[1986] OLRB Rep. February 270
1977-85-U Labourers' International Union of North America, Local 183, Complainant, v. Olympia & York Developments Limited, c.o.b. as Olympia Floor & Wall Tile Co., and Joe Schochet, Respondents
BEFORE: Judge R. S. Abella, Chairman, and Board Members J. A. Ronson and S. 0 'Flynn.
APPEARANCES: L. A. Richmond, M. O'Brien and M. Kevins for the complainant; John C. Murray and J. Schochet for the respondents.
DECISION OF JUDGE R. S. ABELLA AND BOARD MEMBER S. O'FLYNN; February
17, 1986
This complaint alleges that the respondents violated sections 64, 66 and 70 of the Labour Relations Act by firing Michael Kevins for union activities. The respondents deny that this was the motive and Joseph Schochet, who carried out the termination, seeks to disprove the allegation not only through viva voce evidence, but through the introduction of polygraph evidence.
The respondent Joe Schochet wishes to introduce the polygraph evidence because, in this reverse onus situation, there is a heavier burden on him. One of the issues is motive and, he alleges, polygraph evidence will assist the Board in assessing his credibility.
The complainant union resists the introduction of this evidence on the grounds that it is unreliable and entirely inappropriate in a labour relations context. It cites Part XI - A and specifically sections 39a - 39d of the Employment Standards Act as a legislative reflection of public policy in its prohibition of lie detector tests in employer/employee relationships. It relies particularly on section 39b which states:
39b.-(l) An employee has a right not to take or be asked or required to take or
submit to a lie detector test.
(2) No person shall require, request, enable or influence, directly or indirectly, an employee to take or submit to a lie detector test.
(3) No person shall communicate or disclose to an employer that an employee has taken a lie detector test, or communicate or disclose to an employer the results of a lie detector test.
[emphasis added]
"Lie detector test" is defined in section 39a (c) as follows:
"lie detector test" means an analysis, examination, interrogation or test taken or performed by means of or in conjunction with a device, instrument or machine, whether mechanical, electrical electromagnetic, electronic or otherwise, and that is taken or performed for the purpose of assessing or purporting to assess the credibility of a person.
[emphasis added]
Although section 103(2)(c) of the Labour Relations Act gives the Board the power "to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not", it is worth noting that courts in Canada have largely refused to admit polygraph evidence. (See Phillion v. The Queen, [197811 S.C. R. 18, Prince v. Home Insurance Company (1985), 1985 CanLII 4263 (NB CA), 11 C.C.L.I. 294 (N.B.C.A.); but see R v. Beland and Phillips (1984), 1984 CanLII 3034 (QC CA), 15 D.L.R. (4th) 89 (Quebec C.A.) currently on appeal to the Supreme Court of Canada and R v. Wong (No. 2) (1976), 1976 CanLII 1438 (BC SC), 33 C.C.C. (2d) 511 disapproved of by the S.C.C. in Phillion, supra). Several arbitration awards have dealt with the issue and in most of those cases the polygraph evidence was rejected. (See Ontario Crown Employees Grievance Settlement Board, in Re: Adams, 140/77 dated August 10, 1978 (Adams); Re Canada Post Corporation (1982), 1982 CanLII 4982 (CA LA), 8 L.A.C. (3d) 60 (Burkett); Kingsway Transports Ltd. (1983), 1983 CanLII 4916 (ON LA), 10 L.A.C. (3d) 440 (Brandt); but see Re Corporation of the Regional Municipality of Haldimand-Norfolk (Grandview Lodge) (1985), 1985 CanLII 5467 (ON LA), 20 L.A.C. (3d) 131 (Samuels).)
There are a number of policy considerations which, in our view, mitigate against the introduction of such evidence in Board hearings. Most importantly, the reliance by an employer on such evidence would as a practical matter put the employee at a tactical disadvantage and lead, indirectly, to employees feeling they ought to submit to such tests in order to make the credibility issue equally competitive. The litigation would likely, assuming both parties could afford it, devolve into an assessment of the technical reliability of polygraph testing rather than of credibility. In our view, the scientific evidence of reliability would have to be overwhelmingly positive to outweigh the inevitable result of employees feeling no alternative but to submit to polygraph testing. This would fly in the face of the clear legislative intent contained in the Employment Standards Act, that no employee feel under pressure to take such a test.
