GSB# 2004-1101

UNION# 2004-0520-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Dhanju)

Union

• and -

The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Janice Campbell Counsel Ministry of Government Services

HEARING

December 8, 2005.

Preliminary Decision

The Board is seized with a grievance dated December 8, 2004 filed by Dr. Iqbal Singh Dhanju. In essence the grievance alleges that the employer had contravened article 3.1 of the collective agreement by discriminating on the basis of race, colour and ethnicity. The union claims that the violation occurred primarily between January and March of 2004 when the employer denied the grievor an opportunity to receive the benefit of developmental opportunities relating to new and more advanced computer technology. It is alleged that the grievor repeatedly sought, and was promised this opportunity. The union claims that the employer’s decision to deny that opportunity to the grievor was based, at least in part, on prohibited grounds related to his race, colour and ethnicity. The union claims that as a result of the denial of the developmental opportunity the grievor’s career advancement has been potentially affected adversely. The employer’s position is that its decisions were strictly based on good faith operational considerations, and also influenced by certain deficiencies on the part of the grievor.

The union proceeded with its evidence first. After it had closed its case, employer counsel moved for non-suit. The union advised that in the particular circumstances it would not require the employer to make an election as to whether it would be calling any evidence as a condition of proceeding with the non-suit motion. The motion was argued on December 8, 2005.

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.

The Divisional Court has made it clear that the standard to be applied is lower than the standard of balance of probabilities. Thus in Ontario V. OPSEU (Cahoon), (1990), 37 O.A.C. 218 in quashing a decision of the Grievance Settlement Board which had allowed a motion for non-suit, the Court wrote:

The Board began by setting out its understanding of a non-suit. While it held that a prima facie case had not been made out, its reasons make it clear that it believed a prima facie case had to be establishes on the balance of probabilities. This is, of course, incorrect. ... The standard of proof on a non-suit is that of a prima facie case, not a case on the balance of probabilities. If a prima facie case has been shown a non-suit must not be granted. It is erroneous to determine a non-suit on the basis of the higher onus of the balance of probabilities. A prima facie case is no more than a case for the defendant to answer.

A motion for non-suit in modern practice is made by the defendant, contending that the trier of fact should not proceed to evaluate the evidence in the normal way, but should dismiss the action. The defendant must satisfy the trial judge that the evidence is such that no jury acting judicially could find in favour of the plaintiff. The decision of the judge in both jury and non-jury actions is a question of law. Sopinka, The Trial of an Action, p. 124 (Butterowrths).

The “normal way” in a civil action would be on the balance of probabilities. Where a judge is sitting with a jury, the issue is whether there is some evidence to support the claim. If there is, the case goes to the jury. If there is none, it does not.

Considering the evidence adduced during the union’s case in light of the foregoing principles, I have concluded that the employer’s motion must fail and is hereby dismissed. In accordance with the Board’s practice, and the explicit agreement of the parties in this proceeding, no reasons for that conclusion are set out.

This proceeding will continue on the scheduled dates.

Dated this 19th day of December 2005 at Toronto, Ontario