GSB# 2006-0659, 2006-0929

UNION# 2006-0546-0022, 2006-0546-0030

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gauntlett)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Kirsten Agrell, Grievance Officer Ontario Public Service Employees Union (May and June 2008) Gavin Leeb Barrister and Solicitor (prior to May 2008)

FOR THE EMPLOYER

Michelle Dobranowski Counsel Ministry of Government and Consumer Services

HEARING

March 5, June 4, September 4, September 24 and October 22, 2007; May 28 and June 4, 2008

CONFERENCE CALL

May 6, 2008.

Decision

1In the grievances before me the grievor alleges

I have been unjustly denied access to the position of RTO Administrative Support Clerk under competition: 2675, 6276 and 6240. This act is a violation of sections 6.3 and 3.1 of the collective agreement.

and

Michelle Jeanes & Mariola Pachura-Allum unjustly discriminated against me when they refused to re-new my contract. This act is a violation of sections 3.1 of the collective agreement.

The competitions referred to were for positions in the Mississauga and North York Retail Sales Tax offices. The contract referred to was the second of two consecutive 6 month contracts for work as an unclassified administrative support clerk in the Mississauga office.

2Articles 3.1 and 6.3 of the collective agreement provide as follows:

3.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).

6.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor.

From the outset the union’s claim has been that the employer discriminated against the grievor on the basis of his race or colour in deciding as it did in the competitions and on the non-renewal.

3The parties agreed that these grievances would be heard together. They also agreed that I should first hear evidence and argument concerning whether the conduct or outcome of the competitions for positions in the Mississauga office or the non-renewal of the grievor’s contract position in the Mississauga office involved a breach of the collective agreement by the employer, deferring until afterwards any issues unique to the competition for positions at the North York office.

4The union has now closed its case in chief on those first matters. The employer asks that I dismiss the non-renewal grievance, and the competition grievance in respect of the Mississauga competitions, on the basis that the union’s evidence has not established a prima facie case. The parties agree that the employer should not be required to elect whether to call evidence of its own before I entertain this “non-suit” motion.

5The employer asks in the alternative that the grievor’s claim that Article 6.3 was breached be dismissed as inarbitrable, given the grievor’s unclassified status at the time of the competitions in issue, and that I rule that the union cannot now allege or argue that the decisions challenged were made in “bad faith,” as union counsel suggested it could during argument of the non-suit motion.

6For reasons that follow, I find for the employer on the latter two issues. As for the non-suit motion itself, I am not persuaded that there is no case to answer. The parties agreed that if I came to that conclusion I should not say what case I thought there was to answer. I will say some things about the test I had to apply in deciding the non-suit motion.

Whether the grievor can grieve an alleged breach of Article 6.3

7From the outset the employer’s position has been that, as an unclassified employee, the grievor could not grieve about an alleged breach of Article 6.3. The union took the position that in these circumstances reliance on Article 6.3 was justified by the decision in Norland, 1992-3160 (Gorsky). There was no question that an unclassified employee could grieve that the employer breached Article 3.1 in conducting a job competition, nor that evidence about what occurred during the competition might be relevant in determining whether there was such a breach. Accordingly, this issue about Article 6.3 was initially deferred.

8The only provisions of the collective agreement that apply to unclassified employees (other than seasonal employees, students and GO Temp employees) are those set out or identified in Article 31A of the collective agreement. Article 6.3 is not mentioned anywhere in Article 31A. Article 31A.16.1 expressly states that articles 6.1 and 6.4 apply to unclassified employees. It is well established that the express mention of those two parts of Article 6 confirms the exclusion of the others, including Article 6.3: Tone, 1994-2415 (Devlin) and the decisions cited therein at pages 7 and 8.

