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HomeMy WebLinkAbout1996-1735.CARTER98_04_14 .. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST, SUITE 800, TORONTO ON M5G tZ8 TELEPHONE/TELEPHONE (418) 328-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G tZ8 FACSIMILE/TELECOPIE (418) 328-13~ GSB# 1 735/96 OLB#245/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Carter) Grievor - and - The Crown In Right of Ontano (LIquor Control Board of Ontano) Employer BEFORE N DIssanayake Vice-ChaIr FOR THE J Noble UNION Legal Counsel Ontano LIquor Board Employees Umon FOR THE M. G Sherrard EMPLOYER Counsel Ogilvy Renault Barnsters & SolicItors HEARING March 20, 1998 ~ 2 INTERIM DECISION The grievor Ms Colleen Carter has grieved that the employer violated article 20 of the collective agreement in that she has not received long term income protection benefits notwithstanding that she has been totally disabled within the meaning of article 20 This interim decision deals with a request by union counsel, which was opposed by the employer, that the Board exerClse its discretion to admit a number of medical reports from 5 doctors for the truth of their contents, without requiring that the authors be produced for the purpose of cross-examination by the employer Alternatively, the union claimed that if the Board disagrees, the costs of producing the doctors for cross- examination should be borne by the employer In this regard, counsel advised the Board that the doctors (it was not specified how many of the five) had indicated that they would be demanding "at least $ 1,500 00 per day" to testify before the Board Counsel relied upon section 48 (12) (f) of the Labour Relations Act and section 52(2)of the ontario Evidence Act and Re Toronto (Metropolitan) , (1992) , 25 LAC (4th) 73 (Springate) and Re st Jean de Brebeuf Hospital, (1977) 16 LAC (2d) 298 (Beatty) The Right to Cross-Examination on Medical Reports This Vice-Chair, sitting as sole arbitrator, recently had occasion to deal with this issue in Re Air Canada & I AM, unreported award dated March 12, 1998 I quote from that award as follows The applicable principles on this lssue have been reviewed in Re Miracle Food Mart of Canada, (1996) 58 LAC (4th) 232 (Mi tchnick) In that case it was the union that sought to file two medical reports In evidence without calling the doctors who authored them The employer objected to the filing of the documents unless the union undertook to produce the , 3 doctors for cross-examination At pp 234 to 235 the arbitrator wrote To begin wi th, it should be noted that arbitrators, and boards of arbitration, as a more informal alternative to the Courts, are expressly granted in what is now section 48 (12) (f) of the Labour Relations Act, 1995, c 1, Sch A, the latitude (f) to accept the oral or written evidence as the arbitrator or the arbitration board, as the case may be, in its discretion considers proper, whether admissible in a court of law or not Notwithstanding that, however, it must be recalled that the "rules of evidenceu by and large are grounded in notions of fairness, and the Courts, in considering the use of section 4 8 (12) (f) , have held that arbitrators, making binding determinations on the parties as they do, are nonetheless expected to act on evidence having "cogency at lawu See e g R V Barber, (1968) 2 o R 245, 68 D L R (2d) 682) (Ont C A ), Girvin v Consumers' Gas Co (1973) , 40 D L R (3d) 509 (Ont Div ct ) Not inconsistent with that, arbitrators in particular cases have ruled that, as a recognized, statutory exception to the hearsay rule, the reports or statements of medical practitioners are able to be tendered into evidence without calling the doctor - but at the very least may be entitled to little weight See, for example Re st Jean de Brebeuf Hospi tal and CUPE, Loc 1101 (1977) 16 LAC (2d) 199 (Swan) , Re Steel Co Of Canada Ltd And U S W , Loc 1005 (1975) , 8 LAC (2d) 298 (Beatty) In Re Toron to (Metropoli tan) and CUP E , Loc 79 (1992) , 25 LAC (4th) 73, arbitrator Springate reviewed these and other cases submitted and came to the conclusion the general arbitral practice is to accept a medical report into evidence without requiring that the doctor who prepared it be called as witness In light of this general practice, this board of arbitration is prepared to exercise its discretion under s 45 (8) of the Labour Relations Act and admit the reports of Dr Choy and Dr Lilker into evidence with respect to the truth of the contents of the reports, without requiring that the doctors be called as witnesses The weight, if any, to be given to the reports will be decided in light of all the oral and ~ 4 documentary evidence led by the parties (page 80) The arbitrator in the course of that conclusion noted, however As indicated in the above excerpt as well as in the Steel Co Of Canada case, an arbitrator is not bound to accept the statements contained in a medical report In the st Jean de Brebeuf Hospital award an employee's claim to have been ill, although supported by a medical certificate, was rejected by arbitrator (page 77) Arbitrator Springate followed that approach some