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HomeMy WebLinkAbout1999-1222.Lewis.00-04-10 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L DNTARW GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1222/99 1223/99 OPSED # 99E1l9 99E120 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Dmon (LeWIs) GIievor - and - The Crown III RIght of Ontano (Mimsm of Educanon and TraImng) Employer BEFORE RandI H. Abramsk." Vice ChaIr FOR THE George RIchards GRIEVOR Gnevance Officer Ontano Pubhc ServIce Employees Dmon FOR THE Ben Ratel band EMPLOYER Counsel Legal ServIces Branch Management Board Secretanat HEARING Februm 17 2000 AWARD The gnevor Mr Earl LewIs, was dIscharged by the Mimstry of EducatIOn and TraInIng on August 17 1999 for allegedly SOlICItIng pnvate compames for chantable donatIOns on behalf of the Mimstry and a chantable orgamzatIOn, then expropnatIng the donatIOns for personal use At the outset of the heanng In thIS matter a prelImInary Issue arose concermng whether eVIdence obtaIned by the employer of addItIOnal examples of such alleged solIcItatIOn whIch occurred pnor to the gnevor's dIscharge but dIscovered afterward are admIssIble Into eVIdence Facts In late July 1999 the Mimstry was advIsed about allegedly Improper actIvItIes by the gnevor and began an InVestIgatIOn. AccordIng to Scott Macklem, Staff RelatIOns Consultant wIth the Mimstry by August 8 1999 the Mimstry had receIved InfOrmatIOn that the gnevor utIlIzIng Mimstry letterhead, had made solIcItatIOns to three compames purportedly on behalf of a well-known chanty that the gnevor dId not represent that chanty and that he kept the donatIOns for hIS own personal use On August 17 1999 the gnevor was IntervIewed about these allegatIOns Dunng that IntervIew he ImtIally demed but later acknowledged that he solIcIted from the three compames When asked If any other compames had been solIcIted, he acknowledged that there mIght have been a fourth company as well Based on the InformatIOn the Mimstry had as of August 17 1999 the gnevor was dIscharged. 2 The letter of dIscharge, dated August 17 1999 and sIgned by Victona McArdle, ActIng DIrector Independent LearnIng Centre, states, In pertInent part, as follows It has come to my attentIOn that you have solIcIted pnvate compames for chantable donatIOns The letters requestIng the donatIOns were wntten on the former Mimstry of EducatIOn and TraInIng letterhead. These solIcItatIOns were for the purported benefit of a well-known chanty The Chanty has confirmed that you are not actIng on theIr behalf You then expropnated the donatIOns for your own personal use Pursuant to SectIOn 22(3) of the Public Service Act thIS wIll advIse you that you are hereby dIsmIssed form your employment as a Leamer ServIces Officer wIth the Mimstry of EducatIOn, effectIve August 1 ih 1999 The fact hat you have mIsrepresented yourself, on behalf of the Mimstry and the Chanty to these pnvate busInesses, for your personal financIal gaIn, constItutes senous mIsconduct and IS a breach of the trust placed In you by the Employer Furthermore, your actIOns had the potentIal to cause senous damage to the reputatIOn of the Mimstry of EducatIOn. After careful consIderatIOn, I have decIded to dIsmIss you for all of the above reasons AccordIng to Macklem, In lIght of the gnevor's statement that a fourth company may have been solIcIted, the Mimstry decIded to conduct a further InVestIgatIOn, even though It felt that It had sufficIent grounds to termInate the gnevor An audItor to reVIew the gnevor's computer was not avaIlable untIl late August. The InVestIgatIOn proceeded Into the fall and was completed on December 3 1999 The final InVestIgatIOn report, however was not dIsclosed to the Umon, however untIl February 14 2000 two days before the first scheduled day of arbItratIOn. The InVestIgatIOn purportedly reveals addItIOnal examples of the same type of solIcItatIOn. 