HomeMy WebLinkAbout1985-1013.Bazak et al.93-09-29ONT.4RIO EMPLOYESDE LA CO”RONNE CHOWNEMPLOYEES DE “ONTARIO
GRIEVANCE C$lMMISSION DE
SETTLEMENT REGLEF/IENT. ’
BOARD DES GRIEFS
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IN THE MATTER OF AN ARBITRATION
BETWEEN
BEFORE
FOR THE
GRIEVOR
FOR TBE
EMPLOYER
HEARING
THE CROWN EMPMYEEB COLLECTIVE BARGAINING ACT
Before
THEGRIEVANCE SETTLEMENT BOARD
OPSEU (Bazak et al)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of ~Health)
Employer,
T. Wilson Vice-Chairperson
T. Browes-Bugden Member
E. Orsini Member
R. Anand
Counsel
Scott a Aylen
Barristers 8 Solicitors
S. Patterson
Counsel
Legal Services Branch
Management Board Secretariat
April 8, 22, 1993
May 25, 1993
June 15, 16, 1993
July 9, 1993
2; ..’ .: _........ ..-.. _,
2
CONTINUATION HEARING
INTERIM DECISION
(EVIDENTIARY RULING)
This case arises from classification grievances filed against the Ministry of
Health by a number of Ambulance OfIfdars 2 in 19G5 and 1986. A hearing was
originally scheduled before the Grievance Setttemenf Board composed of a different
panel from this one. On the morning of June 22, 1987, that hearing was adjourned
sine on consent of the parties. They believed that they had reached some type of
arrangement. However, a dispute over that issue lead to the matter being brought
back before the Board consisting of the present panal’. A -hearing aommenced
before this panel on that issue on October 19, 1988 and after four days of hearing,
on March 30,199O the parties signed a~memorandum of Agreement which was issued
as a Board Order (see Appendix A). The Union then brought the matter back before
the Board to enforce the Consent Order.
The second set of hearings commenced on April 8, 1993 &fore this panel with
respect to the new Class Standards for the Ambulance Officer series. The Union case
was presented,in chief on April 6, 22, May 25 a&June 15 On June 16, the Ministry
catted Linda Sou&i as its first witness She has been working in the Human
ReSOUrC8S field for 14 years. Originally, she worked for Eatons in compensation
analysis, including pay grade, pay plans both wages and salaries. She did senior work
’ It is not necessary to describe the dispute for present purposes.
_ . . . .
3
for management across the country. She joined the government ‘Of Ontario ~public
service in 1982 as a classification officer. She became a’persdnnel administrator with
2,c)oO clients through six personnel administrationti. She did project tianagement for
large restructuring projects such as the Offtce Administration Group (OAG). Her main
responsibility was the Ontario Land Corporation with the Accommodation Group in the
MGS. Iti l&V, she left the Ontario Public Service and became an independent
consultant. As such, she focuses on classification and reorganization including job
design, organizing. designation, classification, job description development, pay
analysis and similar matters.
MS Soules testified in chief that she drafted the new Class Standard (Exhibit 9)
but that there were changes made as result if discussions, but ‘the substance of
Exhibit 9 is hers. In response to the question whetn~@r it was her decision to have a
Iwo tiered class standard based on Basic Life Support and Advanced Life Support
procedures, she replied that she found two -distinct l~+%ls of ambulance work in the
Ontario Public Service. She had bid on a contract with the Ministry of Health having
been called and asked to make a bid and was successful. Her mandate was. to
develop and recommend a class standard incorporating the Basic Life Support and
Advanced Life Support roles carried out by both land and air service ambulance
officers. She understood that the Grievon were classified as Ambulance Offbr~ 2
under the old class standards (Exhibit 5) with a salary allowance to ~compensate those
in both land and air s&vice who were certified to perform certain procedures such as
defibrillation, advanced airway management, intravenous and drug skills, and
pneumonic anti-shock garments. She was setting out what ws ,in Part i of the
Consent Order. /,
4
The process for drafting Exhibit 9 began with meetings first with management
for the land and then the air services. The purpose of such meetings was to get
background information including the organizations of the two services and their
structure, how they operated, variations of office work, turnover of personnel, base
(minimum) skills requirements, educational requirements, emergency certification,
labour relations issues and compensations. They agreed on a process, methodology
and a questionnaire (Exhibit 36). The exhibit contained notations made by her at a
meeting with compensation administration. They suggested minor changes. To get a
simple representation, they focused on group interviews. In land service interviews,
a number of persons from a number of base stations at the A02 and A04 levels and
persons with ALS and’ BLS skills were interviewed. A02 is the working level for
ambulance attendants and A04 is the group leader level. ,They could be ALS or BLS.