three months later, ln Re Canadian Airlines International Ltd And CUP E, Airline Division (1992), 27 LAC (4th) 311, and went somewhat further in stating, at page 314 The general practice of arbitrators is to admi t into evidence reports prepared by physicians without requiring that the physician be called as a witness The other party is, however, generally provided with a copy of such a report prior to the hearing This gives the other party an opportunity to consult with its own medical experts concerning the contents of the report It also enables the other party to decide whether to subpoena the physician who prepared the report to the hearing so that he or she can be questioned about its contents In the instant case the Company was denied this opportunity In the result, I ruled that I would not accept the April 29, 1992 report into evidence Given that concluding sentence, however, it can be seen that the comment of Mr Springate concerning the subpoenaing of the other side's doctor was essentially obiter What I take the arbitrators to be saying in cases like those referenced above is that "We have a statutory discretion to admit evidence not necessarily admissible in a Court of Law, medical reports, in particular, have been recognized by the Evidence Act as a possible exception to the hearsay' rule if you wish to file your report without calling the doctor, I'll let you do it; but be on notice that that limited manner of providing the evidence before me may go to its weightN That way of approaching the matter, I would comment, might well be appropriate ~ 5 where the "medical" document is of such limited and peripheral value in any event that it can fairly be admitted and accepted at face value without the time, expense and inconvenience of bringing the doctor to the hearing; for example, where it simply confirms the date and/or occurrence of a medical appointment, or perhaps even where it sets out in purely objective terms a course of treatment Where the medical report is in any way subjective and consequential, however, arbi tra tors ought to be loa the to give even the appearance of allowing themselves to be influenced by such evidence, without according the other side if it insists the tradi tional righ t, in line wi th "na tural justice", to subject the evidence to cross- examination And where the arbitrator can see that the content of the disputed report is such that, as a matter of fairness, he or she would have no intention of relying on it without further and better evidence, the party tendering the report ought to be advised of that, rather than simply having the report admitted by the arbitrator See, for example, Re Seagram Distillers Ltd Amd Distillery, Wine and Allied Workers' International Union, Locs 48, 64, 190, 191 & 200 (1983), 11 LAC (3d) 166, wherein arbitrator Pam Picher at page 173 observed Counsel for the company obj ected to the admission of this (medical) document because at the time of the hearing Dr Lawson was in New Zealand and could not be cross-examined I agree with the company that without the support of direct testimony and cross-examination, the opinion cannot be used to establish that Ms Tutton was physically able to perform Class A work (Emphasis added) In Kapulica v Dumancic, (1968) 2 0 R 438 (Ont CA ), the court considered the effect of what is now s 52(2) of the ontario Evidence Act, which states 52(2) A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practi tioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action ~ 6 In that case the trial judge had admitted into evidence a report from a doctor which supported the plaintiff's allegation that the fracture suffered by the plaintiff was sustained by a tremendous blow and that it was unlikely that such an injury would result from a falloff a set of stairs The defendant was denied an opportunity to cross-examine the doctor who authored the report At p 441 on, the Court wrote The amendment to the Evidence Act now embodied in s SOa brings about a wholesome procedural change made in the public interests It does not make any change in the law as to the respective obligations of parties arising out of the issues before the Court It merely permits certain relevant evidence with the leave of the Court, to be given ln written form It recognizes the undesirability of the encroachment on the time of medical practitioners and of the Court that results, in many cases, from adducing expert medical testimony, in the traditional manner The amendment is procedural its effect is to provide an alternative method by means of which the Court may admit the evidence of a professional medical witness without the necessity of bringing that witness physically into Court and having his examination conducted in the face of the Court The use of this alternative method in appropriate cases is beneficial to the litigants, to the Court and to the members of both the legal and medical professions It is not, however, designed to provide a means whereby expert medical testimony may be protected from the process of testing and refinement by cross-examination, nor is its purpose to deny the Court the benefit of an