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HomeMy WebLinkAbout2003-3099.Cahill.05-03-21 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2003-3099 UNION# OLB606/03 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees’ Union (Cahill) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nimal V. Dissanayake Vice-Chair FOR THE UNION Kourosh Farrokhzad Engelmann Gottheil Barristers and Solicitors FOR THE EMPLOYER Dan Palayew Ogilvy Renault Barristers and Solicitors HEARING March 11, 2005. 2 Interim Decision I am seized with a grievance filed by Mr. Patrick Cahill, who was discharged by letter dated November 13, 2003 from his position of Store Manager level 1. In support of its assertion of just cause, the employer has attributed several culpable acts to the grievor, including sexual harassment of a female employee at his store; consumption of alcohol while on duty and providing alcohol to a contractor’s crew working at the store; and requesting another employee in his store during work hours to purchase marijuana for him. The employer led its evidence over four days and closed its case. The union’s first witness was the grievor. During his testimony, employer counsel raised numerous objections, contending that the grievor’s testimony on particular points ought not be accepted, because in violation of the rule in Browne v. Dunn, the employer witnesses had not been put on notice during cross-examination that the union intended to call contradictory evidence on those points. I ruled at the time that I would allow union counsel to proceed with his examination of the grievor, and hear submissions and rule on all of the Browne V. Dunn objections prior to the cross-examination of the grievor. 3 Initially employer counsel raised 30 objections, but subsequently withdrew objections 5, 25, 26, 27 and 28. The union conceded that the rule in Browne v. Dunn had been violated with respect to objections 2, 3, 8 (partially). However, counsel nevertheless contended that despite the admitted violations, the grievor’s evidence ought not be excluded in the particular circumstances. With respect to objections 15, 16, 20, 21 22 and 23 the union agreed that the evidence objected to may be excluded. The parties have no substantial disagreement as to the legal principles stemming from what is known as “the rule in Browne v. Dunn”. The disagreement was about how those principles should be applied to the specific objections. In Re Sunbeam Residential Development Centre, (1996) 54 L.A.C. (4th) 54, I had occasion to examine in some detail those legal principles at pp. 63-67: The law The rule in Browne V. Dunn (1893), 6 The Reports 67 (H.L.), is explained by Lord Herschell at pp. 70-71 as follows: These witnesses all of them depose to having suffered from such annoyances; they further depose to having consulted the defendant on the subject, and to having given him instructions which resulted in their signing this document; 4 and when they were called there was no suggestion made to them in cross-examination that that was not the case. Their evidence was taken; to some of them it was said, “I have no questions to ask;” in the case of others their cross-examination was on a point quite beside the evidence to which I have just called attention. Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue, but it seems to me that a cross- 5 examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course, I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted. The rule in Brown v. Dunn as it applies in arbitration proceedings is summarized in Gorsky, Upsrich and Brandt, Evidence and Procedure in Canadian Labour Arbitrations, at p. 10-46 as follows: If a party intends to call evidence contradicting the evidence given by a witness for the other side, there is an obligation to cross-examine the other side’s witness on the point. Cross- examination gives the witness a chance to be tested on the matter and defend his or her version; it also indicates to the other side that the matter is not 6 accepted. Unless the intention to dispute the matter is obvious from the nature of the case, the failure to cross-examine may result in the latter contradicting evidence being inadmissible. It is clear from the emphasized portions of the quotations from Browne v. Dunn and from the textbook respectively, that the rule was not intended to be an absolute one. Where it is clear to a witness from the nature of the case itself or from the nature of the cross- examination that his testimony on a particular point is being called into question, the cross- examiner is not required to use any specific words to convey that to the witness. In R. V. Palmer (1979), 106 D.L.R. (3d) 212 at p. 229, the Supreme Court of Canada agreed with the following