GSB#2014-4119

UNION#2014-0378-0082

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Phagau)

Union

• and -

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

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

September 21, October 8, 2015

Decision

The Proceedings

1In this matter the union grieves on behalf of Samuel Phagau, hereafter “the grievor”, that his discharge was unjust. This decision deals with a union motion for an order restricting the employer from calling certain evidence. The grievor was discharged for a number of alleged infractions while he was working in "tunnel car number eight" and for his manner of driving his personal vehicle in the employee parking lot.

2A tunnel car is essentially a high level vehicle from which the operator picks orders for delivery from the Durham Warehouse to the retail stores. Each tunnel car is equipped with a video camera which records activity in the cab of the vehicle. As a result of a complaint from a fellow employee who used the car in a shift following the grievor's shift, management viewed the video tape and determined that the grievor had been guilty of a number of employment infractions including picking orders while not tied-off, placing his feet outside of the cab onto the conveyor belt, using his electronic device while in the tunnel vehicle and urinating in the cab.

3After two managers viewed the videotape it inadvertently was not saved. In this motion, the union seeks a ruling that evidence from the managers of what they saw on the tape is inadmissible.

The Factual Context

4The facts germane to this application are not in dispute. The employer intends to call two witnesses with respect to what they saw on the videotape.

5The union requested access to the videotape as part of the grievance process. That request was denied on the basis that the grievor would simply tailor his evidence to what he saw on the tape.

6As set out above, the tape was not saved. The employer has systems in place in the warehouses and stores that make a video record. It is a centralized system whereby the images are retained for 14 days and then erased. Unless a request is made to retain portions of the videotape it is automatically erased. Here, the request to retain the tape was made in a timely fashion. Regrettably, a technical, programming error, made during the camera setup by the installation team, overwhelmed the storage capacity of the system causing all video prior to November 7, 2014 to be overwritten if it had not been saved. Accordingly, the managers viewed the video and requested that it be retained, but the images were lost because of this technical failure.

7The union accepts that it was inadvertence that resulted in the videotape not being retained.

The Submissions of the Parties

8In making their submissions, the parties relied on the following authorities. I have read and considered these decisions and they inform the award that follows.

9The union relied upon the following authorities: Ontario Public Service Employees’ Union (Larman) v. Ontario (Ministry of Community, Family and Children Services, 2006 CarswellOnt 3832 (Ontario Court of Appeal); Labour Relations Act, 1995, S.O. 1995, c.1, Sched.A, s.48 (12); Canadian Labour Arbitration (Brown and Beatty, Canada Law Book, 3:4310; O.P.S.E.U v. Ontario (Ministry of Community Safety & Correctional Services (Lavalee), 2011 CarswellOnt 10295 (Watters); R v. Khan, 1990 SCC minicounsel 80, [1990] 2 S.C.R. 531 (S.C.C.); O.P.S.E.U (Iyamu). v. Ontario (Ministry of Children and Youth Services (Unreported, September 17,2015, Nairn, GSB #2013-3490 et al); R v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 (S.C.C.); O.P.S.E.U. (Marshall et al, Preliminary Award) v. Ontario (Ministry of Community Safety and Correctional Services), (2013), 232 L.A.C. (4th) 181 (Abramsky); O.P.S.E.U. (Marshall et al ) v. Ontario (Ministry of Community Safety and Correctional Services (Unreported, September 16, 2013, Abramsky, GSB # 2012-1308 et al.); British Columbia Institute of Technology v. B.C.G.E.U. (1995), Source decision, 47 L.A.C. (4th) 99, (Blasina); O.P.S.E.U. (Gillis et al) v. Ontario (Ministry of Community Safety and Correctional Services) (2005) 2005 OGSB minicounsel 145, 145 L.A.C. (4th) 205 (Abramsky); Calgary Co-operative Assn. and UCCE (2015), 253 L.A.C. (4th) 403 (McFetridge).

