HomeMy WebLinkAbout1989-0091.Baker et al.92-07-29 ONTA RIO EMPL OYeS DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTA RIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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IN THE MATTER OF AN 3tEBIT~ATION
Under
THE CRO~NEMPLOYEES COLLECTI1~E BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Baker et al)
Gr~evor
- a~-
The Crown in Right of Ontario
(Ministry of Labour)
Employer
BRFORE: W. Kaplan . Vice-Chairperson
J.C. Laniel Member
D. Walkinshaw Member
FOR T~ C. Wilke¥
GRIEVOR Counsel
Cornish, Roland
Barristers & Solicitors ·
FOR THE C. Slater
EMPLOYER Senior Counsel
Legal Services Branch
Management Board of Cabinet
HEA~ING November 19, 1990
January 21, 1991
Febrl/ary 4, 5, 1991
July 24, 25, 26, 1991
August 21, 22, 23, 1991
December 9, 13, 1991
· January 6, 7, 13, 14, 1992
February 3, 4, 1992
June 22, 25, 1992
2'
Introduction
This matter, involving numerous classification grievances filed by
Occupational Health and Safety Inspectors employed by the Mihistry of
Labour, first proceeded to a hearing on November 19, 1990. An attempt to
identify representative grievors failed, and six grievances were brought
forward by the union for hearing. At that time, the employer raised a
preliminary objection with respect to the one of these six grievances.
Following argument on this objection, the Board recessed and subsequently
issued reasons for decision on January 4, 1991. Many days of evidence in
these six cases followed. In the meantime, the parties agreed to
consolidate all the classification grievances filed by ail the Occupational
Health and Safety Inspectors in the province. There are now more than two
hundred classification grievances before the Board, all of which have been
consolidated with the instant case. Some date from 1988, some are
contemporaneous with the cases before the Board, and some were filed
after hearings in this matter commenced.
After eighteen days of evidence, union counsel began her argument on the
six individual cases which the union proceeded with first, and in the
process of that argument sought to file certain documents with the Board.
In particular, union counsel sought to table or introduce:
1. Ontario, Report of the Royal Commission on the
Health and Safety of Workers in Mines.(Toronto: Ministry
of the Attorney General, 1976) (Commissioner: James M.
Ham).
2. Ontario, Joint Federal-Provincial Inquiry
Commission into Safety in Mines and Mining Plants in
Ontario, Report: Towards Safe Production, vol. 1
(Toronto: Queen's Printer, 1980) (Commissioners: Kevin
M. Burkett, R. Peter Riggin, Keith E. Rothney).
3. Ontario, Advisory Council on Occupational Health
and Occupational Safety, Eighth Annual Report. Agril 1.
1985 to March 31. 1986, vol. 2 (Toronto: 1986).
4. Ontario, Report on the Admir3istration of the
Occupational Health and Safety Act, vol. 1, (G.G. McKenzie
and J.I. Laskin) (Toronto: January, 1987).
5. Ontario, The Response of the Minister of Labour to
the McKenz[e-Laskin Report on the Administration of the
fbccu,gational Health and Safety Act (Toronto: Queen's
Pdnter, January 1987).
6. Ontario, Ministry of Labour, Occupational Health ·
and Safety Division, Proposed action plan for the
im.olementation of thc r~commendations of the
McKen:,ie-Laskin Review (Toronto: Queen's Printer,
February 1987).
7. Victor Pakalnisl "Role of the Inspectorate in
Occupational Health and Safety" (Presentation to De Boo's
Critical Employment Issues Seminar, November 7, 1988)
(unpublished).
8. Michael Grossman, The Law of Occupation¢t Health
and Safety in Orl:tarig, (Toronto: Butterworths, 1988).
9. Ontario, Ministry of Labour, Annual Reports,
(1972-1981)
Document number 1, consisting of Selected extracts from the "Ham Report,"
was referred to first, and employer counsel made no objection to it.
Likewise, employer counsel made no objection to union counsel sketching
the legislative history of occupational health and safety legislation in her
comments which followed, However, when union counsel began to refer to
the other documents noted above, in order to outline the development of the
internal responsibility system, and then to link those changes to her
argument with respect to the inapplicability of the class standard,
employer counsel objected.
Indeed, counsel for the employer strenuously objected, and argued that it
would be impFoper and unfair to allow the union to file "evidence" after the
union had closed its case. The parties subsequently made lengthy and
detailed submissions on point, and this decision deals with our disposition
of the employer's objection.
