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HomeMy WebLinkAbout1992-3352.Lounds.94-10-11ONTARIO -- J EMPLOYEES EMPLOY& DE LA COURONh’E DE L’ONTARD IEVANCE [SETTLEMENT .C~MMISSIObi-DE REGLEMENT IOARD i DES GRIEFS 180 ~&f&AS STREET WEST, SUlTE2700, TOP-ONTO, ONTARD MS0 lZ8 180, RUE 0~~0~s OUEST. BUREAU 2100, TORONTO (ONTARIO~. MSG 1z8 ,.A TELE~HO~JE~~&H~N.E: (4 161 326- 1388 F: FACSiMILEfT~LkOPlE : ‘,. (4 16) 326- 1396 3352/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before. . . BETWEEN THE GRIEVANCE SETTLEMENT BOARD QLBEU (Lbunds) Grievor .! - ) -, * and - ,,, ;; : -'. The Crown in Right of Ontario .' iLiquor License Board of Ontario)' ' . '.. >;:' , !. .-. r*- : _ -.?j ; i . . . . : ,Fmployer _. . ; %. _' . ')I,. . .- ,'tiBFORE % ;: :. W; Kaplan. :,. , '_ 'Vice-Chairperson _. . . GRIEVOR .-,vt" ,+unsel ;>._. ,. : e,'i..; . Koski&. ' &. .Minsky . . __. i.. '1 "', T '. ., 'I i' ' :-BarrisFers 61' Solicitors , ' . 1 ::, _ 2 .. ; . . :. > FOR TEE S..Shamie EMPLOYER Counsel '. * Hicks Morley Hamilton StewarC Storie Batiristers & Solicitors HEARING ,May 13,'1994 June 9, 1994 .-.August 5, 8, 12, 1994 -,September 8, 9, 30, 1994 I .' . , i _, .P - - ..-. F . .’ 2 : Introduction This case concerns the suspension - 2 -- : __ .;_ &. - .^ _. _. 1,. and -subsequent termination of Harold Lounds, .an Inspector formerly employed by the Liquor License Board of Ontario. At the cenclusion ofthe employer’s case, but before the beginning of the union’s case, employer counsel raised an objection with respect to -.. certain evidence that he anticipated would be led by the union., I was asked to deal with this motion on an expedited basis as the next scheduled day of hearing was less than two weeks away. The essential facts underlying this particular matter are not in dispute. One of the witnesses called by the employer was not cross-examined with respect. to a particular. issue; namely, the time at which. he met with the ‘- grievor qn June 2, 1992 To make a long story short - and the details will be set out in. my final award .^ - Mr. Kevin Donovan, a Toronto Starreporter, testified that on June 2, 1992 he met with the, grievor, and anotherStar. +-” .-.< *i’-.: >,“’ reporter, Mr., Mascoll, between 1 :l 5 and 1 :-SC) p:m. $r.-. Donova&&iitten I,, - .’ record of that meeting, prepared at approximately%00 p.m. that same day, also records the meeting to have taken place at this time. This meeting is one of the critical events in ,this case for it is the. employer’s position that the grievor accepted a $500 bribe at this meeting. Just before closing its - case, a document was introduced thro’ugh an empl:oyer witness. This document, a time sheet ‘yrepared by the grievor; ‘indicates that on .the day in question he took lunch between 12:OS. and 12:35 p.m. and then spent ten - minutes in his car traveling to Max’s Cafe where he ,conducted an inspection between 12:45 and 1:30. The time sheet further indicates that the grievoi then spent 30 minutes traveling to Head Office c - The Employer’s Motion ._ . . Employer counsel took the position that the rule in Brow& v. Dunn, (1893) 6 . R. 6, precludes the grievor from testifying that the June’ 2, 1992 meeting took place at some other time-than that testified to by Mr:Donovan. Put another way, it was employer counsel’s submission that the rule in Browne v. Dunn required counsel to put the grievor’s. version of events’ to the’ _- witness and, in that way, to draw his attention to the differences in the two versions in order to provide him with an opportunity to refute the grievor’s version or to provide some explanation with respect to it:? In t.hat union -counsel had notcomplied with this rule, the .emp!oyer took. the .- position L that.. the proper; application of the rule precluded. counsel‘ and, the -. grievor from now- asserting a:.different version of events, and;.;in. the 4 / alternative; even if there was. some discretion with ‘respect tothe admissibility z of. this evidence, that I should, .