10The employer relied upon the following authorities: Labour Relations Act, 1995, S.O. 1995, c.1, Sched.A, s.48 (12); Re Greater Niagara Transit Commission and Amalgamated Transit Union, Local 1582 (1987), Source decision, 61 O.R. (2d) 565 (Ont. Div. Ct.); Kimberly-Clarke Inc. & Industrial Wood and Allied Workers of Canada, Local 1-92-4 (Meo Grievance), [1996] O.L.A.A. No. 46 (Bendel); R. v. Swartz, [1977] O.J. No. 694 (Ont. C.A.), aff’d Source decision, [1979] 2 S.C.R. 256; R. v. Newfoundland and Labrador Assn. of Public and Private Employees, [2007] N.J. No. 329 (Nfld. Supreme Ct Trial Div.); Rite Pak Produce Co. v. Teamsters, Local 419 (Costa Grievance), [2012] O.L.A.A. No. 211 (Davie); R v. After Dark Enterprises Ltd., [1994] A.J. No. 1057 (Alb. C.A.), rev’g [1993] A.J. No. 411 (Alb. Q.B.); R v. Pires, 2012 ONCJ 713, [2012] O.J. No. 5421 (Ont. C.J.); R v. Lapensee, [2014] O.J. No. 1753 (Ont. S.C.J.); Brampton (City) v. Lam, [2015] O.J. No. 4140 (Ont C.J.); Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services (Gillis Grievance) (2005), 2005 OGSB minicounsel 145, 145 L.A.C. (4th) 205 (Abramsky) (Ont. G.S.B.); Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Ewing Grievance), [2011] O.G.S.B.A. No. 179 (Briggs) (Ont. G.S.B.); 1293446 Ontario and U.F.C.W., Loc. 206 (Cruz) (Re) (2004), Source decision, 127 L.A.C. (4th) 436 (Trachuk); R. v. Brennan Paving and Construction Ltd., Source decision, [1998] O.J. No. 4855 (Ont. C.A.); R v. Johnson, [2007] O.J. No. 2228 (Ont. C.A.); R v. La, 1997 SCC minicounsel 63, [1997] 2 S.C.R. 680 (S.C.C.); R. v. Bero, 2000 OCA minicounsel 532, [2000] O.J. No. 4199 (Ont. C.A.); R v. Scott, [2002] O.J. No. 1937 (Ont. C.A.); R. v. G.S., 2010 ONCA 296, [2010] O.J. No. 1666 (Ont. C.A.); R. v. Bradford, 2001 OCA minicounsel 32, [2001] O.J. No. 107 (Ont. C.A.); Canada Post Corp v. C.U.P.W., [1992] B.C.J. No. 333 (B.C. S.C.); Universite du Quebec a Trois-Rivieres v. Larocque, 1993 SCC minicounsel 22, [1993] 1 S.C.R. 471 (S.C.C.); Greater Toronto Airports Authority v. Public Service Alliance of Canada (Buehler Grievance) (2007), 158 L.A.C. (4th) 97 (Bendel); Hotel-Dieu Grace Hospital v. Ontario (Nurses’ Assn.) (Jacobs Grievance) (2010), 195 L.A.C. (4th) 383 (Crljenica); Emerge Tube v. Unifor, Local 523 (Adamo Grievance) (2013), 238 L.A.C. (4th) 431 (Bendel); Ontario Public Service Employees Union v. Ontario (Ministry of Community, Family and Children’s Services (Larman Grievance), [2003] O.G.S.B.A. No. 48 (Abramsky) (Ont. G.S.B.), aff’d [2005] O.J. No. 221 (Ont. S.C.J.), rev’d 2006 OCA minicounsel 494, 81 O.R. (3d) 419 (Ont. C.A.), leave to appeal refused [2006] S.C.C.A. No. 367 (S.C.C.),

OPSEU (Hall) and Ontario (Liquor Control Board of Ontario) GSB No. 2012-0551 et al (2013), 231 L.A.C. (4th) 90.

11The union submitted that the video recording is the best evidence, and if the video recording is not available, then anything flowing from it should be excluded. It said that such an outcome would be consistent with OPSEU (Larman), supra. In that matter, the employer had engaged a third-party consultant to conduct a workplace review. The consultant interviewed numerous employees and concluded that the grievor should be transferred to another office in view of the history of conflict in his home office. The union grieved, and at the grievance arbitration hearing it became apparent that the third-party consultant had destroyed the materials relied upon in making its recommendations. On a preliminary application, the Vice-Chair of the Board "concluded that without the lost evidence, both the union's ability to advance its case and the employer's ability to defend its actions were "irreparably prejudiced". Without hearing the employer's evidence on the merits of the grievance, the arbitrator ruled that the appropriate remedy was to allow the union's grievance." (Paragraph 1, Larman, supra).

