GSB# 2019-2977

UNION# G-142-19-BOE

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Lugossy)

Union

• and -

The Crown in Right of Ontario (Metrolinx)

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE UNION

Dean Ardron Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Bonnea Channe & Mark Vanginkel Filion Wakely Thorup Angeletti LLP Co-Counsel

HEARING

May 6, 2021

DECISION

1This decision concerns a grievance brought by the Union regarding the Employer’s decision to remove the Grievor from his job as a transit bus driver. The reason for the Employer’s decision is that it learned, following a drug test, that the Grievor uses medical cannabis and believes that, as a result, the Grievor cannot safely drive a bus. During the hearing, the Employer advised that it wished to call Dr. Neal Sutton to give expert opinion evidence about whether it is safe for a daily medical cannabis user (and specifically the Grievor) to drive a transit bus. The Union objects. It asserts that Dr. Sutton is not an expert in the relevant fields which would qualify him to give such an opinion. It also asserts that since Dr. Sutton was part of the process relied on by the Employer in making its decision, he does not have the requisite degree of objectivity to meet the requirements of an expert witness.

2We held a hearing within the hearing (a voire dire) in order to allow the parties to call evidence and make argument regarding whether Dr. Sutton should be permitted to give opinion evidence with respect to the medical and scientific issues present in this case as described in the report he prepared. This decision determines whether he can do so. I note that at the conclusion of the argument I advised the parties that I had time constraints but would attempt to release this decision well in advance of the next hearing date. Because of those time constraints this decision is not as detailed as it otherwise might be. However, in coming to my decision I have considered the full range of arguments and authorities referred to even if they are not specifically discussed.

3The only witness called was Dr. Sutton. He graduated from medical school in 1982. He is also a lawyer. It would appear that Dr. Sutton has had a nontraditional medical practice. His practice has had, broadly speaking, three aspects. The first aspect is providing medical services directly to employers regarding their employees or through organizations that provide similar medical services to employers. The second aspect is treating persons with drug dependencies in a variety of settings, including homeless shelters. A third aspect has been that he was medical director or a consultant to various cannabis companies.

4In the first aspect of his medical practice Dr. Sutton deals with work medical issues of employees at a variety of employers which contract him for such services. The employer will seek his advice on what to do with employees who are experiencing medical problems that affect their work life. The medical issues he deals with are wide ranging and include employees who have substance abuse problems.

5One of the organizations he provides services to is Oncidium Health Group. Dr. Sutton is the Medical Director (in a non-employment relationship capacity) at Oncidium which has a contract with Metrolinx to provide drug testing services and advice about the results of those tests. In this case it was Oncidium which arranged for the Grievor’s drug test and then sought Dr. Sutton’s advice about the results of that test. When Dr. Sutton gave that advice, which was that the Grievor should not be driving a bus, he was unaware of the identity of the Grievor and of the Employer. He testified that he has no recollection of the circumstances regarding his advice or the advice he gave.

6The second aspect of Dr. Sutton’s medical practice involves treating patients who use and are addicted to Cannabis and other illegal and legal drugs. He was a Medical Director at HarbourLight Treatment Centre and is currently a staff doctor there. He has also assisted the medical needs of homeless people through St. Michael Hospital and St. Simon Out of The Cold- Seaton House. Through the Centre for Addiction and Mental Health he follows patients with mental health issues, including drug and alcohol problems, in hostel settings. He has held similar positions with different organizations for many years.

7The third aspect of his relevant medical career has been Dr. Sutton’s work with Cannabis organizations. From 2018 to 2020 he was the medical director for Medreleaf (which was purchased by Aurora Cannabis) and the Prescribing Physician for Cannaconnect Medical Clinic. In these roles he prescribed cannabis and dealt with patients who use medical cannabis. Prior to prescribing cannabis, he took a medical cannabis course which included information on the effects of cannabis on those who take it. This course was required to permit him to prescribe medical cannabis.

