GSB# 2002-0474

UNION# 02A401, 02A402

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Vangou)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Hilary Cook Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Suneel Bahal Counsel Management Board Secretariat

HEARING

January 7, 2004.

DECISION

The following written ruling and reasons therefor are issued at the request of the employer, confirming an oral ruling made at the hearing on January 7, 2004.

The hearing into a grievance filed by Ms. Emma Vangou alleging that the employer had discriminated against her on the basis of her disability and because of her trade union activity commenced on July 8, 2003. The union proceeded with its evidence first. On December 9, 2003 the union called Ms. Judy Love as its second witness. It suffices to note that during her examination in chief Ms. Love testified that she had an illness related absence and that she had submitted “medical forms” filled out by her physician and further that the employer accommodated her with no problem in accordance with the physician’s recommendations. When union counsel indicated that she had completed the examination-in-chief, the parties agreed that the cross-examination of Ms. Love will be postponed until the next hearing day. Upon agreement the examination of in chief of the union’s next witness, Mr. Alex Papadopoulos, was taken up out of order. The Board was advised that at the end of the day, the union requested that the employer produce the “medical forms” which Ms. Love had testified about.

When the hearing resumed on January 8, 2004, the Board was advised that the employer had produced some of the medical forms in question, but that there may be others which the employer was attempting to retrieve from the government archives. Union counsel requested that, even though she had indicated the previous day that she had completed her examination-in-chief of Ms. Love, she be allowed to continue her examination-in-chief once all of the available medical forms had been produced by the employer.

The employer objected. Counsel submitted that from the outset the union’s position was that the grievor had been subjected to differential treatment and that the request for the medical documents should and could have been made earlier. In the alternative, union counsel ought to have reserved the right to continue her examination-in-chief of Ms. Love. Neither was done. Upon being questioned by the Board as to what prejudice the employer would suffer if the union’s request is granted, since the employer had not yet commenced its cross-examination of Ms. Love, employer counsel submitted that subsequent to Ms. Love’s testimony-in-chief, the employer had cross-examined the union’s next witness Mr. Papadopoulos, and that having listened to that the union was now in a position to “reconstruct” Ms. Love’s evidence to its advantage and to the employer’s detriment.

The Board orally ruled that the union will be given a limited right to re-open its examination-in-chief of Ms. Love. Specifically, any further examination of Ms. Love would be restricted to the medical documents submitted to the employer upon her return to work, circumstances surrounding their submission and the employer’s response, if any, to the same. The Board specifically ruled that the union will not be permitted to question the witness on any areas already covered or areas it could have reasonably covered without the benefit of the documents in question.

In applying rules of procedure, including rules of evidence, fairness must be the determinative factor. The key factor is that while the union had indicated that it had completed its examination-in-chief of Ms. Love, the employer had not yet commenced its cross-examination. In this case therefore, the request to “re-open” the examination by the union, is really a request to continue. In the Board’s experience, it is not at all uncommon that a counsel, having closed an examination of a witness would indicate that he or she had forgotten to ask questions on a certain matter and would seek leave to do so. As long as the cross-examination had not commenced, the Board would always grant leave, because there is no prejudice to the other party.

In the present case, fairness is even more in favour of allowing the union’s request. This is not a case where union counsel inadvertently omitted or forgot to question Ms. Love about the medical forms. She could not have questioned Ms. Love on the forms because the forms were not available. The mistake the union counsel made was the failure to reserve the right to continue her examination upon receipt of production. Despite that omission, in the particular circumstances here, where the employer had not yet commenced its cross-examination of Ms. Love, it would be unduly technical to deny the request of the union. The only potential prejudice the employer was able to point out was that the union has now had the opportunity to listen to its cross-examination of Mr. Papadopoulos and potentially can “reconstruct” Ms. Love’s testimony through further examination. If that is a real concern, the Board’s ruling addresses it. The only examination the union will be allowed relates to submission of medical documents upon return to work from an illness. Mr. Papadopoulos’ testimony did not even touch upon that subject matter. Therefore, given the restricted right given to the union, Mr. Papadopoulos’ testimony, including the cross-examination, cannot have any relevance to the examination of Ms. Love allowed by the Board’s ruling. The Board’s ruling avoids undue technicality, while at the same time ensuring that neither side is prejudiced.

It is for the foregoing reasons, that the Board made its oral ruling.

Dated this 15^th day of January 2004 at Toronto, Ontario