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HomeMy WebLinkAbout1978-0100.Casey.78-10-19IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD 100/78 TELEPHdNE: 4r6/sss-ose .- Between: Mr. C. E. Casey And Ministry of Correctional Services Before: Mr. George W. Adams Chairman Mr. P. H. Coupey Member Mr. H. Simon Member For the Grievor: Mr; George Richards, Grievance Officer Ontario Public Service Employees Union 1901 Yonge Street. Toronto, Ontario For the Employer: Mr. C. G. Riggs, Hicks, Morley, Hamilton P.O. Box 371, Royal Trust Tower Toronto, Ontario Hearinq: September 15, 1978 Suite 2100, 180 Dundas St. West Toronto, Ontario i .c - l- In this case the grievor, Mr. C. E. Casey, grieves his discharge.~... ~~ from the employ of Ministry of Correctional Services (hereinafter referred to as the Ministry). Prior to dismissal he was employed as a correctional officer at the Toronto Jail. .He was dismissed following the publication of the Report of the Royal Commission in the Toronto Jail and Custodial Services, (hereinafter referred to as the "Royal Commission Report"). This report was referred to the Lieutenant Governor of Ontario by the Commissioner, His Honour Judge B. Barry Shapiro in March, 1978 and the grievor was dismissed April 27, 1978. At the outset of the hearing, counsel to the Ministry sought to introduce both the full Royal Commission Report and the transcripts of that inquiry for the truth of all matters therein with respect to Mr. Casey's dismissal. While not refusing to call additional evidence to support the actions it had taken, the Ministry took the position that the Royal Commissions Report and its related transcripts should be considered as sufficient evidence before the Grievance Settlement Board. The Ministry therefore requested~the Board to rule on the admissibility of these documents to establish the truth of the events giving rise to the grievor's discharge and the trade union agreed with this approach. In.support of the Ministry's position, Mr. Riggs submitted that the Royal Comnission Report is a public document and as such con- stitutes the truth of the matters therein reported. He told the Board that specific sections of the report made findings of misconduct against Mr. Casey and it is these findings on which the Ministry relies. Legal authority for the proposition that these conclusions against Mr. Casey . ._ ” ,.. . . -2- must by this Board be "presumed to be true" was said to be found in Sturla v Freccia (1880) 5 App. Cases 623: R. V. Kaipiainen (1954) O.R. 43; Ioamou v. Den&rim (1952) 1 All E.R. 170, A.C. 84 (P.C.); Finestone Y. g. (1953) S.C.R. 107; Irish Society Y. Derry (1846) 8 E.R. 1561 and Pettit v. Lilley (1946) i All E.R. 593. With respect to the transcripts, Mr. Riggs relied upon that exception to the hearsay rule allowing for the admissibility of test- imonial statements subjected to cross-examination provided the declarant is not available and the parties and issues of the earlier proceeding are substantially the same. See !rom of Watherton V. ~rdman (18941, 23 S.C.R. 352. Mr. Riggs advised the Board that many of the persons who gave evidence before the Royal Commission were former inmates of the Toronto Jail and may now be extremely difficult to locate. Mr. Riggs argued that for all practical purposes these persons should be presumed to be unavailable as witnesses in support of the Ministry's case. In short, Mr. Riggs submitted that given the very thorough and time consuming effort of the Royal Connnission,it was sensible for the Grievance Settlement Board to rely upon the Commission's transcripts and findings. Mr. Riggs drew attention to Section 9(l) of the pubiic Inquiries Act, 1971 and assured the Board that he was not seeking to rely on the - evidence of Mr. Casey before the Royal Cormnission. Rather he was relying upon the testimony of other witnesses that was preferred by Judge Shapiro. Section 9 provides: O.(l) A rwitness at m inquiry si:all be &e.wd to have objected to answer any question asked him upon the ground that his answer may tend to criminate him or my tend to establish his liability to civil proceedings at the instance ? = . 