Loading...
HomeMy WebLinkAbout2004-1101.Dhanju.05-12-19 Decision Crown Employees Commission de Nj 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# 2004-1101 UNION# 2004-0520-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (DhanJu) Union - and - The Crown In RIght of Ontano (Mimstry of MumcIpal MfaIrs and HOUSIng) Employer BEFORE Nimal V DIssanayake Vice-Chair FOR THE UNION John BrewIn Ryder Wnght Blair & Holmes LLP Barnsters and SOlICItorS FOR THE EMPLOYER Jamce Campbell Counsel Mimstry of Government ServIces HEARING December 8 2005 2 PrelImInary DeCISIon The Board is seized with a grievance dated December 8, 2004 filed by Dr Iqbal Singh Dhanju In essence the grlevance alleges that the employer had contravened article 3 1 of the collective agreement by discriminating on the basis of race, colour and ethnicity The union claims that the violation occurred primarily between January and March of 2004 when the employer denied the grievor an opportunity to recelve the benefit of developmental opportunities relating to new and more advanced computer technology It lS alleged that the grlevor repeatedly sought, and was promised this opportunity The union claims that the employer's decision to deny that opportunity to the grievor was based, at least in part, on prohibited grounds related to his race, colour and ethnicity The union claims that as a result of the denial of the developmental opportunity the grievor's career advancement has been potentially affected adversely The employer's position is that its decisions were strictly based on good faith operational considerations, and also influenced by certain deficiencies on the part of the grlevor 3 The union proceeded with its evidence first After it had closed its case, employer counsel moved for non-suit The union advised that in the particular circumstances it would not requlre the employer to make an election as to whether it would be calling any evidence as a condition of proceeding with the non-suit motion The motion was argued on December 8, 2005 The principles governing non-suit motions are described in Sopinka and Lederman, The Law of Evidence in Civil Cases (Butterworths, 1974) at p 521 as follows An important part of the division of roles between judge and jury is the assessment of the 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 is launched, it lS the judge's function to determine whether any facts have been established by the plaintiff from which liability, if it lS in issue may be inferred It lS the jury's duty to say whether, from those facts when submitted to it, liability ought to be inferred The judge, In performing his function, does not decide whether In fact he believes the evidence He has to decide whether there lS enough evidence, if left uncontradicted, to satisfy a reasonable man He must conclude whether a reasonable jury could find in the plaintiff's favour if it believed the evidence glven in trial up to that point The judge does not decide 4 whether the jury will accept the evidence, but whether the inference that the plaintiff seeks in 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 lS a question of law, he is not ruling upon the weight or the believability of the evidence which is a question of fact Because it lS a question of law, the judge's assessment of the probative sufficiency of the plaintiff's evidence, or the defendant's evidence on a counter-claim for that matter, lS subject to reVlew by the Court of Appeal In the context of labour arbitration, the Board in Re - Southern Alberta Institute of Technology (1994 ) 43 LAC (4th) 261 (McFetridge) observed as follows at p 269 The question is 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 minimum threshold of credibility, a non-suit motion cannot succeed if the party carrying 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 carrles little persuasive weight A non-suit, however, cannot succeed where there lS some credible evidence which supports each of the essential elements of the claim 5 The Divisional Court has made it clear that the standard to be applied is lower than the standard of balance of probabilities Thus in Ontario V OPSEU (Cahoon) , (1990) , 37 o A C 218 in quashing a decision of the Grievance Settlement Board which had allowed a motion for non-suit, the Court wrote The Board began by setting out its understanding of a non-suit While it held that a pr~ma fac~e case had not been made out, its reasons make it clear that it believed a pr~ma fac~e case had to be establishes on the balance of probabilities This lS, of course, incorrect The standard of proof on a non-suit lS that of a pr~ma fac~e case, not a case on the balance of probabilities If a pr~ma fac~e case has been shown a non-suit must not be granted It lS erroneous to determine a non-suit on the basis of the higher onus of the balance of probabilities A pr~ma fac~e case lS no more than a case for the defendant to answer A motion for non-suit in modern practice is made by the defendant, contending that the trier of fact should not proceed to evaluate the evidence in the normal way, but should dismiss the action The defendant must sat~sfy the tr~al Judge that the ev~dence ~s such that no Jury act~ng Jud~c~ally could f~nd ~n favour of the pla~nt~ff The decision of the judge in both jury and non-jury actions lS a question of law Sopinka, The Tr~al of an Act~on, p 124 (Butterowrths) 6 The "normal way" in a civil action would be on the balance of probabilities Where a judge lS sitting with a jury, the lssue is whether there lS some ev~dence to support the cla~m If there lS, the case goes to the Jury If there lS none, it does not Considering the evidence adduced during the union's case In light of the foregoing principles, I have concluded that the employer's motion must fail and is hereby dismissed In accordance with the Board's practice, and the explicit agreement of the parties in this proceeding, no reasons for that conclusion are set out This proceeding will continue on the scheduled dates Dated this 19th day of December 2005 at Toronto, Ontario ~p .. . ~', 'D- ...... ~ ';, .. -..",. . . . ...<<~.'~S;:W Vie ......::.