GSB#2013-3490, 2014-2224

UNION#2013-0290-0051, 2014-0290-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Iyamu)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

WRITTEN SUBMISSIONS

July 15, July 31, August 7, 2015

Decision

1This grievance challenges the employer’s decision to terminate the grievor’s employment as a Youth Officer at a youth detention facility. The letter of termination provides:

Having reviewed all of the information, including the investigation report and the facility video, I have concluded that all of the allegations have been substantiated. You provided an inaccurate occurrence report that did not describe what you did to the youth and you stated to the ministry investigators that the youth grabbed you and pulled you forward. Instead, [the] investigation has determined that you forcefully shoved the YP into his bedroom. Your use of force to shove the youth into his room is not a ministry approved technique. Your use of excessive force on the youth resulted in a head injury that required medical attention.

2The employer has the onus of establishing that it had just cause to terminate the grievor’s employment. During the hearing of the employer’s case, an evidentiary issue has arisen. This interim decision deals with that issue.

3The employer conducted an investigation following the incident at issue. A report was prepared by an investigator that, I am told, was relied on by the decision-maker, Kevin O’Brien, in reaching the decision to terminate the grievor’s employment. I have yet to hear Mr. O’Brien’s testimony, however, the parties are content that I assume that fact for purposes of this decision.

4The employer seeks to have the transcript of the youth’s interview with the investigator admitted in evidence for the truth of its contents, with any weight to be determined at the conclusion of the hearing. The union concedes that the investigator’s report, which includes that transcript, is arguably relevant to show how or on what basis Mr. O’Brien came to the decision to terminate the grievor’s employment and that it is therefore admissible for that purpose. However, it opposes the transcript of the interview being admitted for the truth of its contents as it is hearsay evidence that, it argues, is neither necessary nor reliable.

5Thus, while it is anticipated that the transcript of the youth’s interview will be admitted into evidence as part of the investigation report when Mr. O’Brien testifies, the issue now before me is whether that transcript is admissible for the truth of its contents, subject to the usual caveat that underlies all evidence, that is, what weight ought to attach to the evidence at the end of the day, or, whether it is being admitted for the more limited purpose of showing what information was utilized by Mr. O’Brien in reaching his decision.

6The primary factual issue in this case is a determination of what occurred over approximately three seconds during an interaction between Anthony Iyamu (the “grievor”) and the youth (“YP”). The employer asserts that the grievor “shoved” or pushed the YP into the YP’s bedroom. That allegation is denied. A video recording has been entered in evidence and the viva voce testimony of two Youth Officers has been received. It is apparent from the video evidence that the primary witnesses to the interaction at issue are the grievor, the YP, and another Youth Officer who has testified. A second Youth Officer has also testified as to his observations.

7The YP has not testified. The employer served a summons (with appropriate conduct money) on the YP for attendance at the hearing on June 19 and July 2, 2015 and continuing as required. The affidavit of service confirms personal service at the Toronto address identified on the summons. The YP was not called to testify on June 19, 2015 and, prior to adjourning on June 19, 2015 the employer advised that, although not available that day, the YP was available on July 2, 2015, the next scheduled hearing date. The YP did not attend the hearing on July 2, 2015. The parties agreed to adjourn to July 3, 2015, the next scheduled hearing date. The YP did not attend on July 3, 2015. To the employer’s knowledge, the YP was not in custody over this period. There was no indication that the employer made any attempt to enforce the summons. There was also no indication that the YP is not available to testify. The employer has indicated that it does not now intend to call the YP but rather seeks to rely on the transcript of his interview. I have been provided with a copy of the investigation report containing the interview transcript. Transcripts of other witness interviews have been referred to without objection in the examination and cross-examination of those same witnesses who have testified. Written submissions with respect to this evidentiary issue were filed by the parties following the July 3, 2015 hearing date.

8The employer referred me to and I have reviewed: OPSEU (Marshall) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2012-1308 et al., May 13, 2013 (Abramsky) (“Marshall #1”); R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Gillis), (2005) 2005 CanLII 94221 (ON GSB), 145 L.A.C. (4th) 205 (Abramsky); OPSEU (Ewing) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 1009-2078, November 28, 2011 (Briggs); Amalgamated Transit Union (E. Blake et al) and Toronto Area Transit Operating Authority, GSB No. 1276-87, May 3, 1988 (Shime); and Gorsky et al. Evidence and Procedure in Canadian Labour Arbitration, loose-leaf as at July 10, 2015, Thomson Reuters Canada Limited, 1994, at section 11.4(b).

