HomeMy WebLinkAbout1991-0547.Blomme.92-08-31 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARIO
BOARD DES GRIEFS
DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G ;~ZB TELEPHONE/TELEPHONE:
547/91
under
~ C~ ~~B8 COL~CT~ ~~NZHG
BofoEe
O~S~ (B~onme)
- ~ -
T~e Cro~ in Ri~h~ of
(M1nist~ of Housing)
~p~oye=
I. Thomson Me, er
D. ~ugha~y M~er
:FOR ~ I. Anderson
GRIEVOR Counsel
Scott & A¥1en
Barristers & Solicitors
FOR THE P. Young
~MpLOYER Counsel
Wtnkler, Filion & Wakely
Barristers & Solicitors
HEP~ING Ju~e 4, 1992
1
~COND INTERIM DEC I ~ ION
On February 20, -1992 the Boars rendered an Interim Decision,
following a hearing on December 10, 1991, when counsel for the
Grievor requested an amendment to two paragraphs of a 'document
entitled "Statement of Claim" which :was, in fact, the Union's
statement filed pursuant to a memorandum dated September 16, 1988
from the Chairperson of the Board,' addressed to all Vice -
Chairpersons and Members of the Board, ~relati~g to the filing of
statements with respect to duties and responsibilities in
classification cases.
The position of the counsel for the Union was that the
statements filed by the parti~, as contemplated J.n the
chairperson's memorandum, were voluntary and could not "be said to
give rise to any formal restriction of the scope of the board's
inquiry, and even if it did the board must allow an amendment '
unless to do so would result in a change in the nature of the
grievance." .'
Counsel for the Employer regarded any attempt to amend the
statement as being impermissible. '
The Board took a middle ground, recognizing that the integrity
of the procedure leading to the exchange of statements by the
parties requires some showing of a basis' for allowing the amendment
2
and the withdrawal of an admission.
In the interim-~ecision, the ~oard stated that: "Sometimes the
justice of a case requires that a party be held to an admission.
On Other occasions, where it can be demonstrated that an admission
was as a result of inadvertence or oversight, especially where the
request for amen~h~ent is made prior to the hearing of evidence, an
amendment may be allowed subject to a reasonable opportunity being
given to the opposite party to prepare to meete the position
presented by the amendment."
In looking to the Rules Qf ~ivil Procedure for guidance, the
Board recognized that there are differences between conventional
civil litigation and arbitration but also recognized that, in the
absence of arbitral precedent to guide us, there is no reason why
we ought not to look at how a comparable situation is dealt with in
the courts should that example, subject to necessary adaptation,
prove to be relevant to the situation before us.
The case of Phi~mor D_evelopments_ (Richmond 9ill) Ltd. v.
Steinber~ (1986), 9 C.P.C. (2d) 20; 4 W.D.C.P0 91 (Ont. Master) was
referred to which held that Rule 26.01 did not override Rule 51.05
and that a proposed amendment which amounts to withdrawal of an
admission must be supported by material showing: (1) the proposed
amendment raised a triable issue; (2) the admission was made
inadvertently or the solicitor was wrongfully instructed; and (3)
3
the withdrawal of the admission would not cause injustice to other
parties (it being understood that there is no injustice if the
other parties can be'compensated by costs). The portion of the
judgement that was found to have significance in the case before us
concerns the situation where the admission was made inadvertently
or the solicitor was wrongfully instructed and the withdrawal would
not cause injustice. (See Interim Decision p.13).
In dealing with the right ,of the ~nion to amend paragraph 5 of
its statement, the Board stated at pp..14-15:
Before ruling on the right of the Union to amend
paragraph 5 of its statement it would be necessary for us
to hear evidence so as to be' able to decide whether the
admission was made inadvertently or the then solicitor
for the Union was wrongfully instructed. Even if it is
established that the admission was made inadvertently or
that the sol icitor was wrongful 1 y instructed, the
Employer should have an opportunity of adducing evidence
to show that an injustice has been done to it which
cannot be overcome by granting a suitable delay in order
for it to prepare its case based on the amended
statement, in MachJnefabriek D, Raft & ~.N.B.V. v.