Employer Argument
Counsel for the employer argued that with the exception of the selected
extracts from the Ham Report, with which he raised no objection when they
were first referred to by union counsel in her argument, the other materials
were improperly before the Board and could not be relied upon by the union.
The substance of counsel's objection was that these materials Constituted
"evidence," and that the Board cannot and shouid not accept evidence after
both sides had closed their case. To do so would be unfair to the employer
for it would be precluded from testing that evidence and providing its own
submissions with respect to the facts.
Counsel distinguished between the filing of cases and authorities with
respect to the law and the filing of materials for the purpose of putting
facts before the Board. Counsel had no objection to the former, but was
opposed to the latter. In counsel's submission, during the course of its
case, the union had called specific evidence with respect to the changing
nature of the duties and respons, ibilities of the six grievors, ft was at that
time that the union should have placed, if it wished, documentary materials
in support of its case before the Board. For whatever reason, the union, in
counsel's submission, chose not to do so and should be precluded from doing
so in argument. Counsel referred to two cases on point.
In Pfizer Co. Ltd. v. Deputy Minister of N~tional Revenue for Customs and
Excise (1975) 68 D.L.R. (3d) 9 (S.C.C.) the Supreme Court of Canada reviewed .
a decision of the Tariff Board: The Tariff Board had, among other things,
relied on two publications not tendered in evidence to assist it in
interpreting certain words. The Supreme Court found this to be contrary to
the rules of natural justice:
· Counsel for the appellant has pointed out that the two
publications there mentioned had not been put in
evidence nor referred to at the hearing, and took
exception to this procedure. In my view, the objection is
well founded. While the Board is authorized by statute to
obtain information otherwise than under the sanction of
an oath or affirmation ( Tariff Board Act, .R.S.'C. 1970, c.
T-l, ss. 5, 9), this does not authorize it to depart from
the rules of natural justice. It is clearly contrary to
those rules to rely on information obtained after the
hearing was completed without disclosing it to the
parties and giving them an opportunity to meet it (at 15).
Employer counsel argued that these same principles applied in the instant
case, and that it would likewise be contrary to the rules of natural justice
to allow the union to tender new evidence, thereby depriving the employer
of the opportunity to examine that evidence and call its own rebuttat
evidence.
Employer counsel also referred to the Supreme Court of Canada's decision in
Re Singh and Minister of E~ployment ~nd Immigration (1985) 17 D.L.R. (4th)
422 where Madam Justice Wilson found that the proceedings of the
Immigration Appeal Board were quasi-judicial and that that Board was
aCCordingly not "entitled to rely on material outside the record Which the
refugee claimant himself submitted on his application for redetermination"
(at 465). Counsel argued that the Grievance Settlement Board was also a
quasi-judicial tribunal and so should be similarly restricted in what
:.~
6
materials it relies upon i,n reaching its decision. Counsel also drew the
Board's attention to several provisions of the Crown I:m,ol~y~¢~ Collective
Bargaining Act, including sections 19(1) and 20(10).
Employer counsel concluded his submissions by arguing that not only was it
improper for the union to adduce the materials noted above during the
argument part of its case, but it would be similarly improper for the Board
to agree to any union request that it be allowed to reopen its case. Counsel
advised the Board that in previous cases the GSB has accepted the principle
that it has the jurisdiction to reopen a case. However, counsel argued that
this is not a proper case for the Board to exercise that discretion, and he
referred the Board to one authority on point: Re City of New Westminster
and City Firefighters' Union, Local 256 (1991) 18 L.A.C. (4th) 396 (Vickers).
In City of New Westminster, a job posting and cor~tract interpretation case,
the Board reviewed the principles and procedures to be applied in reopening
applications, and ultimately rejected the union's request that it be entitled
to re-open and adduce new evidence. The union request came after the
hearing had been completed, and after the Board had prepared and exchanged
a draft award. The employer objected to the union request on the basis that
the evidence sought to be introduced was available to the union at the time
of the hearing and so should have been called then. In determining to reject
the union request, the board reviewed the law and jurisprudence on point.
The board began with the observation that boards of arbitration were
empowered to reconvene proceedings to hear fresh evidence, and that this
was a matter for arbitral discretion. The Board continued with a review of
the law considered more generally:
The rules relating to the exercise of discretion are
canvassed by McLachlin J. (as she then was) in Mandzuk v.