9The union also referred me to Marshall #1; Khan; OPSEU (Ewing), and OPSEU (Gillis), all supra. In addition, it referred me to and I have reviewed: Ministry of Community Safety & Correctional Services and OPSEU (Lavallee), 2001 CarswellOnt 10295, 108 C.L.A.S. 94 (Watters); OPSEU (Marshall) and Ministry of Community Safety & Correctional Services, September 16, 2013 (Abramsky) (“Marshall #2”); Ministry of Children and Youth Services and OPSEU (Gallina), 2011 CarswellOnt 16412, 105 C.L.A.S. 115 (Fisher); and Ontario (Science Centre) and AMAPCEO (Mar), 2010 CarswellOnt 11654, 101 C.L.A.S. 210 (Johnston).

10As noted, the employer asks the Board to admit the transcript into evidence for the truth of its contents and to determine its weight at the conclusion of the hearing. It was acknowledged by the employer that the transcript is, in this context, hearsay. The employer argued that the Board has already ruled on the admissibility of statements of individuals who are unavailable to testify, referring to the decision in Marshall #1, supra. The employer asserted that the Board has a long-standing practice of admitting investigation reports, subject to arguments as to their weight. The report was relevant, argued the employer, as it formed part of the information relied on by the employer in reaching its decision to terminate the grievor’s employment and was admissible under the broad procedural powers under section 48(12)(f) of the Labour Relations Act, 1995. The employer submitted that the weight to be accorded the transcript should be determined at the conclusion of the hearing based on indicia of reliability and necessity and that it was reviewable error to reject hearsay evidence without considering whether it was reliable. The employer argued that the issue of whether to admit investigation reports containing transcripts had been dealt with by the Board and, pursuant to the decision in Blake, supra, those decisions should be followed as there are no material grounds to distinguish the case at hand.

11The union noted that the employer was seeking to rely on the transcript as direct factual evidence of the incident in issue. It argued that in a discharge case the employer must prove its case with clear, convincing and cogent evidence, referring to the decision in Lavallee, supra. Evidence that has not been subject to cross-examination and has other serious flaws that undermine its reliability should not be accepted as either clear or cogent, argued the union. The union relied on a number of asserted facts that it argued undermined the cogency of the transcript of the YP’s interview with the investigator.

12The union noted that, in similar circumstances in Marshall #1, the Board determined that statements by inmates sought to be introduced by the employer did not meet the test of necessity and reliability set out by the Supreme Court of Canada in Khan, supra, concluding that the statements were not sufficiently reliable so as to admit them for the truth of their contents. Although exercising the discretion to admit the statements under section 48(12)(f) of the Labour Relations Act, 1995, the union argued that that decision related to a different purpose and noted that, in its final decision, the Board made clear that no weight had been placed on the inmates’ statements for the truth of their content. This, argued the union, was an issue as to the admissibility of the documents rather than one that assessed the weight of the documents.

13Similarly in Gillis, supra, argued the union, the same Vice-Chair admitted the investigation report noting that the report would only be hearsay if the employer was relying on the content for the truth of the matters asserted, and further, that the employer had stated that it would be calling viva voce evidence and not relying solely on the report.

14In Gallina, supra, argued the union, the Board noted that its job was different from that of the investigator and confirmed that it would rely only on evidence that was subject to cross-examination, rendering statements inadmissible for the truth of their contents. The union argued that the decision in Ewing, supra, deferred the question of what reliance would be given to the investigator’s report in circumstances where it was not clear whether the report contained evidence of witnesses who would not be called to testify. In Mar, supra, argued the union, the Vice-Chair admitted a WDHP investigator’s report while deferring a decision on the admissibility of the report for the truth of its contents, noting uncertainty as to who would be called to testify and giving consideration to redacting statements of witnesses who were not to be called.