objective appraisal of the nature and extent of physical and mental disabilities reported upon and a reasonable statement of the observable data upon which the opinion is based It follows from my understanding of the purpose of the amendment that, by tendering for admission a medical report which complies with the requirements of s SOa the party tendering it constitutes the ~ 7 medical practitioner who signs it his witness as fully as if he had produced him in Court and examined him under oath consequently, that medical practitioner, if in the same trial brought into Court and placed in the witness-box, continues to be the witness of the party who tendered his report He is subject to cross-examination not only upon his evidence given orally but also on the evidence given by means of the medical report in the same manner as he would have been if he had given oral testimony in the words of the report The only restriction with respect to the cross- examination of the medical practitioner whose signed report has been admitted lies in the responsibility of the opposite party to bring that medical practitioner before the court and the risk as to the cost which may be imposed upon him by virtue of s 50a(2) It is apparent that in the light of the view I have expressed, the doctor signing the report became a witness of the party on whose behalf the report was tendered that there was an absolute right of cross- examination on the part of the defendant and that the denial of this right of cross- examina tion, particularly in view of the relevance of the evidence as to causation, was in itself grounds for the granting of a new trial (Emphasis added) In Briand v Sutton (No 2) (1986), 15 C P C (2d) 36 (Ont H C J ), Mr Justice Potts, in upholding the posi tion of the defendant that the admission of a medical report should be made conditional on the availability of the author for cross-examination, stated at p 38 As a matter of practice, at least in a case where there is a contradiction between medical reports of the respective parties, the discretion is exercised in favour of requiring the medical practitioner to give oral testimony ~ 8 In any event, in my view, the right of cross-examination is paramount and I would be loathe to exercise my discretion by denying to counsel for the defence the right of cross-examination (Emphasis added) In a decision of the Grievance Settlement Board in Re Mayer (LeBO), decision dated December 11, 1995 at p 7, arbitrator Roberts summarized the arbitral principles that govern admission of medical reports as follows From my review of applicable authority, it would appear that the most appropriate formulation of general arbitral procedure regarding the admission into evidence of reports of medical practitioners is as follows (1) upon agreement between the parties, a report of a medical practitioner may be admitted into evidence without calling the practitioner to testify; (2) however, if the opposing party wishes to cross-examine the practitioner who wrote the report, arbitral discretion will generally be exercised to condition its admission into evidence upon production of the medical practitioner for cross- examination; and (3) generally, it is the responsibili ty of the party relying upon the report to produce the practitioner for cross-examination Finally, where the practitioner is unavailable for cross- examination, the medical report may be admitted or excluded in the discretion of the arbitrator, properly exercised in light of the circumstances of each individual case In Miracle Food Mart, (supra) at p 244, arbitrator Mitchnick cited the above passage with approval, but declined to exercise his discretion in favour of admitting the medical reports without cross- examination, stating I do not disagree with any of the above formulation Indeed, in the present case, with the medical "reports" so subjective and germane to a central issue in the case, there is no possibility that I in the ~ 9 exercise of my discretion would admit them into evidence without the requested undertaking by the employer to have the doctors appear on the witness-stand for cross-examination Counsel for the employer in the present case conceded that the law as set out in the foregoing cases is "good law" Nevertheless, he urged me to consider the particular circumstances of this case and exercise my discretion to admit the documents for the truth of their contents, despite the absence of a right to cross-examination The main thrust of the employer's argument was that the admission of the reports was critical to the defence of the employer's case He conceded that the absence of the right to cross-examination would result in a denial of natural justice to the grievor and the union He expressed his sympathy with the union in that regard However, he submitted that "natural justice is a two-way street" In other words, if the reports are excluded in order to protect the union's right to natural justice, the employer would be denied critical evidence upon which it relied and which it needs to defend its case That, he submitted, would infringe upon the employer's right to natural justice, i