8 -3- of the Crown or of any perscm, and no answer given by a witness at an inquiry shall be used 01 be receivable in evidence against him in any trial 01 other proceeding against him thereafter taking place, other than a prosecution for perjury in giving such evidence. Mr. Richards, for Mr. Casey, produced a decision of the Pubiic Service Staff Relations Board holding that a Report of a Commission of Inquiry pursuant to the Inquiries Act R.S.C. 1970, c. l-13 and which was the basis of a ~grievor's dismissal was not admissible in the subsequent proceedings instituted to determine the justness of such disciplinary action. In that case the adjudicator at page 16 ruled that the employer had failed to provide sufficient proof that the previous inquiry had been conducted in a judicial or quasi judicial manner and that the fundamental rights of the complainant had been respected. see BellenWe and Treasury Board, 166-2-2341. Mr. Richards emphasized that the employer was seeking to base all of its case on hearsay evidence and, notwithstanding section 18(2) and Section lO(12) (c) of the Crown Employees Collective Bargaining Act, 1970, to grant this request would deny the grievor his right of WOSS- examination. In support of this view Mr. Richards referred the Board to Re Girvin et al and Consum?rs’~Gas (1973), 40 D.L.R. /3dI 509. DECISION It is our opinion that the Report of the Royal Conmission is not admissible in these proceedings to establish the truth of the matters therein reported. The policy for this approach is, of course, found -4- in the hearsay evidence rule, the requirements of natural justice, and SeCtiOn 9(l) of the Public Inquiries Act, 1971. The Board ought to be provided with the best evidence available in support of an employee's dismissal and, in turn, the employee must be provided with a meaningful opportunity to cross-examine those persons who tender evidence against him. To rely exclusively on the Royal Commission Report would fly in the face of these fundamental principles. It. is our view that the Report is not the kind of "public document" falling within the cases referred to by Mr. Riggs. For the most part, those cases dealt, more or less, with the reporting of objective facts in the course of a non-adjudicative public duty. The "public document" principle is appropriately confined to the public reporting of facts and events that ought to be presumed to be true because of the assurances flowing from public access and the presumption that public officials will undertake their duties diligently. Undoubtedly, Judge Shapiro performed his duty to inquire in a most diligent manner. The mere size of the Report bears testimony to this fact. Similarly, no one disputes that the public now has access to this Report. But such public access and the undoubted diligence of the Commissioner do not mean that the Report's findings with respect to highly controversial facts and allegations are correct. They are one man's opinion after having had the opportunity to observe the response and demeanour of all the witnesses brought before him. It is the duty of the Grievance Settlement Board to perform this same function -5- and to come to its own judgment with respect to the issues relevant to this grievance. In our opinion the more appropriate evidentiary principles are those that deal with admissibility of findings and evidence arising out of previous proceedings and of great importance is SeCtiOn g(1) Of the Public Inquiries Act. We find that the Ministry has failed to establish that the witnesses before the Royal Commission relevant to this grievance are unavailable to give evidence before the Board and are satisfied that the parties and issues before that of the Royal Commission are not the same as those before us. The forms of the two proceedings are quite different and, indeed, the case of me !rhe Children's kid Society of the comty of York (1934) OWN 418 (Ont. ~.a.) has held that "where are no parties oz sides" to an inquiry of the kind conducted by Judge Shapiro. Accordingly, neither the doctrine z Judicata nor the principle admitting testimonial statements of unavailable witnesses applies. Moreover, Section 9(l) of the Public Inquiries Act makes inadmissible all previous statements of the grievor made before the Royal Conmission. The Ministry's position if accepted, would substantially undermine the protection afforded by that statute. For all of these reasons neither the Report of the Royal Commission nor the related transcripts will be admitted on the basis -6- proposed by the Ministry. This matter is referred to the Registrar to ~.' '. .~~ be re-scheduled for hearing. Dated at Toronto this 19th day of October 1978. G. W. Adams I concur P. H. Coupey I concur H. Simon Chairman Menbe r Member