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HomeMy WebLinkAbout1992-3155.Howe,Dalton.Loach.95-05-23 \ --.....' - -., ~ ; -;-: \ -~ "- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO . (.f- ilII GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS { 180 DUNDAS STREET WEST SUITE 2'00, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/T~L~PHONE (416) 326-1388 ~,_.,...!~g,.,~prp.Y~DAS Oyg.~.m.t!ilEAU 2100, TORONTO (ONTARIO). M5G lZ8 FACSIMILE ITEL~COPIE (416) 326-1396 R~rt\cIV~D . .~. 'f~ ~rI -. .. ~ ~~~~".-,;;;o,~ . ~ GSB # 3155/92, 643/93, 656/93, 2168/93 MAY 2 5 1995 OPSEU # 93A242, 93D868, 93D869, 93D905, 94A038 PUBliC SERVICE IN THE MATTER OF AN ARBITRATION APPEAL BOARDS - Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Howe/Dalton/Loach) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE: N. Dissanayake Vice-Chairperson T. Browes-Bugden Member M. Milich Member FOR THE B. Symes GRIEVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE L Marvy EMPLOYER Counsel I Legal Services Branch Management Board Secretariat I HEARING January 10, 11, 24, 25, 26, 1995 February 7, 8, 22, 23, 24, 1995 I March 6, 7, 1995 I April 19, 26, 1995 'fei ;~ 2 INTERIM DECISION The Board is seized with five individual grievances filed by three female grievors. While the grievances raise several aspects and issues, for the purpose of this decision it suffices to observe that the grievors have alleged that they were subjected to .sexual harassment and sexual discrimination at work. During the union's case, the union presented as an expert w~tness Dr. Maeve W. McMahon. The employer challenged her qualifications to tender the proposed opinion evidence. The Board heard testimony from Dr. McMah0n, and submissions from the parties based on that evidence, as to whether she was qualified to give the proposed opinion evidence. Subsequently on April 22, 1995 the following ruling was sent to the parties via facsimile: The union tendered Dr. M. W. McMahon as a qualified sociologist and criminologist, and a renowned academic, for the purpose of giving opinion evidence on the following: "Employment of women correctional officers in male institutions in ontario, the problems women correctional officers face, including discrimination and harassment, the responses of the Ministry and its policy initiatives to these issues, whether women correctional officers at the Haileybury Jail have experienced discrimination and harassment, the impediments to reporting harassment and discrimination, and as to what steps are necessary to effect real change at the Haileybury Jail and how properly to respond to what happened to end discrimination and harassment". -oj '" 3 On the basis of the evidence, we have no hesitation recognizing that Dr. McMahon is an accomplished and well recognized academic. She may also qualify as an expert with respect to certain aspects in corrections, such as penology issues However, the majority of the Board, with the union member dissenting, rules that the witness does not meet the test to be qualified as an expert to give opinion evidence on the proposed issues. Neither party requested written reasons for the ruling. However, in light of the attached dissenting opinion issued by the union board member, written reasons for the majority decision are warranted. Dr. McMahon holds the degrees of B. Soc. Sc. (Sociology and Social Administration) from University College, DUblin, (1977); M.A. (criminology) university Toronto (1983); and Ph.D. (Sociology) University of Toronto (1988). Dr. McMahon's employment history is set out in her resume under the headings of (1) teaching employment (2) policy employment and (3) research employment. Her teaching employment record, consists of the following: 1979-81 Tutor at University college, Dublin in Social Policy; 1989 Visiting guest lecturer (6 lectures) at the University of Oslo Institute of Criminology on Imprisonment and Alternatives, the following Teaching Assistantships at university of Toronto, Mass , ( .; 4 Media and Communications and Urban Socioloqy (1982-83) , Introduction to Criminoloqy (1982-84), Historv of Social Theorv (1987-88); undergraduate lectures in the summers of 1990 and 1991 at Woodsworth College on Introduction to Criminoloqy and graduate lecture in 1982 on Penology at the University of Toronto Centre of criminology. In 1993 Dr. McMahon received an appointment to her present position of Assistant Professor at Carleton University, but immediately took a one year leave of absence and undertook for that period an assignment as Visiting Associate Professor at Vilnius University in Lithuania teaching Introduction