e the right to a full defence Counsel pointed out that this was not a case where the employer was refusing to produce the authors of the reports for cross-examination Rather, the law prevents it from doing so and therefore it was beyond the employer's control There is no question that in appropriate circumstances an arbitrator has the discretion to admit evidence that may not be admissible in a court of law However, in exercising that discretion arbitrators have consistently held that a medical report will not be admitted into evidence without the right to cross- examination, (except on consent), where the medical report 1S "subjective and germane to a central issue in the case " (Re Miracle Mart, supra) There can be no doubt that these two reports fall into that category The reports are about the physical fitness of an individual to perform particular tasks They are in effect professional opinions The subjective nature of the reports is highlighted by the fact that the conclusions in those reports are contradictory to the opinions reached by another professional, the grievor's physician Dr R S Bhatia, who testified and was subjected to cross-examination There can be even less doubt that the two reports are germane to a central issue in this case Indeed the employer has ~ 10 itself suggested that the reports are critical to the issue of the grievor's fitness, which is the determinative issue in this grievance That fact, rather than favour the admission of the reports without cross-examination, is reason to refuse to exercise the discretion in favour of admission (See the quotation from Mr Justice Potts in Briand v Sutton reproduced supra at p 7) The fact that the unavailability of the authors of the reports for cross-examination was a matter beyond the control of the employer, in my view, ought not have any bearing The focus is on the denial of the right of the union to cross-examination and the resulting prejudice and unfairness, not the employer's intentions or good faith This case is no different than Re Seagram Distillers (supra) where the union could not produce the author of the medical report for cross-examination by the employer because he was in New Zealand That did not deter the arbitrator there from refusing to admit the medical report I cannot agree with employer counsel that the refusal to admit these two reports in these circumstances resul ts in a breach of natural justice against the employer The employer does have a right to fully defend its case However, the employer cannot claim that this right includes a right to prove its case through evidence which is not properly admissible under the law I do not find any compelling reason here, that ought to cause me to depart from the principle that an arbitrator ought not exercise his discretion to admit a medical report without providing a right to cross- examine, where that medical report is subjective and germane to a central issue in the case As apparent, in reaching the foregoing conclusion, I considered the same statutory provisions and case law relied upon by the union in this case In Re Air Canada the medical reports were excluded despite the common position of the parties that the authors of the reports were not compellable witnesses In the present case such a legal barrier lS not claimed Rather, union counsel stated that the doctors in question "will be very displeased if they are required to testify and may resist any summons issued" and further that they are "demanding payment of at least .. 11 $ 1,500 00 a day for testifying H Upon being questioned by the Board as to whether there is any law that treats doctors any differently with regard to the obligation to comply with a summons tQ witness, counsel could only point to S 52(2) of the Ontario Evidence Act However, as evident from the emphasized portion in the excerpt from Kapulica v Dumancic, (at p 6 Supra) , that statutory provision was not intended to circumvent or restrict the right to cross-examination of authors of medical reports No law has been brought to the Board's attention which indicates that a doctor under a summons to witness is in any different position than any other person under summons There are no circumstances here which persuades the Board to exercise its discretion any differently than in Re Air Canada I have had the benefit of reviewing the medical reports in question Generally it is fair to state that they contain subjective opinions by the authors In the majority of cases the authors do not make it clear as to how and why such opinion was reached Also the reports contain opinions which, according to the employer, are in conflict with the opinions expressed by other doctors, whose reports and testimony will be relied upon by the employer And finally, there is no dispute that these medical reports directly relate to the central issue in this case, namely the ability or disability of the grievor to perform the duties of her position As indicated by the jurisprudence reviewed earlier, these are all considerations that favour the exercise of the adjudicator's discretion in favour of requiring cross- examination On the other