Ontario (Ministry of Community Safety and Correctional Services) and O.P.S.E.U. (Gillis) (Re), 2005 CanLII 94221

Re The Crown in right of Ontario (Ministry of Community Safety and Correctional Services) and Ontario Public Service Employees Union (Gillis et al.)

[Indexed as: Ontario (Ministry of Community Safety and Correctional Services) and O.P.S.E.U. (Gillis) (Re)]

File Nos. 2003-1520; 2003-1526 to 2003-1532; 2003-1534; 2003-1536; 2003-1567; 2003-1569; 2003-1571; 2003-1573; 2003-1576; 2003-1578; 2003-1715 to 2003-1719; 2003-1825 to 2003-1851; 2003-3316

Ontario Crown Employees Grievance Settlement Board R.H. Abramsky

Heard: December 2, 2005 Decision rendered: December 7, 2005

PRELIMINARY AWARD

There are approximately fifty grievances before the Board, filed by ten Correctional Officers, as a result of discipline imposed on them by the Ministry. In July 2003, five of the grievors were dis-charged, and three were suspended in regard to an alleged excessive use of force incident against an inmate on October 18, 2002. In addi-tion, two other grievors were suspended for a related incident on May 23, 2003, involving alleged threats made to a material witness to the October 18, 2002 incident. The Union has objected, as a pre-liminary matter, to the admissibility of the investigator's report as well as the evidence of the investigator as it relates to his report, in this proceeding.

Facts

After an alleged assault on an inmate on October 18, 2002, the Ministry undertook an investigation of the alleged incident. The investigation report consists of four volumes. It contains an execu-tive summary, witness statements, photographs, a site map, a summary of the witness statements, an exhibit registry and the find-ings and conclusions of the investigator concerning each of the grievors. A further investigation was undertaken in regard to the alleged May 23, 2003 incident, and the investigation report deals with that matter as well. The Ministry relied on this investigation report to impose discipline on the grievors.

Positions of the Parties

The Union objects to the admissibility of the investigation report, and the evidence of the investigator regarding the report, on a num-ber of bases. First, the Union argues that the report is a hearsay document and should be excluded on that basis. Second, it asserts that it contains the opinions and conclusions of the investigator about what occurred and is therefore not relevant to these proceed-ings. Third, it argues that relying on the conclusions and findings contained in report would improperly usurp the role of the Grievance Settlement Board (GSB). Fourth, it asserts that the report is highly prejudicial to the grievors and would consequently taint the decision-making process itself as well as undermine the appearance of holding a fair hearing. In its view, justice must not only be done, it must be seen to be done.

The Union acknowledges that some parts of the report may be admissible, at the appropriate time, such as the witness statements. But it asserts that other parts of the report, particularly the investi-gator's findings of fact and conclusions which refer to the investigator's interpretation of employer policies, the Criminal Code, R.S.C. 1985, c. C-46, and even the College of Nurses' stan-dards, are not admissible and go to the very heart of what this Board must decide. In the Union's view, the Employer must call direct, viva voce evidence to prove its case, which is then subject to cross-examination, and should not be allowed to rely at all on the investigator's report. In support of its position, the Union cites to Re British Columbia Institute of Technology and B.C.G.E.U. (1995), 47 L.A.C. (4th) 99 (Blasina), and Re Loyalist College and O.P.S.E.U., unreported deci-sion of M. Bendel dated July 19, 1996.

