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HomeMy WebLinkAbout2002-2375.Ranger.08-02-25 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# 2002-2375,2004-1217,2005-2232,2005-2768 UNION# 2002-0411-0038, 2004-0411-0071, 2005-0411-0080, 2005-0411-0081 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING SUBMISSIONS RECEIVED Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Ranger) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Deborah 1. D. Leighton Gavin Leeb Barrister and Solicitor Paul Meier Counsel Ministry of Government and Consumer Services January 31, 2008 February 5, 6 and 8, 2008. Union Employer Vice-Chair 2 Decision This is an interim decision on an evidentiary issue, which has arisen between the parties. The parties agreed that this issue was significant and required a day for me to hear full argument on the dispute. The union seeks to introduce settlement discussions in its reply evidence, which occurred between Robert Ranger, the grievor in this matter, and Randy Denis, Deputy Superintendent of the Ottawa - Carleton Detention Centre, in the fall of 2006. Neither counsel for the union nor the employer was involved in these discussions, which were not fruitful in the end. Counsel for the employer, Paul Meier, acknowledged these settlement discussions and argued that they were not admissible because they are protected by the common law principle of privilege, which prohibits boards and courts from admitting settlement discussions, largely for public policy reasons that such discussions should be fostered. Mr. Meier also took the position that the discussions were not relevant to the issues before me, which, with regard to the first grievance, are whether the grievor was harassed because of his sexual orientation and whether the employer can prove due diligence, and with regard to the second grievance whether the employer failed to accommodate the grievor in his return to work. Thus evidence of discussions between Mr. Denis and Mr. Ranger as to what might settle the grievance is not relevant in counsel's submission. Counsel for the employer also submitted that since the settlement discussions were made the subject matter of an unfair labour practice complaint by the union to the Ontario Labour Relations Board, decided on December 28, 2006, the union was estopped from putting this 3 evidence before me. In counsel's submission, the OLRB decision made the matter res judicata. The board held that: "this violation, if it occurred, is not of such significance as to warrant the Board inquiring into it." Thus, having been adjudicated once, it should not be admitted in evidence before me, in counsel's view. Finally, counsel for the employer argued that this evidence was not proper for reply in that it was beyond the proper scope of reply, which is to rebut the second parties' evidence. Mr. Meier relied on the following cases in support of his submission: Leonardis v. Leonardis [2003] Al No. 848 (AB.Q.B.); Welsh v. Welsh [1994] O.l No. 956 (OCl Gen. Div.); Danyluk v. Ainsworth Technologies Inc. [2001] 2 S.C.R. 460; United Food and Commercial Workers Union v. Zehrs Markets, Inc., a Division ofZehrmart Ltd [2001] O.L.AA No. 21 (Lynk). Counsel for the union, Gavin Leeb, stated that the facts before me were unique and that the issue of whether to allow their evidence in reply was difficult since the union could have adduced it in chief. To support the position that this evidence should be admitted, counsel argued that it is relevant, within the proper scope of reply argument, and not protected by privilege. In counsel's submission, it is relevant as an admission of wrongdoing. One of the key issues before me is whether the employer breached the grievor's rights and the settlement discussions are probative of that issue. Discussions about a potential new position demonstrate an admission that the grievor's health reassignment breached the collective agreement. Counsel argued further that the discussions on compensation were relevant because of the amounts of money that were discussed, and suggested this evidence might guide the board in deciding remedy. 4 Counsel for the union noted that the reasons for wanting to tender this evidence in reply is largely because the union intended to cross-examine Mr. Denis on the issue of these settlement discussions, since it had been advised early in the hearing that he would be a witness. However, when the employer advised that Mr. Denis would not be a witness, counsel put Mr. Meier on notice that the union would seek to address these discussions in Mr. Ranger's evidence in reply. Thus, in Mr. Leeb's view, through no fault of the union's, it was unable to put the evidence in through Mr. Denis. Counsel argued that if Mr. Denis had testified and denied the discussions, the union would have been permitted to rebut this denial in reply evidence. Further, counsel stated that there had been no prejudice to the employer's case. However, if I was persuaded that there was prejudice, the employer could be permitted to call surrebuttal evidence. Therefore, the evidence of settlement discussions should be permitted in reply in counsel's submission. In response to counsel for the employer's arguments on the