9The decision in Norland concerned the interpretation of what was then Article 3.15.1 of the collective agreement. That article was one of the provisions that were expressly applicable to unclassified employees. It required that the employer establish a position and post a vacancy in accordance with what is now Article 6 if the same work had been performed by an unclassified employee for at least two years and the ministry had determined that there was a continuing need for that work to be performed on a full-time basis. The Board concluded that by saying that the employer had to post a vacancy in accordance with what is now Article 6, Article 3.15.1 meant that the employer had to fill the vacancy in accordance with the standards set by what is now Article 6.3. Accordingly, an unclassified employee aggrieved about the outcome of a competition held pursuant to Article 3.15.1 could grieve a breach of those standards. The Board reached a similar conclusion about Article 3.15.1 in Union Grievance, 1991-0803 (Dissnayake).

10The competitions in issue here were not conducted under or as a result of the provision at issue in Norland, which no longer forms part of the parties’ collective agreement. Union counsel noted the Board’s observations in Norland concerning the interest of an unclassified employee in the fair conduct of a competition for a classified version of the job he or she has been performing. She argued that the approach to interpretation to which those observations had led was pertinent even if the provision in issue in Norland no longer existed. She asked that it be applied here. She was unable, however, to identify any provision of the collective agreement currently applicable to unclassified employees to which that interpretive approach could be applied so as to give unclassified employees the right to grieve an alleged breach of the obligations defined in Article 6.3.

11I conclude that the grievor’s claim that the employer breached Article 6.3 is not one that can be pursued on the grievor’s behalf in these proceedings.

Whether the union can now argue/allege “bad faith”

12During her response to the employer’s argument about Article 6.3 and about whether the union’s evidence made out a prima facie case of discrimination, union counsel submitted that even if the union lost on both of those points the grievances should be allowed to proceed on the basis that the union’s evidence had made out a prima facie case that the decisions in issue had been made in bad faith. Employer counsel objected, arguing that the union could not now allege some improper motivation other than discrimination.

13It is not clear what other improper motivation the union wished to attribute to the employer’s conduct. Its position seemed to be that if the employer conduct described in the union’s evidence did not support an inference that it was motivated by the grievor’s race or colour, it would nevertheless support an inference that the employer’s motivation, whatever it was, must have been improper. Whether the evidence presented could bear that burden or not, the threshold question is whether the union’s now alleging bad faith represents an improper expansion of the scope of the grievance as previously defined. I find that it does.

14Apart from the reference to Article 6.3 in the competition grievance, the only employer misconduct alleged in the grievances was breach of Article 3.1. It was very clear in preliminary proceedings, in the particulars delivered by the union and in the evidence up to the close of the union’s case that the only improper motivation being alleged was conscious discrimination on the basis of race and colour. The union did not characterize the employer conduct in issue in any other way until faced with the prospect that the grievances as they had been framed might be dismissed on a non-suit. That was simply too late to enlarge the issues and repurpose testimony on which cross-examination would have been guided by the theory on which the union had been saying its case was based.

15It is not open to the union to seek relief for the grievor on the basis that the decisions challenged were motivated by some improper or illegal consideration other than unlawful discrimination on the basis of race or colour.

The Non-Suite Motion

The test on a non-suit motion

16The parties’ counsel agree that the principles identified in Whan et al., 2003-3446 (Dissanayake) are applicable in this non-suit motion:

1. 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.

2. 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.

3. 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.

4. 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.

5. In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.

6. In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence.

7. 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.