15The union argued that to some extent the issue was one of timing, as the issue was whether the YP’s statement was to be admitted for the truth of its content, not whether it would be admitted at all. Even if seen as a matter of assessing weight, argued the union, that could be achieved now, as the issue had arisen at the end of the employer’s evidence regarding the factual allegations. There was no prejudice to the employer in making the determination now, argued the union, while it might bear on how the union proceeded. The YP’s statement to the investigator was neither necessary nor reliable, argued the union, and any request that it be admitted for the truth of its contents ought to be dismissed at this point in the proceeding.

16In reply, the employer took issue with the union’s reliance on certain asserted facts. It also argued that, as the union had no substantial objection to the document being admitted for proof that the interview took place and that the statement was made, any issue of weight to be given to the transcript ought to occur at the conclusion of the hearing. To do otherwise, argued the employer, would be procedurally unjust and prejudice the employer. The employer noted that the decision to accord no weight to the inmates’ statements in Marshall occurred only at the end of the hearing, after the Board had heard all of the evidence and the parties’ submissions. Similarly, argued the employer, the Gallina decision did not address the timing issue, as it was a final decision. The decision in Mar, argued the employer, did not address the merits of any request to redact the witness statement of anyone who did not testify. These decisions, argued the employer, did not support the union’s position that the determination be made mid-hearing. The employer argued that it might solicit evidence relevant to the Board’s determination as to weight during cross-examination or in reply. Stating that it was neither necessary nor appropriate to speculate what additional evidence may end up before the Board and what may be relevant for its consideration, the employer argued that it would be prejudiced by any determination at this stage as it will have been made before all of the evidence has been placed before the Board and in the absence of the employer’s submissions based on full evidence. The employer argued that, as its position was that a determination should be made at the end of the hearing, it was neither necessary nor appropriate for it to make submissions with respect to the reliability or necessity of the transcript.

17The issue in this arbitration is not an assessment of the employer’s decision to terminate the grievor’s employment based on its understanding of the facts. The issue is whether the employer had just cause to terminate the grievor’s employment. The employer has the onus to factually establish that the grievor acted in a manner or engaged in conduct that provides just cause for discipline. While it is arguably relevant to the proceedings that the Board understand the basis of the employer’s decision, it is incumbent on the Board to determine what occurred and whether those facts amount to cause for discipline.

Is the transcript substantively admissible notwithstanding its hearsay nature?

18The parties are at issue as to whether the transcript may be admitted for the truth of its content, giving rise to this interim issue. The employer has taken the position that any determination with respect to the admissibility of the transcript should be dealt with at the end of the hearing and, therefore, it is neither appropriate nor necessary for it to make submissions with respect to the necessity and reliability of the hearsay evidence. It is aware that the union has objected to that approach, and that the union has argued that the employer failed to show that the transcript meets the test for admissibility set out by the Supreme Court of Canada. It is the employer that is seeking to have the transcript admitted into evidence for the truth of its content. The parties were provided with the opportunity to make full submissions with respect to the employer’s request and the union’s response. In those circumstances, any failure to address any issue relating to the admissibility of the transcript is a decision taken by the employer with full knowledge of the possible risks.

19As stated by the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 (cited and reviewed at length in the Marshall #1 decision, supra, beginning at paragraph 9):

35 …The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant.

36 The purpose for which the out-of-court statement is tendered matters in defining what constitutes hearsay because it is only when the evidence is tendered to prove the truth of its contents that the need to test its reliability arises…

20That decision reinforces the evidentiary principle that, while relevant evidence is admissible, there is an exception regarding hearsay evidence. Hearsay is presumptively inadmissible because, simply put, there is a general inability to test its reliability (see paragraphs 42 and 59). There is no opportunity for cross-examination, nor, in the absence of the maker of the statement, any opportunity to inquire into the person’s “perception, memory, narration or sincerity” in making the statement (see paragraph 2). This exclusionary principle is intended to enhance the accuracy of fact-finding and recognizes that untested hearsay is detrimental to the exercise of that task, as its trustworthiness cannot be assessed. Issues of reliability and testing of hearsay are of particular concern regarding critical facts in dispute.

