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HomeMy WebLinkAbout2020-1750.VanMourik.21-11-19 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2020-1750 UNION# G-069-20-TS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union - Local 1587 (VanMourik) Union - and - The Crown in Right of Ontario (Metrolinx - GO Transit) Employer BEFORE Kathleen G. O’Neil Arbitrator FOR THE UNION Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel FOR THE EMPLOYER Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel HEARING November 11, 2021 by videoconference -2- INTERIM DECISION [1]. This decision provides a ruling concerning the scope of reply evidence. Employer counsel asks permission to call an expert witness in two installments, first as part of the employer’s case in chief, and then in reply, to give his full opinion evidence, if necessary. The union opposes the request on the basis that it is entitled to know the case it has to meet prior to calling its own evidence, including a report from the expert. [2]. This is a discharge case, in which the grievor was fired based on allegations that he used excessive force in dealing with a Go Transit passenger. The proposed expert witness in question, Douglas Ashton, is an individual who provides use of force training to Transit Safety Officers, the position the grievor held prior to his discharge. The employer proposes to call him on matters which would clearly form part of its case in chief, such as the training that was provided to the grievor concerning use of force, and any involvement dealing with the actual incident at issue here. There is no objection to that element of the proposed evidence. [3]. The controversial part is the employer’s proposal to have Mr. Ashton hear all of the union’s evidence in chief, prior to providing his assessment of the events and the appropriateness of the use of force on the night in question, as part of the employer’s case in reply. That is because, in the employer’s view, a fundamental component of such an assessment is the officer’s subjective perception of the events and the degree of threat they are facing. Employer counsel notes that Mr. Ashton has advised that he is not prepared to speculate about that, and thus cannot form a proper opinion without hearing the evidence of the grievor and the other officer who was on the scene, if called. It is the employer’s view that to confine the basis of Mr. Ashton’s opinion evidence to notes and documents would only give a partial picture, and would not be the full input that is required. The inefficient alternative, in employer counsel’s submission, is that Mr. Ashton would provide his less complete view of the incidents based on notes and video footage, would then hear the union’s witnesses describe their experience, and would then need to deal with any additional information he gained from that. [4]. Employer counsel noted that if Mr. Ashton were not to hear the evidence himself, the possibility of disputes over what was said might arise, and proposed that it is best just to have Mr. Ashton listen to the evidence and incorporate that into his opinion. It did not appear that the union took exception to the idea that Mr. Ashton would be present for other evidence, so I have not dealt with that point below. -3- [5]. The employer submits that its proposed approach is part of a reasonable process, consistent with natural justice and procedural fairness to the greatest extent. In terms of prejudice, the employer submits there would be none to the union, but significant prejudice to the employer if its expert is not permitted to testify with an evidentiary basis for his best opinion. Moreover, the employer submitted it would not object if the union wished to bring evidence in surreply, meaning in response to the employer’s reply evidence. This is in contrast to the usual order of proceedings where there are only three segments to the presentation of evidence, i.e., the party with the onus of proof puts in its evidence first, followed by the case of the opposing party, with limited reply evidence as the final evidentiary stage. [6]. Employer counsel also noted that he would give notice to the grievor in the course of cross examining the grievor of any anticipated contradiction, following the principles in Browne and Dunn (1893) 6 R. 67, H.L. Further, he offered to provide a will-say statement or other format in advance of Mr. Ashton’s evidence so the union knows what to expect. [7]. Relying on the case law set out in Appendix “A”, employer counsel notes that, where it is not possible to know in advance precisely what the grievor will say, expert evidence in reply does not constitute improper splitting of its case. Further, unlike in civil court, there is no discovery or detailed particulars to rely on, and those the employer has may well change in the course of the evidence. Employer counsel submits that there is nothing unusual or improper about the employer’s request and argues that neither fairness nor efficiency favours the union’s proposal. [8]. Counsel also notes that expert witnesses are in a different category than other witnesses, and are subject to ethical standards, including that the expert should be accepting all the facts with an open mind and be ready to change his mind should the evidence be different than anticipated. [9]. Employer counsel notes that, in the end, Mr. Ashton may not be needed