HomeMy WebLinkAbout2019-1201.Haist.22-11-10 Decision
Crown Employees
Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
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Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2019-1201
UNION# 2019-0252-0018
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Haist) Union
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The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Brian McLean Arbitrator
FOR THE UNION Kamal Bakhazi
Koskie Minsky LLP
Counsel
FOR THE EMPLOYER Julia Evans
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING October 12, 2022
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Decision
[1] This is a discharge grievance. The Grievor is a correctional officer whose
employment was terminated for, among other things, alleged use of excessive
force in dealing with an inmate. The hearing of this matter commenced some time
ago and has, to date, involved several hearing days.
[2] This decision concerns a request by the Employer that it be permitted to call an
expert witness to give opinion evidence about the Grievor’s actions during the
incident in question. The Union objects to the Employer’s request. At the request
of the parties, I held a Voir Dire so that the proposed expert could be examined,
and arguments made. This decision determines the Employer’s request.
Background
[3] During the course of the hearing on the merits, the Employer has called witnesses
to give evidence about, among other things, what the Grievor did in the incident
which gave rise to the termination of his employment. In addition, the Employer
has also introduced video evidence obtained from recordings made of the incident
from at least two different viewpoints. It is arguable whether the recordings show
precisely what happened throughout.
[4] Without making any final determinations (which will be left to my final decision) it
appears there are three interactions between the Grievor and the inmate which,
among other things, the Employer relies on as constituting just cause for the
termination of the Grievor’s employment. These interactions take place within a
few minutes.
[5] In the first interaction, the Grievor speaks to the inmate, likely about something the
inmate said to the Grievor. The Grievor gets close to the inmate. The inmate
pushes the Grievor in the chest and the two grapple; the inmate lands blows on
the Grievor. This interaction is largely clearly visible on the video recording,
although there is no sound.
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[6] The second interaction involved the Grievor attempting to subdue and control the
inmate. Other correctional officers arrived on the scene. This is where the
Employer’s primary assertion of excessive physical force arises; it is alleged that,
among other things, the Grievor punched the inmate. The parties have spent
substantial hearing time asking witnesses about their recollections and the video
recordings of this interaction. There is no doubt the video is at least somewhat
unclear; were it otherwise it is possible there would not have been a hearing in this
matter as it would show that the Grievor either punched the inmate or he did not.
However, regardless, there may still be an argument that in the circumstances a
punch was not excessive force.
[7] The third interaction occurred after the Grievor removed himself from the inmate
after other officers controlled or attempted to control the inmate on the ground.
The video shows that the inmate kicked out at the Grievor, perhaps striking him.
The Grievor then physically re-engaged with the Grievor.
The Alleged Expert
[8] The present issue before me is whether the Employer should be permitted to call
Robert Houston as a witness to give opinion evidence about the Grievor’s conduct.
The Employer asserts that Mr. Houston is an expert in the Employer’s use of force
and defensive tactics policies and training. Essentially, it wishes Mr. Houston to
give non opinion evidence about its training requirements and standards and then
give opinion evidence about both whether the Grievor’s actions met the training
standards and requirements and whether the Grievor used excessive force in the
circumstances. To be clear, as I understand it, Mr. Houston has viewed the videos
and read various witness reports and will provide an opinion on what he views and
read.
[9] At a prior hearing day, I had directed the Employer to file an expert’s report along
with Mr. Houston’s c.v. The Employer did so, in the form of a “will state”. In his
will state Mr. Houston indicated the various materials that he had reviewed and
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indicated the opinions he would provide about them if he were permitted to do so.
In his will state Mr. Houston analyzes the three parts of the incident and takes into
account the video recordings and the statements of witnesses and the Grievor.
[10] Mr. Houston will testify that the Grievor did not act in a way consistent with his
training by not de escalating the situation and then getting too close to the inmate.
His opinion is that in the second stage, the Grievor used an improper takedown of
the inmate and improperly mounted the inmate’s chess running the risk of causing
the inmate serious injury. If the Grievor punched the inmate, the Grievor was not
acting consistently with training. As for the third stage, Mr. Houston’s opinion is
that the Grievor’s choice to reengage the inmate was not consistent with the
threat.
