GSB# 2003-3099

UNION# OLB606/03

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union (Cahill)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Kourosh Farrokhzad Engelmann Gottheil Barristers and Solicitors

FOR THE EMPLOYER

Dan Palayew Ogilvy Renault Barristers and Solicitors

HEARING

March 11, 2005.

Interim Decision

I am seized with a grievance filed by Mr. Patrick Cahill, who was discharged by letter dated November 13, 2003 from his position of Store Manager level 1. In support of its assertion of just cause, the employer has attributed several culpable acts to the grievor, including sexual harassment of a female employee at his store; consumption of alcohol while on duty and providing alcohol to a contractor’s crew working at the store; and requesting another employee in his store during work hours to purchase marijuana for him.

The employer led its evidence over four days and closed its case. The union’s first witness was the grievor. During his testimony, employer counsel raised numerous objections, contending that the grievor’s testimony on particular points ought not be accepted, because in violation of the rule in Browne v. Dunn, the employer witnesses had not been put on notice during cross-examination that the union intended to call contradictory evidence on those points. I ruled at the time that I would allow union counsel to proceed with his examination of the grievor, and hear submissions and rule on all of the Browne V. Dunn objections prior to the cross-examination of the grievor.

Initially employer counsel raised 30 objections, but subsequently withdrew objections 5, 25, 26, 27 and 28. The union conceded that the rule in Browne v. Dunn had been violated with respect to objections 2, 3, 8 (partially). However, counsel nevertheless contended that despite the admitted violations, the grievor’s evidence ought not be excluded in the particular circumstances. With respect to objections 15, 16, 20, 21 22 and 23 the union agreed that the evidence objected to may be excluded.

The parties have no substantial disagreement as to the legal principles stemming from what is known as “the rule in Browne v. Dunn”. The disagreement was about how those principles should be applied to the specific objections. In Re Sunbeam Residential Development Centre, 1996 CanLII 20292 (ON LA), 54 L.A.C. (4^th) 54, I had occasion to examine in some detail those legal principles at pp. 63-67:

The law

The rule in Browne V. Dunn (1893), 1893 CanLII 65 (FOREP), 6 The Reports 67 (H.L.), is explained by Lord Herschell at pp. 70-71 as follows:

These witnesses all of them depose to having suffered from such annoyances; they further depose to having consulted the defendant on the subject, and to having given him instructions which resulted in their signing this document; and when they were called there was no suggestion made to them in cross-examination that that was not the case. Their evidence was taken; to some of them it was said, “I have no questions to ask;” in the case of others their cross-examination was on a point quite beside the evidence to which I have just called attention.

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue, but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course, I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, is so manifest, that it is not necessary to waste time