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HomeMy WebLinkAbout1996-2690.Ross.03-08-25 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2690/96 1543/01 UNION# 97D318 97D319 97D320 02A1l2 02A1l3 02A1l4 02A1l5 02A1l6 02A1l7 02A1l8 02A1l9 02A120 02A121 02A122 02A123 02A124 02A125 02A126 02A127 02A128 02A129 02A130 02A131 02A132 02A133 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Ross) Grievor - and - The Crown III RIght of Ontano (Mimstry of the SOlICItor General and CorrectIOnal ServIces) Employer BEFORE Bram HerlIch Vice-Chair FOR THE UNION John BrewIll Ryder Wnght Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Chnstopher Jodhan Counsel Management Board Secretanat HEARING May 5 9 & 13 July 17 & 18 2003 2 DECISION Some 28 gnevances were ImtIally referred to me That number has been reduced somewhat as a result of the employer's (partIal) success wIth respect to certaIn prelImInary Issues whIch have been the subject of prevIOUS decIsIOns In thIS matter Subsequent to dealIng wIth those prelImInary Issues (and a number ofpnor Ill-fated efforts by the partIes to resolve these matters) the heanng commenced In earnest 1 e the first VIva voce eVIdence was placed before the Board. The partIes had agreed to bIfurcate the proceedIngs and to commence wIth eVIdence related to a 20-day suspenSIOn Imposed on the gnevor The employer called ItS case WIth respect to the suspenSIOn. EIght wItnesses testIfied as to the relevant events The pace of the proceedIng was bnsk, aided, no doubt, by the umon's decIsIOn to forego cross-eXamInatIOn In a number of Instances At the conclusIOn of the employer's case the umon IndIcated that It wIshed to move for a non-sUIt; the employer took the posItIOn that the umon ought to be put to ItS electIOn. As neIther party had any advance notIce of the motIOns or posItIOns the other Intended to take, the heanng was adjourned to afford counsel the opportumty to research and prepare theIr posItIOns When the heanng reconvened the folloWIng day the partIes put full argument before me wIth respect to both whether the umon ought to be put to ItS electIOn and to the "ments" of the non- SUIt motIOn Itself After consIdenng the eVIdence the partIes' submIssIOns and the authontIes cIted, I have concluded that the umon need not be put to ItS electIOn. The umon's "VICtOry" on that score wIll, however be somewhat short-lIved, as I have also decIded that the umon's non-sUIt motIOn ought to be dIsmIssed. Thus, the umon wIll now face a chOIce resemblIng, though not IdentIcal to the electIOn - It wIll decIde whether or not to call eVIdence or to sImply argue the ments of the case (as opposed to the ments of the non-sUIt) on the basIs of the eVIdence currently before the Board. 3 In accordance wIth establIshed practIce and the partIes' clear and explIcIt agreement on the pOInt, I wIll refraIn from provIdIng any reasons wIth respect to my decIsIOn to dIsmIss the non-sUIt motIOn. I accept and agree wIth the partIes and the vanous authontIes cIted that the lack of elaborated reasons where a non-sUIt motIOn IS dIsmIssed (and the mover not havIng been put to hIS electIOn) wIll serve to mImmIze (though not necessanly entIrely elImInate) any of the unfairness whIch mIght otherwIse be assocIated wIth allowIng only the mOVIng party to potentIally benefit from a "half-tIme score" The partIes were less emphatIc and there IS certaInly lIttle explIcIt support In the case law regardIng the need for sIlence about the reasons for puttIng or not puttIng the mOVIng party to ItS electIOn. Thus, although the partIes were content WIth the absence of reasons for a decIsIOn to not put the umon to ItS electIOn, I am of the VIew that some observatIOns on the subject may well benefit the partIes In thIS and In future cases The partIes each acknowledged that the current state of thIS Board's approach to the Issue can be traced to the decIsIOn In Faler 218/89 (FIsher) In that case the Board revIewed the sometImes conflIctIng concerns relatIng to expedItIOn and fairness Concerns of expedItIOn may mIlItate In dIfferent