8Under cross examination Dr. Sutton acknowledged that he was not a scientist, a pharmacist or a specialist in the pharmacology of cannabis. He testified that he has considerable knowledge about how cannabis metabolizes but was unable to give specific details about how quickly that occurs or where his knowledge came from. In this regard he testified that he continually keeps up with the latest science on cannabis by reading medical journals. However, he was unable to identify or recall any specific medical journal that discussed the issues that are likely to arise in this case such as the degree and time period to which cannabis remains in the system after use. He was, however, certain that he had read many such articles. Similarly, he often attends continuing education courses which can have cannabis components but was unable to identify the dates that such courses took place.

Decision

9The leading case on the admissibility of expert opinion evidence is R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (S.C.C.) which established a four-part test: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert (at pp. 20-25). Arbitrators have tended to follow these requirements despite their authority to accept evidence not admissible in a court.

10Here, there is some dispute about the relevance of the expert evidence given the parameters of his report. However, I am satisfied that the questions asked of the expert are relevant to the Employer’s case, at least. I am also satisfied that expert evidence is required to assist me in determining whether medical cannabis has affected the Grievor’s ability to safely drive a bus, which is at least arguably an issue in this case.

11That leaves the issue of whether Dr. Sutton is properly qualified to give such evidence. I share some of the concerns raised by the Union about whether he is. It is clear that while drugs, including cannabis, are central to aspects of his practice, for the most part he deals with the treatment of people with drug issues rather than the specific medical effects of those drugs. It seems possible that his ability to give evidence about specific scientific processes may be limited.

12However, in my view, a physician who prescribes drugs, including cannabis, is prima facie an expert on the effects of such medications. That is part and parcel of what it means to be a doctor. If they did not have such expertise, they ought not to be prescribing the medication. On that basis alone Dr. Sutton can provide opinion evidence. Moreover, providing medical advice to employers on the ability of cannabis using employees to work safely is a routine part of his practice.

13I am also satisfied that the fact Dr. Sutton cannot recall with specificity where he acquired his knowledge over his years of practice is not critical. It is no different than a doctor who cannot remember how he learned the symptoms of appendicitis but is nonetheless able to provide a medical opinion about the nature of abdominal pain.

14None of this is to say that Dr. Sutton is the best expert. I have stated my concerns. But the law does not demand that only the best experts be allowed to testify. In fact, in labour arbitrations family doctors routinely give opinion evidence about their grievor patients. It would be inappropriate to require a specialist in each of these cases. In my view, these circumstances are akin to that. I must balance the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks. Here, given that the Union has advised that it intends to call its own expert, the primary risk is undue delay in the hearing. I am satisfied that the benefits of having Dr. Sutton testify outweigh the risks.

15I am also satisfied that the fact that Dr. Sutton was involved in this matter and gave the opinion that is at issue is a matter for cross examination rather than for exclusion. Dr. Sutton testified that he is capable of giving an unbiased opinion; I accept that. Dr. Sutton has given expert evidence on more than one occasion and understands what the law requires of him.

16The Supreme Court in White Burgess Langille Inman v. Abbott and Haliburton Co. 2015 SCC 23, [2015] 2 S.C.R. 182 had this to say about the standard of disqualification of an expert because of his/her interest in the matter:

49 This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

17In principle, the situation of Dr. Sutton is akin to the “mere employment relationship” discussed by the Supreme Court as not rendering the evidence automatically inadmissible. I accept that Dr. Sutton should be able to give evidence about why he is and was of the medical opinion that the Grievor should not be permitted to drive a bus. The extent to which that opinion was or was not affected by his relationship with Oncidium can be explored in cross examination and argument can be made to how his answers to such questions affect the weight that should be placed on it. Further I do not assume that Dr. Sutton is an advocate for the Employer. It is clear that he holds views about whether medical cannabis users in general, and the Grievor in particular, should drive a bus, but these are not related to his position at Oncidium, but arise out of his experience and medical expertise. This is a very different situation than was before the decision makers in the cases relied on by the Union.

18For all of these reasons I allow the Employer to call Dr. Sutton as an expert witness to give opinion evidence. I remain seized.