3 On August 18 1999 a gnevance was filed allegIng unjust dIsmIssal On August 27 1999 Macklem wrote a letter to Umon Steward Jim BIggar confirmIng an agreement to extend the tIme lImIts at Stage 2 untIl September 15 1999 and statIng that "pursuant to ArtIcle 22 14 4 the Employer wIll provIde the Umon wIth a full dIsclosure of the facts and Issues In dIspute before the meetIng." ArtIcle 22 144 provIdes as follows The partIes agree that pnncIples of full dIsclosure of Issues In dIspute as alleged by a gnevance advanced by the Umon on behalf of a member or members, or the Umon Itself, and full dIsclosure of the facts relIed upon by management In a decIsIOn that IS subject to a gnevance, are key elements In amIcable and expedItIOus dIspute resolutIOn processes Also relevant IS ArtIcle 22 14 5 whIch provIdes as follows The partIes agree that at the earlIest stage of the gnevance procedure, eIther party upon request IS entItled to receIve from the other full dIsclosure Shortly before September 15 1999 Macklem called BIggar seekIng to postpone the Stage Two meetIng because the InVestIgatIOn was not concluded and more tIme was needed to complete It. Macklem testIfied that he Informed BIggar that the Mimstry had gathered addItIOnal InfOrmatIOn, that It was contInuIng to gather InfOrmatIOn and that he dId not know when the InVestIgatIOn would be concluded. He stated that BIggar wanted a tImely Stage Two meetIng because the gnevance Involved a dIscharge and the gnevor was wIthout Income On September 24 1999 Jim BIggar wrote a letter to Macklem, whIch states, In pertInent part, as follows You fimshed the Earl LewIs InVestIgatIOn on the date of dIsmIssal We would ask you to provIde a copy of the InVestIgatIOn report on whIch the 4 dIsmIssal was based. You cannot dIsmIss first and find eVIdence afterwards A week ago Tuesday you IndIcated that your compute crashed and that the report would be delayed untIl Fnday when you would have Legal ServIces look at It before releasIng It to the Dmon. Then on Tuesday of thIS week you Informed me that the InVestIgatIOn IS ongoIng and that It wIll not be completed for at least two more weeks However In the meantIme, Earl LewIs and hIS famIly are suffenng because of the loss of Income Pursuant to ArtIcle 22 14 4 and 22 14 5 we demand full dIsclosure of the eVIdence on whIch the dIsmIssal decIsIOn was based and that It be turned over ImmedIately and further that the Stage 2 meetIng take place wIthIn 5 workIng days On September 28 1999 Macklem responded by letter whIch states In part as follows Enclosed per your request IS a copy of the Mimstry's fact findIng report on the fraud InVestIgatIOn pertaInIng to ILC ThIS report contaIns a full dIsclosure of the facts that the Mimstry relIed upon wIth respect to Mr LewIs' dIsmIssal on August 17 1999 ThIS wIll also confirm that a Stage Two gnevance meetIng has been rescheduled for Tuesday October 6 1999 Macklem testIfied that the report provIded to the Dmon dIsclosed all the facts gathered up to August 17 1999 and all the facts relIed upon by the Mimstry In makIng ItS decIsIOn to dIscharge the gnevor whIch Included solIcItatIOn of three compames In hIS VIew the Dmon was aware that the InVestIgatIOn was stIll ongoIng. He acknowledged that he dId not specIfically IndIcate at any tIme that any addItIOnal eVIdence obtaIned through the InVestIgatIOn would be relIed upon to JustIfy the gnevor's dIscharge Arguments of the Parties 5 The Umon objects to the admIssIOn of the final InVestIgatIOn report and any eVIdence pertaInIng to allegatIOns that the gnevor engaged In Inappropnate solIcItatIOn beyond the three IncIdents relIed upon by the Employer to JustIfy ItS deCIsIOn to dIscharge the gnevor on August 17 1999 It submIts that the Employer cannot, after the fact, add new allegatIOns to support ItS dIscharge decIsIOn. It also submIts that the Employer's dIsclosure of addItIOnal allegatIOns two days before the arbItratIOn was untImely and In vIOlatIOn of the Employer's oblIgatIOn to provIde "full dIsclosure of the facts " The Umon asserts that as a matter of general arbItral pnncIple, employers are restncted to the grounds relIed upon at the tIme the dIscIplIne was Imposed. In thIS case, It submIts that the Employer IS lImIted to the three IncIdents of alleged Improper solIcItatIOn upon whIch It based ItS deCIsIOn to dIscharge the gnevor and cannot add the addItIOnal examples cIted In the final InVestIgatIOn report. The Umon contends that under ArtIcles 22 14 4 and 22 14 5 whIch are new provIsIOns In the 1999-2001 