Vieira; Insurance Corp. of British Columbia, Third Party
(1983), 43 B.C.L.R. 347, 34 C.P.C. 222 (S.C.). The
principles upon which the court's discretion will be
exercised under the Supreme Court Rules are enunciated
at p. 350 as follows:
(a) The rule is to be "'used sparingly, only if a
clearly meritorious case is made out and
where substantial injustice might otherwise
be done, as no doubt it is a rule easily
susceptible of abuse and liable, if too freely
applied, to serve as an encouragement to
carelessness": Turgeon J.A. in Kowalenko v.
Lewis and Lepine, [1921] 2 W.W.R. 504, 35
C.C.C. 224, 59 D.L.R. 333 (Sask. C.A.), cited in
C. LB.C. v.' MacKinnon supra.
(b) The rule is not designed to enable a party
to put his case twice, but rather to prevent
the claim being disposed of without
consideration of its merits; C. LB.C.v.
MacKinnon . supra.
(c) The rule should not be used to permit
'introduction of a substantial amount of new
evidence relating general!y to the issues of
the case; Swami v. Lo (1979), 15 B.C.L.R. 321
(S.C.). ft may be noted that rule uses the
word "fact" in the singular rather than
referring to the more compendious term
"evidence."
(d) The rule refers to proof of "some fact"'
omitted, not to proof of opinions. It does not
appear to permit reception after the trial of
opinion evidence.
(e) The court must be careful to avoid the
abuse to which the rule is susceptible. In
this connection, it is relevant to inquire into
the reasons for the failure to prove the
omitted fact at trial. While it is not J'
essential to establish that the failure to
tender the evidence at trial was the
consequence of an accidental slip or
oversight, such evidence counters the
possibility that the applicant deliberately or
heedlessly split his case thereby abusing the
process of the court.
The Board in City of New Westminster then went on to observe that' the
arbitral process should not be confined to a strict set of rules. Discretion
was key, and the Board cited a decision of the Ontario Labour Relations,
C.J.A. Lo(;.arL Ur~ion No. 494 (1962), 63 C.L.L.C. 16,260, where the OLRB
discussed some of the important policy considerations which should be
present in the exercise of that discretion:
While depending upon the circumstances of the case and
the applicable principles of natural justice, the Board
ought not to be as strict or as technical as a Court, it
might nevertheless, in our view, recognize the necessity
to apply some principles of finality to its decisions. It
stands to reason that when a party has gone through the
ordeal, expense and inconvenience of a hearing and
obtained a decision in his favour, that he should not be
deprived of the benefit of that decision except by good
cause. The board ought not to encourage a practice
whereby one party can remain silent throughout a
hearing, and after he has discovered the weak points in
his adversary's armour be permitted to exploit them by
calling evidence at another and later hearing which he
could and should have presented at the original hearing.
If it were otherwise, the door would be open in any given
case to ceaseless and never-ending hearings each serving
as a prelude to the next ad infinitum and no one could
ever safely rely on any decision as finally settling the
rights of the parties (cited at 404-05 in the City of New
Westminster case).
After reviewing these principles in the City of New Westminster case, the
Board went on to find:
This case is different because there' has been no decision.
It is also an arbitration board, not a provincial labour'
board. But we believe it equally important that there be
some rules for the exercise of discretion because there
is a need, even in the arbitral process, to have some
closure. 'In this case, even if we were prepared to
conclude that the new evidence could not have been
obtained by reasonable diligence throughout the lengthy
period of time it took to conclude this matter, we are
satisfied that the evidence would not have had a material
or determining effect on our decision and, accordingly,
we exercised our discretion and declined to reopen the
case (at 405).
.Relying on this ruling, employer counsel argued that the evidence the union
sought to admit in the instant case was known to it throughout the
proceedings, and if it was to have been tendered as evidence, it should have
been tendered at that time. Counsel concluded his argument'with the
observation that the character of the different documents was not in issue.
Put another way, the fact that the records sought to be. introduced were
public documents did not matter. Their "public character" only went to the
requirements of proof, not to their admissibility after the union had closed
its case. tn counsel's view, if any of these documents were to be allowed
in, the employer would be seriously prejudiced, as it also would be if the
u'nion were allowed to reopen it case.
