Loading...
HomeMy WebLinkAbout1988-0813.Kowal.89-12-21..~ .i 'i ?'" '~ ,:., ONTARIO EMPLOY£S DE LA COURONNE · ~ , ... CROWN EMPLOYEES DE L*ONTARtO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS l&O DUNDAS STREET WEST, TORONTO, ONTARtO. MSG IZ$. SUIT£ 2~00 TELEPHCNE/T~L~PHONE 180. RUE OUNOAS OUE$ ~ TORONTO. ,[ONTARIO) MSG ;~ Z$ · BUREA. U 2~00 t4 t§) 598-0~88 813/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN' EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: 0PSEU (Donald Kowal) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer Before: R.L. Verity vice-Chairperson M. Lyons Member. F. Co!lict Member For the GrieVor: L. Rothstein Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: J.' Zarudny Counsel Crown Law Office Ministry of the Attorney General Hearings: October 25, 1989 October 26, 1989 November 18, 1989 INTERIM DECISION On July 28, 1988,. Donald Kowal was discharged from his employvaent as a Staff Pharmacist at the Kingston Psychiatric Hospital. The dismissal arises as a result o.f a serious allegation by the hospital's then Acting Administratorj W.A. Barnett, that on April 6, 1988 the Grievor "deliberately switched medications while working within the confines of the Pharmacy Department". In a grievance filed, Mr. Kowal alleges dismissal without just cause contrary to s. 18 (2) of The Crown Employees Collective Bar~ainin~ Act~ R.S.O. I980, c. 108. The relief sought is reinstatement with full remedial redress. The matter proceeded to arbitration before The Grievance Settlement Board under s. 19 (1) of the Ac___~t. Subsequently, the present panel was assigned to decide the matter~ Mary V. Quick appeared as counsel for the Employer and Peter Lukasiewicz as counsel for the Grievor. Hearings were held in Toronto on April 26 and 28, 1989 and in Kingston on October 18 and 19. 'At the conclusion of the hearing on Thursday, October 19, the Employer had completed the presentation of its case in chief. Further hearing dates had been previously scheduled for~ October 23 in Kingston and October 24, 25, 26 in Toronto. On Friday, October 20, 1989, Michael M. Fleishman, counsel for the Ministry of the Attorney General,'" wrote and had delivered the following letter to Grievance Settlement Board Chairman Owen Shime, Q.C.: Please be advised that counsel to the employer in the within grievance shall bring a motion before the Board when it next convenes fo~ an order disgualif¥ing the panel from prooeeding with the hearing of this grievance. The employer's counsel is of the opinion that 'as a result of activities engaged in by union counsel and the panel members on the evening of Wednesday October 18th last there exists a reasonable apprehension of the~ panel members being biased. As this matter was to reconvene in Toronto on Tuesday October 24th and as the employer's counsel requires an opportunity to brief its counsel the employer is. hereby requesting an ad3ournment of the proceedings currently scheduled for Monday October, 23 in Kingston. ._ The panel was unaware of either the letter or the Employer's concern until the hearing reconvened in Kingston on Monday, October 23, On that date, John Zarudny appeared on behalf of the Employer and produced~a copy of the letter sent to Mr. Shime. The panel advised counsel that it viewed the written allegation as a serious matter and would not proceed to hear the merits of the grievance, prior to-.a resolution of the Employer's concern. At Mr. Zarudny's request, the panel agreed that the parties meet privately to attempt to resolve the concern. However, on the morning of Tuesday, October 24, Mr. Zarudny advised the Vice- Chair that the issue remained unresolved and that he would proceed by bringing a formal'motion before the panel in Toronto on Wednesday, October 25. For a panel to entertain a motion calling for an Order to disqualify itself on grounds of reasonable apprehension 6f bias is a matter of great delicacy and difficulty. However, the- motion once brought left the Board no choice but to rule on the motion. Furthermore, in the event of a judicial review, it owed a duty to the Court to state the grounds. Accordingly, we must deal with the motion on its merits. The issue is whether or not, in the particular circumstances of this case, there exists a reasonable apprehension of bias. The motion was heard