to Criminoloqy and Qualitative Research Methods in Sociology. currently she is back in her position at Carleton University teaching Criminal Law in Context, criminal Justice Reform and Law Crime and Social Order. Dr. McMahon's "policy employment" consisted of the following In 1990-91 she served as policy advisor to the Ontario Minister of Correctional Services for seven months on secondment from the University of Toronto. In 1991-92 she was Executive Assistant to the ontario Solicitor General and Minister of Correctional Services for seven months again on secondment. In 1993-94 she was the Baltic Academic Coordinator for the Civic Education Project of Yale university and the Central European University in the Czech Republic. Dr McMahon's "Research Employment" consists of a Research Assistant position in Dublin dealing with Homeless youth in Dublin .;!I \. ;- 5 .- in 1978-79, a further four month Research Assistantship in 1979 in Dublin relating to Younq offenders in Ireland, and co-Principal Investigator (part-time) at the Uni versi ty of Toronto Centre of criminology, examining sentencing and corrections in Ontario. In addition, Dr. McMahon received several scholarships and awards and has numerous publications to her credit. Under cross-examination, Dr. McMahon testified that her masters thesis dealt with police Reform in Ontario and that her doctoral thesis was on "Imprisonment and Alternatives". She agreed that neither thesis had any relevance to the issues in this case although she suggested that she dealt with harassment of citizens by the Police in her masters thesis. As for her current teaching courses, Dr. McMahon c.onceded that none of the courses have the three issues of sexual harassment, sex discrimination or employment equity as the focus or the core theme. However, she testified that her "Criminal Law in Context" course included one or two lectures a year dealing with equity and discrimination issues and that in the other courses students are required to read articles on topics such as women working in Police and Corrections and racism in corrections, and that therefore issues relating to sexual discrimination, sexual harassment and employment equity may arise. ... , .- 6 With regard to her Research Employment, Dr McMahon agreed that her Baltic Academic Coordinator position had to do with Education Reform and therefore unrelated to the 3 issues She testified that as Executive Assistant to the Minister of Correctional Services she was involved in political and policy issues dealing with corrections. However, she did not testify that such involvement had anything to do with the 3 specific issues relating to women working in prisons. As policy advisor to the Minister of Corrections also, she dealt with senior civil servants on corrections issues. But she did not testify that she had occasion to deal with any of 3 specific issues. The most she could state was that the policy advisor position was a political job and that from time to tim.e employment equity issues relating to the Police arose. Dr. McMahon agreed on cross-examination that she had not held any job which had as its focus, the issues of sexual discrimination, sexual harassment of employment equity, either as it related to female employees in corrections, or even generally. She also agreed that the same was true of all of her publications, although she qualified it by stating that issues of discrimination harassment and equity "arose" virtually in every one of her publications. When asked for examples, she pointed out that one article dealt with discrimination against Russians in Lithuania and the torture of Lithuanian women by the Soviet Government, and that .. ~ -. 7 a book she published dealt with police discrimination against racial groups. Dr. McMahon testified that in October 1992 she co-presented a workshop on "Dangers for Women Working in Corrections" at the Annual Research Forum of Corrections Canada in Kingston, ontario to 16 participants from Corrections Canada. The other co-presenter was Ms. K.H. Moffat, a doctoral student at the University of Toronto. She admitted that Ms. Moffat's doctoral research was on women inmates and not women employees in jails. Dr. McMahon testified that together with Ms. Moffat she surveyed the published material relating to women working in jails. She stated that there was little literature relating to women working in Canadian jails, but that there was a body of literature relating to American jails which she was able to review. She also reviewed reports on surveys conducted by Corrections Canada relating to Federal jails in the Ontario, prairie and Atlantic