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HomeMy WebLinkAbout1994-0285.MAYER.95_12_11 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO _ _ GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO. MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G 1Z8 FACSIMILE /TELECOPIE (416) 326-1396 GSB # 285/94 OLBEU # OLB066/94 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Mayer) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE J R Roberts Vice-Chairperson FOR THE J Noble GRIEVOR Legal Counsel Ontario Liquor Control Boards Employees' Union FOR THE J Baker EMPLOYER Counsel Hicks, Morley, Hamilton, stewart, storie Barristers & Solicitors HEARING September 21, 1995 November 23, 1995 1 INTERIM AWARD Introduction. At the outset of thIS arbItratIOn, counsel for the unIOn stated that she wIshed to mtroduce mto eVIdence a medIcal report from the gnevor's famIly doctor wIthout callmg the doctor as a wItness Counsel for the employer obJected, claImmg that to admIt the medIcal report Without requmng the unIOn to call the practItIOner who authored It would be tantamount to denymg the employer ItS nght of cross exammatIOn. Thereafter, the partIes made submIsSIOns upon the Issue and the hearmg was adJourned pendmg the preparatIOn OfthIS mtenm award. For reasons WhICh follow, It IS concluded that the umon may mtroduce the medIcal report m ItS case WIthout callmg the doctor to testify on dIrect exammatIOn, however, the admIssIOn mto eVIdence ofthe medIcal report IS subJect to a condItIOn that the unIOn produce the doctor for purposes of cross-exammatIOn should the employer so reqUIre General Background In then submISSIOns, both counsel acknowledged that under the OntarIO Labor RelatIOns Act, arbItrators are not bound by the stnct rules of eVIdence applIed m the courts. See Labour 2 RelatIOns Act, R.S 0 1990, c L.2, s. 45(8) They also acknowledged, however, that arbItrators must act JudIcIally and respect the rules of eVIdence. In thIS regard, I was referred to Re Girvan and Consumer's Gas Co (1973),40 D.L.R. (3d) 509 (Ont. DIV Ct.), where the DIVIsIOnal Court quashed an arbItratIOn award that based a findmg of fact upon hearsay eVIdence that could not be challenged upon cross-exammatIOn. Perhaps for thIS reason, both counsel began theIr submISSIons by referrmg to SectIOn 52 (2) of the EVIdence Act, relatmg to the admIssibIlIty of medIcal reports. SectIOn 52 (2) of the Act reads as follows A report obtamed by or prepared for a party to an actIOn and sIgned by a practIcIOner and any other report of the practIcIoner that reletes to that actIOn, are, WIth leave of the court and after at least ten days notIce has been gIven to all other partIes, admIssible m eVIdence m the actIOn. Counsel for the unIOn mdIcated that whIle the notIce prOVISIOn of sectIOn 52 probably dId not apply m a labour arbItratIOn, at least ten days' notIce of the unIOn's mtentIOn to mtroduce the medIcal report was gIven to the employer Counsel for the employer acknowledged receIVmg thIS notIce and a copy of the medIcal report m questIOn. No eVIdence or agreed statement of facts was entered regardmg the preCIse nature of the medIcal report or the avaIlabIlIty of the gnevor's famIly doctor The submISSIOns ofthe partIes seemed to proceed, however, upon the footmg that the report was more than a mere doctor's note and the doctor was not beyond the reach of a subpoena from the Board. It IS upon thIS baSIS that I have conSIdered and applIed the applIcable authontIes 3 The Purpose of Section 52 SectIOn 52 (2) ofthe EVIdence Act makes, inter alia, a medIcal report admIssIble m eVIdence, "WIth leave of the court." Accordmg to the OntarIO Court of Appeal m Kapulica V Dumancic, (1968) 2 0 R. 438 (C A.), sectIOn 52 IS a procedural provISIOn deSIgned to permIt a court an alternative means for receIvmg medICal eVIdence The court IS gIven dIscretIOn to "admIt the eVIdence of a professIOnal medIcal Witness WIthout the necessIty of bnngmg that wItness phYSIcally mto court and havmg hIS exammatIOn conducted m