HomeMy WebLinkAboutReynolds 22-12-30IN THE MATTER OF AN ARBITRATION
Pursuant to the Colleges Collective Bargaining Act
BETWEEN:
HUMBER COLLEGE INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING
(“College”)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 562
(“Union”)
(Grievance of B. Reynolds – Expert Report)
SOLE ARBITRATOR: Jasbir Parmar
On Behalf of the College:
W. J. Hayter, Counsel
Heather Black, Director, Human Resources and Faculty Relations
Eloise Etcubanez, Human Resources Business Partner
John Stilla, Senior Dean, Faculty of Liberal Arts & Science
Ronalda Puritch, Acting Associate Dean, Centre for Education, Language and Professional Practice
(CELLP), Faculty of Liberal Arts & Science
On Behalf of the Union:
Stephanie Hobbs, Counsel, Goldblatt Partners
Yin Kot, Articling Student, Goldblatt Partners
Milos Vasic, Acting President
Miriam Novick, Acting Chief Steward
Brett Reynolds, Grievor
Submissions received on June 10, 2021 and December 6, 2022, via videoconference.
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INTRODUCTION
[1] This is an interim decision dealing with the issue of the admissibility of expert evidence.
[2] Professor Brett Reynolds, the Grievor, is a professor employed by the College. He grieves that
the College breached Article 13 of the collective agreement “by arbitrarily and unjustifiably changing
faculty-assigned grades without properly consulting with [him], and without recognizing [him] as the
individual most qualified and capable of assessing the academic performance of these students”.
[3] The College challenges the factual basis of the allegations. Furthermore, the College submits its
actions are consistent with the College’s academic regulations and policies, and, in any event, do not
constitute a violation of Article 13.
[4] The parties agree that, in determining this grievance, I will have to interpret Article 13 of the
collective agreement, in the context of the entire collective agreement. Article 13 of the collective
agreement makes reference to academic freedom.
[5] The Union seeks to admit expert evidence from Professor James Turk about the broad concept
of academic freedom, as it is commonly understood, on the basis that it will aide in my interpretation of
Article 13. The Employer objects, on the basis that the proposed evidence is neither relevant nor
necessary. On agreement of the parties, the Employer reserves the right to object to the expert’s
qualifications at a later date.
[6] Based on the reasons outlined below, I find the expert evidence is inadmissible.
REQUEST TO RESERVE
[7] The hearing process that has been undertaken to date is outlined in another interim decision in
this matter dated August 10, 2022 (“the August 2022 decision”). As I noted therein, the parties agreed
in May 2021 that the issue of the admissibility of the expert evidence would be determined on the basis
of the Union’s retainer letter to its expert. That agreement flowed from the fact that the Union, due to a
number of delays for a variety of reasons, was unable to commit to a firm date on which the expert’s
report would be available, and the College expressed concern about the impact of proceeding without
knowing whether the report would be admissible, along with a concern about delay if we were to wait
indefinitely for the report.
[8] Submissions on the admissibility issue were made by the parties on June 10, 2021 but not
completed. This was because the submissions were paused to determine another issue, namely,
whether Article 13 of the collective agreement incorporated the concept of academic freedom as it is
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generally understood in the university sector. In the August 2022 decision, I determined that the answer
to that question was “no”.
[9] Subsequently, during a case management conference on October 5, 2022, the Union advised it
still sought to admit expert evidence, albeit on the basis of a revised retainer letter. The College advised
it still objected to the admissibility of the proposed expert evidence. It was determined that the parties
would complete their submissions on the admissibility issue on the next scheduled hearing date,
December 6, 2022, so that I could provide a decision on this issue in a timely manner. This would permit
this arbitration proceeding to continue without interruption on already scheduled dates commencing
January 19, 2022.
[10] On December 2, 2022, the Union advised via email that it had concerns about the appropriateness
and fairness of the plan to use the December 6th date to address the issue of admissibility on the basis
of its retainer letter alone. The Union indicated it did not view itself as bound by the process agreed to in
May 2021. Its explanation for this view was that it had now invested significant resources in obtaining a
report (which was not the case in May 2021), and that they now expected to receive the report by
“approximately December 31”. The Union also submitted that the August 2022 decision led the Union to
find “itself in a different strategic and legal landscape than in the spring of 2021, including in the balancing
of its interest in cost efficiency against its interest in having the content of the report before [me] to inform
[my] decision-making”.
