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HomeMy WebLinkAbout1984-0537.Rowley.85-06-15IN THE MATTER OF AN ARMIXATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Patricia Rowley) Before: The Crown in Right of Ontario (Ministry of Education) M. R. Corsky Vice-Chairman I. Freedman Member A. M. McCuaig Member Far the Griever: C. G. Paliare Coup6 el Gowling & Henderson Barristers & Solicitors For the Employer: A. W. McChesney Staff Relations Officer Staff Relations Branch Management Board of Cabinet Hear@ April 4, 1986 Grievor Employer DECISION J 7 A panel of the Board composed of Vice-Chairman, M. R. Gorsky, Union Member, I. Freedman and Rmploye'r Member, D. Gray, commenced to hear this case on October 11, 1965. As the hearing was not concluded on that day (only the Union's case having been heard), the Registrar set April 4, 1986 as a day for the continuation of the hearing. As a result of the unfortunate death of Member, D. Gray, a new panel was assigned to the case by the Registrar made up of Vice-Chairman, M. R. Gorsky, Union Member, I. Freedman and Employee Member, A. M. McCuaig. / At the opening of the hearing, Ms. A. W. McChesney,'for the Employer, objected to the jurisdiction of this panel to preside at the hearing. It was submitted that it would represent a breach of natural, justice for this panel to proceed to hear evidence and issue its Award. The basis for such position was the fact that the Vice-Chairman and Mr. Freedman had heard one day's evidence while Mr. McCuaig had not. Mr. McCuaig, therefore, would have to rely on information obtained from the Vice-Chairman and Mr. Freedman, and perhaps Mr. Gray's notes (or some combination thereof), for his understanding of the Union'scase. We are in agreement that there is merit in this objection. We need not decide what our response would be in the myriad. of other situations that may arise where a panel member dies before the award.is released. Here, the continuation of the hearing from the point it left off on October 11, 1985, with one member of the panel, as presently constituted, not having heard the evidence of.the Union, would raise a number of serious questions . All of the panel members ought to have had the opportunity of hearing 2 the same evidence. The expedient of permitting the newly introduced member to examine the notes taken by the original members (or some of them), does not overcome the strong perception of unfairness that would attend such a decision. Counsel for the Employer also objected to this panel hearing the case de novo. This would require the Union to, once again, introduce its case. It was submitted by Ms. McChesney that this approach would also be unfair to the Employer as the Union would obtain a possible advantage in being able to reinforce its case with at least two members of the original panel. The possibility of unfairness would be overcome by appointing an entirely new panel to hear the entire case. Ms. McChesney also objected to the Vice-Chairman continuing to hear the case as a single arbitrator. Leaving aside the jurisdiction of a.Vice-Chairman to order that a case proceed before him as a single arbitrator, there remains the continuing objection by Ms. McChesney (who was instructed not to agree to such a hearing1 because the Vice-Chairman would be hearing the Union's case twice and might be affected by his having done so. It is important that there be no genuine perception of unfairness in the conduct of hearings. The various expedients referred to above, which were supported by the Union, contain real elements of unfairness or, at least, a clear perception of unfairness. It would be best, in the circumstances, for a completely new panel to be appointed to hear the case de novo. -- y Our decision only deals with the facts of the case before i: us. We recognize the special inconvenience to the Crievor becauSe of (a) having to have another day devoted to adducing evidence already given and (b) because of the additional delay caused by our decision. In another case, where many days of evidence had been completed, other considerations might call for a different result. In the circumstances, we conclude that even if jurisdiction existed to continue the case, in any of the ways supported by the Union, we should decline to continue to hear it. The Registrar will, no doubt, appoint a new panel to hear the case . DATED AT London, Ontario this15thday of .May, , 1986. 39&G+ M. R. Gorsky Vice-Chairman I. Freedman Member