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HomeMy WebLinkAbout1990-1990.Chan.92-10-27 ONTARIO EMPLOYES DE t_A COURONNE CROWN EM~fiOYEES OE /.. 'ONTARfO' GRIEVANCE CQMMISSiON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOAS STREET WEST, SUITE 2. tO0, TORONTO, oNTAI~IIO. MSQ :~Z$ TELEPHONE/TEL~-PHONE: (4 ~6) 32G- 1388 180, RUE DUNDAS QUEST, BUREAU ,2 I00, TORONTO (ONTARIO,h MSG lZ8 FAOSiA"IILE,'T£L--eCOPiE : ,f4 ]6) .725- ]flgE, 1990/90, 2269/90 IN THE M~TTER OF AN ARBITRATION - Under THE CROWN EMPLOYEES COLLECTIVE B/%RGAINING ACT Before THE GRIEV~%NCE SETTLEMENT BOARD BETWEEN OPSEU (chan)~ Gr£evor - and - The Crown in Right of Ontario (Ministry of Education') Employer BEFOR~ N. Dissanayake Vice-Chairperson P. Klym Member D. Daugharty. Member FOR TNB R. Anand GRIEVOR Counsel Scott & Aylen Barristers. & Solicitors FOR THE R. Dunsmore, P. Murray EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors NEARING May 26, 1992 2 Preliminary Decision The Board is seized with two grievances filed by Mr~ Charles Chan, an employee of the Ministry of Education at its Administrative Services Dept. The grievances allege contravention of articles A.1 and 18.1 respectively of the collective agreement. Those articles provide as follows: A.1 Ther~ shall be no discrimination practised by reason of race, ancestry, place of origin, colour ethnic origin, citizenship, cr~ed sex,. sexual orientation, age marital status, family status, or handicap, as defined in section 9(1) of the Ontario Human Rights Code (OHRC). 18.1 The Employer shall cont.inue to make reasonable provisions for the safety and health of its employees during the hours of 'their employment.' It is agreed that both the Employer and the Union shall co- operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and l~ealth of all employees. The hearing into these grievances commenced on May 16, 1991. After dealing with several preliminary and procedural issues, on October 16, 1991, the union's evidence commenced. It called the grievor Mr. Chan first. His examination-in- chief consumed most of October 16, 1991 and continued all day on November 19, 1991. The grievor's cross-.examination and re-examination took a full day on November 26, 1991. On December 2, 1991 the union called three additional witnesses and one more witness was called on December 11, 1991. When the Board reconvened on May 14, 1992, the union sought to adduce in ~vidence a medical report, through its author, Dr. Donald E. Payne, a psychiatrist. Employer counsel strenuously opposed the admission of this report. The Board subsequently provided the parties an opportunity to make full submission on this issue. This preliminary decision deals with that matter. By the time this issue as to the admissibility of the 'doctor's report was joined, the Board had received a substantial volume of evidence relating to the subject matter of the two grievances. However, for the purposes of this decision it is not necessary to review that'evidence. Suffice it to note in very general terms that both the discrimination and health and safety grievances relate to allegations that the grievor was subjected to racial harassment, threats and intimidation and physical assaults at the workplace, and that the employer had contravened the collective agreement by its failure to act. Over the objection of employer counsel, the Board ruled ' that in order to foll~w counsel's submissions and to make an informed decision on the issue of admissibility, it must receive and peruse the medical report in question. This ruling is in accord with the opinion of the Ontario Court of 4 Appeal in Re City of Toronto and the Canadian Union of Public Employees. Local 79, (1982) 35 O.R. (2d) 545, where Blair J.A. observed at p. 557: In this case, however,, co~Lnsel for the Union specifically objected to the statement of Van Camp J. that, for the purpose of making its decision on admissibility of the Moore Report, the Board must give careful consideration to it which necessarily implies that the Board could peruse the report to the extent necessary for reaching its decision. This is clearly the correct method to be followed by the Board in considering admissibility. As a result of this ruling, the Board had the benefit of reading the contents of th~ medical report prior to receiving -the parties' submissions. The report dated May 10, 1992 indicates that Dr. Payne saw the grievor twice, once on December 9, 1991 and again on May 8, 1992. It notes that the grievor was seen by Dr. Payne at union c°unsel's "request for psychiatric assessment regarding'his (grievor's) case before the Grievance Settlement Board." The four-paged typed document sets out what the grievor told the doctor about incidents of harassment, threats, assaults etc. The doctor concludes that the grievor "is suffering from excessive symptoms of anxiety, fear and depression" and goes on to state "It is my opinion that he may have problems providing oral testimony at his hearing because of his emotional upset. Because of his anxiety and difficulty concentrating, he would have increased problems with his memory and could become confused easily. At these times such:' individuals often 5 respond with what comes into their mind first rather than. being able t6 properly think out their responses," Counsel for the union' submits that the evidence in. question is relevant for two purposes. Firstly, it is argued that the impact of the contravention °fthe health and safety and discrimination provisions in the agreement on the grievor's health and self-esteem is directly relevant to the issue of damages. Secondly, counsel submits that "the evidence is relevant to explainMr. Chan's inability to recall events and to testify in'sequence. The Board has to decide his credibility. The doctor's assessment of the very events is relevant in deciding credibility!'