Loading...
HomeMy WebLinkAbout1989-0218.Faler.90-02-27 ON.mO EM~ OYES DE LA COURONNE CROWN EMPLOYE£S 0E L'ON~RIO GRIEVANCE Cp~MlSSlON BE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUN~S STREET WE$~ TORONT~ ON~ M5G I~- SUI~ 21~ ~LEPHONE/T~L~PHONE 15~ RuE DUNDAS O~S L ~RONTO, (ON~m~ M5G 1Z~ - BUR~U 2~ ~ H ~ ~ ~g8-0~8 ~i8/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Faler} Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: B.B. Figher Vice-Chairperson E. Seymour Member H. Roberts Member FOR THE J. Hayes GRIEVOR: Counsel Cavalluzzo, Hayes, & Lennon Barristers & Solicitors FOR THE J. Benedict EMPLOYER: Manager Ministry of Correctional Services HEARINGS: December 8, 1989 January 12, 19, 26, 1990 February 2, 9, 1990 INTERIM DECISION This case involves the dismissal of a Correctional Officer for allegations involving the excessive use of force against two inmates. At the completion of the employer's case, the Union brought a motion for a non- suit. The Union took the position that it should not be put to its election to call evidence, but rather the Board should hear the motion and if the Union does not succeed, then it should be free to call evidence if it so chooses. This issue of election to call evidence was previously canvassed by the Grievance Settlement Board in Trotter 282/88 (Vice-Chairperson Fisher) in which the Board said as follows: "Non-suit Election The bulk of arbitral author!ty see_ms.to be that on a..non-suit the. party bringing the motion must elect wt~etner or not to call its own emc~eiace before t-he Board will decide on the merits of the motion and if the party elects to call evidence, the' motion is decided at the end of the case. In other words, if evidence is called, a motion for non-suit is irrelevant. The rationale behind this rule seems to be two-fold: 1. To do otherwise would increase the length of time arbitrations would take, thereby increase the cost to the parties. 2. It is not right to ask the arbitrator to e .xpress his oloin/on on the evidence before all the evidence is in as this will ~.,ive one. par.ty an advantage over the other in that they get a flee peek at ttie arbitrator's thinking and therefore, could tailor the rest of their case accordingly. (See Re: Gilbarco Canada Ltd. (1973) 1 L.A.C. (2d) 348 Carter). This procedure has also been. adopted by the Grievance Settlement Board in Fish 139/77 (Vice Chairperson Swinton). The rationale behind the rule seems to be open to criticism on the following grounds: 1. One could argue that in effect forcing the opposingparty to lead evidence which may be not required is more l~ely to waste time and prolong arbitrations than having to render a negative decision on a non-suit motion and then having to listen to more evidence. This is especially true in cases which last more than one day anyway. -2- 2. More and more arbitrators are actively participa.ting in the . hearing and thereby revealing their op~mons on the case as tiae case deve!ops. Counsel quitffoften wish to know the arbitrator s thinking so that they can change their strategy so they can drop unimportant information and emphasize t-l'ie important. There is no disadvantage on the van5' shouldering the burden of 'proof because he can use the fight of reply in which to lead extra evidence now that he has insight into the arbitrator's mind. However meritorious these criteria are, it seems appropriate that s. uch a ong standing rule should not be lil~htly set aside, especmlly since the Gffevance Settlement Board itself'has adopted this procedure. Therefore, this Board, ever mindful of Chairman Shime's deciston in Blake, rules that the Union is to be put to its election before it wilt rule on the motion and if the Union elects to cai1 evidence, then the motion will be considered at the end, or in other words, ignored." In all of the cases referred to us by the Union where the party bringing the motion. was put to its election it is recognized by the arbitration board or the court that this is a discretionary item dependent on the facts of the individual case. In the cases in which this issue has been addressed, most arbitrators have forced the moving party to make the election for two reasons: 1. Cost: In the Gilbarco Canada and Canadian Union of Golden Triangle Workers, 1973 I.L.A.C. (2d) 348, Professor Carter says: "This board supports the position taken by. the board in the Orenda case. In the case of most arbitrations, it is possible to hear all evidence and argument in one day of hearings. If, in a case where a decision had been reserved on a motion for non-suit, the board were required to give the mover of the non-suit motion the opportunity of introducing further evidence after the motion for non-suit has been decided, an additional hearing day would hav.e to b.e scheduled.. This exp.er!.se could be saved if the parties were required to complete their case at me time ot me motion for non-suit. Admittedly, forcing a party to elect may discourage non-suit motions. It might be araued that this result will put a party to the aiilditional expense of intro(lucina evidence where there is no case to meet. But, in