GSB#2009-3185
UNION#2009-0377-0023
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Neuman)
Union
- and -
The Crown in Right of Ontario (Liquor Control Board of Ontario)
Employer
BEFORE
Richard M. Brown
Vice-Chair
FOR THE UNION
Sheila Riddell Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Dan McDonald Ogilvy Renault LLP Counsel
CONFERENCE CALL
May 17, 2011.
Decision
1Paul Neuman was discharged in November of 2009 for cashing a personal cheque in contravention of LCBO policy. He was reinstated pursuant to a settlement dated June 17, 2010 but did not report for duty on July 12 as scheduled. More than once during the summer of 2010, he told his employer that he was unable to work due to leg surgery. That was not true; there was nothing wrong with his leg. He had still not returned to work on September 30 when he was terminated for dishonesty.
2The employer relies upon a last chance provision in the settlement reached in June of 2010. According to that clause, in the event of any subsequent dishonesty on the part of the grievor, an arbitrator is precluded from altering the penalty imposed by management. The union contends that enforcement of this provision would amount to discrimination based upon disability in the circumstances at hand. The essence of the union’s argument is that the grievor’s conduct during the summer of 2010, including both his absence from work and dishonesty, was attributable to a mental disability. In support of this contention, the union seeks to lead expert evidence. The employer objects to the admission of such evidence.
3At the request of the union, Dr. Graham Turrall, a clinical psychologist, assessed Mr. Neuman in January and February of 2011. Dr. Turrall spent three hours with the grievor, including a two-hour meeting with him and his wife at home, and reviewed the results of tests conducted by a psychometrist. Dr. Turrall then prepared a report dated February 28.
4The employer has raised several objections relating to the admission of Dr. Turrall’s report and testimony. These objections fall into three broad categories: (1) that no expert evidence should be heard in this case; (2) that Dr. Turrall lacks the expertise and objectivity required to give expert evidence; and (3) that certain parts of the evidence which the union seeks to lead are inadmissible on some other ground. This interim decision deals exclusively with the first two types of objections.
I
5In determining whether this is an appropriate case for receiving expert evidence, I am guided by the Supreme Court decision in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, where a pediatrician was charged with sexually assaulting four teenage girls who were his patients. The defense sought to lead expert evidence from a psychiatrist that any perpetrator of such acts would be part of a limited group of individuals and that the accused did not belong to that group. After hearing the psychiatrist’s testimony in a voir dire (i.e. in the absence of jurors), the trial judge ruled this evidence should not be put to the jury, because he was not persuaded a person committing such crimes belonged to a group with distinctive behavioural characteristics. Sustaining this ruling in a unanimous judgement, the Supreme Court made the following general comments about the use of expert evidence:
Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to be decided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is "whether its value is worth what it costs." … Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequently considered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule …
In R. v. Abbey, supra, Dickson J., as he then was, stated, at p.42:
With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. …
This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information" which is likely to be outside the experience and knowledge of a judge or jury” …
There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial's becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.
These concerns were the basis of the rule which excluded expert evidence in respect of the ultimate issue. Although the rule is no longer of general application, the concerns underlying it remain. In light of these concerns, the criteria of relevance and necessity are applied strictly, on occasion, to exclude expert evidence as to an ultimate issue.
(para. 18, 21, 22, 24 and 25; emphasis added)
6In applying these comments to the case at hand, I begin with the question of whether expert evidence in this case could provide relevant information “outside the experience and knowledge” of an arbitrator. The answer to this question depends upon the nature of the contested issues. There is no dispute about whether the grievor was dishonest. Dishonesty is admitted. The remaining factual issues are twofold: (1) was the grievor disabled at the relevant time; and (2) if so, what causal link, if any, was there between the disability and dishonesty.
7I have no hesitation in concluding that expert evidence is admissible in relation to the first issue, because such evidence can provide information relating to mental disability that is beyond the experience and knowledge of an arbitrator.
8At this stage in the proceedings, it is less obvious to me whether expert evidence can provide relevant information beyond my knowledge and experience relating to the issue of causation. Faced with this uncertainty, I conclude the proper course is to hear the evidence and then determine whether it yields such information. This approach is entirely consistent with the one followed by the trail judge in Mohan and upheld by the Supreme Court. In particular, I note the trial judge heard the expert’s testimony in a voir dire before determining it did not offer probative information otherwise unavailable to the jury.