Union Arau..rpent
Union counsel began her observations by noting that the materials of the
kind and character she sought to introduce are frequently tabled by parties
at the argument stage of proceedings, and the wide statutory latitude given
to the GSB and other boards of arbitration with respect to the admissibility
of evidence fostered and promoted this approach. In union counsel's
submission, relevance was the key factor in the determination of .what
evidence was allowed in and what was kept out. In this regard, the
Statuto~ P~)wers Procedure Act provided the only limitations on
admissibility, and these related to privilege or to exclusions directed by a
governing statute. The materials at issue in the instant case were not
privileged, nor was their admission precluded by the Crown Employees
Collective Bargaining Act. Union counsel also referred to the Evidence Act
and the provisions relating to proof of authenticity o.f public documents.
Counsel reviewed the documents in question with the Board, emphasizing as
she did the fact that most of these documents were studies prepared at the
direction of the Ministry of Labour or ministerial responses to those
studies.' The ministerial character of the annual reports of the Ministry of
Labour, in counsel's submission, spoke for itself. Other documents included
an unpublished paper given by a senior ministry official, and extracts from
a book published on occupational health and safety law in Ontario, sections
of which describe the evolution of law and policy in this province. Counsel
observed that ali but one of these documents originate, one way or another,
from the Ministry of Labour and all are available to the public in its library.
In counsel's submission, the purpose of all of these documents was to
provide the Board with materials outlining the legislative and policy
history of occupational health and safety in Ontario and in that way provide
background information relating to the role of inspectors and the evolution
and functioning of the internal responsibility system. Counsel pointed out
that the Board had already received materials of this kind, including
extracts from the Ham Report, which was entered without the objection of
employer counsel, and one other document filed earlier in the proceedings.
These Ministry of Labour materials would assist the Board, in counsel's
view, by corroborating the impressionistic evidence of the grievors. They
would show, very simply, that what the grievors testified to was
consistent with the Ministry's own view as disseminated in its publications
and reports. None of these materials, counsel pointed out, dealt directly
with the classification case before the Board.
Counsel argued that the only issue currently before the Board was when the
documents in question should have been'tendered, and in counsel's
submission, all that was required was that they be tendered. With the
possible exception of the legal text, all the materials in question are public
documents and as such are admissible as an.eXception to the hearsay rule, '
Counsel pointed out that legal texts and other secondary legalsources are.
frequently admitted by boards of arbitration, and by this Board. The
relevance and applicability.of materials of this kind is, of course, a matter
for argument. Counsel made some .additional submissions with respect to
Brandeis briefs and judicial notice, but as our disposition of the employer's
objection is not based on these groUnds.it is not necessary to review them
here.
In the instant case, counse'l argued that it would have made no practical
difference if the documents had been tendered during the hearing. If they
were'admissible then, then they are admissible now, particularly since the
employer was effectively put on notice that the union intended to rely on
these documents when union counsel asked an employer witness qu. estions
about some of them in cross-examination. Moreover, in counsel's
submission, the objection of the employer was groundless in that there was
nothing precluding it from tendering its own documents if it wished, or
from making submissions with respect to the documents tendered by the
union.
In counsel's submission, there may have been a technical requirement that
the documents in question be tendered during the course of evidence, rather
than in argument, but this technical requirement had been met by the union
giving notice to the employer dudng the course of the proceedings when an
employer witness was asked about some of the documents indicated above.
Moreover, counsel advised the Board that at this same time she indicated
that she intended to file these materials during the course of her argument.
In the result, employer counsel was not taken by surprise and had every
opportunity during his case to call any reply or rebuttal evidence if he had
wished.
Counsel submitted, very simply, that in all the circumstances of the case,
she was entitled to believe that the employer would not object to her
tendering the materials in question during the argument part of the case.
Nothing would have been gained, in counsel's submission, by her calling the
authors of the various documents to identify them - all of the documents
were, after afl, public in nature and character issued by the Ministry of
Labour and available in its library. Not to allow the documents into
evidence, counsel argued, would be inconsistent with the practice and
procedure of the Board and with the legislative requirement that the
parties be given full opportunity to present evidence and make submissions.
Counsel concluded her argument by making some observations about the
authorities provided by the employer, and distinguishing those cases from
the instant one. She also asked the Board, should it find that the union was
not entitled to tender the materiats in question in argument, to allow the
union to reopen its case for the purpose of identifying the documents and
admitting them into evidence.
