Ontario (Ministry of the Solicitor General and Correctional Services) and O.P.S.E.U. (Ross) (Re), 2003 CanLII 89535

Re The Crown in right of Ontario (Ministry of the Solicitor General and Correctional Services) and Ontario Public Service Employees Union

[Indexed as: Ontario (Ministry of the Solicitor General and Correctional Services) and O.P.S.E.U. (Ross) (Re)]

File Nos. 2690/96; 1543/01 Ontario Crown Employees Grievance Settlement Board B. Herlich

Heard: May 5, 9 and 13, and July 17 and 18, 2003 Decision rendered: August 25, 2003

INTERLOCUTORY RULING concerning motion for non-suit. Motion denied.

J. Brewin, for the union. C. Jodhan, for the employer.

AWARD

Some 28 grievances were initially referred to me. That number has been reduced somewhat as a result of the employer's (partial) success with respect to certain preliminary issues which have been the subject of previous decisions in this matter. Subsequent to deal­ing with those preliminary issues (and a number of prior ill-fated efforts by the parties to resolve these matters), the hearing com­menced in earnest, i.e., the first viva voce evidence was placed before the Board.

The parties had agreed to bifurcate the proceedings and to com­mence with evidence related to a 20-day suspension imposed on the grievor. The employer called its case with respect to the suspension. Eight witnesses testified as to the relevant events. The pace of the proceeding was brisk, aided, no doubt, by the union's decision to forgo cross-examination in a number of instances.

At the conclusion of the employer's case, the union indicated that it wished to move for a non-suit; the employer took the position that the union ought to be put to its election. As neither party had any advance notice of the motions or positions the other intended to take, the hearing was adjourned to afford counsel the opportunity to research and prepare their positions. When the hearing reconvened the following day, the parties put full argument before me with respect to both whether the union ought to be put to its election and to the "merits" of the non-suit motion itself. After considering the evidence, the parties' submissions and the authorities cited, I have concluded that the union need not be put to its election. The union's "victory" on that score will, however, be somewhat short-lived, as I have also decided that the union's non-suit motion ought to be dismissed. Thus, the union will now face a choice resembling, though not identical to, the election — it will decide whether or not to call evidence or to simply argue the merits of the case (as opposed to the merits of the non-suit) on the basis of the evidence currently before the Board. In accordance with established practice and the parties' clear and explicit agreement on the point, I will refrain from providing any reasons with respect to my decision to dismiss the non-suit motion. I accept and agree with the parties and the various author­ities cited that the lack of elaborated reasons where a non-suit motion is dismissed (and the mover not having been put to his election) will serve to minimize (though not necessarily entirely eliminate) any of the unfairness which might otherwise be associ­ated with allowing only the moving party to potentially benefit from a "half-time score".

The parties were less emphatic and there is certainly little explicit support in the case law regarding the need for silence about the reasons for putting or not putting the moving party to its election. Thus, although the parties were content with the absence of reasons for a decision to not put the union to its election, I am of the view that some observations on the subject may well benefit the parties in this and in future cases.

The parties each acknowledged that the current state of this Board's approach to the issue can be traced to the decision in Re Ontario and O.P.S.E.U. (Faler) 218/89 (Fisher).

In that case the Board reviewed the sometimes conflicting con­cerns relating to expedition and fairness. Concerns of expedition may militate in different directions. In a case where devoting time to argue an ultimately unsuccessful non-suit motion results in addi­tional hearing day(s), expedition is clearly compromised. On the other hand, little can lend further expedition to the proceedings than a successful non-suit motion. The Board suggested, however, and with this one must heartily concur, that the historically routine response that the time required to hear an ultimately unsuccessful non-suit motion invariably extends the typical one-day arbitration hearing into two is somewhat anachronistic.

Against the potential gain in expedition must be measured the unfairness associated with allowing the moving party (if unsuccess-ful) to have the benefit of a glimpse into the adjudicator's mind before having to decide how or whether to call its evidence. The Faler panel (and I note that it was a unanimous decision of a tri­partite panel) concluded its discussion of the fairness concern as follows (at p. 7): ... it seems inappropriate for a Board such as the Grievance Settlement Board, which is constantly determining disputes between the same parties, to express full reasons as to why one party has failed to prove a prima facie case. This would be the equivalent to an "arbitral time-out" in which the opposing party has the opportunity to find out what the Board is thinking, and then plan its strategy for the rest of the case. In a situation like this, one would expect a motion for non-suit in every case, as it would provide a useful advantage in every case to the moving party, whether or not they had any chance of winning a motion of that sort.

However, these fears can be eliminated if the Board gives no oral or writ­ten reasons in the event the motion is dismissed. Of course, if the motion is upheld, full and proper reasons would be provided, as then the motion would end the case. A mere indication by the Board that the motion was dismissed would not give a tactical advantage to either party.