dIrectIOns In a case where devotIng tIme to argue an ultImately unsuccessful non-sUIt motIOn results In addItIOnal heanng day(s) expedItIOn IS clearly compromIsed. On the other hand, lIttle can lend further expedItIOn to the proceedIngs than a successful non-sUIt motIOn. The Board suggested, however and wIth thIS one must heartIly concur that the hIstoncally routIne response that the tIme reqUIred to hear an ultImately unsuccessful non-sUIt motIOn Invanably extends the tYPIcal one-day arbItratIOn heanng Into two IS somewhat anachromstIc AgaInst the potentIal gaIn In expedItIOn must be measured the unfairness assocIated wIth allowIng the mOVIng party (if unsuccessful) to have the benefit of a glImpse Into the adJudIcator's mInd before havIng to deCIde how or whether to call ItS eVIdence The Faler panel (and I note that It was a unammous decIsIOn of a tnpartIte panel) concluded ItS dIscussIOn of the fairness concern as follows (at page 7) 4 It seems Inappropnate for a Board such as the Gnevance Settlement Board, whIch IS constantly determInIng dIsputes between the same partIes, to express full reasons as to why one party has faIled to prove a pnma facIe case ThIS would be the eqUIvalent to an "arbItral tIme-out" In whIch the OppOSIng party has the opportumty to find out what the Board IS thInkIng, and then plan ItS strategy for the rest of the case In a sItuatIOn lIke thIS, one would expect a motIOn for non-sUIt In every case, as It would provIde a useful advantage In every case to the mOVIng party whether or not they had any chance of WInmng a motIOn of that sort. However these fears can be elImInated If the Board gIves no oral or written reasons In the event the motIOn IS dIsmIssed. Of course If the motIOn IS upheld, full and proper reasons would be provIded, as then the motIOn would end the case A mere IndIcatIOn by the Board that the motIOn was dIsmIssed would not gIve a tactIcal advantage to eIther party DespIte the enthusIastIc use of language, I, lIke employer counsel In the Instant case senously doubt that all fears or concerns as to the unfairness of provIdIng the "half-tIme score" to the unsuccessful mOVIng party can be fully and completely elImInated by the absence of reasons for the dIsmIssal of the motIOn. Of course, In Faler the panel opted not to put the mOVIng party to ItS electIOn. That conclusIOn (at p 8 of the decIsIOn) was partIcular to the facts of the case In conclusIOn, when one looks at the Interests of expedItIOn and fairness as they relate to the circumstances of this particular case, It IS proper that the Umon be able to present ItS motIOn for a non-sUIt wIthout the reqUIrement of havIng to elect as to whether or not to call eVIdence, on the understandIng that If the Board dIsmIsses the motIOn, It shall do so wIthout wntten or oral reasons [emphasIs added] But despIte what appears to have been a decIsIOn based on a consIderatIOn of expedItIOn and fairness In the context of partIcular facts, the suggestIOn has been made that 1ft stands for the proposItIOn that thIS Board wIll not put a mOVIng party to ItS electIOn. A reVIew of subsequent decIsIOns mIght provIde some ImtIal support for that VIew 5 In Gibson Patterson 319/93 et al (Barrett) no electIOn was reqUIred and the Board referred only to the mover's submIssIOn that the lack of electIOn would be "In accordance wIth the procedure of thI s Board set out In Faler" In the Gallagher 493/94 (Watters) case the Board declIned to put the mOVIng party to ItS electIOn. In ItS oral rulIng on the pOInt the Board observed I recogmze that, generally In cIvIl proceedIngs a party motIOmng for non-sUIt IS reqUIred to make an electIOn as to whether they Intend to call eVIdence before such motIOn wIll be entertaIned I recogmze further that the Gnevance Settlement Board In Faler and In Gibson Patterson has adopted a dIfferent procedure The procedure serves to expedIte the process wIth respect to motIOns for non-sUIt and, at the same tIme, removes any potentIal prejUdICe or advantage through not proVIdIng reasons for the demal of the non-sUIt In that event. No