17The test to be applied is illuminated by the decision in Gareh, 1998-1665 etc. (Brown), where the parties agreed that

my task in ruling on a motion for non-suit is not to determine whether the union has proven its case on the balance of probabilities, at least not in the way I would make that sort of determination after both sides had closed their cases

and that

at this stage in the proceedings the credibility of the union’s witnesses should not be scrutinized and all inferences reasonably supported by direct evidence should be made in favour of the union and grievor

but disagreed about whether there had to be “sufficient evidence” or merely “some evidence.” In the course of resolving that dispute Vice-Chair Brown made some useful observations at pp. 4-7 of his decision about the test and what courts have said about it:

The standard of “sufficient” evidence was adopted by the Ontario Court of Appeal in Hall v. Pemberton (1974), 1974 CanLII 468 (ON CA), 5 O.R. (2d) 438, page 439, where the Court quoted with approval the following passage from Parfitt v. Lawless (1872), 41 L.J.P.&M. 68:

I conceive, therefore, that in discussing whether there is any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue. (pages 72; emphasis added)

The only reasonable interpretation of “sufficient to support the issue” is adequate to allow a jury to rule in favour of the party resisting the non-suit. In other words, a judge ruling on a non-suit motion in a jury trial, assuming witnesses to be credible and making all reasonable inferences in favour of the party resisting the non-suit, must determine whether the evidence is “sufficient” in the sense that it could lead a properly instructed jury to rule in favour of that party.

The standard of “sufficient” evidence was again applied by the Court of Appeal in Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1985) 1985 CanLII 2248 (ON CA), 56 O.R. (2d) 160:

In dealing with such a motion, a judge must decide whether sufficient prima facie evidence has been presented by the applicant. At this stage, the plaintiff [opposing the motion] is entitled to have the facts interpreted in the manner which is most favourable to him or her: Hall v. Pemberton ... (page 167; emphasis added)

In advocating a lower standard of “some evidence,” counsel for the union relies upon the decision of the Divisional Court in Ontario v. OPSEU (Cahoon), (1990), 37 O.A.C. 218 quashing a decision of the Grievance Settlement Board which had allowed a motion for non-suit brought by the union in that case. 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 established 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 nonsuit 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 (Butterworths).

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. (emphasis added)

The Divisional Court’s comment that a motion for non-suit should be dismissed if there is “some evidence to support the claim” must be interpreted in the context of the immediately preceding passage from Sopinka’s The Trial of an Action saying the issue to be determined by the judge is whether “no jury acting judicially could find in favour of the plaintiff.” Based upon the Divisional Court’s apparent approval of this passage, I understand the Court’s reference to “some evidence to support the claim” to mean evidence which could lead a jury (or some other trier of fact) to rule in favour of the party opposing the motion, if the trier of fact found that party’s witnesses to be credible and made all reasonable inferences in its favour. This standard is no different in substance than the test of “sufficient” evidence utilized by the Court of Appeal in the Hall and Gallant cases.

In the case at hand, I must decide the motion for non-suit as well as serve as the trier of fact. At this stage, my task is to determine whether the evidence presented could be sufficient to lead me to rule in favour of the union, if I assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence.

It is not logically possibly to make this determination without taking into account the applicable standard of proof which is on the balance of probabilities. The question to be decided is whether I could rule that the union has proven its case on the balance of probabilities, if its witnesses are believed and it is granted the benefit of all reasonable inferences. The decision-making process on a motion for non-suit cannot ignore the standard of proof, but this process entails an application of that standard which differs markedly from the way it would be applied after both parties had closed their case. At that point, in determining whether the union had proven its case on the balance of probabilities, I would scrutinize the credibility of witnesses, and I would not draw inferences so as to resolve doubts in favour of the union, because the benefit of doubt should not be granted to the party bearing the onus of proof.

In what follows I refer to the test as the “sufficient evidence” test.

Are statements of belief “sufficient evidence?”

18The union called two witnesses: the grievor and his mother, a classified employee and shop steward in the Mississauga office. Their testimony included many assertions of their beliefs about the conduct and motivations of various members of management. The union does not expressly suggest that the witnesses’ beliefs themselves constitute any evidence of the truth of those beliefs. Clearly they do not. At one point in her argument, however, union counsel seemed to suggest that if a union witness asserted a belief in the course of his or her testimony, and employer counsel did not cross-examine the witness about the basis of the belief, then the testimony should be treated as evidence of the truth of that belief. I do not agree.

