [Devlin (unreported)] and Molson's
Brewery, August 1, 1980 [Weatherill
(unreported) referred to in Weatherill,
Labour Arbitration Procedure (Canada law
Book), at pp. 66-67.1 Furthermore, although
Subsection 45(10) of the Labour Relations
Act allows an Arbitrator to admit and act
upon evidence which may be inadmissible in
a court of law, there is no indication that
this Section was intended to compromise
procedural fairness, which includes the
right to cross-examination. To the extent
that other arbitral awards have come to a
different conclusion on the matter, I
decline to follow them.
Accordingly, it is my ruling that if the
Union chooses to submit medical reports and
the Employer requests the opportunity to
cross-examination on these reports, the
doctor must be produced for this purpose.
c
16
Given the opening question, that reference to
"must be produced" clearly meant "by the Union".
Further elucidation of that can be found in the case
referred to by Ms. Saltman, Re Brampton.Hydro-Electric
Commission and I.B.E.W. Lot. 636 (Cook) [summarized 17
C.L.A.S. 661. That case sets out, at page 9:
III. THE DOCTOR'S ATTENDANCE AT THE HEARING
Each of the parties has served notice on
the other of an intention to introduce
certain medical reports and at this point,
the Employer has advised the Union that it
wishes to cross-examine the author of at
least one of the reports. The parties
disagree, however, about which of them is
responsible for arranging for the doctor's
attendance and for paying any associated
costs.
It was the submission of Mr. West that when
a doctor is made available for cross-
examination following the introduction of
a medical report, the doctor testifies as
a witness for the party relying on the
report. That party, therefore, is
responsible for arranging for the doctor's
attendance at the hearing and, in the first
instance, for paying any associated costs.
Mr. West pointed out, however, that
pursuant to section 52(5) of the Evidence
Amendment Act, 1989, the Court has a
discretion to direct the party that
required the doctor's attendance to pay an
appropriate sum by way of costs if the
Court is of the opinion that the evidence
could have been produced as effectively by
way of a medical report. Mr. West
suggested that I have a similar discretion
and that I adopt a similar procedure to
deal with costs of the attendance of any
doctor made available for cross-examination
in this case.
. . . . .
In my view, the procedure proposed by the
Employer is an appropriate one. Firstly,
I agree with the Employer that where a
medical report is filed and the opposing
party requests the opportunity for cross-
17
examination, the doctor testifies as a
witness for the party relying on the
report. In the normal course, therefore,
that party is responsible for arranging for
the doctor's attendance at the hearing. In
the first instance, that party should also
be responsible for the costs associated
with the attendance. I am satisfied,
however, that I have jurisdiction to award
a sum by way of costs to be paid by the
opposing party if I ultimately determine
that the doctor was required to give oral
evidence unnecessarily. In my view, an
award of costs in these circumstances is to
be distinguished from an award of the usual
costs associated with arbitration
proceedings or with the costs of a board of
arbitration for which the procedure for
payment is mandated by the Collective
Agreement.
The issue was once again canvassed in detail by
arbitrator Roberts at the Grievance Settlement Board
in LCBO (Mayer), decision dated December llth, 1995.
That award began by noting:
At the outset of this arbitration, counsel
for the union stated that she wished to
introduce into evidence a medical report
from eh grievor's family doctor without
calling the doctor aw a witness. Counsel
for the employer objected, claiming that to
admit the medical report without requiring
the union to call the practitioner who
authored it would be tantamount to denying
the employer its right of cross-
examination. Thereafter, the parties made
submissions upon the issue and te hearing
was adjourned pending the preparation of
this interim award. For reasons which
follow, it is concluded that the union may
introduce the medical report in its case
without calling the doctor to testify on
direct examination; however, the admission
into evidence of the medical report is
subject to a condition that the union
produce the doctor for purposes of cross-
examination should the employer so require.
At page 4 of those reasons the Board wrote:
As to which party has the responsibility to
produce the medical practitioner for
18
purposes of cross-examination, the Court of
Appeal in Kapulica took the view that this
was the responsibility of the party that
wished to cross examine the practitioner.