statement by the British Columbia Court of Appeal [per McFarlane J.A., 1 W.C.B. 414]: “In my opinion, the effect to be given to the absence or brevity of cross- examination depends upon the circumstances of each case. There can be no general or absolute rule. It is a matter of weight to be decided by the tribunal of fact... In the present case Douglas Palmer was cross-examined extensively. It seems to me the circumstances are such that it must have been foreseen his credit would be attacked if he testified to his innocence. In any event, this was made 7 plain when he was cross-examined. The trial judge gave a careful explanation for his acceptance of the story of Ford and rejecting that of Douglas Palmer. I cannot give effect to this ground of appeal”. The union does not dispute that the rule in Browne V. Dunn has general application in arbitration proceedings. However, its position on the objections is either that there was sufficient cross-examination or that if cross-examination was not as direct as it ought to have been, it should be understandable because it is not easy for a union to cross- examine its own members who are called to testify on behalf of employer in a confrontational way by calling them liars. She submits that in those cases, it is sufficient to indicate to the witnesses that their testimony was not being accepted, by cross- examining about the surrounding circumstances and the context. Counsel submits that the board should apply the rule flexibly. She submits that to be fair to both parties, if the board feels that the employer had been prejudiced by the lack of cross-examination in accordance with the rule in Browne V. Dunn, the board should permit the employer a liberal right of calling reply evidence as it is entitled to do. Given the availability of that option, counsel submits that it would be unfair to the union if the grievor is precluded from the opportunity to contradict the employer witnesses’ testimony. 8 From the law reviewed above, the rule requires that unless it is obvious to the witness that his testimony on a particular point is being challenged, the cross-examiner must indicate the intention to challenge the witness’ credibility by putting to the witness some questions. As Lord Herschell stated there is an obligation “where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged”. Therefore, while I agree with the union counsel that it is not necessary for the witness to be told directly that the union believes that she is a liar or that union witnesses will be contradicting her testimony, there still is an obligation to make it clear to the witness even by indirect questions, that the union intends to contradict her testimony. To quote Lord Herschell again, what is not appropriate is to make “no suggestion whatever in the course of the case that his story is not accepted.” In my view, to excuse a party from a failure to comply with the rule in Browne v. Dunn merely because the employer may have an opportunity to call reply evidence is to in effect declare that the rule does not apply where a right to call reply evidence exists. Reply evidence is not to be treated as a substitute for the rule. Unless there are exceptional circumstances, the 9 witness is entitled to know while she is on the stand if the union intended to contradict her testimony, so that if she so wishes, she can explain or give further information or reasons as to why she ought to be believed. The Re Lounds, No. 3352/92, G.S.B. decision the union relied on is distinguishable in that regard. In that case the board notes the fact that at the time the employer’s witness testified, the union did not have the benefit of reviewing the grievor’s time sheet. It is clear that the board felt that the union counsel’s failure to cross-examine on the point was understandable in those circumstances. In deciding that the rule in Browne V. Dunn ought not be strictly imposed, the board also took account of the fact that the employer will be able to call the witness in reply, if it so wished. In the case at hand there is no suggestion that the union lacked any information at the time the employer witnesses testified, in order to be able to comply with the rule. The grievor was present throughout the testimony and had every opportunity to inform counsel that her evidence will be contradictory. Therefore, there is no reason why the union could not have complied with Browne V. Dunn. Union counsel submitted that despite her request, employer counsel had not provided full particulars of the allegations against the grievor in advance of the hearing and that it was only during the testimony of the employer witnesses that the union for the first time became aware of the exact nature of the 10 allegations. With