21However, courts have recognized that hearsay evidence may still be admitted and properly relied on. In Khelawon this was explicitly acknowledged, provided that indicia of reliability and necessity were established (at paragraphs 42 and 84). The Supreme Court of Canada stated:

49 The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it…

22According to the Court’s decision in Khelawon, ‘necessity’ is “based on the unavailability of the testimony, not the witness” (paragraph 78) and may be established where “evidence of the same quality cannot be obtained at trial” (paragraph 84, citing an earlier decision in B. (K.G.)). The reliability requirement arises due to the inability to test hearsay evidence and is “aimed at identifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule” (paragraph 61). The ‘threshold reliability’ requirement for the admissibility of the hearsay may be met in two ways; one, by showing that “there is no real concern about whether the statement is true or not because of the circumstances in which it came about” (paragraph 62) or, by showing that “no real concern arises from the fact that the statement is presented in hearsay form, because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested” (paragraph 63), that is, by considering whether there are adequate substitutes for the trial process (see paragraph 80).

23The employer has not established, on a balance of probabilities, that it is necessary to receive the transcript of the investigator’s interview of the YP for the truth of its contents. Testimony of better quality could be obtained through the viva voce examination and cross-examination of the YP at the hearing. The YP was served a summons at an address in Toronto, the municipal location of the hearing. The YP failed to respond to the summons. However there is no evidence that any effort has been made to secure his attendance at the hearing or that he is unavailable to attend. This evidence does not therefore establish the necessity of relying on the YP’s statement.

24Perhaps of more import in the arbitration context, the employer has also not established, on a balance of probabilities, that the transcript of the YP’s interview by the investigator meets the test of threshold reliability. A review of the transcript indicates that the interview was not conducted under oath. There is no indication that any consequences for a failure to tell the truth were outlined or understood. The interview was not subject to cross-examination and no opposing party was present. The interview included the use of leading questions on important and disputed factual matters. For example, with respect to what occurred during the three seconds at issue, the investigator is recorded as stating to the YP that the grievor “drove you into the room, physically pushed, looked like a fairly hard push back into the room…”, apparently seeking confirmation of a version of the incident, not the YP’s statement of what occurred. If the video evidence referred to by the investigator was so conclusive as to the nature of the incident, it seems unlikely that this factual issue would be the primary factual issue before me. There is no ability to assess the YP’s demeanour or the nature of any influence, if any. There is no opportunity to assess motive and/or self-interest in circumstances where, it is not disputed, the YP was found by the grievor (and the employer) to have engaged in improper conduct immediately prior to the incident in issue, was angry with the grievor as a result, and his own conduct during the incident was being questioned. The circumstances in which the statement came about do not satisfy any concerns as to its likely veracity. Nor has there been or can there be any testing of its truth or accuracy. There are none of the safeguards or testing of the evidence from which one might be able to conclude that the statement could nonetheless be relied upon for its truth and accuracy. The usual but critical concerns of perception, memory, and credibility that might otherwise be addressed through cross-examination, remain.

25I find therefore that the transcript of the YP’s interview meets neither the test of necessity nor threshold reliability so as to overcome the presumption that the hearsay is inadmissible.

26What of the statutory discretion accorded by section 48(12)(f) of the Labour Relations Act, 1995 as amended, to “accept the oral or written evidence as the arbitrator…in its discretion considers proper, whether admissible in a court of law or not”?

27The employer seeks to rely on this statement as evidence of the primary and critical factual issue in dispute between the parties. The decision in Khelawon recognizes that the courts have relied on hearsay evidence in reaching significant findings of fact. The decision reviews various instances or kinds of hearsay evidence that would also routinely be admitted in labour arbitration proceedings. The decision also recognizes that a rigid application of the exclusionary rule against hearsay would “result in the unwarranted loss of much valuable evidence” (paragraph 42). Thus, while recognizing the traditional exemptions, the decision is driven by the further recognition that greater flexibility in the application of the rule against hearsay is warranted by the courts. The decision discusses at length the principles of necessity and reliability (both ‘threshold’ and ‘ultimate’) and structures a test for assessing the admissibility issue. I daresay that the result is that the courts are since more willing and able to admit certain hearsay evidence in like manner as arbitrators, in their statutory discretion, have been able to for some time. The focus on the indicia of necessity and reliability seek to balance the potential value of the evidence against the fact that it will not be subject to traditional testing by the court or the trier of fact. Meeting the test recognizes that the hearsay is sufficiently reliable so as to warrant its admission in evidence. However, a failure to meet the admissibility safeguards set out in Khelawon surely renders the hearsay as lacking any cogency, as it is, by definition, fundamentally unreliable, failing to meet even a ‘threshold reliability’ measure.

