HomeMy WebLinkAbout2011-2731.Wild.16-03-30 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#2011-2731, 2011-2808
UNION# 2011-0368-0170, 2011-0368-0185
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Wild) Union
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Daniel Harris Vice-Chair
FOR THE UNION David Wright
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Robert Fredericks
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING January 8, 2016
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Decision
[1] This matter involves the discharge of Shawn Wild on November 10, 2011 from his
employment as a Correctional Officer at the Central East Correctional Center. It is
alleged that on June 19, 2011 he used excessive force against inmate PN, which
justified his discharge. Mr. Wild was charged criminally with assault. He was
acquitted April 17, 2014.
[2] In the course of the hearing the employer indicated that it intended to call Greg
Ireland, Provincial Coordinator, Use of Force Programmes, as an expert witness
relating to use of force in correctional institutions by Correctional Officers, hereafter
COs. The union had no objection to him testifying as to the training that COs
receive in this regard because he has knowledge of the training programmes.
However, it did object to him being certified as an expert in order that he might
proffer an opinion on the facts at issue in this case. That matter was argued
following which I issued a "bottom line" decision with reasons to follow. The
following are my reasons for ruling that Mr. Ireland’s testimony is admissible.
Background
[3] In an email dated November 29, 2015, counsel for the employer set out his
intention in the following terms:
As discussed, I will be establishing Greg Ireland as a subject matter
expert regarding Use of Force training, application and interpretation.
He will testify about his expertise, the use of force training provided to
Correctional Officers, including Sean Wild, the statutory background of
use of force regulations, Ministry policies and the Use of Force
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Management Model. He will also view the Wild-[NP] video, review
Mr. Wild's occurrence report and provide his opinion on whether
Mr. Wild complied with the use of force regulations and policies.
(emphasis added)
[4] The union objected to the admissibility of that portion of Mr. Ireland's proposed
expert opinion evidence emphasized in the paragraph above and asked the Board
to rule, in advance of his appearance, on the admissibility of this evidence
[5] In my view, Mr. Ireland’s opinion evidence is admissible, subject to final
submissions at the close of the case as to the weight it should be given.
[6] This issue was presented by way of an agreed statement of facts, which reads as
follows:
1. Mr. Ireland is an employee of the Ministry and has been since 1985. He is
employed as the “Provincial Co-ordinator, Use of Force Programs” at the
Ontario Correctional Services College, and was so employed at the time of
the events giving rise to the Grievance. From April to October 2013 he was
employed as the “Provincial Use of Force Auditor”. His “Statement of
Qualifications” is attached as Appendix 1.
2. Mr. Ireland has signed an “Acknowledgement of Expert’s Duty” form, copy
attached as Appendix 2
3. Mr. Ireland has previously been accepted as an expert witness in cases at
the GSB number 2011 – 3658 etc., December 14, 2015 (Waters). (see page
3 of Appendix 1) but his capacity as an expert witness was not challenged in
any of those cases.
4. During the criminal trial of the Grievor, Mr. Ireland was identified as a
potential expert witness on behalf of the Crown, but ultimately was not called
as a witness.
5. He attended at the trial and during Mr. Wild’s testimony sat at Crown
Counsel’s table with Crown Counsel. He was there to assist the Crown in
understanding use of force and training issues, in the event that they became
an issue at the trial.
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6. While sitting at Crown counsel's table, Ireland did take some notes and
assisted the Crown in analyzing the video in the context of use of force
analysis specific to Corrections.
[7] As set out above, the union's objection is not to Mr. Ireland's expertise per se, but
rather the application of his expertise to the specific facts relating to the grievor in
this matter. Mr. Ireland's credentials are set out as Appendix 1 to the agreed
statement of fact and are accepted by the union. Appendix 2 to the agreed
statement of fact is an "Acknowledgment of Expert’s Duty" form, signed by Mr.
Ireland. It is agreed that the Rules Of Civil Procedure in a civil matter require that
an expert who will testify sign this form. That form reads as follows:
ACKNOWLEDGMENT OF EXPERT'S DUTY
1. My name is Greg Ireland. I live at Hamilton, in the Province of Ontario.
2. I have been engaged by or on behalf of the Ministry of Community
Safety and Correctional Services (the “Ministry”) to provide evidence
in relation to the above-noted tribunal proceeding. I am regularly
employed by the Ministry in the bargaining unit position of Provincial
Coordinator, Use of Force Programs, and am also a member of the
Ontario Public Service Employees Union.