[11] The College objected to the Union’s proposal to deviate from the agreement to have the
admissibility question decided upon the basis of the retainer letter to the expert. The College submitted
that the revised questions did not meaningfully alter the nature of the proposed evidence and that this
was essentially another attempt by the Union to admit evidence about the concept of academic freedom
in the university sector. The College also submitted that an examination of the questions in the retainer
letter would be sufficient to determine whether the test for admissibility was met, and that there was no
need to see the expert’s answers to those questions. As for the reference to the costs the Union had
incurred, the College indicated that was the Union’s choice and not a basis for further delay in this
proceeding.
[12] Ultimately, the Union agreed to adhere to the original process and complete the submissions as
planned, but requested that I exercise my discretion to reserve my decision on the admissibility issue
until I had received and reviewed Professor Turk’s report (post submissions).
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[13] On December 16, 2022, the Union advised that Professor Turk would not be providing the report
by December 31, 2022 as previously indicated, and that it now expected to receive his report from him
on January 6, 2023.
[14] Having considered the parties’ submissions, I decline to exercise my discretion to reserve my
decision on the admissibility issue until receipt of Professor Turk’s report. My reasons for this are two-
fold.
[15] First, from a perspective of fairness, the Union’s changed view about how it would prefer to
proceed is not a basis to vary from the hearing process the parties agreed to. The reason it was decided
to proceed in this manner was to ensure the hearing was not delayed as a result of the Union’s difficulties
in producing the report. I observe that even now the Union has indicated there will be further delays. In
my view, it would defeat the entire objective of the process, which is to allow this hearing to move forward,
if I were to await the report which has an expected date of receipt which continues to change even now.
[16] Second, from a substantive perspective, I agree with the College that the admissibility issue can
be addressed satisfactorily based on the Union’s retainer letter to Professor Turk. The determination of
admissibility of expert opinion evidence is based on the topics addressed by the opinion, and not upon
the opinion itself. The topics which the opinion will address may be determined on the basis of the
questions put to the expert. This, after all, was why the process for determining this issue on the basis
of the retainer letter was agreed to in May 2021.
ADMISSIBILITY OF EXPERT EVIDENCE
Collective Agreement Provisions
[17] There are two key collective agreement provisions at issue in this grievance:
Article 13
COPYRIGHT AND ACADEMIC FREEDOM
13.01 [Addresses copyright issues]
13.02 Academic freedom is fundamental to the realization and preservation of the
College’s commitment to academic excellence. The purpose of this article is to define the
rights and obligations related to academic excellence. The purpose of this article is to
define the rights and obligations related to academic freedom.
13.03 All members of the College community shall support and protect the fundamental
principle of academic freedom.
13.04 Every faculty member is able to exercise academic freedom in the perf ormance of
his/her duties. Academic freedom at the College includes the right to enquire about,
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investigate, pursue, teach and speak freely about academic issues without fear of
impairment to position or other reprisal.
13.05 The exercise of academic freedom is subject to the following responsibilities:
(i) In exercising academic freedom, employees shall be responsible for
adhering to legal parameters (such as but not limited to The Human Rights
Code, Criminal Code of Canada, civil liability, collective agreement
obligations), institutional regulations, Ministry Directives, requirements of
accrediting bodies, and program and curriculum requirements.
(ii) Academic freedom carries with it the duty to use that freedom in a manner
consistent with the scholarly obligations to base research and teaching on
an honest search for knowledge. In exercising such freedom, faculty have a
responsibility to respect the academic freedom and rights of other members
of the college community.
