GSB# 2001-1829, 2002-2390
UNION# 2002-0211-0005 [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
July 9, 2004.
Preliminary Award
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. Following submissions on that issue, the Board ruled that the employer will be allowed to make the motion for non-suit without making an election. On July 9, 2004 the motion was heard.
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 is the judge’s function to determine whether any facts have been established by the plaintiff from which liability, if it is in issue may be inferred. It is 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 is 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 given in trial up to that point. The judge does not decide 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 is 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 is 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, is subject to review by the Court of Appeal.
In the context of labour arbitration, the Board in Re Southern Alberta Institute of Technology (1994) 1994 CanLII 18637 (AB GAA), 43 L.A.C. (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 carries little persuasive weight. A non-suit, however, cannot succeed where there is some credible evidence which supports each of the essential elements of the claim.
I have considered the evidence adduced by the union in the instant case, in light of the foregoing principles, and concluded that the employer’s motion for non-suit must fail. Therefore the motion is dismissed.
The Registrar is to schedule this matter for continuation in consultation with the parties.
Dated this 19th day of August 2004 at Toronto, Ontario