The witness and her associate went on actual calls to observe the work being done.
A draft job audit was prepared for work done in the Oshawa office ,(a land ambulance
operation) and sent to management overseeing Oshawa type operations and others.
The first audits covered several regions., The, difference .~between the Land
Ambulance Operations in those areas was that the base stations used defibrillation
equipment both semi-automatic. and automatic while the Oshawa attendants used
manual equipment. At Oshawa, the Attendants carry out a range of ALS procedures
as outlined in the salary allowance. The draft audits for the southeast, southwest and
central area bases were then taken to the Ottawa areas where there are a number
of base stations; the audits were there reviewed with employees. The Air’Ambulance
auditing was the same. In this case the draft audits were taken to Thunder Bay where
they were reviewed with air ambulance attendants. Again, MS Soules and her
5
associate accompanied actual ambulance calls.
The witness as part of her assignment went through all the policy and
procedure, manuals for both land and air operations, some operational reports, ALS
program training manuals and other documents provided to her by Human Resources.
This information was used to build up the information collected in the job audit. She
wrote down each procedure, what was done,, how, and why in detail. She then
described the knowledge required to carry out the procedure, skills, decision making
involved and responsibility for patients as well the keeping of records, equipment and
vehicles used which could be considered as compensable factors. Next the different
variations of the work carried out by employees were compared and contrasted. She
identified two clear and distinct levels. In April, 1983, the Human Resources Branch
of’ the Ministry of Health prepared a document called Class Standards Design
Principles on April 1993 which was filed (Exhibit 37). The witness stated that she
found,that the basic or lower level was clearly represented by duties performed by the
Driver/Attendant land Service and the higher level was represe.nted by the duties and
responsibilities of Advanced Air Attendants with some variations in between. She then
began to testify with respect to the details oft these.
At this point, Counsel for the Grievors objected on two grounds and asked for
a ruling.
1. If the witness continued to testify on these matters., it would greatly lengthen
the proceedings. Union Counsel would have to examine various documents she had
referred to in her file. It might even involve adjourning to do an audit. The Union might
be required to retain and call its. own expert witness in reply as a result of the
testimony of the Ministry’s witness. There could even be concerns about whether the
6
procedures the Ministry’s expert had followed were good procedures. ,Then at the end
of the case in it-sdecision, the Board may say that the experts’ testimony was of little
significance.
2. In a previous ‘decision of the GSB, a ruling had been made that a
classification expert .witness could not be called by the Ministry to defend the
classification in issue. The case in question is Camobell et al v. MCSS 1360/90,. In
that particular case, the Ministry wished to call an expert to testify on the meaning of
the phrase “,under the direction of” in the, class definition.
Mr. Patterson’s response was that in a post &by type situation, because of the
structure of the CECB Act, the Ministry in the course of carrying out the order must
make a series of both fundamental and more superficial decisions in drafting the new
class standard. In the present case, the issue in question is that of deciding how many
levels there should be in the new series: one, two three etc. At the same time, a
question of whether the standard should say, “under the supervision of or under the
guidelines of” is a supertTcial or less fundamental issue. The tvlinistry is put to the onus
in structural issues of explaining why those decisions were made, who made them
and how were they made. If the standard is that the,decision of the Ministry must be
tested for its reasonableness, then that evidence is necessary. If the standard is the
correctness of the Ministry’s decision, the evidence is still necessa$. The Board was
referred to Tilden v. Ministry of Housing 1047/88 decision dated 7 April 1993. In that
case in drafting a new standard after a &6y order, the Ministry included a position
’ The Ministry submits that the Board examines the reasonableness of the
Ministry’s decisions in devising the new classification standard. The Union’s submits
that it has the onus to show that the new ciass standard is unreasonable.
