GSB#2008-3994

UNION#2008-0205-0161

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Deprophetis)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Danny Kastner Paliare Roland Rosenberg Rothstein LLP Barristers and Solicitors

FOR THE EMPLOYER

George Parris Ministry of Government Services Counsel

HEARING

August 27, 2010.

Decision

1The Board is seized with a grievance dated November 28, 2008 filed by Mr. Steven Deprophetis, who is employed by the Ministry of Labour as an Employment Standards Officer (“ESO”). For purposes of this decision, it is not necessary to review the detailed statement of grievance, other than to note that the grievance alleges harassment and discrimination by the grievor’s manager, Ms. Mili New. Following completion of the testimony of the grievor, the union proposed to call another ESO (hereinafter referred to as “MP”), who also reported to Ms. New. The employer objected. Following submissions, I orally ruled that I would not allow this evidence. At the request of the parties, I provide the following reasons.

2Union counsel submitted that MP would be testifying firstly as to his observations about the manner in which Ms. New applied policy and procedure to other ESOs, and about the relationship between ESOs and their manager. Counsel submitted that this evidence would be relevant since it would support the union’s allegation that the manner in which Ms. New treated the grievor was a departure from her general practice, and that the grievor was singled out for differential treatment.

3Secondly, counsel pointed out that one of the allegations in the grievance is that Ms. New had interfered with the grievor’s decision-making authority. He proposed to adduce evidence through MP that Ms. New interfered with MP’s decision-making authority as well. Counsel submitted that this would be similar fact evidence which would be relevant and probative. There would be conflict in the testimony of the grievor and of Ms. New as to what was stated to the grievor by Ms. New about his decision-making. Counsel submitted that MP’s evidence as to how Ms. New interfered with his own decision-making authority would assist the Board in resolving the credibility issues, given the evidence that the grievor was not the only one who was alleging interference by Ms. New.

4It should be noted that at the commencement of this proceeding, the employer took the position that the union had not provided adequate particulars. Following discussions, the Board was advised that the parties had agreed to proceed with the hearing and that the union’s particulars would be completed through the examination in chief of the grievor. (See, the Board’s decision dated March 29, 2010 in this matter, at para.2). The grievor had the opportunity to testify about the “departure from practice” and “differential treatment” allegation, and to some extent he did. Therefore, as per the agreement of the parties, any pre-hearing particulars provided by the union, and the grievor’s testimony in chief constituted the totality of the particulars which the employer would be expected to respond to. If MP was allowed to testify, he would either be giving his general conclusions or opinions based on his observations, that the grievor was differently treated by Ms. New, or he would be giving specific evidence about how Ms. New treated particular ESOs, in contrast to how she treated the grievor. In the former case MP’s conclusions and opinions would be inadmissible because that would be the very conclusions the Board is required to make. In the latter case, MP would be raising specific allegations which had not been particularized.

5Union counsel agreed, when questioned by the Board, that the employer may not be in a position to respond to, or even cross-examine MP in the circumstances. In order to address any prejudice to the employer, he offered that the union would not oppose a request by the employer that the hearing be adjourned to permit it to investigate before proceeding with the cross-examination of MP.

6I concluded that this aspect of the proposed testimony should not be entertained. First, the proposed evidence is contrary to the agreement between the parties. Second, in the collective agreement itself, the parties have explicitly acknowledged the importance of “full disclosure” for the amicable and expeditious dispute resolution processes. Thus article

22. 14. 4 provides:

22.14.4 The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution processes.

In the circumstances, adjourning the hearing is not an acceptable remedy where a party had failed to particularize its case. That is not a practice which should be endorsed by this Board. If MP’s testimony is allowed, the employer would be forced to request an adjournment in order to investigate the new allegations raised by MP. The employer may have to call other witnesses, including ESOs, to testify about their personal observations and experiences as to how Ms. New applied policy and procedure and treated ESOs. That would significantly prolong this proceeding. The Board must follow a policy that encourages parties to provide particulars in a timely manner. Adjourning a hearing in order to alleviate the prejudicial consequences of failure to provide timely particulars would not be consistent with that objective. That should be done only in very exceptional circumstances. This is not such a case.