in Toronto over a three day period, Mr, Zarudny appeared as counsel for the Employer and Linda Rothstein as counsel for the Union, At the outset~ Mr, Zarudny assured the panel tha.t there was no allegation of actual bias against any panel member. The grounds for the motion arise from two separate incidents which took place in Kingston on Wednesday, October 18~ 1989. The prima~y incident occurred in the.evening at which time Union counsel, Peter Lukasiewicz, had dinner with the full panel at a local restaurant in. the absence of counsel for the employer, Mary Quick. The second incident occurred during a recess in the afternoon session when Union counsel Lukasiewicz was observed having a private conversation with the Vice-Chair in a public area adjacent to the hearing room at the Kingston Holiday Inn. In support of the motion, Mary Quick and Kingston Psychiatric Hospital personnel officer, Jamie Belch, testified on behalf of the Employer. Peter Lukasiewicz gave evidence for the Union. In addition, the Union called former G.S,B. Vice-Chair Kenneth Swan to testify, as a representative arbitrator, as to the practice and propriety of social interaction between arbitrators with counsel for one party in the absence and without the knowledge or consent of opposin~ counsel. Essentially there is no real dispute on the facts of either incident. Further, there is no issue as to credibility. The material facts can be briefly summarized: Incident # .1 1. Following the hearing .in Kingston on Wednesday, October I8, 1989, Union panel member Lyons and Union counsel Lukasiewicz discussed having dinner together. No definite plans were made. Subsequently, Employer panel member Fred Col.lict spoke with Lyons and advised him that he, Collict, was having dinner with the Vice- Chair at Minos Restaurant at 7:00 p.m. and invited Lyons to .loin them. Lyons explained that he expected to have dinner with Peter Lukasiewicz. Them two members a~reed that Luka~iewicz should join the panel for dinner. Between 6:00 - 6:30 p,m,, Lyons and Lukasiewicz spoke by telephone and Lukasiewicz was ingited to join the full panel for dinner. 3. The Vice-Chair was unaware that a dinner invitation had been extended to Union counsel, At approximately 7:00 .p.m, or shortly before, he encountered Lukasiewicz outside the Holiday Inn and the latter advised the Vice-Chair of the dinner invitation. They then walked the short distance from the Holiday Inn to the Howard Johnson Hotel. 4. The Vice-Chair and Lukasiewicz met Collict outside the Howar~ Johnson Hotel. The three then proceeded into the hotel lobby and obserQed Michael Lyons in the restaurant having a conversation with Mary Quick who was seated at a table facing the lobby. 5. The Vice-Chair proceeded to Mrs. Quick's table. According to Mary Quick's evidence, the Vice-Chair apologized for the fact that she had not been invited for dinner and asked if she would join the panel and Mr. Lukasiewicz. Mrs. Quick explained that she had already eaten dinner but "might" join them later for a drink. The panel members and Mr. Lukasiewicz proceeded across the street to Minos Restaurant for dinner arriving at .approximately ?:05 - 7:10 p.m. 7. According to Mr. Lukasiewicz's evidence, the Board engaged 'in n6rmal social conversation during the dinner on a broad range of topics all unrelated to the hearing. 8. At approximately 8:15 p.m. Mary Quick arrived at the restaurant, sat~ down at the table with the panel and Union counsel, had a glass of wine and fully participated in a wide range of social conversation. She acknowledged that there was no discussion about the Kowal case. l'~ 9. Peter Lukasiewicz left the restaurant at approximately 8:25 p.m. in order to meet the Grievor at the Holiday Inn at 8:30 p.m. Mrs. Quick remained with the panel members until the~ all left the restaurant together shortly after 9:00 According to Mrs. Quick"s evidence, she was "shocked" and "dumbfounded" at the propriety of the Board's conduct in having dinner alone with Union counsel. Mrs. Quick testified that after the Board left for dinner she attempted, without success, on three separate occasions to get legal advice from Toronto counsel. She did not share her concerns with either Mr, Lukasiewicz or with the panel at'any time on Wednesday,' October 18 or on the followin~ day when the hearing