in reply, but wished clarity for both parties in advance, to avoid surprise, and facilitate efficient preparation of the case. [10]. By contrast, the union sees the employer’s request as an attempt to improperly and unfairly split its case, in an attempt to preserve a strategic advantage, and asks that its request be refused. [11]. In light of the fundamental premise that the employer has the onus to demonstrate just cause, union counsel emphasizes that the union and the grievor have a right to know the case that is to be met, when the employer closes its case in chief. -4- Further, they are entitled to an efficient process, which is not unduly delayed. In the union’s view, the employer’s proposal will require the union to lead its case while guessing what the expert would say about the grievor’s conduct. Union counsel predicts it would likely necessitate the inefficiency of recalling each and every one of the union’s witnesses in surreply. [12]. Union counsel emphasizes that the employer is asserting that what can be seen in the video evidence does not amount to justifiable force. This is the basis of its assertion of just cause, which union counsel submits would be wholly improper to introduce as reply evidence, because it would prevent the union from leading its own full case. Further, union counsel does not see its case, based on the assertion that there was no just cause, as analogous to an exculpatory defense such as condonation, alibi, discriminatory discipline or a defence based on a medical condition. In the union’s view, these would be positive defenses that the union would lead evidence about and then the employer would reply. It is on this basis, that counsel for the union distinguishes the decisions in Ottawa (City) v. A.T.U., Local 279, 2012 CarswellOnt 4618, 2012 CanLII 51931 (ON LA) [Sheehan] and Toronto Transit Commission and ATU, Local 113 (Smith), Re, 2A17 CarswellOnt 17285, 2017 CanLII 74319 (ON LA) [Slotnick], relied on by the employer. [13]. Union counsel suggested that the employer’s expert should give all the evidence he could in chief, rather than carving out evidence that is appropriately related to just cause to give in reply. In the union’s view, the evidence related to just cause needs to be part of the employer’s case in chief, which may include the video evidence and other evidence already in the employer’s possession, and on which the decision to terminate was based. Referring to the documents already filed in the parties’ briefs in this matter, union counsel underlines that the grievor has provided detailed statements, and that there are notes of interviews which clearly set out what transpired, including from the second officer involved in the incident. In the union’s view, it is entirely feasible for Mr. Ashton to provide a report and give evidence based on all the available information concerning just cause. Counsel for the union notes that the possibility that an expert may need to update a report based on the actual evidence is contemplated in the decisions cited from the civil courts. It is the union’s position that if the expert has to revise his opinion after hearing the union’s evidence, that is one thing, but the opinion should not be given for the first time in reply. To avoid creating significant unfairness to the union, the union submits that the employer should lead all the evidence they have now as part of their case in chief. [14]. Union counsel stresses that it is fundamentally unfair for the grievor to have to give evidence without knowing what the employer says he did wrong, or for the union to lead expert evidence without having knowledge of what the employer’s expert is -5- going to say, characterizing this approach as an improper displacement of the onus of proof. Further, the idea that the expert would only comment on the evidence already in the employer’s possession in reply creates a necessity for surreply from the grievor and the union’s expert, to respond for the first time to what the employer’s expert says in reply. [15]. The union relies on the general proposition in the case law that reply evidence is to be narrowly construed, essentially restricted to issues that cannot be anticipated, in the service of efficiency and fairness. The union argues that it is not efficient to organize things in a way that would require numerous witnesses to be recalled, which could significantly prolong the hearing. [16]. In reply to the union’s submissions, employer counsel maintained that the union’s argument that Mr. Ashton should provide as much opinion as he can, and then top it up in reply if necessary was problematic. Firstly, Mr. Ashton’s advice has been that because of the components that go into a use of force assessment, he needs to hear the grievor’s assessment to give his opinion, and thus it would not work for him to top it up in reply if necessary when the initial assessment would have been made absent a fundamental component. [17]. As to the union’s concerns about having its own expert testify without knowing what the employer’s expert would say, employer counsel notes that they are fully prepared to have the union made aware of the employer’s expert’s view before the union calls its own expert. Counsel acknowledges that this may mean that the union would be allowed to call the expert later. [18]. Employer counsel indicated that the main concern was to have a process