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HomeMy WebLinkAbout1995-0810WHITE98_03_17 ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-13!Xi GSB # 0810/95 OPSEU # 95D080 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Wlute) Gnevor - and - The Crown In RIght of Ontario (Mimstry of Commumty and SOCial Services) Employer BEFORE N Dissanayake Vice-Chair FOR THE C Flood UNION Counsel Koskie Minsky Barnsters & Sohcitors FOR THE C Samaras EMPLOYER Counsel Legal Services Branch Mimstry of Commumty & SOCial Services HEARING December 5, 1997 2 DECISION This decisions sets out the reasons for a rullng made by the Board on December 10, 1997, that certain evidence proposed to be tendered by the union through Ms Lisa Anne Canning would be admitted subject to determination of weight in light of all of the evidence The grievor was employed a.t the Huronia Regional Centre (HRC) in Orillia, Ontario in the position of Residential Counsellor In August 1993, Mr Dan wither, a fellow-employee, first raised the allegation that back in April 1989, he witnessed the grievor sexually assault a female resident of HRC The Police was contacted and the grievor was charged with sexual assault Mr wither was the sole prosecution witness at the trial The grievor pleaded not guilty, but did not testify He was convicted by the jury on March 28, 1995 The employer did not conduct any investigation of its own However, relying on the conviction, the grievor was discharged on May 1, 1995 The Board is seized with his grievance alleging discharge without just cause At the hearing, an issue arose between the parties as to the legal significance of the certificate of conviction By decision dated October 15, 1996, the Board held that for purposes of the arbitration before it, the certificate of conviction would not be received as conclusive or prima facie evidence of the fact that the sexual assault occurred Upon judicial review of that decision, the court partially disagreed with the Board's decision In its judgement [Reported at (1997) 32 o R (3d) 572J the court held that "In the particular circumstances of this case the Board ought to have made it clear that the conviction would be received and stand as prima facie evidence of the sexual assault II The court left 3 undisturbed, the Board's decision to the extent that it refused to accept the conviction as conclusive proof of the sexual assault Without conceding any shifting of the legal onus, the union agreed to proceed with its evidence before the Board After the grievor had completed his testimony, the parties requested that the Board rule as to the admissibility of certain evidence proposed to be led by the union through Ms Canning The Board was advised that Ms Canning's testimony would be that she was also an employee of HRC She and Mr Wither were friends and neighbours as well Her evidence would be to the effect that sometime in 1984/85, she requested Mr wither to testify as to matters within his knowledge as a friend and neighbour, at a court proceeding relating to her divorce and custody of the children She would testify that Mr Wither responded to the effect "If you call me as a witness you will regret it because I will perjure myself" In the ensuing discussion, Mr Wither allegedly told Ms Canning that because he had a self-interest, he would not only not testify as to facts within his knowledge, but would also invent false testimony in order to hurt Ms Canning's case They discussed about the fact that perjury was a criminal offence with penal consequences, but Mr wither indicated that he was willing to take the risk The employer objected to the admission of this proposed evidence on two grounds First, it was argued that the evidence was not relevant to any issue in dispute in this proceeding Second, it was submitted that even if the evidence was relevant, it should be disallowed on the basis of the exclusionary rule relating to similar fact evidence The union, on the other hand, took the position that the proposed evidence was relevant to 4 the very crux of this proceeding, namely the credibility and reliability of Mr wither's testimony at the trial, which was the sole basis of his conviction The employer in turn relied on this conviction as the sole grounds to discharge the grievor In light of the judgement of the Divisional Court, the employer has taken the position that unless the grievor is able to rebut the prima facie evidence represented by the criminal conviction that he did commit the sexual assault, this grievance should be dismissed As the Board noted in its decision dated August 21, 1997 at p 5, in the circumstances " the credibility of the grievor and of Mr Wither will be at the forefront of the proceeding before the Board The parties recognized that the outcome will be decided by a determination of credibility between the two" Before examining the evidentiary rules governing the admissibility of evidence, it must be noted that this Board is not legally bound to strictly follow the rules of evidence Thus, S 48 (12) (f) of the Labour Relations Act, permits the Board "to accept oral or written evidence as the Board in its discretion considers proper, whether admissible in a court of law or not" Despite this broad power~ the Board generally follows established rules of evidence because these rules serve to ensure fairness and avoid prejudice to either party However, if in a given case the Board is of the view that certain evidence would be of assistance, and that admission of that evidence