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HomeMy WebLinkAbout2002-2157.Labadie.06-01-09 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2002-2157, 2003-1260 UNION# 2002-0362-0004, 2003-0362-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Labadie) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE Richard L. Jackson Vice-Chair FOR THE UNION Gavin Leeb Barrister and Solicitor FOR THE EMPLOYER Yasmeena Mohamed and George Parris Counsel Ministry of Government Services HEARING April 15, 21 & 22; May 5 & 12, June 15 & 16, November 24 & 25 and December 5 & 12, 2005. January 4, 2006. 2 Decision This is an interim award dealing with the question of admissibility of a report by the Office of the Children’s Lawyer in the discharge arbitration of Mr. Bradley Labadie. Mr. Labadie was discharged from his position as a Conservation Officer with the Ministry of Natural Resources on March 13, 2003, on a number of different grounds, which can be roughly categorized into two sets: (1) improper use of a government computer to access inappropriate sexual material and (2) events related to criminal proceedings on charges of sexual assault on a minor. The events giving rise to the discharge started on April 2, 2002, when the grievor was arrested and charged with sexual assault and sexual interference. During the resulting police investigation, his MNR computer was seized and examined, and pornographic material was detected. Advised of this by the police, the Employer requested that by the Ontario Centre for Forensic Science conduct a thorough examination of the grievor’s computer. The OCFS examined the grievor’s hard drive and provided the Ministry with a CD-ROM listing internet sites the grievor had visited and his chat-line activity. This included a considerable quantity and variety of pornographic material. At the same time as he was facing the criminal charges, the grievor was engaged in a custody dispute with his estranged wife. Pursuant to that dispute, the family-court judge requested that an investigation of the Labadie family situation be conducted by the Office of the Children’s Lawyer. An investigation was carried out by Ms. Karen Logan, M.A., Acc. F.M., and her report submitted to the Court on October 15, 2002. On December 6, 2002, the Employer obtained a copy of the report. It is the admissibility of this report in this arbitration that is the subject of this interim award. In September 2002, the Employer asked an outside investigator, a Ms. Grace Shore, to review the material on the CD-ROM provided by OCFS to determine and report on what ways, and to what extent, the grievor might have violated the Employer’s policy on Workplace Discrimination and Harassment by virtue of having accessed pornographic material or engaged in inappropriate chat-line activity. She did so and, as part of her investigation, interviewed the grievor and others. 3 She then drafted her report and submitted it to the Ministry on November 28, 2002, at which time the grievor was given a copy and the chance to comment on the contents, which he did. Subsequently, Ms. Shore was given a copy of the report of the Office of the Children’s Lawyer by the Employer (it had been obtained by the Employer on December 6). Given that it apparently contained material relating to the grievor’s behaviour beyond that which she had already considered, Ms. Shore conducted a second interview with the grievor in which the contents of the report were discussed. Ms. Shore then drafted a second report, submitted it to the Ministry and, again, the grievor was provided a copy for purposes of making comments. Ms. Shore then submitted her third and final report. With apparently significant reliance on this report, the Employer made a decision to terminate the grievor, and this was done on March 13, 2003. On March 23, 2003, Judge L. Olah, of the Superior Court of Justice, Family Court, ordered that the Labadie’s Family-Law File “be sealed so that it does not form a part of the public record pursuant to Section 137 Subsection (2), Courts of Justice Act, R.S.O. 1990 c C43”. The report of the Office of the Children’s Lawyer (hereinafter referred to as “the Report”), being part of that file, and an arbitration before the Grievance Settlement Board being a public proceeding, the Union argued in essence that I cannot accept the Report into evidence. Counsel for the Union argued that, if the Employer wants to have the Report admitted into evidence, its proper course of action would be to follow s. 6 of the Courts of Justice Act and file an appeal with the Court of Appeal. That court, and not this board, has jurisdiction to lift, or partially lift, the seal. Alternatively, it could go back to the Superior Court judge who issued the sealing order and request that it be unsealed, in part or in whole, for purposes of this arbitration. The Union further argued that, even though the employer apparently obtained the Report entirely legally because the sealing order was not made until some four months afterwards, the Employer cannot now make any use of it. Indeed, it argued that once the sealing order was made, on March 23, 2003, it would have been improper for the Employer to even have possession of it, much less use it in any way. Counsel for the Union also argued that the Union has provided no waiver, either explicit or implicit, of the sealing of the Report. 4 Counsel for the Union argued that this situation is analogous to that in which an improperly obtained evidence – for example, videotaping the off-duty behaviour of an employee, where the employer is found to have lacked reasonable grounds for choosing that particular approach to gathering evidence. Just as an arbitrator is such a situation might very well refuse to accept the videotape into evidence, I should refuse to allow the Report into evidence. While the Employer in this situation may have had reasonable grounds for acquiring the Report in the first place, the judicial sealing order provides a different, but certainly no less important, reason why I must refuse to allow it to be entered. Counsel for the Union suggested that an appropriate approach in this situation would be to limit the Employer to the evidence in its possession as of December 6, 2002 – that is, immediately before receipt of the Report. The Union supplied the following authorities for my assistance: