GSB#2009-1797, 2009-1798, 2009-1799, 2009-1800, 2008-1801

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Mar et al)

Association

• and -

The Crown in Right of Ontario (Ontario Science Centre)

Employer

BEFORE

Janice Johnston

Vice-Chair

FOR THE UNION

James McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Counsel

HEARING

April 1, 2010.

Decision

1The issue in this interim decision is the admissibility of the reports and other documentation prepared by an investigator pursuant to the Workplace Discrimination and Harassment Prevention (WDHP) policy.

2There are five disputes before me. Three of them relate to the discharge of three members of AMAPCEO (the "Association"), one is a policy dispute and the other contests a letter of discipline. This case is a complex one as it involves multiple complaints filed by members of the OPSEU bargaining unit vis a vis the three disputants who have in turn filed complaints against their manager.

3Association counsel took the position that the investigator's reports and the witness statements which form part of the background to the reports, were hearsay and should not be admitted into evidence. He argued that the prejudicial effect of entering these documents into evidence far outweighed any benefit obtained from doing so.

4Counsel for the employer, the Ontario Science Centre (the "OSC"), has indicated that he will be calling the investigator as a witness in this case and that he will also be calling some of the individuals interviewed by the investigator. Therefore, although counsel for the Association initially objected to the admission of the investigator's reports he has now agreed that they may be admitted subject to the following argument.

5Counsel for the Association takes the position that the investigators reports are hearsay, as are the witness statements, unless the individuals who gave statements to the investigator and the investigator testify before the Board. He also suggested that although these documents may be relevant to explain the employer's decision, they are not relevant to the determinations which I must make. Therefore, counsel suggested that the investigator should be called as a witness after the other individuals who were interviewed and provided statements to the investigator are called upon to testify before me. If the investigator is called first and the various reports prepared by the investigator as supported by witness statements are put before me, in the event that one or more of the witnesses are not called upon to give evidence, the association's case will have been prejudiced by the witness statements having been put into evidence. If the employer calls the individuals who gave witness statements prior to calling the investigator, in the event that such individual is not called as a witness in the proceeding before me, then the summary of this individual's statement can be redacted from the report as it would be hearsay that is prejudicial in nature. In support of his submissions counsel provided me with a copy of Re British Columbia Institute of Technology and British Columbia Government Employees' Union (1995) 1995 CanLII 18000 (BC LA), 47 L.A.C. (4th) 99 (Blasina) the "BCIT Case".

6Employer counsel pointed out that the Grievance Settlement Board (the "GSB") routinely admits the reports prepared by investigators appointed pursuant to the WDHP policy and that it would be a major departure from this should I refuse to admit the report. In support of this he referred to Ontario Public Service Employees Union (Gillis et al.) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (2005) (Abramsky) the "Gilles Case".

7Counsel for the employer resisted the suggestion that he should be directed to call his witnesses in a certain order. He suggested that at this stage in the process he has not yet determined what individuals he will call as witnesses nor what order he will call them in and that he should not be forced into a certain order.

8I am not prepared to direct counsel for the employer to call the witnesses he intends to rely upon to give evidence before me in any particular order. It is his case and it is his choice to call or not call individuals who provided statements to the investigator, what order to call them in and when he will call the investigator. If in the course of the proceeding it becomes apparent that there are one or more individuals, who provided statements which are referred to or summarized in the final report of the investigator, who counsel for the employer has indicated that he will not be calling as witnesses, we can re-visit the request made by association counsel to redact portions of the final reports which are based on input from such persons. I am certain that if it does become appropriate to delete or strike certain portions of the evidence before me, that it will be a relatively straightforward exercise and that I am capable of disregarding any aspects of the investigator's reports that I conclude it is not appropriate for me to give any consideration to.

9As I noted earlier, counsel for the association has agreed that the investigator's reports can be admitted, as the investigator is being called as a witness and can be cross-examined. However, just to be clear, I would like to point out that although the reports will be part of the evidence before me, they are in no way binding on me. Although I have not yet seen them, I assume that the reports will reflect the factual findings and conclusions reached by the investigator.

10In the proceedings before me, it is my role to determine whether or not the employer had just cause to terminate the disputants. I will make my decision based on the evidence called in the proceedings before me. In the event that there are factual disputes, I will assess the credibility of the witnesses called and come to my own conclusions without regard to any findings of fact or conclusions which may have been made by the investigator. As was noted by Vice-Chair Abramsky, in the Gilles Case, "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". I agree with this assessment of the arbitrator's role and want to make it clear that I will come to my own conclusions in this case based on the evidence before me.

11This matter will continue on dates previously scheduled.