Id at 443. Subsequently, however,- the High
Court concluded that this responsibility
belonged to the party that introduced the
medical report. It was this party, after
all, that had constituted the medical
practitioner its witness by filing his or
her report. See Carew v. Loblaw's'S Ltd.
(19771, 18 O.R. (2d) 660, 663 (H.C.J.); and
Briand v. Sutton (1986) 15 C.P.C. (2d), 36
41 (On. H.C.J.).
The view taken by the High Court seems to
be in harmony with the statutory scheme of
section 52. Under this scheme, unnecessary
demands for production of medical
practitioner for cross-examination are
discouraged. Section 52(5) empowers the
court to order the party requiring the
attendance of the practitioner to pay as
costs of the attendance "such sum as the
court considers appropriate" if the court
"is of the opinion that the evidence could
have been produced as effectively by way of
a report." Id. The "costs" penalty of
section 52 (5) seeks, inter alia, to guard
against the prolongation of court
proceedings that would result from the use
of a tactic of automatically requiring an
opposing party to produce a medical
practitioner for cross-examination every
time it seeks to introduce a medical
report. This is one of the inefficiencies
that section 52 was designed to eliminate.
Mr. Roberts goes on to observe that whether
arbitrators have a similar power to award such costs
is "not free from doubt". However, Mr. Roberts
concludes that the requirement for both sides to share
in the full costs of arbitration hearings (as opposed
to Court hearings) is a sufficient disincentive
against the prolongation of hearings unnecessarily,
and adopts the line of approach set out in the
Brampton Hydro, etc. cases. He concludes, commencing
at page 7:
. . . it does not appear that, in general,
the locus of the responsibility to produce
19
a medical practitioner for cross-
examination upon his or her report should
be any different in labour arbitrations
that it is in proceedings before the
courts. It is the party that relies upon
the report that must bear this
responsibility. By introducing the medical
report and relying upon it, this party
constitutes the practitioner his own
witness just as surely as if he or she had
been called to give direct testimony in the
party's case-in-chief. Absent compelling
reasons to the contrary, it seems
reasonable and fair to require a party to
make its own witness available for cross-
examination. There do not appear to be any
such compelling reasons in the general
context of labour arbitration...
Further:
It was brought to my attention in the
course of the submissions of both counsel
that some arbitrators have either denied
cross-examination entirely or required the
party wishing to cross-examine to bear the
responsibility of producing the medical
practitioner fro cross-examination upon his
or her report. See Municipality of
Metropolitan Toronto, supra. After a
number of prior authorities were reviewed
in this case, it was broadly concluded:
"The cases referred to above indicate that
the general arbitral practice is to accept
a medical report into evidence without
requiring that the doctor who prepared it
be called as a witness." Id. At 80. A
review of these authorities, however, seems
to disclose but slender support for such a
broad proposition.
After going through those cases, the arbitrator
summarizes the proper position as follows:
From my review of applicable authority, it
would appear that the most appropriate
formulation of general arbitral procedure
regarding the admission into evidence of
reports of medical practitioners is as
follows: (1) upon agreement between the
parties, a report of a medical practitioner
may be admitted into evidence without
calling the practitioner to testify; (2)
20
however, if the opposing party wishes to
cross-examine the practitioner who wrote
the report, arbitral discretion will
generally be exercised to condition its
admission into evidence upon production of
the medical practitioner for cross-
examination; and (3) generally, it is the
responsibility of the party relying upon
the report to produce the practitioner for
cross-examination. Finally, where the
practitioner is unavailable for cross-
examination, the medical report may be
admitted or excluded in the distinction of
the arbitrator, properly exercised in light
of the circumstances of each individual
case.
The foregoing jurisprudence is to the effect that the responsibility
for producing the doctors for cross-examination, and at least initially,
for the costs of doing that, is on the party that relies on the medical
reports being filed. In this case, that is the union.