collectIve agreement, the Employer has a contractual oblIgatIOn to provIde "full dIsclosure of [the] facts relIed upon by management In a decIsIOn that IS subject to a gnevance" It submIts that the Employer repeatedly agreed to provIde the Umon wIth "full dIsclosure" and on September 28 1999 It provIded a copy of a fact findIng report to the Umon wIth the assurance that "[t]hIS report contaInS a full dIsclosure of the facts that the Mimstry relIed upon wIth respect to Mr LewIs' dIsmIssal on August 17 1999" The Umon notes that there was no reference made to an ongOIng InVestIgatIOn or that the Employer mIght rely upon addItIOnal allegatIOns In fact, the 6 Umon put the Employer on notIce that It "cannot dIsmISS first and find eVIdence afterwards" In these cIrcumstances, the Umon submIts that both ItS assurances and the collectIve agreement bInd the Employer to ItS ongInal allegatIOns The Umon contends that the purpose of the reqUIrement of full dIsclosure IS to ensure that the gnevor and Umon are able to proceed through the gnevance procedure In an Informed manner aware of the case It must meet. Only wIth knowledge of the "facts relIed upon by management" can the Umon properly advIse and represent the gnevor It submIts that there must be some consequence for the Employer's faIlure to dIsclose or the provIsIOn wIll be rendered meamngless The Umon further notes that the Employer under the Public Service Act has the abIlIty to suspend employees pendIng InVestIgatIOn, WIth or wIthout pay It contends that SInce the Employer suspected, on August 17 1999 that addItIOnal compames mIght have been Involved, It could have, but chose not to, suspend the gnevor pendIng further InVestIgatIOn. Instead, It chose to dIscharge the gnevor based on the InformatIOn It possessed at the tIme AccordIngly In the Umon's submIssIOn, the Employer must lIve wIth the consequences of that decIsIOn, and cannot add addItIOnal allegatIOns dIscovered after the decIsIOn was made In support of ItS contentIOns, the Umon relIes on Re Bruce Retirement Villa and Service Employees Union, Local 210 (1998) 75 LAC (4th) 256 (Watters) and Re 7 Molson Breyt,eries and Canadian Union of Breyt,ery & General Workers Component 325 (1994),42 L.AC (4th) 75 (Mitchmck) The Employer submIts that there are exceptIOns to the general pnncIple that an employer IS lImIted to the reasons relIed upon at the tIme the dIscIplIne was Imposed and that those exceptIOns apply In thIS case FIrst, It argues that the addItIOnal eVIdence It seeks to Introduce Involves further examples of the exact same type of mIsconduct and thus does not Involve "new" or "changed" grounds at all Second, It argues that the examples It seeks to Introduce occurred before the gnevor's dIscharge but were unknown to the employer at the tIme because of the gnevor's own lack of candor It submIts that It would be perverse for the gnevor to benefit from hIS own deceptIOn. The Employer further contends that under SectIOn 48(12) of the Labour Relations Act an arbItrator has great dIscretIOn to admIt eVIdence that IS relevant and submIts that the eVIdence In questIOn IS relevant to determInIng whether dIscharge was the appropnate penalty and to assess the true extent of the gnevor's alleged breach of trust. It suggests that the eVIdence should be admItted, wIth the weIght to be afforded such eVIdence determIned at a later date The Employer contends that the Issue In thIS case has recently been addressed by the GSB In OPSEU (McQueen) and MinistlY of the Solicitor General and Correctional Services (1999), GSB No 0383/97 et al (Bnggs) and that the decIsIOn IS bIndIng per Blake et al. and Toronto Area Transit Operating Authority (1988), GSB No 1276/87 et 8 al (ShIme) The Employer also relIes on Re St. Joseph s Hospital, Hamilton and Ontario Nurses Association (1978) 17 L.AC (2d) 404 (H. Brown) and Re Ontario Hydro and Canadian Union of Public Employees Local IOOO (1988), 3 L.AC (4th) 112 (Brent) The Employer further contends that ArtIcles 22 14 4 and 22 14 5 do not preclude the admIssIOn of the addItIOnal eVIdence In thIS case It argues that at the tIme of the Stage Two meetIng, the InVestIgatIOn had not yet been completed and thus "full dIsclosure" of the addItIOnal