(iii) The College affirms that faculty shall be free to act and speak in their capacity
as public citizens provided they indicate they are speaking as individuals and
not acting as representatives of the College
* * *
CLASSIFICATION DEFINITIONS FOR POSITIONS IN THE ACADEMIC BARGAING
UNIT
CLASS DEFINITION
PROFESSOR
Under the direction of the senior academic officer of the College or designate, a Professor
is responsible for providing academic leadership and for developing an effective learning
environment for students. This includes:
(a) The design/revision/updating of courses, including: …
(b) The teaching of assigned courses, including:
- Ensuring student awareness of course objectives, approach and evaluation
techniques;
- Carrying out regularly scheduled instruction;
- Tutoring and academic counselling of students
- Providing a learning environment which makes effective use of available
resources, work experience and field trips;
- Evaluating student progress/achievement and assuming responsibility for the
overall assessment of the student’s work within assigned courses
(c) The provision of academic leadership, including: …
In addition, the Professor may, from time to time, be called upon to contribute to other
areas ancillary to the role of Professor, such as student recruitment and selection, time-
tabling, facility design, professional development, student employment, and control of
supplies and equipment.
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The Evidence at Issue
[18] The Union seeks to admit expert evidence from Professor Turk relating to the broad concept of
academic freedom as it is commonly understood. Specifically, having provided Professor Turk with a
summary of the facts alleged by the Grievor, the Union has asked Professor Turk to provide an opinion
on the following:
1. A description of academic freedom as commonly understood and/or defined, including a
discussion of its historical evolution and current expression (including in Canadian post-
secondary contexts).
2. A discussion of the scope of academic freedom for professors and in particular the
extent, if any, to which it relates to grading and/or development of course content and
evaluation criteria, or to the professional responsibilities of college professors (such as
Professor Reynolds).
3. A discussion of what, if any, limits have governed the expression of academic freedom
in Canadian post-secondary institutions, including a discussion of the relationship
between academic freedom, and the exercise of institutional or administrative priorities,
regulations or policies in post-secondary institutions.
4. We would also ask that you review the academic regulations, the collective agreement,
and relevant policies and course outlines, etc. at issue in this proceeding in order to
provide comment on them and their relationship to and/or restriction of academic
freedom as it is commonly understood and defined.
5. A discussion of the extent to which, if any, the events described above restricted or
impacted Professor Reynolds’ exercise of academic freedom.
[19] Just as a point of clarity, in posing questions #1 and #4 to Professor Turk the Union actually used
the term “fundamental principle of academic freedom”. However, in the course of its submissions on
December 6, the Union indicated it intended to amend the questions so they referred only to “academic
freedom”. For that reason, I have set out the questions above to reflect this further amendment.
[20] The Union advised that it expects Professor Turk will, in answering these questions, provide
evidence about how academic freedom has been interpreted in the university sector; how it evolved to
the college sector; the differences between universities and colleges in the expression of academic
freedom; how academic freedom has been interpreted in the context of policies and in the context of
collective agreement provisions in other jurisdictions; the differences in how the concept of academic
freedom is understood and practiced at different institutions, and what are the generally accepted
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components of academic freedom. As the Union put it, it expects there will be an aspect of “compare
and contrast” about different sectors and institutions in the evidence.
Brief Summary of the Parties’ Positions
[21] The Union began its submissions by noting that the August 2022 decision determined a narrow
issue - that the principle of academic freedom as it is understood in the university sector has not been
incorporated into Article 13. The Union notes that the decision did not determine that interpretation of
academic freedom in Article 13 is entirely divorced from the broad concept of academic freedom as it
exists generally outside of the collective agreement. It is the Union’s position that the concept of
academic freedom, as it is has developed in the scholarship and as it has been defined in other contexts,
informs the interpretation of academic freedom under Article 13.
[22] Given this position, the Union submits that it is essential that I have an understanding of the broad
concept of academic freedom as it exists generally. The Union submits that academic freedom is a
comprehensive theory. The Union submits that despite any differences in the way that any particular
collective agreement defines academic freedom in a particular workplace, there are shared and
overriding features in the concept of academic freedom. The Union submits that Professor Turk’s
evidence will help me understand the components of the broad concept of academic freedom as it exists
generally in other contexts.