resumed. However, Mrs. Quick articulated those concerns to her advisor, Jamie Belch, durinz a break in 'the proceedings on Thursday morning. According to Mr. Belch's evidence, Mrs. Quick said words to the effect: Don't you think its odd or strange that the panel' had dinner last night with Peter Lukasiewicz? Mr. Belch testified that Mrs, Quick appeared "*visibly upset". - Mrs. Quick's concern appears to have triggered in the mind of Mr. Belch, incident number 2, which he recalled having observed on the prior hearing day on October !8. Incident # 2 1. During a hearing recess on the afternoon of Wednesday October 18, Jamie Belch observed Union counsel approach and speak privately with the Vice-Chair in a public area outside the hearing room. 2. Mr. Belch testified that he placed no significance to that incident and saw nothing wrong at the time until his conversation with Mary Quick on the morning of Thursday, October 19. 3. ~_ In his testimony, Peter Lukasiewicz acknowledged that Mr. Belch~s recollection was accurate and that he had engaged the Vice-Chair in a social conversation which was totally unrelated to the proceeding before the panel and which lasted "in excess of 5 minutes". Mr. Lukasiewicz testified that, "on numerous occasions" in the absence of opposing counsel, he had engage~ in social interaction with several Grievance Settlement Board Vice-Chairs in travelling to and from out of town hearings, and with various panel members in a variety of settings in Toronto including the hearing room, coffee shops, ~allways adjacent to the hearing room, and public washrooms. He stated that he did not feel the necessity to seek the consent of opposing counsel to speak with a 10 Vice-Chair in social conversations. Mr. Lukas.iewicz testified that he had never spoken with a Vice-Chair concerning a case in progress. Kenneth Swan, a former Vice-Chair of the G.S.B., was contacted by the Union and was asked to attend the hearing. Mr. Swan indicated his discomfort in appearing on behalf of either party and stated that he was prepared to be a voluntary Board witness, if so requested. The panel declined Mr. Swan*s suggestion. Subs.equently at his request, the Union served him with a subpoena. Mr. Zarudn¥ objected to the issuance of the subpoena and moved to set it aside under s. 49 of The Crown Employees Collective Bargainin~ Act. That section reads: "No Chairman, Vice-Chairman or member of the Tribunal or of a board or the Grievance Se.ttlement Board and no person appointed thereby shall be required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of his duties under this Act." After hearing submissions, the Board ruled that there was nothing in s. 49 of the Ac___~t to prohibit the testimony of Mr, Swan~ Kenneth Swan was a Vice-Chair of the Grievance Settlement Board from 1976 until he resigned from that position in September 1988. He is a former Professor of LaboUr Rela~f'~ns at Queen's University from 1973 to 1982. Currently, he serves as President of the Ontario Labour-Management Arbitrators' Association and carries on an active practice in civil litigation, constitutional law and private labour arbitrations. Mr. Zarudny candidly acknowledged that Mr. Swan was an expert witness, Mr, Swan testified that as Vice-Chair of the Grievance Settlement Board, during the course of hearings he had spoken to one counsel in the absence and without the knowledge or consent of the other "in a broad range of circumstances and on any number of occasions". The range of discussions varied from very general questions on the hearing itself (i.e. how much longer do you expect your. witness to be? and. do you think you will finish today?) to children~ mutual friends and who won the ball game last night. Mr. Swan testified that these conversations would vary in length from "a quick chat" to "up to an hour during a break in the hearing", The settings for such conversations would include the adjacent hallways, coffee shops and the men's washroom. Mr. Swan could not recall having travelled out of Toronto on a Grievance Settlement Board case. However,~ he does conduct arbitrations out of . town on a weekly basis. Mr. Swan testified that "on innumerable occasions" while out of town and in the course of a hearing, he has had "social contacts" with one counsel without the knowledge or consent