examples of Improper solIcItatIOn was not possible It argues that the Umon was aware of the ongOIng InVestIgatIOn yet stIll decIded to proceed wIth the Stage Two meetIng. It submIts that the Umon made no further requests for InfOrmatIOn. WhIle counsel for the Employer acknowledged that there was some delay In provIdIng the Umon wIth a copy of the final InVestIgatIOn report (from December 3 1999 untIl February 14 2000) It argues that the delay was caused by case load Issues and that, If needed, the Umon could seek an adjournment. Decision The Issue of whether eVIdence of addItIOnal IncIdents of alleged mIsconduct sImIlar to the conduct for whIch a gnevor was dIscharged, but dIscovered after the dIscharge, should be admItted Into eVIdence was addressed by the GSB In OPSEU (McQueen) and MinistlY of the Solicitor General and Correctional Services supra In that case, the employer sought to Introduce eVIdence acqUIred after the gnevor's dIscharge that It learned through an InVestIgatIOn conducted by the Independent InvestIgatIOn Umt (lIU) The employer sought to Introduce the IIU report and 9 background notes from the InVestIgatIOn as well as wItnesses who were IntervIewed dunng the InVestIgatIOn. The employer sought to rely upon thIS InfOrmatIOn, whIch raised addItIOnal IncIdents of threatemng and harassIng behavIOur sImIlar to the conduct for whIch the gnevor was dIscharged, as further grounds for Just cause In her rulIng, Vice-Chair Bnggs relIed upon the decIsIOn of ArbItrator Howard Brown In Re St. Joseph s Hospital, Hamilton and Ontario Nurses Association, supra In that case, the employer after the gnevor's dIscharge, learned about addItIOnal IncIdents of alleged Incompetency InvolvIng the gnevor through a related proceedIng before the College of Nurses At the arbItratIOn heanng, It sought to Introduce and rely upon those addItIOnal IncIdents ArbItrator Brown ruled that the eVIdence was admIssIble, statIng at p 406 The general rule IS that employers are held by arbItrators to substantIatIng theIr cases on the basIs of the grounds on whIch they ongInally took the dIscIplInary actIOn, and they are not allowed to submIt eVIdence In support of reasons dIfferent than the stated basIs for the dIscIplInary actIOn. Nor IS the employer entItled to submIt eVIdence to JustIfy the dIscIplInary actIOn on new and unrelated matters to the actIOn whIch precIpItated the dIscharge Here the eVIdence sought to be Introduced concern IncIdents relatIng to the allegatIOn of the gnevor's Incompetency whIch were not wIthIn the knowledge of the employer at the tIme the decIsIOn to dIscharge was taken, nor was that knowledge aVailable to It at that tIme ThIS eVIdence IS not produced to support new or dIfferent grounds for dIscIplIne, but It IS to be submItted as further examples of the reasons for the dIscharge and In corroboratIOn of the reasonableness of the employer's ImtIal actIOn. The CIrcumstances concernIng the dIscovery of the eVIdence and the nature of that eVIdence may go to the weIght to be attached by the board to such eVIdence, but what we are consIdenng IS whether the eVIdence IS admIssIble before the board, and our VIew based on the submIssIOns, IS In the affirmatIve, as It may go to the demonstratIOn of the employee's work performance pnor to the dIscharge whIch IS at Issue In these proceedIngs 10 Vice-Chair Bnggs ruled that the "St. Joseph s Hospital decIsIOn IS sImIlar to the matter at hand." (DecIsIOn at p 4) She ruled that she would hear the eVIdence SInce the InformatIOn "only came Into [the employer's] posseSSIOn three months after the gnevor was termInated" and "relates to the reasons gIven for the gnevor's dIscharge, that IS eVIdence regardIng threatemng and harassIng behavIOr towards others IncludIng hIS co- workers" (DecIsIOn p 4) What weIght, If any the eVIdence should be gIven would be a matter of argument dunng final submIssIOns Under Amalgamated Transit Union (Blake et al.) and Toronto Area Transit Operating Authority supra, a decIsIOn by a Vice-Chair of the GSB IS a decISIOn of the "Board" and IS bIndIng unless there are "exceptIOnal cIrcumstances" Thus, In the absence of "exceptIOnal cIrcumstances" the decIsIOn In McQueen IS determInatIve of the admIssibIlIty