Despite the enthusiastic use of language, I, like employer counsel in the instant case, seriously doubt that all fears or concerns as to the unfairness of providing the "half-time score" to the unsuccessful moving party can be fully and completely eliminated by the absence of reasons for the dismissal of the motion. Of course, in Faler, the panel opted not to put the moving party to its election. That conclusion (at p. 8 of the decision) was particu­lar to the facts of the case:

In conclusion, when one looks at the interests of expedition and fairness as they relate to the circumstances of this particular case, it is proper that the Union be able to present its motion for a non-suit without the requirement of having to elect as to whether or not to call evidence, on the understanding that if the Board dismisses the motion, it shall do so without written or oral reasons. [Emphasis added.]

But despite what appears to have been a decision based on a con­sideration of expedition and fairness in the context of particular facts, the suggestion has been made that it stands for the proposition that this Board will not put a moving party to its election. A review of subsequent decisions might provide some initial support for that view. In Re Ontario and O.P..S.E. U. (Gibson/Patterson) 319/93 et al. (Barrett), no election was required and the Board referred only to the mover's submission that the lack of election would be "in accor­dance with the procedure of this Board set out in Faler".

In the Re Ontario and O.P.S.E. U. (Gallagher) 493/94 (Watters) case the Board declined to put the moving party to its election. In its oral ruling on the point the Board observed: I recognize that, generally, in civil proceedings a party motioning for non-suit is required to make an election as to whether they intend to call evidence before such motion will be entertained . . . I recognize further that the Grievance Settlement Board in Faler and in Gibson/Patterson has adopted a different procedure. The procedure serves to expedite the process with respect to motions for non-suit and, at the same time, removes any potential prejudice or advantage through not providing reasons for the denial of the non-suit in that event.

No election was required in the case of Re Ontario and O.P.S.E. U. (Reid) 2098/96 (Leighton), where the Board, sitting in a tripartite panel, decided unanimously that it "would follow the previous Grievance Settlement Board decisions [citing Faler, Gibson and Gallagher] which had not required the moving party to elect to call evidence and ... would proceed to hear the argument on the nonsuit motion". The Board did indicate that it was persuaded, in the facts of that particular case, that the proceedings would not be unduly prolonged if the Union was not required to elect and, to avoid unfairness, it would provide no reasons in the event the motion was dismissed. In Re Ontario and O.P.S.E. U. (Weemen) 1963/95 (Finley), the employer moved for non-suit and asked that the Board follow the

procedure set out in Faler; the Union did not dispute the propriety of "following the procedures set out in Faler". More recently in Re Ontario (Ministry of the Solicitor General and Correctional Services) and O.P.S.E.U. (Holmes) 157/98 (Saltman), no election was required: "in accordance with the Board's the usual practice, the Union was allowed to argue its motion without being put to its election as to whether or not to call evidence".

However, an empirical review of this Board's decisions on the point quickly reveals that there is no uniform or invariable practice of entertaining non-suit motions without putting the mover to its election. In both Re Ontario and O.P.S.E. U. (Ladha) 833/93 et al. (Dissanayake), and Re Ontario (Ministry of Finance) and O.P.S.E. U. (Knapp) 2720/96 (Abramsky), the moving party was put to its elec-tion. No reasons were provided in either case for the Board's decision to put the moving party to its election.

Thus, an empirical review of the its decisions reveals that while this Board is amenable to entertaining non-suit motions without putting the moving party to its election, there is no uniform or invari­able practice of so doing. To the extent the Board has refrained from providing reasons for its decision in individual cases and to the extent it has (perhaps somewhat mistakenly) purported to "follow the usual procedure" it may not have provided sufficient guidance for the parties in future cases to know how to separate those instances in which no election will be required from those where the moving party will be put to its election. Of course, it will come as no surprise to the parties that the pri­mary factors of expedition and fairness adverted to in the Faler case will be critical to any determination. There may, however, be other considerations. Having had the opportunity to review case law submitted from outside the Grievance Settlement Board, I have found one case to be particularly instructive in this regard. In Re White and Canadian Union of Shinglers and Allied Workers, [1996] O.L.R.B. Rep. March/April 215, Vice-Chair Surdykowski, writing for the Ontario