[23] The Union acknowledged that, once this evidence is presented, the parties will have to make
arguments as to what aspects of the concept of academic freedom, as it has been defined up to this point
generally, are applicable to the instant academic working environment, have regard to the constraints of
the College-specific context and the language of the instant collective agreement. As the Union put it, it
will push for “a more robust understanding”, having regard to how academic freedom has been defined
and expressed elsewhere, and it expects the College will push for a narrower understanding. The Union
submits that even if it is determined that this evidence only modestly informs the interpretation of Article
13, it is nonetheless relevant.
[24] In respect of any concerns that Professor Turk is providing an opinion about whether Article 13
has been breached, particularly in answers to questions #4 and #5, the Union submitted that was not the
objective of its questions, acknowledging that is the very issue in dispute and therefore one that I must
ultimately determine. Rather, the Union submits, these questions are being asked so that Professor Turk
can provide an opinion about whether, generally speaking, the sorts of actions the College undertook in
the instant case typically run afoul of academic freedom when defined as a broad concept.
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[25] The Union submits this evidence is necessary and probative because an arbitrator is not an expert
in the concept of academic freedom. The Union submits that since I am an experienced arbitrator there
is no risk of confusion, as I am not likely to substitute the expert’s opinion for my own determination. The
Union submits that arbitrators seeking to understand the particular constraints and scope of academic
freedom in the university sector have routinely admitted experts. The Union also noted that this is the
first time the concept of academic freedom will be interpreted by an arbitrator in the Ontario college
sector, and submits that therefore consideration of this evidence will be invaluable in the making of my
determination on the merits of the grievance.
[26] The Union relied on the following authorities: R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Abbey, 2009
ONCA 624; R. v. D.D. (2000), 191 D.L.R. (4th) 60; R. v. Burns, [1994] S.C.J. No. 30; University of Waterloo
and Faculty Association of the University of Waterloo, 2001 CanLii 61020; York University and York
University Faculty Association, 2006 CanLii 60968; Queen’s University and Queen’s University Faculty
Association, 2019 CanLii 17950; York University and York University Faculty Association, 2007 CanLii
50108; Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553;
L’Association Des Professeures et Professeurs A Temps Partiel De L’Universite Concordia et
L’Universite Concordia, 2014 CanLii 22795; Memorial University of Newfoundland v. Memorial University
of Newfoundland Faculty Assn., [2007] N.L.L.A.A. No. 3; Mount Allison Faculty Association and Mount
Allison University, 2020 CanLii 33895; University of Ottawa and Association of Professors of the
University of Ottawa, 2014 CanLii 100735; Lukits v. Treasury Board (Dept. of National Defence), 2019
FPSLREB 32; University of Manitoba Faculty Association and University of Manitoba, 1991 CanLii
13023; University of Ottawa and Association of Professors of the University of Ottawa, 2008 CanLii
93037.
[27] For its part, the College submits the Union is essentially trying to lead the same expert evidence
the Union wanted to lead when it held the, now rejected, position that Article 13 incorporated the concept
of academic freedom as it exists in the university sector.
[28] The College’s submissions focused on the following excerpt from the August 2022 decision, at
paragraph 26:
… Article 13.02 states “the purpose of this article is to define the rights and obligations related
to academic freedom”. There could be no clearer indication that the definition of the term is
to be found in the content of Article 13 itself. In the face of such an express statement, there
is no need, and really no valid basis, to look elsewhere, such as dictionaries, to try to
understand what “academic freedom” means in this collective agreement. If means whatever
Article 13 says it means because that is the very purpose of Article 13 – to define the scope
of what academic freedom means. What is notable, for the purposes of the threshold issue,
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is that nowhere in Article 13, where the rights and obligations relating to academic freedom
must be found, is there any reference to universities or the university context.
[29] In the College’s view this paragraph effectively answered the issue of the admissibility of the
expert evidence. Since the definition of academic freedom must be found in the language of Article 13,
the College submits there is no basis to consider as relevant any evidence about the broader concept of
academic freedom as it exists elsewhere.
[30] To the extent the expert is being asked to opine on the specific documents at issue in this case,
the College submits the evidence the Union seeks to lead is inappropriate because it opines on the very
issue that I must decide. To the extent the expert is being asked to opine on the concept of academic
freedom generally, such evidence is irrelevant because the definition of academic freedom is that which
is found in Article 13 and not as it exists elsewhere.
