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HomeMy WebLinkAbout1996-1662VILLELLA98_01_21 ONTARIO EMPLOYES DE LA COURONNE CFIOWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUlTE60O, TORONTOONM5G 1Z8 TELEPHONEITELEPHONE (418) 328-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPIE (418) 328-13SH5 GSB #1662/96 OPSEU #96A31 1-414 IN THE MA'ITER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRTEV ANCE SETTLEMENT BOARD BETWEEN OPSEU (Villella) Grievor - and - The Crown 10 RIght of Ontano (Mimstry of the SolicItor General and Correctional ServIces) Employer BEFORE G,H. McKechme Vice-Chair FOR THE S Wahl UNION Counsel Koskie & Minsky FOR THE B Loewen C NikolIch EMPLOYER Counsel, Legal Services Branch Counsel, Legal ServIces Branch Management Board Secretanat Management Board Secretanat fQ.B WJ Hayter S. PATTERSON Counsel Genest, Murray, DesBrisay, Lamek HEARING December 17, 1997 2 The instant decision arises out of an earlier interim decision, dated October 30, 1997, which concerned the holding of a voir dire The background leading to that first decisIon, and now, to the instant decIsion, is that Mr D Olver, a wItness for the MInistry, was asked a series of questions on October 28, 1997, about activities that were alleged to have taken place during a break in his cross-examination At the hearing on October 29, 1997, the Interim decision was communicated to the parties orally and then put in writing and transmitted to the parties by the document dated October 30, 1997 Brrefly stated, the events that transpired on October 28, 1997, involved an allegation made by the gnevor, J Villella, that Mr Olver, Mr Patterson, Counsel for the Ministry and Ms Lindsay, Advisor, had acted improperly and that Mr Olver was party to discussions and/or documents concerning the evidence Mr Patterson took the position that the allegation was extremely serious and Involved hIs professional integrity and reputation (his position was referenced in paragraph 3, page 1 of the decision dated October 30, 1997) Mr Patterson argued that, If the issue was one of unethical practice, it had to be resolved by means of a VOir dIre to be held Immediately In the October 30th decision, I acceded to Mr Patterson's request Immediately after the hearing on October 28, 1997, prior to the opportunity to hold a voir dire, Mr Patterson became ill and was unable to continue Mr Patterson remains ill and, although a prognosis was requested, no prognosIs predicting his ability to attend at a hearing has yet been received By letter dated December 10, 1997, I communicated to Counsel for the Ministry and Counsel for the Union that, with respect to the allegation made by Mr Villella, I wanted to hear argument on the matter of the appropriate time to hold a voir dire, the right of Mr Patterson and/or his Counsel to be present, and the remedy or remedies that might be available On December 17, 1997, arguments were heard on the issue of the holding of the voir dire Present were Mr Loewen and Ms Nikolich for the MinIstry, Mr Wahl for 3 the Union and Mr Hayter representing Mr Patterson It was the Union's position that Mr Hayter had no standing as a party in this matter because Mr Patterson was not a party Mr Hayter was counsel to a witness in the matter of a vOir dire but could not have standing on the Issue of whether a vOir dire should be held, nor when It should be held Mr Hayter argued the opposing view that, since Mr Villella refused to give an undertaking that he would not pursue further action with respect to the allegation against Mr Patterson, the challenge to Mr Patterson's reputation remained and any finding arising from a vOir dire would therefore have a direct Impact on Mr Patterson's career The Issue, therefore, was cntlcal to Mr Patterson s reputation and Mr Hayter had to be given standing on Mr Patterson s behalf After reviewing these arguments, I allowed Mr Hayter to present his submiSSions on the Issue of a vOIr dire Mr Hayter took the position that the vOIr dire, as outlined in the deCISion dated October 30, 1997, was unnecessary Mr Hayter argued that the questions put to Mr Ol\. er on cross-examination were within the collateral fact rule because the alleged event and thus, questions about it, were collateral to the issue In this case, and the answers receIved were, therefore, final, Mr Olver's answers could not be contradicted In support of his argument, Mr Hayter referred to Re Zehrs Markets, A Division of Zehrmart Ltd and Retail Clerks' Union, Local 1977 (1986) 23 LAC (3rd) 124 (Weatherill) In addition, Mr Hayter referred to Evidence and Procedure In Canadian Labour Arbitration, M R Gorsky, S