Loading...
HomeMy WebLinkAbout1994-0285.Mayer.95-12-11EMPLOY& DE LA COUROMNE DE L’ONTARIO CgMMlSSlON DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2700, TORONTO, ONTARIO. MSG 7Z8 180. RUE DUNDAS OUEST, BUREAU 2700. TORONTO (ONTARIO). MSG 728 TELEPHONE/T$LgPHONE: (4 76) 326- 1388 FACSIMILE/T~L~COPIE : (416) 326-1396 GSB # 285/94 OLBEU # OLB066/94 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Mayer) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: J.R. Roberts Vice-Chairperson FOR THE GRIEVOR J. Noble Legal Counsel Ontario Liquor Control Boards Employees' Union FOR THE EMPLOYER J. Baker Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING September 21, 1995 November 23, 1995 1 INTERIM AWARD Introduction: At the outset of this arbitration, counsel for the union stated that she wished to introduce into evidence a medical report from the grievor’s family doctor without calling the doctor as a witness. Counsel for the employer objected, claiming that to admit the medical report without requiring the union to call the practitioner who authored it would be tantamount to denying the employer its right of cross examination. Thereafter, the parties made submissions upon the issue and the hearing was adjourned pending the preparation of this interim award. For reasons which follow, it is concluded that the union may introduce the medical report in its case without calling the doctor to testify on direct examination; however, the admission into evidence of the medical report is subject to a condition that the union produce the doctor for purposes of cross-examination should the employer so require. General Background: In their submissions, both counsel acknowledged that under the Ontario Labor Relations Act, arbitrators are not bound by the strict rules of evidence applied in the courts. See Labour 2 Relations Act, R.S.O. 1990, c. L.2, s. 45(8). They also acknowledged, however, that arbitrators must act judicially and respect the rules of evidence. In this regard, I was referred to Re Girvan and Consumer’s Gas Co. (1973), 40 D.L.R. (3d) 509 (Ont. Div. Ct.), where the Divisional Court quashed an arbitration award that based a finding of fact upon hearsay evidence that could not be challenged upon cross-examination. Perhaps for this reason, both counsel began their submissions by referring to Section 52 (2) of the Evidence Act, relating to the admissibility of medical reports. Section 52 (2) of the Act reads as follows: A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that reletes to that action, are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action. Counsel for the union indicated that while the notice provision of section 52 probably did not apply in a labour arbitration, at least ten days’ notice of the union’s intention to introduce the medical report was given to the employer. Counsel for the employer acknowledged receiving this notice and a copy of the medical report in question. No evidence or agreed statement of facts was entered regarding the precise nature of the medical report or the availability of the grievor’s family doctor. The submissions of the parties seemed to proceed, however, upon the footing that the report was more than a mere doctor’s note and the doctor was not beyond the reach of a subpoena from the Board. It is upon this basis that I have considered and applied the applicable authorities. The Purpose of Section 52: Section 52 (2) of the Evidence Act makes, inter alia, a medical report admissible in evidence, “with leave of the court.” According to the Ontario Court of Appeal in Kapulica v. Dumancic, (1968) 2 0. R. 438 (C. A.), section 52 is a procedural provision designed to permit a court an alternative means for receiving medical evidence. The court is given discretion to “admit the evidence of a professional medical witness without the necessity of bringing that witness physically into court and having his examination conducted in the face of the court.” Id. at 442. This was seen as “beneficial to the litigants, to the court and to the members of both the legal and medical professions.” Id. Accomodation of the Right of Cross-Examination: The admission of a medical report in this manner, however, immediately raises the question of accomodating the opponent’s fundamental right of cross examination. In Kapulica, the Court of Appeal said that the party tendering the report “constitutes the medical practitioner who signs it his witness as fully as if he had produced him in court and examined him under oath . . . [and he] is subject to cross examination . . . on the evidence given by means of the medical report in the same manner as he would have been if he had given oral testimony in the words of the report.” Id. at 442-43. 