hand, there is little in favour of the union's position in terms of prejudice or unfairness Unlike in Re Air Canada, these doctors are compellable pursuant to a summons The fact that the doctors may be displeased if required to testify is not, in the Board's ~ 12 view, a consideration that can have any bearing on the issue On the issue of monetary costs, the union has not pointed to any law which obliges it to pay to a doctor under summons any amount of money in addition to the legal entitlement for conduct money In all of the circumstances the Board rules that the medical reports will be admitted as permitted by s 52(2) of the Evidence Act, but on condition that their authors will be produced for cross-examination, if so requested by the employer The responsibility for producing the doctors for cross-examination and for the associated costs The Board next turns to the union's alternate position that, if the employer wishes to cross-examine the doctors who authored the reports in question, the responsibility for securing their attendance to testify and for the costs involved should be borne by the employer The issue of responsibility for producing a doctor for cross- examination in these circumstances was directly addressed by Potts J In Briand v Sutton (No 2) (1986), 15 C P C (2d) 36 (Ont H C J ) at pp 38- 40 as follows The next but very narrow issue before me at this juncture is who is responsible to require the attendance of the doctor Counsel for the defendant referred me to Carew v Loblaws Ltd (1977), 18 0 R (2d) 660, 83 0 L R (3d) 603(Ont H C ), a decision of Holland J , who said at p 663 [0 R } "I am of the view that adoption by a party of the procedure in s 52 by the filing of a medical report obliges the party to have available for cross-examination, if ~ 13 required by the party adverse in interest, the doctor whose report has been adopted Nothing has been said in any of the cases as to the procedure for having the doctor before the Court and it may well pe that a party adverse in interest could by subpoena require the attendance of that doctor In my view, once a party files a medical report that party becomes obligated to produce that doctor before the Court and for the purpose of cross-examination by the party adverse in interest, if so requested " He goes on "In the present case I hold that the plaintiff is obliged to file the letter of November 1, 1977, and, if requested to do so by the defence, is obliged to provide for the attendance of Dr Johnston before the Court as part of the plaintiff's case so that Dr Johnston may be cross-examined by the defence " I don't agree with counsel for the plaintiff that either s 52(4) or the decision in Kapulica, supra, is authority for the proposition that there is an obligation upon the party objecting to the filing of a medical report to requlre the attendance of that medical practitioner at the trial Equally, the statement of Kelly, JA, which says "The responsibility of the opposite party to bring that medical practitioner before the Court " is consistent with the same interpretation, i e , of requiring the party who lS tendering the report to arrange for the attendance of the medical practitioner at trial Even if the statement was to be construed in accordance with the argument of counsel for the plaintiff I consider that it is obiter and is not binding upon me because the issue in that trial was not this narrow issue ~ 14 Moreover, the fact that Kelly, J A , referred to the procedure which, in fact, had taken place where counsel for the defendant had compelled the attendance of the doctor by means of a subpoena, was only a commentary as to what, in fact, had happened and it did not cast the procedure in stone At p 41 Potts J summed up as follows Accordingly, I find that the obligation is on counsel for the Plaintiff to produce the medical practi tioner in any instance where I exercise my discretion and sustain an objection to the filing of the report and permit the moving party to require the medical practitioner to give oral testimony The following statement by Kelly J A about what is now section 52(2) of the Ontario Evidence Act in Kapulica v Dumancic (supra) at p 441-42 is entirely consistent with the ruling by Potts J [The section] does not make any change in the law as to the respective obligations of parties arising out of the issues before the Court by tendering for admission a medical report which complies with the requirements of s 50a, the party tendering it constitutes the medical practitioner who signs it his witness as fully as if he had produced him in Court and examined him under oath In Re Miracle Food Mart (supra), arbitrator Mitchnick was faced with the issue as to "which party was responsible for making the necessary arrangements to have the doctor at the hearing and flowing inferentially out of that, for paying the doctor's "costs"" At pp 241-244, the arbitrator reviewed the jurisprudence with approval There is ample arbitral "jurisprudence" now understanding and applying the section in the same ~ 15 way In Re Metropolitan Toron to Association of Community Living and CUP E , Loc 2191 (McMillan) , an