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HomeMy WebLinkAbout3786-04-U - Bouchard 05-05-09 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 1 of 13 , ~~ C.\."""- o::.:-.r-J. C ... I' II' .__.an-,~____.__ C-'J!;dJ:t1! J..':C!!!t1lrd'cmrUlmn hl"iiI tuk' .. Qnt9riq >> Qnt9rioL,9I:JOLJLR~J9tiQn?SQ9rcJ>> This document: 2005 CanLlI 35106 (ON L.R.B.) Citation: Bouchard v. Ontario Public Service Employees Union, 2005 CanLlI 35106 (ON L.R.B.) Date: 2005-05-09 Docket: 3786-04-U [N ()t~.LJP] [CitE?c:f.PE?Gi?i()n?9Dgl,,~gi$19tiQn] 3786-04-U Michael Bouchard, Applicant v. Ontario Public Service Employees Union, Responding Party v. The Ministry of the Environment and Energy, Intervenor. BEFORE: David A. McKee, Vice-Chair. DECISION OF THE BOARD; May 9, 2005 1. This is an application made pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, ch. 1, as am. (the "Act"). The applicant, Michael Bouchard, complains that his Union, the Ontario Public Service Employees Union ("OPSEU") violated section 74 of the Act in the manner in which it hand led a grievance against the Ministry of the Environment and Energy ("the Ministry"). This application alleges an unusual set of facts. Essentially, Mr. Bouchard alleges that OPSEU, through its counsel, conducted his arbitration in such a manner as to ensure that it was not successful. He alleges that this was a deliberate act on the part of OPSEU and counsel, which was intended to result in the dismissal of the grievance by an arbitrator sitting as the Grievance Settlement Board. OPSEU has asked that this matter be dismissed, on the ground that it does not allege facts which could possibly support the conclusions that Mr. Bouchard would like the Board to come to. This decision deals with that motion. 2. Mr. Bouchard was employed by the Ministry as an air quality technician in the City of Cornwall from 1979 to 1997. In January 1997 he was advised that he was "surplus" as part of a general downsizing in the Ministry. He was ultimately laid off in July of 1997. 3. At that time, Mr. Bouchard claimed he should have been permitted to displace a junior employee in Cornwall, who was working as an "Environmental Officer 4" (E04). OPSEU referred this matter to arbitration. The case took 11 days of hearing. The grievance failed because the arbitrator, Mr. Richard Brown, concluded that Mr. Bouchard was not "qualified to perform the work of the identified employee". In a displacement grievance, the arbitrator found that it was necessary to demonstrate that he had a "present ability" to do the job. The arbitrator found that Mr. Bouchard had not demonstrated such ability and identified a number of "deficiencies" in his capacity to perform the job. Mr. Bouchard does not complain about the conduct of this grievance or the conclusion to which the arbitrator came. That is not the subject of this complaint. 4. On November 20, 1998, the Ministry posted an E04 job in the Cornwall area. Mr. Bouchard still had recall rights at that time. These recall rights lasted until July 1999. He had greater seniority than the successful candidate. He was not recalled to the job because the Ministry concluded that he was not "qualified to perform the required duties". This phrase, taken from Article 20.6.1 of the collective agreement has a different meaning from the provision quoted with respect to his first grievance, as will be http://www.canlii.org/on/cas/onlrb/2005/2005onlrb 147 48.html 2/16/2006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 2 of 13 explained below. 5. Mr. Bouchard filed a grievance, and OPSEU referred it to arbitration. There were two days of hearings with respect to the Ministry's preliminary motions and six days with respect to the merits of the case. The grievance was dismissed. 6. Mr. Bouchard pleads that OPSEU violated the duty of fair representation in the manner in which it handled the grievance. In his initial application, he pleads: "It is the applicant's position that the responding party's failure in this regard was deliberate and/or seriously arbitrary, and that this failure to call evidence reflected an underlying reluctance, on the part ofthe responding party, to see the applicant succeed with the grievance" . 7. In submissions in response to OPSEU's motion to dismiss the application, Mr. Bouchard pleads, through his counsel, more forcefully. He states: "In the simplest of terms, it is the applicant's position that the respondent party handled the applicant's recall grievance in a manner that was deliberately intended to result in the dismissal of the said grievance by the Grievance Settlement Board". And somewhat later: "The responding party engaged in a deliberate scheme to undermine the applicant's chances of success". 8. Mr. Bouchard states that he acknowledges that the Board is "typically reluctant to second- guess the manner in which a trade union presents a case at arbitration". This is correct, and is reflected in paragraph 6 of the April 5, 2005 decision directing him to make submissions on this motion. That does not apply here. If the action was a deliberate course of conduct to sabotage Mr. Bouchard's case, then that is clearly a violation of section 74. In his second submissions, Mr. Bouchard says: "While the Board might be understandably reluctant to accept the proposition that a trade union might act in this fashion, the applicant has clearly pleaded materials which, if accepted to be true, could support this conclusion". There is no reluctance on the part of the Board to come to any particular factual conclusion. This specific allegation is well within the realm of possibility. If it is proven, the Board would have no hesitation in naming the Union, the officers, and the counsel involved, and fashioning an appropriate remedy. 