J Usprich and G J Brandt (Carswell) and The Law of EVidence in Canada, J Sopinka, S Lederman and A Bryant (Butterworths) Mr Hayter also argued that the issue had been misstated in my decision dated October 30, 1997, particularly Item 3 on page 2 In which I indicated that, "The Issue IS not the weight to be given to Mr Olver's eVidence Rather it IS the behaViour of the Ministry personnel " Mr Hayter argued that, should a vOir dire be held, the Issue was the weight of Mr Olver's evidence that may have been 4 affected should Mr Villella's allegation be proven and that the scope of enquiry could only concern what took place during the break in the hearing The MInistry, represented by Mr Loewen, supported Mr Hayter's arguments and JOined with him In the collateral fact rule application Mr Loewen argued that, should I find that the collateral fact rule did not apply, I should proceed with the mertts of the case and the matter could become part of the Union's case The Union could test the credibility of the Ministry's witnesses through appropriate cross-eXaminatIOn, if the Ministry decided to answer the matters, reply eVIdence could be called Mr Loewen also argued that, should I decide that a vOir dire was necessary, thus rejecting both the argument of the collateral fact rule and of making the Issue part of the Union's case, the voir dire had to await Mr Patterson s ability to return and be a witness in the proceedings Mr Wahl, for the Union, argued that the voir dire would have been held on October 30, 1997 except for Mr Patterson's sudden illness Because there is no firm prognosIs for Mr Patterson's recovery, it was Mr Wahl's argument that the Issue must be finalized because the Union was seeking remedies that would vitiate the eVidence of Mr Olver and prevent the testimony of Ms Lindsay, who was alleged to have taken part In the discussions during the break Mr Wahl argued that it would be an abuse of process to continue with the hearing only to find that such eVidence was vitiated in the final analysis Mr Wahl argued that the law was clear, the Crown Employees Collective Bargaining Act and the Ontario Labour Relations Act clearly indicate that the arbitrator controls the process and must take steps to prevent any abuse of process In this matter Mr Wahl referred to Re Trilec Installations Ltd ( 1997) B C L R BONo 236 (Bntish Columbia Labour Relations Board), Re Ottawa General Hospital and Ontano Public Service Employees' Union (1992) 28 L.A C (4th) 20 (Fraser), Re Jim Pattison Sign Co and International Brotherhood of Painters, Local 5 138 (1987) 29 LAC (3d) 161 (McColl) and Re National Automobile, Aerospace and Agricultural Implement Workers Union of Canada v Volkswagen Canada Inc (1991) OLRB Reports, December 19, 1991 In these cases, the issue was the protection of the evidentiary process which was the responsibility of the arbitrator It was Mr Wahl's argument that not only must the arbitrator prevent an abuse of proces~" but (s)he must take steps to Inform all wItnesses what the safeguards would be Mr Wahl also argued that I have the Jurisdiction to fashion a remedy If I find an abuse of process In this regard Mr Wahl referred to Re National-Standard Co of Canada Ltd and CAW-Canada, Local 1917 (1994) 39 LAC (4th) 228 (Palmer), Re Thompson Products Employees Association and Thompson Products Ltd (1970) 22 LAC 85 (Roberts), Re Beacon Hill Lodges lnc and Ontario Nurses Association (1990) 15 LAC (4th) 323 (Craven) and Re McLeod et al v Canadian Newspapers Co Ltd et al (1987) 58 0 R (2d) 721 (Sandler) These cases refer to remedy which Mr Wahl argued, demonstrates the need to hold a voir dire as soon as possible It was Mr Wahl's position that by his request to reconsider my decision to hold a vOir dire, Mr Hayter crossed the line from counsel to a witness to that of a party to the proceedings and it was Mr Wahl's position that this was improper Mr Wahl submitted an excerpt from the Statutory Powers Procedure Act Indicating the rights of a witness and also referred to Re Vapor Canada Ltd v McDonald et al (1971) 22 D L R (3d) 607 and Re Graphic Communications International Union Local N- 1 v Moore Corporation Ltd (1991) OLRB reports, May 1991 The Union also referred to Re OPSEU (Atkins/Taylor) and the Crown in Right of Ontario (Ministry of Trallsportatlon) G S B file 2035/93, 2036/93 (1996) (Kaufman) These cases referred to the role of a witness, and, by extension, the role of counsel to a witness 6 It was Mr Wahl's position that if no vOIr dire were held, and I accepted the argument of the collateral fact rule, witnesses could confer with impunity Further, If I allowed the Union