GSB#2011-3796, 2012-0167

UNION# 2011-0232-0035, 2012-0362-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Martin)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Mike Biliski Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Stewart McMahon and Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING SUBMISSIONS

November 6, December 14, 2015; January 20, February 23, 2016 April 1, 2016

Decision

1The Board is seized with an individual grievance dated December 12, 2011 filed by Agriculture Investigator (“AI”), Mr. Michael Martin, and a group grievance dated February 06, 2012 signed by all seven Agriculture Investigators employed at the Agriculture Investigation Unit (“AIU”) of the Ministry of Natural Resources. On the agreement of the parties the two grievances were heard together.

2The hearing commenced on September 06, 2013, and continued on sixteen days, before the union closed its case on September 1, 2015. At that stage, employer counsel gave notice that the employer was moving for non-suit. The motion for non-suit was orally argued over five days, and was completed with written submissions in reply filed in writing by the employer on April 1, 2016. This decision deals with that motion for non-suit.

3Both grievances allege that the employer has failed to comply with its obligations under article 9.1 of the collective agreement and s. 25(2)(h) of the Ontario Occupational Health and Safety Act. There is significant background leading up to the filing of the grievances. It suffices to note that in 2006 all AIs were accorded “conservation officer” designation. Conservation officers employed by the Ministry had protective equipment that included pepper spray and side-arm. Therefore, along with their conservation officer designation, in 2006 AIs were also issued pepper spray and side arms as part of their protective equipment.

4The immediate trigger for the filing of the grievances was the employer’s decision in February 2012 to revoke the conservation officer designation for AIs. As a result, they no longer had side-arms or pepper spray as part of their protective equipment. It is primarily the removal of side-arms and pepper spray that led to the assertion by the grievors that the employer was in contravention of the collective agreement and the Ontario Occupational Health and Safety Act. However, the union also alleges that the employer was in violation because it did not do a proper assessment prior to the removal of the protective equipment from AIs, as to what impact that may have on their health and safety; by failing to provide timely training and direction to AIs as to how they may safely carry out their duties in the absence of that equipment; and by failing to take reasonable steps to protect their health and safety when working with no side-arms and pepper spray.

5Mr. Martin in his grievance makes the additional allegation that the employer contravened the Ontario Occupational Health and Safety Act and the collective agreement when he was required to work with no Conservation Officer designation, and therefore, with no side-arm and pepper spray, during a period in which employer policy required AIs to be equipped with those, and all other AIs had the conservation officer designation side-arms and pepper spray.

6At the commencement of this proceeding, the union agreed not to put the employer to an election on calling its own evidence. This was explicitly made conditional on the agreement that beyond setting out the legal principles applied, the Board would not provide any reasons in the event the employer’s non-suit motion is dismissed.

7The principles governing non-suit are described in Sopinka and Lederman, The Law of Evidence in Civil Cases (Butterworths, 1974 at p. 521) follows:

An important part of the division of roles between judge and jury is the assessment of the probative sufficiency of the evidence adduced by a party to establish his case. If a plaintiff fails to lead material evidence, he may be faced at the close of his case by a motion for a non-suit by the defendant. If such a motion is launched, it is the judge’s function to determine whether any facts have been established by the plaintiff from which liability, if it is in issue may be inferred. It is the jury’s duty to say whether, from those facts when submitted to it, liability ought to be inferred. The judge, in performing his function, does not decide whether in fact he believes the evidence. He has to decide whether there is enough evidence, if left uncontradicted, to satisfy a reasonable man. He must conclude whether a reasonable jury could find in the plaintiff’s favour if it believed the evidence given in trial up to that point. The judge does not decide whether the jury will accept the evidence, but whether the inference that the plaintiff seeks in his favour could be drawn from the evidence adduced, if the jury chose to accept it. This decision of the judge on the sufficiency of evidence is a question of law; he is not ruling upon the weight or the believability of the evidence which is a question of fact. Because it is a question of law, the judge’s assessment of the probative sufficiency of the plaintiff’s evidence, or the defendant’s evidence on a counter-claim for that matter, is subject to review by the Court of Appeal.

8In the context of labour arbitration, the Board in Re Southern Alberta Institute of Technology (1994) 43 L.A.C. (4^th) 26] (McFetridge) observed as follows at p. 269:

The question is one of law, not fact, and the judge or board of arbitration is primarily concerned with the quantity of the evidence as a matter of law rather than its quality, believability or persuasive weight which are all questions of fact. Assuming always that the evidence meets a certain minimum threshold of credibility, a non-suit motion cannot succeed if the party carrying the burden of proof has presented some evidence which supports each of the essential elements of its claim. This evidence will be sufficient until contradicted or overcome by other evidence. It may be that the evidence is weak and carries little persuasive weight. A non-suit, however, cannot succeed where there is some credible evidence which supports each of the essential elements of the claim.