9. The question is whether there are material facts that could support the conclusion that Mr. Bouchard asks the Board to come to. In his reply submissions, counsel for the applicant makes much of his desire to challenge the "unsworn allegations" of the Union, and the need to test the credibility of differing stories by cross-examination. That is not the case at this stage of this application. In determining whether the application pleads facts capable of supporting the remedies sought, the Board will accept as true and provable all of the facts as alleged in the application and the applicant's further submissions. 10. The test is not a particularly stringent one for an applicant. The Board has in The County of Brant, [2000] OLRB Rep. Nov./Dec. 1106 set out the relevant principles that are applicable in determining whether an application has made out aprimafacie case at pages 1107-08: The Board in International Union of Bricklayers and Allied Craftworkers, Board File Nos. 1645-98-U and 1768-98-U, decision dated February 19, 1999, unreported, [1999] O.L.R.D. http://www.canlii.org/on/cas/ onlrb/2005/2005onlrb 14748 .html 2/1612006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 3 of 13 No. 1392, had occasion to discuss the approach used by the Board when determining whether to dismiss an application because it did not disclose a prima facie case. The Board stated at paragraphs 4 and 5: The test that a responding party must meet in order to persuade the Board that an application should be dismissed on the basis that there is no prima facie case established in the application is, in my view, a strict one. An applicant should not be deprived of the opportunity to have a hearing on the merits of his or her application simply because the argument is novel or the circumstances giving rise to the application are unusual. In Caravelle Foods, [1983] OLRB Rep. June 875 the Board characterized the test a responding party must meet in seeking to have an application dismissed on a prima facie motion in the following terms at page 881: The words 'primafacie case' in section 71 are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached. In 1. Paiva Foods Ltd, [1985] OLRB Rep. May 690 the Board set out the test at page 691 as follows: The Board's discretion to dismiss a complaint on the grounds that it does not disclose a primafacie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged. Where, however, the Board is satisfied that the responding party bringing the prima facie motion has met the burden imposed, it is incumbent on the Board to dismiss the application, thereby conserving the limited resources of the Board for matters that do require a hearing. As Mr. Justice Grange said in Shaw v. McLeod, (1982), 35 O.R. (2d) 641: I concede that on this motion if, after a careful review of the law, the Court determines that he [the Plaintiff] cannot possibly succeed, then his action should be mercifully dispatched. See also Elizabeth Balanyk, [1987] OLRB Rep. Sept. 1121 at page 1123; Lyndhurst Hospital, [1996] OLRB Rep. May/June 456 at 465-66; and Hunt v. Carey Canada Inc., 19?~)q(~rlIJI?'()j?:~~:.C.::'), (1990), 74 D.L.R. (4th) 321 (S.c.c.) where the Supreme Court of Canada wrote at page 333: Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C., O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiffs statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. 11. There is a difference, however, between facts and the conclusions one draws from those facts. The assertion that counsel did not seek certain training schedules until after two witnesses were called is a fact. The assertion that this was part of a deliberate scheme to undermine Mr. Bouchard's chances of success is a conclusion. Mr. Bouchard suggests this is a matter of credibility that can only be http://www.canlii.org/ onlcas/onlrbI2005/2005onlrb 14748 .html 2/16/2006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 4 of 13 assessed after viva voce evidence. If there is some evidence that could support such a conclusion he would likely be right. However, the first question is whether there are facts that could possibly lead to the conclusion urged upon the Board. The test is whether or not it is possible that the Board could come to such a conclusion, not whether it is likely. 12. In an analogous matter, one justice of the Superior Court of Justice has commented on the nature of the process of examining statements and drawing conclusions from them. In Braithwaite Technology Consultants Inc. v. Blanketware Corp. (2004) 72 O.R. (3d), Cullity, J., sitting on a motion for summary judgment under the simplified rules (which permit no cross-examination on affidavits without leave) said this about credibility: [20] It was indicated in Newcourt that issues of credibility may sometimes be disposed of in motions under Rule 76.07. This, I believe, reflects a recognition that such issues are not always only - or even best - determined by an examination of a witness's demeanour when testifying. In Cash Converters Canada Inc et al v. 1167430 Ontario Inc., [2001] O. J. No. 5860 (S.C.J.), at paras 42 - 6, O'Driscoll J. found guidance in the following passage in reasons delivered by O'Halloran J.A. in the British Columbia Court of Appeal: The judge is not given a divine insight into the hearts and minds of the witnesses that appear before him. Justice does not descend automatically upon the best actor in the witness box. The most satisfactory judicial test of truth is in its harmony or lack of harmony with the preponderance of probabilities disclosed by the facts and circumstances in the conditions of a particular case. [21] O'Driscoll J stated: Using Q'Halloran 1.A.'s criteria to test credibility, how do the depositions of the respondents fit into the overall mosaic? How does their evidence and their cross- examinations fit into the jigsaw puzzle that I seek to solve? It is my conclusion that the evidence of the respondents is totally self--serving. It is wrong-shaped. It is wrong-coloured. It is bad-coloured. The pieces are either too big or too small and do not fit the puzzle. The depositions ofthe respondents do not fit and blend with the other evidence that I accept. [22] The same approach to questions of credibility is, I believe, apparent in the decision of the Supreme Court of Canada in Guarantee Co. of North America v. Gordon Capital Corporation!..