The decisions support the proposition that s. 52(5), which provides
that,
(5) If a practitioner is required to give evidence in
person in an action and the court is of the opinion
that the evidence could have been produced as
effectively by way of a report, the court may order
the party that required the attendance of the
practitioner to pay as costs therefor such sum as the
court considers appropriate,
gives the Board jurisdiction to award a sum of money as costs if the
opposing party unnecessarily or frivolously requires a doctor to be
produced for cross-examination. In Re Brampton Hydro at p. 9, arbitrator
Saltman pointed out that "an award of costs in these circumstances is to
be distinguished from an award of the usual costs associated with
arbitration proceedings or with the costs of a board of arbitration for
21
which the procedure for payment is mandated by the Collective Agreement".
In Re Miracle Food Mart, supra, at p. 244, arbitrator Mitchnick observed:
. . . I agree with arbitrator Devlin (although the
employer in fact conceded the matter in the Brampton
case) that arbitrators have the discretion to make the
assumption of the risk of an award of costs ultimately
being made along the lines of section 52(5) a
condition of acceding to that opposing side's
insistence that the author of the medical report be
called. That I see as part of an arbitrator's overall
discretion in the control of its proceedings, and an
exercise of power not likely to offend the Courts in
light of section 52(5) of the Evidence Act.
This Board itself in Re Mayor (supra) at p. 4-5 stated:
The view taken by the High Court seems to be in
harmony with the statutory scheme of section 52.
Under this scheme, unnecessary demands for production
of a medical practitioner for cross-examination are
discouraged. Section 52(5) empowers the court to
order the party requiring the attendance of the
practitioner to pay as costs of the attendance "such
sum as the court considers appropriate" if the court
"is of the opinion that the evidence could have been
produced as effectively by way of a report." Id. The
"costs" penalty of section 52(5) seeks, inter alia, to
guard against the prolongation of court proceedings
that would result from the use of a tactic of
automatically requiring an opposing party to produce
a medical practitioner for cross-examination every
time it seeks to introduce a medical report. This is
one of the inefficiencies that section 52 was designed
to eliminate.
Counsel for the union argued that the interpretation of section 52(5)
in the foregoing decisions is incorrect. She took the position that the
provision does not give jurisdiction for the Board to award costs against
the opposing party requiring production of the doctor for cross-
examination. She used this argument to augment her primary position that
22
there is no requirement to produce the doctors for cross-examination in the
first place.
Despite counsel's well articulated submission, the Board has rejected
the union's primary position. In the circumstances, the Board does not
consider it appropriate or necessary to determine in this case whether or
not the Board has jurisdiction to award costs against an opposing party
which frivolously or unnecessarily requires a doctor to be produced for
cross-examination. The present law, at least as far as Grievance
Settlement Board jurisprudence is concerned, is as set out in Re Meyer.
If a subsequent panel of the Grievance Settlement Board is to consider
whether the decision in Re Meyer is incorrect, it must be done in the
context of a situation where costs have become an issue. In the present
case the issue is merely speculative. Following this decision, the union
will have to decide, which medical reports it wishes to file and rely upon.
The employer then would have to consider whether it wishes to cross-examine
the authors of any of the reports so filed. If requests for cross-
examination are made, it would be up to the union to decide whether to seek
costs on the grounds that such requests were frivolous or unnecessary. The
issue of Board's jurisdiction will only arise if all of the foregoing
transpires and the Board concludes that the employer's requests were
frivolous or unnecessary. In this case the issue is speculative and the
Board has not received full legal argument. In the circumstances, the
Board is not prepared to make a decision in anticipation.
In summary, it is the Board's finding that the union's entitlement
to file the medical reports for the truth of their contents is conditional
upon the union producing the authors for cross-examination at its own cost,
23
if requested by the employer. The union is directed to notify the employer
in writing as to which medical reports it wishes to file and rely upon.
The employer is directed to then to make jts request to the union in
writing as to which reports it wishes to cross-examine upon.
This proceeding will continue on the dates scheduled.
Dated this j6h day of April, 1998 at Hamilton, Ontario.
Vice-Chairperson