electIOn was reqUIred In the case of Reid 2098/96 (LeIghton) where the Board, SIttIng In a tnpartlte panel, deCIded unammously that It "would follow the prevIOUS Gnevance Settlement Board decIsIOns [CItIng Faler Gibson and Gallagher] whIch had not reqUIred the mOVIng party to elect to call eVIdence and would proceed to hear the argument on the non- SUIt motIOn" The Board dId IndIcate that It was persuaded, In the facts of that partIcular case, that the proceedIngs would not be unduly prolonged If the Umon was not reqUIred to elect and, to aVOId unfairness, It would proVIde no reasons In the event the motIOn was dIsmIssed. In Weemen 1963/95 (FInley) the employer moved for non-SUIt and asked that the Board follow the procedure set out In Faler the Umon dId not dIspute the propnety of "folloWIng the procedures set out In Faler" More recently In Holmes 157/98 (Saltman) no electIOn was reqUIred. "In accordance wIth the Board's the usual practIce, the Umon was allowed to argue ItS motIOn wIthout beIng put to ItS electIOn as to whether or not to call eVIdence" However an empmcal reVIew of thIS Board's decIsIOns on the pOInt qUIckly reveals that there IS no umform or Invanable practIce of entertaInIng non-SUIt motIOns wIthout puttIng the mover to ItS electIOn. 6 In both Ladha 83393 et al (DIssanayake) and Knapp 2720/96 (Abramsky) the movmg party was put to Its electIOn. No reasons were provIded m eIther case for the Board's decIsIOn to put the movmg party to ItS electIOn Thus, an empmcal reVIew of the ItS deCIsIOns reveals that whIle thIS Board IS amenable to entertammg non-sUIt motIOns wIthout puttmg the movmg party to ItS electIOn, there IS no umform or mvanable practIce of so domg. To the extent the Board has reframed from provIdmg reasons for ItS decISIOn m mdIvIdual cases and to the extent It has (perhaps somewhat mIstakenly) purported to "follow the usual procedure" It may not have provIded sufficIent gUIdance for the partIes m future cases to know how to separate those mstances m whIch no electIOn wIll be reqUIred from those where the movmg party wIll be put to ItS electIOn. Of course, It wIll come as no surpnse to the partIes that the pnmary factors of expedItIOn and fairness adverted to m the Faler case wIll be cntIcal to any determmatIOn. There may however the other consIderatIOns Havmg had the opportumty to reVIew case law submItted from outsIde the Gnevance Settlement Board, I have found one case to be partIcularly mstructIve m thIS regard. In Canadian Union of Shinglers and Allied Workers [1996] O.L.R.B Rep Mar/Apr 215 Vice- Chair SurdykowskI, wntmg for the Ontano Labour RelatIOns Board reVIewed that Board's approach to non-sUIt motIOns generally and the electIOn Issue specIfically The decIsIOn canvases the same concerns IdentIfied m Faler but adds another dImensIOn to the matnx the tnbunal's own mstItutIOnal mterest m expedItmg procedures whIle mamtammg fairness to the partIes The decIsIOn commends Itself to a full and careful readmg; the followmg extracts (at p 219 et. seq ) are partIcularly of note for our current purposes although It has remamed sensItIve to the fact that It IS also true that JustIce m haste may be no JustIce at all, the Board has become mcreasmgly pro- actIve m ItS non-heanng processes and m heanngs No longer does the Board always SIt mute, lIke some sort of labour relatIOns sponge ever ready to absorb whatever the partIes wIsh to throw at It for as long as they wIsh to do so It IS 7 wIthIn thIS context that the Board's practIces and polIcIes have evolved, as a result of both the Board's expenence wIthIn ItS specIalIzed jUnSdIctIOn and the Board's attempts to be responSIve to the changIng nature and needs of labour relatIOns or related lItIgatIOn, and the needs of the commumty whIch the Board serves In the course of develoPIng ItS practIces and polIcIes, the board has examIned the utIlIty of va no us doctnnes and practIces whIch have been developed In other forums, partIcularly the Ontano courts In that respect, the Board has long recogmzed that doctnnes or practIces developed