7
which’was not in the original standard and which was not a subject matter of the &x&
order. Mr. Gorsky for the Board writes:
In the case before us, the Employer did not attempt to demonstrate the
,propriety of including the position set out at page 2 of Exhibit 5:“‘RegionaI Co-
ordinator of Landscape Architectural Services-in the class standard . . . . In the
absence of special facts, it is inappropriate in a case that relates to another
position and to which latter position the order was directed.
Mr. Patterson relies on that as authority for his position’ that he needs to call -an expert
witness to defend the new standard.
With respect to the policy issue that the reception of expert evidence would
lengthen the hearing, Mr. Patterson did not agree that it would extend it to the extent
outlined by Union Counsel. Balanced against that is that both sides must be heard
and the Ministry has to call the person who drafted the new standard to justify it, albeit
that this may be only an evidentiafy burden. In the Campbell case the proffered expert
had no role in the preparation of the impugned class standard. This was at the original
level of classification dispute, the grievance to determine if the grievor was properly
classified.
On the second day of argument on. the admissibility of, the expert testimony
extensive briefs were filed on the jurisprudence with respect to such admissibility. Both
Counsel agreed that the old argument that an expert may not give testimony on what
is referred to as the “ultimate issue”, i.e the very issue in the case, is defunct.. The
issues involved were set out by Mr. Patterson as 1. is the evidence relevant? 2. Is
there a specific rule of law or policy barring the evidence. 3. Is this testimony
s,uperfluous i.e the tribunal can just as readily draw the necessary inference without
any assistance from an expen. In our case,, there is no specific rule against MS Souies
testifying’: she is not giving evidence on a legal question. In testifying on whether her
methods etc of preparing the standard were within the .accepted standards of the
~Human Resources community was admissible. In Teskev et’ al v. Canar&a
Newsoapers Co. et al (1989), 59 D.L.R. (4tbh) 709, the Ontario Court of Appeal held
that the proposed testimony of a lawyer expert in municipal law on the propriety of the
lawyer plaintiffs (respondents on the appeal) appearing for private clients before the
Committee of Adjustment while they were the solicitors for the same municipality and
thus breached Law Society of Upper Canada rules was incorrectly excluded .by the
trial judge. Similarly argues Mr. Patterson, MS Soule; testimony is with respect to
whether the new standards conform to those of the Human Resources community.
The proffered testimony will relate to the issue posed by the Union, namely,
reorganizing the new standard which is a new sort of issue for the Board to decide
and her testimony will be of assistance to the Board. He added that the Pay Equity
Tribunal hears such evidence as to short falls in proposed pay plans because of
gender bias. In Khan v. Ontario College of Physicians (1992) 9 O.R. (3d) 641 the
Ontario Court of Appeal upheld the admission of expert evidence opinion as to what
factual inferences or conclusions should be drawn from the evidence concerning the
behaviour and symptomatology df the little girl who was accusing a doctor of sexual
molestation, The Discipline Committee of the College revoked his medical licence
for professional misconduct. At page 663, the court states:
An expert witness who is competent to give an opinion which is relevant to a
fact in issue is entitled to testify as to the information relied on in arriving at that
opinion.
The issue was the reception of out-of-court statements to the expert by the little girl.