[31] The College also submits the expert evidence is unnecessary. The College submits the concept
of academic freedom is not one that is sufficiently foreign that it requires an expert to explain it. The
College submits the Union can make its arguments based on jurisprudence addressing the concept.
[32] The College strongly disagrees with the Union’s suggestion there is no risk of harm in admitting
this evidence, noting that if it is admitted the College will have to respond to it, potentially retaining its
own expert to review it and provide a responding expert report. The College submits this would lead to
extensive delay in the hearing. In addition, the College submits it could lead to an extensive debate in
the evidence about the concept of academic freedom generally, an issue that is distinct from the question
of whether Article 13 of this collective agreement has been breached. The College submits that in
exercising the “gatekeeping” role, I should not admit this evidence.
[33] The College referred me to the following additional authorities: McKinney v. University of Guelph,
[1990] 3 S.C.R. 229; Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570;
Lavigne v. OPSEU, [1991] 2 S.C.R. 211; White Burgess Langille Inman v. Abbott and Haliburton Co.,
[2015] 2 S.C.R. 182.
Analysis
[34] Expert evidence is presumptively inadmissible: R. v. Abbey, supra. However, it is recognized that
in limited circumstances such evidence may assist the determination that must be made by the trier -of-
fact. The burden falls on the party tendering the evidence to establish its admissibility on a balance of
probabilities. In R. v. Mohan, supra, the Supreme Court of Canada set out four criteria that must be met
before expert evidence will be admitted: relevance, necessity in assisting the trier of fact; the absence
of any exclusionary rule; and a properly qualified expert.
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[35] In considering the criteria, regard must also be given to the gatekeeper component of the
admissibility inquiry: R. v. Abbey, supra.
[78] It is helpful to distinguish between what I describe as the preconditions to admissibility of
expert opinion evidence and the performance of the “gatekeeper” function because the two are very
different. The inquiry into compliance with the preconditions to admissibility is a rules -based
analysis that will yield “yes” or “no” answers. Evidence that does not meet all of the preconditions
to admissibility must be excluded and the trial judge need not address the more difficult and subtle
considerations that arise in the “gatekeeper” phase of the admissibility inquiry.
[79] The “gatekeeper” inquiry does not involve the application of bright line rules, but instead
requires an exercise of judicial discretion. The trial judge must identify and weigh competing
considerations to decide whether on balance those considerations favour the admissibility of the
evidence. This cost-benefit analysis is case-specific and, unlike the first phase of the admissibility
inquiry, often does not admit of a straightforward “yes” or “no” answer. Different trial judges,
properly applying the relevant principles in the exercise of their discretion, could in some situations
come to different conclusions on admissibility.
[36] In short, the gatekeeping function is to ensure evidence which may otherwise be admissible is
not, if its probative value outweighs its prejudicial effect: White Burgess Langille Inman, supra.
[37] One fundamental problem with the Union’s position is that it reverses the process dictated in
Mohan. The party seeking to admit the expert evidence must establish it is relevant before it is admitted.
The Union is essentially suggesting that evidence be admitted before a determination is made about its
relevance. This was acknowledged implicitly by the Union’s admission that, after I hear the expert’s
opinion about the broader concept of academic freedom and how it may be understood in a variety of
different institutions, the parties will then have to make arguments about which, if any, aspects of that
broader concept apply under the specific language of this collective agreement.
[38] I find that the Union has failed to establish that the first criterion for admission of expert evidence,
relevance, has been met. In considering the Union’s request to admit expert evidence about the broad
concept of academic freedom as it is commonly understood, one must begin with the issue that must be
determined in this case. That issue is whether Article 13 has been breached, not whether the Grievor’s
academic freedom, as a broad concept, has been breached. The significance of this distinction arises
from the plain language of Article 13 which, while confirming the ability of every faculty member to
exercise academic freedom, expressly indicates that the purpose of the Article is to define the rights and
obligations related to academic freedom. Thus, any description of academic freedom as a broad concept
or as it exists elsewhere is irrelevant in the instant case insofar as it does not align with how the instant
collective agreement defines academic freedom.