that makes the most sense, and that since the expert’s opinion would be significantly reliant on the union’s evidence, it fits within the concept of reply evidence. Whether or not the union’s defense is seen as a positive defence such as condonation, employer counsel says the important point from the authorities on which it relies is that the objective should be finding the most fair and sensible approach in the circumstances. [19]. Employer counsel stresses that the approach it is requesting means that before the employer’s expert gives his opinion, the grievor will have input through his evidence. Employer counsel suggests it is hard to fathom how that could be just for management’s convenience, as suggested by union counsel, or prejudicial to the grievor. In the employer’s view, it is necessary for the expert to hear the nuanced report from the grievor step by step, which cannot be done in advance. The point is, in the employer’s view, that the expert should not give his opinion until he has the full picture. It is not an attempt to re-hash the case in chief or save -6- its ammunition to the end, in the employer’s view, as was the concern in some of the case law. [20]. Nor is there the concern expressed in some of the case law relied on by the union where there was an element of surprise in that the union thought the employer’s case was closed. Employer counsel emphasizes that there can be no surprise here because the union is on notice of what the employer intends to do, and agrees the union can call its expert later, following the employer’s, if necessary. [21]. The employer is of the view that what is being proposed does come within the parameters of reply and surreply if necessary because it would be in consideration of what would come in the union’s case, even if it could be considered a less formal but more practical approach. [22]. In answer to a question from me, a discussion ensued between counsel concerning the role of union’s counsel’s cross-examination of Mr. Ashton if we proceeded in the manner suggested by the employer. Both agreed that union counsel would be entitled to cross-examine him on the tape and his opinion, although employer counsel explained that his understanding was that there was only so much that Mr. Ashton could offer before hearing the union’s case. Union counsel saw this as inefficient, especially without benefit of an expert report, commenting that the employer was essentially asking to fix a process that is not broken. Union counsel asserts that he is entitled to a report in advance so he can consult with his own expert. If deprived of that opportunity in advance, union counsel observes that the chances of losing part of a hearing day so he could consult with his own expert before continuing cross-examination would increase, creating further inefficiency. * * * [23]. Counsel referred to the authorities listed in Appendix “A”, all of which I have carefully considered. Although none of them speaks directly to the constellation of issues present in the matter before me, the decisions are unanimous on the point that the core principles engaged in deciding on issues like the one before me are efficiency and fairness. The application of those principles in any given case is a matter of the arbitrator’s broad discretion in light of all the relevant circumstances. [24]. Essentially the dispute here has its roots in the difference between the parties about how to characterize one aspect of the case, which is the grievor’s anticipated evidence on his subjective state when involved with the altercation at issue. The employer refers to this as the union’s anticipated defense of reasonable perception of imminent harm, which its expert witness is not capable of assessing -7- without hearing the grievor’s actual testimony. Employer counsel analogizes this to the positive defense of condonation dealt with by Arbitrator Slotnick in Toronto Transit Commission and ATU, cited above. [25]. By contrast, the union’s contention is that its case is not based on a positive defense akin to condonation. Rather, the case is a rejection of the notion that the employer had just cause in all the circumstances of the case at the time of its decision. In the union’s submission, the grievor should be able to give his evidence with full knowledge of the case the employer can put forward on the issue of just cause. The union sees Mr. Ashton’s evidence as an integral part of the employer’s case for just cause, which was based on the information that it had at the time of the decision to dismiss the grievor, which included interviews with the grievor as well as video footage. [26]. Both points of view have merit, and were supported by principled arguments. It is never possible to be certain in advance what will be the best approach to a question such as the one posed here. In the end, though, I have concluded that it is best to maintain, as much as feasible, the usual order of proceeding. Given the important basic principle that the union and grievor are entitled to know what case they have to meet before deciding what evidence to call, I am not convinced that there would be no prejudice to the union and the grievor in permitting the employer to save all its expert’s opinion evidence for reply. The possibility that the grievor and other witnesses would need to be recalled, perhaps months after their original testimony, has many built-in