The Employer argues that investigation reports, like the one at issue here, are regularly admitted into evidence at the GSB and relied upon. It submits that there are no GSB decisions which hold that such reports are inadmissible and entitled to no weight by the Board. In its view, the GSB, like any other board of arbitration, regularly admits investigation evidence and determines, at the end of the day, what weight, if any, to give to it. Admitting such evidence, it submits, does not usurp the role of the Board or in any way taint the process. It sub-mits that it is preposterous for the Union to assert that the admission of the investigation report will prejudice the Board. Instead, the Employer argues that the touchstone for admissibility is relevance. It asserts that the investigator's report is clearly rele-vant and material because it is the basis upon which the Ministry's decisions regarding discipline were made. It points out that the onus is on the Employer to establish just cause, and it contends that the investigator's report is an important element which provides a roadmap to its investigation and its determinations. The Employer further asserts that under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, hearsay evidence is admissible at arbi-tration and that it is not relying exclusively on the investigation report. It asserts that it will be calling direct viva voce evidence to support its case, as well as calling the investigator. The Union and the grievors, the Employer submits, will have a full and fair hearing of the issues, with the right to cross-examination.

In support of its contentions, the Employer cites to Re Ministry of Natural Resources and O.P..S.E. U. (Hastie et al.) (2003), GSB No. 0542/01 (Petryshen); Re Ontario (Ministry of Natural Resources) and O.P.S.E. U. (Wickets) (2005), GSB No. 2001-0542 (Petryshen) [reported 143 L.A.C. (4th) 14]; Re Ministry of Finance and Mehan (2005), PSGB No. P-2002-0004 (Leighton); Re Manitoba Telephone System and I.B.E.W., Loc. 435, [1998] C.L.A.D. No. 910 (QL) (Chapman), appeal dismissed, International Brotherhood of Electrical Workers, Local 435 v Manitoba Telecom Services Inc. (2002), 169 Man. R. (2d) 290 (Q.B.); Re Fraser Health Authority (Surrey Memorial Hospital Site) and N.E. U. (D'Emilio) (2004), 129 L.A.C. (4th) 302 (Dorsey); Re Kimberly-Clark Inc. and I.W.A.-Canada, Loc. 1-92-4 (1996), 66 L.A.C. (4th) 266 (Bendel).

Decision

Having carefully considered the submissions of the parties, I con-clude that the investigation report and the evidence of the investigator about his report are admissible.

The primary reason that the report, and the evidence of the inves-tigator, is admissible is because it is relevant. The report forms the basis of the Employer's decisions in regard to the discipline of the grievors. It reveals the investigation conducted by the Employer and how the Employer arrived at its decision to discipline the grievors. This includes the findings and the conclusions of the investigator, which the Union is free to attack and challenge as incomplete, erro-neous or improper, among other potential challenges.

In so ruling, I note that investigation reports are routinely admit-ted into evidence before the GSB and relied upon in the Board's decisions. This can be clearly seen in the GSB cases cited by the Employer. It may well be that the Union did not object, in those cases, to the admissibility of the investigative reports. But the Board's references to the investigation reports surely indicates their relevancy to the issues in dispute. O.P.S.E. U. (Hastie et al.) and Ministry of Natural Resources, supra; Mehan and Ministry of Finance, supra. Other arbitrators, as well, have admitted investiga-tion reports into evidence. Re Fraser Health Authority (Surrey Memorial Hospital Site) and Hospital Employees' Union, supra; Re Manitoba Telephone System and International Brotherhood of Electrical Workers, Local 435, supra.

As the Union argues, the opposite conclusion was reached in Re British Columbia Institute of Technology and British Columbia Government Employees Union, supra. In that case, the grievors were given a one-month suspension for alleged harassment, based on the report and recommendations of an outside investigator hired by the Employer. At the arbitration hearing, the Employer sought to intro-duce the investigation report as an exhibit, and the Union objected to its admissibility. The arbitrator determined that the investigation report should not be admitted into evidence. He determined that the report was not "evidence of the allegations against the grievors" and "not material and probative in respect to the alleged guilt of the grievors" since it was "a summary of her opinion of the facts and the guilt of the grievors." He ruled that it "cannot be a substitute to any degree" for the conclusions of the arbitration board and "[i]f accepted ... the evidentiary process would be tarnished; and merely because of its potential to influence the arbitrator, his decision would be tarnished too." The report was prejudicial, in his view, because of its conclu-sions and "because of the simple suspicion it would necessarily create" since one would wonder if his "determinations of fact were somehow influenced by a non-probative document expressing opin-ions on exactly what it is that I have to decide." Any probative value to the report was "outweighed by the danger of prejudice." He also stated that the report should not be admitted "because it would tell me how to decide the case" when that determination was to be made by him "from the evidence, and not a report about the evidence." (47 L.A.C. (4th) at 104-105)

