GSB# 2010-2654
UNION# 2010-0234-0283
Additional grievances noted in Appendix “A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Pacheco)
Union
- and -
The Crown in Right of Ontario (Ministry of the Solicitor General)
Employer
BEFORE
Ken Petryshen
Arbitrator
FOR THE UNION
John Brewin Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel
HEARING
November 7, 21 and December 4, 2019
Decision
1This decision deals with a non-suit motion made by the Union in a proceeding involving a number of disciplinary grievances filed on behalf of Mr. J. Pacheco, a Bailiff. Mr. Pacheco’s grievances challenged suspensions of 10, 15 and 20 days and a termination grievance. In June of 2017, the Employer returned Mr. Pacheco to employment as a Bailiff without prejudice to its position that a suspension should be substituted for the discharge and that Mr. Pacheco was not entitled to any compensation for his losses. The Employer called ten witnesses to substantiate its disciplinary decisions and many exhibits were entered. The Employer’s evidence on the merits of the grievances required well over forty hearing days.
2Counsel provided me with a number of authorities to support their view on what principles to apply and how to apply them when deciding a non-suit motion. To suggest that they were not ad idem on these matters is an understatement. Each counsel then applied the principles to the extensive oral and documentary evidence before me. The Employer agreed in this instance that the Union should not be put to an election.
3In addition to referring to section 7:2500 of Labour Arbitration, Brown & Beatty, Union counsel relied on the following decisions: Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Beltrano), 2006 CarswellOnt 10612 (Petryshen); OPSEU (Ross) and Ministry of the Solicitor General and Correctional Services, 2003 CanLII 52856 (Herlich); OPSEU (Faler) and Ministry of Correctional Services (1990), GSB No. 218/89 (Fisher); Re Maple Villa Long Term Care Centre and S.E.I.U., Local 532 (Betonio) (2004), 2004 CanLII 94618 (ON LA), 135 L.A.C. (4th) 73 (Davie); Re Centre for Addiction and Mental Health and O.P.S.E.U. (Ramrattan) (2005), 139 L.A.C. (4th) 148 (Briggs); F.H v. McDougall, 2008 SCC 53, [2008] 3 SCR 41; AMAPCEO (Bhattacharya) and Ministry of Government and Consumer Services, 2017 CanLII 21225 (Anderson); Ontario (Ministry of Natural Resources and Forestry) and OPSEU (Martin), [2016] O.G.S.B.A. No. 45 (Dissanayake); OPSEU (Gareh) and Ministry of the Attorney General, 2002 CanLII 45791 (R. Brown); OPSEU (Bharti) and Ministry of Natural Resources and Forestry, 2015 CanLII 19330 (Anderson); FL Receivables Trust 2002 - A (Administrator of) v. Cobrand Foods Ltd., 2007 ONCA 425, 85 O.R. (3d) 561 (Ont CA); Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 SCR 423; OPSEU (Sindall/Talbot) and Ministry of the Solicitor General and Correctional Services, 1997 CarswellOnt 7605 (Gray); Re Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Maude) (2016), 269 L.A.C. (4th) 38 (Petryshen); and, William Scott & Co. v. C.F.A.W., Local P-162, 1976 CarswellBC 518 (Weiler).
4In addition to referring me to section 7:2500 of the most recent edition of Labour Arbitration, Brown & Beatty, counsel for the Employer referred me to the following decisions: OPSEU (Whan et al.) and Ministry of Transportation, 2007 CanLII 6889 (Dissanayake); OPSEU (Dhanju) and Ministry of Municipal Affairs and Housing, 2005 CanLII 54843 (Dissanayake); Fort McMurray Airport Authority and CUPE, Local 1505, 2015 CanLII 14914 (Smith); and, OPSEU (McCormick) and Ministry of Transportation, 2008 CanLII 70524 (Stephens).