elsewhere are not necessanly transferable to ItS proceedIngs Consequently the Board has been careful to ensure that a doctnne or practIce developed elsewhere IS sUIted to proceedIngs before the Board, eIther as such or In some modIfied form One of the concepts whIch the board has borrowed from the courts and modIfied to SUIt ItS purposes IS that of the nonsUIt motIOn. ImtIally the Board sImply adopted the procedure followed In Ontano courts and reqUIred a party mOVIng for a nonsUIt, and any party supportIng the motIOn, to elect whether or not It wIshed to call eVIdence However the first look IS not always the best or last one And the Board has recently developed a dIfferent approach the Board has taken a second look at how a nonsUIt motIOn should be dealt wIth In ItS proceedIngs In the result, and recogmZIng the dIscretIOn It clearly has In that respect the Board has become more receptIve to the notIOn of a nonsUIt motIOn wIthout an electIOn. Indeed, the Board has occasIOnally InvIted to such motIOns Itself The Board's approach In that respect IS not InCOnsIstent WIth fairness or natural JustIce An applIcatIOn or complaInt whIch appears to be gOIng nowhere should be brought to an end, unless the Board can be persuaded that appearances notwIthstandIng there IS some real possIbIlIty that the applIcant/complaInant may succeed, partIcularly In a tIme of scarce resources In the CIrcumstances where the Board has no costs jUnSdIctIOn pursuant to whIch a party respondIng to a fruItless case can be compensated accordIngly The fact that the Board entertaInS or InVItes a nonsUIt type of motIOn wIthout an electIOn does not mean that the Board has already decIded the Issue What It IndIcates IS that the Board IS concerned that a party whIch bears the onus wIth respect to an Issue whIch IS dISposItIve of the applIcatIOn or complaInt before the Board, and whIch has closed ItS case, has not made out a prima facie case In that respect, and that the Board wants the benefit of the submIssIOns of the partIes In that regard. In effect, a party whIch finds Itself In a posItIOn of respondIng to such motIOn must "show cause" why the matter should proceed further or to put It more dIrectly why the matter In Issue should not be decIded agaInst It. In that respect, I note that the Board wIll only entertaIn or InVIte such a motIOn where the party whIch bears the onus In the matter before the Board (or an Issue whIch IS determInatIve of It) has had a full opportumty to present ItS eVIdence It should come as no surpnse that the Board engages In a contInUOUS assessment of eVIdence In the matter before It as the case IS presented. Indeed, thIS IS somethIng whIch the Board must do In order to be able to conduct heanngs properly HaVIng engaged In such an assessment, and bnngIng ItS labour relatIOns expertIse to bear upon It, the Board IS In a posItIOn to conSIder whether 8 It IS appropnate to entertam or mVIte a nonsUIt type of motIOn when the party beanng the onus has closed ItS case Fairness and natural JustIce reqUIre that a party have a full opportumty to present ItS case A party whIch has faIled to present a case whIch reqUIres an answer IS not entItled to say that It may be able to find somethmg m eVIdence that another party may call Nor does fairness or natural JustIce preclude the kmd of ongomg assessment and applIcatIOn of ItS expertIse by the Board to a case as It unfolds m a heanng, whIch may lead to a nonsUIt motIOn It does not necessanly follow that a party wIll get an mdIcatIOn of the sufficIency of the eVIdence or case of the party OpposIte, except m the sense that It wIll obtam a rulIng on whether there IS any case at all whIch It must answer It IS dIfficult to see how thIS creates an unfairness The primafacie test applIed m a nonsUIt motIOn IS a lower threshold, from the perspectIve of the party respondmg to such a motIOn, than the balance of probabIlItIes test whIch IS applIed when eVIdence IS bemg weIghed m Board and arbItratIOn proceedmgs Accordmgly a party could present a prima facie case but fall to persuade on a balance of