unreported decision of Maureen Saltman dated February 14, 1994 [summarized 34 C LAS 39], the arbitrator noted that The Union asked that I exercise my discretion to admit the medical reports without requiring that the doctor be produced for purposes of cross-examination Ms Saltman's ruling was not equivocal in any respect In my view, the Employer's position must prevail Firstly, the courts have recognized (1) that there is an obligation on party who seeks to file a medical report to produce the doctor who prepared the report for purposes of cross-examination, and (2) as a corollary, that the doctor becomes the witness of the party on whose behalf the report is filed see Kapulica v Dumancic, [1968] 2 o R 438 (Ont C A ); Carey v Loblaw's (sic) Ltd (1977) , 18 o R (2d) 660, 83 D L R 603 (H C J ); Briand et al V sutton (1986) , 57 o R (2d) 629 (H C J ) To similar effect are the following arbitral awards Re Bramp ton Hydro-Electric Commission and International Brotherhood of Electrical Workers, Local union 636, Grievance of Cook, February 16, 1990 [Devlin (unreported) ] and Molson's Brewery, August 1, 1980 [Weatherill (unreported) referred to in Weatherill, Labour Arbitration Procedure (Canada law Book) , at pp 66-67 ] Furthermore, although Subsection 45(10) of the Labour Relations Act allows an Arbitrator to admit and act upon evidence which may be inadmissible in a court of law, there is no indication that this Section was intended to compromise procedural fairness, which includes the right to cross-examination To the extent that other arbitral awards have come to a different conclusion on the matter, I decline to follow them Accordingly, it is my ruling that if the Union chooses to submit medical reports and the Employer requests the opportunity to cross-examination on these reports, the doctor must be produced for this purpose ~ 16 Given the opening question, that reference to "must be produced" clearly meant "by the Union" Further elucidation of that can be found in the case referred to by Ms Saltman, Re Brampton Hydro-Electric Commission and I B E W Loc 636 (Cook) [summarized 17 C LAS 66] That case sets out, at page 9 III THE DOCTOR'S ATTENDANCE AT THE HEARING Each of the parties has served notice on the other of an intention to introduce certain medical reports and at this point, the Employer has advised the Union that it wishes to cross-examine the author of at least one of the reports The parties disagree, however, about which of them is responsible for arranging for the doctor's attendance and for paying any associated costs It was the submission of Mr West that when a doctor is made available for cross- examination following the introduction of a medical report, the doctor testifies as a witness for the party relying on the report That party, therefore, is responsible for arranging for the doctor's attendance at the hearing and, in the first instance, for paying any associated costs Mr West pointed out, however, that pursuant to section 52(5) of the Evidence Amendment Act, 1989, the Court has a discretion to direct the party that required the doctor's attendance to pay an appropriate sum by way of costs if the Court is of the opinion that the evidence could have been produced as effectively by way of a medical report Mr West suggested that I have a similar discretion and that I adopt a similar procedure to deal with costs of the attendance of any doctor made available for cross-examination in this case In my view, the procedure proposed by the Employer is an appropriate one Firstly, I agree with the Employer that where a medical report is filed and the opposing party requests the opportunity for cross- ~ 17 examination, the doctor testifies as a witness for the party relying on the report In the normal course, therefore, that party is responsible for arranging for the doctor's attendance at the hea~ing In the first instance, that party should also be responsible for the costs associated with the attendance I am satisfied, however, that I have jurisdiction to award a sum by way of costs to be paid by the opposing party if I ultimately determine that the doctor was required to give oral evidence unnecessarily In my view, an award of costs in these circumstances is to be distinguished from an award of the usual costs associated with arbitration proceedings or with the costs of a board of arbitration for which the procedure for payment is mandated by the Collective Agreement The issue was once again canvassed in detail by arbitrator Roberts at the Grievance Settlement Board in LeBO (Mayer) , decision dated December 11th, 1995 That award began by noting At the outset of this arbitration, counsel for the union stated that she wished to introduce into evidence a medical report from eh grievor's family doctor without calling the doctor aw a witness Counsel for the employer objected, claiming that to admit the medical report without requiring the union to call the practitioner who authored it would be tantamount to denying the employer its right of cross- examination Thereafter, the parties made submissions upon the issue and te hearing was adjourned pending the preparation of this interim award For reasons which follow, it is concluded that the union may introduce the medical report in its case without calling the doctor to testify on direct examination; however, the admission into evidence of the medical report is subject to a condition that the union produce the doctor for purposes of cross- examination should the employer so require At page 4 of those reasons the Board wrote As to which party has the responsibility to produce the medical practitioner for .. 