With respect, I find that I cannot agree with this analysis. In my view, the investigation performed by the Employer and which forms the basis for its decisions is relevant. The report contains witness statements and photographs which the Employer relied upon. It also relied upon the findings and conclusions of the investigator. Those findings and conclusions, to be clear, are not binding on me. My determination of whether the Employer has established just cause will rest on the evidence produced at the arbitration hearing, not the findings of fact and conclusions of the investigator. But that does not mean that the investigation report is irrelevant and inadmissible. The investigation undertaken by the Employer and how the Employer arrived at its decisions is relevant to these proceedings.

In my view, admitting the investigation report does not taint the arbitration process or render the Board's ultimate determination sus-pect. That view implies, incorrectly, that the Board would be unable to come to its own conclusions about the weight to be given the evi-dence. A significant part of the job of an arbitrator — in every case — is to sort through evidence and determine what evidence is cogent and therefore should be relied upon, and what evidence should be ignored or given little weight. The fact that an arbitrator admits evi-dence which, at the end of the day, is given no weight does not taint the arbitration process. Although I agree with the Union that justice must not only be done, but be seen to be done, I cannot agree that admission of the investigation report would lead a reasonable person to conclude that justice has not been done.

For the same reasons, I cannot agree that the investigation report should not be admitted because of its potential "danger of preju-dice." Evidentiary prejudice is much more significant in jury trials than when a case is heard by a judge alone, or by a professional arbi-trator. Again, arbitrators routinely weigh evidence, and are capable of doing the same in regard to an investigation report.

I am also not persuaded that the investigation report should not be admitted under the analysis of the board in Re Loyalist College and O.P.S.E. U., supra. In that case, discipline was imposed following the investigation and hearing of students' complaints by "Boards of Hearing", established pursuant to College policy on the subject of discrimination and harassment. The reports were admitted into evi-dence, and the issue before the board of arbitration was what weight should be given to the reports in deciding whether the discipline imposed was warranted. The College had urged the board to accept the findings and con-clusions of the "Boards of Hearing" and to rely on them for the truth of their content. (Decision, p. 5). The Board rejected that approach, stating that deferring to the findings of such an inquiry would dilute the statutory and contractual rights of employees and the union in cases of discrimination and harassment. (Decision at p. 14). The board of arbitration therefore determined that it would not be "appropriate for us to consider their conclusions in coming to our own." The dissent argued that the Board's deteiuiination was pre-mature, and that the decision of what weight, if any, to give to the reports should be determined at the end of the day.

In my view, because the reports were admitted into evidence, the decision cannot and does not stand for the proposition that they are inadmissible. Rather, the Board there determined that it would make its own decision about just cause, based on its own assessment of the evidence, rather than accept and rely on the conclusions of the Boards of Hearing. That is what this board will do as well — make its own determination of whether the Employer had just cause. I believe, however, that the dissent was right that the determination of weight to be given the report, if any, should be done at the end of the day, after hearing all of the evidence, rather than at the start of the hearing.

I also do not agree that the investigation report should not be admitted because it is, essentially, a hearsay document. The report would only be hearsay if the Employer is relying on the content of the report for the truth of the matters asserted. That is not clear in the record, since the Employer stated that it will be calling viva voce evidence to establish its case and would not be solely relying on the report. Furthermore, hearsay evidence is admissible in arbitration — with the weight, if any, to be determined based on indicia of relia-bility and necessity.

Accordingly, for all of the foregoing reasons, I conclude that the investigation report, and the investigator's evidence concerning his report, is admissible in this proceeding.