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HomeMy WebLinkAboutNR 19-09-10IN THE MATTER OF AN ARBITRATION PURSUANT TO THE LABOUR RELATIONS ACT BETWEEN: EASTERN ONTARIO REGIONAL LABORATORY ASSOCIATION ("EORLA") (the employer) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 475 ("OPSEU") (the union) RESPECTING: A GRIEVANCE FILED ON BEHALF OF "NR" (2017-0475-0019) INTERIM RULING Arbitrator: Ms. Judith Allen, AIM Counsel for Employer: Ms. Kecia Podetz, Emond Harnden LLP Ms. Tara Hristov, summer student Counsel for Union: Mr. Matthew Hrycyna, OPSEU Hearing Dates: August 7th and 8th, 2019 in Ottawa Interim Ruling: September 10th, 2019, Ottawa INTERIM RULING i, The matter before me involves the termination of a casual, probationary employee, ""NR" (hereinafter, "the grievor") on the basis that she ""failed to meet the expectations of [her] role as an EORLA Pathology Assistant 1 (hereinafter, a "PA"). I have used the grievor's initials to protect her privacy. 2. The employer has a preliminary jurisdictional objection on the basis of article 11.01 of the collective agreement. The collective agreement provides that for those employees whose regular hours of work are other than the standard work day, the probationary period is six hundred and seventy-five (675) hours. There is no dispute that the grievor was a casual probationary employee at the time of her discharge. 3. Article 11.01 also states: "[t]he release of a probationary employee shall not be the subject of a grievance or arbitration." 4. Although the grievance before me refers to a breach of article 3, the management rights clause, the substance of the grievor's complaint is that she has been discriminated against on the bases of ethnicity and marital status. The grievor has a concurrent application pending before the Human Rights Tribunal of Ontario. 5. As i . exception • exclusions of probationar employees• benefits 21Pa e clauses is if management has exercised its decision in an arbitrary, bad faith or discriminatory manner, the employer has agreed to reserve its jurisdictional objection until the evidence has been completed. The employer notes, however, that the burden of proof is on the union to demonstrate that the grievor was treated in a bad faith, arbitrary of discriminatory manner. 6. On the first day of hearing, the employer agreed to make its opening statement, without altering the burden of proof, which lies upon the union to prove that the decision to terminate the grievor was discriminatory, arbitrary or made in bad faith. 7. An attempt was made to settle the matter, which was not successful. 8. In a nut -shell, the employer alleges that the grievor failed to meet the expectations of her role, despite additional training and that it determined the grievor was ""unsuitable"' due to a number of instances of lateness and conflicts with colleagues. 9. The union disputes these allegations, and as noted above, alleges the employer discriminated against the grievor on the basis of ethnicity and marital status. The union commenced its direct examination of the grievor on August 7th, 2019 in the afternoon and that continued the following day until the afternoon of August 8t", 2019, when employer counsel commenced her cross-examination of the grievor. 10. Throughout the grievor's testimony in chief and again in cross, she was counselled by her lawyer and by myself to 31Page answer questions, to not interrupt, to not speculate, if she did not know the answer, to say she did not know. During her testimony, the grievor chuckled, paused, cried, became agitated and was argumentative with her lawyer and with myself. When employer counsel raised an objection, the grievor would respond to her directly, despite being told not to do so by her counsel and by myself. 11. Once the cross-examination began on the second day, the grievor became more argumentative, more agitated and more animated. Both her counsel and myself had to intervene to explain or re -explain the process. I raised a concern with the grievor's counsel privately about her mental capacity to continue testifying. After speaking to the grievor, privately, union counsel felt we could probably proceed. 12. Once we were back in the room and employer counsel continued her cross examination, the grievor seemed anxious, tired and continued to interrupt employer counsel and provide testimony which was unresponsive to the questions being asked. The grievor was insisting upon looking at a document to refresh her memory, which was not put into evidence during her examination in chief. She wanted to think about her evidence for a week or so. I asked her if she had the capacity to continue, if she understood the process, we were in. The grievor cried and responded that she was having panic attacks. She also stated that employer counsel was "a bad person". 13. At that point, I adjourned the hearing and said that we would continue the hearing when the union provided me with evidence of the grievor's psychiatric capacity to continue the hearing. I did so, because the grievor stated 41Pa�_. she was having problems with recollection, wanted a week off to consider her answers and was having a panic attack. I did so to protect the process, for her benefit, as well as for the benefit of the other participants, including both counsels. 