Labour Relations Board reviewed that Board's approach to non-suit motions generally and the election issue specifically. The decision canvasses the same concerns identified in Faler but adds another dimension to the matrix: the tribunal's own institutional interest in expediting procedures while maintaining fairness to the parties. The decision commends itself to a full and careful reading; the following extracts (at p. 219 et seq.) are particularly of note for our current purposes: ... although it has remained sensitive to the fact that it is also true that jus­tice in haste may be no justice at all, the Board has become increasingly proactive in its non-hearing processes and in hearings. No longer does the Board always sit mute, like some sort of labour relations sponge ever ready to absorb whatever the parties wish to throw at it for as long as they wish to do so. It is within this context that the Board's practices and policies have evolved, as a result of both the Board's experience within its specialized juris­diction and the Board's attempts to be responsive to the changing nature and needs of labour relations or related litigation, and the needs of the community which the Board serves. In the course of developing its practices and policies, the Board has examined the utility of various doctrines and practices which have been developed in other forums, particularly the Ontario courts. In that respect, the Board has long recognized that doctrines or practices developed elsewhere are not necessarily transferable to its proceedings. Consequently, the Board has been careful to ensure that a doctrine or practice developed elsewhere is suited to proceedings before the Board, either as such or in some modified forum.

One of the concepts which the Board has borrowed from the courts and modified to suit its purposes is that of the nonsuit motion. Initially, the Board simply adopted the procedure followed in Ontario courts and required a party moving for a nonsuit, and any parties supporting the motion, to elect whether or not it wished to call evidence .. .

However, the first look is not always the best or last one. And the Board has recently developed a different approach ... the Board has taken a second look at how a nonsuit motion should be dealt with in its proceedings. In the result, and recognizing the discretion it clearly has in that respect, the Board has become more receptive to the notion of a nonsuit motion without an election. Indeed, the Board has occasionally invited such motions itself .. .

The Board's approach in that respect is not inconsistent with fairness or natural justice. An application or complaint which appears to be going nowhere should be brought to an end, unless the Board can be persuaded that appearances notwithstanding there is some real possibility that the applicant/complainant may succeed, particularly in a time of scarce resources and incircumstances where the Board has no costs jurisdiction pursuant to which a party responding to a fruitless case can be compensated accordingly .. .

The fact that the Board entertains or invites a nonsuit type of motion without an election does not mean that the Board has already decided the issue. What it indicates is that the Board is concerned that a party which bears the onus with respect to an issue which is dispositive of the application or complaint before the Board, and which has closed its case, has not made out a prima facie case in that respect, and that the Board wants the benefit of the submissions of the parties in that regard. In effect, a party which fmds itself in a position of responding to such motion must "show cause" why the matter should proceed further, or to put it more directly, why the matter in issue should not be decided against it. In that respect, I note that the Board will only entertain or invite such a motion where the party which bears the onus in the matter before the Board (or an issue which is determinative of it) has had a full opportunity to present its evidence. It should come as no surprise that the Board engages in a continuous assessment of evidence in the matter before it as the case is presented. Indeed, this is something which the Board must do in order to be able to conduct hearings properly. Having engaged in such an assessment, and bringing its labour relations expertise to bear upon it, the Board is in a position to consider whether it is appropriate to entertain or invite a nonsuit type of motion when the party bearing the onus has closed its case. Fairness and natural justice require that a party have a full opportunity to present its case. A party which has failed to present a case which requires an answer is not entitled to say that it may be able to fmd something in evidence that another party may call. Nor does fairness or natural justice preclude the kind of ongoing assess­ment and application of its expertise by the Board to a case as it unfolds in a hearing, which may lead to a nonsuit motion.

It does not necessarily follow that a party will get an indication of the suffi­ciency of the evidence or case of the party opposite, except in the sense that it will obtain a ruling on whether there is any case at all which it must answer. It is difficult to see how this creates an unfairness. The prima facie test applied in a nonsuit motion is a lower threshold, from the perspective of the party responding to such a motion, than the balance of probabilities test which is applied when evidence is being weighed in Board and arbitration proceedings. Accordingly, a party could present a prima facie case but fail to persuade on a balance of probabilities. Further, whether or not the disposition of a nonsuit motion may create an unfairness is something which can be assessed in a parti­cular case, and is something which is properly taken into account in determining whether it is an appropriate exercise of discretion to put the moving party to its election. In the Board's experience, unfairness will not necessarily result if the moving party is not put to its election. On the contrary, a nonsuit motion without an election can be a useful discretionary tool for ending futile labour relations litigation.

The institutional character of the OLRB distinguishes it from ad hoc panels of arbitration. This Board undoubtedly shares characteristics

with both types of administrative tribunals. While the Grievance Settlement Board is a statutory institutional labour relations tribunal, it does not serve the citizens of the province generally or the broad labour relations community. Its functioning is restricted to a discrete number of collective bargaining parties. However, as an institutional tribunal, the Board must be concerned about its ongoing practice and procedures and should be ever vigilant to ensure the smooth flow and disposition of its considerable caseload. In that context, I see no reason why this Board's consumers like those of the OLRB should not, in appropriate circumstances, be confronted with the Board's own initiatives to streamline its proceedings. In that context, parties to this Board should not be surprised, again in appropriate circumstances, to be invited to argue a non-suit motion or to be asked, perhaps at any appropriate point in any particular proceedings, what useful purpose is to be served by continuing those proceedings. In summary, one of the guiding considerations in cases where moving party seeks not to be put to its election or in cases where the Board may invite such a motion will, to adopt the phrasing of the OLRB, be whether the Board itself is concerned that the party which bears the onus with respect to a dispositive issue and which has closed its case has not made out a prima facie case. The Board's con­cern is just that — merely a concern not a determination — making it a theoretical possibility (and an actual reality in the instant case) that the concern may or will be sufficient to preclude the need for an election but insufficient to warrant ultimately granting the non-suit motion.

