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HomeMy WebLinkAbout1992-3352.Lounds.94-10-11 "/- " 1" ~ \ l ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO-- ,) 1111 GRIEVANCE COMMISSION DE SETTLEMENT ~ REGLEMENT BOARD DES GRIEFS 180 DUNDAS STRt:ET WeST SUITt: 2100. TOPONTO. ONTARIO. MSG lZ8 Tt:LEPHONEITELEPHONE (416) 326-1388 180. RUt: DUNDAS OUt:ST BUREAU 2700. TORONTO (ONTARIO) MSG lZ8 FACS/MII..EITELECOPIE (476) 326-1396 ( 3352/92 IN THE MATTER OF AN ARBITRATION - Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN .:/ OLBEO' (Lounds) Grievor - and - The Crown in Right of ontario (Liquor License Board of ontario) ...."'lJ Employer BEFORE W. Kaplan Vice-Chairp~rson FOR 'l'JIE L. steinberg ~~ GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR TIlE S. Shamie EMPLOYER Counsel Hicks Morley Hamilton stewart storie Barristers & Solicitors HEARING May 13, 1994 June 9, 1994 August 5, 8, 12, 1994 september 8, 9, 30, 1994 I " - ~ :~ 2 _.'0- -- ,,' ~- Introduction --- This case concerns the suspension and subsequent termination of Harold Lounds,an Inspector formerly employed by the Liquor License Board of Ontario At the cenclusion of-the 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 de~1 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 on 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 Star reporter, testified that on June 2, 1992 he met with the grievor, and another Star , "\ reporter, Mr Mascoll, between 1 1 5 and 1 50 p....m. "' Mr Donovan's written record of that meeting, prepared at approximately 400 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 closif!g its case, a document was introduced through an employer witness. This document, a time sheet prepared by the grievor, indicates that on the day in question he took lunch between 12'05 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 grievor then spent 30 minutes traveling to Head Office '. r. .' 3 f The Employer's Motion Employer counsel took the position that the rule in Browne 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 that union -counsel had not complied with this rule, the employer took the position that., the proper application of the rule precluded counsel' and the grievor from now asserting a different version of events, and, !tine the ~ , alternative, even if there was some discretion with respect to the admissibility of this evidence', that I should, 'in all the circumstances of this case, exercise my discretion so as to preclude the subsequent assertion of the contrary account. In support of this position, employer counsel referred to a number of other cases including Crown in Right of Ontario (Ministry of Transportation and Communications) and OPSEU 19 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 (Liquor Control Board) 8 C.H.R.R 4076_and Ontario (Liquor Control Board v. Ontario) v. (Human Rights 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. Second, that 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 r,. 4 ( ., 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 Union counsel -began his submissions by pointing- -out that the "rule" in Browne -v. Dunn was not an -absolute rule, and that there was .nothing ,\ precluding me from exercising my statutory discretion to admit evidence that might be inadmissible in a court of law Union counsel referred to a number of authorities during the course of his submissions including Marchado v. Berlet et al 57 0 R. (2d) 297 (High Court of Justice), John Clark \ [1991] OLRB Reports 598 (Knoph), J. Sousa [1988] OLRB Reports 1027 (Surdykowski) and Palmer and Palmer v. The Queen 106 D L.R. (3d) 212 (SCC) ~ Union counsel also referred to two texts: Mewett, Witnesses and Sopinka et ai, 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 \ ~ I 5 I 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'scriminal 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 :rand this made it even -more difficult for him to recall when exactly he took ." his lunch on a particulanday There was no reason, therefore, to instruct counsel to cross-examine Mr Donovan with 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, c~1I Mr Donovan in reply Accordingly, and for the foregoing reasons, union cQunsel- asked tt}at the employer's motion be dismissed 6 ( ., Employer Reply 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 reply,~ nor should it have to call him in reply to respond to some contrary assertion of the grievor Counsel also pointed out that various records, including the grievor's time sheet, were made available t~ 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 have waited until the grievor testified to tender them. Accordingly, , there was no basis,' counsel argued, for the union's submission that it was somehow precluded 'from cross-examining Mr Donovan O{l this' issue Union counsel had cross-examined. Mr' Donovan at length and could 'have, had he I ,- wished, 'questioned him about the timing of the June 2nd meeting., Employer counsel again asked that his motion be granted. - Decision Having carefully considered the sl:Jbmissions of the parties, I am of the 'i.' view that the employer's motion should be dismissed. 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, so as to give them notice, and to give them an ~\ i\ e-- j 7 I I opportunity of explanation, and an opportunity very often to defend their own character, and not having given them such 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 they 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 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 for the sake;of;argument that the "rule" in Browne V.' Dunn is a rule 'that 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 now subject'to review took place several years ago Nevertheless, the grievor has :consistently maintained that the June 2nd meeting took place over the' course 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 ~", fJ ~ ... r 8 l' . 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 that provided by Mr Donovan will result in some irreparable harm to the employer's case. First 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 result and might indeed result in an injustice to the. union, and. the grievor Moreover, when onel\considers the circumstances in which the rule was "breached, "and the fact that 'any "breach" can be corrected in reply, one can only conclude that the, employer's 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 June 2nd meeting. :s: DATED at Toronto this 11 th day of October 1994 p/~ ---------- William Kaplan Vice-Chairperson --- ---- - .----. -