SHP :

PRELIMINARY AWARD

This arbitration involves the grievance against dismissal of Car Mechanic Terrence Solmundson of Prince George, B.C. The grievor was discharged for alleged theft of Company property and conduct incompatible with his employment relating to the consumption of marijuana while at work. The Union raises preliminary objections with respect to the arbitrability of the grievance. The nature of those objections is reflected in the Joint Statement of Issue filed by the parties which reads as follows:

DISPUTE:

Dismissal of Car Mechanic Terrence Solmundson, Mechanical Department, Prince George, B.C.

JOINT STATEMENT OF FACT:

On December 16, 1996, Canadian National Railway held an investigation of Car Mechanic Terrence Solmundson concerning:

“your involvement in the theft of property from your employer, Canadian National Railway and conduct incompatible with your employment.”

The Company based its assertions on information derived form the contents of the “Examination For Discovery of Terry Solmundson”, a document of the Supreme court of British Columbia taken for the purpose of civil divorce proceedings.

On January 20, 1997, Car Mechanic Terrence Solmundson was dismissed from service for:

“The theft of property from your employer, Canadian National Railway and conduct incompatible with your employment.”

JOINT STATEMENT OF ISSUE:

It is the contention of the Union that:

– the Company used confidential and private information on which to build its case against Terry Solmundson, thereby violating his rights under the Charter of Rights and Freedoms;

– the information on which the Company built its case was privileged and therefore inadmissible in this case;

– in any event, the evidence used by the Company did not establish the Company’s contentions and claims of theft and conduct incompatible, in this case;

– the Company did not handle this matter in a timely manner and therefore should be denied the right to discipline in this case;

– Car Mechanic Terrence Solmundson was treated in an arbitrary, discriminatory and excessive manner in regard to his dismissal.

Therefore, with regard to the foregoing, it is the position of the Union that Car Mechanic Terrence Solmundson should be returned to duty forthwith without loss of seniority, with full redress for all lost wages, benefits and losses incurred as a result of his dismissal, including, but not limited to, interest on any money owing.

The Company disagrees with the Union’s position and has declined the appeal.

In fact the Union raises two preliminary objections to arbitrability. Firstly it submits that the evidence utilized by the Company, being material disclosed in an examination for discovery in divorce proceedings, should not be admitted as evidence in this arbitration. Secondly it maintains that the Company did not impose discipline upon the grievor in a timely manner, thereby nullifying the result.

I deal with the issue of timeliness first. It is common ground that the grievor was involved in divorce proceedings in the spring of 1995. As part of those proceedings he was examined by his wife’s counsel, during the normal course of an examination for discovery. Statements made by the grievor during the discovery process appear to involve admissions on his part with respect to the theft of property from his employer and the consumption of marijuana both before and during his working hours. It appears that the examination for discovery was completed on May 3, 1995. In August of 1996 the grievor’s ex-wife provided CN police with a transcript of the examination for discovery containing the admissions made by the grievor. It is common ground that the discovery documents were never utilized in the trial of the divorce proceeding, as it apparently was resolved on the basis of a settlement. The Company’s operations management became aware of the information contained in the discovery document on or about October 27, 1996. On December 11, 1996 the Company issued a notice to the grievor to appear at an investigation into his alleged theft of property and consumption of marijuana at work. The investigation was conducted on December 16 and on January 20, 1997 the grievor was discharged. The Union bases part of its objection on timeliness on the fact that the examination for discovery was some twenty months prior to the Company’s action in the grievor’s case. Alternatively, it submits that the delay from the time at which the CN police received the information, in August of 1996, is excessive.

The Arbitrator cannot sustain that position. As noted above, the operations managers of the Company became aware of the content of the examination for discovery only in October of 1996, when that information was disclosed to it by the CN police. In my view the chronology indicates that the Company then proceeded expeditiously to give the grievor notice of its investigation, and to conduct the investigation within a reasonable period of time. I can therefore see no basis in this aspect of the facts to sustain the Union’s position with respect to timeliness.