18 purposes of cross-examination, the Court of Appeal in Kapulica took the view that this was the responsibility of the party that wished to cross examine the practitioner Id at 443 Subsequently, however, the High Court concluded that this responsibility belonged to the party that introduced the medical report It was this party, after all, that had constituted the medical practitioner its witness by filing his or her report See Carew v Loblaw's'S Ltd (1977) , 18 0 R (2d) 660, 663 (H C J ), and Briand v Sutton (1986) 15 C P C (2d) , 36 41 (On H C J ) The view taken by the High Court seems to be in harmony with the statutory scheme of section 52 Under this scheme, unnecessary demands for production of medical practitioner for cross-examination are discouraged section 52 (5) empowers the court to order the party requiring the attendance of the practitioner to pay as costs of the attendance "such sum as the court considers appropriate" if the court "is of the opinion that the evidence could have been produced as effectively by way of a report " Id The "costs" penalty of section 52 (5) seeks, inter alia, to guard against the prolongation of court proceedings that would result from the use of a tactic of automatically requiring an opposing party to produce a medical practitioner for cross-examination every time it seeks to introduce a medical report This is one of the inefficiencies that section 52 was designed to eliminate Mr Roberts goes on to observe that whether arbitrators have a similar power to award such costs is "not free from doubt" However, Mr Roberts concludes that the requirement for both sides to share in the full costs of arbitration hearings (as opposed to Court hearings) is a sufficient disincentive against the prolongation of hearings unnecessarily, and adopts the line of approach set out in the Brampton Hydro, etc cases He concludes, commencing at page 7 it does not appear that, in general, the locus of the responsibility to produce ~ 19 a medical practitioner for cross- examination upon his or her report should be any different in labour arbitrations that it is in proceedings before the courts It is the party that relies upon the report that must bear this responsibility By introducing the medical report and relying upon it, this party constitutes the practitioner his own witness just as surely as if he or she had been called to give direct testimony in the party's case-in-chief Absent compelling reasons to the contrary, it seems reasonable and fair to require a party to make its own witness available for cross- examination There do not appear to be any such compelling reasons in the general context of labour arbitration Further It was brought to my attention in the course of the submissions of both counsel that some arbitrators have either denied cross-examination entirely or required the party wishing to cross-examine to bear the responsibility of producing the medical practitioner fro cross-examination upon his or her report See Municipali ty of Metropolitan Toron to, supra After a number of prior authorities were reviewed in this case, it was broadly concluded "The cases referred to above indicate that the general arbitral practice is to accept a medical report into evidence without requiring that the doctor who prepared it be called as a witness " Id At 80 A review of these authorities, however, seems to disclose but slender support for such a broad proposition After going through those cases, the arbitrator summarizes the proper position as follows From my review of applicable authority, it would appear that the most appropriate formulation of general arbitral procedure regarding the admission into evidence of reports of medical practitioners is as follows (1) upon agreement between the parties, a report of a medical practitioner may be admitted into evidence without calling the practitioner to testify; (2 ) ~ 20 however, if the opposing party wishes to cross-examine the practitioner who wrote the report, arbitral discretion will generally be exercised to condition its admission into evidence upon production of the medical practitioner for cross- examination; and (3) generally, it is the responsibili ty of the party relying upon the report to produce the practitioner for cross-examination Finally, where the practitioner is unavailable for cross- examination, the medical report may be admitted or excluded in the distinction of the arbitrator, properly exercised in light of the circumstances of each individual case The foregoing jurisprudence is to the effect that the responsibility for producing the doctors for cross-examination, and at least initially, for