5In a number of respects, the Union’s submissions suggested that I should assess the Employer’s evidence on the non-suit motion in a manner similar to the way I would assess all of the evidence at the end of the case. The Union provided me with a number of decisions to illustrate that the standard of proof in arbitration proceedings is on the balance of probabilities and counsel argued that the evidence for many of the allegations against Mr. Pacheco was not sufficiently clear and cogent. The Union suggested that I should make an assessment of the quality of the evidence in terms of its credibility and reliability. The Union also took the position that I could find that the evidence was sufficient to support a disciplinary response, but was nonetheless excessive in the circumstances, and refer the matter back to the parties. Employer counsel submitted that these positions were inconsistent with the decisions that address non-suit motions.
6Before providing a general summary of key principles for non-suit motions, I propose to briefly review some decisions to illustrate that the above Union positions do not reflect the jurisprudence on non-suits. In its review of a board decision which had allowed a motion for non-suit, the Divisional Court clearly addressed the standard to be applied on a non-suit motion. See, Ontario v. OPSEU (1990), 37 O.A.C. 218. The Court wrote as follows:
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.
7In Re Southern Alberta Institute of Technology and A.U.P.E. (1994), L.A.C. (4th) 261 (McFetridge), the arbitrator indicated that the evidence on a non-suit motion need only meet a minimum threshold of credibility. The arbitrator commented at p. 269 as follows:
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.
8In Edmonton (City) v. City Fire Fighters Union, Local 209, [1995] A.J. No. 70 (Queen’s Bench), the Court approved the test that the arbitration board had applied in a non-suit motion in a discipline case, a test that confirms that the extent of the penalty is not an issue for the board on a non-suit motion. The Court wrote as follows:
The Board articulated the test: “A non-suit cannot succeed if there is some evidence upon which a reasonable trier of fact could return a finding that there was just cause for discipline, even if that evidence is weak. The weight of such evidence is not an issue on a non-suit motion … if there is evidence that shows some level of misconduct that warrants some level of discipline, the non-suit motion must fail”. No one disputed that that was the correct test for the board to apply.
9There are a number of decisions of this Board which summarize the primary principles to be utilized when deciding a non-suit motion. With one addition, I adopt the following principles that are summarized in OPSEU (Whan et al.) v. Ontario (Ministry of Transportation), supra, as follows:
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 an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case.
In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities.
In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side.
In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion.
In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.
In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence.
Where a non-suit motion is granted, a written decision with reasons will follow. However, where a non-suit motion is denied, no reasons, oral or written, will be issued.
10Consistent with Re Southern Alberta Institute of Technology and A.U.P.E., supra and recent decisions, I would add to point 3 that the test of whether there is some evidence to support the claim assumes that the evidence meets a minimum threshold of credibility.
11I have carefully considered the evidence that was adduced to support each of the four pieces of discipline in light of the foregoing principles. Since I have determined that there is some credible evidence in support of the Employer’s claims, the Union’s non-suit motion must fail. Accordingly, the Union’s non-suit motion is hereby dismissed. In accordance with the practice of the board, I will not provide reasons for that determination.
Dated at Toronto, Ontario this 7th day of May, 2020.
Appendix A
GSB Number
OPSEU File Number
2012-0727
2012-0234-0066
2013-3214
2013-0234-0359
2014-0350
2014-0234-0061
2014-3305
2014-0234-0458
2014-3846
2014-0234-0508
2014-4854
2015-0234-0030
2015-0390
2015-0234-0058
2015-0494
2015-0234-0069
2015-0495
2015-0234-0070
2015-0496
2015-0234-0071
2015-0913
2015-0234-0085
2015-0914
2015-0234-0086
2015-0915
2015-0234-0087
2015-0916
2015-0234-0088
2015-1310
2015-0234-0108
2015-1311
2015-0234-0109
2015-1312
2015-0234-0110
2015-1313
2015-0234-0111
2015-1314
2015-0234-0112
2015-1315
2015-0234-0113
2015-1316
2015-0234-0114
2015-1317
2015-0234-0115
2015-1318
2015-0234-0116
2015-1319
2015-0234-0117
2015-1320
2015-0234-0118
2015-1321
2015-0234-0119