14. The grievor strenuously objected to the adjournment. The grievor continued to protest the adjournment after employer counsel had left the hearing room and while her counsel and union representatives and I were packing up our computers and materials. She insisted that her protests be recorded as part of the record. I did not record her protests on the basis that I did not believe that she understood the ramifications and consequences of what she was saying. I did not record them so as not to prejudice her future evidence, if indeed, there is any future evidence. 15. I was concerned that the grievor might cause harm to herself or others as she continued to protest. I spoke with union counsel, privately and requested the union to ensure her safe return to her home or hospital. 16. I then drafted an Interim Ruling outlining the reasons for seeking a capacity test, that afternoon. 17. Prior to delivering the Interim Ruling, I received a request from Union counsel to make submissions about the 111pendingorder for the Grievor to undergo a psychiatric evaluation before proceeding with the hearing." Thus, this Interim Ruling concerns the appropriateness of my adjourning the hearing on August 8th, 2019 until the Grievor provides satisfactory evidence that she has the capacity to continue with the hearing. THE UNION'S POSITION 5 1 P a e 18. The union asserts that the grievor "meets the threshold of capacity to give evidence in a hearing and should not be made to undergo a psychiatric evaluation in order to continue her testimony." 19. The union relies upon subsection 16(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5, which states: If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine (a) Whether the person understands the nature of the oath or a solemn affirmation; and (b) Whether the person is able to communicate the evidence. 20. The union relies upon the following passage in the SCC Decision R. v. Marquard, [1993] 4 S.C.R. at para. 12, per McLaughlin J., for the test in determining capacity pursuant to ss. 16(1) of the Canada Evidence Act: Testimonial competence comprehends: (1) the capacity to observe (including interpretation); (2) the capacity to recollect, and (3) the capacity to communicate [citations omitted]. The judge must satisfy him -or herself that the witness possesses these capacities. Is the witness capable of observing what was happening? Is he or she capable of remembering what he or she observes? Can he or she communicate what he or she remembers? The goal is not to ensure that the 6 1 P a g e evidence is credible, but to assure that it meets the minimum threshold of being receivable. The enquiry is into capacity to perceive, recollect and communicate, not whether the witness actually perceived, recollects and can communicate about the events in question. Generally speaking, the best gauge of capacity is the witness' performance at the time of trial. The procedure at common law has generally been to allow a witness who demonstrates capacity to testify at trial to testify. Defects in ability to perceive or recollect the particular events at issue are left to be explored in the course of giving the evidence, notably by cross- examination. 21. The union also relies upon the decision of arbitrator Francis Price in U.F C W., Local 401 v. Westfair Food Ltd., [2005] GarswellAlta 1078 at para. 17 where the arbitrator cites Gorsky in Evidence and Procedure in Canadian Labour Arbitration as follows; A person is incompetent to testify if he or she suffers from a mental illness or other disability that makes it impossible for that person to interpret observed events, to understand questions asked, or to communicate. However, a prospective witness is not disqualified merely because he or she is affected by a mental, intellectual, or communication deficiency. The board must determine the extent to which the deficiency interferes with the witness's capacity to give evidence. It has been suggested that unless the handicap of the witness is such that his mental or intellectual capacity totally negates his ability to relate what he saw, then his evidence should be received. Any extenuating 7 1 P a g e weightcircumstances should be considered in evaluatinii zF and credibility. 22. Finally, in acknowledging that the grievor's behaviour did disrupt the hearing, the union relies upon the decision of arbitrator Dana Randall in Toronto (City) v. CUPS, Local 79, [2010] CarswellOnt 11060 at para 79 for the point that even 'extreme cases of misbehaviour in a hearing have not prevented witnesses from testifying."' 23. The union maintains that there is ""no evidence that the Grievor is unable to perceive, recollect and communicate." EMPLOYER'S POSITION 24. The Employer has declined to take a position respecting this Interim ruling. ANALYSIS AND RULING 25. I accept that the test for capacity is different than the test for credibility as outlined by the majority in Marquard and by Gorsky, above. I agree that the test is whether the grievor has the capacity to understand the significance of an oath, to observe (including interpretation), recollect and communicate. 26. I note that the context in Marquand was the capacity of a child aged three and a half at the time of the incident giving rise to criminal charges against her grandmother. At trial the child was five years old and provided conflicting evidence to that earlier relayed to medical staff and others. 