GSB#2015-2798

UNION# 080-15-BFF

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union – Local 1587 (Paterson)

Union

• and -

The Crown in Right of Ontario (Metrolinx – GO Transit)

Employer

BEFORE

Mary Lou Tims

Arbitrator

FOR THE UNION

Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Daniel Fogel Hicks Morley Hamilton Stewart Storie LLP Counsel

HEARING DATES

January 25 and 26, 2018

INTERIM DECISION

1The Union sought to call evidence of what it referred to as the alleged Baksi and Medina incidents, as particularized in Counsel’s January 22, 2018 correspondence to the Employer. The Employer objected to it doing so. After hearing and considering the submissions of Counsel, I orally delivered the ruling set out herein at the January 26, 2018 hearing.

2The parties agreed that evidence going only to propensity ought not to be admitted. They differed, however, as to whether the Union sought to rely upon such evidence here. I am mindful in this regard that the Union asserted that evidence of the Baksi incident will demonstrate that Mr. Raja was the aggressor, and that he sought and perpetuated conflict in the circumstances there. The Union suggested as well that evidence of the Medina incident will demonstrate that Mr. Raja misunderstood facts and sought management intervention in those circumstances.

3Evidence pertaining to both the Baksi and Medina incidents is not properly admitted to establish that Mr. Raja likely conducted himself similarly in later interactions with the grievor, or that his conduct at such times can be inferred from an alleged propensity established by evidence of the Baksi or Medina incidents. The jurisprudence is clear that “evidence of conduct on other occasions which tends to suggest a mere propensity to engage in a particular type of conduct or to show a general disposition lacks cogency. That is, it is not admissible to prove the commission of a subsequent act.” (Store Image Programs Inc. v. U.S.W.A., Local 9233, [2000] O.L.A.A. No. 953, para 18 (Surdykowski), quoted in The Corporation of the City of Kitchener and The Kitchener Professional Fire Fighters Association (2006), 2006 CanLII 28908 (ON LA), 154 L.A.C. (4^th) 228 (Luborsky)).

4The Union argued, however, that evidence of both the Baksi and Medina incidents is directly relevant to the issue of workplace culture raised by the Employer in these proceedings, and must be admitted on that basis. In assessing that position, I acknowledge that emphasized by the Employer, that propensity evidence ought not to be admitted merely because the party seeking to adduce it assigns it a different name. The Employer, however, has taken the position in these proceedings that workplace environment should be considered in determining whether it has established just cause for discharge, and in addressing its potential position that reinstatement should not be ordered in the circumstances of this case. Mr. Raja has given evidence with respect to the workplace culture, and the Union’s objection to the admission of that evidence was denied. It will be open to the Employer to rely upon such evidence in support of positions it will take both with respect to just cause, and potentially, remedy.

5The Employer argued that I must not permit the evidence to be detoured and unnecessarily extended to address matters that will not be germane to my determination of the substantive issues before me. I agree with the Union, however, that having taken the position that workplace culture or environment will be relevant both in assessing just cause and potentially in deciding remedy, it is not open to the Employer to assert that this is but a collateral issue with no bearing on the heart of the issue before me.

6I have considered the Union’s particulars. Turning first to the Medina incident, the particulars assert an ill-founded complaint or report by Mr. Raja at an unspecified time regarding a former employee. Even if the assertions set out in the particulars are assumed for present purposes only to be true, I am not satisfied that they are relevant to the characterization of the work environment put in issue by the Employer. That evidence is therefore not admissible on the basis argued by the Union.

7With respect to the Baksi incident, however, I am satisfied that evidence of Mr. Raja’s alleged interactions with Mr. Baksi and others as particularized, appears to speak at least in some sense to workplace culture, an issue raised by the Employer, and should be admitted on that basis.

8I so conclude with certain caveats. First, I do not address at this time objections relating to hearsay that the Union’s particulars suggest could arise when the evidence is presented. Further, while I agree with the Union that it is not open to the Employer in the circumstances before me to suggest that the issue of workplace environment is a collateral matter, I make no determination as to the weight or probative value of the evidence in question, or as to the inferences and conclusions properly drawn from it. I note that it remains unclear at this time whether the factual assertions relating to the Baksi incident, even if proven, are irreconcilable with Mr. Raja’s evidence and the Employer’s position regarding work environment.

9Further, as emphasized by the Employer, I of course retain my authority to control these proceedings, to ensure that the hearing proceeds both fairly and as expeditiously as possible, and that it not be consumed by evidence that I might determine can be of no assistance in determining the matters before me in dispute.

10The Union took the position that it will be open to it to make submissions and to me to reach conclusions with respect to Mr. Raja’s credibility on all matters addressed in his evidence in these proceedings, in part by considering his evidence of work environment in light of that adduced regarding the Baksi incident. I reiterate that it will not be open to the Union to ask that I infer from the Baksi incident the likelihood that Mr. Raja engaged in similar conduct in later interactions with the grievor. I accept, however, that it will be open to both parties in final argument in these proceedings to make submissions as to Mr. Raja’s credibility on all matters addressed in his evidence, and to base those submissions on any of the evidence that he and others give, including that relating to work environment.

11More specifically, to the extent that I conclude on the evidence that Mr