-in ‘all the circumstances of ,. . -..thiscase,. exercise my discretion so as to preclude the subsequent .I- asse.rtion of the contrary account. In support of this position, employer counsel referred to a number of other-cases including Crown in Rioht of Ontario (Ministrv of Transportation and Communications) and OPSEU 1.9 L.A.C. (3d) 161 (Delisle), Goodyear Tire and Rubber Co. of Canada and United Rubber Workers, Local 232 11 L.A.C. (2d) 161 (Adams) Karuma.nchiri v. Ontario (Liauor Control Board1 8 C.H.R.R. 4076-and Ontario (Liauor Control Board v. Ontario) v. (Human Riahts Commission) 9 C.H.R.R. 4868 (unreported judgement of the Divisional Court). In reviewing these authorities counsel made a number of submissions. First, that the requirements of the rule had not-been met. SecondJhat ‘where. credibility is in issue the rule should be applied with the’.utmost strictness. Third, that union counsel was aware of the rule-.and- that the grievor and the union were, at the time of Mr. Donovan’s cross-examination, in a position to, .provide counsel with, appropriate instructions. And fourth, - that. the. whole purpose of the rule in Browne v; Dunn was .to insure that parties to a civil action did not change. or modify, their version of .events so as to take into account other evidence adduced during the course of the proceeding. Accordingly, and for. all of these reasons, counsel requested that its motion be .granted. Union Submissions ‘.! :. ‘I IJnion. counsel began his...submissions by pointing:.out that the:“rule” in . . : -Browne 7.v. -,Dunn was not anabsolute rule, *-and that there wasnothing i - precluding me from exercising my statutory discretion ,to. admit evidence that might be 4nadmissible in a court of law: Union counsel referred to a number- of .authorities. during the course of his-submissions. including ‘. Marchadov. Berlet et al 57 O.R. (Zd? 297 (High’ Court of Justice), John Clark ) [199?] OLRB Reports 598.(Knoph), J. Sousa [1988] OLRB Reports 4027 i (Surdykowski) and Palmer and Palmer v. The Queen 106 D.L.R. (3d) 212 (SCC). ‘. I Union counsel also referred to two texts: Mewett, Witnesses and Sopinka- et al, The Law ‘of Evidence in Canada. Turning to the matter of the employer’s motion, counsel argued that it would be unfair and improper’to impose the rule in this particular case. Counsel noted that although the events under review took place more than two years ago, the grievor has consistently maintained the position that he met with Mr. Donovan and the other Star reporter during his lunch hour. The grievor was not, .however, in a position to pinpoint the exact time of the . . . meeting because, within days of the: reporting of the. alleged bribe, all of his records were seized by the LLBO. (Apparently, the time sheet in - 5 question had been earlier submitted to the LLBO by the grievor.) It was, only after’ Mr. Donovan testified that the union was provided with a copy of the grievor’s time sheet, and by that-point it was, of.course, too late to cross-examine him with respect to the timing of .the June- 2nd meeting. Counsel further noted that. the timing of this meeting was never put in issue during the grievor’s criminal trial. ‘The grievor knew that he met with Mr. Donovan and Mr. Mascoll during the lunch hour;but he could not recall, ! ’ after more than two years,: when exactly that meeting took place. Moreover, given the nature of the grievor’s work; he took his lunch at different times ,:land :..this made it evenmore difficult. for ‘him to recall ,wh,en exactly.I.he took -._, --..~i-‘- his lunch on a Iparticular.j day.~. There, was no. reason, therefore, to instruct counsel to’ crossiexamine~. Mr. Donovanwith respect, to his evidence ,about the.:exact timing of the: meeting.. Counsel pointed ‘out. that Mr. Mascoll, who ’ testified after the a copy of the time sheet was provided to the union, was cross-examined on this point. In all of these circumstances the union took the position that it would not be proper to apply the rule in .Browne v. Dunn for to do so would be completely unfair to both the union and the grievor. Counsel also pointed out that the rule in Browne v. Dunn was generally applied in those cases where a party was in possession of the contrary information at--the time a. witness was giving evidence but choose, for one reason or another, not to cross-examine the witness with respect to it. That was not this case, nor was there, in the union’s submission, any unfairness to the employer in the grievor asserting his version of events. The employer could, if it wished, call Mr.. Donovan in reply. Accordingly,. and for the foregoing reasons, union counsel- asked : that the employer’s -motion -be dismissed. -- / ‘j , .I i Emolover Reply. 6 .: : : ,I In: reply; employer counsel took the position that .Mr..,Donovan .had: completed ._ his evidence, .and that the employer did not intend to call him. in?eply,- nor . should. it have to call him in reply. to respond to some contrary&sertion of the .grievor. Counsel also pointed out that various. records, including the grievor’s time sheet, were made available to the union as they ,became available to the employer. Indeed, in counsel’s submission, the employer was not even obliged to.make the time sheets available to the union, and could i have waited. until the..grievor ‘testified,to tender them. Accordingly, .’ + there .,.tias no, basis;,. co.unsel) argued, for the union’s submission, that it -was ‘. _. -3 : .i somehow precluded &from cross-examining Mr$Donovan ‘on’ ithis issue. . Union ._ . . counsel. had cross-examined..Mr:^Donovan at, length and could have,, had.. he Y. -wished, tquestioned him about the timing ;of: the:&rne 2nd: meeting;. ,.Employer ‘, counsel ‘again’ asked thathis motion be granted:? I . -: :: _:: -: , * I : ‘- - -_ Decision Having carefully considered the submissions of the parties, I am of the view that the employer’s motion should be dismissed. 1 This is a very important case. Serious allegations have been made. A criminal trial has taken place, and this hearing. has .been proceeding over the course of several months. At the end of the day, I will be called upon to : make findings involving credibility for this case will ultimately- turn on who I believe. Given the importance of credibility in reaching the ultimate . . result, a strong case can be made for strict adherence to the. rule in Browne v. Dunn. As Lord Halsbury wrote in that case: “To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given,‘30 as to give them notice, and to give them an 7 i / opportunity of explanation, and an opportunity very often to defend their ‘. *own character, and not having giventhemsuch an opportunity, to ask the .jury afterwards to disbelieve what they have said, although not one :. question has been directed either to their credit or to the accuracy of the ~facts they1 have deposed to” (at 76-7). For this and other reasons;the rule in Browne v. Dunn ‘is often applied in the, labour relations context and the rule is one of general application. I : .- .- However, ,it is well established that boards of arbitration such as this one .‘:I: , {are: not bound by the ‘strict. rules of evidence. -And, even assuming forthe, ._ . . ‘. sake,&argument that the “rule” in ,Browne.v.:’ Dunn isa rulethat must be , applied,.: I:“am- of the.view that some flexibility must be -exercised in its . &~application and that this is- a case requiring. a flexible approach. -The events nowsubject Ito review& took place several years ago. Nevertheless, the : . ..grievor.has’.iconsistently maintained .that the June 2nd meeting took place over theccourse of the\.lunch hour. When Mr.‘Donovan. testified the union did not have the benefit of reviewing the grievor’s time sheet. As soon as a copy of that sheet was made available to the union, union counsel cross-examined Mr. Mascoll with respect to the timing of the meeting; This is not a case where the union, “hid in the bushes” and then attempted to impeach the credibility of a witness by offering a differing account after the witness had completed his evidence. This is not an instance - at least there is no evidence indicating as much at this time - of an interested party changing his or her story so as to take into account evidence which has been adduced. If there was any evidence indicating as much there is no doubt but that the rule would be properly applied. In’this particular instance, however, the evidence does not support this assertion, and it is noteworthy ‘_ . that as soon as the union was in a position to do so it cross-examined an ‘- 8. I i ‘\ . employer witness on this issue. .And this is not a case where allowing: the grievor to give evidence about the timing of the lunch which is contrary to ‘i that provided by Mr. Donovan, will ‘result in some irreparable .harm to the _ : ! . . : employer’s case. F/rst of all, this. is just one fact among many going to the .,‘. credibility of the parties to this proceeding. And secondly, the employer .- -. .can,; if it wishes, recall Mr. Donovan to give evidence on this point; As has been acknowledged in case after case, the .purpose of the rule in :-Browne v. Dunn is to achieve. fairness. To strictly .apply the rule in. this - case’ however, would *have the opposite:resultand:might indeed. result in an -.’ injustice to i the, union, and& the:-grjevor. Moreover; when oneiconsiders the r circumstances in which the.:-rule was.“breached,Yand the ,fact. thatany +’ #I :., “brea’ch”. can. becorrected in reply, one can ,only. conclude that the: employer’s ” ‘I motion ‘should..be dismissed.- Employer counsel can; if he wishes,?call Mr. -. Donovan in reply, and, if he chooses to-do so; he,,will be given -appropriate latitude to examine him as to the timing of the VJune. 2nd meeting. .I.. DATED at Toronto this 11 th day of October 1994. PF ‘. / 1 ---7 ---_I-- William Kaplan Vice-Chairperson -“- ._ ,: - _ _ ..- . _ _i .- .- __