all due respect, I can see no relevance between that and the application of the rule in Browne V. Dunn. If the union so wished, it was open to it to request the board to order the disclosure of particulars. In fact an order was requested and granted for the production of all witness statements in the possession of each party. However, the application of the rule in Browne V. Dunn is not conditional upon the availability of particulars prior to the commencement of the hearing. Indeed, apart from whatever particulars are disclosed during the grievance procedure, in the vast majority of arbitration proceedings no formal disclosure is requested nor given. That does not make the rule in Browne V. Dunn inapplicable to those proceedings. As pointed out earlier, the grievor was present throughout the testimony. The testimony was not of a technical nature and not hard to understand. The witness in very simple language alleged that the grievor had done or stated certain things. As the allegations came out the grievor should and would have known that the testimony is not truthful, if that indeed was her belief. There is no reason why the grievor could not have instructed her counsel, or why counsel could not have ascertained from the grievor as to whether the grievor intended to contradict the allegations made. I do not see the lack of prior disclosure as having any bearing in this case on the union’s ability to comply with the rule in Browne V. Dunn. 11 The ruling To summarize, the board must, with regard to each piece of evidence in dispute, determine whether in each case it would have been obvious to the witness that her testimony on the issue was being challenged. If it was not so obvious, it must be determined whether the union put to the witness questions under cross- examination which, whether directly challenging the truthfulness of the witness or not, clearly suggested to the witnesses that the union intended to contradict their testimony. Before I set out the rulings, I hasten to note that the mere fact that the grievor’s contradictory testimony is foreclosed on a given point by an application of the rule in Browne V. Dunn does not necessarily mean that the testimony of the employer’s witness which was not subjected to cross-examination will be accepted as the truth. While a particular witness’ testimony itself may remain uncontradicted, that witness may have credibility problems arising out of other testimony. In all cases, at the end of all of the evidence, I must still determine whether the allegations made by the witness have been proven on a balance of probabilities, which must include an assessment of that witness’ credibility. Now I turn to the particular objections that still remain in dispute. With regard to some of them the parties were not in agreement as to what exactly the testimony was. In other 12 cases they were unsure. The parties agreed that in all cases I ought to proceed on the basis of my own notes of the testimony on the points in issue. Employer witness, Mr. Kyle Higgins testified in chief that during a period of one to two hours during the shift in question the grievor asked him three times whether he would be able to get him some marijuana. The first time, Mr. Higgins told the grievor “its stupid, that I didn’t want to do it”. The second time the grievor asked, he said “I’ll see what I can do”. According to Mr. Higgins the grievor “kept at it”. When he asked a third time, Mr. Higgins said “OK”. The grievor told him the quantity of marijuana he wanted. Mr. Higgins told the grievor that he would need about $ 100. The grievor did a cash back on the register and gave Mr. Higgins $ 100. Shortly thereafter Mr. Higgins left on a 15 minute break, met an acquaintance at a Tim Hortons, made the purchase of marijuana and brought it back. The cross-examination was as follows: Q. Correct that he inquired from you about getting some marijuana? A. Yes. Q. It was an inquiry? A. He was asking me to get it. 13 Q. Your statement does not say he asked you to get it - did he threaten you with discipline if you didn’t get it? A. Definitely not. Q. You were doing him a favour. A. Yes. Q. You ultimately agreed to do it? A. Yes. Objections 1, 2 and 3 arose out of the above evidence. Objection 1 The grievor testified as follows: “That night I received a call from a friend - a lady suffering from a medical disease. She said her health and appetite was getting worse and asked if I can help her find some marijuana, that it will increase her appetite and help her gain some strength. Kyle and I got along well. So in passing, I told him that I got this call and asked if he knew anyone in the area who could fix me up with some marijuana. He said he’ll make a phone call and I said fine.” Objection 1 is that during cross-examination, it was not put to Mr. Higgins that the grievor told him about a call he had received from a lady friend. I note that Mr. Higgins did not testify one way or the other as to the reason why the grievor wanted marijuana, whether it was for the grievor’s own consumption or for someone else. There was no testimony from Mr. Higgins on that point. He was not asked whether he was told why the grievor wanted marijuana. 