Secondly the Union takes issue with the fact that the Company took longer than twenty-eight days to give the grievor notice of his discharge, following the close of the investigation. In that regard it relies upon rule 27.3 of the collective agreement which is as follows:

27.3 An employee will not be held out of service unnecessarily pending the rendering of a decision. The decision will be rendered as soon as possible but not later than 28 calendar days from the date the investigation is completed unless otherwise mutually agreed.

It appears that in the past similar language in another collective agreement within the railway industry was found to involve mandatory time limits. In SHP 223, a decision of Arbitrator Weatherill dated November 3, 1986 in a dispute between Canadian Pacific Limited and the Canadian Division Brotherhood of Railway Carmen of the United States and Canada found that the failure to respect the twenty-eight day limit in the similar rule there under consideration rendered the discipline null and void.

Even if, as the Union’s representative submits, the parties intended the twenty-eight day time limit in rule 27.3 to be mandatory, it is now open to a board of arbitration under the Canada Labour Code to relieve against time limits where it is appropriate to do so, where there is no undue prejudice to either party. In that context “prejudice” must be understood to mean prejudice in the legal sense, as for example where witnesses have died or moved away, or evidence has become stale dated, or the passage of time has made it virtually impossible for a party to prepare its case. None of those considerations arise in the instant matter. In the circumstances, therefore, I would be inclined to exercise my discretion to relieve against the time limits, even if they should be mandatory. On that basis the second aspect of the Union’s objection with respect to timeliness must be declined.

I turn to consider the next ground of objection, which concerns the Union’s allegation that the evidence obtained by the Company, being the transcript of an examination for discovery, should not be admitted in these proceedings. The Union’s objection in that regard is two-fold. Firstly it submits that the use of the material gained from the examination for discovery violates the privacy rights of the grievor under section 7 of the Canadian Charter of Rights and Freedoms, and that the use of incriminating statements made by him in those proceedings is prohibited by section 13 of the Charter. Those provisions are as follows:

Section 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

…

Section 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for giving contrary evidence.

Secondly, the Union argues that at common law, and as reflected in recent decisions of the courts of British Columbia, the content of examinations for discovery should be viewed as privileged evidence which is inadmissible in other proceedings.

I turn to consider the merits of the Union’s objections. It is clear that a degree of privilege has traditionally attached to information and documents gained in the course of examinations for discovery as part of the litigation process. The general rule is briefly stated in the following terms in Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd ed.) Toronto 1999 at para. 14.83:

14.83 Under common law and the Ontario civil procedure rules, there is imposed upon litigants and their counsel an implied undertaking not to use evidence or information or documents obtained in the discovery process for any purpose collateral or ulterior to the lawsuit in which they are discovered. Certain exceptions are recognized in the Ontario rule, such as if the discovering party gives consent, if the information has been filed or disclosed in open court, or it is used to impeach the testimony of a witness, or in subsequent action between the same parties. In addition, under the rule and common law, the court has a broad discretion to give relief from the undertaking if it is satisfied that the interests of justice outweigh any prejudice that would result to the party who disclosed the evidence in the discovery process.

A number of court decisions and arbitration awards have analysed the issue of whether the protections against self-incrimination in section 13 of the Charter have any application in civil proceedings which do not have penal consequences, as well as whether a board of arbitration can receive in evidence recorded testimony or documents which would be privileged because they formed part of the process of discovery.

A leading case with respect to the issue of self-incrimination is the decision of the Saskatchewan Court of Appeal in Knutson v. Saskatchewan Registered Nurses Association (1990), 75 D.L.R. (4th) 724 (Sask. C. A.). That case involved the discipline of a nurse by the body regulating nursing accreditation. In that case a nurse had given self-incriminating evidence in criminal proceedings which the Nurses Association sought to utilize in internal discipline proceedings which could result in her suspension from the profession. In that case the Court of Queen’s Bench had ruled that the disciplinary body could not admit the evidence given by the grievor in criminal proceedings, by reason of the application of section 13 of the Charter. That ruling was overruled by the Court of Appeal. After a review of the jurisprudence the Saskatchewan Court of Appeal concluded that the section 13 protection against self-incrimination does not extend to civil proceedings in which there is no possible penal consequence. In that regard it reasoned, in part, as follows:

