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HomeMy WebLinkAbout2001-0224.Group Grievance Sammy et al.02-03-06 Decision ~~~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT ~_II'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILEITELECOPIE. (416) 326-1396 GSB#0224/01, 1474/01, 1574/01, 1576/01 UNION# 01A503, 01A504, 01A505, 01A506, 01A507, 01A508, 02B027, 02B028,02B029, 02A163, 02A165 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees' Union (Group Grievance, Sammy et al) Grievor -and- The Crown In Right of Ontario (Ministry of Correctional Services) Employer BEFORE Daniel A. Harns Vice-Chair FOR THE GRIEVORS Ed Holmes Counsel Ryder Wright Blair & Doyle Barnsters & SoliCitors 2 FOR THE GRIEVORS Peggy Smith Counsel Eliot, Smith Barnsters & Solicitors FOR THE GRIEVOR Nelson Roland (counsel on record) Mr Dewar represented himself Barnster & Solicitor FOR THE EMPLOYER AJamu Boardl Staff Relations Officer Ministry of Correctional Services HEARING February 19, 2002 3 DECISION THE APPLICATION ThIs decIsIOn relates to a group of gnevances that were consohdated on consent. The gnevances are wIth respect to an alleged assault upon an mmate on or about February 2,2001 Some of the gnevors have been dIscharged from theIr employment others have been suspended. Some of the gnevors face cnmmal charges as a result of the mCIdent. In addItIOn, the mmate has launched a cIvIl SUIt agamst the employer and some of the gnevors In large measure It IS thIS latter fact that gIVes nse to the mstant apphcatIOn by all of the gnevors that the heanng of the matters before the Gnevance Settlement Board be held in camera That IS, that the heanng be closed to the pubhc m whole or m part THE SUBMISSIONS OF THE PARTIES Counsel for the umon, representmg Messrs Sammy, Cuthbert, Mcfarlane, Johnson, Colhns and MondesIr, rehed on sectIOn 9 of the Ontario Evidence Act, R.S 0 1990, c E-23, whIch reads as follows 9 (1) A wItness shall not be excused form answenng an, questIOn upon the ground that the answer ma, tend to cnmmate the wItness or ma, tend to estabhsh hIS or her habIht, to a cIvIl proceedmg at the mstance of the Crown or of an, person or to a prosecutIOn under an, Act of the LegIslature (2) If, wIth respect to a questIOn, a wItness obJects to answer upon an, of the grounds mentIOned m subsectIOn (1) and If, but for thIS sectIOn or an, Act of the 4 Parhmnent of Canada, he or she would therefore be excused from answenng such questIOn, then, although the wItness IS b, reason of thIS sectIOn or b, reason of an, Act of the Parhament of Canada compelled to answer the answer so gIven shall not be used or receIvable m eVIdence agamst hIm or her m an, cIvIl proceedmg or m an, proceedmg under an, Act of the LegIslature RS 0 1980 c 145 s 9 He also rehed upon the followmg cases Ralph 212/78, Tyler 428/78 and Glover- McCarthy McCarthy 1489/93 et al. It was submItted that there IS a presumptIOn that Board heanngs wIll be open, wIth a resIdual dIscretIOn held by the Board to close them for good and compellable reason. It was said that the reason the Board should exerCIse ItS dIscretIOn to close the heanngs m these matters IS that the gnevors face a cIvIl actIOn whIch dIstmgUIshes these cases from the Board's prevIOUS Junsprudence It was also submItted that the practice of the cIvIl courts permIts prevIOus sworn eVIdence to be put to a wItness as a test of credibIhty m spIte of the provIsIOns of s 9 set out above Smce Board proceedmgs are not recorded, there IS a danger that any eVIdence gIVen here may not be accurately put to the wItness m a subsequent proceedmg WIthout a verbatIm record, that may be so even wIth respect to statements attributed to any wItness m a Board decIsIOn. It was also submItted that these proceedmgs should be closed to protect the secunty of the detentIOn centre where the alleged assault was said to have occurred. There wIll undoubtedly be eVIdence relatmg to the layout of the facIhty, the IdentIty of other 5 Inmates, etc It was Said to be m the pubhc mterest to protect such mformatIOn from pubhcatIOn. It was also submItted that the gnevors and the employer both would benefit from closed proceedmgs smce they wIll very likely have the same mterest m the cIvIl proceedmgs m theIr capacIty as co-defendants The request to close these proceedmgs IS bemg made at thIS pomt because counsel for the mmate on the cIvIl proceedmgs has mdIcated a desIre to audIt these proceedmgs Counsel for the umon, representmg Mr Blundel and Mr DewItt, concurred wIth the earher submIssIOns and added that at least two of the gnevors had been transferred to other mstItutIOns after gIVmg statements to the employer It was suggested that theIr anonymIty m partIcIpatIOn m the mvestIgatIOn ought to be protected. Counsel submItted, m the alternatIve, that parts of the proceedmg mIght properly be held m camera as reqUIred. Mr Dewar adopted the proceedmg submIssIOns The employer took no posItIOn. 