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Expanded Case Details

Ottawa (City) (2012), 218 L.A.C. (4th) 83 (Sheehan)

In Ottawa (City) (2012), 218 L.A.C. (4th) 83 (Sheehan), the arbitrator considered whether the Supreme Court of Canada’ decision in Quebec Cartier [1995] 2 S.C.R. 1095 served to prevent the Union from calling post-termination evidence in the form of a psychiatric report completed some time after the employee’s termination.

Arbitrator Sheehan stated that the Quebec Cartier decision was “generally viewed as the high water mark for the adoption of a restrictive approach regarding the admissibility of post-termination evidence.” He commented that Ontario arbitrators, in a series of cases, distinguished the decision on the basis that Quebec law did not incorporate a comparable provision to that set forth in s. 48(17) of the Ontario Labour Relations Act. That section expressly provides an arbitrator with the discretion to substitute a lesser penalty “which seems just and reasonable in all the circumstances.”

The arbitrator found that s. 60(2) of the Canada Labour Code was similar in nature and that it provided “a sufficient underpinning to allow for the post-termination evidence” of the Union’s psychiatrist.

The arbitrator also stated that, on the facts of this case, it was not necessary to rely on these statutory differences, for in Quebec Cartier, the court recognized that post-termination evidence would be admissible “if it sheds light on the reasonableness and appropriateness of the dismissal under review at the time it was implemented.” He commented that this view was confirmed by the Supreme Court of Canada in Toronto (City) Board of Education (1997), 144 D.L.R. (4th) 385 (S.C.C.)

On the issue of the Employer’s right to call reply evidence in the form of an earlier psychiatric report, the arbitrator found that the employer’s entitlement was “rooted in the rubric of ensuring a fair hearing”:

It is the Union that is asserting that the grievor has a disability that impacted upon his ability to follow the procedure for reporting and substantiating his absences from work at the time of his termination. Specifically, the Union has raised the grievor’s state of mental health as a “defence” to rebut the Employer’s just cause argument. The Union, in my view, bears the onus of establishing a nexus between the grievor’s disability and the actions underlying his termination. Fairness generally dictates that he who asserts must prove. Accordingly, an evidentiary onus shifts to the Union to advance the evidence, at the first instance, in support of that defence …

In the case at hand, the Employer’s submission of rebuttal evidence, such as the assessment by [the independent psychiatrist] in reply would not, in my view, constitute the Employer “splitting its case”; but rather the employer would be responding to the exculpatory argument advanced by the Union. The evidence, if advanced, would not be confirmatory of the Employer’s case but would seek to negate the exculpatory argument of the Union. As noted in Board of School Trustees No. 39 (Vancouver) [(1996), 56 L.A.C. (4th) 8 (B.C. Arb. Bd.], this type of rebuttal evidence is one of the accepted circumstances allowing for the admission of reply evidence …

The arbitrator made two further points:

  1. The dynamics would not change even if a union provided the employer with particulars pertaining to the exculpatory argument prior to the commencement of the hearing. In that regard, the arbitrator commented that Board of School Trustee’s District No. 39 (Vancouver), to the extent it could be said to have adopted a different approach, should not be followed on that point.
  2. Pursuant to the “Rule in Browne v. Dunne” (discussed at page 498 of the “Illness and Absenteeism” manual), the employer must cross-examine the Union’s expert medical witness and/or the employee with respect “to any evidence to the contrary that would be potentially led through [the Union’s expert] or any other Employer witness.”

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