The Arguments
[11] The Union objects to Mr. Houston’s qualification as an expert. It also asserts that
his evidence is not necessary as I am fully capable of deciding the issues in this
case without the benefit of expert testimony; in fact, it argues, there is a danger
that I will be overly swayed by the expert’s opinion evidence. The Union does not,
however, object to Mr. Houston giving non opinion evidence about the employer’s
defensive tactics training regime and other similar information.
[12] The leading cases on the admissibility of expert evidence are R. v. Mohan, 1994
CanLII 80 (SCC), [1994] 2 S.C.R 9 and White Burgess Langille Inman v. Abbott
and Haliburton Company, 2015 SCC 23 (S.C.C.). The tests described by the
Supreme Court in these cases are usefully summarized in M.A.B v M.G.C. 2021
ONSC 8572 (CanLII) (Ont. Sup. Court):
Once the precise substance and scope of the proposed expert opinion evidence are
identified, the judge must proceed to a general two-stage test for determining the
admissibility of the evidence. This framework has evolved over the years and was
articulated, in its current form, in White Burgess. The two-stage test extends to the
opinion evidence of litigation, participant and non-party experts (Westerhof, at para.
64; Imeson, at para. 83; Sainte–Marthe, at para. 32). The first stage of the framework
requires that the evidence must satisfy five threshold requirements of the admissibility
of expert opinion evidence which were articulated in the case of R. v. Mohan, namely:
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1. The evidence must be logically relevant;
2. The evidence must be necessary to assist the trier of fact;
3. The evidence must not be subject to any other exclusionary evidentiary
rule;
4. The expert must be properly qualified; and
5. For opinions based on novel or contested science, or science used for a
novel purpose, the underlying science must be reliable for that purpose
(White Burgess, at paras. 19 and 23, citing R. v. Mohan, at pp. 20 to 25; R. v.
Abbey at paragraph 82; Imeson at paragraph 81; Sainte-Marthe, at
paragraph 31; Ogwadeni:deo, at para. 18).
The second general stage of the admissibility analysis is a discretionary gate-keeping
step, where the court must weigh the benefits of admitting the evidence against the
potential risks involved in allowing it. At this stage, the evidence may only be
admitted if the probative benefits and value of the evidence outweigh the potential
prejudicial effects of permitting it (White Burgess; Bruff-Murphy, at para. 36; Girao v.
Cunningham, 2020 ONCA 260 (C.A.)).
[13] I apply the factors described as follows.
1. The evidence must be logically relevant
In my view, Mr. Houston’s opinions about the Grievor’s use of force are logically
relevant. The Employer alleges both that the Grievor engaged in several acts that
were inconsistent with his training and used excessive force. An expert’s opinion
about such matters would clearly assist me in coming to conclusions and therefore
are relevant.
2. The evidence must be necessary to assist the trier of fact
The Union strenuously argues that I am fully capable of assessing the Grievor’s
actions by watching the video recording and hearing from the witnesses. It relies
on R v. K (A) [1999] 45 O.R. (3d) 641 where the Ontario Court of Appeal
discussed this issue:
2. Necessity
[90] The proposed expert opinion evidence must not only be relevant and worth
receiving as discussed above, it must be necessary to assist the trier of fact. If the
trier of fact can form his or her own conclusions on the facts without help, the opinion
of an expert, even though it may be relevant, is unnecessary and inadmissible.
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[91] As indicated in Mohan, the evidence must be more than just helpful to meet this
criterion. On the other hand, necessity cannot be judged by too high a standard. The
test is formulated in different ways in Mohan (at p. 23 S.C.R., p. 413 C.C.C.):
-- The "evidence must be necessary to enable the trier of fact to appreciate
the matters in issue due to their technical nature."
-- The "opinion must be necessary in the sense that it provides information
'which is likely to be outside the experience and knowledge of a judge or
jury'."
-- The "subject-matter of the inquiry must be such that ordinary people are
unlikely to form a correct judgment about it, if unassisted by persons with
special knowledge."