Regions, even though she agreed that they were not academic writings. Dr. McMahon testified that the presentation was made to 16 participants at a breakfast meeting which lasted about two hours. A month later, Dr. McMahon and Ms. Moffat used the same material to co-present a paper titled "Experiences of Women Working in Corrections" at a Conference of the Women's Advisory Group to the Correctional Service of Canada, in Kingston, ontario. The conference was attended by 200 to 300 persons working for Corrections Canada Subsequently Dr. McMahon applied for teaching positions at a number of universities. As . ~ 8 part of her job competition process she had to make a presentation. She testified that her presentations at two of the universities were on the topic of women in corrections. Based on the candid evidence of Dr. McMahon and a review of her resume, there can be no doubt that the focus of her professional and academic life has been the reform of police and correctional systems. Her interest with regard to corrections, as evidenced by the many publications and presentations she had made, has been the reform of the penal systems, primarily, the alternatives to incarceration. The focus was on the inmates in the correctional systems and not employees. She candidly admitted that it was only recently that she "began to look at the issue of women working in male institutions". The o~inion evidence proposed to be adduced through this witness has been set out in the rUling of the majority reproduced above. It is evident that she is called upon to give very specific opinions on a number of specific issues which are directly before the Board in this case We fully endorse the quotation from the Supreme Court of Canada in R v. Mohan set out in the union member's dissenting opinion As the court points out an expert witness (a) Must have acquired special or peculiar knowledge (b) That special or peculiar knowledge must be acquired through study or experience and most importantly (c) that special or peculiar knowledge must be on the "matters on which he or she undertakes to testify" . 9 Dr. McMahon has never testified as an expert before She has taught at a university on a full-time basis only for one year Her teaching has not dealt with women working in corrections at all. Nor has her teaching focused on sexual discrimination, sexual harassment or employment equity even generally. Similarly, none of her publications deal with women working in corrections While some of her work dealt with types of discrimination (eg. against Lithuanian women by the soviet State, against racial groups by Police forces in Canada) that has little or no relevance to sexual discrimination against women working in corrections. While she was involved in policy issues as Executive Assistant and Policy Advisor to the Minister of Correctional Services, in either capacity she had no involvement in policy development relating to women working in corrections specifically or issues relating to sexual harassment or sex discrimination She candidly testified that the Bell Cairne Centre issue did not corne to her attention at the time, and further that while she was aware that the Ministry was developing its WDHP pOlicy, she had no involvement in that regard. It is undisputed that Dr McMahon has no "experience" on the issues she was called upon to testify about Therefore any special or peculiar knowledge she obtained on the issues of sexual discrimination, sexual harassment, and employment equity issues relating to women working in male institutions, must have been acquired through "study" However, Dr. McMahon frankly admitted that it was only recently that she had "begun to look at women . ~ .. 10 working in jails". Her first involvement was in preparation for the October 1992 workshop That involved a review of the available literature Based on the review of literature she made part of the presentation at a 2 hour workshop to 16 people. Even then, she admitted that the Canadian literature on the issue was extremely thin. A month later, she used the same material to present a paper at a conference. That review of the literature, followed bY the two presentations has been the onlY direct involvement Dr. McMahon has had on the specific issues about which she was to testify. She testified that she hoped to continue her research into the issue and publish her work, but admitted that at the present time she did not even have a draft manuscript, and that pUblication will take several years of more work As the union claims, Dr. McMahon may well be an outstanding scholar, who is recognized internationally. However, her scholarly pursuits and achievements have been for most part in areas which have little or no relevance to the very specific areas about which she has undertaken to testify Her very limited work to date in those areas in our view does not qualify her to adduce opinion evidence which would be of assistance to this Board in determining the issues before it .'" ( 7' 11 Dated -this ,2>3rd day of May, 1995 at Hamilton, ontario. ~~o:--Z N.Dissa ake Vice- Chairperson "I Dissent" (See dissent attached) TBrowes-Bugden Member c:LJ.JiliY M. Milich Member .