GSB#2011-3489; 2011-3492

UNION#2011-0164-0034; 2012-0164-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McGrady)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Michael Lynk

Vice-Chair

FOR THE UNION

Val Patrick Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

June 24, 2013

Decision

I Introduction

1Sean McGrady was employed by the Liquor Control Board of Ontario in its London warehouse from August 2001 until his dismissal in January 2012. His dismissal letter, dated 18 January 2012, alleged that he had violated the LCBO’s policies on discrimination and harassment prevention and on workplace violation by driving by the home of his supervisor, Ms. Kelly Scott, on Boxing Day 2011. The Employer took the position that, given Mr. McGrady’s disciplinary history, his past instances of inappropriate and intimidating behaviour towards Ms. Scott, and his inability to provide a cogent explanation as to why he was driving by Ms. Scott’s home on Boxing Day in a secluded London neighbourhood shortly after being issued a 15 day suspension rising from his behaviour towards her, his intent was to seek out Ms. Scott’s residence in order to intimidate her and/or to plan some retaliatory action against her. The Union and Mr. McGrady deny all of these allegations, and are contesting both the 15 day suspension and the dismissal through the arbitral process.

2As a standard procedure in labour arbitration practise, the LCBO assumed the burden of proof in a discipline hearing, and led its evidence in support of both the 15 day suspension and the dismissal that it imposed upon Mr. McGrady. At the conclusion of the Employer’s evidence, which lasted three and a half hearing days, the Union moved a non-suit motion. It maintained that the LCBO had not met the accepted prima facie standard of proof with regards to the dismissal, and urged me to accept the motion. (It did not question the sufficiency of the Employer’s evidence respecting the 15 day suspension.) The LCBO argued that its evidence did satisfy the standard, and requested the dismissal of the Union’s motion.

II Award

3The legal principles that govern the application of a motion for a non-suit have been set out in a number of rulings at the Grievance Settlement Board and in the general arbitral common law. The current state of the law on non-suit motions at the Grievance Settlement Board is aptly stated in three leading decisions: (Ontario (Ministry of Finance) and O.P.S.E.U. (Gauntlett), [2008] O.G.S.B.A. No. 133 (Gray); Ontario (Ministry on Transportation) and O.P.S.E.U. (Whan et al), [2007] O.G.S.B. A. No. 7 (Dissanayake); and Ontario (Ministry of the Attorney General) and O.P.S.E.U. (Gareh), [2002] O.G.S.B. A. No. 54 (Brown):

4In Whan, Vice-Chair Dissanayake laid out the following principles to be considered in a 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.

5In Gauntlett, Vice-Chair Gray, after citing these principles, quoted some useful additional commentary from Vice-Chair Brown’s 2002 ruling in Gareh:

The 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 a 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 non-suit 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.

6Vice-Chair Gray then went on to apply the “sufficient evidence” test in the case of circumstantial evidence, and ruled against the motion for a non-suit.

7In addition to the above-mentioned decisions, the parties also relied upon the following non-suit rulings from the G.S.B., which I have read and considered: Liquor Control Board of Ontario and O.P.S.E.U. (Thompson), [2012] O.G.S.B.A. No. 155 (Brown); Ontario (Ministry of Children and Youth Services) and O.P.S.E.U. (Gill), [2012] O.G.S.B.A. No. 100 (Harris); Ontario (Ministry of Revenue) and O.P.S.E.U. (Allin), [2010] O.G.S.B.A. No. 125 (Dissanayake); Ontario (Ministry of Transportation) and O.P.S.E.U. (McCormick), [2010] O.G.S.B.A. No. 185 (Stephens); and Ontario (Ministry of Finance) and O.P.S.E.U. (O’Connor), [2008] O.G.S.B.A. No. 19 (Lynk).

8As well, the parties submitted to me a number of arbitral cases on harassment, intimidation and threats. I will not cite them here, but I have carefully reviewed all of them in the course of deciding this motion.

9Applying the “sufficient evidence” standard to the evidence led in this case, I have decided to dismiss the Union’s motion for a non-suit. I am satisfied that the evidence entered by the employer is sufficient to prove its case on the prevailing standard. However, as I stated to the parties when delivering my bottom-line decision orally to them, this ruling does not foreshadow my ultimate decision on the dismissal grievance, one way or the other, as the standard of proof to be applied at the end of the case will be distinctly different.

10This matter shall continue on the dates already determined by the Board and the parties.