The Divisional Court has made it clear that the standard to be applied is lower than the standard of balance of probabilities. Thus in Ontario v. OPSEU (Cahoon), (1990), 37 O.A.C. 218 in squashing a decision of the Grievance Settlement Board which had allowed a motion for non-suit, the Court wrote:

The board began by setting out its understanding of 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.

9It is now clearly established that the standard applied in assessing the evidence in determining a non-suit motion is considerably lower than the usual standard in civil matters, i.e. “on a balance of probabilities”. See, Cahoon Ont. Div. Ct. (supra). While some authorities have stated that the plaintiff must have adduced “sufficient evidence”, others such as Cahoon (supra) have used the phrase “some evidence”. Thus in Re Gareh, 1665/98 (Brown), the Board reviewed the decision of the Divisional Court in Cahoon (supra) and wrote at p. 6 as follows:

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 case.

10Vice-Chair Brown went on to state:

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 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 possible 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.

11In a decision released on March 05, 2015, the Board in Re Bharti, 2013-2789 (Anderson) refined and summarized the principles applied by it in determining non-suit motions as follows at para. 8:

8There is no dispute between the parties as to the principles applicable to a non-suit motion. Reference was made to: Ontario Public Service Employees Union (Vingar) v Ontario (Health and Long-Term Care) 2014 CanLII 30275 (ON GSB), Ontario Public Service Employees Union (Allin) v. Ontario (Ministry of Revenue), 2010 CanLII 38781 (ON GSB), and Ontario Public Service Employees Union (Thompson) v. Ontario (Liquor Control Board of Ontario), 2012 CanLII 67531 (ON GSB). The applicable principles may be summarized as follows:

i 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.

ii In a non-suit motion, the issue is whether the party responding to the motion has made out a prima facie case.

iii In determining whether a prima facie case has been made out, the test is whether the evidence presented by the party responding to the motion is sufficient to allow the Board to rule that it has proven its case on a balance of probabilities, if the board assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence. No weight, however, should be given to the evidence of a witness on a point about which he or she has given contradictory accounts. (See Ontario Public Service Employees Union (Gareh) v. Ontario (Ministry of the Attorney General). 2002 CanLII 45791 (ON GSB) at paragraphs 8-10.

iv. In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.

v. 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.

12At paragraphs 9-10, the Board observed:

[9] The union states that a non-suit motion is not the time to test the quality, reliability or credibility of the evidence. Accordingly, the Union asserts, I am required to assume that everything the Grievor said is true for the purposes of this motion. With respect, the second proposition does not follow from the first. The mere fact that the Grievor testified as to something does not make it admissible evidence which must be assumed to be true. Of particular application to this case, as will become apparent below, I am not required to accept as evidence hearsay statements or opinions offered by the Grievor.

[10] Further, I agree with the Employer that the mere fact that the Grievor asserts something is true, for example that the Sabbath is on Tuesday, does not make it so for the purposes of a non-suit motion. In Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA) 27 O.R. (3d) 1 the Ontario Court of Appeal held that for the purposes of determining whether or not a plaintiff`s pleadings made out a prima facie case, alleged facts that were patently ridiculous or incapable of proof need not be accepted as true. Surely no less a standard should be applied on a non-suit motion, where the responding party has not simply plead a case but lead all evidence it asserts is necessary in order to prove its case.

[11] A distinction must also be made between facts and conclusions of fact. A false conclusion is not rendered true, for the purposes of a non-suit motion, simply because the Grievor has adopted that conclusion as his evidence. Similarly, a conclusion stated in the nature of a bald allegation in the absence of detailed evidence in support has no probative value: see Guarantee Co. of North America v. Gordon Capital Corporation (1999), 1999 CanLII 664 (SCC), 178 D.L.R. (4^th) a (S.C.C.) at paragraph 31 discussing the sufficiency of evidence submitted on a motion for summary judgement.

13My task is to determine whether to grant or deny the non-suit motion by applying the principles established in the authorities reviewed above. Upon consideration of the voluminous evidence adduced during the unions case, the legal principles established in the case law, and the extensive submissions of the respective counsel, it is my conclusion that the employers motion must be denied with respect to both grievances. In accordance with the Board`s practice and the explicit agreement of the parties, no reasons for that conclusion are set out herein.