to make these issues part of its case, and then allow reply eVidence, this would lead to delays in the proceedings In reply, Mr Loewen indicated that the Union's proposed remedies were Improper, given the situation and that the only allegation of impropriety concerned October 28 1997, [It should be noted that the Union indicated It had a second allegation for an incident on October 29 which It was prepared to communicate to Mr Loewen] Mr Hayter, on behalf of Mr Patterson, replied that Mr Patterson's Interest In the outcome of this issue was so critical that there was a rationale for him to have standing in thiS matter He referred to the Vapor case in which the issue was one of adverse effect and claimed that is the situtation with Mr Patterson Mr Hayter also Indicated that the holding of a voir dire in thiS matter could lead to the holding of a vOir dire every time an allegation was made with respect to any conversation Decision As previously Indicated, the October 30, 1997, decision states that a voir dire should be held It also indicates that I gave Mr Villella, Union, and Counsel the option of withdrawing the allegation and, If it was not withdrawn, a voir dire would be held in order for the allegation to be explored and the issue decided It is clear that this decision follows Mr Patterson's dIrect request that a voir dire be held to ensure that any allegation of unethical conduct was dealt with Immediately Mr Patterson s request and the linkage of the allegation to the eVidence in thiS case led to my decIsion to hold a voir dire It IS my opinion that the potential adverse effect 7 on Mr Patterson's reputation Justified my decision to allow Mr Hayter the opportunity to make submIssions, it is my view that the issue was more than simply Mr Patterson's role as a witness Mr Loewen, who succeeded Mr Patterson as Counsel for the MInistry and remains as Counsel for the MInistry, assisted by Ms Nikolich, also has taken the view that this is a collateral fact matter In addition, he presented an alternative argument As a result, it is my view that the Issues have been fairly joined With respect to the collateral fact rule, I reject the submissions of Mr Hayter and Mr Loewen Because there IS not absolute clarity In this matter, I do not take this step lightly Typically, In front of administrative tribunals, fairness and flexibility are the gUidelines that are followed Rules of natural Justice or fairness must apply, but strict rules of eVidence do not necessarily apply, for example, heresay eVidence can be admitted but not for its truth In the instant situation, where an allegation of unethical conduct has been made, a response IS logical Mr Patterson's response to the charge by Mr Villella was dear and unequivocal However, haVing said that, It is my view that the issue under consideration here, that Mr Olver's eVidence may have been affected by anything he overheard or saw dUring the break, IS a matter that can be tested Because his evidence could be affected, I find that thiS IS an exception to the collateral fact rule and goes directly to the eVidence of Mr Olver My decIsion dated October 30, 1997 indicated that, at Issue, II IS the behaViour of MInistry personnel" An arbitrator does not have the authority of the Law Society to enquire Into questions of ethical conduct I do have the jurisdiction to enquire into what transpired among the three persons at the break to see whether or not Mr Olver's eVidence was affected That is the behaviour that must be investigated The cases submitted by Counsel for the Union, Mr Wahl, emphasize that I am obllgah~d to control the process and must take steps to ensure that the eVidentiary process IS free from difficulty, as far as possible Mr Wahl submitted a number of 8 cases with respect to the remedy that might be available should there be difficulty with the eVIdence from a witness In Re Ottawa General Hospital, the Issue was retaliation against a witness and possible intimidation That is clearly not the case before me I conclude from that case that I must ensure that the hearing, proceeds In a fair way, In accbrdance with the requIrements of natural JustIce, and that such a duty Includes an obligation to protect the integrity of the reception of eVidence In so far as It IS possible II (pp 23- 24) In Re Jim Pattison Sign Co , the Issue was intimidation by one bargaining unit member against another bargaining unit member and, once again, thiS is a very different Issue In Re Volkswagen Canada, the Issue has some Similarities to the Instant allegation In that case, four witnesses discussed their eVidence prior to giVing their testImony, In