14 Therefore, I find that the testimony by the grievor does not contradict anything Mr. Higgins stated in testimony. It follows the rule does not apply. Objection 2 Mr. Higgins’ testimony set out above makes it clear that he was stating that the grievor wanted him to get the marijuana right away. The grievor therefore contradicted Mr. Higgins when he testified that Mr. Higgins asked him when he wanted the marijuana and that he told him “whenever”. The union has agreed that by its failure to suggest during cross-examination that the union would be contradicting Mr. Higgins’ testimony, the rule in Browne V. Dunn was violated. Other than submit that I can still receive the evidence despite the violation of the rule, counsel did not give any reason why I should not apply the rule. In the circumstances, objection 2 is upheld and the grievor’s evidence in that regard is struck from the record. Objection 3 This also relates to the grievor’s testimony that there was no time frame for the purchasing of marijuana. The union concedes that there is a violation of the rule here. I find this objection to be identical to objection 2 and my ruling is also the same. 15 Objection 4 This objection relates to the grievor’s testimony that he handed Mr. MacLennan and Ms. Urquhart a pamphlet on discrimination and harassment. My notes indicate that neither Mr. MacLennan nor Ms. Urquhart testified about what if any information they may have received from the grievor about discrimination and harassment. Therefore, there is no contradiction of their evidence so as to trigger the rule. Objection 7 During her testimony, Ms. Urquhart stated on two occasions that the grievor told her “you look like trash”. The only questions put to her on cross-examination on this issue were as follows: Q. You say in exhibit 8 that he told you “you look like trash”? A. Yes. Q. Did you tell him it was inappropriate? A. No. Q. Ever tell him that? A. No. Q. Ever tell him to stop? A. No. 16 The foregoing does not in any way suggest to Ms. Urquhart that the grievor will question her allegation. If anything it suggests that the union accepts that the grievor made the statement attributed to him, the only issue being Ms. Urquhart’s response to the statement. It is a clear violation of the rule and the grievor’s evidence in that regard is struck from the record. Objection 8 In a written statement filed as exhibit 4, Ms. Urquhart wrote that in front of a sales representative who was visiting the store the grievor handed her a “glow stick” and asked her what it was used for. She wrote that when she stated that she did not know, he said “Michelle might find use for this in different ways later.” Under oath, Ms. Urquhart confirmed that she wrote that statement. Ms. Urquhart was cross-examined as follows: Q. The glow stick allegation - do you realize that Mr. Cahill denies saying this? A. I believe he would. Q. Did you ever speak to him about this? A. No. Q. That it is inappropriate or that he should stop? A. No. Q. Or that you will grieve if he continues. 17 A. No. I did not. I find that while counsel did not exactly put to the witness that the grievor would be denying seeing the glow stick, his suggestion that the grievor would be denying the statement attributed to him sufficiently put Ms. Urquhart on notice that her allegation will be questioned. The rule does not bar the grievor’s evidence in this regard which was to the following effect: Q. Was there a sales rep in the store that day? A. I don’t recall. I have never seen that glow stick anyway. Q. Did you say that? A. I don’t recall Q. Do you recall any event similar to that? A. No. Very rarely reps came out to that store. Objection 9 In Ms. Urquhart’s statement (Exhibit 4) she wrote: “He keeps talking about which women he was going to do today. If the one was not available that afternoon, that he had another one for later”. She was not cross-examined on that part of the statement at all. During his testimony following his testimony on the glow stick incident as set out above under objection 8, union counsel asked the grievor “Do you recall saying any of hose things here (Exhibit 4)”? The grievor replied “No I wasn’t associating 18 with anyone when I was out there. I go to work and get back to my hotel.” The grievor was then asked to read the part