GSB# 2018-1346

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Grievor)

Association

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE ASSOCIATION FOR THE UNION

Marisa Pollock and Nadine Blum Goldblatt Partners LLP Co-counsel Avril Dymond Ontario Public Service Employee’s Union Grievance Officer

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

SUBMISSIONS

March 31, 2020

Decision

1These grievances arise out of an incident where two employees, one represented by AMAPCEO (the Grievor) and the other represented by OPSEU (“B”), had physical contact in the workplace. The employer appointed an investigator to investigate the incident who essentially found that B’s version of events was to be preferred. Following the incident, the Grievor went off work with mental health issues and has not returned.

2Broadly speaking there are two issues which need to be determined in these grievances:

1. what happened in the incident;

2. whether the investigation was tainted by unintentional racial bias.

3Early on OPSEU sought to intervene in these proceedings. AMAPCEO objected. After hearing from the parties I permitted OPSEU to intervene although on a somewhat limited basis. Paragraph 20 of my award granting OPSEU’s motion to intervene reads as follows:

1. B will not be a party to AMAPCEO’s challenge to the employer’s investigation. B’s right to participate in the hearing is limited to the “incident” and the remedy, if any, which might affect her as a result of my factual finding.

2. I will be strident in preventing duplication of evidence and argument during the hearing.

3. I remit the issue of B’s presence in the hearing room to the parties. If the parties are unable to resolve the situation in a way which protects the Grievor’s health I will hear submissions on a conference call.

4The hearing proceeded over a few days. B has not been in the hearing room while AMAPCEO has put in its case. On hearing days, B, along with OPSEU representatives, have been located in the same hearing facility but in a different room than the main hearing room and has watched the proceedings via video. OPSEU and counsel and any OPSEU representatives it wishes to have present is, of course, in the main hearing room participating in the proceedings in person. Breaks have been given to permit OPSEU counsel to confer with her when required. OPSEU has had a full opportunity to participate in these grievances within the parameters which are set out above.

5The next hearing is scheduled for mid April. Because of the current health crisis nobody believes that the hearing should be held in person. It seems that AMAPCEO and the employer initially agreed that the hearing should continue via Zoom video conferencing where AMAPCEO was to call its last witness, an expert witness, who was to give evidence on unintentional racial bias. The employer advises that its initial agreement to AMAPCEO’s proposal was based on the thought that the expert’s evidence fell within category 1 in paragraph 20 set out above and therefore OPSEU had no legal or other interest in the expert’s testimony.

6AMAPCEO sent me the following email, copied to all parties:

Arbitrator McLean

The next day of hearing in this matter is April 16, 2020. On that day, AMAPCEO is planning to call Dr. Kawakami as an expert witness. The parties have been provided with a copy of her report. AMAPCEO intends to ask Dr. Kawakami some questions in chief (likely no more than 45 minutes worth) and it is our understanding that the employer will proceed first with cross-examination followed by OPSEU, who have indicated that their cross will likely be brief.

We are writing to you because there is a dispute about whether the proceedings on April 16, 2020 should proceed by way of videoconference. The employer has agreed with AMAPCEO’s request to proceed by videoconference but OPSEU does not.

Could we please convene a zoom or conference call ASAP to discuss this issue and how to proceed to have it determined?

7Prior to the conference call I emailed the parties and received emailed submissions on OPSEU’s legal interest in examining the expert witness. OPSEU convinced me that the expert may have gone outside her mandate somewhat and had made comments in her report that might be seen as findings of fact or arguments in relation to the incident itself and not just about the investigator’s report. Accordingly, I found that OPSEU had a right to make submissions on whether the examination of the expert should be made via video conferencing.

8On March 31 I convened a conference call with all parties for the purpose of receiving submissions about the videoconferencing issue. All parties made submissions and following the call OPSEU and AMAPCEO filed caselaw which I have reviewed and considered. While the authorities cited were of assistance, of course none of them dealt with circumstances anything like those that face the labour relations community generally, and those of the government and its unions specifically, at this time. There was significant contradiction in the cases about an adjudicator’s ability to assess credibility over video. It may be that this controversy stems in part from the adjudicator’s individual comfort level in doing so.

9I have carefully considered the submissions made before me. I will provide a brief decision.

10In my view, I have the authority under the circumstances to compel a videoconferencing hearing and there was no submission that I lacked jurisdiction to do so. I also agree, however, that it is a question of balancing interests.

11Nobody disputes that, for a whole host of reasons, an in-person hearing is a superior method of conducting an arbitration hearing. That being said I disagree with many of the arguments made to me - in my view there are, in general, no natural justice issues inherently raised by videoconferencing. In many circumstances a video hearing is a perfectly adequate method to have a grievance heard. That will be increasingly the case as all parties gain familiarity with the technology, as it seems they will certainly do. I also agree that there may be cases where a video hearing is inappropriate. Each case must be assessed in the context of its particular facts and the particular circumstances.

12I accept that there is an interest in determining these grievances quickly. The Grievor is not in the workplace and it seems that it may be that a resolution is necessary in order for her to be medically fit to return; the sooner that happens the better.

13The circumstances which gave rise to this motion drive my decision making. It came to me as, essentially, an agreement by the employer and AMAPCEO to continue the hearing through online video conferencing. OPSEU objected. The witness AMAPCEO seeks to call next (by video) is an expert witness. It is expected by all parties that the expert will testify for a relatively short amount of time. Additionally, given my earlier rulings in the case, the expert is supposed to be testifying about issues that do not concern OPSEU or its member. I note that while I have ruled that OPSEU may participate in this part of the case because in her report the expert arguably made findings of fact and presented arguments (which if I took into account would affect OPSEU and its member), it is also the case that all parties agree that to the extent she did so, I ought not to have regard to those observations. It is up to the parties to make the arguments they wish to make and for me to make findings of fact based on the evidence properly before me. Nevertheless, OPSEU is entitled to participate in the evidence given by the expert to ensure that what everyone agrees should happen does in fact happen.

14These seem to me to be perfectly acceptable circumstances to use videoconferencing and I find that it is appropriate to do so for this witness. I note that if there are unexpected problems in the hearing then the hearing can be adjourned.

15As for other witnesses, that is a decision best left for after the next hearing day when all of the parties have had experience in conducting a hearing by videoconferencing in the relatively unique circumstances of this case. This includes an assessment of B’s technological capability to fully participate in the hearing. To be clear, if B (or any other party) has technical issues during the expert’s evidence which prevent full participation, and which cannot be readily resolved, the hearing will be adjourned. In any event, the expert will be the only witness to give evidence at the next hearing day.