19When a witness (other than an expert witness testifying about the subject of her expertise) makes a statement of belief without identifying the basis of the belief, the statement ordinarily has no evidentiary value as proof that what the witness claims to believe is true. If the person who called the witness intends to prove that the belief is true, he or she must follow up with questions that elicit whatever personal, direct knowledge the witness may have in that regard. Failure to do so does not impose on the opposite party any obligation to identify the deficiency in cross-examination and give the witness an opportunity to repair it by asking the questions that the calling party failed to ask. In assessing whether the testimony here was sufficient to establish a prima facie case, I have not given any weight to statements of belief about disputed facts, when it was clear that is what they were.

20Sometimes it is not clear from a witness’s answer whether it recounts something the witness knows from direct observation or a mere belief based on something other than direct knowledge. One hopes that a witness has been told, when she is being prepared to testify, that her answers should be confined to matters of which she has direct knowledge, things she has actually seen or heard. It sometimes becomes apparent that a witness has not been given or has not been following such an instruction or, worse, is unable or unwilling to follow such an instruction even when she is given it during her testimony by a questioner or the adjudicator. This will affect not only the evidentiary value of an answer that appears otherwise but is discovered to be a mere statement of belief, but may also be taken into account in assessing the credibility of other answers that might otherwise have been understood as based on direct knowledge. In applying the “sufficient evidence” test, however, there is to be no assessment of credibility. Answers given are to be taken at face value and given the most favourable interpretation, within reason.

Is uncorroborated hearsay “sufficient evidence?”

21The thrust of the union’s case is that before the grievor was hired to work in the Mississauga office its management’s treatment of blacks in relation to employment opportunities was disadvantageous in comparison with the treatment of non-blacks, that the management of the Mississauga office hired the grievor without knowing that he was black, and that the treatment of the grievor thereafter in his employment and in the job competitions was disadvantageous in comparison with the treatment that non-blacks received in similar circumstances. Both of the union’s witnesses repeatedly testified about what others had told them concerning the treatment those others had experienced or witnessed, apparently intending that this be accepted as evidence of the truth of what they claimed those others had said.

22This Board may receive hearsay evidence that would be inadmissible in court proceedings.¹ It may be a breach of the Board’s obligation to conduct a fair hearing, however, to make a finding of fact on a disputed issue based solely on hearsay evidence. This is because the party against whom the finding is made will have had no opportunity to cross-examine the person whose statement is the basis of the finding.² Those considerations no doubt informed the Board’s approach in Gareh³ where, in applying the sufficient evidence test, Vice-Chair Brown repeatedly ignored uncorroborated hearsay that in his view could not be relied upon as proof of the propositions for which it was tendered.⁴

23The hearsay evidence that was disregarded in Gareh concerned allegations of fact that were clearly in dispute. I have no difficulty with the proposition that uncorroborated hearsay alone will not satisfy the sufficient evidence test with respect to allegations of that sort. I am not persuaded that uncorroborated hearsay evidence must be disregarded when it concerns a matter that is not clearly in dispute.

24One might hope that the factual issues in a case are sufficiently well defined that there are only facts clearly in dispute and facts not in dispute. In this case, however, there are some allegations of fact that must be described as not clearly or not seriously in dispute.

25The parties were ordered to provide written particulars of the allegations of fact on which they wished to rely. The pertinent portions of that order were these:

4Each of the parties shall provide the other with full written particulars of the allegations of fact on which it relies in these matters, … .

5With respect to each of the acts and omissions alleged therein, each party’s written particulars shall indicate what was done or not done, when, where, by what means and by whom, identifying by name any individual whose actions are being attributed to an organization. Conclusory statements based on unparticularized allegations of fact are not sufficient. The allegations of fact set out in a party’s particulars (exclusive of any conclusory statements or argument) should be sufficiently comprehensive that it would be unnecessary for that party to call any evidence if the opposite party were to admit that all of the allegations of fact therein were true. …

6Without limiting the generality of the foregoing, the particulars provided by the union shall include particulars of any acts or omissions on which it relies to demonstrate that the conduct or outcome of the competitions, or the alleged refusal to renew the grievor’s unclassified contract, constituted discrimination contrary to Article 3.1 of the collective agreement.