[39] Furthermore, the Union’s proposed approach – to admit expert evidence about the broad concept
of academic freedom on the possibility that some of that evidence may ultimately be found to be relevant
– raises the very concerns that give rise to the need for a gatekeeping function, even where the
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preconditions of admissibility have been met. An arbitrator must assess the potential harm to the
adjudicative process flowing from admission of that evidence. The Union submits that there is little cause
for concern about any confusion arising from the admission of the proposed expert evidence, given the
expertise of arbitrators in appropriately weighing evidence in the course of their decision-making.
However, this submission does not address the risk of confusion and consumption of hearing time arising
from the admission of evidence which may ultimately be determined to be irrelevant. This is a materially
significant concern in the present case. Article 13 defines academic freedom. As the College has already
indicated, if evidence about a “broad concept” of academic freedom were admitted, the College would
have to respond to the totality of the expert evidence, even though some or even all of it may ultimately
be determined to be irrelevant to the interpretation of Article 13. This would considerably lengthen the
hearing. In my view, these concerns are significant enough that they outweigh any probative value in
admitting evidence of the broad concept of academic freedom as it exists generally.
[40] Even if the proposed expert evidence were relevant or I did not find it was appropriate to exercise
my discretion in respect of the gatekeeping role, I find that another criterion for its admissibility has not
been met – necessity.
[41] The Union submits that the proposed expert evidence would assist me because a labour
arbitrator’s expertise does not extend to a concept which is specific to academia. I do not accept the
underlying premise of the Union’s submission, that the broad concept of academic freedom is a
sufficiently specialized concept that an arbitrator is unable to properly understand it without the assistance
of expert evidence. There may have been a time when the concept of academic freedom was new to
arbitrators, such that it made sense for arbitrators to admit such expert evidence. I have been referred
to three such decisions: University of Manitoba, University of Waterloo, and York University. As noted
by Arbitrator Goodfellow in York University, there were few arbitration decisions dealing with academic
freedom in this country at that time.
[42] However, that is no longer the case. There are now numerous arbitration decisions where
arbitrators have determined, without any expert evidence, whether collective agreement provisions
relating to academic freedom have been violated: Queen’s University; L’Universite Concordia, Memorial
University of Newfoundland, Mount Allison University, University of Ottawa (2014); Lukits v. Treasury
Board (Dept. of National Defence); University of Manitoba; University of Ottawa (2008). These include
decisions involving similar disputes to the instant case, where the academic employer’s actions in relation
to changing the grades of a professor’s students were challenged on the basis of interference with
academic freedom. The reality, evidenced by these numerous decisions, is that collective agreements
in the academic sector regularly make reference to academic freedom and arbitrators are regularly called
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upon to interpret and apply those collective agreement provisions to the facts before them. A review of
the more recent decisions indicates that arbitrators have had no difficulty in understanding and applying
the concept of academic freedom. Some have referred to earlier arbitration decisions which fleshed out
the concept of academic freedom generally.
[43] I am satisfied that I will be able to address the issue of academic freedom without expert evidence,
just like the other arbitrators who have done so in more recent decisions. I therefore find the Union’s
proposed evidence is not necessary to assist me in the proper adjudication of this grievance.
[44] In coming to this conclusion, I have considered the Union’s submission that arbitration decisions
from the university context would not assist me in the same manner as an expert opining on academic
freedom in the college context. In my view, this submission is at odds with the Union’s submission that
there are shared and overriding features in the concept of academic freedom regardless of any
differences in the way that any particular collective agreement defines academic freedom in a particular
workplace. Essentially, the Union contends that I ought to admit the evidence of academic freedom as
a general concept because it will be helpful to me. However, as explained above, the test for admission
of expert evidence is necessity, not mere helpfulness: White Burgess, supra.
[45] Given my finding that the proposed expert evidence does not meet the required criteria of
relevance and necessity, I find the proposed expert evidence is not admissible.
DISPOSITION
[46] The Union’s request to admit expert evidence is dismissed.
DATED THIS 30TH DAY OF DECEMBER, 2022.
“Jasbir Parmar”
______________________________
Jasbir Parmar, SOLE ARBITRATOR