the costs of doing that, is on the party that relies on the medical reports being filed In this case, that is the union The decisions support the proposition that s 52(5), which provides that, (5) If a practitioner is required to give evidence In person in an action and the court is of the opinion that the evidence could have been produced as effectively by way of a report, the court may order the party that required the attendance of the practitioner to pay as costs therefor such sum as the court considers appropriate, gives the Board jurisdiction to award a sum of money as costs if the opposing party unnecessarily or frivolously requires a doctor to be produced for cross-examination In Re Brampton Hydro at p 9, arbitrator Saltman pointed out that "an award of costs in these circumstances is to be distinguished from an award of the usual costs associated with arbitration proceedings or with the costs of a board of arbitration for ~ 21 which the procedure for payment is mandated by the Collective Agreement" In Re Miracle Food Mart, supra, at p 244, arbitrator Mitchnick observed I agree with arbitrator Devlin (although the employer in fact conceded the matter in the Brampton case) that arbitrators have the discretion to make the assumption of the risk of an award of costs ultimately being made along the lines of section 52 (5) a condition of acceding to that opposing side's insistence that the author of the medical report be called That I see as part of an arbitrator's overall discretion in the control of its proceedings, and an exercise of power not likely to offend the Courts In light of section 52(5) of the Evidence Act This Board itself in Re Mayor (supra) at p 4-5 stated The view taken by the High Court seems to be in harmony with the statutory scheme of section 52 Under this scheme, unnecessary demands for production of a medical practitioner for cross-examination are discouraged section 52 (5) empowers the court to order the party requiring the attendance of the practitioner to pay as costs of the attendance "such sum as the court considers appropriate" if the court "is of the opinion that the evidence could have been produced as effectively by way of a report " Id The "costs" penalty of section 52(5) seeks, inter alia, to guard against the prolongation of court proceedings that would result from the use of a tactic of automatically requiring an opposing party to produce a medical practitioner for cross-examination every time it seeks to introduce a medical report This is one of the inefficiencies that section 52 was designed to eliminate Counsel for the union argued that the interpretation of section 52(5) in the foregoing decisions is incorrect She took the position that the provision does not give jurisdiction for the Board to award costs against the opposing party requiring production of the doctor for cross- examination She used this argument to augment her primary position that ~ 22 there is no requirement to produce the doctors for cross-examination in the first place Despite counsel's well articulated submission, the Board has rejected the union's primary position In the circumstances, the Board does not consider it appropriate or necessary to determine in this case whether or not the Board has jurisdiction to award costs against an opposing party which frivolously or unnecessarily requires a doctor to be produced for cross-examination The present law, at least as far as Grievance Settlement Board jurisprudence is concerned, is as set out in Re Meyer If a subsequent panel of the Grievance Settlement Board lS to consider whether the decision in Re Meyer lS incorrect, it must be done in the context of a situation where costs have become an issue In the present case the issue is merely speculative Following this decision, the union will have to decide, which medical reports it wishes to file and rely upon The employer then would have to consider whether it wishes to cross-examine the authors of any of the reports so filed If requests for cross- examination are made, it would be up to the union to decide whether to seek costs on the grounds that such requests were frivolous or unnecessary The issue of Board's jurisdiction will only arise if all of the foregoing transpires and the Board concludes that the employer's requests were frivolous or unnecessary In this case the issue is speculative and the Board has not received full legal argument In the circumstances, the Board is not prepared to make a decision in anticipation In summary, it is the Board's finding that the union's entitlement to file the medical reports for the truth of their contents is conditional upon the union producing the authors for cross-examination at its own cost, ., 23 if requested by the employer The union is directed to notify the employer in writing as to which medical reports it wishes to file and rely upon The employer is directed to then to make its request to the unlon in writing as to which reports it wishes to cross-examine upon This proceeding will continue on the dates scheduled (If. ~ Dated this ~h day of April, 1998 at Hamilton, Ontario ~ Nima Dissanayake Vice-Chairperson