3. I acknowledge that it is my duty to provide evidence in relation to this
proceeding as follows:
(a) to provide opinion evidence that is fair, objective and non-
partisan;
(b) to provide opinion evidence that is related only to matters that
are within my area of expertise; and
(c) to provide such additional assistance as the Grievance
Settlement Board may reasonably require, to determine a matter
in issue.
4. I acknowledge that the duty referred to above prevails over any
obligation, which I may owe to any party by whom or on whose behalf
I am engaged.
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[8] Briefly put, the union objects to the admissibility of Mr. Ireland's expert opinion
evidence because it addresses the very issue before the Board. Further, the union
says that it does not meet the four-fold test in R v. Mohan (infra) of 1) relevance, 2)
necessity in assisting the trier of fact, 3) the absence of any exclusionary rule, and
4) proper qualification. The union says that it is the second criterion of necessity
that is not met. It says that it fails to meet this criterion on two bases.
[9] First, it says that the Grievance Settlement Board does not need the expert
assistance of Mr Ireland. It said that on many occasions the Grievance Settlement
Board has been called upon to decide whether individual Corrections Officers were
entitled to use force and whether the force used was excessive. It said that where
the issues are not overly scientific or technical in nature the trier of fact is capable
of making a decision without the assistance of expert opinion evidence.
[10] Second, it says that Mr Ireland lacks the degree of impartiality required for him to
be able to provide the Board with the assistance contemplated by criterion number
two. In this regard, the union relies upon paragraphs 4, 5, and 6 of the agreed
statement of fact.
[11] The union provided examples of labour relations decisions in which expert
evidence was excluded. It said that it was not appropriate to simply hear the
evidence while reserving the right of the parties to argue the weight that should be
attached to the evidence.
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[12] The union relied upon the following authorities: Webb v. Waterloo Regional Police
Services Board et al 2002 CanLII 41983 (ON CA); Meady et al v. Greyhound
Canada et al 2010 ONSC 6437 (CanLII); Bertina Alfano et al v. Christian Piersanti
et al 2009 CanLII 12799 (ON SC); Bertina Alfanoet al v. Christian Piersanti et al
2112 ONCA 297 (CanLII); Barr et al and Treasury Board (Department of National
Defence) 2004 PSSRB 169; Ottawa Hospital and CUPE, Local 4000 (Dress Code
Policy), Re. (2013), 229 L.A.C. (4th) 14 (Slotnick); Cami Automotive and CAW-
Canada, Local 88, [1999] O.L.A.A. no. 823 (Brandt).
[13] The employer submitted that there were at least four reasons to deny the motion to
exclude Mr. Ireland's evidence. First, the union accepts that he is an expert and his
statement of qualifications bears that out. Second, his evidence will cover a broad
area including training, policies etc. It is an artificial distinction to permit him to give
expert opinion evidence on those areas yet not permit him to analyze the actions of
the grievor in the broader context. That evidence would not reflect on just cause,
and even if it did, no rule restricts him from giving that evidence and the Board
considering such evidence. Third, he is clearly aware of his responsibility to be
impartial, as evidenced by his having voluntarily signed the "Acknowledgment of
Expert’s Duty" form. The fact that Mr. Ireland is an employee of the Ministry and
had some peripheral involvement at the criminal trial changes nothing. Fourth, the
entire question of admissibility is subject to the Ontario Labour Relations Act s. 48
(12) (f), which permits evidence to be led at an arbitration hearing notwithstanding
that it might not be admissible in a court of law.
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[14] The employer's submissions regarding necessity began with an analysis of the
recent decision of this Board in Ontario Public Service Employees Union (Esser)
and the Crown in Right of Ontario (Ministry of Community Safety and Correctional
Services), GSB #2011-3658 etc., December 14, 2015 (Watters). The employer
noted that the leading of Mr. Ireland's expert evidence in that case had been
unopposed. It reviewed the decision with an eye to pointing out the extent to which
Mr. Ireland's evidence had been necessary to assist the Board in understanding
not only the training, policy and regulatory framework but the application of such to
the actions of the grievors involved therein. The employer submitted that that is the
role of an expert.
