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Home My WebLink About1996-2091.OHORODNYK98_09_04 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 100, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G IZ8 FACS/MILEITELECOPIE (416) 326-1396 GSB # 2091/96 OLB 288/96 IN THE MATIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Zenon Ohorodnyk) Grievor - and - The Crown In Right of Ontano (LIquor Control Board of Ontano) Employer BEFORE Owen V Gray Vice-ChaIr FOR THE Julia Noble GRIEVOR Counsel Ontano LIquor Boards Employees Umon FOR THE Michael G Sherrard EMPLOYER Counsel Ogilvy Renault Bamsters & SoliCItors HEARING May 27,1998 Wntten SubnussIOns Received on July 15 and 30, 1998 DECISION [1] ThIs grievance IS about whether the grIevor has been Improperly demed long term I.ncome protectIOn benefits provIded for m the parties' collective agreement, The dIspute turns on whether at relevant times the grIevor was to- tally dIsabled wIthm the meamng of ArtIcle 20 of the collective agreement. I am told that at variOUS times the gnevor's psychiatrist and a psychiatrist who ex ammed hIm at the employer's request expressed dIfferent opmIOns on whether and under what condItions the grIevor could return to work. [2] When thIS matter came on for hearmg, counsel for the umon asked that I rule m advance on whether the umon could mtroduce mto eVIdence a report or reports written by the grIevor's psychIatrist, wIthout bemg oblIged to produce the author for cross-exammatIOn If employer counsel so reqUIred, on the baSIS that the faIlure to produce the author mIght go to the weIght but not to the admIssI bIlIty of the report or reports There was no suggestIOn that the psychiatrist IS beyond the reach of a summons, only that she would expect to be paId for so do- mg If summoned to testify m these proceedmgs Umon counsel argued that the employer should be oblIged to secure the psychiatrist's attendance If It WIshes to cross-examme on the reports Alternately, she argued that "the Board of ArbItra tIon ought to find that the party reqUIrmg the doctor to attend the hearmg should pay the assocIated costs, If the Board finds that It was not, on balance, necessary for the doctor to attend" She asked, m other words, that I rule m ad i vance that I have a JUriSdIctIOn SImIlar to that conferred on courts by subsectIOn 52(5) of the Emdence Act [3] These Issues have been canvassed by the Board, dIfferently constituted, m other proceedmgs between these partIes t 2 [4] In Mayer, 285/94 (decIsIOn dated December 11, 1995), VIce-Chair Roberts was asked to rule whether the umon could mtroduce a medIcal report from the gnevor's famIly doctor wIthout callmg the doctor as a wItness In the course of revIewmg the relevant court and arbItral Junsprudence, Vice-ChaIr Roberts ob- served that the questIOn whether arbItrators could award costs m the CIrcum- stances described m subsectIOn 52(5) of the Ev~dence Act was not free from doubt, but he came to no conclUSIOn on that questIOn. He summanzed hIS conclUSIOns thus From my reVIew of apphcable authonty, It would appear that the most ap propnate formulatIOn of general arbItral procedure regardmg the ammssIOn 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 calling the practitIOner to testily (2) how ever il the opposmg party wIshes to cross-examme the practitIOner who wrote the report, arbItral dIscretIOn will generally be exercIsed to condItIOn ItS admIssIon mto eVIdence upon productIOn of the medIcal practItIOner for cross-exammatIOn, and (3) generally, It IS the responsibility of the party re- lymg upon the report to produce the practItIOner for cross-exammatIOn FI nally where the practItIOner IS unavailable for cross-exammatIOn, the medI cal report may be admItted or excluded m the dIstmctIOn of the arbItrator, properly exercIsed m hght of the CIrcumstances of each mdIvIdual case He ruled that the umon could mtroduce the report wIthout callIng the doctor to testIfy on dIrect exammatIOn, but ItS admIsSIOn mto eVIdence would be subject to the condItIOn that the umon produce the doctor for purposes of cross-exammatIOn