Roberts Wel~ing & ~abri~Dg Limited[ (1985), 7 C.P.C,
(2d) 123 (Ont. Master) the Master refused to permit an
amendment to a pleading withdrawing an admission where a
key witness for the opposing party had become
~ uncooperative,
The Union will have to decide whether it wishes to call
evidence to establish that the admission in paragraph 5
was made inadvertentl~ or that its then solicitor was
wrongfully instructed. We would expect to be notified as
to the intention of the Union in this regard .within two
weeks from the date hereof in order that we-can notify
the Registrar as to the status o~ this matter.
Pursuant to the direction contained in the Interim Decision,
counsel for the Union sent a letter to the Registrar dated March 6,
1992 which is as follows:
4
March 6, 1992
Ms. Joan Shirlow
Registrar_
Grievance Settlement Board
180 Dundas Street West
Suite 2100
Toronto, Ontario
M5G 1Z8
Dear Ms. Shirlow:
RE: OPSEU (Blomme) and The Crown in Right of Ontario
(Ministry of Housing)
GSB File No. 547/91
Our File No. 11785-125
In an interim decision dated February 20, 1992, a panel
of the Boar4 determined that the Union would be precluded
from amending its "Statement of Claim" in this
classification grievance to withdraw an admission unless
it lead evidence to establish that the admission was made
inadvertently or that its solicitor had been wrongfully
instructed. Please have reference to pages 14 and 15 of
the decision of panel in this respect. Please be advised
that pursuant to the direction set out in that decision,
the Union hereby, requests that the Board reconvene the
panel for the purposes of hearing evidence on this point.
I trust that this is satisfactory.
Yours very truly,
SCOTT & AYLEN
When the Board reconvened on June 4,. 1992, Mr. Anderson,
counsel for the Union, prior to any evidence being heard, .indicated
that the Union's continuing participatiqn in the 'hearing was
without prejudice to any judicial review application which it might
make with respect to the Interim Decision. Mr. Young, counsel for
the Employer, objected to any attempt on the part 'of the Union to
proceed to participate in the hearing on the aforementioned basis.
5
The Board indicated its view that in 'the event that the Interim
Decision was the subject of an application for judicial review
brought by the Union', it would be up to the court to decide
whether, in continuing to participate! in the hearing, thE: Union
could still bring the application.
Counsel for the Union also took the position that it was not
limited to the argument outlined in the ~h~lmor case in su~ort of
its position that the admission could be withdrawn. Counsel for
the Employer argued~that the Union was limited to establis:hing a
basis for being permitted to withdraw the admission on the limited
grounds set out in ph~lmo~.
Almost immediately upon couns~ for the Union commencing to
examine the Griewor pursuant to the earlier Interim Decision, an
objection was made by counsel for the Employer based on the fact
that the question~ were sai~ to'go beyond those that the interim
award would permit, i
Counsel for the Union advised thelBoard that it was not his
intention to show that the admission was inadvertent but that the
then solicitor for the Union had been wrongfully'instruct~d~ It was
with respect to what situations might .~e encompassed under
"wrongfully instructed" that a difference arose between the
parties. ~
6
The courts have developed guidelines with respect to the
circumstances when an admission can be withdrawn by a party in the
light of the general philosophy contained in the rules of practice:
those "... that must govern a~y application for leave to amend a
pleading, including an application for a leave to withdraw an
admission in a pleading." See ~ou~d v. Ariss Hol~dge Ltd. et al.;
Attersley Ti~e Service Ltd. et al., third parties (1979), 27 O.R.
(2d) 291 (H.C.J.), at p.295, per Carruthers, Jo, who was referring
to the statement of Wells, J. (as he.then was) in Anderson v. ~ood~
et al., ~1955~ OoW.No 585, at pp.586-3, who referred to then Rule
18~ dealing with the grounds on which an amendment should be
permitted, where the then Rule included a statement that the power
in the court was "to secure the advancement of justice, the
determining [of] the real matter in dispute, and the giving of
judgement according to the very right and justice of the case."
Mr. Justice Wells then went on to state:
It seems to me that the proper rule for making amendments
is that set forth in Mr. Justice Hope's judgement [in
Canada ~ermanent ~ort~ag~ Corpora%io~ v. The city of
Toro~tg, [1951] O.R. 726, [1951~ 4 DLR 587], quoting Lord
Esher, and found at p. 732 "of the report, where it is
said: 'The rule of conduct of the court in such a case is
that, however negligent or careless may have been the
first admission, and however late the proposed amendment,
the amendment should be allowed, if it can be made
without injustice to the other side .... [I]f the
amendments will put them into such a position' that they
must be .injured, it ought not tq be made.'