The Discipline Committee had specifically instructed itself on the limited purpose of
the evidence and that the statements were not to be taken as evidence that the child’s
9
statements were true3
Mr. Patterson referred in’his argument to Canadian
of Canada. Loc.5 (1990) 18 L.A.C. (4th) 313 at 327~ for a discussion of the policy
issues involved when an arbitration board decides wheth,er it should admit or exclude
evidence since boards of arbitration are freed from legal requirements of following the
legal rules of evidence. He further referred to the case of Re Hyatt Aeaency
Vancouver and Hotel Restaurant &Culinary Employees & Bartenders Wnion. Local 4%
(1991) 23 L.A.C. (4th) 119 where one of the issues discussed is whether the refusal
of the evidence will unduly restrict the ability of the party on whose behalf it is
proffered from presenting his case. The present case, he argues is the first Standard
series case to be heard and he does not anticipate a flood of such cases.
In reply, Mr. Anand emphasized that in deciding whether expert evidence is
admissible, the tribunal must guard that the testimony is ,not a question of law or
mixed law and fact. So as set but in Reaina v. Graat, (1980), 116 D.L.R. (2d) 143 the
court states at pp. 155-156 that a witness could not testify that someone was
negligent because .that involves a legal component. However, testimony on an
impaired driving charge that the accused was drunk is’admissible.
Mr. Anand submitted that the testimony of the expert witness is superfluous. He
understands that there will be testimony from a Ministry witness as to the duties and
work of the Grievors. The Board will then have the testimony of two grievers on what
they do, the standards plus Counsel argument, evidence on ALS duties and the
reasons of the Interest Arbitration Award which set a separate salary scale for Air and
3 at page 662.-
10
land ambulance attendants. Everything else involved is just whether there should be
two levels or three just as in Campbell where the issue was what did a specific phrase
mean. No expert evidence is necessary on that. The Union is not at this point
challenging that MS Soules did follow proper standards and procedures as understood
in the Human Resources community. The Union is arguing that the new Standards are
unreasonable. The purpose of an expert witness is to testify on some special
.knowledge and experience going beyond that of the trier of fact: see Beland v. The
Queen, (1987) 60 CR. (3d) 1 at p. 41. Mr. Anand submitted that it is not the practice.
of the GSB to receive the testimony of standards expert&. Furthermore, it puts the
Union at a disadvantage in that the Employer has such experts to testify while the
Union has to obtain one specifically and pay for it. With respect to Mr. Gorsky’s
holding in m on the failure of the Ministry to justify the inclusion of another
position in the Standard, Mr. Anand said that this only refers. to its failure to present
any argument in favour of such a step.
REASONS FOR DECISION
The first issue with which this panel must come to grips is that the onus to be applied
by this Board in this type of case has at this point only been stated by the respective
parties. The Ministry argues that it is reviewability of the reasonableness of the
Employer in drafting the new standard. The Union,argues that it is a straight question
4 I have heard standards experts testify in previous cases but there was not the
detailed discussion of the admissability issue. It was partly for this reason that on June
16, I directed Counsel to prepare full argument on the case law on the admissability
of expert evidence‘for the July 9,hearing.
11
~of whether the new standard is unreasonable and that the onus is on the Union to
show that. Since that issue is at this point unresolved, the Ministry is entitled to put
in otherwise admissible evidence to show that it acted reasonably in drafting the new
standard. There is some language in the m decision that lends some support to
those concerns of the Employer, specifically at page 31:
The argument of counsel for the Employer is an ,attractive one, however, it
overlooks the difference between examining a grievor’s duties and
responsibilities in the light of an existing class standard and reviewina the
_ecessltv. n i .Ns’fi nsibiliti have
Furthermore, on page 32, contrary to Mr. Anand’s submission that it was just an issue
of legal argument, Mr. Gorsky comments that in the absence of special facts. it is
inaoarooriate. in ouroorted comoliance etc5 There’ is therefore no doubt that at this
point Mr. Patterson’s concerns about producing the expert who went about drafting
the new Standard in a proper manner isa potentially serious issue. Now how far that
will play a large role ultimately in the resolution of the issue before the Board i.e.
whether or not the consent &!y order has been complied with is unresolved until the
final argument in this case.
Furthermore, this case is also unique in the sense that there is no reasoned
decision of the Board issuing the order, there is only a bare bones consent order.