the case of arbitration-proceedings, the parties are usually prepared to conduct their business in one day of hearings and all witnesses are normally present on that day. Thus, it ts difficult to see how encouraging the parties to complete their cases in that one day would create a~lditional expense." -B- Suffice it to say that Gilbraco was a 1973 case when a one-day case was common. This case before the Grievance Settlement Board has already gone on for approximately four days, which is typical of a discharge case involving allegations of abuse. In fact, this same situation of a lengthy hear/ng was present in the case of Re Toronto Public Library Board and CUPE (unreported decision dated July 24, t984 - Beatty). The Union's case had already taken thirteen days of hearing to present and at its conclusion the Employer moved for a non-suit and asked not to be put to its election. In allowing the Employer to proceed without making an election, the Board said: "In the instant case however the normal time frame to complete the. hearing process obviously does not and will not obtain. In putting the union's case in chief, nine days of hearings have been reqmred. Fn these circumstances~ if we were to put Mr. McDermott and the employer to its election it is s~mply unrealist)c to expect the latter's case to be comEleted in a daf. Given the extraordinary, length of theproceedings so far, ~f we put the employer to its election and if, (as virtually automatically happens ~n such circumstances)_ the employer chooses to offer evidence of its own as to the meaning of Article 23, we would be faced with the prospect of these proceedings enduring for at least several more days of hearings. In this context then arguments of expedient3, and efficiency argue, as Mr. McDermott claimed, that the employer ought to beperrmtte_d'to make its motion and have us rule on it w~thout forcing it to decide_if it will call additional evidence i. fwe rule against.it on. the motion. By permitting the employer to ma?e it_s motion wimout t)eing put to an elecuon, we preserve the possibility tlaat it its argument is correct on the merits of the motion, We will have saved the ~arties the additional delay and expense that would be entailed if the employer were, for all practical purposes, driven to calling its evidence at this point in the proceedings.~ . 2. Fairness: The issue has been clearly set out in Re Corporation of the City of Toronto and CUPE Local '79 17 LAC (3d) 273 (Kates) at page 281: It seems that other considerations expressed in the case-Iaw, besides obvious concerns for expedition, underlie the practice of putting the mover of a non-suit to irs election. Arid that consideration pertains to the fairness or perceived fairness of the arbitration hearing. Surely., the expression by the arbitrator, as the trier of fact, of his views of the evidence in the n/iddle of a case where only one party stands to benefit inevitably is going to result in the reduced esteem of the arbitration process in the eyes of tl~e constituency that is being served. And it seems to me that the Toronto Public Libra_ry case gave short shrift to this aspect of the trade union's argument. Quite clearly, in ehminating the risk of loss of the -4- non-suit one par.ty alone stands to benefit "by getting another kick at the can". It goes without saying that the mover of the non-suit at the time the motion is made Is not only aware o-f the weakness of his adversary's case but the adversary has not had the benefit (and perhaps never wilt) of beco/ning privy to the weakness of the mover's case. And in that context the case-law appears to suggest' that the trier of fact should not be placed in the invidious position of expressing his views of a party's e. vide_nce vathoutputting the other pa.rpy to. its election. Or, more succinctly, the pra~ctice of p. utting the party to its election is not ~me. rely designed as an instrument tor expedition Out is rooted in the credibility ot me nearing as a judicial process. This notion was elaborated more fully in Re Gilbarco Canada Ltd., supra, at p. 353: The second j.ustific, atign given for forcing the mover of the. ~non-s. uit to elec.t whether to call further evidence goes to t-ne tact that, in civil cases tried by Judge alone, the Judge must_ - b. oth supervise, the proceedings and act as the trier of fact. In t-nis situation there seem to be little sense in requiring the Judge to decide both the issue of whether the pro!oonent has established, as prima facie case and the issue o-f whether the proponent nas established his case according to the applicable standard of proof. This point was made by Romer, Lkr. in the case of Alexander v. Rayson, [1936) 1 K.B. 169, at p. I78: '... Where an action is being heard by a jury it is, of course, - q~uite usual and often yery conyenient at the end of the case ot the plaintiff, or of the part), taaving the onus of proof, the defendant had here, for t-ne opposing party to ask .for me ruling 9f the judge whether there is any case to go to the jury, wtuo are the only iudges of fact. It also seems to be not unusual in the King's Bench Division