- .. \ \ ? GSBIt 3155/92, 643/93, 656/93, 2168/93 OPSEUff 93A242, 930868, 930869, 930905, 94A038 OPSEU (Howe/Dalton/Loach) and The Crown in Right of Ontario (Ministry of Correctional Services) DISSENT ================================================================= I must dissent with regard to the majority ruling that Dr McMahon, who is a sociologist and criminologist, is not an expert in Corrections and is not entitled to give opinion evidence of the systemic problems faced by women correc~ional officers working in male institutions In di~f ining a properly qualified expert, the Supreme Court of Canada in R. v. Mohan (1994) 2 S.C.R. at page 25 state the following Finally the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify Dr McMahon began workin3 twenty years ago as an academic ard researcher in the fields of Sentencing and Corrections Dr McMahon completed her doctorate in 1988 from the University of Toronto, and in 1992 the University of Toronto press published her book, "The Persistent Prison? Rethinking Decarceraticn and Penal Reform" Currently, Dr McMahon is a faculty member of the Department of Law at Carlton University She has established an international reputation as a reformer in the field of Corrections She has been awarded the most prestigious academic f e 11 OvlS hip, a ., . ~ I ( ~. - PagE; 2 _. Canadian Research Fellowship, for three years at the Centre of Criminology at the University of Toronto She has published extensively in referred journ"\ls Dr McMahon was seconded in 1990 to 1992 to be the Policy Advisor to the Ministry of Corrections and then oto Executive Assistant, that is the Chief-of-Staff, to the Solicitor General and Minister of Correctional Services for the province of Ontario During her secondment, the government passed the employment equity amendments to the Police Services Act and drafted regulations and guidelines to implement this pioneering legislation In 1992, Dr McMahon, together with a graduate student, Kelly Hannah Moffat, began a research project They were invited by the Correctional Service of Canada to present a vlOrkshop entitled "Dangers for Woman Worring in Corrections" at the Fourth Annual Research Forum Dr McMahon was then invited to present her research to a Conference of the Womens' Advisory Group to the Correctional Service of Canada She has given numerous presentations both in Canada and in Europe Dr McMahon is recognized as one of the few Canadian academics working in this area Therefore, I have no doubt Dr McMahon, 35 an academic has through speci31 stuJy and research in the field af Correctian2 acquired th~ special knowledge of the problems women correctional officers face worYing in prisons for men Dr McMa~on should be entitled to give her opinion evidence in this matter .. T Browes-Bugden Union Nomlnpe ~ , I ,,~:-- ...,., .... -.... ...' , , :: -; .,'~, ,'~;;; ',. '''-' ~ ONTARIO EMPLOYES DE LA COURONNE '::t:. ;:. c,:' , :'; :.: ;;: CROWN EMPLOYEES DE L 'ONTARIO i:; . ..,''-,. -', GRIEVANCE COMMISSION DE 1111 SETTLEMENT . REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO ONTARIO. MSG lZ8 TELEPHONE/TELEPHONE: (416) 326-7388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILE /TELECOPIE (416) 326-1396 September 27, 1995 AMENDMENT RE 3155/92, 643/93, 656/93, 2168/93 OPSEU (Howe/Dalton/Loach) and the Crown in Right of ontario (Ministry of Correctional Services) Please attach the enclosed Dissent of Mr M Milich to your copy of the above noted decision () '. L stickland Registrar LS/dbg Encl . I I . l ~ Dissent in the matter of OPSEU ( HowelDalton/Loach) and Ministry of Correctional Services Having reviewed the interim decision in this matter, I find that I cannot concur wjth my colleagues 'would have excercised the jurisdiction and ordered Ms. Howe to submit to a psychiatric examination as requested by the employer While there are differences between the cases, the parallels between this case and Wilson are, in my view, competling. Both grievers put their mental state in issue claiming that their depression was a result of their work environment. The time