GSB# 2003-0905, 2003-0906, 2004-3397
UNION# 2003-0205-0016, 2003-0429-0004, 2003-0103-0007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Dobroff et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of the Environment)
Employer
BEFORE
Nimal V. Dissanayake
Vice-Chair
FOR THE UNION
David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Paul Meier Counsel Ministry of Government Services
HEARING
July 26, 2006.
Preliminary Decision
The Board is seized with the following individual grievances:
- GSB file no: 2003-0906 filed by Mr. Mike Ladouceur.
- GSB file no: 2003-0905 filed by Mr. Frank Dobroff.
- GSB file no: 2004-3397 filed by Mr. Gerald Diamond.
In a previous preliminary decision dated January 31, 2005 in this proceeding, I had the occasion to detail the allegations asserted by the grievors in support of the grievances. All three grievances revolve around the employer’s decision to temporarily assign only the Water Group Leaders as Acting Geoscientist 4, following its decision in February 2003 to reclassify Air Quality Analysts (AQA) as well as Water Group Leaders (WGL) to the Scientist 4 level retroactive to January 1, 2002.
The grievor’s claim that the denial of the same higher rated temporary assignments ( I hasten to note that the employer takes the position that this was a reclassification rather than a temporary assignment) to the AQA’s, violated the collective agreement in several ways. First, it is asserted that the employer’s differential treatment of the two groups constituted a bad faith, arbitrary and discriminatory exercise of the management’s right to grant temporary assignments. Second, the union takes the position that the differential treatment was motivated not by legitimate business or operational considerations, but by improper considerations. It is alleged that the decision was an improper reaction to political pressure resulting from the Walkerton water contamination incident, the subsequent inquiry and report. Moreover, it is the union’s position that AQA’s as a group became subject to differential treatment, at least in part, because of the employer’s desire to take reprisal against grievor Ladouceur because of his union activity, and in particular because of the role he played in the Walkerton inquiry. Thirdly, the union claims that the employer’s decision was improperly influenced by “personal issues” that existed between at least two of the grievors and the Manager of Technical Support for the Northern Region.
The union proceeded first with its evidence over a number of days. After the union had closed its case, employer counsel moved for non-suit. The union advised that 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 July 26, 2006.
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.
The standard to be applied in assessing the evidence in determining a non-suit motion is considerably lower than the usual standard of “balance of probabilities”. The parties agreed that the test is whether there is “some evidence” to support the grievances. I note that in cases such as the present, where the focus is on the reasons and motivation for a decision made by the moving party, that party is best able to explain its rationale for the decision. That must be a consideration in assessing the standard of evidence to be expected from a respondent to a motion for non-suit.
Upon consideration of all of the evidence adduced during the union’s case, the aforementioned principles, and the submissions of the respective counsel, it is my conclusion that the employer’s motion must fail and it is hereby dismissed. In accordance with the Board’s practice and the agreement of the parties no reasons for that conclusion are set out.
Dated this 1st day of September 2006 at Toronto, Ontario