probabIlItIes Further whether or not the dISposItIOn of a nonsUIt motIOn may create an unfairness IS somethmg whIch can be assessed m a partIcular case, and IS somethmg whIch IS properly taken mto account m determmmg whether It IS an appropnate exercIse of dIscretIOn to put the movmg party to ItS electIOn. In the Board's expenence, unfairness wIll not necessanly result If the movmg party IS not put to ItS electIOn. On the contrary a nonsUIt motIOn wIthout electIOn can be a useful dIscretIOnary tool for endmg futIle labour relatIOns lItIgatIOn. The mstItutIOnal character of the OLRB dIstmgUIshes It from ad hoc panels of arbItratIOn. ThIS Board undoubtedly shares charactenstIcs wIth both types of admmIstratIve tnbunals WhIle the Gnevance Settlement Board IS a statutory mstItutIOnallabour relatIOns tribunal, It does not serve the cItIzens of the provmce generally or the broad labour relatIOns commumty Its functIOmng IS restncted to a dIscrete number of collectIve bargammg partIes However as an mstItutIOnal tnbunal, the Board must be concerned about ItS ongomg practIce and procedures and should be ever vIgIlant to ensure the smooth flow and dISposItIOn of ItS consIderable caseload. In that context, I see no reason why thIS Board's consumers lIke those of the OLRB should not, m appropnate cIrcumstances, be confronted wIth the Board's own ImtIatIves to streamlIne ItS proceedmgs In that context, partIes to thIS Board should not be surpnsed, agam m appropnate cIrcumstances, to be mVIted to argue a nonsUIt motIOn or to be asked, perhaps at any appropnate pomt m any partIcular proceedmgs, what useful purpose IS to be served by contmumg those proceedmgs 9 In summary one of the gUIdmg consIderatIOns m cases were movmg party seeks not to be put to ItS electIOn or m cases where the Board may mVIte such a motIOn wIll, to adopt the phrasmg of the OLRB be whether the Board Itself IS concerned that the party whIch bears the onus wIth respect to a dISposItIve Issue and whIch has closed ItS case has not made out a prima facie case The Board's concern IS Just that - merely a concern not a determmatIOn - makmg It a theoretIcal possIbIlIty (and an actual realIty m the mstant case) that the concern mayor wIll be sufficIent to preclude the need for an electIOn but msufficIent to warrant ultImately grantmg the non-sUIt motIOn. An empITIcal reVIew of thIS Board's case law suggests that such a gUIdelIne IS consIstent WIth thIS Board's approach to date It IS lIkely more than mere happenstance that m four of the five cases of thIS Board (revIewed above) smce the decIsIOn mFa/er where no electIOn was reqUIred, the movmg party was ultImately successful m ItS non SUIt motIOn. It IS more lIkely than not that the Board's concern about the strength of the case bemg advanced contnbuted to ItS decISIOn to forego any electIOn. Thus, m determmmg whether to put a movmg party to ItS electIOn thIS Board wIll consIder factors of expedItIOn and fairness and wIll also gauge ItS own concerns about the strength of the case bemg challenged by the non-sUIt. One must perhaps accept the realIty that, m the absence of an mflexIble rule agamst reqUITIng an electIOn m all cases, the tnbunal's decIsIOn not to reqUIre It man mdIvIdual case wIll telegraph to the partIes the very eXIstence of the Board's concerns about the strength of the case It IS perhaps here that new concerns, or at least newly descnbed concerns, about the unfairness of a half-tIme score may (re )surface In the absence of an mflexIble rule reqUITIng electIOn m all cases, It IS dIfficult to see how to aVOId thIS result. On the other hand, sImply faIlmg to acknowledge the concern wIll not extmgUIsh It. In thIS area, the Board's cIrcumspectIOn WIth respect to the nature or extent of ItS concerns may well be warranted even the context of a decIsIOn whether or not to reqUIre an electIOn. But there can be no elImmatmg the generally sensIble conclusIOn that where the Board opts not to put a party to ItS electIOn, It IS thereby exhIbItmg some (perhaps unspecIfied or unpartIculanzed) concerns about the case