9Is the “cost” of admitting expert evidence in this case likely be so high as to be not “commensurate” with its benefit? The Supreme Court in Mohan identified two types of cost: misleading the trier of fact; and unduly extending the adjudicative process. In a case like Mohan, where jurors are the trier of fact, a judge can screen evidence to ensure a jury is not misled by it. No such screening is possible in an arbitration because an arbitrator combines the functions of judge and jury. Moreover, the prospect of a jury of lay people being misled is much greater than the prospect of the same happening to an experienced arbitrator. As to the time required to hear expert evidence on the two issues in dispute, I am not persuaded the associated cost is likely to be incommensurate with the benefit. In this regard, I note arbitrators often hear expert evidence in cases involving issues analogous to those before me.
II
10The employer contends Dr. Turrall is not an appropriate expert because he is not properly qualified.
11Dr. Turrall has been licensed since 1976 to practice as a psychologist in Ontario. He was awarded a doctoral degree in applied psychology by Boston University in 1975 and spent a year at Stanford University as a visiting scholar in the early 1980’s. Also in the early 1980’s, he was accredited as a Diplomate in Clinical Psychology, by the American Board of Professional Psychology, one of 42 such Diplomates in Canada at the time. He received a Professional Designation from the National Academy of Neuropsychology in 1990.
12Dr. Turrall served as chief psychologist of the Metropolitan Toronto Forensic Service at the Clark Institute from 1977 to 1981. There he worked with interdisciplinary teams preparing reports about whether patients were fit to stand trial or not criminally responsible for their misdeeds. He spent most of the 1980’s working with adolescents. As a sole practitioner in clinical psychology since 1987, he has done a broad range of work including acting as an expert witness in more than one hundred criminal cases at the request of the crown and defense counsel, without the aid of an interdisciplinary team.
13Dr. Turrall conceded he has not conducted any research in forensic psychology since becoming a sole practitioner. His formal training in forensic psychology took place before 1980, but he has since attended workshops, conventions and continuing education sessions in this field. He also subscribes to between 10 and 12 journals.
14Based on Dr. Turrall’s academic training, professional designations and work experience, I conclude he has the qualifications necessary to be an expert witness in this matter. In so concluding, I have not overlooked five court decisions cited by the employer, where a judge commented on expert evidence provided by Dr. Turrall. In some of these cases the court commented critically on part of his evidence, but in none of them was he found unqualified to be an expert witness.
III
15The employer also contends Dr. Turrall is not an appropriate expert because he lacks the required objectivity. There are essentially three prongs to this objection: (1) Dr. Turrall demonstrated a lack of objectivity insofar as his report does not explicitly address alternative theories; (2) comments in his report cast him in the role of advocate; and (3) he put himself in a conflict of interest by offering to provide therapeutic services to Mr. Neuman.
16Employer counsel argued Dr. Turrall engaged in advocacy when he described the grievor as a person who is “hardworking”, who “attempts to do his best” and who has “devoted his entire working life” to the LCBO. Dr. Turrall testified the comment about hard work was based on the grievor’s performance appraisals.
17Employer counsel also suggested Dr. Turrall behaved like an advocate by mentioning in his report, in relation to the grievor’s financial situation, only a single expense, which counsel characterized as a “sympathetic” one, a payment for in vitro fertilization. In my view, this suggestion is misguided, because the preceding paragraph of the report refers to expenditures made for repairs to the grievor’s vehicle and his home.
A conflict of interest is said to arise from the following passage in the report:
With professional assistance, Mr. Neuman is judged to be an individual who would benefit from a structured therapeutic approach and if give the opportunity … he is judged to be capable of resuming his status as a solid performer as a customer service representative. To assist in this process, this examiner would be most willing to see Mr. Neuman and his partner intermittently for a 6-month period until he is fully reintegrated with his employment. (emphasis added)
Employer counsel suggested this unsolicited offer of treatment gave Dr. Turrall a monetary stake in the outcome of this case which will determine whether the grievor returns to work and needs the sort of assistance offered. Dr. Turrall testified he offered help believing there was a risk of suicide if the grievor did not receive proper care. Asked in cross-examination whether he expected to be paid for his services, Dr. Turrall replied there was no discussion of remuneration and he does a lot of pro bono work for people who cannot afford to pay.
18The employer cited the following draft guideline released by the American Psychological Association in March of 2011:
Providing forensic and therapeutic psychological services to the same individual … involves multiple relationships that may impair objectivity and/or cause exploitation or other harm. Therefore, when requested or ordered to provide either concurrent or sequential forensic and therapeutic services, forensic practitioners are encouraged to disclose the potential risk and make reasonable efforts to refer the request to another qualified provider. If referral is not possible, the forensic practitioner is encouraged to consider the risks and benefits to all parties and the legal system or entity likely to be impacted, the possibility of separating each service widely in time, seeking judicial review and direction, and consulting with knowledgeable colleagues. When providing both forensic and therapeutic services, forensic practitioners seek to minimize the potential negative effects of this circumstance. (emphasis added)
I note this guideline counsels against assuming dual roles but does not prohibit doing so, as indicated by the last italicized passage.