should the employer so reqUIre [5] These Issues arose agam m Carter, 1735/96 (deCISIOn dated Apnl 14, 1998), where the gnevance also alleged Improper demal of long term mcome pro- tectIOn benefits There, Vice-ChaIr DIssanayake reVIewed the Junsprudence, m cludmg Mayer, supra, and came to the same conclUSIOn. that the umon's entItle- ment to file medIcal reports for the truth of theIr contents would be condItIOnal upon the umon's producmg the authors for cross-exammatIOn at ItS own cost, If requested by the employer He dId not consIder It necessary or appropnate to rule m advance on "whether or not the Board has JunsdICtIOn to award costs agamst an opposmg party WhICh frivolously or unnecessanly reqUIres a doctor to be produced for cross-exammatIOn." He thought that that questIOn should be left - 3 - to be determmed If and when the basIs for It arose, m a case m whIch one party commItted to relymg on a medIcal report wIthout engagmg m any dIrect examI- natIOn of ItS author, the other party asked that the author be produced for cross- exammatIOn and, havmg born the cost of producmg the author for that purpose, the first party thereafter took the posItIOn that It should be awarded ItS costs of havmg produced the author VIce-ChaIr DIssanayake noted that even then the questIOn wh€ther the Board had the JUflsdlctIOn to award such costs would only have to be answered If It concluded that the CIrcumstances warranted the exer Clse of such a JUflsdlctIOn. [6] Umon counsel cIted and relIed partIcularly on Re Mumc~pahty of Metro- polaan Toronto and Canad~an Unwn of Publ~c Employee, Local 79 (1992), 25 L,A.C (4th) 73 (Sprmgate) That award was also cIted to VIce-Chairs Roberts and DIssanayake m Carter and Mayer, respectively I agree wIth theIr conclu- SIOns m those decIsIOns on the Issues before me [7] As m Mayer and Carter, neIther party suggested here that compellmg a doctor's attendance to testify requIres, as a matter of law, anythmg more than servIce of a summons and payment of the modest wItness fee and conduct money to whIch all wItnesses are entItled m proceedmgs m the CIVIl courts The umon nevertheless expressed concern about "expert fees" that would be assocIated wIth ItS havmg to make physICianS avaIlable to testIfy m matters of thIs kmd, argumg that the OpposIte party's abIlIty to Impose such costs on It could be abused. To what Mayer and Carter say about such concerns, I would add thIs I know that physICianS expect to be paId for theIr time Most would be very unhappy If the only compensatIOn they receIved for attendmg to testIfy was the wItness fee and conduct money that must accompany a summons Counsel do not want theIr own wItnesses to be unhappy Moreover, havmg retamed the physIcIan to prepare the report about whICh he or she may later be called to testify, counsel may have a contractual oblIgatIOn, express or ImplIed, to pay the physIcIan's reasonable ex- pert fees If the physIcIan has to testify as a result of counsel's mtroductIOn of hIS or her report mto eVIdence Recogmzmg all that, I agree wIth the decIsIOns m 4 Mayer and Carter that the party who tenders a medIcal report as eVIdence con stItutes the author of the report as rus, her or Its wItness and, so, should be re- sponsible for makmg that wItness aVailable for cross-exammatIOn. [8] In accordance wIth the Board's decIsIOns m Mayer and Carter, wIth whIch I agree m thIS regard, the umon may mtroduce a medIcal report or reports wIth- out callmg the author(s) to testIfy on dIrect exammatIOn, but the admIssIOn mto eVIdence of those reports WIll be subject to the condItIOn that the umon produce the author(s) for purposes of cross-exammatIOn should the employer so reqUire It IS premature to determme whether the Board has the JUflsdIctIOn that courts enJoy under subsectIOn 52(5) of the EVLdence Act. [9] These procedural Issues havmg been addressed more than once at arbItra- tIOn WIth the same result, I suggest that the place to argue hereafter for adoptIOn of a dIfferent process m dIsputes of thIS kmd IS at the bargammg table 4-1/.. Dated at Toronto thIS 31'Cf day of September, 1998