4 Locus of Responsibility to Produce the Medical Practitioner in Court: As to which party has the responsibility to produce the medical practitioner for purposes of cross examination, the Court of Appeal in Kapulica took the view that this was the responsibility of the party that wished to cross examine the practitioner. Id at 443. Subsequently, however, the High Court concluded that this responsibility belonged to the party that introduced the medical report. It was this party, after all, that had constituted the medical practitioner its witness by filing his or her report. See Carew v. LobZaw’s Ltd. (1977), 18 0. R. (2d) 660,663 (H. C. J.); and Briandv. Sutton (1986), 15 C. P. C. (2d), 36,41 (Ont. H. C. J.). The view taken by the High Court seems to be in harmony with the statutory scheme of section 52. Under this scheme, unnecessary demands for production of a medical practitioner for cross- examination are discouraged. Section 52 (5) empowers the court to order the party requiring the attendance of the practitioner to pay as costs of the attendance “such sum as the court considers appropriate” if the court “is of the opinion that the evidence could have been produced as effectively by way of a report.” Id. The “costs” penalty of section 52(5) seeks, inter alia, to guard against the prolongation of court proceedings that would result from the use of a tactic of automatically requiring an opposing party to produce a medical practitioner for cross- examination every time it seeks to introduce a medical report. This is one of the inefficiencies 5 that section 52 was designed to eliminate. Locus of This Responsibility in Labour Arbitrations: For a considerable period of time, arbitrators have referred to section 52 of the Evidence Act in determining whether to admit into evidence medical notes, reports and other documents without calling the medical professionals who wrote them. See, e.g., Re Metropolitan Board of Commissioners of Police, supra; Re St. Jean de Brebeuf Hospital and Canadian Union of Public Employees, Local IIUI (1977), 16 L.A.C. (2d) 199 (Swan); Re Brampton Hydro-Electric Commission and Local 636, International Brotherhood of Electrical Workers (1990), Unpublished Award (Devlin); and, Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 79 (1992), 25 L.A.C. (4th) 73 (Springate). In so doing, it has often become necessary to take into account the differences between arbitrations and court proceedings. For example, arbitrators do not have the same power as the courts to award costs. The question whether arbitrators have jurisdiction to award a “cost penalty” under section 52(5) of the Evidence Act is not free from doubt. How, then, can an arbitrator temper the temptation for one side automatically to condition the admission of every medical report upon the other side’s producing the medical practitioner for cross-examination ? Professor Rayner seemed to have this concern in mind in Re Chrysler Canada Ltd. and UA. W., Lot. 128.5 (1974) 5 L.A.C. (2d) 164, at 166, when he said in response to a demand to cross-examine upon letters from medical 6 specialists that the union sought to place in evidence, “if Mr. Sanderson’s position was correct, one party could prevent the admission of such documents alone by simply requiring the right of cross-examination. . . . [I]t would be inconvenient and perhaps costly to require the attendance of several medical specialists.” In Brampton Hydro, on the other hand, arbitrator Devlin indicated that in her opinion, an arbitrator had jurisdiction to exert discipline in such instances by awarding costs. She said, “I am satisfied . . . that I have jurisdiction to award a sum by way of costs to be paid by the opposing parties (who required the doctor to attend for cross-examination] if I ultimately determine that the doctor was required to give oral evidence unnecessarily. In my view, an award of costs in these circumstances is to be distinguished from an award of the usual costs associated with arbitration proceedings or with the costs of a board of arbitration for which the procedure for payment is mandated by the collective agreement.” Id. at lo- 11. No authority, however, was cited for this proposition. There seems to me to be one other distinction between arbitration and court proceedings that might have an impact upon the question of discouraging unnecessary cross-examinations. In most instances, the costs of arbitration are bourne by the parties. This is now the case even with respect to arbitrations under the Crown Employees’ Collective Bargaining Act. Should a party unnecessarily prolong a hearing by insisting upon calling every medical expert whose report is entered into evidence, it will incur a cost penalty to itself, in terms of half the cost of the board of arbitration for the additional days of hearing. This is not the case with respect to a court 7 proceeding, in which the bulk of the costs of the judges and courts are borne by the public and not the litigants. It might be that this inherent “cost penalty” in arbitration proceedings may in many cases dampen a tendency toward overenthusiasm in requiring medical experts to attend for cross-examination. In any event, it does not seem that shifting responsibility to call a medical practitioner from the party relying upon his or her report to the party requiring cross-examination would have much of a deter-rant effect. As both parties agreed in Metropolitan Board of Commissioners of Police, supra, the costs bourne by the party bearing this responsibility are small. They were said to consist of the cost of securing and serving a subpoena upon the medical practitioner and the payment to him or her of a small amount of “conduct money”. See id. at 15,2 1. Forcing the party requiring cross-examination to bear such minimal costs would probably