frames are similar Ms. Wilson went off work in August, 1992, while Ms. Howe did so in November, 1992. The issue regarding a psychiatric examination in both cases arose during arbitation hearings some three years later The key differences between the cases are that Ms. Wilson returned to work in June of 1993 while Ms. Howe remains off work. As well, Ms. Wilson brought her complaint forward as a health and safety grievance while Ms Howe's grievance is one of sexual harassment. The nature of a case does not change or atter the criteria or pnncipJes applicable to the detennination of whether an order for the grievor to submit to a medical or psychiatric examination is appropriate. In short, the governing principles are the, same regardless whether the case arises out of a health and safety grievance or one of sexual harassment. If I undestand Wilson correctly, there are three principles Firstly, thegrievor must have put hisJher physical or mental state in issue The Board must then be satisfied that the past or present state of the grievor's health is in issue in the proceedings, and, finally, that as ~ ~- I . ~ such could properly be subject to expert eVidence based upon an appropriate examination by an expert. There is no question that the case before us meets these criteria. This is not a case where the employer or third parties made an issue of the griever's mental state Ms Howe did so herself and. in the process detailed her problems as did her treating psychiatrist. By putting her mental state in issue, the grievor has diminished the degree of intrusiveness that such and examination would otherwise have, and, therefore, cannot be as telling in the balancing of interests that my colleagues have undertaken. Having forayed out that door the grievor cannot now retreat behind it for the fun scope of its protection. The purpose of ordering such examination is to ensure a fair hearing to all parties concerned in the current proceedings. Stating that such an order may have a chilling effect on the remedies sought in Mure cases is akin to the floodgate arguements that board's of arbitration have rarely if ever supported. The fact that a remedy may not be easily achieved does not necessarily translate into a relunctance to bring forward a complaint or to request the remedy Further in balancing the interests of the parties in teons of remedies, it should be borne in mind that the remedies sought in this case range from individual and systemic remedies to the dismissal of two management employees. These circumstances must also be taken in oonsideraUon in determining the appropriate balance required to ensure a fair hearing. Nor, can we assume that such orders would become routine in these cases. Wilson sets out clear and cogent criteria which must be met before an order is contemplated. As in Wilson, we cannot definitively assess the potential weight or usefulness of the examination at this time. The Board in Wilson faced with similar circumstances with respect to the time frames, changed circumstances, and treatment was uncomfortable with prejudging the possible outcome or value of the evidence that such an examination might generate. I have the same 8, . ,. > ~ . misgivings in this case and would have followed the example set by the Board In Wilson, As I understand it, the rule in Qrowne V$. Dunn is meant to ensure a fair trial It is not meant to create a situation unfair to either party As a board of arbitration, we are not required to follow the rule blindly We have the authority to establish our own procedure to ensure that a fair hearing is held RecaJling Dr Bell in rebuttal, while perhaps inconvenient, is certainly not unfair tn fad, it may even enhance the faimess of the proceeding since the grievor and her counsel would have the beneit of hearing the expert's ,evidence and preparing accordingly before Dr Bell is called in rebuttal. For these reasons, I would have ordered that the grievor to submit to a psychiatric examination by an independent expert. ~d~U~'X Michael Milich . I ~, r. ( ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO -'" _II GRIEVANCE COMMISSION DE ~. . SETTLEMENT REGLEMENT -. . - BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON. M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUR.EAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 _," --~~~4lI&t_ RECEIVED GSB# 3155/92, 643/93, 656/93, 2168/93. MAR 1 6 1995 OPSEU# 93A242, 93D868, 93D869, 930905, 94A038 PUBLIC SERVICE IN THE HATTER OF AN ARBITRATION APPEAL 60ARDS Under ~ , THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before '" , THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Howe/Oalton/Loach) Grievor - and - The Crown in Right of ontario - (Ministry of Correctional Services) Employer BEFORE: N. Dissanayake Vice-Chairperson T. Browes-Bugden Member M. Milich Member FOR THE B. Symes GRIEVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE L. Marvy EMPLOYER Counsel Legal services Branch Management Board Secretariat HEARING January 5, 6, 1995 -. - - ~ ,. 