whIch IS subject to the non-sUIt. 10 Thus, whIle It would be Inaccurate to suggest that thIS Board has adopted a "usual procedure" of allowIng non-sUIt motIOns to be made wIthout requITIng any electIOn, It IS accurate to observe that the Board IS amenable to such an approach. The decIsIOn as to whether or not to put a party to ItS electIOn wIll be one made In the context of the partIcular facts of the case at Issue consIdered from the perspectIve of the concerns whIch have been dIscussed In thIS decIsIOn. ThIS bnngs me to the applIcatIOn of those concerns In the case before me There was no suggestIOn that concerns about expedItIOn mIlItated agaInst allowIng the umon to proceed wIthout electIOn. Thus, I am satIsfied that the goal of expedItIOn can only be served or be relatIvely unaffected by not reqUITIng an electIOn In thIS case Employer counsel IS to be commended for hIS noble effort to IdentIfy the specIfic unfairness that would result from permIttIng such a procedure EssentIally he argued that, In the context of the Instant case - one In whIch he expects credIbIlIty to ultImately be a major Issue, requITIng the employer to argue the "ments" of the non-sUIt motIOn before the umon eIther elects or calls ItS eVIdence wIll place the employer In a dIfficult and unfair strategIc posItIOn. It wIll have to decIde whether to raise Issues In the non-sUIt argument whIch mIght ultImately be the subject of further eVIdence or cross-eXamInatIOn. If It chooses to raise those Issues, It wIll, effectIvely be reqUIred to reveal aspects of ItS case prematurely If It opts not to raise these Issues, the force of ItS argument may be dImImshed. In eIther event, It wIll suffer an unfairness as a result of the umon not beIng put to ItS electIOn. With the greatest of respect to counsel's valIant effort In thIS regard, I am sImply unpersuaded that there IS some specIfic and aVOIdable unfairness whIch anses from the partIcular nature of the Instant case Indeed, whatever the ultImate nature of the case may be In the context of the non-sUIt motIOn credIbIlIty IS sImply not a sIgmficant Issue The only eVIdence before me IS that of the employer and, for the purposes of the non-sUIt motIOn that eVIdence wIll be evaluated from the perspectIve of whether It establIshes a prima facie case not on the hIgher balance of probabIlItIes standard applIed at the conclusIOn of the case And as the OLRB decIsIOn cIted above makes clear the faIlure of a party to have the opportumty to cross- examIne OppOSIng wItnesses (whether on Issues of credIbIlIty or otherwIse) IS not a reason, In Itself, to reqUIre the mOVIng party to be put to ItS electIOn. 11 Of course there IS the genenc unfairness whIch results from the mOVIng party havIng the benefit of the "half-tIme score" In the event the motIOn IS unsuccessful In the present case, I am satIsfied that can be mItIgated by provIdIng no reasons In the event the motIOn IS dIsmIssed. When that reduced unfairness IS measured agaInst the potentIal expedItIOn, I am satIsfied that It IS appropnate to not reqUIre that the umon be put to ItS electIOn In thIS case And of course, as dIscussed earlIer the partIes may nghtfully conclude that my decIsIOn on the electIOn Issue reflects some concerns I have about the case advanced by the employer In VIew of my earlIer comments, I wIll say nothIng further on thIS pOInt. It was for these reasons that I have decIded not to put the umon to ItS electIOn In thIS case As IndIcated earlIer however I have also decIded to dIsmIss the non-sUIt motIOn. No reasons wIll be provIded for that decIsIOn. The matter wIll contInue as prevIOusly scheduled. The umon IS dIrected to advIse the employer as soon as possIble and, In any event, not later than one week pnor to the next scheduled heanng day whether It Intends to call any eVIdence or whether the employer should be prepared to commence final argument (on the Issues related to the 20-day suspensIOn) when the heanng reconvenes Dated at Toronto thIS 25th day of August 2003 ~ ~7L~~~~l: - . . .~ : . . '. . :.. I . Bram HerlIch, Vice-Chairperson