of the other counsel, including dinner and drinks. From his experience, such social interaction is common practice for Arbitrators whether appointed under statutory authority or chosen .in consensual arbitrations. In Mr. Swan's opinion, such contacts are entirely proper in the absence of any discourtesy or attempt to conceal or any impropriety as, for example, any discussion of a case in progress. Ms. Rothstein posed three hypothetical fact situations to this witness. By way of brief submission, Mr. Zarudny contended that the Ministry client, Hospital Administrator Barnett, had formed an "unfortunate apprehension" of bias and that the panel should disqualify itself to alleviate that apprehension. He contended that if the panel disqualified itself it would enhance its integrity and perceived impartiality. The thrust of this argument was that a panel must scrupulously avoid any form of social contact during the course of a hearing. Mr. Zarudny contended that Arbitrator Swan's evidence was irrelevant. In the alternative, if it was relevant,- it did not assist in this matter. Further, he cited his client's right to proceed with an application for prohibition, if necessary. During argument, Mr, Zarudny adopted the position that the panel was not required' to know the law of reasonable apprehension of bias and accordingly submitted no legal authority. However, at the Board's request, the Employer did forward by courier the following authorities on November 21: Re Reid et al. and WiJle, (1980), 29 O.R. (2d) 633 (Ont, Div. Ct.); Re Dick and Attorney-General for Ontario (1973), 2 O.R. (2d) 313 (Ont. Div. Ct,); panforth Travel Centre Ltd. v. British Overseas Airways Corp. et al [1972] 3 O.R. 633 (Ont. H.C.J.); Re~ina v. Moor¢ Ex parte Brooks et 20.R. ' 239 (Ont. H.C,J.); Re~ina v. Ontario Labour Relations Board; Ex parte Hall [I963] 20.R. 239 (Ont. H.C0J.); and Th__~e Kin~ v. Sussex Justices [1924] ! K.B. 256, Counsel for the Union argued that the Board must make a decision based on a determination of facts in accordance with the law. Ms. Rothstein contended that it would be highly.improper for the Board to give weigh~ to a subjective apprehension of bias unless, as a matter of law, there was a reasonable apprehension. .She maintained that a relevant consideration is the p~actice before a particular tribunal and that . in the absence of any evidence to contradict Mr. Swan, his evidence must stand. It was submitted that the application could be determined solely on the evidence of Mrs. Quick and Mr. Lukasiewicz,. without regard to the expert evidence of Mr, S~an. The Union contended that the facts did not raise a reasonable apprehension of bias, In the event of doubt, it was argued that-the evidence of Mr. Swan clearly supports such a conclusion. In the alternative, Ms. Rothstein maintains that where, as in this case, one party fails to raise an alle~ation of this nature in a timely fashion, the party has waived or acquiesced in its right 'to do so. in support, the panel .was referred to the followin~ authorities: P.P.G. Industries Canada Ltd. et al v. The Attorney General of Canada [197S] 65 D.L.R. '(3d) 354 (SCO); Spencev. Spencer, Ch'airman of Board of Police Commissioners of City of Prince Albert et al. i1987) 2§ Admin. L.R. 90; Bateman v. McKayj Wallace, Zarzeczny and Attorne3_ General for . Saskatchewan [1976] 4 W.W.R. 129; Ghirardosi v. Minister of Highways {B,C.) (1966) 56 D.L.R. 469; Re Thompson and Local 1026 of The International Union of. Mine, Mill and Smelte~ Workers et.al (1962), 35 D.L.R. (2d) 333; Szilard v. Szasz [1955], 1D.L.R. 3?0; Committee for Justice and Liberty el al. v. National Energy Board [1976] 68 71~; Kane v. The Board of Governors of Universitz of British Columbia (1980), 110 D.L.R. (3d) 311; Re Marques et a~l'f v. Dylex Ltd. et al (I977), 81D.L.R. (3d) 554; Re Reid et al. and Wi~le, Supra,; Re Clark (1982), 38 O.R. (2d) 42~; and Re Laurentian University and Laurentian University Faculty Association (1988.), 35 L.A.C. (3d) 142 (Craven). No useful purpose can be served by any extensive review of the numerous authorities submitted. Suffice it to say that no case was cited in which the facts were similar to the instant matter. However it is useful, we think, to briefly set forth the position taken by Canadian Courts. The appropriate test as set