to ask for a similar ruling in actions tried by judge alone. We think, however, that this is highly_ inconvement. For the judge in such cases is also the judge of fact, and we cannot think it right that tl~e judge of 'fact should be asked to express any opinion upon the evidence until the ev/dence is completed. Certainly no one would ever df. cam of.asking a jury. at the end of a plmntiff's case to say w_nat verdict they would be prepared to give if the defendant called no evidence~ and we hil to see wlSy a.iudge should be ask. ed such a questmn in cases where he and'not a jury is the juclge that has to determine the facts. In such cases we venture to think that the responsibility for not calling rebutting evidence should be upon the other party's counsel and upon no one else.' This argument is ecluaIly applicable to a board of arbitration which must act as a judge o'f fact as well as supei'vise the proceedings. With much deference to the arbitration board in the Toronto Public Library case, supra, i find no merit in the distinction that was made in that case between the arbitrator's expression of views of the evidence with respect to whether aprimafacie case is established from the findings that are made with respect to the sufficiency, of the evidence at -5- the close of the case. Presumably, because the former involves a question of law the arbitrator is thereby, warranted in making a determination of whether a case has been made in order to cletermine the merits of the non-suit. Quite candidly, it seems to me that this distinction misses the point. One significant purpose that is served by putting a pa..rpy to its election on a motion for a non-suit ~s to insulate the arbitrator's neutrali_ty, as the trier of the fact, from voicing an opinion on the evidence until the case has been completed. And, furthermore, the arbitrator in any event is duty-bound to avoid situations where he or she is placed in the invidious dilemma of favouring one party who can only stand to benefit from the expression of that opinion. In the final analysis where the procedures adopted at arbitration in furtherance of expedition and cost savings contlict with or are seen to conflict with the perceived fairness of the process, the former considerations must giye way to the latter, if the parties wish to abridge the procedure by jointly requesting the arbitrator to extend them the favour of his op~mon at the close ot' the evidence on whose onus the case lies then different considerat!ons may very well apply. But it does not reside in one party without ris~: to fo. ist that burden on the arbitrator at the expense of fairness to the other. Indeed, unlike what was said in the Toronto Library Board case, it is my view that inputting the p_arty moving for the non-suit to its election the arbitration Board ~s not i:lepriving th. at party of"a legitimate defen, ce~'. Rather, it represents a challenge to mat party of going forward wim mat. defence o.r of allow/rig t-he case to fimsh in the ordinary w.ay. In tt'tat sense me objectives of expedition, cost savings and fairness are best enhanced." The counter argument to Mr. Kates' concern about fairness is found in a decision in Ontario Human Rights Commission Margaret Tomen and Linda Logan. Smith v. OTF and OPSTF, unreported award entitled "Re Election and Motion to Dismiss: Third interim Award" dated October 23, 1989, (Baum) at page 11: "Mr. Juriansz, however, raised a question as to whether my 'neutrality' or perhaps more bluntly, put, my impartiali.ty might be affected by an examination and evaluation of the facts before the entire record is completed. Reference was made by Mr. Jurainsz to a labour arbitration award, Re Corporation of the City qf .Toronto and Canadian Union of Public Employees, Local79 (1984~j 17 L.A.C. (3.d) 273 (Kate_s). There the arbitrator forcefully stated that an important pohcy reason for requiring a par.ty to be put to an election in a non-suit was to preserve the decision-malcer's impartiality: One significant purpose that is served by putting a party to its election on a motion for non-suit is to insulate the arbitrator's neutrality, as the trier of fact, from voicing an opinion on the evidence before the case has been completed. Arid, furthermore, the arbitrator in any event is duty-bound to avoid situations where he or she is placed in an invidious dilemma of favouring one par~ who can only stand to benefit from the expression of that opinion. [id. at 282], -6- An answer to the arbitrator's concern is found in criminal l?rocedure. It is common practice, as Mr. Ratushny pointed out in Ontario Human Rights Commission and Abary v. North York General Hospital, supra, for the courts in criminal cases to hear a motion for non-stat without requiring an election. I indicated that I would not use this practice as a precedent in terms of what I should do in this matter. It is _quite another matter, however, to refer to this practice on the issue of tiias or impartiality. And, I do so here. But, how am I to view the evidence? I accept the approach found in Hall v. Pemberton, 50.R. (2d) 438. In an oral_iudgmenb