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HomeMy WebLinkAbout1996-2091.Ohorodnyk.98-09-04EMPLOY& DE LA COUIWNNE DE L’OMARK) COMMISSION DE RfiGLEMENT DES GRIEFS i80 DUNDAS STREET WES7; SUITE 600, TORONTO ON h45G lZ8 180, RLJEDUNDAS OUES7; BUREAU 800, TORONTO (OM M5G lZ8 TELEPHONElTiLiPHONE : (416) 326- 1388 FACSIMILEhiCOPIE : (416) 326-1396 GSB # 2091/96 OLB 288/96 . IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Zenon Ohorodnyk) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) BEFORE Owen V. Gray Vice-Chair FOR THE GRIEVOR Julia Noble Counsel Ontario Liquor Boards Employees Union FOR THE EMPLOYER Michael G. Sherrard Counsel Ogilvy Renault Barristers & Solicitors Employer HEARING May 27, 1998 Written Submissions Received on July 15 and 30, 1998 DECISION El1 This grievance is about whether the grievor has been improperly denied long term income protection benefits provided for in the parties’ collective agreement. The dispute turns on whether at relevant times the grievor was to- tally disabled within the meaning of Article 20 of the collective agreement. I am told that at various times the grievor’s psychiatrist and a psychiatrist who ex- amined him at the employer’s request expressed different opinions on whether and under what conditions the grievor could return to work. PI When this matter came on for hearing, counsel for the union asked that I rule in advance on whether the union could introduce into evidence a report or reports written by the grievor’s psychiatrist, without being obliged to produce the author for cross-examination if employer counsel so required, on the basis that the failure to produce the author might go to the weight but not to the admissi- bility of the report or reports. There was no suggestion that the psychiatrist is beyond the reach of a summons, only that she would expect to be paid for so do- ing if summoned to testify in these proceedings. Union counsel argued that the employer should be obliged to secure the psychiatrist’s attendance if it wishes to cross-examine on the reports. Alternately, she argued that “the Board of Arbitra- tion ought to find that the party requiring the doctor to attend the hearing should pay the associated costs, if the Board finds that it was not, on balance, necessary for the doctor to attend.” She asked, in other words, that I rule in ad- vance that I have a jurisdiction similar to that conferred on courts by subsection 52(5) of the Evidence Act. [31 These issues have been canvassed by the Board, differently constituted, in other proceedings between these parties. -2- [41 In Mayer, 285194 (decision dated December 11, 1995), Vice-Chair Roberts was asked to rule whether the union could introduce a medical report from the grievor’s family doctor without calling the doctor as a witness. In the course of reviewing the relevant court and arbitral jurisprudence, Vice-Chair Roberts ob- served that the question whether arbitrators could award costs in the circum- stances described in subsection 52(5) of the Evidence Act was not free from doubt, but he came to no conclusion on that question. He summarized his conclusions thus: From my review of applicable authority, it would appear that the most ap- propriate formulation of general arbitral procedure regarding the admission into evidence of reports of medical practitioners is as follows: (1) upon agreement between the parties, a report of a medical practitioner may be admitted into evidence without calling the practitioner to testify; (2) how- ever, if the opposing party wishes to cross-examine the practitioner who wrote the report, arbitral discretion will generally be exercised to condition its admission into evidence upon production of the medical practitioner for cross-examination; and (3) generally, it is the responsibility of the party re- lying upon the report to produce the practitioner for cross-examination. Fi- nally, where the practitioner is unavailable for cross-examination, the medi- cal report may be admitted or excluded in the distinction of the arbitrator, properly exercised in light of the circumstances of each individual case. He ruled that the union could introduce the report without calling the doctor to testify on direct examination, but its admission into evidence would be subject to the condition that the union produce the doctor for purposes of cross-examination should the employer so require. [51 These issues arose again in Carter, 1735/96 (decision dated April 14, 1998), where the grievance also alleged improper denial of long term income pro- tection benefits. There, Vice-Chair Dissanayake reviewed the jurisprudence, in- cluding Mayer, supru, and came to the same conclusion: that the union’s entitle- ment to file medical reports for the truth of their contents would be conditional upon the union’s producing the authors for cross-examination at its own cost, if requested by the employer. He did not consider it necessary or appropriate to rule in advance on “whether or not the Board has jurisdiction to award costs against an opposing party which frivolously or unnecessarily requires a doctor to be produced for cross-examination.” He thought that that question should be left to be determined if and when the basis for it arose, in a case in which one party committed to relying on a medical report without engaging in any direct exami- nation of its author, the other party asked that the author be produced for cross- examination and, having born the cost of producing the author for that purpose, the first party thereafter took the position that it should be awarded its costs of having produced the author. Vice-Chair Dissanayake noted that even then the question whether the Board had the jurisdiction to award such costs would only have to be answered if it concluded that the circumstances warranted the exer- cise of such a jurisdiction. PI Union counsel cited and relied particularly on Re Municipality of Metro- politan Toronto and Canadian Union of Public Employee, Local 79 (1992), 25 L.A.C. (4th) 73 (Springate). That award was also cited to Vice-Chairs Roberts and Dissanayake in Carter and Mayer, respectively. I agree with their conclu- sions in those decisions on the issues before me. [71 As in Mayer and Carter, neither party suggested here that compelling a doctor’s attendance to testify requires, as a matter of law, anything more than service of a summons and payment of the modest witness fee and conduct money to which all witnesses are entitled in proceedings in the civil courts. The union nevertheless expressed concern about “expert fees” that would be associated with its having to make physicians available to testify in matters of this kind, arguing that the opposite party’s ability to impose such costs on it could be abused. To what Mayer and Carter say about such concerns, I would add this. I know that physicians expect to be paid for their time. Most would be very unhappy if the only compensation they received for attending to testify was the witness fee and conduct money that must accompany a summons. Counsel do not want their own witnesses to be unhappy. Moreover, having retained the physician to prepare the report about which he or she may later be called to testify, counsel may have a contractual obligation, express or implied, to pay the physician’s reasonable ex- pert fees if the physician has to testify as a result of counsel’s introduction of his or her report into evidence. Recognizing all that, I agree with the decisions in -4- Mayer and Carter that the party who tenders a medical report as evidence con- stitutes the author of the report as his, her or its witness and, so, should be re- sponsible for making that witness available for cross-examination. PI In accordance with the Board’s decisions in Mayer and Curter, with which I agree in this regard, the union may introduce a medical report or reports with- out calling the author(s) to testify on direct examination, but the admission into . evidence of those reports will be subject to the condition that the union produce the author(s) for purposes of cross-examination should the employer so require. It is premature to determine whether the Board has the jurisdiction that courts enjoy under subsection 52(5) of the Evidence Act. PI These procedural issues having been addressed more than once at arbitra- tion with the same result, I suggest that the place to argue hereafter for adoption of a different process in disputes of this kind is at the bargaining table. Dated at Toronto this day of September, 1998.