[92] Therefore, the following alternative questions should be asked:
(a) Will the proposed expert opinion evidence enable the trier of fact to
appreciate the technicalities of a matter in issue?
(b) Will it provide information which is likely to be outside the experience of
the trier of fact?
(c) Is the trier of fact unlikely to form a correct judgment about a matter in
issue if unassisted by the expert opinion evidence?
[93] Where the subject-matter of the opinion evidence is technical in nature, it is
usually easy to meet the criterion of necessity. No one would dispute that the trier of
fact is likely to need expert assistance in understanding the engineering principles
involved in the construction of a bridge. However, in cases such as this one, where
the proposed opinion evidence is about human behaviour, it is much more difficult to
decide whether the opinion will provide information which is likely to be outside the
experience of the trier of fact, or whether the trier of fact is unlikely to form a correct
judgment about the matter in issue. It is up to the trial judge in each case to make a
judgment call on this issue in the context of the particular case and his or her
judgment is entitled to deference. O'Connor J.A., writing for this court in R. v. F. (D.S.)
(1999), 1999 CanLII 3704 (ON CA), 43 O.R. (3d) 609, 132 C.C.C. (3d) 97, stated as
follows (at p. 625 O.R., pp. 115-16 C.C.C.):
There is no exact way to draw the line between what is within the normal
experience of a judge or a jury and what is not. The normal experiences of
different triers of fact may differ. Over time the subject matters that come
within the normal experiences of judges and juries may change. The normal
experiences of those in one community may differ from those in other
communities. In the end, the court in each case will be required to exercise
its best judgment in deciding whether a particular subject matter is or is not
within the normal experience of the trier of fact.
[14] In Re Ministry of the Attorney General and British Columbia Government
Employees Union, 1996 CarswellBC 3020, [1996] B.C.C.A.A.A. No. 350, 45
C.L.A.S. 161, 57 L.A.C. (4th) 391 (Greyell), a case also relied on by the Union, the
arbitrator had before him a grievance regarding discipline for alleged use of
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excessive force in restraining a prisoner. Arbitrator Greyell reviewed the relevant
authorities with particular focus on the cautious approach that adjudicators must
use when determining whether to accept expert testimony:
10. In addressing the criteria of "necessity in assisting the trier of fact" and the
"ultimate issue" rule the learned Justice [ Mr. Justice Sopinka in R. v. Mohan
(supra)] stated at pp. 23-24:
(b)
Necessity in Assisting the Trier of Fact
In R. v. Abbey, supra, Dickson J., as he then was, stated, at p. 42:
With respect to matters calling for special knowledge, an expert in the field
may draw inferences and state his opinion. An experts' function is precisely
this: to provide the judge and jury with a ready-made inference which the
judge and jury, due to the technical nature of the facts, are unable to
formulate. 'An expert's opinion is admissible to furnish the Court with
scientific information which is likely to be outside the experience and
knowledge of a judge or jury. If on the proven facts a judge or jury can form
their own conclusions without help, then the opinion of the expert is
unnecessary' (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton, L.J.)
This pre-condition is often expressed in terms as to whether the evidence
would be helpful to the trier of fact. The word "helpful" is not quite appropriate
and sets too low a standard. However, I would not judge necessity by too
strict a standard.
What is required is that the opinion be necessary in the sense that it provide
information "which is likely to be outside the experience and knowledge of a
judge or jury": as quoted by Dickson J. in R. v. Abbey, supra. As stated by
Dickson J., the evidence must be necessary to enable the trier of fact to
appreciate the matters in issue due to their technical nature. In Kelliher
(Village of) v. Smith, [1931] S.C.R. 672 at p. 684, this Court, quoting from
Beven on Negligence (4th ed. 1928), at p. 141, stated that in order for expert
evidence to be admissible, "[t]he subject-matter of the inquiry must be such
that ordinary people are unlikely to form a correct judgment about it, if
unassisted by persons with special knowledge". More recently in R. v.
Lavallee, supra, the above passages from Kelliher and Abbey were applied
to admit expert evidence as to the state of mind of a "battered" woman. The
judgment stressed that this was an area that is not understood by the
average person.
