HomeMy WebLinkAbout2003-3741.Augustine.05-09-30 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# 2003-3741
UNION# 02-48
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees – Local 1750
(Augustine) Union
- and -
The Crown in Right of Ontario
(Workplace Safety and Insurance Board) Employer
BEFORE Dan Harris Vice-Chair
FOR THE UNION Ian Thompson
Canadian Union of Public Employees
FOR THE EMPLOYER William R. Gale
Grosman, Grosman & Gale LLP
Barristers and Solicitors
and
Gurjit Brar
Counsel
Workplace Safety and Insurance Board
HEARING June 15, 2005.
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Decision
This is the second interim decision regarding the admissibility of a statement taken in the
course of an internal investigation by the employer of an alleged fraud. The first decision is
dated May 16, 2005 and is set out at CUPE (Augustine) and Workplace Safety and Insurance
Board, GSB #2003-3741 (Harris).
The first decision ruled the statement inadmissible as part of the evidence of the
investigator without calling the maker of the statement. In sum, the Board held that it was not
necessary to allow such hearsay because the maker of the statement was available to testify.
Further, the statement was not reliable on its own because, seemingly, it has been repudiated and
there is no indication that the circumstances surrounding the taking of the statement are such that
cross-examination of the maker would be superfluous.
The employer has now undertaken to call the maker of the statement as a witness. The
union now objects to any questioning of the investigator regarding the taking of the statement.
The employer has indicated it intends to explore with the investigator the circumstances
surrounding the taking of the statement for which it needs to enter the tape and transcript of the
statement into evidence.
The union submitted that the facts are undisputed that the maker of the statement, Mr.
Falby, was taken to the investigator’s office where he was interviewed by the investigator, Mr.
Gladish, and his superior, Mr. Moores. Mr. Falby was not advised that he could have union
representation and there was no representative of the union present. Mr. Falby was interviewed
for several minutes following which a tape recorder was turned on to record the statement, and,
at that point, Mr. Falby was cautioned. He went on to make statements that inculpated the
grievor. He has since repudiated the statements.
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The union submitted that the statements made are inadmissible because Mr. Falby was
denied union representation, which is a substantive right under article 10.01 of the collective
agreement. Further, the WSIB investigator was a “person in authority” who failed to caution Mr.
Falby that he had the right to representation pursuant to the Charter of Rights. Further, the taped
statement is fatally tainted because it is inextricably linked to the statements made before the
tape-recording started, which statements also are inadmissible because Mr. Falby was denied his
protection under article 13.01 and the Charter. In the alternative, if the situation as at present
permits the statement to be admitted, a voir dire should be held to determine whether the
statement was made voluntarily.
The employer submitted that the union now seeks to bar any use of the statement, which
goes well beyond its previous objection that it ought not to be independently tendered for the
truth of its contents. In the very least, the statement may be used to impeach the credibility of
Mr. Falby.
Both parties made extensive submissions on the points raised. In my view, it is not
possible to sever off final consideration of these issues at this early stage. Mr. Falby is not the
grievor in these proceedings. It is difficult to appreciate at this point in the proceedings how an
abrogation of his right to representation impacts Mr. Augustine, the grievor in the instant matter.
Similarly, to embark upon a “voir dire” would be a cumbersome procedural approach not suited
to labour arbitration. I prefer to hear the evidence relating to the taking of the statement and
leave it to the parties at the end of the case to argue the appropriate weight to be given to it in all
of the circumstances.
Accordingly, the employer may continue to question Mr. Gladish regarding the taking of
Mr. Falby’s statement and enter the statement, both the tape-recording and the transcript, so that
we have all of Mr. Gladish’s evidence in that regard.
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Adopting that approach will permit a comparison between the statements he made to Mr.
Gladish and the testimony he gives, thereby permitting the Board to properly assess the
appropriate weight to be given to the statements by applying the principles of necessity and
reliability.
Dated at Toronto this 30th day of September 2005
Daniel A. Harris, Vice-Chair