12The Ontario Court of Appeal concluded that there had been a denial of natural justice. Here the union relies upon paragraph 27 of that decision, which reads as follows:

27. Inadvertent destruction of evidence can be remedied in a variety of ways. An adverse inference can be drawn against the party who bears the obligation to produce the document or evidence in question: Coriale (Litigation Guardian of) [ v. Sisters of St. Joseph of Sault Ste Marie (1998) Source decision, 41 O.R. (3d) 347]. Similarly, the party failing to produce relevant material may be precluded from relying on that or related documents or evidence: [Werner v. Warner Auto-Marine Inc. (1996), Source decision, 3 C.P.C. (4th) 110 (Ont. C.A.)]. No case was cited to us for the proposition that a claim or grievance can be allowed, without hearing all the evidence that is available, on the ground of the responding party inadvertently failed to produce relevant documents or evidence.

13The union submitted, in essence, that the Court of Appeal laid out three procedural options to deal with the destruction of documents. The first is to draw an adverse inference against the party who bears the obligation to produce the document. The second is to preclude the calling of the evidence being relied upon, and, the third is to preclude any other related documents or evidence. Here, the union relies upon the third option, which is to preclude anything flowing from the missing, direct evidence, that being the evidence of the managers who viewed the tape.

14In the alternative, the union submitted that the evidence of the managers would be hearsay. As hearsay, it said that the arbitral jurisprudence accepts that it could not be the sole basis of a critical finding of fact. If there is no corroboration of the hearsay, the evidence of the managers could be given no weight. Because this is a discharge case, the employer's evidence must be clear, cogent and convincing, which it says is consistent with the Board’s jurisprudence. Such hearsay would fail that test. The union said that hearsay is presumptively inadmissible subject to my jurisdiction under the Ontario Labor Relations Act, 1995, s. 48 (12) (f). It submitted that, given the absence of the best or direct evidence, the managers’ evidence could be given no weight, and there is no reason to take up hearing time with the calling of such valueless evidence.

15The union also reviewed the test for the admission of hearsay evidence set out in R. v. Khan, that being necessity and reliability, and the cases that followed it. It noted that the Khan case was a criminal matter dealing with the admissibility of hearsay evidence relating to the utterances of a child in the context of charges against the accused of sexual misconduct directed toward the child. On that basis, the union submitted that Khan has limited applicability generally, and is not applicable here.

16The union also submitted that it will contest the employer's account of the facts. It said that the jurisprudence supports the exclusion of the managers’ evidence relating to the videotape on the basis that the inquiry before me does not deal with what the employer relied upon in discharging the grievor but whether or not the employer has sufficient evidence to establish just cause. It said it would be unfairly hobbled by the inability to cross-examine the managers on the basis of what the tape shows, not having seen the tape itself nor having it available as part of the record. It said that there are going to be factual disputes, and the videotape would show exactly what the grievor was doing. The trustworthiness of the managers’ evidence would be questionable and will detract from the Board’s fact-finding on critical facts.

17The union also relied on Calgary Co-operative Association (Komicha), supra, as a case most closely aligned factually to the matter before me. In that matter the grievor, a gas station attendant, had kept tips from customers, contrary to the employer's policy. This was recorded on videotape, which was shown to the union as part of the grievance procedure. At the hearing, the employer produced a single still frame from the videotape, as the videotape itself had been inadvertently erased. The reasons read in part at paragraph 30 as follows:

30 The Union argued that the Employer's breach of clause 22.19 [of the collective agreement] should result in the exclusion of all of the evidence from the video. This should include the photocopy of the single frame of the video as well as the testimony of the witnesses who described what they saw on the video. For the most part, I agree, the testimony which described what the witnesses saw on the video should be excluded. The union was provided with a copy of the photocopy of the single frame of the video and although it's low quality makes it almost useless, it was provided in compliance with clause 22.19 and therefore is not excluded.

18The union submitted that in all the circumstances the managers’ evidence relating to the content of the video is inadmissible and should be excluded.