hazards, including the effect of the passage of time on memories. I am of the view that there is less likelihood of prejudice to both parties from maintaining the usual order, which is also likely more conducive to a less protracted hearing. [27]. Further, there are practical problems with the employer’s proposal. Even if union counsel’s “100% guarantee of surreply” of all its witnesses were not to materialize, there is a very increased likelihood of a splintered presentation of the evidence if the employer’s expert gives the bulk of his opinion evidence in reply. This is not a case where the parties have agreed that the expert evidence should be presented separately, such as in a panel format, nor am I suggesting that it is the type of case that would be conducive to it. However, the employer’s proposal would result, in my estimation, in a separate section of the hearing centred on opinion evidence after the fact evidence was in. It appears to me that this runs the risk, not only of lengthening the hearing, but of isolating the expert evidence in a manner I am not convinced will be more useful to me as the trier of fact than the usual format. My task is to decide whether there was just cause for the grievor’s termination in all the circumstances, which will necessarily include consideration of whether or not the grievor’s use of force was excessive, but will also focus on the -8- employer’s decision, which will include other aspects of the circumstances. I am of the view that the usual order of proceedings will keep the expert evidence more rooted in the integrated case put forward by each of the parties on the central issue of the merits of the employer’s decision. [28]. The merit of relying on the usual order of procedure flows from that fact that my task will be to decide if the employer had just cause to discharge, a decision it made on the material it had, which included the grievor’s version of events in writing and from interviewing him. And there may be very little difference between what the grievor said prior to discharge and what he says in his evidence at the hearing. And if that turns out to be the case, any reason for the employer to recall Mr. Ashton might well have evaporated. At the time of the argument of this motion, employer counsel did not intend to have Mr. Ashton address the video footage in direct examination, but accepted that Mr. Ardron would be able to cross-examine him about that. The employer is entitled to put in its case on just cause without asking its expert for his opinion on the video footage, but it is not in my view proper that he would address the video evidence for the first time in reply, since it is an integral part of the employer’s case in chief. [29]. I also accept union counsel’s submission that delay in receiving a report or will-say statement from the expert until after the union has called its case, might well further prolong the hearing. [30]. Employer counsel submitted as an important part of this motion that Mr. Ashton did not feel able to give his full opinion without having the full picture, including the grievor’s view of subjective perception of the situation. For the purpose of this motion, I have assumed the truth of that assertion, rather than delay this matter by having Mr. Ashton called to testify to that view. Nonetheless, I am not persuaded that it is appropriate to disconnect the expert evidence from the employer’s case in chief, which ought to be sufficient for me to find in favour of the employer if no further evidence were to be called. It is not my view that setting the hearing up for a prolonged section of reply and surreply will be beneficial to either the quality of the evidence or the efficiency of the hearing for either side. I am persuaded that the usual procedure will not likely prejudice the employer, as it will provide ample opportunity for the employer to present its evidence even if the expert’s opinion evidence is not based in the first instance on the grievor’s evidence at the hearing. [31]. As union counsel acknowledged, there may be something additional from the union’s case to which Mr. Ashton might properly reply after hearing the grievor’s evidence. For instance, union counsel seemed to accept that if the expert has to revise his opinion after hearing the union’s evidence, that would likely be admissible rebuttal evidence. -9- [32]. In terms of Mr. Ashton’s qualification as an expert, union counsel raised a related issue about the independence of Mr. Ashton’s evidence given his longstanding and ongoing contractual relationship with the employer. Counsel for both sides were directed to consult about an approach and timetable to deal with this issue, preferably before the next date of hearing, November 25, 2021, if it cannot be resolved between them. I will give further direction as necessary about this issue at the request of either party. Counsel are also directed to consult about the provision of will-say statements or reports of their proposed expert witnesses, and to seek direction if they cannot agree on how to proceed. [33]. For the reasons set out above, and to the extent therein indicated, the usual order of procedure will apply, including that reply evidence will be allowed within the usual parameters. Dated at Toronto, Ontario this 19th day of November, 2021. “Kathleen G. O’Neil” _________________________ Kathleen G. O’Neil, Arbitrator