. Counsel took the position that even if the Board concluded that the evidence in question is only relevant to the issue of damages, it should hear that evidence now, rather than bifurcate the liability and remedial aspects of the proceeding, because in this case the issue of damages is inextricably linked to the issue of liability. 'The Board was referred to Re city of Toronto (supra); Re Greater Niagara Transit Commission and Amalgamated Transit Union, Local 1582 (1987) 61 O.R. (2d) 565 (Ont. Div. Ct.); REgina v. Hawke, (1975) 70.R, (2d) 145 (Ont. Ct. of Appeal); and R. Abbey, (1983) 1 W.W.R. 251 (S.C.C.). Counsel for the employer points out that the grievor's visits to Dr. Payne both occurred aftgr he had completed his 6 testimony before the Board. He notes that at no time before or d~ring the grievor's testimony was any concern r~ised about an unusual inability to recall or about the grievor's competency to testify. In his vi~ the union is adducing the doctor's evidence in an attempt to bolster the credibility of the evidence already tendered. He submits that it is the role of the Board, as the trier of facts, to decide the credibility of witnesses, and that expert evidence should not be permitted to bolster the credibility of evidence received. Counsel further argues that admitting the report in question is fraught with danger, because it details a number of incidents of coersion and threats as related to the doctor by the grievor, which were not part of the grievor'$ testimony before the Board. The Board was referred to Udv v. Stewart, (1886) O.R. Vol. X, 591 and Lavallee v. Oueen, (1990) 1 S.C.R. 852 (S.C.C.). Counsel conceded that medical evidence may be relevant to the issue of damages, but contended that the remedy aspect of the hearing should be bi-furcated as the Board routinely does in cases coming before it. We do not find much of the case law referred to us to be of relevance in deciding whether expert medical evidence may be adduced for purposes of assisting the Board decide the '7 credibility of the grievor. Those decisions deal with the admissibility of; prior admissions made to the police by an accused (Re Greater Niagara Transit' Commission, supra); a report prepared by a Commission of Inquiry appointed under the Municipal Act (Re City of Toronto, supra); evidence by a psychiatrist about the mental health of a person accused of possession and importing, of cocaine, where the accused had raised the defence of insanity, (R v. Abbey, supra); evidence by a psychiatrist that a woman who had shot her common law spouse to death and had raised the defence of self-defence sincerely believed that she would have been killed that night by the spouse (R v. Lavallee, su_~). Regina v. ~awke, supra, relied on by the union, does contain a discussion' about the admissibility of a psychiatrist's evidence to assist a jury in a criminal trial to assess the credibility of a witness. At p. 165 the Court stated: Whether or not a psychiatrist may be permitted to express an opinion directly on the question of whether a witness is telling the truth in the witness-box, an inability to do so is.no basis for rejecting in total the evidence of the psychiatrists where their evidence relates to the issue as to whether by reason of a mental illness the evidence of the witness may be considered as being unreliable. With respect to the learned trial Judge, I am at a complete loss to understand how it can be said that the evidence of the psychiatrists ' in this case would not have been of any assistance to the jury in assessing the credibility of the witness Arlene Thomas. Counsel for the union relied heavily on this passage in support of his position. However in our opinion the court's , o~servation must be taken in the context of the facts of that case. The accused stood charged with murder, and the major crown witness was a 21 year old woman ~o had a lengthy history of mental illness, and who was with the accused throughtout the events giving rise to the charge. The defence sought to call expert testimony from a psychiatrist to the effect that the witness had a lengthy history of mental illness, including treatment at psychiatric facilities, and that the illness resulted in misconception of reality, diminution of judgement and ability to recount, and active hallucination under stress, and that the witness imagined that a person lived in her head. The purpose of the testimony was to show that the witness was not competent to testify and that any evidence she might adduce is not reliable. The trial judge, for a number of reasons refused to admit this evidence. The Court of Appeal concluded that the trial judge did not direct himself on the issue as to the co~mpetency of the witness and appeared to confuse the question of competency with that of credibility and held inter alia that the refusal by the trial judge to receive the psychiatric evidence as to the competency of the witness was a denial of a substantive right of the accused. The court went on to make the observation, in our view by way o~ obiterdicta, about expert evidence as to a witness' credibility, which is contained in the passage reproduced above. In Hawke, the purpose of the evidence was to question the competency