Ottawa Citizen Group Inc. v. Canada (Attorney General [2005], O.J. No. 2209; R. v. Toronto Star Newspapers Ltd, 67 O.R. (3d) 577; Re Centre for Addition and Mental health and Ontario Public Service Employees Union [2004] 131 L.A.C. (4th) 97 (Nairn); Re Toronto Transit Commissions and Amalgamated Transit Union, Local 113 [2004], 131 L.A.C. (4th) (Tacon); Re Crown in Right of Ontario (Ministry of Attorney General) and Ontario Public Service Employees Union [2004] (Abramsky). For its part, the Employer argued that I should allow the Report into evidence so that the Employer can provide a complete picture, from start to finish, of the complex set of facts that gave rise to the decision to terminate. In the alternative, I should at least allow viva voce evidence with respect to the contents of the Report. In the Employer’s submission, receipt of the Report changed the course of the investigation, materially affected the grounds on which the termination was based, and influenced the Employer’s analysis of whether or not whatever mitigating circumstances might have existed were sufficient to offset the reasons for discharge. If the Report is not admitted, the Employer argued, I will hear “only half the story”. 5 Given that the sealing order was made after the Employer had already obtained the Report (entirely properly and legally) and, indeed, after the grievor had been discharged, the Employer submitted that the question for me is how the court’s order is to be applied. Can it apply retroactively to the time before March 23, or does it have effect only upon its issue and go forward from there? The Ministry stated that it is not arguing that the sealing order should be lifted but that, since it had effect only from March 23, 2003, and the Employer both possessed and used it before that time, I must hear about its contents if I am to develop a clear and complete understanding of the basis of the Employer’s decision to terminate the grievor. Counsel for the Ministry illustrated the potential prejudice and unfairness to the Employer of my not allowing the Report as well as the perversity of the entire situation – that a document which the Ministry properly obtained and then relied on in its decision to terminate the grievor is now “off-limits” – by posing a hypothetical question: what if the Report had already been admitted into evidence and the family-law file sealed afterwards? The Employer stated that, as possible solutions to this question, it would agree to not identifying individual persons named in the Report or would just rely on viva voce evidence on its contents. Decision While issues such as this are often framed as the balance to be struck between the search for truth and the propriety of admitting a piece of evidence that arguably would contribute to that search, that is not the case here. The real issue before me is simple: a Superior Court Judge has issued an order that the file containing the Report, and for which the Report was created in the first place, is to be sealed from the public. This arbitration is a public proceeding, the resulting award will be a public document, and this entire process is indisputably a public enterprise. Therefore, I am legally precluded and prevented from accessing the Report. The fact that, without it, I may fail to develop a full and complete appreciation of the complete truth of what happened is unfortunate, but is trumped by the fundamental requirement to obey the law. The Employer argued that it was not asking me to lift the sealing order; but we cannot get around the fact that, in its position, it was, in effect, asking me to violate it. That I cannot do. 6 In one sense, the Employer argued, “the bell cannot be unrung”: the Employer obtained the Report properly and legally, read it, and used it in its decision-making, decided to terminate the grievor, and executed the termination – all before the Report went off-limits. So the Report was properly available and did influence the course of events in this case. It thus seems somewhat perverse, and certainly contrary to the search for truth, that the Report cannot now be led in evidence. Unfortunately, there is no choice. As to the hypothetical question posed by counsel for the Employer – namely, what if the sealing order had been made after the Report had already been entered into evidence – the answer would be the application of the same principle: from that point on, it would be improper to consider the report. I would have to order that the Report, and any evidence as to its contents, be struck from the record. Indeed, that is exactly what Vice Chair Abramsky did when she ruled that evidence, already entered, be struck from the record on the basis that that evidence related to discussions between the parties that she subsequently determined had been “without prejudice or precedent.” (GSB Decision, OPSEU and Ministry of the Attorney General, August 11, 2004.) With respect to the Employer’s proposal that, rather than submit the Report itself into evidence, it would just call viva voce evidence as to its contents, in my view, that amounts to the same thing as entering the Report into evidence. Viva voce evidence on what the Report said becomes part of the evidentiary record of the arbitration and would undoubtedly be mentioned in my award, a public document. In effect, then, allowing viva voce evidence on the contents of the Report would also violate the sealing order. Accordingly, then, my ruling on the Union’s motion to exclude the Report is to agree. Unless the Employer can get the sealing order lifted pursuant to Section 6 (1) (b) of the Courts of Justice Act or by appealing to Judge Olah, the Report may not be entered into evidence. With respect to viva voce evidence, it goes without saying that Karen Logan, the author of the Report, may not be called. Other Employer witnesses may testify to the fact that there was a Report of the Children’s Lawyer and that the Ministry relied on it, but they may not testify as to its contents. 7 The Employer is free to adduce any evidence with respect to information that may be included in the Report that it feels would establish its reasons for discharge, within proper limits, as long as it is obtained from sources other than the Report or other sealed material. Dated at Toronto, this 9th day of January, 2006. R. L. Jackson, Vice-Chair