28The transcript of the YP’s interview is, in my view, the kind of “flagrant” hearsay referred to by Gorsky, supra, at page 11-22:

A certain amount of hearsay will be admitted in the course of the hearing, though it might be preferable to disallow flagrant hearsay to which clearly no weight will be given. This is particularly advisable where undue time will be wasted by admitting the hearsay or where the party offering the hearsay may be lulled into a false confidence that persuasive evidence is being tendered.

29That text notes that an arbitrator ought to treat the admissibility of hearsay with caution, notwithstanding the statutory discretion to admit such evidence. It refers to the Ontario Court of Appeal decision in R. v. Barber, noting that the discretion to admit hearsay evidence “did not relieve a board of arbitration from acting only on evidence having ‘cogency in law’” (at page 11-23).

Review of the Board’s jurisprudence

30The facts underlying the Board’s decision in Marshall #1 are similar to those here. There, the employer sought to introduce inmate statements made in connection with an investigation by the employer with respect to an alleged assault on an inmate by a Correctional Officer (“CO”). The statements were made by the inmate allegedly struck by the CO and by various other inmates who were in the area at the time. By the time of the hearing, the inmate who had allegedly been struck had been deported and his whereabouts were unknown. Of the other inmate witnesses, three had also been deported, one was in custody, one was living outside the province, and one was living in Mississauga.

31After reviewing at some length the Supreme Court of Canada’s decisions in Khan, supra, and Khelawon and two Ontario Court of Appeal decisions (at paras. 17-18) the Board concluded, at paragraph 19, that the employer had not established, on a balance of probabilities, that the tests of necessity or reliability had been met. At paragraph 21 the Board concluded, “the written and verbal statements cannot be entered into evidence for the truth of their content under the “flexible approach” set out in R. v. Khan, supra.”

32Nonetheless, the decision determined that the statements were admissible under section 48(12)(f) of the Labour Relations Act, 1995. At paragraph 23 the decision notes that the statements formed part of the investigation record upon which the Superintendent had made the decision to terminate the grievors’ employment.

33The decision then states, and it is this sentence that the employer appears to rely on to argue that the Board regularly admits hearsay evidence, “[u]nder the case law cited above, they are clearly relevant and may be considered. The parties, at the end of the hearing, may argue what weight, if any, should be placed on these statements.”

34The first decision ‘cited above’ is Gillis, supra. In that case, the employer sought to introduce an investigator’s report. The decision finds that the report was relevant as it formed the basis of the employer’s decisions with respect to the discipline of the ten grievors at issue. It notes that investigation reports are “routinely admitted” into evidence before the Board. The decision expressly notes that any findings and conclusions of the investigator are not binding on the Board and that any issue of just cause would be determined on the basis of evidence adduced at arbitration. Only in the last paragraph of the decision is the hearsay nature of the document considered. In that regard the Vice-Chair stated:

The report would only be hearsay if the Employer is relying on the content of the report for the truth of the matters asserted. That is not clear in the record, since the Employer stated that it will be calling viva voce evidence to establish its case and would not be solely relying on the report. Furthermore, hearsay evidence is admissible in arbitration – with the weight, if any, to be determined based on indicia of reliability and necessity.

35The Vice-Chair in Gillis effectively deferred consideration of the hearsay nature of the investigation report and its admissibility until it became apparent that it was in fact being relied on as hearsay. Similarly, in Mar, supra, when the employer sought to introduce the investigation report and witness statements, it was not apparent that the employer also did not intend to call as witnesses persons who had made the statements contained in the report. The interim decision makes clear that any final decision would be based on cogent evidence and notes that, should an individual not be called as a witness, the union’s request to redact portions of the report that were based on input from individuals who did not testify could be “re-visited”. Although Gallina, supra, was a final decision, there is no indication in the decision that any issue as to the admissibility of a hearsay statement had been raised during the proceedings. The decision makes clear that the Vice-Chair considered only “admissible evidence that is subject to cross-examination” (paragraph 4), arguably a more stringent requirement than that set out in Khelawon.