2 . ~ DECISION This decision deals with a motion brought by. th~ employer J. for reconsideration of a previous interim decision of the. Board dated October 11, 1994. The following background forms , the basis for this motion. The Board was seized with five individu~l grievances filed by three female qrievors. In the interim decision (with '.~ ,. the employer member dissenting) at pp. 3-4 the Board set out the nature of the dispute before it as follows: No evidence was called at this stage of the proceeding. Union counsel set out the foregoing factual background in very general terms, and informed the Board that the union will be taking the position that as a direct result of the conduct of Mr. Erickson and Mr. O'Donnell, both of whom are members of management, a poisoned environment has been created at the Haileybury jail. It is alleged that the employer contributed to the continuation of the poisoned environment by failinq to take appropriate ~ction in response to the grievors' . complaints. In these grievances the .union contend'S that the investigations conducted, as well as the action taken in response to the investigation results were so inadequate that the employer has thereby failed to comply with its obligations under article A and/or article 27".10 of the collective agreement. The parties mutually requested the Board to rule upon a dispute between them as to the scope of the Board's remedial juri'sdiction in the event the grievances are upheld. The Board was advised that the union will be seeking, inter alia, a direction that the employer take specific action against Mr. Erickson and Mr. O'Donnell, namely, that they be transferred or discharged. The issue between the parties was whether the Board had the jurisdiction to make such a remedial order. Employer counsel assured the Board that Mr. Erickson and Mr. O'Donnell received notice of this proceeding and that both had indicated that they did not wish to 'J ( .. 3 participate in the hearing on the issue of the Board's remedial jurisdiction However, the parties felt that it was necessary to obtain a r4ling from the Board ,on this issue prior to hearing the merits of the grievances, so that Mr. Erickson and Mr.. O'Donnell would be able to make an informed decision. whether to participate .in the hearing with their own counsel as affected third parties. The Board having agreed to the parties' ,. request, the issue to be determined was framed as follows: , Does the Grievance Settlement Board have " - , ~ jurisdiction to direct the employer to take any specific disciplinary action against a member of management, as a remedy in a sexual ha1;'assment /discriminatlon grievance? The Board's decision is summarized at pp. 22-23 as follows: To summarize then our decision flowing from all of the foregoing, we find that, if based on all of the evidence the Board concludes that it is ~ absolutely necessary to direct the employer to take specif ic disciplinary action against a member of management, i'norder to reme,dy a grievance, it has the jurisdiction to do so. Because such an order is absolutely necessary, it is remedial in nature, and within the Board's jurisdiction. The fact that such an order may have the incidenta! resul t of penalizing the member of management, and of encroaching into areas reserved to tlle employer as exclusive management rights, does not mean that the Board must decline to exerci~e its authority to remedy a violation of the collective agreement found to. exist. The other side of the coin is that if the Board is satisfied that other remedial orders can reasonably be expected to provide full redress, the direction of specific discipline takes the flavour of a pqnitive direction which will be beyond the jurisdiction of the Board. Then it is also an unauthorized usurpation on the part of the Board of the management's exclusive functions \ ~ ,... - 4 . . Having regard to the reasons the parties sought a ruling on this issue, the short answer is that the Board has jurisdiction to direct the removal of a harasser through a tra,nsfer or discharge, if the Board concludes on the basis ,of the evidence that the particular order sought is absolutely necessary to finally and effectively remedy these grievances. ~ At the hearing that led to the foregoing interim decision, the employer counsel was Ms. Anna Gulbinski. At the , hearing into the merits, Mr. Leonard MarVy ( "employer counsel It) replaced her. The hearing into the merits commenced on October 14, 1994 and was continued on October 27, 1994. At the commencement of the next hearing day November 15., 1994, employer counsel made the present motion that the Board should reconsider its interim decision dated October 11, 1994 and rehear arguments on the issue. ~ .