[8] The employer’s particulars shall specifically identify the allegations in the union’s particulars with which it agrees and the allegations with which it disagrees and, as to each allegation with which it disagrees, shall set out the version of the facts on which it relies in that regard.

The object of such an order is to define and narrow the issues in respect of which evidence is necessary, making it unnecessary for the parties to provide evidence about allegations not made or about allegations made and not disputed.

26Instead of delivering the union’s particulars in a single, comprehensive document setting out the union’s allegations of fact in some orderly manner, the union’s then counsel delivered a collection of several documents, some apparently written for the purpose of these proceedings and others apparently written for other purposes originally. Many of the events thus put in issue are described in more than one of the documents delivered, and not always in the same way. To its credit, the employer’s particulars dealt with this in an orderly, methodical manner. Despite paragraph 8 of the order, however, there are some allegations in the union’s particulars to which the employer’s particulars did not respond by stating whether it agreed or disagreed. One such omission became significant in assessing an objection to hearsay testimony during the hearing.

27During the grievor’s testimony in chief union counsel asked him what other unclassified employees had told him about when they had learned that their contracts would be renewed. Employer counsel objected that such hearsay should not be received as evidence of the truth of whatever these employees might have told the grievor. Union counsel responded that his question was with reference to the allegation in paragraph 9 of one of the documents that the union had submitted as particulars:

(9) The other staff, Erma, Adriana, Colin, Jerry, were told of the intent to extend their contracts at least a month in advance of the contract’s termination, while I was only told on the last day.

Union counsel noted that the portion of this allegation up to the last comma had not been denied or contradicted in the employer’s particulars, which had only said this about that paragraph:

With respect to the allegations contained in paragraph (9), the Employer asserts that it made an effort to advise workers as soon as possible if their contracts were going to be renewed. The Employer disagrees that the Grievor was only told that his contract was extended on the last day, but maintains that the Grievor was told verbally of the extension 2-3 weeks in advance of the expiry of his first 6-month contract.

28When an alleged fact is not clearly or not seriously in dispute, accepting hearsay evidence in proof of it does not raise the natural justice concerns that would arise if the allegation was clearly in dispute. I ruled that although the allegation that others had been told at least a month in advance had not been expressly admitted (if it had been, no evidence of it would have been necessary), I was prepared to receive the hearsay testimony as some evidence of its truth since the employer had not indicated there was any particular dispute about the allegation.

29Similarly, because the procedure in this hearing required that the employer say at the outset which of the union’s particularized allegations was in dispute, on the employer’s non-suit motion hearsay evidence may be “sufficient evidence” of an allegation that the employer has not expressly identified as in dispute.

When is circumstantial evidence “sufficient?”

30In today’s legal and social climate, someone who engages in discrimination on the basis of race or colour is not likely to provide direct verbal evidence of it. Evidence of deliberate discrimination of that sort must generally be circumstantial: evidence of observed behaviour and the context in which it occurred from which the improper motivation may be inferred. Application of the “sufficient evidence” test on a non-suit motion is said to involve giving the responding party the benefit of any inferences that its evidence, if believed, would reasonably support. What does this mean in the context of circumstantial evidence?

31The Board’s decision in Re The Crown in Right of Ontario (Ministry Of Colleges And Universities) and Ontario Public Service Employees’ Union (1982), 1982 CanLII 5040 (ON LA), 7 L.A.C. (3d) 415 (Roberts) touched on how circumstantial evidence should be assessed in the context of a non-suit motion (at pp. 416-7):

Where circumstantial evidence is submitted on a particular question of fact the sufficiency of this evidence to establish a prima facie case might be tested by asking, “Are there facts in evidence which if unanswered would justify men of ordinary reason and fairness in affirming the question which the plaintiff is bound to maintain?”: Wigmore on Evidence, 3rd ed., vol. IX (1940), [s.]2494, p. 299.