19The employer relies upon Canada Safeway Ltd. and Bakery, Confectionary and Tobacco Workers’ International Union (2002), 2002 CanLII 79071 (AB GAA), 113 L.A.C. (4th) 385 (Smith) involving the termination for theft of an employee who claimed to have psychological problems. The evidence placed before the arbitrator included reports and testimony from two experts: a psychologist chosen by the union and a psychiatrist selected by the employer. After hearing both witnesses, Arbitrator Smith decide he preferred the evidence of the employer’s expert for several reasons, two of which are pertinent for present purposes.
20The first reason was the union’s psychologist had treated the grievor for approximately four months before preparing her final forensic report and testifying at the hearing. In this regard, Arbitrator Smith wrote:
One concern is that she assumed a therapist role after doing the [initial] assessment which creates the risk of a bias favourable to the grievor in her evidence… (para 37)
21The second reason Arbitrator Smith doubted the union’s expert was her approach to alternative hypotheses. He wrote:
Ms. Yasenik does not test other reasonable alternative hypotheses on the face of her report even though she says she did consider and reject hypotheses that she conceded in cross-examination were reasonable alternative explanations. (para. 37; emphasis added)
As indicated by the italicized passage, Arbitrator Smith was troubled, not only by the expert’s failure to explicitly address alternative theories in her report, but also by her admission in cross-examination that those alternatives provided a reasonable explanation for the grievor’s conduct.
22Union counsel drew my attention to a footnote in Dr. Turrall’s report stating “alternative hypotheses related to the client’s presentation were considered but rejected in favour of the diagnoses given.” Counsel suggested the proper way to address the employer’s concern would be to receive the report in evidence and allow Dr. Turrall to be cross-examined as to whether he actually did what the footnote says.
23In my view, the Safeway decision does not assist the employer in its effort to prevent Dr. Turrall from providing any expert evidence. In that case, Arbitrator Smith heard the evidence of two experts before deciding to prefer one over the other. If there is any lesson to be derived from Safeway, it is not that Dr. Turrall’s report and testimony are inadmissible, but rather that his evidence should be received, tested through cross-examination, and weighed against any competing expert evidence.
24The employer also relies upon United City Properties Ltd. v. Tong, 2010 BCSC 111, [2010] B.C.J. No. 145, a court decision dealing with an application by a property owner for a permanent right of way over an adjoining property. Each party sought to call as an expert the architect engaged by that party to assist in the redevelopment of the property. Each party also objected to the other’s expert on the ground of bias. Romilly J. began his review of the law by stating courts have differed in their approach to allegedly biased experts: some courts viewing partiality as a ground for excluding expert evidence; and other courts admitting testimony and reports lacking impartiality and then taking this factor into account when deciding what weight to assign to expert evidence. Romilly J. went on to conclude the latter approach is more in keeping with the restrictions placed on the admission of expert evidence by the Supreme Court in Mohan. Employer counsel relies upon this conclusion.
25It is important to note Reilly J. based this conclusion on comments made by the Supreme Court about the need for a judge to screen expert evidence before it is placed before a jury. He wrote:
The court [in Mohan] focused on the tendency of juries to accept expert evidence at face value, which in turn requires vigilance on the part of the trial judge in determining whether the weight a jury might give the evidence would be out of proportion to its reliability: if it would, it should not be admitted. …
Mohan … demand[s] up-front scrutiny of the proposed evidence to ensure that expert evidence is not put before the trier of fact if its reliability is not consonant with the level of deference which we can expect the trier of fact to give it. (para. 57 and 60; emphasis added)
26Everything Reilly J. said about Mohan, juries and the screening of expert evidence turned out to have no application to the case he was hearing, because he was sitting alone without a jury. In this context, he went on to rule the contested expert evidence was “admissible on this application subject to weighing where they espouse any bias” (para 69). There is no obvious reason why an arbitrator should treat expert evidence any differently than did this judge sitting alone.
IV
27My conclusions can be briefly summarized: (1) expert evidence is admissible in relation to the factual issues in this case; (2) Dr. Turrall has the qualifications to be an expert witness; and (3) his evidence should not be excluded based on the challenges made to his objectivity, although those challenges should be taken into account when weighing his testimony and report.
Dated at Toronto this 20th day of May 2011.