matters being res judicata, Mr. Leeb argued that the test for deciding res judicata was not met. While the parties are the same, the issue is not and the decision of the OLRB was not on the issue before me. With regard to Mr. Meier's submission that settlement discussions are privileged, Mr. Leeb argued that privilege does not apply to the facts in this case because the discussions were illegal. He argued that the employer should not be allowed to rely on its own misconduct to prevent admissibility of these discussions, citing generally the principle that the employer is not permitted in unionized sectors to make agreements with employees without the union. Privilege therefore does not apply and the employer should not benefit from wrongdoing. In summary, counsel reminded me that I am not bound by the Rules of Evidence and there is nothing in CECBA, which prohibits admission of this evidence in reply. In exercising my discretion I am to be guided by the rules of natural justice. So in exercising my discretion to 5 allow this evidence in reply he urged me to consider all the factors noted above including: 1) the representations of the Ministry's first counsel that Mr. Denis would testify; 2) that there has been no prejudice to the employer, since the employer has known since September 2007 that this is an issue for the union; 3) that the case has been protracted and the evidence of some witnesses, particularly the grievor, has been interrupted by other's testimony; 4) that various interim rulings have constrained how the evidence has been tendered. Counsel for the union relied on the following cases in support of his argument: Humber College of Applied Science and Technology v. Ontario Public Service Employees Union (1999) 80 L.AC. (4th) 108 (Schiff); Westinghouse Canada Limitedv. United Electrical Workers, Local 504 (1974) 5 L.AC. (2d) 303 (Weatherill); Board of School Trustees of School District No. 39 (Vancouver) v. Vancouver Teachers' Federation (1996) 56 L.AC. (4th) 8 (Taylor); United Steelworkers of America v. Sidus Systems Inc. [1995] OLRB Rep. June 873; Hryciuk v. Ontario (Lieutenant Governor) (1994) 18 O.R. (3d) 695 (On. Div.Ct.); Commodore Business Machines Ltd eta!. v. The Minister of Labour for Ontario eta!. (1984) 49 O.R. (2d) 17 (On. Div. Ct.); Canada Post Corp. v. Letter Carriers' Union of Canada (1988) 1 L.AC. (4th) 447 (Weatherill). DECISION Having carefully considered the submissions of the parties, I have decided not to admit the proposed evidence of the settlement discussions, which occurred between Mr. Ranger and Mr. Denis in the 2006 period in question. I am not convinced that it is relevant. The board is not bound by the rules of evidence, but we must adhere to the principles of natural justice. In making decisions on what evidence to admit the primary guide is that it should be relevant. It would be a waste of board resources and would unduly lengthen a hearing to allow evidence that is not relevant. 6 I am not persuaded that this evidence is relevant for several reasons. The union wishes to adduce this evidence to prove that the employer has admitted liability, has acknowledged that the health reassignment was not appropriate and to support the amount of a damages claim that the grievor will claim if they are successful on the merits. The parties put the detailed pleadings before me that were submitted to the OLRB in the union's unfair labour practice application. Even on the union's pleadings there is no suggestion that the evidence shows a clear admission of liability by the employer. Rather it is the fact that settlement discussions were entertained that shows the admission. Likewise with the health reassignment to ajob in the Ministry of Finance, it is the fact that during the settlement there was discussion of another position that supports an admission that the assignment was inappropriate in the union's view. Finally, I am urged that it is relevant that large sums of money were discussed and this evidence might "guide" the bound in awarding compensation. I am of the view that none of this is helpful to deciding the issues of this case. Disputants in a matter pursue settlement discussions for various reasons and the fact that they occurred is no reason to infer an admission ofliability. Therefore it is not relevant and should not be admitted. Given I have decided the evidence is not relevant, there is no reason for me to address the privilege and res judicata arguments made by the employer or the submissions of the parties on the scope of reply evidence. I am satisfied that the evidence of these settlement discussions would not be properly admitted at any point in the evidence. I disagree with the union's position that had Mr. Denis testified, Mr. Leeb could have cross-examined him on these discussions. Though wide latitude is given in questioning in cross-examination, the questions must still be relevant to the case. And as I have reasoned earlier, this evidence is not relevant. 7 Thus, for the reasons noted above, I have decided not to allow the union's proposed evidence of settlement discussions between Mr. Ranger and Mr. Denis, and the employer's objection is hereby upheld. Dated at Toronto this 25th day of February 2008.