DIVISIONAL COURT FILE NO.: 10-DV-1631
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., VALIN and ARRELL JJ.
BETWEEN:
Communications, Energy and Paperworkers Union, Local 558G
Applicant
– and –
BA International Inc.
Respondent
Fiona Campbell and Kelly Doctor, for the Applicant
Stephen Bird, for the Respondent
HEARD: June 15, 2011 (Ottawa)
Background
1The applicant seeks judicial review of the Final Award of Arbitrator Richard Brown in the grievance of Laurie Arbeau dated April 7, 2010 as well as the interim award issued September 8, 2009. The Union contested the Employer’s refusal to pay the grievor for three sick days and four holidays. The grievor presented two medical notes to justify her absence from work but the Employer determined both to be insufficient in the circumstances. Neither doctor gave evidence before the Arbitrator.
2The particular circumstances here involved evidence from the grievor’s Supervisor that he had overheard one of the grievor’s co‑workers say that the grievor had stated she was intending to call in sick between Christmas and New Year. More specifically, the co‑worker is reported to have heard the grievor state she was planning not to take her blood pressure medication in order to be able to get a medical note supporting her absence.
3The Union objected to this evidence being led on the basis of it being hearsay. The Employer, however, argued that the evidence was not being led for its truth but rather only as proof the Supervisor had heard it and then acted upon it. The Employer further submitted to the Arbitrator, in order to avoid any prejudice to the Union, that it was prepared to have the Arbitrator assume that had the co‑worker been called she would have denied making the statement.
4In his Interim Award, the Arbitrator concluded that the Supervisor’s evidence about this “rumour” was not hearsay if admitted only to prove he had heard the comment, not to prove its truth.
5In fact, the grievor did call in sick December 29, 30 and 31, 2008. Her evidence was that she had a migraine and an upset stomach for which she attended a walk‑in clinic where she saw Dr. Garinther who told her that her blood pressure was elevated. Dr. Garinther provided a note which stated “patient advised to be off work Dec. 29 – Dec. 31/08”. This was admitted into evidence. The grievor’s Supervisor determined this note to be insufficient and requested more detailed information.
6Approximately one month later the grievor produced a second note from a Dr. Eliosoff which stated that she was unable to work during the relevant time due to uncontrolled hypertension, exactly the illness forecast by the rumour. The Employer concluded that both notes were insufficient and refused to pay the grievor for the five days in question.
Analysis
7In our view, absent procedural unfairness, the standard of review here is reasonableness. We agree with the Employer’s position that it was reasonable for the Arbitrator to find the Supervisor’s evidence was not hearsay. The Arbitrator made it perfectly clear in his reasons that this evidence was only presented to prove the statement was made and overheard, not that it was true. This of course was in line with his interim ruling. Moreover, the Arbitrator made it quite clear that this evidence fell short of proving that the grievor intended to be absent. Rather it left him “wondering how anyone accurately predicted both the timing of her absence and the malady claimed unless she intended to be absent and disclosed that intention”.
8Arbitrator Brown, in our view, appropriately concluded there was an onus on the Union to prove illness and therefore sick leave entitlement on a balance of probabilities. In analysing whether the grievor had met the onus he found that the grievor had provided only “cursory medical notes” and as a result concluded there was inadequate proof justifying the absence from work. The brief medical notes combined with the evidence of the rumour were sufficient, in our view, for the Arbitrator to conclude the Union had failed to meet the onus. In other words, the overhearing of the co‑worker’s statement by the Supervisor, was sufficient reason for the Employer to request further medical information. When further but insufficient medical information was forthcoming the Arbitrator reasonably concluded the onus had not been met. It should be noted that the second physician did not examine the grievor.
9As to the issue concerning a shift in onus to the Employer, while the law in this area has not been determined conclusively, we have concluded the onus does not shift to the Employer once a valid medical note is presented. The onus remains upon the Union to establish that the Employer had breached the collective agreement. It is the duty of an Arbitrator to assess the sufficiency of the medical information presented.
10The onus lies with the Union not only to establish the employee’s illness but also to establish that the Employer wrongly denied the employee payment for the absence. In the particular circumstances of this case, the Arbitrator reasonably concluded not only that the Union had failed to meet the onus but also that there was no shift in onus. Quite apart from the issue concerning a shift in onus, if an Arbitrator reasonably concludes that the Union has failed to meet the initial onus of providing sufficient medical evidence of illness, that is the end of the matter.
11Finally the Union argues there has been a breach of the principles of natural justice and procedural fairness here by reason of the Arbitrator’s acceptance of the rumour evidence, albeit for a limited purpose. It is the Union’s position that it was denied an opportunity to provide evidence concerning whether the conversation actually occurred, what was said, and the context and tone of the conversation. As well, they say they were unable to explore the credibility of the co‑worker and his/her relationship with the grievor. Given that the Employer indicated that if called the co‑worker would deny making such a statement, the identity of the co‑worker and the fact that he/she did not testify, the Union was in no way disadvantaged or impaired. None of the evidence, in any event, would have affected the Arbitrator’s determination of the central issue: was the medical information presented sufficient.
12For those reasons, the Application is dismissed.
Costs
Costs
13The Respondent shall have its costs which we fix at $5,463.17 inclusive of disbursements and HST.
Cunningham A.C.J.
Valin J.
Arrell J.
Released: June 17, 2011
CITATION: Communications, Energy and Paperworkers Union, Local 588G v. BA International Inc., 2011 ONSC 3812
DIVISIONAL COURT FILE NO.: 10-DV-1631
DATE: 2011/06/17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., VALIN and ARRELL JJ.
BETWEEN:
Communications, Energy and Paperworkers Union, Local 558G
Applicant
– and –
BA International Inc.
Respondent
REASONS FOR JUDGMENT
Released: June 17, 2011