out by Laskin C.J.C., is whether the facts complained of could give rise to "a reasonable apprehension..of..biased appraisal and judgement of the issues to be determined": Committee for Justice and Liberty v. National Energy Board, supra, at p.733. The test is an objective test based on a reasonable person with knowledge of the facts. In the Ontario Division Court Judgement of Osler J. in Re Clark, supra, at pp. 429-430, the following rationale was expressed: "-...The position to be taken by Canadian courts, however, has been last authoritatively settled by the Supreme Court of Canada in Committee for Justice and' Liberty et al. v. National E~er~y Board et al. [1978], 1 S.C.R. 369, 9 N.R. 115, 68 D.L.R. (3d) 716. There, as here, the court was not dealing with a~y allegation of actual bias but rather with one of apprehension. The appeal to the Supreme Court of Canada was from a decision of the Federal Court of Appeal Re Canadian Arctic Gas Pipeline Ltd. et' al. [1976] 2 F.C. 20, 65 D.L.R. (3d) 660 that the. chairman of a panel of the National Energy Board, hearing a particular application, should not be disqualified on grounds Of apprehended bias because of certain earlier participation in the affairs of one of the interested parties. The Federal Court of Appeal had stated that [at p. 667 D.L.R.]: It is true that all of the circumstances of the case, including the decisions in which Mr. Crowe participated as a member of a study group, might give rise in a very sensitive or scrupulous conscience to the uneasy suspicion that he might be unconsciously biased, and therefore should not serve. But that is not, we think, the test to apply in this case. It is, rather, what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he th£nk that it is more likely than 'not that Mr. Crowe, whether consciously or unconsciously, would not de~ide fairly? In allowing th~ appeal, we do not understand Chief Justice Laskin, for the majority, to have disapproved that language. After a full review of the facts Laskin C.J..C. stated as follows [at p. 391S.C.R.]: This Court in fixing' on the test of reasonable apprehension of bias, as in Ghirardosi v. Minister of Highways for British Columbia [(1966) S,C.R. 367] and again in Blanchette v. C.I.S. Ltd. [[1973] S.C.R. 833]~ .(where Pigeon J. said at p. 842-43, that "a reasonable apprehension that the judge might not act in an entirely impartial manner is ground for disqualification") was merely restating what Rand J. said in Szilard v. Szasz [[1955] S.C.R. 3], at pp. 6-7 in speaking of the "probability or reasoned suspicion of biased appraisal and judgment, unintended though it be" .... On the factual analysis'he had made, the Chief Justice, for the majority, came to the conclusion that, applying such a test, the proposed chairman should', in those circumstances, be disqualified..." Turning to the merits of the motion before us, we wish to emphasize that the issue was not one of actual bias but an allegation of reasonable apprehension of bias. In law,.bias in this case means a disposition of mind on the part of the panel towards a party to the proceeding. The issue is whether or not a reasonable person with full knowledge of the facts would conclude that there was a reasonable apprehension of bias on the part of the panel. In other words, it is an objective test. If the panel properly understands the law, the subjective view by one of the.parties is not the determining factor unless it coincides with the conclusion of a reasonable person · apprised of all the facts. Each case, or course, must be decided on its own particular facts. The Grievance Settlement Board is a statutory tribunal which serves a narrow range of clients and decides numerous cases, primarily in Toronto and, where appropriate, in outside locations. Essentially, there is one employer, the Government of Ontario and several independent agencies and with some five unions representing bargaining unit employees. 