HomeMy WebLinkAbout1984-0537.Rowley.85-06-15IN THE MATTER OF AN ARMIXATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Patricia Rowley)
Before:
The Crown in Right of Ontario
(Ministry of Education)
M. R. Corsky Vice-Chairman
I. Freedman Member
A. M. McCuaig Member
Far the Griever: C. G. Paliare
Coup6 el
Gowling & Henderson
Barristers & Solicitors
For the Employer: A. W. McChesney
Staff Relations Officer
Staff Relations Branch
Management Board of Cabinet
Hear@ April 4, 1986
Grievor
Employer
DECISION J
7 A panel of the Board composed of Vice-Chairman,
M. R. Gorsky, Union Member, I. Freedman and Rmploye'r Member, D.
Gray, commenced to hear this case on October 11, 1965. As the
hearing was not concluded on that day (only the Union's case having
been heard), the Registrar set April 4, 1986 as a day for the
continuation of the hearing. As a result of the unfortunate death
of Member, D. Gray, a new panel was assigned to the case by the
Registrar made up of Vice-Chairman, M. R. Gorsky, Union Member,
I. Freedman and Employee Member, A. M. McCuaig.
/ At the opening of the hearing, Ms. A. W. McChesney,'for
the Employer, objected to the jurisdiction of this panel to preside
at the hearing. It was submitted that it would represent a breach
of natural, justice for this panel to proceed to hear evidence
and issue its Award. The basis for such position was the fact
that the Vice-Chairman and Mr. Freedman had heard one day's evidence
while Mr. McCuaig had not. Mr. McCuaig, therefore, would have
to rely on information obtained from the Vice-Chairman and Mr.
Freedman, and perhaps Mr. Gray's notes (or some combination thereof),
for his understanding of the Union'scase.
We are in agreement that there is merit in this objection.
We need not decide what our response would be in the myriad. of
other situations that may arise where a panel member dies before
the award.is released. Here, the continuation of the hearing
from the point it left off on October 11, 1985, with one member
of the panel, as presently constituted, not having heard the evidence
of.the Union, would raise a number of serious questions . All
of the panel members ought to have had the opportunity of hearing
2
the same evidence. The expedient of permitting the newly introduced
member to examine the notes taken by the original members (or
some of them), does not overcome the strong perception of unfairness
that would attend such a decision.
Counsel for the Employer also objected to this panel
hearing the case de novo. This would require the Union to, once
again, introduce its case. It was submitted by Ms. McChesney
that this approach would also be unfair to the Employer as the
Union would obtain a possible advantage in being able to reinforce
its case with at least two members of the original panel. The
possibility of unfairness would be overcome by appointing an entirely
new panel to hear the entire case.
Ms. McChesney also objected to the Vice-Chairman continuing
to hear the case as a single arbitrator. Leaving aside the jurisdiction
of a.Vice-Chairman to order that a case proceed before him as
a single arbitrator, there remains the continuing objection by
Ms. McChesney (who was instructed not to agree to such a hearing1
because the Vice-Chairman would be hearing the Union's case twice
and might be affected by his having done so.
It is important that there be no genuine perception
of unfairness in the conduct of hearings. The various expedients
referred to above, which were supported by the Union, contain
real elements of unfairness or, at least, a clear perception of
unfairness. It would be best, in the circumstances, for a completely
new panel to be appointed to hear the case de novo. --
y Our decision only deals with the facts of the case before
i: us. We recognize the special inconvenience to the Crievor becauSe
of (a) having to have another day devoted to adducing evidence
already given and (b) because of the additional delay caused by
our decision. In another case, where many days of evidence had
been completed, other considerations might call for a different
result.
In the circumstances, we conclude that even if jurisdiction
existed to continue the case, in any of the ways supported by
the Union, we should decline to continue to hear it. The Registrar
will, no doubt, appoint a new panel to hear the case .
DATED AT London, Ontario
this15thday of .May, , 1986. 39&G+
M. R. Gorsky
Vice-Chairman
I. Freedman
Member