6 REASONS FOR DECISION The Evidence Act, supra, specIfically provIdes that a wItness shall not be excused from answenng a questIOn because It mIght cnmmate the wItness m a cIvIl actIOn or provmcIal prosecutIOn. It also provIdes for the procedure by whIch pnor mconsIstent statements mIght be put to a wItness The Issue before the Board IS whether addItIOnal protectIOns should be gIVen to the gnevors by way of in camera proceedmgs As has been observed m the GSB' s Junsprudence on the pomt, It IS presumed that the Board's proceedmgs are open unless there IS good and sufficIent reason to close them. In Ralph, supra, the Board rejected a request to close the proceedmgs to the pubhc The Board's reasons are summanzed at page 4 as follows Apart from precedent, however we thmk that m pnncIple a heav, onus hes on an, part, who wIshes to close a heanng of a statuton bod, like thIS Board. It IS the hallmark of procedural fairness that JustIce mamfesth be seen to be done That can onh occur If the pubhc and the press have full access to the proceedmgs the best safeguard agamst the arbItran use of power or mereh careless mJustIce IS the full hght of pubhc scrutm, Pubhc heanngs can have theIr costs, of course but those costs must be partIcularh heav, to overweIgh the pnman pubhc mterest m openness There the Board specIfically held that nsks to mstItutIOnal secunty and mmate pnvacy were acceptable costs of pubhc heanngs Accordmgly, those concerns expressed by counsel for the umon are not persuaSIve 7 In Tyler, supra, the Board emphasIzed the senous and overndmg pubhc mterest m the outcome of that case whIch mvolved allegatIOns of sexual Impropnety wIth chents of the MmIstry of Commumty and SocIal ServIces SImIlar consIderatIOns anse here In a case such as thIS, whIch mvolves allegatIOns of assault agamst an mmate by correctIOnal officers, there IS a senous, even overrIdmg pubhc mterest m the outcome The pubhc has a nght to know that the proceedmgs are faIr, open and subject to pubhc scrutmy, as well as a nght to understand, and have confidence m, the process by whIch the ultImate outcome was reached. As was concluded m Glover McCarthy McCarthy (supra), the gnevors wIll be exonerated here or not. What use the cIvIl or cnmmal courts make of the eVIdence taken here, wIthout the benefit of a verbatIm record, IS a matter for those courts It IS not for the Board to cIrcumscribe the procedure of the cIvIl or cnmmal court. It IS those courts whIch wIll decIde on the proper use, If any, of eVIdence or decIsIOns taken here Further, findmgs and conclusIOns reached here may well have an Impact mother proceedmgs On that basIs as well there IS a compelhng need to ensure that these matters are dealt wIth openly and fairly The cost of such openness IS that the mmate too wIll have access to the proceedmgs The thrust of the umon's request IS that the gnevors mIght suffer m a cIvIl SUIt because the mmate wIll, m essence, have the opportumty here of a form of dIscovery Surely, the mmate at the centre of the controversy has the nght as much as, If not more 8 than, anyone else to be assured that these matters have been fairly and openly dealt wIth. It IS an acceptable and necessary cost that such openness may provIde the mmate wIth mformatIOn that IS useful to hIm m the cIvIl courts These are adversanal processes To mtervene to protect a party m one proceedmg from a party m a dIfferent proceedmg calls upon the Board to engage m a balancmg of mterests that IS not appropnate Here we are concerned wIth the labour relatIOns between the umon, as the gnevors' bargammg agent, and the employer To change the usual structure of these proceedmgs m order to rebalance the advantages m cIvIl proceedmgs IS unreasonable The cIvIl courts wIll strike theIr own balance As to protectmg the anonymIty of those who partIcIpated m the mvestIgatIOn, there are many avenues open to protect a wItness's IdentIty If necessary It IS not appropnate to gIVe such protectIOn to a wItness at the outset, merely because they partIcIpated m an mvestIgatIOn, wIthout some elaboratIOn as to why such extraordmary procedures ought to be brought mto play As was observed m the cases rehed upon, there may well be matters of confidentIahty that can be protected by orders made m the course of the proceedmgs as such Issues present themselves 9 THE DECISION The prehmmary request that these proceedmgs be held in camera IS demed. Dated at Toronto, thIS 6th day of March, 2002 :\ Damel A. HarrIs, Vice-Chair