~~~.g.t:l.~~.I..'??~J?:g.g), (1999), 178 D.L.R. (4th) 1 (S.C.C.), where it had been submitted by counsel that, on a motion for summary judgment under Rule 20, triable issues were raised by assertions in a responding affidavit that "moderated" evidence previously given by the deponent. In rejecting the submission, the court stated: ... a self--serving affidavit is not sufficient in itself to create a triable issue in the absence of detailed facts and supporting evidence. See Rogers Cable TV Ltd v. 373041 Ontario Limited. ;~ireflex, (1994),22 Q.R. (3d) 25 (Gen. Div.); ."J.,................, Confederation Trust Co v. Alizadeh, [1998] Q. 1. No. 4080 (QL) (Gen. Div.). [23] Just as such assertions may be insufficient to raise an issue of credibility, or other triable issues, for the purpose of Rule 20, they may be found to lack probative force in rebuttal of the evidence supporting the plaintiff's claims on a motion pursuant to rule 76.07 notwithstanding that there will have been no cross- examination. That does not mean, of course, that all issues of credibility can be decided on such a motion. The governing criteria are those set out in the rule: namely, whether the court is satisfied that the issues can be decided without cross-examination and whether it would not otherwise be unjust to do so on the motion. http://www.canlii.org/ on/cas/ onlrb12005/20050nlrb 14748 .html 2/16/2006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 5 of 13 13. The issue here is not one of credibility, but rather whether any reasonable view of the facts pleaded could sustain a conclusion that OPSEU had instructed counsel to conduct the case in such a way as to ensure its failure. It is therefore necessary to look at each fact pleaded and determine if such a conclusion can be reached from any of the facts or all of them together. 14. The legal issues in the grievance were as follows. Mr. Bouchard wanted the position of an E04 Officer. Initially, he wanted to displace a junior employee who held the job. After an II-day hearing, the arbitrator found that he was not "qualified to perform the work of the identified employee". In the context of that case, the phrase meant that he needed to demonstrate that he was able to step into the position and perform all duties virtually immediately. The arbitrator concluded he did not have that capacity and identified a number of "deficiencies". By that term, he meant to cast no aspersions on Mr. Bouchard, but simply to identify the skills, experience and qualifications that he lacked. 15. In the second grievance, Mr. Bouchard again sought the position of an E04. There was a vacancy for the position. He was entitled by virtue of his seniority to claim the job as a means of ensuring a recall to employment. The provision of the collective agreement dealing with this right is set out in Article 20.6.1 which provides: 20.6.1 A person who has been laid off is entitled to be assigned to a position that becomes vacant within twenty-four (24) months after his or her layoff provided that: (a) the vacant position is in the same classification and ministry as his or her former position; and (b) the vacant position is within a forty (40) kilometre radius of his or her former headquarters; and (c) he or she is qualified to perform the required duties; and (d) there is no other person who is qualified to perform the required duties, who has a greater length of continuous service and who is eligible for assignment to the vacancy either ......... .. .. .. .. 16. There were a number of issues. These are set out in the letter from counsel to OPSEU dated June 7, 2000, before the grievance was referred to arbitration. In that letter, counsel identified the following issues: Preliminary Issue No.1: Did the arbitrator's decision in the first case constitute a complete answer to the second grievance. That is, was his determination res judicata. Counsel opined that this argument was unlikely to succeed given that there was a different test to be applied. Preliminary Issue No.2: Counsel anticipated an argument with respect to the fact that he had declined a position in Toronto and that this, it would be argued, compromised his ability to claim that job in the second grievance. (Apparently the employer never made this argument). The merits of the grievance: If the grievance got over the preliminary issues, the only question, in counsel's view, was whether the "Hill and Campbell exception" should apply. COllnsel identified the issue in this fashion: http://www.canlii.org/on/cas/onlrb/2005/2005onlrb14 7 48 .html 2/16/2006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 6 of 13 (1) Did the Ministry of Environment have a mandatory trammg program as contemplated by Hill and Campbell and Bazinet (previous decisions of the Grievance Settlement Board); (2) If so, would Mr. Bouchard be minimally qualified or have the present ability to perform the required duties of the position upon completion of the mandatory training associated with the job. In fact, this was the view that the arbitrator took of the issues in the case. He said at paragraph 8: Accordingly, the remaining issues in this case are two-fold: (1) were vacancies in the position of E04 Abatement Officer at the relevant time typically filled by employees who received further training to be fully qualified to do the job; and (2) if so, would Mr. Bouchard have been qualified ifhe had received the sort of training offered to others? 