- Empl6Y$r counsel submitted that the, Board should permit him to re-argue the issue that was the subject of the interim decision, -because ih his opinion relevant legislative provisions which had a bearing on the extent of the Board's remedial juris4iction had not been brought to the attention of the Board. Counsel contended that at the previous hearing relevant provisions in the regulations under the Rublic Service Act had not been brought to the attention of the Board More importantly, he submitted that his predecessor counsel had made her submissions on the basis of the Crown ~ 5 Employees Collective Bargaining Act (lithe old Act") It was his ~iew that these grievances, which were filed between November 26, 1992 and April 19, 1993, ought to have been governed by Bill 117, (lithe new Act"), which received Roy~l Assent on January 19, 1994. Counsel sub~itted that the Board should tak~ the unusual action of rehearing the jurisdiction ~ issue in these circumstances, where the Board had ~ot had the benefit of legal arguments based on applicable legislation , which had a direct impact on the very issue the Board wa~ called upon to decide. Once employer coun~el made this motion, the parties agreed that the Board should hear submissions on the motion and make a ruling, while the hearing into the merits (which the parties estimate will require about 30 he~ring <;lays) continued. At the hearing convened on January 5 and 6, 1995, . the parties mad~ extensive submissions on ~ number of complex issues. Counsel gave their interpretations of the transition prov~sions of Bill 117 and whether that Act or the old Act applied to these grievances. If the Board conc~udes that the old statute governed, the parties disagreed as to whether or not the Board was functus officio with regard to the remedial jurisdiction issue it had determined in its interim decision. If the Board concluded that Bill 117 applied, the parties disagreed as to the effect of that legislation on the Board's remedial jurisdiction. While employer counsel took the < 6 position that Bill 117 would have led the Board to a different concl~sion from the one it made in its interim decision, counsel for the union submitted that the new legislation would not have made any di"fference because in her view that legislation, in fact conferred on the ~oard broader remedial jurisdiction than under the old Act. The parties argued about .. whether the Board had jurisdiction to reconsider or revoke its decisions under either the old or new legislation. Finally, ~ ':-' the parties made submissions on policy consid.erations arid whether in the particular circumstances, the Board ought to e~ercise its discretion to reconsider its decision and rehear arguments, even if it had jurisdiction to do so under the applicable legislation. it must be emphasized that the issue in dispute was ~ agreed upon by the parties and a specific question was put to the Board. The particular proceeding was akin tea stated case. Both parties requested that the Board 'determine an agreed upon question prior to commencing the hearing on its merits. The Board provided full opportunity to both parties to make sUbmissions on the issue in dispute and determined the very question put to it, in its decision dated October 11, 1994. Of utmost significance is the fact that both Bill 117 and the regulations under the Public Service Act, now relied on by '" 7 the present employer counsel, were in existence in the present form at the time of the original hearing. Thus it .was open for the then employer counsel at that hearing to have made the same' arguments that employer counsel now seeks to make. Even though employer counsel attempted to couch his request in a different light, he is in effect stating that. the previous ~ employer counsel failed to make certain legal arguments that \ could have been made He now wishes to have .a second '" r opportunity to try a different argument in the hope of persuading the Board to accept the employer's position. ~ - In our view, we need not determine any - of the legal disputes raised by the parties as to which statute, the old Crown Employees