of Ms. Urquhart’s statement in question, which he did. Counsel asked: “Do you recall making that comment at all”? and the grievor replied “No”. Union counsel submits that the grievor did not deny making that statement, but only stated that he did not recall saying that. Thus it is not a contradiction of Ms. Urquhart’s assertion that he stated that. It is possible, as employer counsel submits, that the grievor’s testimony can be interpreted as a denial. However, union counsel is in effect urging me to not treat it as a denial. I shall comply, which means that Ms. Urquhart’s evidence stands unchallenged and uncontradicted by the grievor’s testimony. In these circumstances, it is not necessary to exclude the grievor’s testimony by invoking the rule in Browne V. Dunn. Objections 10 and 11 These objections relate to the grievor’s testimony that he did not recall making the comments attributed to him by Ms. Urquhart in exhibits 6 and 7 respectively. My ruling in this regard is the same as that in regard to objection 9 above. 19 Objection 12 The grievor gave a completely different story as to the timing and circumstances in which the contractor’s crew arrived at the store, from the testimony of Mr. MacLennan and Mr. Scott Bertrand. The grievor’s testimony that the crew showed up at around 5:55 p.m. “When Cam was getting ready to leave” was contradictory of the employer witness’ evidence, and was not put to them. There is no reason not to apply the rule here. The grievor’s testimony in question is struck in that regard. Objection 13 In Mr. Scott Bertrand’s testimony it was clearly implied that the crew arrived in one van. The grievor’s contrary version that they arrived in two vans was not put to him during cross-examination. There is no reason not to apply the rule here and the grievor’s testimony in question is struck. Objection 14 This objection is about the same evidence as in objection 12 except that the grievor testified that the crew arrived at 6:00 p.m.. For the same reasons as in objection 12, my ruling is the same. 20 Objection 17 Mr. Bertrand testified in chief that he personally had “3 shots” of Fireball that night and that the grievor and the other crew member also had three shots each. He testified that they had the shots in “little taste testers” that the LCBO had in the back. In cross examination the following ensued: Q. You said each had three shots of Fireball? A. Yes. Q. What did you pour out of? A. A mickey. Q. How big was the mickey? A. About 10 shots in it. Q. You saw it? A. Yes. Q. It was clearly marked “fireball”? A. Yes. Q. That is interesting - because I am told Fireball does not come in a mickey? A. The first time I heard that. During his testimony the grievor testified that the Fireball they consumed that night was a 200 ml bottle. Although the exact size of the bottle was not put to Mr. Bertrand, union counsel questioned the evidence that the bottle was a mickey. In any event the grievor’s evidence that it was a “200 ml bottle” is not contradictory of Mr. Bertrand’s testimony that it 21 was a mickey. The rule in Browne v. Dunn has no application in the circumstances. Objection 18 The objection is to the grievor’s evidence that Mr. Hutt left because his 13 year old daughter called that she was alone at home, which was not put to Mr. Scott Bertrand during cross- examination. Mr. Bertrand had testified that Mr. Hutt left early because “he had too much to drink”. He was cross-examined as follows: Q. You said Ron left because he was too drunk? A. Yes. Q. Did you know that he had another job next morning at Upper Canada Village? A. No. Q. That that’s why he left? A. No. He has cancer and takes some medicine. He said that alcohol affects him more. Q. He said that to you? A. Yes. The important issue between the parties was not whether Mr. Hutt left because of a call from his daughter or because he had another job the next day. It was about the amount of alcohol consumed by that time. Union counsel sufficiently put 22 Mr. Bertrand on notice that the union was questioning that Mr. Hutt had consumed alcohol to a level of intoxication as Mr. Bertrand had suggested. The rule in Browne v. Dunn therefore does not apply. Objection 19 The objection is to the grievor’s evidence that around 11:30 p.m. the helper was to go with Mr. Hutt but decided to stay with his friend. It is pointed out that this was not put to Mr. Scott Bertrand. A review of the evidence indicates that Mr. Scott Bertrand’s testimony did not touch upon the issue as to when the helper was to leave, or why he stayed. The challenged evidence does not contradict anything Mr. Bertrand said during his testimony. Therefore the rule does not apply. Objection 24 The evidence objected to is as follows. After the grievor had