17. Mr. Bouchard does not dispute that these were the two issues at stake in the case. That is, he accepts that counsel's analysis of the issues was correct. I recognize that Mr. Bouchard's case is that the communication between counsel and OPSEU was merely a subterfuge designed to disguise the fact that there was a deliberate policy of undermining his grievance. I refer to the letter only to indicate that counsel had, in fact, identified those issues initially and Mr. Bouchard accepts that those were the legal and factual issues that needed to be addressed in the arbitration. 18. Counsel then went on to discuss the likelihood of success. For various reasons, based on his experience of the first grievance, and the facts as he understood them, he concluded that the grievance was more likely to be dismissed than not. Whatever the merits of this opinion, Mr. Bouchard agrees that it correctly identified the factual and legal issues in the case. The fact that the opinion was, on balance, that the grievance was unlikely to succeed, is irrelevant. OPSEU determined that the grievance would proceed nonetheless. Had OPSEU determined not to refer the grievance to arbitration at this stage, such evidence might possibly be the foundation for a conclusion that OPSEU and counsel had colluded to produce an opinion that did not reflect the true chances of success. However, this is not the case. The most that one could make of this evidence was that the negative opinion was a ruse to "set the stage" for a later failure at arbitration. However, before one could come to that conclusion, it would be necessary to point to a deliberate sabotage of the case as it progressed. The fact of a negative opinion cannot, in the circumstances of this case, in and of itself sustain a conclusion of bad faith. Events Before the Grievance 19. Mr. Bouchard complains that it took more than two years for OPSEU to arrange a meeting with the applicant and that the meeting took place on the eve of a scheduled mediation session. This does appear to be a long time, but the applicant pleads no facts relating to the backlog of grievances that OPSEU was facing in the year 2000 or 2001. The Board is aware that from time to time that backlog becomes extremely lengthy. I do not mean that the Board is unconcerned about that length of a backlog, but simply that the Board has no facts to judge whether the grievance was being processed as quickly as any other grievance or whether it was being deliberately held back. The fact of this delay does not support any particular conclusion. 20. Mr. Bouchard pleads: "During the course of this initial meeting, the responding party's grievance officer, Don Martin, expressly told the applicant that he (the applicant) should leave Toronto, as the responding party did not want to argue the grievance, and did not want to win the grievance." Accepting, as I must, that this is in fact what he said, nonetheless OPSEU proceeded with the mediation http://www.canlii.org/on/cas/onlrb/2005/2005onlrb 14748 .html 2/1612006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 7 of 13 session and ultimately referred the matter to arbitration. Accordingly, these facts could not in themselves be evidence of an act which undermined Mr. Bouchard's grievance, but simply be evidence of motivation. It would require specific evidence, capable of supporting a conclusion that the grievance had been undermined before this piece of evidence would have any meaning. 21. At the mediation session, the employer raised the issue of res judicata as had been predicted by OPSEU's counsel. Mr. Bouchard pleads: "Throughout the course of the December, 2002 mediation session, Mr. Martin seemed reluctant to challenge the Ministry's argument regarding the doctrine of issue estoppel. In fact, at times during the course of the mediation session, Mr. Martin seemed to be supportive of the Ministry's argument that the grievance should be dismissed. Fortunately for the applicant, agreement was eventually reached to have the preliminary objection regarding the doctrine of issue estoppel decided by Vice-Chair Brown". Given the result of the mediation session, the assertion that Mr. Martin was supportive of the Ministry's position is untenable. It may have seemed that way to Mr. Bouchard (which is in fact all he pleads). However, since the Ministry was seeking to have the Union withdraw the grievance because it was barred by the doctrine of res judicata, and since Mr. Bouchard does not suggest that he made any comments on this issue, that would leave only Mr. Martin as the party proposing or insisting that it be determined by Vice-Chair Brown. It seems to me that this was an entirely appropriate thing for Mr. Martin to have done. It negates any possible conclusion that he was supportive of the Ministry's position. 22. Mr. Bouchard asked OPSEU to provide him with counsel for this case from an outside law firm. In fact, he suggested the same lawyer who had represented him on the first grievance as an appropriate person to handle the case. OPSEU initially declined. Section 74 does not impose on a trade union an obligation to hire a lawyer to conduct a grievance. 23. Mr. Martin handled the evidence and argument with respect to the preliminary objection. The argument took two days in late 2002. Mr. Martin succeeded in resisting the employer's motion to dismiss on the basis of res judicata. The fact that he succeeded is hardly evidence of a deliberate attempt to undermine the grievance. It may well be that Mr. Martin displayed what, to Mr. Bouchard, was an inadequate level of optimism or enthusiasm about the grievance during the course of arguing this preliminary issue. The Act does not require enthusiasm or passionate belief in the cause espoused by a grievor. It requires that a union behave in a manner that is not arbitrary, discriminatory or in bad faith. It would be difficult to find that success on a preliminary motion in a grievance was evidence of any of those things. 