Collective Bargaining Act or the new Bill 117, applied to these'~rievances or whether the Board has the power to reconsider its decisions under either statute. If such a power existed under the applicable statute, there can be no doubt that it would be a discretionary. power. We are ,of the view, that even if we had the power to reconsider our previous award and rehear submissions on the issue this is simply not an appropirate case to do so It is of pa~amount importance from a policy point of view that the Board's decisions have finality. Indeed this is mandated by the Board's constituent legislation. The decision dated October 11, 1994, even though determininq an interim issue, was a final decision on that issue. The parties put a specific issue before the Board and 'r: . Q T 8 the Board fully answered the issue i;lnd there was nothing left to be done on that issue. To permit employer counsel during the hearing into the merits to re~qrgue the very same issue because upon review he has concluded tQ.at th:ere were other legal arguments which could have per~uaded the Board, would seriously erode the finality of th~ Board's dec;:isions. ~ Employer counsel relied on Chandler v. Alberta Assn. of Architects" (1989) 62 D.L.R. (4th) 577 (S.C.c.), where Sopinka J. advo~ated a more flexible and less formalistic approach in applying the doctrine of "Functus Officio" in proceedings before administrative tribunals. Co~ns~l su~mitted that the employer may face serious prejudice if the Bo~rd refused to reopen the case, becq~se the Board's deci~ion dated october 11, 199-4, which in his view was 1l\ade without considering relevant legislative 'provisions, would- stand as a precedent in . other hearings before the Board. He pointed out that the employer was not in a position to judicially review the Board decision, because as- a policy the Divisional Court refuses to entel;"tain applications fQr judicial revi,ew of interim decisions relating to remedial jurisdiction, unless anQ until the Board in fact had exerci~ed the jurisdiction-. - We do not see prejudic;::e as a compelling reason to .exercise our reconsideration power, assuming. such a power -. I .-- I B ! ... >J .~ ~ .. 9 exists. At p. 596 of the Chandler decision Sopinka J observed as follows: To this extent, the principle of funct;us. officio applies It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whq$e. decision was subject to a full appeal. For this reason I am of the opinion that its application { must be more flexible and less formalistic in respect to the. decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may requir~ the reopening of , administrative proceedings in order to provide relief which would otherwise cbe available on appeal. It is apparent that Mr. Justice Sopinka's concern about strictly applying the doctrine of "Functus Officio" is the absence of a right of appeal from most administrative tribunal decisions, except on a point of law. This concern does not arise in our case because the Board's interim decision was . solely concerned with a point of law, namely the extent of the Board's remedial jurisdiction. That would be clearly an issue which is subject to judicial review. Therefore we find that we are functus officio with regard to the issue that was determined. If at the end of the proceeding the Board exercises the remedial jurisdiction it found to exist, the employer would then be in a position to have that decision reviewed by the courts. If on the other hand there is no exercise of that jurisdiction by the Board, either because the grievances fail ~- "-'~"- '\ ;. -'" - ~. 1"\ . 10 or because the Board finds that such a remedy was inappropriate in the particular circumstances, the employer would suffer no. prejudice. The employer would not face any practical consequences from the Board's interim decision, as far as this:partic~lar case is concerned. In any future case it would be open for the employer at that time to make any new legal submissions it deems appropriate. If our interim decision had not considered those legal arguments, the panel '" , hea~ing the particular case would be obliged to consider the merits of the legal arguments presented to it. For the foregoing reasons it is our finding that, even if we had the power to reconsider and revoke our decision dated October 11, 1994, in the particular circumstances of this case we ought not to use our discretion to exercise that power. .-. . Therefore, the employer's motion fails. .. Dated this 15th day of March 1995 at Hamilton, ontario -. /.r"'-C~?J-S ,.... - ---- N . Di~sanayake ~~rs . T.Browes-Bug Member 4/JJ2tcX M. Milich Member