3n practice,- there is frequent communication between client groups and their representatives. Under s. 20(1) of the Crown Employees Collective Bargaining Act, the G'.S.B. is eom-posed of a chairman and several vice-chairs together with "an equal number .... of members representing the employees .... and members representing, the employer." Similarly, under -s. 20(5) of the ~ct, a quorum is defined as "the chairman or a vice-chairman, one member representative of employee interest'and one member representative of employer interest." However, it is useful to cite the 3udgement of }IcRuer C.J.H.C. in Re~ina v. Ontario Labour Relations Board; Ex parte Hal__l, supra, where he stated that members of a Board of Arbitration, in that case the Ontario Labour Relations Board, perform their duties as Board members and do not represent either the employer or the 'employee. At p. 243 Chief Justice McRuer adopted the position of Roach J. A. i'n .Re Ontario Labour Relations Board, Bradley et al. v. Canadian General Electric Ltd. (1957), 8 D.L.R. (2a) 65 at pp. 77-8, [1957] O.R. 316 (ONT. C.A.): I have heard it said t~hat the nominees of management and labour, on the Board "represent" one or the other. This may be an appropriate time to say that they "represent" neither. As members of the Board they are independent of both. They occupy a quasi- 3udicial position and in the discharge of their duties they must act judicially. Sitting in between them is an equally independent chairman ..... as between all the members there can be no gradations of independence. Each panel of the G.S.B. exercises quasi-judicial powers of decision, The standard'of arbitral conduct does not differ whethe~ an arbitration is constituted under ~tatutory authority or by consent of the parties. In each case, it is expected that panel members will act in good faith and in accordance with the rules of natural justice. The parties must be treated fairly and equally in all respects, By the same token, however, counsel have a duty to advise the panel promptly on any area of perceived sensitivity. / Given the narrow range of clients appearing before the G.S.B. there is frequent contact and more than passing acquaintance between panel, members and counsel who frequently appear before them. G.S.B. hearings take place in .special hearing rooms in Toronto or at various hotel locations, both inside and outside of Toronto, where there are no separate entrances or exits for panel members, The casual conversation between Union counsel Lukasiewicz and the Vice-Chair at the ,Kingston Holiday inn on the afternoon-of October 18, 1989 was in substance an exchange of pleasantries This conversation occurred during an afternoon recess and was not done in secret but took place openly in a large public area adjacent to the hearing room. On these facts, there is no basis for any reasonable apprehension o'f bias, However, it does not escape the attention of the pangi that it is the fact of the conversation rather than its substance that gives the matter significance. The panel is not unmindful of the fact that the dinner invitation to Union, counsel arose from a conversation, ho~ever casual, between panel members and a subsequent conversation between one member and Union counsel. If, as. it appears, there was a genuine apprehension of bias on the part of counsel for the Employer regarding the dinner invitation, subsequent events have neutralized it. A similar invitation was extended to Mary Quick and was accepted to the extent that she joined~the panel at the table, participated, in social conversation unrelated to the case and remained alone with' the p~nel for some 30 minutes after the departure of' Mr. Lukasiewicz. The panel has carefully weighed the cumulative significance of all the evidence and concludes that in these circumstances it is'not likely that anyone would con~ider there was ~ reasonable apprehension of bias. While all panel members are i~dependent in their function, given the composition of the panel with two members provided by the p~rties and a neutral vice-chair~ the frequent contact between counsel and panel members, the open nature of the invitation extended to Mrs. Quick and the fact of her subsequent participation, it seems to us a lon~ and unrealistic stride from the facts of this case to ~ conclusion of reasonable apprehension of bias. In our opinion, it is unnecessary to consider the Union's alternate argument of waiver or acquiesence. For the above reasons, the motion is dismissed'. Accordingly, the panel requests the G.S.B. Registrar to schedule five continuation dates to proceed with the hearing on the merits. DATED at Brantford, Ontario this 2l~ day. of December, t989.