8 1 P a g e 27. I further note the context in the U.F.C. W. case, supra, was a motion by employer counsel to seek a capacity assessment as a result of the grievor testifying that he had a brain tumour removed ten years previously at the end of his examination in chief. By that point the arbitrator had already observed the grievor testify without apparent difficulty to observe, recollect or communicate and the motion was, in my view, properly dismissed. 28. I also note that the extremely disruptive witness in the case before arbitrator Randall, was the key witness for the employer who refused to return for cross examination and was returned through a bench warrant. The issue of her capacity was never raised or argued. 29. None of the cases relied upon by the union consider sub -section 48(12) of the Labour Relations Act, 1995, S.O. 1995, c. 1 which set out arbitral powers, including: compelling testimony (paras. (d), (e) and (f)); issuing interim orders (para. (i)); and interpreting and applying human rights and other employment-related statutes (para. (j)). It is my responsibility to comply with the rules of natural justice and fairness and to ensure the integrity of the process. 30. None of the cases involved a grievor whose entire case depends upon her evidence that she was discriminated against on the basis of ethnicity and marital status. 31. None of the other cases involved a concurrent human rights application. 32. The Toronto case involved a witness described by the arbitrator as "more aggressive, more belligerent, and had a ,.: greater sense of her own importance and entitlement than any participant I have ever encountered in the labour arbitration process" [at para. 79]. That description could easily apply to the grievor's behaviour in the hearing before me. However, in addition, the grievor has stated that she needs aids to recollect and needs time to recollect. Her affect has been bizarre, laughing inappropriately, crying, yelling. The turning point for me, has not (regrettably) been her verbally abusive treatment of both union and employer counsel and myself, although, I have the obligation to ensure a fair process for all participants. The turning point for me is the grievor's emotional collapse in which she claimed to be in the midst of a panic attack. 33. Arbitrator Randall described the disruptive witness before him as a combination of "belligerence and narcissistic self regard". I do not possess the training to diagnose the grievor. I cannot tell whether she suffers from a mental health issue or whether she is simply a belligerent and manipulative person. For her protection and for the protection of the arbitral process, I believe there is sufficient evidence before me that she lacks the ability to recollect and may, indeed be unable to give and receive instructions/advice from her counsel; cannot or will not comply with directions from me; and cannot or will not treat counsel with a modicum of courtesy and respect that is necessary to maintain the fairness of this process. 34. None of the participants before arbitrator Randall were so concerned, apparently. 35. I appreciate that the union has and wishes to continue to protect the grievor's interests. I need to protect this process for all participants, including the grievor. If she is assessed as having the capacity to continue, i.e., she understands the meaning of her oath; she can distinguish between observations (including interpretations of her observations) and speculations; she can try to the best of her ability to remember events and make clear when she does not remember; and can give and receive instructions/advice to her counsel; we can continue with the balance of her cross-examination and the rest of the evidence. At that point I will indeed make an assessment of her credibility. 36. I direct the union to ensure that the grievor receives a copy of this Interim Ruling. If the grievor provides satisfactory evidence to the union that she has the mental capacity to participate in the hearing, i.e., that she understands her oath; that she has the capacity to give and receive instructions/advice to/from her counsel; has the ability to observe and interpret; has the ability to recollect and to identify when she cannot recollect; and can communicate her answers without impairment we will confirm or re -schedule additional hearing dates. 37. The hearing will remain adjourned until the union has provided me with evidence that the grievor has the mental capacity and desire to continue with the hearing, such that we can confirm or re -schedule the matter, or, for a period of six months from today`s date, whichever is earlier. We are currently holding January 22nd and 23rd and February 12th and 13th, 2020 for continuation dates. I request the parties to advise me whether to maintain holding any or all of these dates in the interim. 38. If I have not received evidence that the grievor has the capacity and the desire to continue the hearing on or before 111 P a e the close of business day on March 9t", 2020, the grievor's evidence will be struck and I will hear submissions on whether the grievance will continue to be pursued on other evidence; be considered withdrawn; or dismissed. Dated this10th 44 day of September, 2019 in the City of Ottawa. JuditVAllen, AIM 121 Page