the face of the court." Id. at 442 ThIS was seen as "benefiCIal to the lItigants, to the court and to the members of both the legal and medIcal professIons" Id. Accomodation of the Right of Cross-Examination. The admIsSIOn of a medIcal report m thIS manner, however, ImmedIately raises the questIOn of accomodatmg the opponent's fundamental nght of cross exammatIOn. In Kapulica, the Court of Appeal said that the party tendenng the report "constitutes the medIcal practItIOner who sIgns It hIS wItness as fully as Ifhe had produced hIm m court and exammed hIm under oath [and he] IS subJ ect to cross exammatIOn on the eVIdence gIven by means of the medIcal report m the same manner as he would have been Ifhe had gIven oral testimony m the words of the report." Id. at 442-43 4 Locus of Responsibility to Produce the Medical Practicioner in Court: As to WhICh party has the responsibIlIty to produce the medIcal practltIOner for purposes of cross exammatIOn, the Court of Appeal m Kapulica took the VIew that thIS was the responsibIlIty of the party that wIshed to cross examme the practitIOner Jd at 443 Subsequently, however, the High Court concluded that thIS responsIbIlIty belonged to the party that mtroduced the medIcal report. It was thIS party, after all, that had constItuted the medIcal practltIOner Its wItness by filmg hIS or her report. See Carew V Loblaw's Ltd. (1977), 180 R. (2d) 660, 663 (H C J), and Briand V Sutton (1986), 15 C P C (2d), 36, 41 (Ont. H. C J) The VIew taken by the High Court seems to be m harmony wIth the statutory scheme of sectIOn 52. Under thIS scheme, unnecessary demands for productIOn of a medIcal practIcIOner for cross- exammatIOn are dIscouraged. SectIOn 52 (5) empowers the court to order the party requmng the attendance of the practlcIOner to pay as costs of the attendance "such sum as the court consIders appropnate" Ifthe court "IS of the opmIOn that the eVIdence could have been produced as effectlvely by way of a report." Id. The "costs" penalty of sectIOn 52(5) seeks, inter alia, to guard agamst the prolongatIOn of court proceedmgs that would result from the use of a tactIC of automatIcally requmng an opposmg party to produce a medIcal practltIOner for cross- exammatIOn every tlme It seeks to mtroduce a medIcal report. ThIS IS one of the mefficIencIes 5 that sectIOn 52 was desIgned to ehmmate Locus of This Responsibility in Labour Arbitrations For a consIderable penod of tIme, arbItrators have referred to sectIOn 52 of the EVIdence Act m determmmg whether to admIt mto eVIdence medIcal notes, reports and other documents wIthout callmg the medIcal professIOnals who wrote them. See, e g., Re Metropolitan Board of Commissioners of Police, supra; Re St. Jean de Brebeuf Hospital and Canadian Union of Public Employees, Local 1101 (1977), 16 L.A.C (2d) 199 (Swan), Re Brampton Hydro-Electric Commission and Local 636, International Brotherhood of Electrical Workers (1990), Unpubhshed Award (Devlm), and, Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 79 (1992),25 L.A.C (4th) 73 (Spnngate) In so domg, It has often become necessary to take mto account the dIfferences between arbItratIOns and court proceedmgs. For example, arbItrators do not have the same power as the courts to award costs. The questIOn whether arbItrators have JunsdIctIOn to award a "cost penalty" under sectIOn 52(5) of the EVIdence Act IS not free from doubt. How, then, can an arbItrator temper the temptatIOn for one SIde automatIcally to condItIOn the admIsSIOn of every medIcal report upon the other SIde's producmg the medIcal practItIOner for cross-exammatIOn? Professor Rayner seemed to have thIS concern m mmd m Re Chrysler Canada Ltd. and UA. W Loc 1285 (1974) 5 L.A.C (2d) 164, at 166, when he saId m response to a demand to cross-examme upon letters from medIcal 6 specIalIsts that the umon sought to place m eVIdence, "IfMr Sanderson's posItIOn was correct, one party could prevent the admIsSIOn of such documents alone by sImply requmng the nght of cross-exammatIOn. [I]t would