of the eVIdence In thIS matter The Umon, however qUIte correctly pOInts out that the collectIve agreement has changed from the one at Issue In McQueen The collectIve agreement now Includes ArtIcles 22 14 4 and 22 14 5 AccordIngly the Issue IS whether those provIsIOns change the result In McQueen In arguIng that the new provIsIOns change the result In McQueen the Umon relIes on Re Molson Breyt,eries and Canadian Union of Breyt,elY & General Workers, Component 325 supra The collectIve agreement there provIded as follows 24 10 The Issue to be arbItrated shall be the wntten statement of the gnevance and the answers of the vanous management officIals who have prevIOusly dealt wIth the matter 11 RelYIng on thIS provIsIOn, the umon asserted that the employer could not rely on a second alleged IncIdent of theft that It dIscovered upon examInIng the gnevor's locker Immediately after the gnevor's dIscharge That matter was not raised as It could have been by the Employer dunng the gnevance process The arbItrator ruled, at p 80 that SectIOn 24 10 eVIdenced "an agreement by the partIes to confine a partIcular arbItratIOn to the matters raised In the gnevance procedure" GIven the employer's InexplIcable faIlure to raise the second theft Issue In that forum, the arbItrator lImIted the arbItratIOn to "the basIs ongInally dealt wIth by the partIes" whIch dId not Include the second IncIdent of alleged theft. (42 L.AC (4th) at 81) In my VIew the contractual language In Re Molson Breyt,eries IS far more specIfic about the arbitration process than the language In ArtIcles 22 14 4 or 22 14 5 The language In that case specIfically lImIted the "Issue to be arbItrated" confimng It to matters raised In the gnevance procedure In contrast, ArtIcles 22 14 4 and 22 14 5 do not, by theIr terms, lImIt the scope of arbItratIOn. Instead, ArtIcle 22 14 4 states that "the pnncIples of full dIsclosure of Issues In dIspute as alleged by a gnevance and full dIsclosure of the facts relIed upon by management In a decIsIOn that IS subject of a gnevance, are key elements In amIcable and expedItIOus dIspute resolutIOn processes" ArtIcle 22 14 5 states that "at the earlIest stage of the gnevance procedure, eIther party upon request IS entItled to receIve from the other full dIsclosure" Thus, the Intent of the partIes to lImIt the scope of arbItratIOn stnctly to those matters raised In the gnevance procedure IS not eVIdent as It was In Re Molson s Breyt,eries, supra Without a clearer expreSSIOn of Intent to lImIt the scope of arbItratIOn, the GSB has JunsdIctIOn to allow the 12 admISSIOn of eVIdence that was not raised dunng the gnevance procedure as long as the dIscretIOn IS exercIsed In a proper manner See Re Bruce Retirement Villa and S.E.I U supra at p 272-273 CertaInly however as the Umon contends, there must be some remedy when these dIsclosure provIsIOns are not followed. In an appropnate case, It may be that the faIlure to dIsclose eVIdence wIll result In ItS nonadmIssIbIhty But where, as here, the eVIdence was not known at the tIme of the Stage Two meetIng, I cannot conclude that such a remedy IS appropnate At the tIme of the Stage Two meetIng, the InVestIgatIOn had not yet been completed and the Umon was advIsed of that fact. Fundamentally the reqUIrement to dIsclose set out In ArtIcles 22 14 4 and 22 14 5 cannot pertaIn to InfOrmatIOn of whIch the Employer IS not aware, nor IS avaIlable to It at the tIme The Employer must possess the InformatIOn before a duty to dIsclose It may attach. F or the same reason, the fact that the addItIOnal allegatIOns were not dIscussed In the gnevance procedure cannot be deemed to undermIne that process In Re Ontario Hydro and Canadian Union of Public Employees, Local 1000 supra, the board of arbItratIOn admItted eVIdence of the gnevor's actIvItIes regardIng falsIficatIOn of overtIme and meal allowances In relatIOn to two Hydro customers, Playtex and Mitel, whIch were not known at the tIme of dIscharge nor addressed In the gnevance procedure As to the 13 Impact of allowIng such eVIdence on the gnevance procedure, the board stated as follows at p 126 If such eVIdence IS admItted, then In our VIew gIven the CIrcumstances outlIned above, the gnevance procedure