It is important to note that the refusal to admit such evidence does not unfairly restrict the respondent's ability otherwise to make his case. He will be called as a witness, will give evidence under oath, will be subject to cross-examination and will be subject to the Board's observation of his demeanour as he testifies. None of these safeguards exists in the disclosure of his statements to the administrator of a polygraph test where the questions and answers are taken in privacy and without scrutiny either by the adjudicators who must assess his credibility or his adversaries who may wish to challenge it.
In the absence of a serious flaw in the existing adjudicative process for the determination of credibility and weight, and while recognizing the fallibility of those responsible for making these judgments, there is no justification for the introduction into Board hearings of "trial by polygraph", an unreliable instrument which may not be of assistance, may unfairly prejudice either party, and may cause the unintended and undesirable erosion of the protection given by statute to employees from polygraph testing. The existing process, whatever its imperfections, attempts to strike a fair balance to all parties in the adversarial forum. Anything that endangers this balance without providing an overriding benefit should, as a matter of policy, be rejected. We therefore find that the polygraph evidence of Joseph Schochet is not admissible.
DECISION OF BOARD MEMBER JAMES A. RONSON;
In this case the Labour Relations Act places the onus on the respondents to prove that they did not commit an unfair labour practice. To further the purpose of that onus, the Board does not force the complainant to first prove a prima facie case. Rather the Board forces the respondents to present their case first. Third and last, if the Board finds that there is the slightest bit of anti-union animus in the motive behind the employer's actions then the decision to terminate the employment of the grievor is "tainted", and the employer has violated the Act.
The "taint" theory illustrates, in itself, that the Board recognizes the difficulties faced by a trier of fact in making a finding relative to motive. Rather than determine the predominant motive behind a decision, the Board adopted a policy that avoids this difficult decision-making problem.
Given the above, there is no wonder that many feel that the Act pays lip-service to the Canadian Charter of Rights and Freedoms
.any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." [s.l1(d)]
In this case a named individual respondent seeks to introduce evidence of his innocence. There is no valid policy reason (given our new Charter of Rights) that could ever preclude an accused person from seeking to introduce relevant evidence tending to prove his or her innocence.
The Board has not reached the stage of receiving evidence regarding the admissibility of a polygraph test. We are advised that Mr. Schochet will give vive voce evidence. At this stage, the Board is denying Mr. Schochet the opportunity of leading evidence which could very well be supportive of his viva voce evidence. The Board is making a finding regarding relevancy without even listening to the expert evidence on the subject.
The decision of the majority speaks of "trial by polygraph" or "trial by machine". In my opinion that is not a valid reason for refusing to determine whether polygraph evidence is relevant. If it were, then the results of blood sampling would not be admissible in paternity cases, nor would spectroscopic analysis of materials be admissible evidence tending to prove the presence of an accused at the scene of a crime.
Counsel for Mr. Schochet made a telling point when he pointed out that there is no empirical evidence to show that a human being, acting as a fact-finder, is any more accurate than a polygraph machine. Our system presumes that the fact-finder is always correct. Common sense dictates the opposite. In any event, human fact-finders should never submit to the human reaction that their job could never be assisted by a machine. As fact-finders we should accept whatever help we can get; - not all cases can be decided by "dividing the baby in half'.
Things are changing so quickly that we at least owe Mr. Schochet the opportunity of trying to show us that his polygraph evidence is relevant. Twenty-five years ago, while at university, I first had the opportunity to use a $4 million computer that occupied an entire floor of a large building. Today, an equivalent machine sits on my basement desk at 1/2000 of the price. As technology and experience improve, the human fact-finder cannot afford to get left in the back-water of events.
In my opinion polygraph evidence could be especially relevant in this case. We are not dealing with the questions of "HOW" and "WHAT". It is admitted that Mr. Schochet terminated the employment of the grievor. We are dealing with the "WHY" question - what motivated Mr. Schochet to do what he did. In many such cases the Board is forced to infer the motive of anti-unionism from other facts. As the Board has noted, rarely does someone admit that their motive was "tainted" by anti-union reasons. Since we are dealing with Mr. Schochet's motive, and that only, there is no pressure on the union to call its own polygraph evidence in this case. And when we are dealing in inferences (from evidence that is often circumstantial), why should not relevant polygraph evidence be added to the pot?
I see no valid reason in this case why Mr. Schochet should not be allowed to attempt to lead relevant polygraph evidence regarding his lack of wrongful motive, and I would not prevent him from so doing at this stage of the proceedings.