and reliability of the witness because of a lengthy history of serious mental illness which would affect her mental capacity beth at the time of her observation of the alleged murder, as well as at the time of the giving of testimony. The accused was seeking to adduce expert testimony challenging the competency and reliability of a witness called by the opposing party, the crown. In contrast, here the union does not claim that the witness (grievor)' is incompetent to testify. Nor does it take the position that his evidence is unreliable. Quite to the contrary the purpose of the proposed evidence is to convince the Board that the testimony given by the grievor is credible. Union counsel is seeking to call expert evidence to support the credibility of his own witness. A case more analogous to the one before us is Regina v. S.R and D.R, (19.92) 80.R. (3d) 679 (Ont. Ct. of Appeal). There the co-accused, the mother and step-father of the child complainant were convicted at trial of sexual abuse. The accused appealed on several grounds. One ground of appeal was that a psychologist and a Children's Aid Society worker were allowed to express their opinions to the effect that the complainant's story was a credible one. In that case the 10 Children's Aid Society worker had directly given an opinion in evidence that she believed the complainant's story. The psychologist had not given such a direct opinion, but Galligan J.A. concluded that he was certain that the psychologist's testimony would have given the jury the impression that he believed the complainant's story. The learned judge concluded at p. 683: "The jury was told by two professionals that they believed the story told to them by the complainant. It appears that the purpose of that evidence must have been to bolster the credibility of the complainant. I am satisfied that must have been its effect." Galliga~ J.A. ~ent on at pp. 683-84: Parts of the testimony of the psychologist and the Children's Aid Society worker would have been admissible to show that the complainant exhibited certain psychological and physical conditions consistent with sexual abuse. However, evidence about their belief in her credibility was inadmissible because it offended the rule against oath-helping. Speaking for the majority of the Supreme Court of Canada in R. v. Beland (1987) 2 $.C.R. 398, 36 C.C.C. (3d) 48i, at p. 408 S.C.P., p. 489 C.C.C. McIntyre J. said: ...the rule against oath-helping, that is, adducing evidence solely for the purpose of bolstering a witness' credibility, is well grounded in authority. In R.v.J. (F.E.) (1989), 53 C.C.C. (3d) 64, 74 C.R. (3d) 269, this court held at pp. 71-72 C.C.C., pp. 275-76 C.R.: I think it should now be accepted by this court that properly qualified ,~xpert opinion evidence about the general behaviourial and psychological characteristics of child victims of sexual abuse is admissi61e for certain 11 purposes. It would violate the rule against oath-belpin~ if a witness were allowed to express an opinion about the credibility of a particular witness. That principle was recently affirmed by the Supreme Court of Canada in R.V.B. (G.) (No. [1990] 2 S.C.R. 30, 56 C.C.C. (3d) 200, where, in giving the judgment of the court, Wilson J. said at p. 39 S.C.R., p. 207 C.C.C.: Wakeling J.A. was careful to point out, however, that the expert evidence should not be used to bolster the qredibilitv of witnesses or indicate that they should be believed since credibility is a matter exclusively reserved for the trier of fact. (emphasis original) , In his report Dr. Payne does not offer a direct opin%on that he believes the grievor's allegations of harassment, threats and assaults. However,. to the reader it is clearly implied throughout the report that that is the case. Thus for example, after referring to the symptoms of anxiety, fear and depression the doctor states: "His symptoms are consistent with his history of prolonged verbal harassment and physical assaults. There is no other cause that I am aware of in his life which would have produced these symptoms." Counsel for the union has expressly stated that one of the purposes of calling the expert evidence is to explain and 12 dispel any concerns the Board may have about the credibility of the grievor's testimony. In other %~rds, the expert evidence is being called for "the purposes of bolstering a witness' credibility", a purpose held by the Supreme Court of canada in R. v. Beland, referred to.in' the passage from Re~ina v. S.R and D.R, reproduced above, to be not permitted. While we have referred to legal principles applied by courts of law as to admissibility of expert testimony, we recognize that we are not strictly bound by thos? principles. We agree with union counsel that the Board should not fetter itself by adhering to technical legal rules. This Board is entitled to consider the relevance and evidentiary value of the proposed evidence and exercise its discretion to admit it and attach whatever weight it may deem appropriate. Indeed, this is what is urged Upon us by the union. However, having carefully considered the situation as a whole, we' have concluded that it is not appropriate to exercise our discretion to admit the evidence in question in this case. Any witness' memory and recollection may be affected by the passage of time. In addition to the effect of fading memory due to passage of time, a witness' ability to clearly recall events and testify in sequential and orderly fashion may be affected by his or her own personality. Some people remember