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HomeMy WebLinkAbout2003-3446.Whan et al.07-01-15 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 Nj ~ Ontario GSB# 2003-3446,2004-0770,2004-1961 UNION# 2003-0506-0012,2004-0506-0003,2004-0506-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Whan et al.) - and - The Crown in Right of Ontario (Ministry of Transportation) Nimal V. Dissanayake Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors George Parris Counsel Ministry of Government Services January 11,2007. Union Employer Vice-Chair 2 Decision The Board was seized with three grievances filed by the following grievors: (1) Stephen Whan (2003-3446) (2) Susanne Saunders (2004-0770) (3) Laura Benson (2004-1961) Following the commencement of the hearing, the Board was advised that Mr. Whan had withdrawn his grievance. The union proceeded to lead its evidence on the two remaining grievances and closed its case. The employer at that stage brought a motion for non-suit, which was argued on January 11,2007. At the completion of the submissions on the motion I orally dismissed the motion. This decision is to confirm that oral ruling. I was referred by the parties to a number of decisions which discuss the legal principles to be applied in the determination of a motion for non-suit. Re Faler, 218/89 (Fisher); Re University of Western Ontario, [1990] 15 L.AC. (4th) 189 (Dissanayake); Re Peele Co. Ltd. (1994) 39 L.AC. (4th) 370 (Kennedy); Re Sager et ai, 2000-0377 (Mikus); Re Dhaniu, 2004- 1101 (Dissanayake); Re Beltrano et ai, 2003-3577 (Petryshen). Over a period of time the Grievance Settlement Board has developed its own body of principles that govern motions for non-suit. The parties did not appear to be in disagreement on any of the applicable principles, although they disagreed as to the result of applying those to the evidence in this case. The key principles to be extracted from the Board's jurisprudence may be summarized as follows: 1. The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case. 3 2. In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities. 3. In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side. 4. In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion. 5. In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered. 6. In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence. 7. Where a non-suit motion is granted a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written, will be issued. In the instant proceeding, the union explicitly agreed that the employer ought not be put to an election. Having considered the viva voce and documentary evidence tendered during the union's case and the submissions of counsel in light of the foregoing principles, it was my conclusion that the employer's non-suit motion must fail. I hereby confirm the oral ruling made at the hearing, and the motion is dismissed. Dated this 15th day of January 2007 at Toronto, Ontario.