GSB# 2001-1829, 2002-2390

UNION# 02B211, 2002-0211-0044

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Barillari)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community, Family and Children's Services)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Nelson Roland Barrister and Solicitor

FOR THE EMPLOYER

Ferina Murji Counsel Management Board Secretariat

HEARING

May 13, 2004.

Decision

The Board is seized with two grievances 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 grievor 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. I received submissions and this decision determines that issue.

The evolution of this Board’s jurisprudence on the issue of an election as a condition of making a motion for non-suit was recently reviewed in some detail in Re Ross 2690/96; 1543/01 (Herlich). The Board there reviewed the competing considerations of expedition and fairness as applied in the case law. Starting with the Board’s decision in Re Faler 0218/89 (Fisher), Vice-Chair Herlich examined the subsequent case law. Rather than repeat such an examination here, it suffices to note that the Board concluded that in some subsequent cases the Board considered that the invariable practice of the Grievance Settlement Board is to not put a party moving to non-suit to an election. Then citing certain other Board decisions, the Board concluded that there was no such invariable practice. At p. 5 it stated “... 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”.

At p. 10 it was observed:

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.

The Board in Re Ross recognized that “the primary factors of expedition and fairness adverted to in the Faler case will be critical to any determination” with regard to the issue of election. However citing extensively from a decision of the O.L.R.B. in Residential Roofing Contractors Asso. of Metropolitan Toronto, (1996) O.L.R.B. Rep. MAR/APR 215, the Board suggested that it was appropriate to consider a third factor, i.e. whether or not the Board itself had concerns that the party that had closed its case had not made out a prima facie case. At p. 9 the Board stated:

In summary, one of the guiding considerations in cases were (sic) 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 had 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.

At p. 9 the Board concluded:

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.

The Board recognized that this approach creates a problem in that every time it entertains a non-suit motion without putting the moving party to an election it “will telegraph to the parties the very existence of the Board’s concerns about the strength of the case”. However, the Board considered that to be an inevitable result in the absence of an inflexible rule of not requiring an election.

This Board, as well as other tribunals have in the past grappled with the concern about signalling the Board’s thinking, when denying a non-suit motion. Attempts have been made to minimize that concern by not providing any written or oral reasons when denying a motion.

In my respectful view, considering the Board’s concerns about the “strength of the case” at the election stage causes much greater problems than those created by denying the motion itself. As the Board in Re Ross recognized, if the Board does not require an election, it signals that it has concerns about the strength of the respondent’s case based on the evidence before it. Similarly, where it requires an election, it in effect indicates that it may be satisfied that a prima facie case has been made out. In effect it results in “a half-time score” being obtained at an even earlier stage of the game.

Besides that problem, I believe that such an approach will likely cause practical difficulties. In effect, it will force the parties to argue the non-suit motion itself at the election stage, significantly protracting that phase of the hearing. Since the criteria to be considered by the Board is “the strength of the case”, the parties are invariably going to try to convince the Board, while arguing the election issue, that it ought (or ought not) have concerns about the strength of the respondent’s case. In substance they will be litigating the existence of a prima facie case. If the Board is to formally recognize “the strength of the case” as a determinative factor, the Board will have no choice but to allow the parties to fully address that issue. In the present case the union’s evidence was led over five days. The union led evidence about numerous alleged employer actions and tolerances which it claimed were discriminatory and harassing of the grievor. Numerous documents were filed in evidence. If the “strength of the case” was to be a deciding factor, I believe that the parties would have dealt with all of that evidence as part of their submissions on the election issue. Indeed, they attempted to take that approach, and the Board had to indicate that it was not interested. I am very concerned that if the Board considers the “strength of the case” as a determinative factor in deciding the election issue, it will have no choice but to entertain the parties’ submissions as to whether or not it should in fact have a concern about the strength of the evidence tendered - in effect a rehearsal of the “prima facie case” argument. Then if no election is ordered, the parties will in effect be repeating that process in arguing the motion itself.

In this area, the Board’s goal is to balance expedition, fairness, and its own institutional interests as articulated in Re Ross. However, I consider the pitfalls of wading into the area of “prima facie case’ at the election stage are too great. I am not sure that the only alternative is a rigid rule of not requiring an election in every case.

As noted in Re Ross, only a very limited number of parties litigate before this Board. Furthermore, the clients as well as the lawyers who practise before this Board repeatedly appear before it. I am confident that these parties will not abuse “a non suit” motion to get a tactical advantage, merely because an election is not required. Even if tempted to do so, they would not want to lose credibility in the eyes of this Board. At the same time, I recognize that a rigid rule of not requiring an election in all cases is not appropriate. Besides the concern about encouraging non-suit motions, such a rigid approach would result in an undue and improper fettering of the Board’s discretion.