As in the case of relevance, discussed above, the need for the evidence is
assessed in light of its potential to distort the factfinding process. As stated
by Lawton L.J. in R. v. Turner, [1975] Q.B. 834, at p. 841, and approved by
Lord Wilberforce in Director of Public Prosecutions v. Jordan, [1977] A.C.
699 at p. 718:
An expert's opinion is admissible to furnish the court with scientific
information which is likely to be outside the experience and knowledge of a
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judge or jury. If on the proven facts a judge or jury can form their own
conclusions without help, then the opinion of an expert is unnecessary. In
such a case if it is given dressed up in scientific jargon it may make judgment
more difficult. The fact that an expert witness has impressive scientific
qualifications does not by that fact alone make his opinion on matters of
human nature and behaviour within the limits of normality any more helpful
than that of the jurors themselves; but there is a danger that they may think it
does.
The possibility that evidence will overwhelm the jury and distract them from
their task can often be offset by proper instructions.
There is also a concern inherent in the application of this criterion that
experts not be permitted to usurp the functions of the trier of fact. Too liberal
an approach could result in a trial's becoming nothing more than a contest of
experts with the trier of fact acting as referee in deciding which expert to
accept.
These concerns were the basis of the rule which excluded expert evidence in
respect of the ultimate issue. Although the rule is no longer of general
application, the concerns underlying it remain. In light of these concerns, the
criteria of relevance and necessity are applied strictly, on occasion to
exclude expert evidence as to an ultimate issue [emphasis added].
11. In brief, then, an expert opinion will satisfy the criteria of necessity if the opinion
offered by the expert would provide information "which is likely to be outside the
experience and knowledge of a judge or jury" (per Dickson, J. in R. v.
Abbey,[1982] 2 S.C.R. 24 (S.C.C.)) or where the subject matter of the evidence is
"such that ordinary people are unlikely to form a correct judgment about it, if
unassisted by persons with special knowledge".
[15] The Arbitrator then went on to find that he was fully capable of deciding whether
excessive force was used:
17. In my view, the necessity criteria enunciated by the Supreme Court of Canada
in Mohan is founded on sound policy reasons that are equally applicable in the
field of labour arbitration. It is not only not necessary but is unseemly and contrary
to labour relations policy to permit opinion evidence on a topic within the common
experience of arbitrators. Arbitrators are commonly called on to decide whether
employees should be subject to discipline for assault on fellow employees,
customers of the employer or patients in the employer's care. See for example the
large number of cases cited under the heading "Fighting, assault" at pp. 7-115 to
7-122.3 of Canadian Labour Arbitration, Brown and Beatty, 3rd ed. looseleaf
(Aurora: Canada Law Book, December 1996). Arbitrators routinely determine
whether a grievor has used force and, if so, whether the application of force in
those circumstances was reasonable. Arbitrators draw such conclusions without
the assistance of expert testimony for it is generally conceded that whether a force
or excessive force (in the case of self-defence) has been applied is within the
realm of knowledge of the common person and does not require specialized or
technical knowledge. Indeed, judges and juries regularly make such
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determinations involving both citizens and police officers in civil and criminal cases
unaided by expert testimony.
[16] The Union urges me to follow Arbitrator Greyell’s decision and find that I am fully
capable on my own of assessing the Grievor’s actions. It says that I am fully
capable of deciding whether the force used was excessive and, once the expert
has testified about the Employer’s use of force policies, whether the Grievor acted
consistently with those policies.
[17] The Employer argues that an expert opinion will assist me in determining whether
the Grievor acted consistently with his training throughout the incident. It notes
that vice chairs of the Grievance Settlement Board have frequently (and perhaps
universally) permitted expert evidence in use of force cases. This consistent
practice started (at least) with the GSB’s decision in Wild (Ontario Public Service
Employees Union (Wild) v The Crown in Right of Ontario (Ministry of Community
Safety and Correctional Services) 2016 CanLII 18941 (ON GSB). There Vice
Chair Harris received similar arguments to those before me and held:
[20] There can be no doubt in the matter before me that Mr. Ireland's evidence would
be relevant to the facts in issue. In dealing with the second criterion, necessity in
assisting the trier of fact, Sopinka J. made the following comments at pages 23 – 25.