does not become a sham and a mockery The Playtex and Mitel InfOrmatIOn could not have been dIscussed or dIsclosed to the umon at the tIme of the commencement of the gnevance procedure In relatIOn to the ongInal allegatIOns because the InfOrmatIOn was not avaIlable to Hydro Once the InformatIOn became aVailable and was evaluated by Hydro It was conveyed to the umon, and certaInly by the tIme of the commencement of thIS heanng there had been full dIsclosure The umon IS therefore not taken by surpnse by any of the Playtex and Mitel InfOrmatIOn, and has had the opportumty to prepare Itself to meet the case whIch Hydro belIeves It can make The same ratIOnale generally applIes here The addItIOnal InfOrmatIOn could not have been dIscussed or dIsclosed to the umon at the tIme of the commencement of the gnevance procedure because the InfOrmatIOn was not avaIlable to the Mimstry In thI s regard, It IS relevant that the gnevor dId not dIsclose the addItIOnal InformatIOn when questIOned pnor to hIS dIscharge on August 17 1999 I also conclude, under the specIfic facts of thIS case, that the employer dId not Waive any nght It mIght have to rely on such addItIOnal eVIdence When advIsed that the InVestIgatIOn was stIll ongoIng, the Umon's response, qUIte understandably was that the Stage Two meetIng proceed SInce the gnevor was wIthout Income, and It asserted that the employer was lImIted to the InVestIgatIOn done on the date of dIsmIssal On September 28 1999 the employer agreed to schedule the Stage Two meetIng and submItted to the Umon a fact findIng report whIch contaIned "a full dIsclosure of the facts that the Mimstry relIed upon wIth respect to Mr LewIs' dIsmIssal on August 17 1999" That statement, so far as It went, was accurate, although It would have been prudent, In my 14 VIew for the Employer to have made reference to the ongOIng InVestIgatIOn In the letter and reserve the nght to add new examples of alleged solIcItatIOn that were uncovered In the InVestIgatIOn. The Employer's letter of September 28 1999 partIcularly In lIght of the Umon's letter of September 24 1999 gIves the ImpreSSIOn that wIth the submIssIOn of the fact findIng report, It provIded the Umon wIth "full dIsclosure" Yet the unrefuted eVIdence of Mr Macklem was that the Umon was advIsed of the ongOIng InVestIgatIOn and that the InVestIgatIOn was not complete at the tIme of the Stage Two meetIng. Thus, It was ImplIcIt, though not explIcIt, that addItIOnal eVIdence mIght be uncovered In the InVestIgatIOn. But once the final InVestIgatIOn report was completed and revIewed, the duty to dIsclose It to the Umon arose The completIOn of the report was, under ArtIcle 22.24 5 "the earlIest stage of the gnevance procedure" that the InfOrmatIOn was avaIlable It should have been dIsclosed wIthIn a reasonable penod of tIme thereafter The Umon, however was not provIded wIth the addItIOnal InformatIOn untIl two days before the heanng. Why the InVestIgatIOn took four months to complete IS not clear In the record, and there was a further delay of more than two months to provIde a copy of the final InVestIgatIOn report to the Umon. Although I can apprecIate the sIgmficant case load demands on counsel, there can be no questIOn that adVISIng the Umon two days before the arbItratIOn heanng that there are a number of addItIOnal examples of alleged mIsconduct that the Employer wIll be relYIng on to JustIfy dIsmIssal IS InSUfficIent. It IS the kInd of "surpnse" that the reqUIrement of dIsclosure IS desIgned to aVOId. 15 Under the specIfic facts of thIS case, however and the fact that ArtIcles 22 14 4 and 22 14 5 are new provIsIOns whIch have not been Interpreted before, the appropnate remedy for the delay In dIsclosure IS not to preclude the admIssIOn of the eVIdence but an adjournment. GIven, however that our next scheduled day of heanng IS not untIl May 12, 2000 there IS no need for an addItIOnal adjournment. For all the reasons set forth above, I conclude that the eVIdence In questIOn IS admIssible Into eVIdence What weIght, If any that eVIdence should be gIven wIll be a matter for argument In the partIes' final submIssIOns Dated at Toronto thIS 10th day of Apnl, 2000 fI, 1/0rmtElc RandI H. Abramsky Vice-Chair 16