Therefore, no one has had guidance of the detailed analysis by the Board of the
classification issues: see by way of contrast this Vice-Chairman’s reasons in Barrows
’ See test page‘7, m
12
v. MOREV 0999189.. I am not satisfied that these matters can be resolved by the
Union position that it does not challenge that MS Soules followed proper procedures
and principles as recognized by the Human Resources Community. Looking at the
analogy of a dismissal case, the Arbitration Board there normally wants. to hear the
testimony of the appropriate management person who made the decision to dismiss.
So here, it is useful to know what information and judgments the Employer made in
deciding what it did in drafting the new Standards. That consideration does not
necessarily depend on whether the final test is just review of the reasonableness of
managements decision. Accordingly, I must conclude that Mr. Patterson must be
allowed to continue with his examination of MS Soules.
The other potential relevance of such testimony should be considered at this
point in order to be of assistance to Counsel on resumption of the hearing. This
cannot be done in any conclusive manner at. this point, but generalized answers can
be attempted. The biggest admissibility issue that Mr. Anand raises is whether the
Standards expert might be testifying on a “legal” issue. By that he means in our
context, the expert decision that the board makes just as a court of law makes art
expert decision on questions of law and therefore does not need expe,rt testimony on
the domestic law. In fact what happens is that Counsel make submissions on the law.
There is a distinction to be made here. MS Saules may be qualifted to testify on the
principles and procedures in job classification in the Human Resources communitv ,as
has been submitted. That is not however the mandate given to this’Board. It is not
directed to determine whether a particular classification is consistent with the
standards of the FResgurces. That may be a factor which the Board
looks at in assisting itself to determine the issue before it and as I have already stated
13
.particularly if the principle of review is the reasonableness of the Ministry in designing
the ,new standard. Exceeding the limits of her expertise is. a question that can be
addressed as particular questions are put to MS Soules .and in final argument. What
is probably of more assistance is hearing why the Ministry did what it did in drafting
the new standard. If Mr. Anand is correct on the standard to be applied by the Board,
i.e. whether the new standard is reasonable (or even correct), the methods and
principles actually used by the Ministry will still be more meaningfully presented by the
testimony of the person who prepared it than by simple submissions by Counsel.
However experienced in classification cases Counsel are, they did not redraft the
Standard and in any event cannot give testimony on the principles and procedures of
the Human Resources community (or in fact at all). They cannot make submissions
on expert factual or doctrinal issues if there is no evidence before the Board on them
or for that matter on any issues requiring evidence if there is none. In conclusion on
these. points, the expert will not in fact be testifying on the area of the board’s
expertise, but only on those.within her own expertise. All of this leaves open many or
most of the arguments of Counsel unresolved. The reason for this is that at this stage
of a case of first instance, the full extent of the relevance of the expert witness is still
unresolved. Until many basic issues in this case are decided, these disputes are
mainly about principles. In the final decision, the Board will make every effort possible
to provide further guidelines.
One final note, much was asserted by Counsel for the Union about the effect
of permitting evidence of this type on the cost and length of a hearing. ‘On the other
hand, ‘the Employer’s Counsel attempted to reassure us that there was nothing to be
feared. The Board has no reliable information and certainly no evidence to evaluate
14
that issue at this time. This is an interim decision cabined about with qualifications
which await further developments and experience’and the resolution of issues yet to
be addressed in this new type of proceeding. Making final policy judgments about
balancing the requirements of fairly hearing both sides and keeping arbitrations within
practical time and cost limitations can wait. Nor is this approach to be understood ,as
simply another example of the time honoured habit of letting evidence in and then
determining at the end whether it should be ruled inadmissible or of little ‘or no
weight. In the final decision, the Board will attempt to develop principles on the expert
evidence issue in the context of its experience in this case of fir&incidence.
Dated at Toronto 29 September 1993
$Jj& &$&PJ
THOMAS H. WILSON Vice-Chair
T. BROWES-BUGDEN Members
CONCURS
E. ORSINI Member