past events more clearly than others. Some 13 witnesses get nervous and anxious in the witness box. This can cause confusion in the witness' mind and affect his or her ability to testify clearlY. Some witnesses express' clearly while others do not. However these are not remarkable or unique events. The Board faces these situations in practically every case. The Board must in each case determine whether or not any confusion or inability to clearly testify exhibited by a witness is indicative of a lack of credibility. The grie~or testified over a period of three full hearing days. He was testifying about event~which occurred over a period of time several years earlier. There was no- issue raised by anyone at any time as- to the competency of the grievor to testify. Nor did we observe the grievor experiencing any extreme~confusion or inability to recall, which would cause us to believe that he had a peculiar problem during testimony, beyond the problems any witness may experience in recalling past events and articulating them clearly. In all of the circumstances we are of the view that the expert evidence offered is unnecessary and not useful in determining issues of credibility of the grievor's testimony. We are Satisfied that the credibility issues can be determined by the Board in this case, as it does in practically every other case where witnesses with various aptitudes for clear recollection and articulation testify. 14' Therefore we have no reason to not adhere to the rule against the use of expert testimony to bolster the credibility of a witness. In the result, it is the Board's ruling that the expert testimony will not be admitted for the pur~ose of addressing the credibility of the grievor'$ evidence. We find, and the employer has conceded, that psychiatric evidence may be relevant to the issue of damages. However, we have not been persuaded why this particular case is any different from other cases of similar nature, which would cause us to depart from the Board's practice of routinely bi- furcating issues of liability from issues of remedy. Indeed in this case there are convincing practical reasons for following the established practice. The issue of remedy arises only if liability is found. Therefore, it would not be efficient use of time and resources to hear evidence and submissions on issues of damages, before liability has been found. Furthermore, in this case damages is not' the most significant aspect of the' grievor's claim for relief. The grievor has claimed a modest $ 5,000.00 in damages in each of the grievances for mental anguish. The employer has indicated that it will challenge the Board's jurisdiction to award damages for mental anguish. That issue will likely give rise to lengthy and sophisticated legal argument. 15 Furthermore, it is not beyond the realm of possibility that the parties will ~e able to resolve issues of remedy, if the Board makes a finding of liability. While there may be some extreme cases where there is an overlap in the evidence that goes to issues 'of liability and remedy, where it~ may make sense to deal with both issues at the same time we are. satisfied that this is not one of them. These grievances were filed two years ago. The hearing commenced in May of 1991 and despite several days .of hearings the union's evidence is yet to he. completed. The next hearing dates are in November 1992. We face the prospect of many more days of hearings in the future. We see no necessity to complicate and delay matters further by hearing evidence and submissions on issues of remedy at this stage. Union counsel also submitted that in cases such as this where allegations of racial' harassment and unsafe working conditions are at issue, medical evidence as to the injuries suffered by the grievor is relevant to the issue of liability in-that such evidence may be of assistance to the Board in determining whether the alleged harassment or exposure to unsafe working conditions occurred. We agree that in certain circumstances that may be so. For example, medical evidence may assist the Board in determining whether an employee has been exposed to radiation or to noxious substances, which in turn may be relevant to the issue of the empioyer's liability. However, this is not such a case. Here, the employer has not taken the position that the grievor was not subjected to any harassment or physical assaults. Indeed, some of the alleged incidents are. a matter of record in that the perpetrator has been convicted by the criminal courts. While there may be'some dispute as to 'the nature or seriousness of some of the alleged incidents, the real issue in this case is whether the employer took reasonable action when the grievor complained. If the Board finds that the grievor was .subjected to assaults and i~arassment in the workplace, we do not require expert evidence from a psychiatrist to find that such a work environmemt causes stress and mental anguish in an employee. Where such evidence will assist is in determining the extent of the impact such a situation had on the particular grievor. That is a matter that is more appropriately dealt with in the remedy part of this'proceeding. The result of the foregoing is that the Board will not permit the proposed evidence to be called at this stage of the proceeding. This ruling will not preclude the union from seeking to.adduce this or any other expert evidence, if and when a hearing is convened to address issues of remedy. Dated thi~ ~Tth day of October, 1992 at Hamilton, ontariO. vice. Chairperson p. Klym