Employer'~ Reply
In reply, counsel submitted that his objection was not a technical one, but
one that went directly to natural jus. tice and fairness. Counsel reiterated
his earlier arguments that the employer was prejudiced by the fact that the
union had not tendered the evidence during the case when the employer
would have had an opportunity to respond and to admit its own evidence.
Counsel did not .take issue with union counsel's submission that she
indicated during the case that she intended to tender some of these
materials during the course of argument, nor did he take issue with the
assertion that there was no real dispute about the authenticity or proof of
the d°cuments, but argued that this was not the issue.
In employer counsel's submission, the union knows about proper practice
and procedure, and it was not up to the employer to anticipate the union and
make an objection before the union sought to tender the materials in
question: All the employer can do, counset stated, is respond in evidence to
a case put in evidence. The union had not put these materials into evidence,
and so there.was no reason for the employer to object or to indicate thai it
would object if an attempt was made to introduce the documents. What
was at issue in this case was fairness, not admissibi!ity. Had the
documents been introduced at the proper time in the proper way this
fairness issue would not have arisen. The documents.were not introduced
at the proper time and so the employer had suffered and there was no
reason, in all the circumstances of the case, the documents being well
known to the union and available during its case, for the Board to allow the
union to reopen its case. The time had come, counsel argued, for finality in
these-proceedings. Accordingly, employer counsel requested that its
objection be upheld and that union counsel be directed to proceed with its
argument without reference to the materials indicated above.
Decisiqn
Having carefully considered the arguments of the parties, we have come to
the conclusion that the employer's objection should be sustained in part and
dismissed in part.
We find, and we indicated as much to the parties during the course of
argument, that the materials sought to be introduced are admissible, for
they are directly relevant to the key issues in dispute. Obviously, the
extent of their usefulness is a matter for argument.
Accordingly, there are three issues before us: first, when should they have
been introduced, second, did the failure to introduce them during the
evidence part of the case preclude their admission during argument, and
third, can that failure be cured by allowing the union to reopen its case for
the limited purpose of tendering these documents in evidence.
Obviously, Et would have been preferable for the materials in question to
have been filed during the union's case, and as a general matter, absent the
consent of the other side, this is when this type of documentation should be
introduced. However, union counsel did indicate her intention of relying on
these materials when it cross-examined one of the employer's witnesses
with respect to them and more generally with respect to changes in the
legislative and policy environment. Moreover, there appears to be no
dispute over the fact that union counsel generally advised the Board and
counsel for the employer that she intended to introduce materials of this
nature during the course of her argument. This is clearly not a situation
where a party has sought to split its case. There is no evidence of bad faith
on the part of the union, and this situation is clearly distinguishable from
the both the Pfizer and ~ cases referred to by the employer. In the
instant c~se, the hearing is not yet over. Indeed, the evidence in the case
was only completed on the morning of the day o'n which argument began and
the Objection which is the subject of this award was first made. The
evidence in question, unlike the situation in Pfizer, is being brought
directly to the attention of the employer, whose counsel indicated that it is
not the character or the potential admissibility of the ·evidence that he
objects to, but the unfairness and prejudice that the employer may suffer
as a result of that material coming before the Board after the evidence part
of the case has been completed.
Fortunately, a means exists to cure any possible prejudice or unfairness to
the employer.
That means, of course, is to allow the union to reopen its case for the
limited purpose of tendering the materials in question. Given their public
nature, it is not necessary for an expert or anyone else to be called to
identify these documents. Once they have been tende.red, the employer will
be allowed to calf or tender any like evidence it wishes. The case will then
proceed to argument.
It should also be noted that this case has occupied many hearing days. Both
parties have expended considerable resources in the presentation of their
case. To 'allow the employer's objection in full would create an unfairness
to the union, particularly since the concerns raised by employer counsel can
be readily dealt with when this matter resumes. The employer's objection
is upheld in part in that we find a technical breach. This breach, as already
noted, is easily cured and in a way that ensures that.any possible prejudice
or unfairness is eliminated.
Therefore, and for the reasons given above, the case will proceed as
scheduled. When the hearing resumes the union will tender the evidence in
dispute. At that time the employer wiJJ be given the opportunity to caJ~ or
tender like evidence, written or viva voce, in reply. Argument in the case,
interrupted by this objection, will then continue.
DATED at Ottawa this 2ot~, day of July,1992.
!
William Kaplan
Vio~-¢,,,r~so,.- ~" ~'~__ . _
Member
D. Walkinshaw
Member