[The quotes of Sopinka J., as set out in the Greyell award, are omitted]
[21] Mr. Ireland’s knowledge and explanation of the training given to the grievor are
relevant and not opposed by the union. Although use of force cases do come before
the Board with a concerning frequency, they are fact driven, and the application of the
law and policy to each of them differs with the circumstances of each case. There is a
technical aspect to the use of force in a correctional facility, which is likely to be
outside the experience and knowledge of a Vice-Chair of the Board. An expert’s
evidence on this subject matter in the specific circumstances would help the Board
form a correct judgment about it. I find that the proposed evidence meets the test of
necessity.
[18] the Employer argues that the Board’s decision in Wild has special import in the
context of the GSB in that the GSB is one Board and its decisions are to be given
significant precedential weight. In Re Blake,[January 22, 1988] then GSB Chair
Shime expressed his opinion on what the Board’s approach should be when a
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party attempts to convince the Board, to depart from its previous decisions. After
recognizing that ad hoc boards of arbitration in the private sector generally follow a
policy of not departing from earlier decisions unless such decisions are manifestly
in error, at p. 8-9, Chair Shime wrote.
But the Grievance Settlement Board is one entity – it is not a series of separately
constituted boards of arbitration. Under Section 20(1) of The Crown Employees
Collective Bargaining Act there is “a Grievance Settlement Board” – that is, one
Board. Under Section 20(4) the Grievance Settlement Board may sit in two panels
and under Section 20(6) a decision of the majority of a panel is “the decision” of the
Grievance Settlement Board.
Thus each decision by a panel becomes a decision of the Board and in our opinion
the standard of manifest error which is appropriate for the private sector is not
appropriate for the Grievance Settlement Board. The Act does not give one panel the
right to overrule another panel or to sit on appeal on the decisions of an earlier panel.
Also, given the volume of cases that are currently administered by this board, the
continuous attempts to persuade one panel that another panel was in error only
encourages a multiplicity of proceedings and arbitrator shopping which in turn creates
undue administrative difficulties in handling the case load.
We are mindful, however, that there is no provision for appeal and there are limits to
judicial review. While it is our view that the “manifest error” theory is too lax a
standard, we recognize that there may be exceptional circumstances where an earlier
decision of this board might to be reviewed. At this point we are not prepared to
delineate what constitutes exceptional circumstances and the fleshing out of that
standard will be determined on a case by case basis. The onus will be on the party
seeking review to establish exceptional circumstances.
[19] The Employer argues that the GSB determined in Wild that expert evidence was
admissible in use of force cases in corrections and that because of the Board’s
decision in Blake I ought not to deviate from that ruling, particularly since the Union
is not alleging a manifest error in Wild.
[20] In order to address the Employer’s argument, it is important to look at what the
GSB in Wild actually determined. I repeat the salient portion of the decision.
Although use of force cases do come before the Board with a concerning frequency,
they are fact driven, and the application of the law and policy to each of them differs
with the circumstances of each case. There is a technical aspect to the use of force
in a correctional facility, which is likely to be outside the experience and knowledge
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of a Vice-Chair of the Board. An expert’s evidence on this subject matter in the
specific circumstances would help the Board form a correct judgment about it. I find
that the proposed evidence meets the test of necessity.
[21] My reading of this portion of the decision is not that the GSB decided that expert
evidence is admissible in every use of force case before the GSB. It notes that
there is a “technical aspect” which is “likely” [but not always] outside the
experience and knowledge of a Vice Chair of the Board. It says that expert
evidence on the subject matter “in the specific circumstances” would help the
Board. I do not take any of that as standing for the proposition that the GSB will
always accept expert evidence in all use of force cases. In my view, the Board’s
decision on the point was made in the context of the facts before it. In other
circumstances, the Board may come to a different conclusion.
[22] That being said, in my view, the case before me is one where expert evidence is
welcome. As I understand them, the Employer’s use of force policies are not so
specific that they can be easily applied to a particular circumstances in all cases.