be mconvement and perhaps costly to reqUIre the attendance of several medIcal specIalIsts." In Brampton Hydro, on the other hand, arbItrator Devlm mdIcated that m her opmIOn, an arbItrator had JunsdIctIOn to exert dIscIplme m such mstances by awardmg costs. She saId, "I am satIsfied that I have JunsdIctIOn to award a sum by way of costs to be paid by the opposmg partIes (who reqUIred the doctor to attend for cross-exammatIOn] If I ultImately determme that the doctor was reqUIred to gIve oral eVIdence unnecessarIly In my VIew an award of costs m these CIrcumstances IS to be dIstmgUIshed from an award of the usual costs assocIated WIth arbItratIOn proceedmgs or WIth the costs of a board of arbItratIOn for whIch the procedure for payment IS mandated by the collectIVe agreement." Id. at 10-11 No authonty, however, was CIted for thIS propOSItIOn. There seems to me to be one other dIstmctIOn between arbItratIOn and court proceedings that mIght have an Impact upon the questIOn of dIscouragmg unnecessary cross-exammatIOns. In most mstances, the costs of arbItratIOn are bourne by the partIes ThIS IS now the case even WIth respect to arbItratIOns under the Crown Employees' CollectIve Bargammg Act. Should a party unnecessarIly prolong a hearmg by mSIstmg upon callmg every medIcal expert whose report IS entered mto eVIdence, It WIll mcur a cost penalty to Itself, m terms of half the cost of the board of arbItratIOn for the addItIOnal days of hearmg. ThIS IS not the case WIth respect to a court 7 proceedmg, m whIch the bulk of the costs of the Judges and courts are borne by the publIc and not the lItIgants It mIght be that thIS mherent "cost penalty" m arbItratIOn proceedmgs may m many cases dampen a tendency toward overenthuslasm m requmng medIcal experts to attend for cross-exammatIon. In any event, It does not seem that shIftmg responsibIlIty to call a medIcal praCtltIOner from the party relymg upon hIS or her report to the party requmng cross-exammatIOn would have much of a deterrant effect. As both partIes agreed m Metropolitan Board of Commissioners of Police, supra, the costs bourne by the party bearmg thIS responsibIlIty are small They were saId to consIst of the cost of secunng and servmg a subpoena upon the medIcal practItIOner and the payment to hIm or her of a small amount of" conduct money" See id. at 15, 21 F orcmg the party requmng cross-exammatIOn to bear such mImmal costs would probably be unlIkely to deter It from mSIstmg upon the attendance of the medIcal practltIOner In lIght of these consIderatIOns, It does not appear that, m general, the locus of the responsIbIlIty to produce a medICal practltIOner for cross-exammatIOn upon hIS or her report should be any dIfferent m labour arbItratIOns than It IS m proceedmgs before the courts. It IS the party that relIes upon the report that must bear thIS responsibIlIty By mtroducmg the medICal report and relymg upon It, this party constItutes the practitIOner ItS own wItness Just as surely as Ifhe or she had been called to gIve dIrect testImony m the party's case-m-chIef. Absent compellmg reasons to the contrary, It seems reasonable and faIr to reqUIre a party to make ItS own wItness avaIlable for cross-exammatIOn. There do not appear to be any such compellmg reasons m the general context 8 of labour arbItratIOn. General Arbitral Procedure Re Medical Reports It was brought to my attentIOn m the course of the submIssIOns of both counsel that some arbItrators have eIther demed cross-exammatIOn entIrely or reqUIred the party wIshmg to cross-examme to bear the responsibIlIty of producmg the medIcal practlCIOner for cross- exammatIOn upon hIS or her report. See Re Municipality of Metropolitan Toronto, supra. After a number of pnor authontIes were revIewed m thIS case, It was broadly concluded, "The cases referred to above mdIcate that the general arbItral practIce IS to accept a medIcal report mto eVIdence WIthout requmng that the doctor who prepared It be called as a wItness." Id. at 80 A reVIew of these authontIes, however, seems