However, I believe that it is possible for this Board to adopt an approach which avoids getting into a consideration of the “strength of the case” at the election stage, while still allowing a measure of flexibility to consider the circumstances of each case. Having regard to my strong belief that the parties that come before this Board, whether it be employers or unions, will not bring motions for non-suit frivolously or with an improper motive, I prefer an approach of not requiring an election, unless the party responding to the motion can satisfy the Board that considerations of expedience versus fairness in the particular case justifies otherwise. In other words, the party responding to the motion must bear the onus of convincing the Board that in the particular circumstances of the case, it is appropriate to require the moving party to make an election.

Now I apply this approach to the case at hand. As noted earlier, the union’s evidence was tendered over 5 hearing days. The union led evidence about numerous actions and omissions attributed to the employer which it claimed supported the grievances. Employer counsel estimated that its evidence will take at least 4 to 5 hearing days. Therefore it is safe to conclude that if a motion of non-suit succeeds, it will save the costs and time involved in at least that many hearing days. In other words, efficiency and expediency is served in this case by hearing the motion without an election.

The next consideration is whether in this case, hearing the non-suit motion without requiring an election will result in unfairness or prejudice to the union, as would justify ordering an election even though it results in inefficiency and delay.

Union counsel submitted that the grievor, in the two grievances, has claimed that the employer had unleashed a “barrage” against her and engaged in discriminatory and hypocritical conduct against her. She has claimed that it has caused her extreme distress because she had been denied a right fundamental in her life, i.e. her ability to practice and express her religious beliefs. He submitted that only a decision by the Board on the full merits of the grievances after hearing all of the evidence from both parties will allow a viable employment relationship to continue between the grievor and the employer. Counsel urged the Board to allow the grievor her “day in court” rather than dispose of the case on a technicality. He relied on the following excerpt from Gorsky, Usuprich and Brandt in Evidence and Procedure in Canadian Labour Arbitration, Carswell 1995, at p. 12-4 to argue that there are sufficient policy reasons to discourage the non-suit motion in this case by requiring the employer to make the election:

It has been said that being forced to elect discourages a party from making a non-suit motion. This is clearly true. If a party could still call evidence after making an unsuccessful non-suit motion, there would be nothing to lose by the motion and such motions would be made routinely. We suggest, however, that the constraint on non-suit motions resulting from the forced election is a third reason for requiring the election. Arbitrators generally prefer to see a grievance resolved on its merits, rather than have the process short-circuited by a successful non-suit motion. More important, the abrupt truncating of the process robs the losing party (usually the grievor) of his or her “day in court”. There can be a beneficial effect, even to the losing side, of having the case fully and fairly presented at a hearing, then receiving an award that sets out considered reasons. Although arbitration proceedings are adversarial, the parties do not go their separate ways afterwards as in most conventional civil litigation. There is an ongoing relationship and the frustration generated by a party seeming to shelter behind a technicality is not conducive to fostering that relationship.

(Footnotes deleted)

With the greatest of respect, in my view it is incorrect to regard a non-suit motion as a mere “technicality”. It very much has to do with the “merits” of the case. In moving for non-suit, the mover in effect is stating that it has no case to defend against. The standard applied in a non-suit motion is low, i.e. whether there is any evidence which, if taken at its highest, establishes or gives rise to a reasonable inference in favour of the party responding to the motion. Any doubts in that respect are resolved in favour of the responding party. In other words a non-suit motion will succeed only in a case which has no merit and has hope of succeeding. In those circumstances, it would not be unfair to entertain, and if the standard is met, to allow a non-suit motion. In the Residential Roofing Contractors case supra at para. 21, the OLRB wrote:

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 in circumstances where the Board has no costs jurisdiction pursuant to which a party responding to a fruitless case can be compensated accordingly.

If indeed, a party responding to a motion has not presented a case to meet the low threshold of a prima facie case, fairness does not require that the moving party (whether union or employer) be forced to defend against a non-existent case. On the contrary to do so would be wasteful. It would be unfair to the moving party to be required to defend against a non-existent case, and it ignores the considerations of efficiency and expedience and the Board’s own legitimate institutional interests.

I conclude that the union has not satisfied me that, on a balancing of the criteria of efficiency and expedience versus fairness, an election ought to be ordered in the circumstances of this case. The Board will therefore entertain submissions on the employer’s motion for non-suit without putting it to an election.

The hearing will continue as scheduled on July 9, 2004 for that purpose.

Dated this 25th day of May 2004 at Toronto, Ontario.