identified the Notice of Intended Discipline (Tab 24) and his response to it (Tab 25) he was asked: Q. When did you next hear about this? A. There was a meeting scheduled. It was cancelled and rescheduled with inappropriate communication. Ms. Urquhart and Mr. MacLellan were interviewed. I was aware of the meeting, 23 but I didn’t get to it because arrangements were not made to cover for me at the store. So it never took place. Employer counsel points out that that evidence was not put to Mr. Wood, Ms. Urquhart or Mr. MacLennan during their cross-examinations. A review of my notes does not indicate that the objected to evidence contradicts any evidence offered by Mr. Wood, Ms. Urquhart or Mr. Maclennan. None of them testified in any manner about the meetings cancelled or rescheduled or about the grievor attending or not attending any meeting. The rule in Brown v. Dunn has no application. Objection 29 During his testimony the grievor testified that at the prediscipline meeting in question, he was asked about the NOIDS. When asked what his response was, the grievor testified:“I said I didn’t deny anything. I still don’t”. Then he told his counsel that he was “drawing a blank” about the meeting. Counsel requested a 5 minute recess and it was granted. Upon resumption, the following ensued: Q. So what happened at that meeting? 24 A. I went in and basically informed that I have made some mistakes in life and paid a penalty to society. I was incarcerated, no work, problems with the family - that I learned a lot from my mistakes and that I am trying to pick up the pieces and carry on. Q. Did you specifically respond to the allegations in the NOIDS! A. No. It wasn’t brought up. I just said I made mistakes and wanted restitution for myself. Objection 29 is about the evidence relating to the grievor admitting mistakes, paying a penalty to society and having learned from his mistakes, suggesting that he demonstrated some remorse at the meeting, because that was not put to Mr. Wood during his cross-examination. I have satisfied myself that Mr. Wood was not asked, and did not indicate directly or impliedly, during his testimony or in his notes of the meeting, whether or not the grievor showed any remorse. Therefore, the grievor’s testimony is not contradictory of Mr. Wood’s testimony. Therefore, the rule has no application. Objection 30 25 This objection relates to the last question and answer in the grievor’s testimony set out under objection 29 above - that the NOIDS were not raised at the meeting. Filed in evidence was exhibit 27, Mr. Woods’ notes from that meeting. The document had a number of questions typed in advance, with space for the grievor’s answers. In his testimony, Mr. Woods confirmed that those questions were put to the grievor at the meeting. The document included questions about “the July 9th NOID” relating to alleged inappropriate comments to a female employee at the Morrisburg Store, and about the “August 11th NOID” regarding “your actions while supervising Briteway Building Maintenance Crew” at the Morrisburg Store. Under each question the grievor was asked if he had any further information to add. About the July 9the Noid Mr. Woods’ notes indicate that the grievor replied that he had no further information. About the August 11th NOID, detailed hand-written notes are set out in Mr. Wood’s hand purporting to be the grievor’s response. Mr. Woods specifically testified that the questions were asked and that the grievor responded as indicated in his notes. Under cross-examination the meeting was touched upon only to the extent that counsel, after having questioned him about the allegations in the NOIDS asked “this was brought up 26 face to face with Pat on November 10th?” and Mr. Woods replied “yes. I asked if he had any more information and he said no. It was a pre-discipline meeting”. If anything this cross-examination confirms Mr. Woods’ evidence that the NOIDs were brought up at that meeting. I have noted above, at first the grievor stated in cross-examination that he was asked about the NOIDS. Then subsequently he testified that “it wasn’t brought up”. To the extent that the grievor was contradicting Mr. Woods’ evidence and his own prior evidence that the NOIDS were brought up at the meeting, it is a clear violation of the rule in Browne V. Dunn. That aspect of the grievor’s evidence, therefore, will be excluded. The evidence in chief of the grievor will be excluded as indicated above. Where I have declined to exclude his evidence, it is open for employer to call reply evidence in accordance with the normal rules governing reply evidence. 27 The hearing will continue on the dates scheduled. Dated this 21st day of March, 2005 at Toronto, Ontario Nimal V. Dissanayake Vice-Chairperson