GSB# 2003-3446, 2004-0770, 2004-1961
UNION# 2003-0506-0012, 2004-0506-0003, 2004-0506-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Whan et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Nimal V. Dissanayake
Vice-Chair
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
George Parris Counsel Ministry of Government Services
HEARING
January 11, 2007.
Decision
The Board was seized with three grievances filed by the following grievors:
(1) Stephen Whan (2003-3446)
(2) Susanne Saunders (2004-0770)
(3) Laura Benson (2004-1961)
Following the commencement of the hearing, the Board was advised that Mr. Whan had withdrawn his grievance. The union proceeded to lead its evidence on the two remaining grievances and closed its case. The employer at that stage brought a motion for non-suit, which was argued on January 11, 2007. At the completion of the submissions on the motion I orally dismissed the motion. This decision is to confirm that oral ruling.
I was referred by the parties to a number of decisions which discuss the legal principles to be applied in the determination of a motion for non-suit. Re Faler, 218/89 (Fisher); Re University of Western Ontario, 1990 CanLII 12893 (ON LA), [1990] 15 L.A.C. (4th) 189 (Dissanayake); Re Peele Co. Ltd. (1994) 1994 CanLII 18731 (ON LA), 39 L.A.C. (4th) 370 (Kennedy); Re Sager et al, 2000-0377 (Mikus); Re Dhanju, 2004-1101 (Dissanayake); Re Beltrano et al, 2003-3577 (Petryshen).
Over a period of time the Grievance Settlement Board has developed its own body of principles that govern motions for non-suit. The parties did not appear to be in disagreement on any of the applicable principles, although they disagreed as to the result of applying those to the evidence in this case.
The key principles to be extracted from the Board’s jurisprudence may be summarized as follows:
The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case.
In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities.
In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side.
In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion.
In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.
In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence.
Where a non-suit motion is granted a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written, will be issued.
In the instant proceeding, the union explicitly agreed that the employer ought not be put to an election.
Having considered the viva voce and documentary evidence tendered during the union’s case and the submissions of counsel in light of the foregoing principles, it was my conclusion that the employer’s non-suit motion must fail. I hereby confirm the oral ruling made at the hearing, and the motion is dismissed.
Dated this 15th day of January 2007 at Toronto, Ontario.