be unlikely to deter it from insisting upon the attendance of the medical practitioner. In light of these considerations, it does not appear that, in general, the locus of the responsibility to produce a medical practitioner for cross-examination upon his or her report should be any different in labour arbitrations than it is in proceedings before the courts. It is the party that relies upon the report that must bear this responsibility. By introducing the medical report and relying upon it, this party constitutes the practitioner its own witness just as surely as if he or she had been called to give direct testimony in the party’s case-in-chief. Absent compelling reasons to the contrary, it seems reasonable and fair to require a party to make its own witness available for cross-examination. There do not appear to be any such compelling reasons in the general context 8 of labour arbitration. General Arbitral Procedure Re Medical Reports: It was brought to my attention in the course of the submissions of both counsel that some arbitrators have either denied cross-examination entirely or required the party wishing to cross-examine to bear the responsibility of producing the medical practitioner for cross- examination upon his or her report. See Re Municipality of Metropolitan Toronto, supra. After a number of prior authorities were reviewed in this case, it was broadly concluded, “The cases referred to above indicate that the general arbitral practice is to accept a medical report into evidence without requiring that the doctor who prepared it be called as a witness.” Id. at 80. A review of these authorities, however, seems to disclose but slender support for such a broad proposition. One of the authorities that was reviewed in reaching this conclusion was Re Petro-Canada Products (Clarkson Refinery) and E.C. W. U., Local 593 (1989), (summarized 15 C.L.A.S. 4) (Marcotte). In that case, the arbitrator after reviewing, inter alia, the award of Professor Rayner in Chrysler Canada, supra, refused to require the union to produce the doctor who had prepared several medical reports that were entered into evidence. In the face of this refusal, the employer called the doctor as a witness. Re Municipality of Metropolitan Toronto, supra, at 79. Another was Re Steel Co. of Canada Ltd. and U. S. W., Local 1005 (1975), 8 L.A.C. (2nd) 298 (Beatty), which, once again, followed the lead of Professor Rayner in Chrysler Canada. Re Municipality 9 of Metropolitan Toronto, supra, at 77. As has already been pointed out, it would seem that one of the main reasons given in Chrysler Canada for refusing to require the medical practitioners to be produced by the union was the anticipated cost and inconvenience in requiring their attendance. It has, however, been subsequently indicated that these costs generally are not very high, consisting in the main of the cost of obtaining and serving subpoenas and payment of small amounts of conduct money. See Metropolitan Board of Commissioners of Police, supra, at 15,2 1. It also appears that the shared-cost requirement in most labour arbitration proceedings might act as a disincentive to prolonging hearings by requiring unnecesary cross-examinations. Another authority that was relied upon in Municipality of Metropolitan Toronto was Re St. Jean de Brebeuf Hospital, supra, in which arbitrator Swan admitted into evidence a doctor’s certificate despite the fact that the doctor was unavailable to testify as a witness for either party. In that case, however, arbitrator Swan only admitted the certificate after noting that not much would be gained by calling the doctor because “it is impossible that his testimony could have contributed anything of substance to the hearing” and “the probative value of this certificate is clearly negligible.” Id. at 204. This would not appear to be inconsistent with Re Seagram Distillers Ltd. and Distillery, Wine and Allied Workers’ International Union, Locals 48, 64, 190, 191 and 200 (1983), 11 L. A.C. (3d) 166 (P. Picher), where the arbitrator refused to admit into evidence a more substantive doctor’s report because the doctor was unavailable to be cross-examined. Id. at 173. 10 From my review of applicable authority, it would appear that the most appropriate 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) however, 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 relying upon the report to produce the practitioner for cross-examination. Finally, where the practitioner is unavailable for cross-examination, the medical report may be admitted or excluded in the discretion of the arbitrator, properly exercised in light of the circumstances of each individual case. Conclusion: In the present case, the submissions of the parties proceeded on the footing that the medical report in question is more substantial than a mere doctor’s note and, if required, the doctor would be available to testify. Accordingly, it is concluded that the union may introduce the medical report in its case without calling the doctor to testify; however, the admission into evidence of the medical report is subject to a condition that the union produce the doctor for purposes of cross-examination should the employer so require. 11 Dated at Toronto, Ontario, this /“& day of December, 1995.