7Now I turn to the second aspect of the proposed evidence to the effect that Ms. New interfered with MP’s decision-making authority also. Union counsel characterised this as “admissible similar fact evidence”. While this Board is not bound by strict rules of evidence applied by courts of law, those rules have a rational basis and are helpful in the exercise of the discretion the Board has. Similar fact evidence that shows only that an individual is the type of person likely to have engaged in the conduct alleged is inherently fraught with danger. In criminal law, this has been described as “one of the most deeply rooted and jealously guarded principles” Maxwell v. D.P.P., [1935] A.C. 309 at 317 (H.L.). Similar fact evidence to become admissible, must meet the initial test that it has relevance for some purpose other than that it tends to show that the individual was the type of person likely to have engaged in the alleged conduct.

8Once such relevance is established, the trier of fact must also be satisfied that the probative value of the similar fact evidence significantly outweighs its prejudicial effect. Thus in R. v. Arp, 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 at p. 341, the Supreme Court of Canada noted that “the probative value of the evidence must significantly outweigh the prejudice to the accused for the evidence to be admissible”. It is in recognition of the inherent dangers involved in the admission of similar fact evidence that the courts have set a high threshold that has to be met before such evidence may be admitted.

9While this Board is not a court of law, and the instant proceeding is not a criminal proceeding, the reasoning still applies. The Board cannot discern any relevance of the proposed evidence, other than to show that Ms. New is the type of person, who is likely to have harassed the grievor by interfering with his decision-making authority. Union counsel characterized the proposed similar fact evidence as “relevant for purposes of credibility”. The Board is being asked to believe the grievor’s testimony over the anticipated testimony of Ms. New, because of the evidence that Ms. New had engaged in similar conduct with regard to MP. While described as going to credibility, the purpose of the evidence is to urge the Board to make the very inference which is prohibited by the rules of evidence. That is an indirect way of urging the Board to conclude that Ms. New did engage in the conduct as alleged by the grievor, because the similar fact evidence shows that she has the propensity to engage in such conduct, and is the type of person likely to have engaged in such conduct.

10In the context of the collective bargaining relationship between these parties, there is a further reason which militates against the admission of the proposed evidence. These parties are party to a collective agreement. Employees are entitled to grieve alleged violations of the terms of the collective agreement. The grievance before the Board is an individual grievance filed by the grievor, not a group or policy grievance. The grievor has grieved that the employer had violated the collective agreement and/or other applicable law, inter alia, by interfering with his decision-making authority. Neither party was aware of any grievance by MP arising out of a similar allegation.

11It seems that before the Board can use the similar fact evidence for the purpose for which it is offered, it is inevitable that the Board would be required to first determine whether Ms. New engaged in the conduct as alleged by MP. That would involve litigation of an allegation by MP that the Ms. New had contravened the collective agreement in relation to him by interfering with his decision-making authority. Union counsel assured the Board that the union would not be asking the Board to make a finding that the collective agreement was contravened with regard to MP and that no relief for MP would be sought. Nevertheless, even without making a formal declaration, the Board will necessarily have to make findings of fact as to whether Ms. New treated MP in a manner not permitted by the collective agreement or other law. This will take place without MP ever having grieved.

12This in my view could lead to an anomalous and unacceptable state of affairs. If for example, MP in fact decides to grieve as he is entitled to do, alleging that Ms. New had contravened his collective agreement or legal rights by interfering with his decision-making authority, a Vice-Chair hearing that grievance would then be faced with findings of fact already made, on the very issues to be determined by him/her. Is that Vice-Chair required to accept such findings as binding? Or would the same issues be relitigated, with the potential of conflicting findings? Neither possibility makes good labour relations sense.

13The union advised the Board, after the ruling was rendered orally, that it had intended to call a further witness, to adduce similar fact evidence similar to that of MP. If management application of policy and procedure has impact on the rights of several bargaining unit employees, it is open for the union to file a policy grievance or group grievance on behalf of the affected employees. This has not been done. The only grievance before the Board is the individual grievance of the grievor. It is simply not appropriate to litigate and make findings of fact, even indirectly, on allegations of contraventions which have not been grieved, and which potentially may become the subject of a grievance.

14It was in consideration of all of the foregoing reasons that I ruled that I would not allow the proposed evidence.

15The hearing will continue on the dates scheduled.