24. Thereafter, OPSEU acceded to Mr. Bouchard's wishes and appointed counsel for the remaining hearing dates. It was, in fact, the same lawyer who had represented him on the first case. This was, of course, in accordance with his expressed wishes. Mr. Bouchard raises no issue with respect to the fact that Mr. Brown was once again the arbitrator. The Arbitration Hearing 25. Mr. Bouchard does not take any issue with the manner in which the case was framed. That is, his complaint accepts as a given that counsel identified the correct legal and factual issues and that they were dealt with by the arbitrator. Rather, his complaint is that a presentation of evidence was deliberately mishandled so as to ensure the defeat of the grievance. As Mr. Bouchard sets out in his application, there were three factual issues to be addressed: (a) The qualifications and training possessed by others who had secured the job when a vacancy was posted; http://www.canlii.org/on/cas/onlrbI2005/20050nlrb 14748 .html 2/16/2006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 8 of 13 (b) The training that was required and/or available upon obtaining such a position; and (c) Evidence of whatever sort (Mr. Bouchard says it will only be opinion evidence) which would persuade the arbitrator that Mr. Bouchard would have been able to do the E04 job if he had received the same type of training received by others in the job. 26. The process followed at the arbitration is somewhat different from the typical job-posting grievance outside of the Ontario Public Service. In a case of this sort, the employer is required to present its evidence first, although the legal onus rests ultimately on the Union. The Ministry called two witnesses, Mr. Paterson and Mr. Helliar. They were subject to cross-examination by counsel for OPSEU. During the course of Mr. Paterson's and Mr. Helliar's evidence, there was considerable evidence about a mandatory training program. That was what counsel had identified initially as the basis of the "Hill and Campbell" exception. In addition to the mandatory training program, there were other voluntary or non- mandatory courses offered. The evidence ofthose two individuals constituted the Ministry's entire case. 27. It was then open to OPSEU to call evidence. Counsel requested and obtained production of two sets of documents at this point. First, the Union requested and obtained production of resumes for everyone, without prior E04 experience at the Ministry, who was appointed as an E04 Abatement Officer between January of 1996 and the Spring of 2003. Second, he sought and obtained production of a list of courses taken by each of the twelve officers after their appointment at the E04 level. Counsel for OPSEU then called no further evidence, and argument proceeded on the basis of the evidence before the arbitrator. He concluded that the grievance did not establish that Mr. Bouchard could have performed the duties of the job, even with the maximum amount of training that had been afforded to others who had obtained such a position. The grievance was dismissed. 28. Mr. Bouchard complains that counsel for OPSEU failed to call two kinds of evidence. Specifically, he asserts that counsel ought to have called one or more, or perhaps all twelve, of the successful applicants with respect to their qualifications and training, and secondly, that he ought to have led evidence either through those twelve individuals or through Mr. Paterson or Mr. Helliar about the likely effect oftraining on Mr. Bouchard's ability to perform the job. I shall deal with these in two parts. Precise Qualifications and Training 29. The issue with respect to the qualifications and training of the twelve individuals who did obtain the job in and around the time of this job posting was not their level of skill and qualifications as compared to that of Mr. Bouchard. If he was qualified to do the duties of the job, then his grievance succeeded. I conclude that the only value in adducing any evidence about the qualifications and training of the other twelve individuals was to show that their qualifications were similar to those of Mr. Bouchard. It was taken as a given (for reasons not disclosed in the award and which Mr. Bouchard does not challenge) that the evidence and findings of fact in the first arbitration were available to the parties and the arbitrator in the second arbitration 30. The second grievance proceeded on the basis that the arbitrator had already found that Mr. Bouchard's previous training and experience were not sufficient to permit him to perform the duties of the job immediately. This was not a matter that Mr. Bouchard suggests could be disputed in the second grievance. However, if it could be demonstrated that the level of qualifications and training of the other twelve who received the job was no better than that of Mr. Bouchard's, then logically it was the training they received that made the difference. Counsel therefore required production of the resumes for the twelve persons who were appointed from 1996 to 2003 to the position. http://www.canlii.org/onlcas/onlrb/2005/2005onlrbI4 7 48.html 2/16/2006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 9 of 13 3l. 11: It is apparent from the award that this step did not assist the case. The arbitrator said at page . .. In response to this request, resumes for twelve officers were produced. Reviewing these documents after the hearing, I noted the resumes for five of the twelve indicated they had worked in a junior abatement position before being appointed at the E04 level. I asked the parties about this. The response of counsel for the employer was that six of the twelve in fact did have prior abatement experience with the Ministry and should be ignored. Union counsel asserted the employer should not be allowed to revoke its earlier stipulation that none of the twelve had such experience. This evidentiary dispute need not be resolved, because its resolution would not affect the disposition of the grievance. Of the twelve new E04 abatement officers, seven at the time of appointment held either a university degree or a community-college