contravention of the Board's direction The four witnesses admitted thiS dUring their cross- examinations The Ontario Labour Relations Board discounted their testimony, however, It heard the testimony first In Re National-Standard Co , the grlevor did not follow a direction of the arbitrator to provide documentation and the arbitrator dismissed the grievance The same situation occurred In Re Thompson Products In which the grlevor Withheld documentation and the grievance was dIsmissed In Re Beacon HIli Lodges, the grievor refused to accept board directions and the grievance was dismissed Finally, in Re McLeod et ai, counsel and client conferred dUring a discovery and It was held that in such cases, a second discovery could be ordered and diSCIplinary proceedings could be undertaken by the Law Society The Issue In each of these cases, with the exception of Re Volkswagen, is different than the one before me There has been no IntimidatIon or refusal of any party to provide documents or oral eVidence It IS clear from the Volkswagen case that the eVidence was heard and then weight assessed In the case before me, the Impact IS on Mr Olver's eVidence as a result of the alleged Incident on October 28, 1997 ThiS bnngs me to the question of whether a vOir dire is now necessary, haVing rejected the application of the collateral fact rule The deCISion dated October 30, 9 1 997, was made under very different circumstances than now eXIst At the tIme that the decIsion was made, I had been asked, directly, by Mr Patterson to hold a vOIr dire to settle the matter of alleged unethical conduct I acceded to that request, understanding the concern about personal reputation The Issue was serious and a vOir dire was, In my respectful opinion, Indicated because the findings could have an Impact on Mr Patterson's abIlity to continue as Counsel for the Ministry In the gnevance before me The situation, given Mr Patterson's Illness, has now changed dramatically Mr Patterson is no longer Counsel for the Ministry and I have been Informed that Mr Loewen and Ms Nikolich wIll remain as Counsel throughout the completion of this hearing As a result, any action of Mr Patterson IS no longer of Import, with the exception of what took place dUring the break on October 28, 1997, and whether there was any impact on the evidence of Mr Olver The Issue therefore IS IS there now a reason to have a separate "trial", that IS a vOir dIre, to decide If the allegation of Mr Villella IS true and If so, whether Mr Olver's evidence was affected, and, further, will there be any impact on eVidence to be given by Ms Lindsay? In my opinion, there is no reason to have a separate vOir dire on this matter I reach this conclusion for two reasons First, if a vOir dire is held on this Issue, every allegation made in future could result In a vOir dire which would sidetrack an already very long arbItration hearing, increasing Its length and delaYing the finalizatIon of this case for an exceedingly long period of time In my OpiniOn, thiS, In Itself, would be an abuse of process I have urged both parties to proceed as expeditiously as possible and to stop now for a vOir dIre, given the changed situation, would not be appropriate The second reason, already stated, IS that the situation has now changed dramatically I do not deny that if Mr Patterson had not taken III, a vOir dire would have been held, In all likelihood, on Octobu 30, -, 997 However, given Mr Patterson's absence as Counsel, the need for a vOir dire IS now removed 10 The Issue, then, IS how to proceed to determine the events that took place on October 28, 1997 It IS my decisIOn that the most expeditious way of proceedrng rn thIs matter IS to allow the Unron to make this issue part of its case, If they choose to do so Mr Olver has already been cross-examined on the events The Mrnlstry has rndlcated that Ms Lindsay will be a witness in this case and can be cross-examrned The Union, as part of Its case, may put questions to its Witnesses, the Mrnistry, if It so chooses, can then reply to such allegations If they are made It IS my view that this Will not unduly delay the proceedings, rather It will speed thrngs up srnce the parties can now get on with the ments of the case I will contrnue to admOnish all witnesses that they are prohibited from discussing their eVidence and I will make them mindful that, if they ignore this admonition, their eVidence IS subject to discounting, either totally or in part As a result, the vOir dire will not be scheduled 21st Dated at Toronto thiS day of January, 1998 , .... I / .. ,,"'1' / ~_.- w II I / ./ ''',<,,/ fi" I ,~_ . , Graeme H McKechnIe Vice ChaIr