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Home My WebLink About1986-1058.Hall.88-10-27SETTLEMENT DES GRIEFS 1058186 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (John Hall) Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer E.K. Sloan Vice Chairperson G. Nabi Member P.D. Camp Member For the Grievor: P.J. Lukasiewicz Counsel Gowling & Henderson Barristers and Solicitors For the Employer: J.F. Benedict Manager Staff Relations and Compensation Ministry of Correctional Services Hearing: November 30, 1987 DECISION The issue in this case is whether or not the Grievor was entitled on July 30, 1986 to take advantage of Article 32.1 of the Collective Agreement, which reads: "32.1 - Where an employee is absent by reason of a summons to serve as a juror or a subpoena as a witness, the employee may, at his option: (a) treat the absence as leave without pay and retain any fee he receives as a juror or as a witness: Or (b) deduct the period of absence from his vacation leave-of-absence credits or his overtime credits and retain any fee he receives as a juror or as a witness: or (c) treat the absence as leave with pay and pay to the Treasurer of Ontario any fee he has received as a juror or as a witness. The particular circumstances of this Grievor are that he was involved in a minor automobile accident (for which he was apparently not at fault), and elected to seek compensation from the other driver by suing in the Provincial Court (Civil Division), known to most people as the Small Claims Court. The Grievor was acting on his own behalf, without a lawyer. The case had proceeded to a point where the Grievor,had obtained a default judgment against the other driver. Then on June 27. 1986 the solicitors for that individual launched a motion returnable July 30, 1986 asking the Court to set aside the default judgment. On July 30, 1986 the Grievor attended at Court and gave some evidence on -2- his own behalf in opposition to the motion. ~Despite the Grievor's opposition the judgment was set aside and the case transferred to another Court where presumably it still lives. The Grievor had asked to be allowed to take off July 30, 1986 under the terms of Article 32.1(c), as "leave with pay". He argued that he was in the same position as someone served with a "subpoena as a witness". The Employer disagreed but allowed him to take the time as "lieu time" in reduction of his overtime credits. Counsel for the Grievor argues that Article 32.1 should apply any time an employee is required to be a witness in Court. He argues that it would be ludicrous to require the Grievbr to issue a subpoena against himself in order to qualify. The Employer's counsel argues that the purpose of Article 32.1 is to permit the employee to perform his or her "civic duty" by acting as a juror or witness when compelled to do so by a process that does not allow for a choice. In the case of jury duty it is.no excuse for a qualified juror to refuse to serve because he or she is expected to report to work. Likewise a witness under subpoena (or "summons" as it is called in some Courts) may be arrested and forcibly brought to Court if he or she refuses to attend voluntarily. - 3 - The subpoena is literally served "under penalty" (Latin: sub: under: poena: penalty).1 The question in this grievance is whether the Grievor is entitled to paid leave for an attendance in Court to conduct litigation on his own behalf. There are subsidiary issues, including whether or not this particular attendance was compulsory. We agree with the principal submission of the Employer that Article 32.1 is intended to protect an employee who is compelled to fulfil1 a role in our judicial system, be it as juror or witness. It is intended to ensure that an employee is not penalised whose name comes up in the random juror selection process, or who happens to witness an event that is relevant to a dispute which is under ajudication in the Courts or before some quasi-judicial board or tribunal. It is not intended, howe,ver, to provide subsidized time to employees who choose to engage in litigation and in 1. We note here that the recently decided case of Re OPSEU (Union Grievance) and The Crown in Right of Ozario IMinistry of Citizenship and Culture), GSB 0332185 (SwanT establishes the principle that the word "subpoena" is not used as a term of art, and Article 32.1 applies whenever the employee is compelled to attend before a court or Tribunal by a process that may be called either a subpoena, summons or whatever. 4 - particular to those who act on their own behalf, without lawyers. The relevant question on this greivance is really whether the employee was compelled to be in Court on July 30, 1986. The distinction between a compulsory or optional attendance may be a difficult one to draw in certain circumstances, for example: (a) Where an employee is charged with a criminal offence and is obliged to present himself before a Court; (b) Where an employee has been served with a notice requiring him to be cross-examined in Pre-Trial procedures in civil cases; (c) Where an employee is absolutely required to give evidence on his own behalf at a trial or hearing. However, it is in our view a clear case where, as here, the Grievor could have sent an agent (or lawyer) to attend on the motion, and where the evidence given on that occasion could have been presented by Affidavit. In such case the employee was not personally required to be in Court, and is not entitled to paid leave. ‘. -5- While we are not obliged to go any further in disposing of this grievance, it seems opportune to say something by way of obiter. In the three examples above-noted, the degree of compulsion will be influenced by what is at stake. In the .case of a serious criminal offence, where the consequence could be a criminal record and/or jail time, it.could fairly be said that the employee must attend. Given the presumption of innocence the employer must accept that the employee is under a real compulsion. However, where the offence is for example, illegal parking, the element of compulsion is, trivial and the employer can hardly be expected to subsi~dize the employee's day in Court which, if successful, will save him $30.00. In the case of civil actions, what is at stake is usually mOney. Where the consequence. of the litigation could be serious financial ruin obviously there is some real compulsion. But if the employee decides to sue someone for a small sum of money (e.g. for a faulty home appliance) or is being sued for a small debt, the compulsion is of a different order. The employee can always terminate the litigation by either dropping the suit or paying the disputed debt. Settlement is always possible. Of course, the incentive to do so is less when the employee is entitled to paid leave t0 r. -6- carry on the fight. Beyond Court proceedings, there are many other proceedings before other tribunals which affect individual rights. An employee might be faced with a rent increase which requires hearings before the Rent Review Board. Other examples could be found. It is this Board's opinion that Article 32.1 was never intended to give paid leave.'foremployees who are pursuing matters of self-interest, no matter how serious, where such matters do not arise out of their employment. In the case of grievances the parties have otherwise provided for paid leave. In matters outside the employment context the appropriate remedy for the employee in such situations is to take unpaid leave, as was done with this Grievor. In the case of involuntary attendances for other than the employee's self-interest, the risk of that occurring and the cost of same has been transferred to the employer. The counter-balancing factor is that the juror or witness fee, no matter how paltry, belongs to the employer, unless the employee elects to take'the fee in lieu of paid leave. This factor reinforces our view that Article 32.1 was never intended to cover situations where the proceeding is one involving the employee as a litigant, and where the rewards 55 - 7 - ‘t. of participating in same are measured in something beyond mere witness or juror fees. The Collective Agreement contemplates that some fee will be payable as a result of the attendance. We take arbitral notice of the fact that a litigant is not entitled to a fee for an attendance to give evidence on his or her own.behalf. In the result, then, the Grievance is dismissed. Dated tit~Toxoi?to. Ontario this 27th day of October, 1988. 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