to dIsclose but slender support for such a broad propOSItIOn. One of the authontIes that was revIewed m reachmg thIS conclUSIOn was Re Petro-Canada Products (Clarkson Refinery) and E.C W U, Local 593 (1989), (summarIzed 15 C.L.A.S 4) (Marcotte) In that case, the arbItrator after revIewmg, inter alia, the award of Professor Rayner m Chrysler Canada, supra, refused to reqUIre the unIOn to produce the doctor who had prepared several medIcal reports that were entered mto eVIdence. In the face of thIS refusal, the employer called the doctor as a wItness. Re Municipality of Metropolitan Toronto supra, at 79 Another was Re Steel Co of Canada Ltd. and U S. W Local] 005 (1975), 8 L.A.C (2nd) 298 (Beatty) WhICh, once agam, followed the lead of Professor Rayner m Chrysler Canada. Re Municipality 9 of Metropolitan Toronto, supra, at 77 As has already been pomted out, It would seem that one ofthe mam reasons gIven m Chrysler Canada for refusmg to reqUIre the medIcal practItIOners to be produced by the umon was the antiCIpated cost and mconvemence m requmng theIr attendance It has, however, been subsequently mdIcated that these costs generally are not very hIgh, consIstmg m the mam of the cost of obtammg and servmg subpoenas and payment of small amounts of conduct money See Metropolitan Board of Commissioners of Police, supra, at 15,21 It also appears that the shared-cost reqUIrement III most labour arbItratIOn proceedmgs mIght act as a dlSlncentIve to prolongmg hearmgs by requmng unnecesary cross-exammatIOns. Another authOrIty that was relIed upon m Municipality of Metropolitan Toronto was Re St. Jean de Brebeuf Hospital, supra, m WhICh arbItrator Swan admItted mto eVIdence a doctor's certIficate despIte the fact that the doctor was unavaIlable to testIfy as a WItness for eIther party In that case, however arbItrator Swan only admItted the certIficate after notmg that not much would be gamed by callmg the doctor because "It IS Impossible that ills testImony could have contributed anythmg of substance to the hearmg" and "the probatIve value of thIS certIficate IS clearly neglIgible" Id. at 204 ThIS would not appear to be mconsIstent WIth Re Seagram Distillers Ltd. and Distillery Wine and Allied Workers' International Union, Locals 48, 64, 190, 191 and 200 (1983), 11 L A.C (3d) 166 (P PIcher), where the arbItrator refused to admIt mto eVIdence a more substantIve doctor's report because the doctor was unavaIlable to be cross-exammed. Id. at 173 10 From my reVIew of applIcable authonty, It would appear that the most appropnate formulatIOn of general arbItral procedure regardmg the admIsSIOn mto eVIdence of reports of medIcal practitIOners IS as follows (1) upon agreement between the partIes, a report of a medIcal practitIOner may be admItted mto eVIdence wIthout callmg the practitIOner to teStify; (2) however, If the opposmg party Wishes to cross-examme the practIcIoner who wrote the report, arbItral dIscretIOn wIll generally be exercIsed to condItIon ItS admISSIOn mto eVIdence upon productIOn of the medIcal practIcIOner for cross-exammatIOn, and, (3) generally, It IS the responsibIlIty of the party relymg upon the report to produce the practIcIOner for cross-exammatIOn. Fmally, where the practItIOner IS unavaIlable for cross-exammatIOn, the medIcal report may be admItted or excluded m the dIscretIOn of the arbItrator, properly exercIsed m lIght of the Clfcumstances of each mdIvIdual case. Conclusion. In the present case, the submISSIons of the partIes proceeded on the footmg that the medIcal report m questIon IS more substantIal than a mere doctor's note and, If reqUIred, the doctor would be aVailable to testIfy Accordmgly, It IS concluded that the unIOn may mtroduce the medIcal report m ItS case WIthOut callmg the doctor to testIfy, however, the admISSIOn mto eVIdence of the medIcal report IS subJect to a condItIon that the unIOn produce the doctor for purposes of cross-exammatIOn should the employer so reqUIre 11 Dated at Toronto, OntarIo, thIS lit( day of December 1995