For example, I do not believe that the policies state that in communicating with an
inmate the correctional officer should not get more than a specified distance from
the inmate. I would benefit from an expert in tactical communication and use of
force to held determine some of the issue before me.
[23] In other words, to answer the questions posed by the Court of Appeal in R v. K (A),
I am satisfied that the proposed expert opinion evidence will enable me to
appreciate the technicalities of these matters. I also find that the information is at
least to some degree, outside my experience. Finally, while I think I am capable of
forming the correct judgment in the result of the matter in issue, if unassisted by
the expert opinion evidence, it is not clear to me that I will come to that decision for
the right reasons. For example, I may ultimately correctly decide that the Grievor
was either too close or not too close to the inmate in their interaction immediately
preceding the inmate’s strike to the Grievor’s head, but I may not come to that
correct conclusion for the right reasons.
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[24] However, in the circumstances of this case I do not find it appropriate to hear
expert evidence about whether the force used by the Grievor was excessive. That
is the very issue (or one of them) which I must determine, and Mr. Houston’s
opinion is based on his own factual findings based on largely disputed evidence.
In these circumstances it is appropriate that I make that determination without
opinion evidence once I have had made my findings of fact. On the other hand, I
am prepared to hear evidence about the circumstances, if any, that it is
appropriate for a correctional officer to use a closed fist or re-engage with an
inmate and, assuming I accept that evidence, I can assess whether the
circumstances before me met those criteria (again, subject to fact finding about
what actually occurred in this case).
3. The evidence must not be subject to any other exclusionary evidentiary
rule.
The evidence is not subject to any other exclusionary rule.
4. The expert must be properly qualified
[25] The parties spent a considerable amount of time in questioning Mr. Houston and
arguing about the merits of his qualifications. Mr. Houston has been employed
with the Ministry for 22 years.
[26] He started out as a correctional officer and held that position for several years.
Naturally, he took all of the use of force training required of a correctional officer.
However, he did more than that. At a certain point in 2010 he was engaged in a
peer-to-peer training role as a defensive tactics trainer. He was also made a
member of the region’s ICIT team (a specialized force that is mobilized when the
correctional officers at an institution require assistance, as in, for example, a riot).
ICIT members receive additional special training on the use of force including
dealing with the most troublesome offenders. He later became a ICIT leader.
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[27] In 2014 he became a member of management, an Operations Manager “OM”
(what is now called a sergeant). He kept up his skillset for defensive tactics but
was primarily involved in the day to day running of the jail.
[28] From 2016-2018 he was the senior staff development officer at the province’s
correctional officer school, the Correctional Services Recruitment and Training
Centre. He was the site lead for various training of student correctional officers.
At the same time, he was the manager of Mentoring Monitoring Program (MMP) in
which he trained, monitored, evaluated, and counselled Defensive Tactics
facilitators, and updated policies and reviewed current tactical options. He acted
as the “Master Trainer” for the Defensive Tactics Associate Instructor Program. In
this role he trained, certified, recertified, and monitored associate instructors who
provide use of force trainings at all SOLGEN institutions. He oversaw
approximately 90 – 130 instructors who train staff in the field.
[29] From 2018-2021 Mr. Houston was Manager, Customised Training, Social Justice
(Acting). This role involved managing various equity initiatives. Since 2021 he
has been the Manager, Customized Training, Emergency Response, and
Institutional Block Training at the Corrections Centre for Professionalism and
Advancement Training. As such he manages the development, implementation,
evaluation, and maintenance of mandatory and customized training programs for
institutional correctional staff. His current responsibilities are Defensive Tactics,
Institutional Crisis Intervention Team, Crisis Negotiator, Institutional Block Training,
Mental Health training, Institutional Management training Crisis A and Crisis B,
First Aid/CPR, MSA, Radio network and Cultural Awareness training.
[30] He has provided expert evaluation with respect to four Correctional Services
Oversight and Investigation (CSOI) contentious use of force investigations. CSOI
investigates alleged misconduct including allegations of excessive use of force.
CSOI has called Mr. Houston for his opinion when they are not sure whether the
use of forcer was appropriate or not. He has also testified as an expert witness in
court albeit not with respect to use of force.