[15] The employer submitted that actual bias, not merely the appearance of bias, must
be shown before the expert opinion evidence would be excluded. It submitted that
there is no rule that expert opinion evidence going to the very question before the
trier of fact is not admissible. In any event, Mr. Ireland would not be testifying on
just cause.
[16] The employer submitted that a more recent case of the Supreme Court of Canada
has expanded upon the test in R v. Mohan (infra). It submitted that WBLI v. Abbott
and Haliburton, [2015] 2 S.C.R.182 has articulated a formal expansion of the
admissibility thresholds to include impartiality of the proposed expert as part of the
fourth requirement of the test in Mohan, being the “proper qualification” of the
expert.
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[17] The employer submitted that the standard to be met to establish impartiality is not
onerous. It reviewed the WBLI case as well as other cases and submitted that, on
the law, neither Mr. Ireland's status as an employee of the Ministry nor his having
sat with Crown Counsel at the trial were sufficient to render his expert opinion
evidence inadmissible.
[18] The employer relied upon the following authorities: Rules of Civil Procedure,
R.R.O. 1990, Reg. 194 – Rules 4.1 &53.03; The Law of Evidence in Canada, J.
Sopinka, S. Lederman, A. Bryant 2nd Ed. Par 12.70 – 12.86; OPSEU (Esser) v.
Ontario (Ministry of Community Safety and Correctional Service), GSB #2011-3658
etc., December 14, 2015 (Watters); R. v. Mohan; [1994] 2 S.C.R. 9; WBLI v. Abbott
and Haliburton, [2015] 2 S.C.R. 182; R. v. Inco Ltd. (2006), 80 O.R. (3d) 594 (Ont.
S.C.); Stewart v. Niagara Parks Commission (2010), 50 C.E.L.R. (3d) 261
(N.E.H.O.); Beazley v. Suzuki Motor Corp., 2010 BCSC 480; R. v. Van Bree, 2011
ONSC 4273; Brake-Patten v. Gallant, 2012 NLCA 23; Moore v. Smith
Construction, 2013 ONCJ 624; Moore v. Getahun, 2015 ONCA 55; R. v. Natsis,
2014 ONCJ 532.
Analysis and Decision
[19] As set out above, the foundation case regarding the admissibility of expert opinion
evidence is the Supreme Court of Canada decision in R. v. Mohan. The test is set
out at page 20 (g) as follows:
Admission of expert evidence depends on the application of the
following criteria:
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1) relevance;
2) necessity in assisting the trier of fact;
3) the absence of any exclusionary rule;
4) a properly qualified expert.
[20] There can be no doubt in the matter before me that Mr. Ireland's evidence would
be relevant to the facts in issue. In dealing with the second criterion, necessity in
assisting the trier of fact, Sopinka J. made the following comments at pages 23 -
25:
This pre-condition is often expressed in terms as to whether the
evidence would be helpful to the trier of fact. The word "helpful" is not
quite appropriate and sets too low a standard. However, I would not
judge necessity by too strict a standard. What is required is that the
opinion be necessary in the sense that it provide information "which is
likely to be outside the experience and knowledge of a judge or jury"
. . .
As stated by Dickson J., the evidence must be necessary to enable
the trier of fact to appreciate the matters in issue due to their technical
nature.
. . .
In order for expert evidence to be admissible, "[t]he subject-matter of
the inquiry must be such that ordinary people are unlikely to form a
correct judgment about it, if unassisted by persons with special
knowledge".
. . .
[p. 24g]
There is also a concern inherent in the application of this criterion that
experts not be permitted to usurp the functions of the trier of fact. Too
liberal an approach could result in a trial’s [sic] becoming nothing more
than a contest of experts with the trier of fact acting as a referee in
deciding which expert to accept.
These concerns were the basis of the rule which excluded expert
evidence in respect of the ultimate issue. Although the rule is no
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longer of general application, the concerns underlying it remain. In
light of these concerns, the criteria of relevance and necessity are
applied strictly, on occasion, to exclude expert evidence as to an
ultimate issue.