Jessut~, J.A. cited and al~l~lied theprinc~pl~ stated by Lord Penzance ~n Parfitt v. Lawless (1872), 41 L.J.P. &-M. 68 at 71-72: I conceive, therefore, that in judging whether there is any case evidence for a. jury the Judge must we. igh the evidence g~ven, must assigI3 wl~at ne conceives to t>e the most favourabl-e meaning which can reasonably be attributed to any ambiguous statements, and determine on the whole what tenclency me evidence has to establish the issue. From every fact this is proved, legitimate and reasonable inferences may of course be drawn, and all that is fairly . deducible from the evidence is as much proved, for the purpose of a prima facie case, as if it had been prov.ed di. rectly~, t conceive, therefore, that in discussing whetl~er there is any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exerci~e of a reasonable intelligence the j'u~ would be warranted in drawing from it, there is sufficient [evidencel to support the issue. I am bound to view the evidence throUgh a narrow prism. I am not, as such, evaluating conflictin~ evidence. The question before me in terms of the evidence is whether, ta~ing the testimony in a light most favourable to the Commission, I can determine that it has carried the burden of proof in establishing a prima facie case. Should I find that his has been ~lone, I am not bound, and it would be inappropriate for me to do more, at least as to the evidence, than indicate that the prima facie ca.se has been made because there is some evidence which will support tl~e complaints. (Indeed, that is precisely what the Board of Inquiry did in Ontario Human Rights Commission andAbarY v. North York Branson Hospital, supra, at 38205, where it.was stated: 'Applying these conclusions to the evidence before the Board~ the application of-the respondents must be dismissed. There is some evidence which, if believed, could support a contravention of the Code. This is not an appropriate occasion for reviewin~ and assessing the evidence and I specifically refrain from doing so. )" -7- Following this statement, Mr. Baum goes on to issue a thirty page award detailing the evidence extensively and dealing with complex issues of law, before rendering his ruling that the motion should be dismissed. In the case before us it seems clear that the' length of the proceeding would not be unduly prolonged if the Union were not put to its election as the parties have already agreed that if necessary they will argue the motion in an afternoon, prior to the next scheduled clay of hearing. If the motion is allowed, the total length of the hearing would have been substantially reduced. If the motion is denied, it will not have hindered the case unduly. Thus, with respect to the concern of expedition it would be advantageous to follow the Union's proposal. This Board is very concerned about the aspect of fairness and that the adoption of the Union's position would lead the Board to compromise, its neutrality. This concern is illustrated in the OHRC v. oTF and OPSTF case referred to above in which the Chairman goes into great length in a thirty page decision as to why he finds that the motion must fail. In doing so he expresses his opinion as to both the evidence and the law. With the greatest of respect, it seems inappropriate for a Board such as the Grievance Settlement Board, which is constantly determining disputes between the same parties, to express full reasons as to why one party has failed to prove a prima facie case. This would be the equivalent to an "arbitral time-out" in which the opposing party has the opportunity to find out what the Board is thinking, and then plan its strategy for the rest of the case. In a situation like this,.one would expect a motion for non-suit in every case, as it Would provide a useful advantage in every case to the moving party, whether or not they had any chance of winning a motion of that sort. -8- However, these fears can be eliminated if the Board gives no oral or written reasons in the event the motion is dismissed. Of course, if the motion is upheld, full and proper reasons would be provided, as then the motion would end the case. A mere indication. by the Board that the motion was dismissed would not give a tactical advantage to either party. This was the procedure adopted by Chairperson Ratushny (who is also a Vice- Chairperson of the Grievance Settlement Board) in Ontario Human Rights Commission anal Abany v. North York Branson Hospital and Hill 9 CHRR D. 4975. In conclusion, when one looks at the interests of expedition and fairness as they relate to the circumstances of this particular case, it is proper that the Union be able to present its motion for a non-suit without the requirement of having to elect as to whether or not to call evidence, on the understanding that if the Board dismisses the motion, it shall do so without written or oral reasons. As previously agreed bythe parties, this case shall reconvene on March 2, 1990, at ]t~:00q.m. to argue the non-suit motion only. DATED at Toronto this 27 day of February,' 1990. BA~S'HER - ¥i ce-£ha~ rperson / E. Seymour - Member H. Roberts - Member