32The “if unanswered” part of the Wigmore formulation adopted by the Board is significant. Applying it to this context, the test must be whether, in the end, one might reasonably infer unlawfully discriminatory motivation from all or some part of the behaviour about which the witnesses testified if all of the evidence they presented about that behaviour and its context is considered to be true and if no evidence is adduced (through those whose behaviour and motivation were in question, or otherwise) to support some other explanation for the behaviour. The “if unanswered” assumption and its implications are particularly significant in a case like this, in which the employer’s particulars allege answers and explanations and, in cross-examining on the testimony in issue, its counsel repeatedly put to the witnesses (without their accepting them) answers and explanations that she said the employer’s witnesses would give in their testimony. I must ignore any possibility that any of those suggested answers and explanations may be true in assessing what inference I might draw from the union’s evidence.

33The test, then, is only whether discriminatory motivation is a possible explanation of the behaviour described in evidence, having regard to all of that evidence, not whether it is the only possible explanation or the most probable of the possible explanations or more probable than the sum of the probabilities of all other possible explanations or whatever the appropriate test may be when it comes time to weigh the evidence. This view of the matter seems consistent with the courts’ conclusion that the test in Hodges case is not to be applied to circumstantial evidence when deciding whether there is a prima facie case to go to the jury.⁵

34This is not to say that an attempt to prove discrimination will survive a non-suit motion on the basis of facts that would create no more than mere suspicion of discrimination even if left unanswered. The difficulty is in distinguishing between “valid inference” and “mere suspicion.”⁶ In drawing that line in this context one must consider that the issue concerns the motivation of people for whose conduct the moving party is responsible, whom it is in a position to call as witnesses and who are in the best position to explain why they did what they did.

35Having regard to all these considerations, I have concluded that the union’s witnesses gave some testimony that might lead me to find that discrimination played some part in one or other or both of the decisions challenged in these proceedings if, when the hearing ends, I find that that testimony was both true and inadequately explained. As I have already noted, the parties agreed in advance that if I came to that conclusion I should not say what case I thought there was to answer.

36This is not a finding that the grievor was the victim of discrimination, nor that he is entitled to any relief. It is not a finding that the evidence of the union witnesses about the events they described was true. It does not reflect any pre-judgment of the likely outcome of the hearing if I hear all or part of the evidence that employer counsel told the union’s witnesses she would be adducing. It is not a finding that all such evidence would have to be called in order to successfully defend the grievances, nor is this observation a hint to the contrary.

37Since I have concluded that the non-suit motion must fail, the hearing in this matter shall continue on dates to be determined in consultation with the parties.

Footnotes

1. 1ss.48(12)(f), Labour Relations Act, 1995, S.O. 1995, c.1, Sch, A, which applies to these proceedings by virtue of sections 2 and 7 of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, as amended.
2. 2Re Girvin et al. and Consumers’ Gas Co. (1974), 1973 CanLII 706 (ON HCJDC), 1 O.R. (2d) 421; and see Donald McConvey, [1985] OLRB Rep. Sep. 1386, where these considerations led that Board to refused to receive hearsay into evidence on a central allegation.
3. 31998-1665 etc. (Brown)
4. 4See Gareh, supra, at pages 12, 16, 19 and 26.
5. 5R. v. Paul, 1975 CanLII 185 (SCC), [1977] 1 S.C.R. 181, Lavoie v. The Queen, 1977 CanLII 212 (SCC), [1977] 1 S.C.R. 193, Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802.
6. 6Mezzo v. The Queen, id., ¶17.