(emphasis added)
[21] Mr. Ireland’s knowledge and explanation of the training given to the grievor are
relevant and not opposed by the union. Although use of force cases do come
before the Board with a concerning frequency, they are fact driven, and the
application of the law and policy to each of them differs with the circumstances of
each case. There is a technical aspect to the use of force in a correctional facility,
which is likely to be outside the experience and knowledge of a Vice-Chair of the
Board. An expert’s evidence on this subject matter in the specific circumstances
would help the Board form a correct judgment about it. I find that the proposed
evidence meets the test of necessity.
[22] As to the union’s concern regarding impartiality, as submitted by the employer the
recent Supreme Court of Canada case of WBLI v. Abbott and Haliburton has
expanded upon R. v. Mohan with its consideration of the proposed expert’s
independence and impartiality. The court summarized it's view at paragraph two as
follows:
[2] Expert witnesses have a special duty to the court to provide fair,
objective and non-partisan assistance. A proposed expert witness who is
unable or unwilling to comply with this duty is not qualified to give expert
opinion evidence and should not be permitted to do so. Less fundamental
concerns about an expert's independence and impartiality should be taken
into account in the broader, overall weighing of the costs and benefits of
receiving the evidence.
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[23] The questions being answered by the Court, are set out in paragraph 33, which
reads in part as follows:
There are two main questions: should the elements of this duty go to
admissibility of the evidence rather than simply to its weight? and, if
so, is there a threshold admissibility requirement in relation to
independence and impartiality?
[24] After reviewing the jurisprudence from Canada and other jurisdictions the Court
concluded as follows at paragraph 45:
Following what I take to be the dominant view in the Canadian cases, I
would hold that an expert's lack of independence and impartiality goes
to the admissibility of the evidence in addition to being considered in
relation to the weight to be given to the evidence if admitted. That
approach seems to me to be more in line with the basic structure of
our law relating to expert evidence and with the importance our
jurisprudence has attached to the gatekeeping role of trial judges.
Binnie J. summed up the Canadian approach well in [R v. J.-L.J., 2000
SCC 51]: "the admissibility of the expert evidence should be
scrutinized at the time it is proffered, and not allowed too easy an
entry on the basis that all of the frailties could go at the end of the day
to weight rather than admissibility" (para. 28).
[25] The Court went on to analyze and decide the appropriate threshold for
admissibility, which flows from the duty owed by an expert witness to the court of
providing fair, objective and nonpartisan evidence. It said, at paragraph 47 that,
absent a challenge to the expert’s independence, "the expert’s attestation or
testimony recognizing and accepting the duty will generally be sufficient to
establish that this threshold is met.”
[26] In the instant matter, the expert has attested by way of signing the
"Acknowledgment of Expert’s Duty" that he recognizes and accepts the duty.
However, the union opposes the admission of the evidence. At paragraph 48 the
Court summarizes the process to be followed:
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[48] Once the expert attests or testifies on oath to this effect, the burden
is on the party opposing the admission of the evidence to show that there is a
realistic concern that the expert’s evidence should not be received because
the expert is unable and/or unwilling to comply with that duty. If the opponent
does so, the burden to establish on a balance of probabilities this aspect of
the admissibility threshold remains on the party proposing to call the
evidence. . . .
[27] The union here relies upon paragraphs 4, 5 and 6 of the agreed statement of fact
as evidence to show that there is a realistic concern that Mr. Ireland is unable
and/or unwilling to comply with that duty. For the sake of convenience, those
paragraphs are reproduced again as follows:
4. During the criminal trial of the Grievor, Mr. Ireland was identified as a
potential expert witness on behalf of the Crown, but ultimately was not
called as a witness.
5. He attended at the trial and during Mr. Wild’s testimony sat at Crown
Counsel’s table with Crown Counsel. He was there to assist the
Crown in understanding use of force and training issues, in the event
that they became an issue at the trial.
6. While sitting at Crown counsel's table, Ireland did take some notes and
assisted the Crown in analyzing the video in the context of use of force
analysis specific to Corrections.