36The decision in Ewing, supra, adopts and reaffirms the reasoning in Gillis. To the extent that the Vice-Chair notes that investigation reports are routinely admitted into evidence and relied on, that statement requires clarification. Investigation reports are routinely admitted into evidence before the Board as relevant to understanding the basis of the employer’s decision-making. That is expected to occur in this case as well. However, in the usual course, some or all of the individuals interviewed during an investigation would also be called as witnesses in the proceedings before the Board, rendering their otherwise hearsay statements admissible even under the test in Khelawon, as the witness making the statement would be available to be cross-examined. That too has occurred in this proceeding. At the same time, these decisions are replete with commentary about the need for cogent evidence upon which to base a decision and reassurances that arbitrators weigh evidence appropriately.

37And, in the final decision in Marshall #2, the Vice-Chair, at paragraphs 119-120, gave no weight to the inmates’ statements, stating:

They are admissible, but only as hearsay – i.e., what was said by them – not for the truth of the matters asserted. In my view, based on the facts of this case, it would be unfair to the grievors to rely on the inmate statements for the truth of the matters asserted without the benefit of cross-examination. I ...place no reliance on them for the truth of their content.

38The decision in Marshall #1 is the only case referred to where, as here, the evidence sought to be admitted was clearly hearsay, that is, it was being introduced for the truth of its contents. While finding that the statements were “clearly relevant and may be considered”, subject to weight, the Vice-Chair concluded:

1. The written and verbal statements made by the inmates are admissible under Section 48(12)(f) of the Labour Relations Act, but they are hearsay.

2. They are not admissible for the truth of their content under the “flexible approach” outlined by the Supreme Court of Canada in R. v. Khan.

3. The Employer did not establish, on the balance of probabilities, that the statements meet the required standards of “necessity” or “reliability”.

39While there is an acknowledgement in that decision that an argument of weight may be made, one wonders how such an argument could or should ever prove fruitful in circumstances where it has been determined that the statements are so unreliable that they fail to meet the more flexible test set by the Supreme Court of Canada for admitting hearsay.

40The principle in Blake, supra, is designed to ensure consistency in decision-making within the Board. That principle is important as it discourages further litigation and provides guidance to the parties. However, I am not persuaded that a decision making it clear that unreliable hearsay evidence will not be admitted for the truth of its content in relation to a critical evidentiary issue in any way contradicts or undermines prior decisions of the Board. It is noteworthy that in no case cited does any weight appear to have been placed on a statement for the truth of its content, even where those statements had been admitted without greater clarity as to the purpose for which they were being admitted.

41I appreciate that it is often easier for a decision-maker to admit hearsay and determine at the conclusion of the hearing whether that evidence is otherwise admissible for a different purpose. That is particularly the case in arbitration where one has an obligation to expedite the process. It also avoids any suggestion that the party seeking to introduce the evidence as hearsay has somehow been prejudiced. The employer here argues that it will be prejudiced by a decision as to the admissibility of this evidence at this stage. However, in my view, the opposite is the case. A party seeking to rely on evidence should understand the basis on which that evidence is, or is not being admitted. To do otherwise potentially prejudices that party in the presentation of their case.

42At the same time, the onus is on the employer to establish cause. The union is entitled to challenge the evidence tendered in support of that assertion. The evidence sought to be tendered for the truth of its content goes to the very core of the factual issue before me, yet fails to meet the basic admissibility threshold set by the Supreme Court of Canada. No testing of that evidence has or would occur. It may, perhaps, fairly be said that some prejudice may be presumed by the admission of such evidence. At the very least, and notwithstanding the statutory discretion to admit hearsay evidence, the Board has a responsibility to conduct its proceedings efficiently as well as fairly, and the admission of unreliable hearsay evidence may lengthen proceedings in circumstances where that evidence will properly be given no weight in any event.

43There is no ambiguity or prematurity to the issue here. The employer has not indicated that it intends to call the witness whose statement it seeks to rely on, as occurred in Gillis or Mar. There will be no opportunity for the statement to acquire any indicia of reliability on which one might base some reliance to consider and assess the hearsay evidence. A ruling at this point makes it clear that this evidence cannot be persuasive, for all of the reasons that properly render it inadmissible.

Conclusion

44Having regard to all of the above, I find that the transcript of the YP’s interview contained in the investigation report is admissible only as relevant to the employer’s decision-making process. It is not admissible as hearsay, that is, for the truth of its contents.

45This matter is scheduled to continue on October 20, 2015.