would not result in prejudice and unfairness to one of the parties, it has the discretion to be able to admlt the evidence 5 RELEVANCE Returning to the rules relating to admissibility of evidence, the first rule that must be met before any evidence is admitted is relevance Counsel for the employer offered two reasons as to why the proposed evidence is not relevant Counsel pointed out that the proposed evidence is to the effect that in 1984/85 Mr wither threatened to commit perjury under oath, not that he ln fact had committed perjury The alleged threat of perjury had occurred some 10 years prior to the date when Mr Wither testified at the grievor's trial Relying on R v Robertson, (1975) 21 C C C (2d) 385 (Ont ct Of App ) counsel submitted that evidence that Mr Wither threatened 10 years earlier to commit perjury in one court proceeding, is not relevant to the issue of whether he in fact lied under oath in a later unrelated proceeding Counsel also argued that the evidence was irrelevant because in the first situation when the alleged threat to commit perjury took place, Mr Wither was being asked to testify by Ms Canning In the situation involving the grievor on the other hand, no one had asked him to testify He had volunteered to testify on his own initiation It is his position that Mr wither's stated intention to commit perjury in one situation, was not relevant to the issue of whether Mr wither actually committed perjury in different circumstances As Sopinka and Lederman point out in The Law of Evidence in Canada at p 22, whether a fact bears the required relationship to another fact so as to be relevant is not usually determined by the application of a legal test Rather, it is an exercise in the applicatlon of experience and common sense paciocco and stuesser in The Law of Evidence, (Butterworths) 6 at p 19 state that relevance is a "matter of logic" Therefore, determination of relevance must be made in each case on the basis of the totality of the circumstances of the particular case Counsel relied on the statement by the Court of Appeal in R v Robertson at p 3 that " as a general rule, a threat by an accused to kill A would not be admissible on a charge of murdering B" However, it is important to look at the reasoning for the Court's conclusion The court states, "The evidence did not tend to connect the accused with the crime charged, otherwise than to lead to the conclusion that he was a person likely from his character to have committed it and therefore the evidence had no place in the trial " Thus, the evidence of the threat was excluded not on grounds of irrelevancy, but on the basis of a policy relating to exclusion of similar fact or character evidence in criminal proceedings As pointed out later in this decision, the rules applied in criminal proceedings in that regard are different to the rules applied in civil proceedings There is no doubt that the credibility of Mr Wither, and the truthfulness of his testimony at the grievor's trial is at the centre of this proceeding Prior to his discharge, the grievor informed the employer that Mr Wither had fabricated the allegation against him because of an ulterior motive He has maintained that position throughout In effect, the grievor is claiming that Mr Wither lied under oath at the trial because he harboured an animosity towards him In the Board's view, the distinctions drawn by employer counsel between a threat to perjure versus an actual commission of perjury, and between voluntary testimony and testimony at someone's request, are without significance What the evidence, if proven, and left unexplained, may tend to show is that Mr Wither was of such a state of mind, that he did not take an oath seriously 7 and that if it served his self-interest, he was willing to lie under oath In Paciocco and Stuesser, The Law of Evidence, the authors observe at p 18, "In order to decide the value of the evidence offered in a case, the fact finder may profit, therefore, from information that is not directly about the facts in issue but about the witness " Given the critical role Mr Wither's credibility plays in this proceeding, the Board finds the evidence offered relevant and potentially of assistance However, having so concluded, there is no escaping the fact that the proposed evidence is in the nature of similar fact or character evidence The Board must, therefore, determine whether or not the evidence, although relevant, ought to be excluded on that basis Similar fact evidence It is clear in the authorities that while the rule itself is the same, the application of the similar fact evidence rule differs depending on whether the evidence is being tendered in a criminal or civil proceeding The rule is applied less strictly and much more flexibly in civil cases Counsel for the employer submitted that in the present case the Board should apply the criminal standard in determining the admissibility of the evidence in question because Mr Wither is being accused of a criminal offence, namely, perjury The Board disagrees There cannot be any doubt that arbitration proceedings before the Board are not criminal in nature Mr Wither does not stand charged with any criminal offence in this proceeding Indeed, he is not even a party in the proceeding All that is at issue is that a challenge has been made to the credibility and reliability of the testimony Mr wither gave as a witness No criminal sanctions on Mr Wither can possibly follow in the event the 8 Board ultimately decides that Mr Wither's