19The employer first submitted that the evidence of the managers is relevant, which is the test for admissibility. Second, the employer submitted that it is not hearsay evidence, it is secondary evidence. The video itself would have been the "best-evidence", or the primary evidence, and the witnesses’ observations of the tape are the secondary evidence. It submitted that the fact that this testimony is secondary evidence goes to its weight, not its admissibility. Further, a party is not bound to use the best evidence; it may prove its case by secondary evidence. The employer relied upon a number of authorities in which criminal courts have admitted secondary evidence of what individuals had seen on a video in circumstances where the video had been lost, destroyed or not preserved. Third, the employer submitted that the probative value of the evidence outweighs any prejudicial effect. It said that the Board has the authority to exclude evidence if its prejudicial effect outweighs its probative value. On this latter point, the employer submitted that any prejudice to the union because of the loss of the video may be cured through cross-examination of the witnesses and use of witness statements and notes in the cross-examination. Further, it is open to the union to call the grievor to provide his account of what transpired. The employer said there was no appearance of an unfair hearing by admitting the evidence of the managers even if ultimately such evidence is given no weight. The employer submitted that it is actual prejudice, not speculative prejudice, that the union must establish, and it has failed to discharge that burden in seeking to exclude this evidence. It said that only at the end of the case, in final argument, would it be possible to weigh whether there has been actual prejudice to the union. Finally, with respect to prejudice, the employer said that the Board must consider prejudice to the employer as well. It said that failing to admit relevant evidence, which addresses the issues in dispute, would violate the employer's right to be heard and would be a breach of natural justice. Such evidence has been admitted in many criminal cases. In summary it said that the probative value of the evidence far outweighs any prejudicial effect of not having the video available.

20Finally, the employer submitted that no other labor-relations rationale supports the exclusion of this evidence. The loss of the video was not willful; there is no right in the collective agreement to disclosure of documents and evidence, and in the present circumstances a finding to exclude this evidence would change the nature of arbitrations by imposing an evidentiary standard that is not currently recognized.

21In reply, the union submitted that in the Calgary Co-Operative Association and UCCC (Komicha) case the arbitrator did what the Court of Appeal in Larman suggested by excluding the videotape evidence. It said I have the right to do the same thing. The union also submitted that the arbitrator in Komicha accepted the notion that the videotape was hearsay. It also submitted that in the Brampton (City) v. Lam case the evidence of both Constable Coupland and the defendant did not invoke any hearsay issues because they limited themselves to what they saw and did not include any person’s gestures. It said here that the nature of the allegations set out in the employer's Book of Documents at tabs 29 and 30 are moving into that realm.

Analysis and Decision

22I start with consideration of the ruling of the Court of Appeal in OPSEU (Larman). In my view, the effect of not admitting the evidence of the two managers with respect to what they saw on the videotape would effectively bring the proceedings to a halt. Although the union is not asking directly for the grievance to be allowed on the basis of the destruction of the videotape evidence, that would be the effect. Accordingly, the concerns raised by the Court of Appeal in Larman are alive on this motion before me. The court said the following at paragraph 26:

26 A stay of proceedings is "an extraordinary remedy" for lost evidence to be "granted only in the clearest of cases" for lost evidence in criminal cases involving the breach of Charter rights: [R v. Carosella (1997), 1997 SCC minicounsel 12, 112 C.C.C. (3d) 289 (S.C.C.)] at para 52. When one turns from the criminal law to the regime of civil or private law, and from staying a criminal proceeding to granting a civil claim on the basis of the inadvertent loss of evidence, the remedy is even more exceptional. I agree with the appellant that the generally accepted principle in the civil law context is that the destruction of documents is a procedural matter that calls for procedural remedies .