At the time of Gould, the rule was Rule 185 and Carruthers J.,
at p.295 stated:
That Rule sets out the general philosophy that must
govern any application for leave to amend a pleading,
including an application for leave to withdraw an
admission in a pleading. Whatever else is said about
this type of application must be read and considered in
the light of the provisions of that Rule,
Rule 185 has now be replaced by Rule 2.01 of the ~ules of
C~v~l P~o~e~l~re which deals with the effect of non-compliance.
While the request in this case is not as a result of non-compliance
with the rules any more than it was in the ~ or An~rson cases,
the general philosophy flowing from the rules relating to non-
compliance affects how the rules are.to be applied. The guidelines
that we examined were those that deal~ with the problem before us:
those that would help us to rule on the objection to the withdrawal.
of the admission so as to be able to determine the real matter in
dispute and render a decision "a~cording to the very right and
justice of the ease." We did not intend, any more than the courts
have done in developing the guidelines with respect to when an
admission can be withdrawn, to create a mechanical rule to be
applied without reference to the prejudice that might be suffered
by the Employer, nor to the right and justice of the case.
The guidelines developed by the Courts in Ontario, as above
described, are also referred to in AR~. ipas ~t al. v. Coron~os 9t
aI~ (1988), 26 C.P.C. (2d) 63 (~.C.~.), where Saunders, J., in
reiterating the three tests, above referre~ to, stated at p.66:
The trend over the years has been'towards a more liberal view
of the withdrawal of an admission.~ This attitude is reflected
in r.1.04(1) which aims at a justl most expeditious and least
expensive determination of an issue on its merits.
8
In referring to the inadvertence or wrong instructions test,
Saunders, J. traced the origins of this test to a quotation of
Vice-Chancellor Blake in Wrigh~ v'. ~ay (1880), 8 P.R. 327 (Ont.
Ch.) where he said at p.328:
· .. I think the court should not allow a defendant to
vary his answer unless a mistake or misapprehension is
clearly made out, and some reason assigned for this
existing.
At p.68 of the A~t~pas case, Saunders, J. considered the
competing policies that exist when .a party wishes to withdraw an
admission:
O~ one hand, in the interests of justice, the right of a
party to have an issue tried should not be limited except
in special circumstances. On the other hand, in the
interest of expedient and responsible litigation, a party
should not be permitted to blow hot and cold even if the
other party can be compensated in costs or by an
adjournment. I am troubled by the narrowness of the
second test. The strict application of it could lead to
injustice. It seems to me that the competing interests
can be reconciled by providing that if there is a triable
issue, a party should be able to withdraw an admission
upon furnishing reasonable explanation for the change of
position (see Holmested & Watson. ODtario Civil
Procedure, Vol. 2, P. '51-18).
In my opinion, the learned master applied the second test
in too narrow a fashion. ~e should, in my viewt have
considered under this test the circumstances that led to
the withdrawal of the admission.
The guidelines as developed in conventional civil 1.itigation
can, with adaptations, assist the Board ~n focusing on how the
right and justice in the case before us might best be realized in
deciding whether to allow the withdrawal of the admission. In our
Interim Decison we did not regard it necessary to comment on the
triable issue test as it appeared clear that the factual issue
9
created by the amendment sought was "triable." As to the no
prejudice test, reference is made to the case of Ba~don Corp~ Ltd.