An empirical review of this Board's case law suggests that such a guideline is consistent with this Board's approach to date. It is likely more than mere happenstance that in four of the five cases of this Board (reviewed above) since the decision in Faler where no elec­tion was required, the moving party was ultimately successful in its non-suit motion. It is more likely than not that the Board's concern about the strength of the case being advanced contributed to its decision to forgo any election. Thus, in determining whether to put a moving party to its election this Board will consider factors of expedition and fairness and will also gauge its own concerns about the strength of the case being challenged by the non-suit.

One must perhaps accept the reality that, in the absence of an inflexible rule against requiring an election in all cases, the tribunal's decision not to require it in an individual case will telegraph to the parties the very existence of the Board's concerns about the strength of the case. It is perhaps here that new concerns, or at least newly described concerns, about the unfairness of a half-time score may (re)surface. In the absence of an inflexible rule requiring election in all cases, it is difficult to see how to avoid this result. On the other hand, simply failing to acknowledge the concern will not extinguish it. In this area, the Board's circumspection with respect to the nature or extent of its concerns may well be warranted even in the context of a decision whether or not to require an election. But there can be no eliminating the generally sensible conclusion that where the Board opts not to put a party to its election, it is thereby exhibiting some (perhaps unspecified or unparticularized) concerns about the case which is subject to the non-suit. Thus, while it would be inaccurate to suggest that this Board has adopted a "usual procedure" of allowing non-suit motions to be made without requiring any election, it is accurate to observe that the Board is amenable to such an approach. The decision as to whether or not to put a party to its election will be one made in the context of the particular facts of the case at issue considered from the perspec­tive of the concerns which have been discussed in this decision.

This brings me to the application of those concerns in the case before me. There was no suggestion that concerns about expedition militated against allowing the union to proceed without election. Thus, I am satisfied that the goal of expedition can only be served or be relatively unaffected by not requiring an election in this case. Employer counsel is to be commended for his noble effort to iden­tify the specific unfairness that would result from permitting such a procedure. Essentially, he argued that, in the context of the instant case — one in which he expects credibility to ultimately be a major issue, requiring the employer to argue the "merits" of the non-suit motion before the union either elects or calls its evidence will place the employer in a difficult and unfair strategic position. It will have to decide whether to raise issues in the non-suit argument which might ultimately be the subject of further evidence or cross-examination. If it chooses to raise those issues, it will, effectively, be required to reveal aspects of its case prematurely. If it opts not to

raise these issues, the force of its argument may be diminished. In either event, it will suffer an unfairness as a result of the union not being put to its election.

With the greatest of respect to counsel's valiant effort in this regard, I am simply unpersuaded that there is some specific and avoidable unfairness which arises from the particular nature of the instant case. Indeed, whatever the ultimate nature of the case may be, in the context of the non-suit motion credibility is simply not a significant issue. The only evidence before me is that of the employer and, for the purposes of the non-suit motion that evidence will be evaluated from the perspective of whether it establishes a prima facie case not on the higher balance of probabilities standard applied at the conclusion of the case. And as the OLRB decision cited above makes clear, the failure of a party to have the opportu­nity to cross-examine opposing witnesses (whether on issues of credibility or otherwise), is not a reason, in itself, to require the moving party to be put to its election. Of course there is the generic unfairness which results from the moving party having the benefit of the "half-time score" in the event the motion is unsuccessful. In the present case, I am satisfied that can be mitigated by providing no reasons in the event the motion is dismissed. When that reduced unfairness is measured against the potential expedition, I am satisfied that it is appropriate to not require that the union be put to its election in this case. And of course, as discussed earlier the parties may rightfully conclude that my decision on the election issue reflects some concerns I have about the case advanced by the employer. In view of my earlier comments, I will say nothing further on this point. It was for these reasons that I have decided not to put the union to its election in this case. As indicated earlier, however, I have also decided to dismiss the non-suit motion. No reasons will be provided for that decision. The matter will continue as previously scheduled. The union is directed to advise the employer as soon as possible and, in any event, not later than one week prior to the next scheduled hearing day whether it intends to call any evidence or whether the employer should be prepared to commence final argument (on the issues related to the 20-day suspension) when the hearing reconvenes.