23In my view it is necessary to consider the proposed evidence in the context of whether or not it is "available". That is the error that the Court of Appeal found the arbitrator in Larman fell into. That is, in Larman there was evidence available from the employer, and the failure to permit the employer to call that evidence amounted to a denial of natural justice. Accordingly, the options laid out by the Court of Appeal as the remedy for the inadvertent destruction of evidence must be considered in the context of what, if any, evidence is available to the employer in this matter. For convenience, I again set out paragraph 27 from the Court of Appeal’s decision which is as follows:

27. Inadvertent destruction of evidence can be remedied in a variety of ways. An adverse inference can be drawn against the party who bears the obligation to produce the document or evidence in question: Coriale (Litigation Guardian of) [ v. Sisters of St. Joseph of Sault Ste Marie (1998) Source decision, 41 O.R. (3d) 347]. Similarly, the party failing to produce relevant material may be precluded from relying on that or related documents or evidence: [Werner v. Warner Auto-Marine Inc. (1996), Source decision, 3 C.P.C. (4th) 110 (Ont. C.A.)]. No case was cited to us for the proposition that a claim or grievance can be allowed, without hearing all the evidence that is available, on the ground that the responding party inadvertently failed to produce relevant documents or evidence.

(emphasis added)

24In considering whether the evidence of what the managers saw on the videotape in this matter is available because it is admissible it is essential to appreciate the qualitative differences amongst the cases relied upon with respect to the content of the video images. An important case relied upon by the union is R. v. Khelawon 2006 SCC 57, [2006]2 S.C.R. 787. In that matter the allegation was that that an 81-year-old resident of a nursing home had been beaten by the manager. The resident made a videotaped statement at the police station that was not under oath. This statement was admitted at trial, along with those of other residents making similar allegations. The Supreme Court of Canada decided that although the statement met the test of necessity, flowing from R. v. Khan, his videotaped statement was not sufficiently trustworthy to meet the threshold of reliability. The judgment in Khelawon thoroughly reviews the rule excluding hearsay. What should not be lost sight of is that hearsay is an out-of-court statement. The Court says the following, in part, at paragraph 2:

2. As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this general principle. While no single rationale underlines its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquire into that person's perception, memory, narration or sincerity.

25The video images in this case are of the purported actions of the grievor while he was in the cab of the tunnel car. I am told that the evidence of the managers will be to recount what they saw the grievor doing in the tunnel car cab. In my view, this is materially different from videotaped hearsay statements being relied upon for the truth of their contents. Manifestly, if someone were an eyewitness to actions that happened in the street, they would be permitted to tell the finder of fact what they had seen. The question here is whether it matters that they saw a video of the grievor's actions rather than personally witnessed them at the time and place of the actions, in the context of the video no longer being available.

26The union has characterized the evidence of the managers as not being the best or direct evidence, based upon which it should be ruled inadmissible. However, if the video is considered in the context of it being the best evidence, the authorities are clear that the best evidence rule is not an exclusionary rule. In the absence of the best evidence it is open to a party to rely upon secondary evidence. In R. v. Swartz, Papalia, Cotroni and Violi, supra, the Ontario Court of Appeal noted the following distinction as set out in Halsbury 4th ed., Vol 17, p.8:

The rule itself, in its relatively modern form did not absolutely exclude secondary evidence. It is stated by Lord Esher, M.R. in Lucas v. Williams & Sons, (1892) 2 Q.B. at 116:

"Primary’ and ‘secondary’ evidence mean this: primary evidence is evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation is given of the absence of that better evidence."

27In R. v. Newfoundland and Labrador Association of Public and Private Employees the court cited with approval the following excerpt from Evidence and Procedure in Canadian Labor Arbitration, (Gorsky, Usprich and Brandt, Carswell, 1994 at pages 11 – 54 to 11 – 55:

At times, one sees references to a best evidence rule in other than a documentary context. What is then generally meant is a common-sense principle that one ought to present the strongest evidence one can. For example, eye-witness testimony is obviously preferable to proving the fact by some piece of hearsay admitted under an exception. That is good practical advice, but it is not an exclusionary rule. Even the courts, let alone an arbitrator, will not exclude relevant evidence simply because better evidence could have been called on the point. That a party does not use the seemingly better evidence may arouse suspicion, which may then affect the arbitrator's assessment of the party’s evidence, but that is the only risk.

28Accordingly, there is no general bar to leading secondary evidence instead of the best evidence. In the end it goes to the weight to be attached to the evidence at the close the case.