et al. v. d,~Pgnt Glor~ Forgan Canad~ e~ al. (1974), 40.R. I2d) 290
(H.C.J.) where Henry, J., in chambers, referring to that test,
stated, at p.297: I
In effect, by the amendment allowed by the Senior Master
then [to withdraw certain admissions] the other parties
are merely deprived of the advantage they thought they
had by the filing of the statement of defense as
originally framed .... Their advantage is short-lived
and they naturally complain. What was within their grasp
has been suddenly snatched from them, But if one has
regard to the underlying principle of Rule 185, what they
have lost (other than a tactical advantage) is the costs
of pleading to the original statement of defense thrown
away, together with costs of pleading to the fresh
statement of defense if the amendment stands. These are
compensable. The matter would be different if .,. the
plaintiff were prejudiced 'by the intervention of a
limitation, or ... the possibility of making physical
tests of the substance giving rise to the litigation no
longer was available. Thus, where the admission together
with some supervening event attributable to or allowed to
occur by the admission and perhaps coupled with a lapse
of time, irrevocably places ~the plaintiff in a position
from which he cannot extricat~ himself, that injury is of
a kind described as not compensable by an order for
° costs. ~
In cases such as the one before us we are not concerned with
the question of costs, however the no'.prejudice test, absent the
comment with respect to costs, is germane to the question before
We would also note that the test in the Ba~do~ case: "That the
fact admitted is not true" has been dropped in subsequent cases:
see G6u~d v. Ar%~m Hol]idge Ltd. (~). The application to amend
by withdrawing the admission and by the addition of other language
10
to paragraph 5, is interlocutory in nature, and although the
applications to amend in the court cases would be supported by
affidavit evidence and the evidenc'e in support of the application
before us would be v~v~ vote, we see no reason to depart from the
conclusion arrived at in Gould, at p.295:
Fro~ my reading of the authorities, then, it is my
opinion that the Court on an application for leave to
withdraw an admission of a fact or facts contained in a
pleading is not required to be satisfied that such fact
or facts are untrue before so doing. Instead, the Court
should be satisfied that the applicant has demonstrated
through evidence that what is proposed to replace the
admitted fact or facts gives rise to a triable issue.
As noted, above, the Court in Gould then went on to enunciate the
three guidelines that should be examined on an application for
leave to withdraw an admission.
In referring to the second test in our interim Decision, we
did not intend to enunciate guidelines more restrictve than those
developed in the courts to deal with an analagous situation. We
are, therefore, prepared to hear evidence intended to furnish "a
reasonable explanation for the change of position" as it bears on
that test. There was some indication from counsel for the Union
that evidence would be called from the Grievor dealing with his
understanding of what he believed he was doing when he instructed
counsel. We are prepared to hear this evidence and to then rule as
to whether it represents a "reasonable explanation for the change
of position," bearing in mind that we are not concerned with the
truth of the fact admitted.
Even if the evidence satisfies the second test, we will still
have to decide, on any evidence adduced, whether permitting the
withdrawal of the admission would ~result in the kind of prejudice
or injustice referred to in the Baydon case.
At the resumption of the hearing, in addition to hearing
evidence with respect to the Union',s request to withdraw the
admissions contained in paragraph 5~ of its statement, and to
further amend that paragraph, we will' also deal with the Union's
request to amend paragraph 2, as set out at page 2 of the Interim
Decision. We will do so in accordance with our directions
contained at page 15 of the Interim Decision.
It is desirable that the les~-formal procedure followed at
arbitration be retained. This does not mean, however, that the
Board should be unmindful of the harm that can be done, no less in
arbitration than in court cases, where parties attempt to "blow hot
and cold." As relaxed as a procedure"during arbitration hearings
tends to be, fairness to both parties and to the integrity of the
process requires that some rules be developed so that reasonable
restraints are maintained against abuses. The voluntary system of
exchanging statements in classification cases is an.attempt to
overcome the relative lack of disclosure'devices in arbitration
which, in classification cases, can have the effect of greatly
prolonging hearings and of creating a good deal of uncertainty in
coumsel as to how to effectively and efficiently present the
12
position they represent.
In fashionihg some guidelines with respect to the
circumstances when admissions can be withdrawn in arbitration
cases, we have not accepted either of the extreme positions
suggested by counsel for the parties, one of which could undermine
the credibility of the process provided for exchanging position
statements, and the other which could impose a mechanical standard
unrelated to the justice of the case. We ho~e that our further
explanation will enable the p~rties to either agree to the
amendments or to get on with the hearing of such evidence as they
wish to adduce in the light of our further explanation with respect
to the guidelines, where guidelines are necessary, their rationale
ought to be explained, and this .is all we wished to do in our
Interim Decision. In looking to the way in which a similair problem
has been dealt with in the courts, we were not trying to force
arbitration to conform to guidelines developed for use in cour. t. At
the same time, there is no reason why we should have to reinvent
the wheel' just because it was fashioned in the courts.
Dated at Toronto this 31s~ day of
M. Go~ sky