GSB# 2003-3741

UNION# 02-48

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Canadian Union of Public Employees - Local 1750 (Augustine)

Union

• and -

The Crown in Right of Ontario (Workplace Safety and Insurance Board)

Employer

BEFORE

Dan Harris

Vice-Chair

FOR THE UNION

Ian Thompson Canadian Union of Public Employees

FOR THE EMPLOYER

William R. Gale Grosman, Grosman & Gale LLP Barristers and Solicitors and Gurjit Bran Counsel Workplace Safety and Insurance Board

HEARING

May 9, 2005.

Decision

This is an interim decision regarding the admissibility of a statement taken in the course of an internal investigation by the Workplace Safety & Insurance Board (hereafter, WSIB, or, employer) of an alleged fraud.

The grievor was a claims adjudicator with the WSIB. He was discharged from his position because the employer believed he had conspired with another employee, a payment specialist, and an injured worker, to defraud the WSIB.

As part of its investigation into the alleged fraud, the employer’s investigation branch interviewed the payment specialist who is said to have admitted his part in the scheme and made statements implicating the grievor. Part of the interview was taped and a transcript was prepared. I have neither heard nor read the statement. The hearing on the merits has commenced and the union now asks for an early ruling on the admissibility of the statement. The employer has indicated that it will seek to have the recorded statement and the transcript admitted into evidence through the investigator. It does not intend to call the maker of the statement. Seemingly, the payment specialist has subsequently repudiated the statement.

The union has objections to the statement regarding its completeness and recording quality. However, at this juncture, it only argued that the statement is inadmissible as hearsay, given the seriousness of the consequences to the grievor and the criminal nature of the allegations. The union says that the admission of this hearsay statement is not necessary, nor is the statement reliable.

The employer says that the statement is necessary because the participants in the alleged fraud are the only ones who have the knowledge necessary to prove the fraud, and this statement represents the knowledge of one of those participants. The statement is said to be reliable because it is a tape recording of a confession and a confession is a reliable statement.

In my view, the statement may not be admitted into evidence in the manner proposed by the employer. First, and most importantly, it is not necessary to admit the statement in the manner proposed. The payment specialist is available and may be called by the employer to give direct evidence. There are time tested evidentiary rules at the employer’s disposal should he turn out to be a hostile witness or if a need should arise to deal with any evidence he might give that contradicts the statement.

Second, the statement is not reasonably reliable. Hearsay statements may be safely admitted for the truth of their contents where, in the circumstances, the statements are reasonably reliable. Here we are considering a repudiated confession that is relied on by the employer because it is said to implicate the grievor, a co-conspirator. Such evidence is patently “unreliable” in the sense that that word is used in cases such as R v. Khan 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531. The maker of the statement is an interested party with acute self-awareness of the circumstances within which he is embroiled. This is not a statement for which cross-examination would be superfluous.

In R v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 at paragraph 29, the following excerpts are set out from Wigmore on Evidence, (2nd edition 1923), section 1420:

Of the criterion of necessity, Wigmore stated:

Where the test of cross-examination is impossible of application, by reason of the declarant's death or some other cause rendering him now unavailable as a witness on the stand, we are faced with the alternatives of receiving his statements without that test, or of leaving his knowledge altogether unutilized. The question arises whether the interests of truth would suffer more by adopting the latter or the former alternative ... . [I]t is clear at least that, so far as in a given instance some substitute for cross-examination is found to have been present, there is ground for making an exception. [Emphasis in original.]

And of the companion principle of reliability -- the circumstantial guarantee of trustworthiness -- the following:

There are many situations in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its purposes had been already substantially accomplished. If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance), in a high degree of probability, it [page930] would be pedantic to insist on a test whose chief object is already secured.

Certainly I have the authority to admit hearsay evidence pursuant to s 48(12)(f) of the Labour Relations Act, 1995. However, such discretion must be properly exercised. The proposed evidence touches on central facts in issue. Where direct evidence exists, it should be called and subjected to cross-examination. It is no answer that the union could call the payment specialist, have him declared hostile and then cross-examine him. The employer bears the burden of proof in this matter. I agree with the approach taken by Arbitrator Surdykowski, in Hamilton Health Sciences and C.U.P.E., Local 4800 (2004), 2004 CanLII 94767 (ON LA), 133 L.A.C. (4th) 139 (Surdykowsk) at paragraph 15:

15I am therefore satisfied that there were witnesses who could have given direct evidence for the Union with respect to the matters in issue, and that the hearsay evidence that the Union sought to rely on instead of calling that direct evidence is therefore inadmissible. For the same reasons, even if the hearsay evidence was admissible, I would give it no weight.

For the foregoing reasons, the union’s objection to the tendering of the statement of the payment specialist through the WSIB investigator is upheld.