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[31] What makes an assessment of Mr. Houston’s qualifications challenging is that he
has held a number of roles over time, not all of which have related to his claimed
expertise. In particular, his recent experience has been less focused on the sub
[32] Nevertheless, I am satisfied that he was and remains an expert in use of force and
defensive tactics. He has been directly involved in use of force training of
correctional officers in one capacity or another from at least 2010 to 2018 and that
continues, albeit with a lesser intensity. Crucially, he has not only been a trainer,
but he has been a trainer of trainers and, in effect, the head trainer. As such, I am
satisfied that he is an expert in the field, particularly with respect to the Ministry’s
policies.
[33] For all of these reasons, I find that Mr. Houston is an expert in use of force and
defensive tactics in connection with the Ministry’s policies in these areas. I allow
him to give opinion evidence at the hearing of this matter with respect to whether
the Grievor’s actions complied with Ministry policy. I also allow him to give
evidence about the circumstances, if any, where it is appropriate for a correctional
officer to punch an inmate or re engage with an inmate. I will disallow evidence of
his views of the facts or the Grievor’s motivations. There are clearly statements
made in the will state that are outside the bounds of proper opinion evidence.
These include Mr. Houston’s factual conclusions. Any objections to questions
which call for improper evidence can be dealt with at the hearing during the course
of Mr. Houston’s testimony.
Gatekeeping
[34] The cases referred to by the Union speak of a “gatekeeper” role for the
adjudicator. Concerns are expressed about the potential for prejudicial effects of
expert opinion evidence and the length of time the expert might testify which might
improperly extend the proceedings.
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[35] In coming to my conclusion, I have given considerable thought to the Union’s
arguments regarding the risks associated with permitting an expert to give opinion
evidence. I agree that adjudicators must take care not to allow themselves to be
deferential to the expert’s opinion. Expert evidence is like any other evidence; it
must be assessed, evaluated and given appropriate weight. As Arbitrator Hayes
stated in Sault Area Hospital and OHA v. Ontario Nurses’ Association (‘Vaccinate
or Mask’ Policy), (Hayes) 2015 CanLII 55643 (ON LA):
268……. But, the expert witness is not to substitute for the adjudicator’s independent
assessment of the legal issue to be decided. Accordingly, rather than “deference”, the
real questions are what weight should an arbitrator give to particular expert opinion
evidence and does that expert opinion evidence assist in drawing inferences. As set
out above, the parties agreed that it is necessary to assess and choose between the
conflicting scientific evidence. That assessment and such choice are not questions of
“deference” but an exercise of an arbitrator’s normal judgment with respect to the
weight, relevance and credibility of competing evidence.
[36] Moreover, some of the concerns expressed by the Union, which are reflected in
the caselaw, are much more applicable to court proceedings, especially jury trials,
than they are to hearings at the GSB. Vice chairs have the authority to “admit and
act upon such oral or written evidence as [they] consider proper, whether
admissible in a court of law or not.” Inherent in this power is that a Vice Chair may
receive evidence and then not give it weight. In other words, Vice Chairs are
trusted to admit evidence and, if appropriate, ignore it. In fact, that is what
happened in this case. The parties put Mr. Houston’s expert report (his will state)
before me, and I have read it. I have heard questions being asked of him about it.
And yet, it is understood that even though I have read his opinion about whether
excessive force was used, and I have read his view about what occurred in this
incident, I can put that aside and make a decision based on the evidence which I
ultimately give weight to.
[37] As for delay, there is no doubt that can be a concern with some expert evidence.
However, it is also true, in my experience (including in this case), that the
argument regarding the admissibility of expert evidence can also take a substantial
period of time; because of the practicalities of the decision-making process, almost
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inevitability at least one full hearing day. I anticipate that Mr. Houston’s evidence
will not substantially lengthen the hearing of this matter.
[38] Accordingly, in my view, the benefits of admitting the evidence clearly outweigh the
minimal potential risks of whatever prejudicial effects there are of permitting it.
Dated at Toronto, Ontario this 10th day of November 2022.
“Brian McLean”
____________________
Brian McLean, Arbitrator