testimony under oath was unbelievable and unreliable Very frequently the Board is faced with diametrically opposed versions of the same events given by witnesses under oath It may elect to believe one witness and not the other Thus In effect the Board decides not to believe one witness's testimony under oath That does not turn the proceeding before the Board into a criminal proceeding Therefore, the standard of application of the similar fact evidence rule in civil proceedings is the appropriate standard that should govern before this Board, subject to the proviso that even the standard applied in civil courts is not binding on the Board as a matter of law Lord Denning in Mood Music Publishing Co v De Wolfe Ltd , (1976) 1 A E R 763 (C A ) At P 766 considered the admissibility of similar fact evidence in civil cases as follows The criminal courts have been very careful not to administer (similar fact) evidence unless its probative value is so strong that it should be received in the interests of justice and its admission will not operate unfairly to the accused In civil cases the courts have followed a similar line but have not been so chary of admitting it In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side; and also that the other side has fair notice of it and is able to deal with it Sopinka and Lederman, (supra) at p 25 describe the reasoning behind the strict application of the rule excluding character evidence in criminal proceedings as follows Desire to avoid undue prejudice to an accused and so promote the fairness of criminal trials forms at least part of the basis of such rules as exclusion of 9 disposition or bad character evidence and the privilege against self-incrimination The test in civil cases as set out by Lord Denning in Mood Music (supra) consists of the following (1 ) The evidence must be logically relevant in determining the matter which is in issue (2 ) The evidence must not be oppressive or unfair to the other side and the other side must have fair notice of the evidence and be able to deal with it On the first requirement of logical relevance, Sopinka and Lederman, ( supra) at p 25 suggest that more often than not bad character evidence is relevant They write Generally, exclusion of such evidence is based on grounds of policy, not lack of relevance, although it is certainly possible for evidence of this type to be irrelevant The exclusionary rule for this type of evidence allows its admission if its probative value, or degree of relevance, exceeds its prejudicial effect In the Board's view, a statement by an individual that he was willing to perjure himself and take the risks of the penal consequences if that serves his self-interest, though not determinative, is of some probative value in determining the credibility of that individual's testimony in a subsequent proceeding There is no issue here about adequate notice to the employer The "other side" referred to by Lord Denning is the employer Employer counsel submitted that there is potential prejudice to the employer - the risk that the Board may be inclined to believe that Mr wither lied under oath at the criminal trial, because he had previously stated that he did not take the oath seriously when his self-interest is 10 not served by telling the truth However, that potential is present in any case where character evidence is allowed If that is grounds by itself for exclusion, character evidence would not be allowed in any case Clearly, at least in civil cases, there 1S no absolute proh1bition of character evidence The trier of facts must consider the potential for prejud1ce in light of the other side's ability to deal with the evidence In this case it is open for the employer to call Mr wither to testify as to what he told Ms Canning and why Besides, the Board w1ll not decide the credibility issue before it solely on the basis of any character evidence offered It will only be one of many pieces of eV1dence that will have to be considered The employer can lead any evidence relevant to the issue of credibility of Mr Wither and the lack of credibility of the grievor It is also important to note that all of the foregoing discussions and Lord Denning's test for civil cases dealt with character evidence relating to a party litigant Sopinka and Lederman draw a distinction in this regard between character evidence relating to a party litigant and an ordinary witness Mr Wither is not a party to this proceeding before the Board Nor was he a party at the trial He was merely a witness called by the prosecution Therefore, he clearly falls within the category of an "ordinary witness" Sopinka and Lederman observe that character evidence relating to an ordinary witness only goes to the issue of credibility and at p 475 state The credibility of an ordinary witness can be impugned in a number of ways, including ways tending to prove the bad character by evidence of disposition or past acts of the witness On this basis, evidence of previous convictions, bias and corruption, general lack of veracity or discreditable acts can be raised 11 The evidence the union is seeking to adduce through Ms Canning is evidence of a general lack of veracity and of disposition The Board will admit that evidence The weight, if any, to be attached to the evi dence of course would have to be determined in light of all of the evidence relating the credibility of the grievor and of Mr Wither Dated this 17th day of March 1998 at Hamilton, Ontario ~~. ZJ- -l.. Nimal V Dissanayake Vice Chair