diploma in environmental science, environmental studies, environmental health or environmental technology. The other five had at least a degree or diploma in a related field: Bradshaw had a BSc. in geology and a MSc. in earth sciences; Leavoy had a diploma in terrain and water resource technology; Lendvay had a BSc. in biology from one university and had taken seven environmental courses at two others; McNiece had one diploma in natural resources technology law enforcement and another as a fish and wildlife technician; and Ryan had a diploma in civil engineering with an environmental speciality. And again at page 14: In coming to this conclusion, I have not overlooked the fact that the officers were able to do the E04 abatement job, having received this amount of basic training, or less, after being appointed to the position. The employer contends some of them had previous experience doing abatement work. Even if none of them had such experience, their ability to do the job with at most this amount of basic training post-appointment is not sufficient to demonstrate the grievor would have b~en qualified if he had gotten the same training, because the evidence does not show that he was qualified for the job as they were before assuming it. In particular, each of them held a degree or diploma in an environmental field or some related subject. As noted by union counsel, such a degree or diploma is not a requirement for the job. Nonetheless, this sort of formal education is one way to acquire the sort of knowledge that is a requirement. 32. It is obvious to me that counsel was attempting to demonstrate that Mr. Bouchard could have performed the duties of the job given the available training in one of two ways. One of the ways he sought to address this was to look at the type of qualifications which were typically held by successful candidates. If their qualifications were no better than those ofMr. Bouchard's, that would go a long way to proving the case. To ask the question, however, posed a risk. Counsel clearly did not know the answer to what those documents would disclose. It is evident that they were not helpful. 33. However, Mr. Bouchard does not criticize the request for production of the resumes. Indeed, he accepts that this was relevant evidence. His complaint is: "... at all material times, he urged the responding party to call some and/or all ofthe other twelve officers as witnesses at the arbitration hearing. Although the applicant is not a lawyer, it was apparent to him, even as a layperson, that much of the required evidence could only be adduced through these witnesses". The decision not to call one or more of these twelve persons cannot possibly lead to the conclusion that it was based on a conscious decision to sabotage the grievance. To call any of the twelve of them on this issue would have been foolish in the extreme. Having asked for the resumes, it was presumably as obvious to counsel as it is to me that they were not helpful to the grievance. To call the individuals as witnesses about their qualifications could only have worsened Mr. Bouchard's position. If counsel called http://www.canlii.org/on/cas/ onlrb/2005/20050nlrb 14748 .html 2/16/2006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 10 of 13 them, the twelve would have been his witnesses. He would have been unable to cross-examine them. The likelihood that they would minimize the value of their own qualifications for the job, on which they had relied to get the job in the first place, is so remote that, absent specific evidence that one or more of them was actually prepared to do so, no reasonable counsel would ever take that step. 34. There are times when it is the function of counsel to make decisions that prevent those they represent from digging themselves into a deeper hole than they are already in. That is the only conclusion that one can draw about the decision not to call twelve persons to discuss the issue of their basic qualifications. To do so would have been a serious tactical error. I do not accept that the fact that counsel did not call any of the twelve to describe their qualifications could in any way be evidence of a desire to undermine or sabotage the grievance. It was the right decision to have made. Training afforded to the Twelve Candidates 35. More serious is the evidence with respect to training received by these same twelve persons. It is apparent from the arbitration award that cross-examination was directed at the kinds of training that they received. Training was of two sorts: (a) mandatory and (b) available but not mandatory. These latter were referred to as "one-hundred level" or "one-hundred series" courses. The evidence of the employer was that there were once a number of mandatory courses which were rolled up into a single mandatory course entitled "Level One Compliance", a three-week course. There were also a number of non- mandatory courses. 36. The opinion given by counsel before the grievance was referred (which analysis Mr. Bouchard does not challenge) dealt with the likely chance of establishing what counsel called a "Hill and Campbell" exception. This exception, according to his opinion, is based on the existence of a mandatory training course. If training is mandatory, it is necessary only to prove that the grievor could have done the job after taking the training course, i.e. was he capable of starting the training course. It is evident from the award that counsel did cross-examine Mr. Paterson and Mr. Helliar with respect to that first issue. Mr. Helliar's response was that the mandatory courses did not teach pollution source identification, sampling and results interpretation, pollution control processes or spill response. It is again obvious from the award that counsel was cross-examining the employer's witnesses with respect to the areas identified by the arbitrator as "deficiencies" in Mr. Bouchard's first case in the hope of persuading the arbitrator that these deficiencies might be remedied by the mandatory training. This is precisely the kind of "opinion" evidence that Mr. Bouchard said he should have been seeking. 