29Evidence such as that proposed to be tendered here has been ruled admissible in the criminal courts. In R. v. After Dark Enterprises, supra, the Alberta Court of Appeal restored the decision of the Provincial Court judge who had admitted the evidence of bylaw officers who had viewed a video tape that was then not available at the trial. They were permitted to testify as to what they had seen on the tape. In R. v. Pires, supra, the store clerk and a Police Constable had viewed surveillance video that was not produced at the trial. The court found that the best evidence rule did not preclude viva voce evidence of persons who observe the video. It also found that “secondary evidence is admissible where the original was later accidentally or in good faith lost or destroyed without the intention to prevent its use as evidence.” (at par. 55.) With respect to the application of the hearsay rule the court said as follows at paragraph 57:

The hearsay rule is not applicable in my view. The video footage was real evidence: see R. v. Nikolovski (1996), 1996 SCC minicounsel 120, 111 C.C.C. (3d) 403 (S.C.C.). If it had existed, it could have been played in court without there being any objection based upon hearsay. While the witnesses who testified about what they saw on the video did not themselves observe the car accident, this does not make their evidence inadmissible hearsay. If the video was properly admissible as real evidence of what occurred, P.C. Barnacas and Mr. Shandhirasegara’s testimony does not become hearsay because the video is not available. Of course, their evidence is subject to my assessment of weight, but it does not make their evidence inadmissible on this basis. I should observe that any danger raised by the lack of the video footage is compensated by the opportunity to fully cross-examine the officer and clerk as to what they observed. The defense in this case ably conducted this cross-examination

30I agree that the evidence seen on the video here was direct evidence, not hearsay evidence. Similar conclusions are reached in R. v. Lapensee and Brampton City v. Lam, (supra). Paragraph 73 in the Brampton City case reads as follows:

73 Moreover, both Cst. Coupland’s and the defendant's testimony about what they'd observed on the video do not invoke any hearsay issues. They had only describe what they had observed of the physical acts or movements of objects on the video of the collision and not of any persons gestures, which would imply a communicative statement or message. As such, both there testimony can be considered as admissible evidence, and will carry and be considered for their appropriate weight.

31I disagree with the union submission that the documents set out at tabs 29 and 30 of the employer's Book of Documents necessarily are recounting gestures that would be excluded as hearsay. The point is, that the evidence of the two managers of what they saw on the video is admissible. The weight to be accorded their evidence, for instance on the basis that it is uncorroborated hearsay because it relates to gestures, is a matter to be argued at the close the case.

32The overwhelming strength of the authorities is that such secondary evidence is admissible when the trier of fact is satisfied that the original existed, has been lost or destroyed and a proper explanation has been given of the absence of the better evidence. Here, that explanation has been given and accepted by the union.

33An exception in the case law is Calgary Co-Operative Assn. and UCCE, supra. The existence of article 22.19 in that collective agreement distinguishes that case from the others reviewed above. Article 22.19 there entitled the union to a copy of all relevant evidence, including video surveillance evidence. It is clear from paragraph 17 of this decision, above, that the existence of that provision in the collective agreement in that case was central to the decision reached.

34In addition, it is not clear to me that the arbitrator there accepted that the video was hearsay evidence. The union relied on paragraph 36 for this proposition. However, paragraph 31 indicates that the only evidence on the point of whether Mr. Komicha had turned in tips to either one of the two cashiers on duty on the day in question rested on the Gas Bar Manager having testified as to what the cashiers had told him. That appears to be the hearsay evidence that was the subject of the nonsuit application.

35I turn to whether the probative value of the evidence outweighs any prejudicial effect. I agree with the thrust of the jurisprudence above that any prejudice to the grievor can be overcome by the cross-examination of the managers on what they saw and what could be seen from the vantage point of the video-camera in the tunnel car cab. Such a cross-examination would be similar to that to which any eyewitness would be subjected. The matter of prejudice must also be considered from the employer's perspective. To rule that the managers’ evidence is inadmissible would be contrary to the jurisprudence and deny the employer it's right to make its case on the evidence that it has. To do so would be tantamount to deciding the grievance without hearing all the evidence that is available which would be contrary to the decision of the Court of Appeal in OPSEU (Larman), supra, and contrary to the principals of natural justice. Clearly, the probative value of this evidence outweighs any prejudicial effect. There is no prejudice to the union in allowing the employer to call the direct evidence that it has.

36In all of the circumstances, the union’s motion that the proposed evidence of the managers is inadmissible is dismissed.