[28] The union's submissions rely upon the fact that Mr. Ireland is an employee of the
Ministry and it says that he became an advocate for the Crown at the criminal trial
by sitting with Crown Counsel, providing advice and taking notes. The Court in
WBLI reviewed the standard to be applied to the threshold requirement that an
expert be able and willing to comply with their duty at paragraph 49, which reads
as follows:
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[49] This threshold requirement is not particularly onerous and it will
likely be quite rare that a proposed expert's evidence would be ruled
inadmissible for failing to meet it. The trial judge must determine, having
regard to both the particular circumstances of the proposed expert and the
substance of the proposed evidence, whether the expert is able and willing to
carry out his or her primary duty to the court. For example, it is the nature
and extent of the interest or connection with the litigation or a party thereto
which matters, not the mere fact of the interest or connection; the existence
of some interest or relationship does not automatically render the evidence of
the proposed expert inadmissible. In most cases, a mere employment
relationship with the party calling the evidence will be insufficient to do so. On
the other hand, a direct financial interest in the outcome of the litigation will
be of more concern. The same can be said in the case of a very close familial
relationship with one of the parties or situations in which the proposed expert
will probably incur professional liability if his or her opinion is not accepted by
the court. Similarly, an expert who, in his or her proposed evidence or
otherwise, assumes the role of an advocate for a party is clearly unwilling
and/or unable to carry out the primary duty to the court. I emphasize that
exclusion at the threshold stage of the analysis should occur only in very
clear cases in which the proposed expert is unable or unwilling to provide the
court with fair, objective and nonpartisan evidence. Anything less than clear
unwillingness or inability to do so should not lead to exclusion, but be taken
into account in the overall weighing of costs and benefits of receiving the
evidence.
[29] In paragraph 50, the Court very clearly enunciates that:
[50]
. . .
The concept of apparent bias is not relevant to the question of whether
or not an expert witness will be unable or unwilling to fulfill its primary
duty to the court. When looking at an expert's interest or relationship
with a party, the question is whether a reasonable observer would
think that the expert is not independent. The question is whether the
relationship or interest results in the expert being unable or unwilling to
carry out his or her primary duty to the court to provide fair, non-
partisan and objective assistance.
In the matter before me, the union has relied upon the appearance of partiality that
it says flows from paragraphs 4, 5 and 6 of the Agreed Statement of Fact. Clearly,
that is not the test; the question is whether or not there is evidence to establish that
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Mr. Ireland is unwilling or unable to discharge his duty to the Board to be
independent and impartial.
[30] In my view, there is nothing in the record before me that indicates that Mr. Ireland
is unwilling or unable to discharge his duty to the Board as contemplated by WBLI.
[31] The employer provided a number of other cases relating to the admissibility of
expert opinion evidence in situations analogous to the instant matter. In Inco the
trial judge declined to certify an employee of the Ministry of Environment because
of a perceived lack of independence. That was rejected on appeal.
[32] Stewart v. NEC was an appeal of the refusal by the Niagara Escarpment
Commission of a development permit for the construction of a road in an
"Escarpment Natural Area". Counsel for the NEC proposed to call the staff planner
who had completed the staff report in the matter, and had had carriage of the file
throughout the NEC consideration process, and the Niagara Escarpment Hearing
Office Pre-Hearing process. At paragraph 42, the staff planner was accepted as an
expert witness. Paragraph 42 reads in part: "her position as an employee of the
NEC is a factor to consider in the weight assigned her opinion evidence, rather
than one disqualifying her from giving evidence."
[33] These and the other cases relied upon lead me to conclude that the fact that Mr.
Ireland is an employee of the Ministry does not render his expert opinion evidence
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inadmissible. As set out above, it is agreed that he has the requisite subject matter
expertise, and his evidence would be relevant to the facts in issue.
[34] In addition, even if his participation at the criminal trial gives the appearance that
he is not impartial and independent, the agreed facts do not establish that he is not
impartial and independent, rendering him unwilling or unable to discharge his duty
to the Board. Accordingly, as in Niagara Parks Commission (supra) his position as
an employee of the Ministry is a factor to consider in the weight assigned his
opinion evidence, rather than one disqualifying him from giving evidence.
[35] Mr. Ireland’s expert, opinion evidence is admissible.
Dated at Toronto, Ontario this 30th day of March 2016.
Daniel Harris, Vice Chair