37. Unfortunately, counsel did not get the kinds of answers that he was hoping for. This may in fact have been because the witnesses, particularly Mr. Helliar, gave different evidence at the first and second arbitration. It may simply be that cross-examination was not successful. Certainly Mr. Bouchard made no allegations that cross-examination was perfunctory, that it did not address any of the issues, or that it ought to have been conducted in a different manner from the way in which it was conducted. 38. Although the award does not identify it as a secondary argument, my reading of the award is that counsel then shifted his attack to the second possibility, i.e. that the non-mandatory courses that were available and were taken by some of the officers would have provided the necessary training for Mr. Bouchard. 39. The one-hundred level courses were described this way by the arbitrator: The table produced by Mr. Paterson lists thirteen non-mandatory abatement courses at the one-hundred level. He testified each of them was offered only when a minimum often people registered for it. There is no evidence about the duration of these courses and very little evidence was led about their content. Mr. Paterson did testify they deal more with the identification of violations than do the mandatory courses. http://www.canlii.org/on/cas/onlrb/2005/2005onlrbI4 748.html 2/1612006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 11 of 13 In cross-examination, Mr. Paterson was asked about training on the ministry's compliance policy for new abatement officers between 1995 and 2001, during the years when this subject was not addressed in mandatory courses. He testified aspects of this subject were taught in a 1998 course called Introduction to Compliance. However, he conceded between 1995 and 1998 and again between 1998 and 2001, the only place for a new abatement officer to learn about the ministry's compliance policy was on the job. Asked whether one-hundred level courses might be accurately described as "basic" or "low-level", Mr. Paterson answered in the affirmative. He testified they were typically taken by someone in the "first two or three years" of doing abatement work. At the hearing of the second grievance, Mr. Helliar testified the mandatory courses did not teach pollution source identification, sampling and results interpretation, pollution control processes or spills response. He painted a different picture than he had done previously about new officers taking one-hundred level courses. In particular, he testified non-mandatory courses were "recommended" for new abatement officers but often not taken by them. As reasons why a course might not be taken, he listed only a person already having the requisite knowledge but also conflicting personal commitments, courses not being offered for an extended period and local budgetary constraints. Asked in cross-examination about his testimony at the first hearing, Mr. Helliar replied the "ideal" state of affairs would be for new officers to take the full range of courses as he had described, but that was and not "reality". [sic] Arbitrator Brown found that Mr. Helliar played down the value and importance ofthe one-hundred level courses in comparison to his evidence at the first arbitration. That is, in my view, indisputable evidence that counsel pursued the issue of the value of the one-hundred level courses with Mr. Hilliar, precisely what Mr. Bouchard complains he should have done again in the course of the union's case. 40. Ultimately the arbitrator accepted the legal proposition put forward by counsel for OPSEU, that the grievance could succeed if mandatory or even the available but non-mandatory training would have enabled the grievor to perform the duties of the job. It was still of course necessary to establish that the available and mandatory course would place Mr. Bouchard in a position where he could fully perform the job. 41. Obviously counsel needed to know what non-mandatory courses the twelve candidates had taken. Again, he sought a production order and again the results were not helpful. Of the 13 one-hundred level courses, four employees took none of them, two took one, four took two, and two (Messrs. Kentish and Anderson) took three of them. 42. At this point, Mr. Bouchard wanted counsel to call evidence with respect to the one-hundred series courses. He suggested that this evidence might be adduced from those who took the courses (i.e. the twelve successful candidates) or by recalling Messrs. Paterson or Helliar as union witnesses to seek to elicit their opinion that taking the non-mandatory courses would have been sufficient to remedy Mr. Bouchard's deficiencies. Counsel chose not to do so. 43. Not to call Messrs. Helliar and Paterson was clearly the correct decision. It seems to me unlikely that the arbitrator would have permitted him to call them for the purposes of asking them questions about an area he had at least touched on in cross-examination. Even assuming the arbitrator did so, they would have been his witnesses and he would have been unable to cross-examine them. To expect to elicit favourable opinion evidence from the two witnesses whom the employer had put forward to establish the proposition that Mr. Bouchard could not do the job, without the advantage of cross- examination, would have been foolishly optimistic. 44. However, he might have called one of the two officers who had taken three courses (Messrs. Kentish or Anderson). Perhaps he might also have thought to seek production before the employer's case http://www.canlii.org/ onlcas/onlrb/2005/2005onlrb 14748 .html 2/1612006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 12 of 13 . began so that he could have cross-examined the employer witnesses more thoroughly on the issue of the content and value ofthe one-hundred series courses. Perhaps he concluded the risks were too great. 