HomeMy WebLinkAbout2001-1829.Barillari.04-08-19 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2001-1829 2002-2390
UNION# 2002-0211-0005 [02B211] 2002-0211-0044
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Banllan) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of Commumty FamIly and ChIldren's ServIces) Employer
BEFORE Nimal V DIssanayake Vice-Chair
FOR THE UNION Nelson Roland
Barnster and SOlICItor
FOR THE EMPLOYER F enna MurJ 1
Counsel
Management Board Secretanat
HEARING July 9 2004
2
PrelImInary Award
The Board 1.S seized with two gr1.evances filed by the
grievor Ms Rosie Barillari In substance, the grievances claim
that the employer has contravened the collective agreement
and/or the Human Rights Code by subjecting the gr1.evor to
discrimination, harassment and reprisals on the basis of her
religious beliefs
The union proceeded with its evidence first After it had
closed its case, the employer counsel advised the Board that the
employer would be making a motion for non-suit Union counsel
took the position that the Board should put the employer to an
election as to whether it will lead any evidence, as a condition
of entertaining the motion for non-suit The employer submitted
that it should not be required to make such an election
Following submissions on that 1.ssue, the Board ruled that the
employer will be allowed to make the motion for non-suit without
making an election On July 9, 2004 the motion was heard
The principles governing non-suit motions are described in
Sopinka and Lederman, The Law of Evidence 1.n Civil Cases
(Butterworths, 1974) at p 521 as follows
An important part of the division of roles
between judge and . . the assessment of the
Jury 1.S
3
probative sufficiency of the evidence adduced
by a party to establish his case If a
plaintiff fails to lead material evidence, he
may be faced at the close of his case by a
motion for a non-suit by the defendant If
such a motion 1.S launched, it 1.S the judge's
function to determine whether any facts have
been established by the plaintiff from which
liability, if it 1.S 1.n 1.ssue may be inferred
It is the jury's duty to say whether, from those
facts when submitted to it, liability ough t to
be inferred The judge, 1.n performing his
function, does not decide whether 1.n fact he
believes the evidence He has to decide
whether there 1.S enough evidence, if left
uncontradicted, to satisfy a reasonable man
He must conclude whether a reasonable Jury
could find 1.n the plaintiff's favour if it
believed the evidence g1.ven 1.n trial up to that
point The judge does not decide whether the
Jury will accept the evidence, but whether the
inference that the plaintiff seeks 1.n his
favour could be drawn from the evidence
adduced, if the Jury chose to accept it This
decision of the judge on the sufficiency of
evidence 1.S a question of law, he 1.S not ruling
upon the weight or the believability of the
evidence which 1.S a question of fact Because
it 1.S a question of law, the judge's assessment
of the probative sufficiency of the plaintiff's
evidence, or the def endan t' s evidence on a
counter-claim for that matter, 1.S subject to
review by the Court of Appeal
4
In the context of labour arbitration, the Board 1.n Re
-
Southern Alberta Institute of Technology (1994) 43 LAC (4 th)
261 (McFetridge) observed as follows at p 269
The question 1.S one of law, not fact, and the
judge or board of arbitration is primarily concerned
with the quantity of the evidence as a matter of law
rather than its quality, believability or persuasive
weight which are all questions of fact Assuming
always that the evidence meets a certain m1.n1.mum
threshold of credibility, a non-suit motion cannot
succeed if the party carrY1.ng the burden of proof
has presented some evidence which supports each of
the essential elements of its claim This evidence
will be sufficient until contradicted or overcome by
other evidence It may be that the evidence is weak
and carr1.es little persuas1.ve weight A non-suit,
however, cannot succeed where there 1.S some credible
evidence which supports each of the essential
elements of the claim
I have considered the evidence adduced by the union 1.n the
instant case, 1.n light of the foregoing principles, and
concluded that the employer's motion for non-suit must fail
Therefore the motion is dismissed
5
The Registrar 1.S to schedule this matter for continuation
in consultation with the parties
Dated this 19th day of August 2004 at Toronto, Ontario