45. It is difficult to assess the likelihood of success of any particular alternative strategy. Mr. Paterson had already described the one-hundred series courses as "basic" and "low level". Only one of the courses taken by Mr. Kentish appears from its title to relate to an area in which Mr. Bouchard had already been found to be deficient, namely "sampling in the environment". 46. The fact is that counsel did not pursue it. Mr. Bouchard points to this as a set of facts that could lead the Board to conclude that counsel, on OPSEU's instructions, deliberately sabotaged the grievance. There may be many explanations for why he chose the course he did, but a desire to sabotage the grievance cannot logically be one of them. It appears that he pinned his hopes on the mandatory training programs, and when he did not succeed in cross-examination, sought an alternative factual basis, which did not look at all likely to make the case better and would perhaps make the case worse. Perhaps he made an error, particularly in not asking fOr production before Mr. Paterson or Mr. Helliar took the stand. Perhaps not: criticism of a lawyer's tactical decisions are easier to make after one has read the award than before the case begins. 47. However, I cannot conclude that these facts could support a conclusion that OPSEU and counsel chose deliberately to adopt a course of conduct to ensure the grievance was dismissed. It must be remembered that the production orders sought by counsel did not address facts that were inevitably part of the case, or that were clearly part of the case from the beginning. That is, had he not sought them out, he would have simply been left with the argument that the evidence on cross-examination should persuade the arbitrator to find Mr. Bouchard could have remedied his deficiencies by taking the mandatory training course. Obviously counsel concluded that the argument could fail (although that would have been a convenient place to stop if one were determined to ensure the grievance's defeat). So he went further. When he did so, he found evidence that was of very little value (the non-mandatory courses) or actually harmed the case for Mr. Bouchard (the qualifications of the other twelve successful applicants). Whatever one's assessment of the evidence, to seek production of the additional material was the act of counsel seeking to bolster a weak case rather than seeking to sabotage a good one. 48. Thus, in looking at the decision counsel made not to pursue more evidence about the content of the non-mandatory training courses, it is not possible to describe this as a decision made about not pursuing an obvious course of evidence. Indeed, raising the issue of the non-mandatory training courses was not the original focus of the grievance and carried with it its own risks. Objectively, one can say that the evidence was weak and more likely to hurt Mr. Bouchard's case than to help it if pursued. Whatever conclusions counsel came to or whatever his motivation was, he cannot have been motivated by desire to sabotage the grievance by not pursuing that evidence. 49. It is true that people often do improper acts which, in hindsight, could have been disguised more cleverly. The facts in many cases where employees are discharged for theft demonstrates that with admirable clarity. However, the conduct of a six-day case was not a matter that was done without some considerable thought and strategy. The only explanation for raising the issue of the non-mandatory training courses was an attempt to bolster a weak case, regardless of whether it might have been stronger had counsel pursued a different approach to the case. Seeking further evidence about non-mandatory training courses cannot be seen as part of a strategy to undermine the case, and indeed Mr. Bouchard does not suggest that it was. Failing to pursue evidence that did not turn out to be particularly helpful or promising, in the context of a pursuit of a second line of argument, cannot possibly be seen as evidence leading to a conclusion that counsel and OPSEU sought to sabotage Mr. Bouchard's case. 50. It is also important to note that Mr. Bouchard, through his counsel, does not suggest that there was any other evidence or any other witness to be called to address these evidentiary issues. He simply says that counsel failed to seek favourable opinion evidence from the employer's witnesses and http://www .canlii.org/onlcasl onlrb/2005/2005onlrb 14748 .html 2/16/2006 Bouchard v. Ontario Public Service Employees Union, 2005 CanLII 35106 (ON L.R.B.) Page 13 of 13 failed to call some or all of the twelve successful candidates, none of whose evidence appeared likely to have been helpful. Had counsel not taken the step of pursuing the issue of non-mandatory training courses, none ofMr. Bouchard's complaints would exist. 51. There is therefore no fact alleged in the application of any act by OPSEU or its counsel that could sustain a conclusion that OPSEU or its counsel took any step designed to undermine the chance of success of Mr. Bouchard's grievance. It may be possible in hindsight to quarrel with counsel's tactics (though I would not be inclined to do so), but there is nothing that could possibly lead to a conclusion of bad faith or arbitrariness as Mr. Bouchard alleges. There are therefore no facts pleaded that, even if all are proven to be true, that could make out a case for a finding of a violation of section 74. 52. This application is therefore dismissed. "David A. McKee" for the Board l,l\QQuLCSloJ"IJ] LCqOc:litiqO$QLL,J$?] l,l\c:l\ji3PG?c:l.$?c':lfC::h] lH?lp] LFrClH9i3i$] lPriYClGyEQliGY] LMi3iJipg[,,i$t$] lIeGhniGi3lmLiprgry] lC9DJi3GtCi3nLJJ] bv ~:UM for the F8dBra~ion of law Sociectles o.fCanadil .. http://www.canlii.org/onlcas/onlrbI200512005onlrb14 7 48.html 2/16/2006