The disciplinary proceedings under review in this case are neither criminal nor quasi-criminal. Therefore, application of the test in Wigglesworth to the facts before us requires determination of whether expulsion from the appellant association, with the result that the respondent may not obtain employment as a registered nurse, amounts to a true penal consequence. In three companion cases to Wigglesworth, Burnham v. Metropolitan Toronto Police, [1987] 2 S.C.R. 572; Trumbley and Pugh v. Metropolital Toronto Police, [1987] 2 S.C.R. 577; and Trimm v. Durham Regional Police, [1987] 2 S.C.R. 582, the Supreme Court found that loss of a job as a result of disciplinary proceedings did not amount to a true penal consequence as defined in Wigglesworth. In each case, the court quoted, with approval, the following statement from the judgement of Morden J.A. in the Ontario Court of Appeal ((1986) 55 O.R. (2d) 570 at 589):

In my view, a Police Act discipline proceeding is not a criminal or penal proceeding within the purview of s. 11. The most serious consequence that can befall a police officer in such proceedings is the loss of his or her position and, while I do not minimize the seriousness of this consequence, it is a civil consequence and not punishment of a criminal nature. A police discipline matter is a purely administrative internal process. Its most serious possible consequence makes it analogous to a discipline matter in ordinary employer-employee relationships, even though the procedure governing it is clearly more formal. The basic object of dismissing an employee is not to punish him or her in the usual sense of this word (to deter or reform or, possibly to exact some form of modern retribution) but rather, to rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee.

While these cases are not directly on point because the respondent in this case is barred from any employment as a registered nurse, something more serious than loss of a particular job, they nevertheless apply to the facts before us.

In this case there is no liability to imprisonment or fine, and thus no possible element of punishment. There is no matter of public order or welfare in a public sphere of activity. The disqualification is an internal and private disciplinary matter imposed as part of a scheme for regulating an activity in order to protect the public. The respondent is entitled to apply for reinstatement at any time and has an appeal to the courts from an adverse decision, so that the expulsion is not permanent if she can show fitness to practice her profession. On application of the test in Wigglesworth, the result must be the same as in the related police discipline cases: a finding that there were no penal consequences, and thus s. 13 did not apply. The impugned evidence was therefore admissible.

The appeal must therefore be allowed, and the judgement below set aside. …

See also Woodland Windows v. Industrial wood and Allied Workers Union of Canada, Local 1-424 (Funnell grievance) [1995] B.C.C.A.A.A. No. 31, an award of Arbitrator K. Albertini.

Boards of arbitration have also found that it is within their jurisdiction to admit into evidence material gained through the process of an examination for discovery. That is perhaps best reflected in the decision of Arbitrator C. Taylor in British Columbia Transit and Independent Canadian Transit Union, Local 11 (1998) B.C.C.A.A.A. No. 172. In that case the grievor sought permission to use documents and information obtained in the process of an examination for discovery in a civil action, while the employer resisted the admission of the material and took the position that the board of arbitration was without jurisdiction to grant leave for its admission. The Arbitrator found that he did have the jurisdiction to grant leave to use the materials gained from the discovery process. He reasoned, in part, as follows:

27 I turn now to the question of whether I have the jurisdiction to grant leave to use, in these proceedings, the document and oral discovery obtained by Sansalone in the Supreme Court of British Columbia civil proceedings.

28 Counsel for the Employer argued that since the discovery evidence was obtained in a Supreme Court action, Sansalone must apply to that Court for permission to use the discovery evidence in the arbitration proceedings.

29 Section 92(1) of the Labour Relations Code provides that an arbitration board may determine its own procedure and receive and accept evidence “… as in its discretion it considers proper, whether or not the evidence is admissible in a court of law.”

30 The ambit of that general jurisdiction to control its own procedure, together with the statutory obligation on an arbitration board to ensure a fair hearing (s.99) is probably determinative of the jurisdictional issue raised in this case.

31 Guidance may also be found in the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, 30 Admin. L.R. (2d) 1 [1995] in which the Court considered when employees and employers are precluded from suing each other in the courts by labour legislation providing for binding arbitration.

32 Speaking for the majority, McLachlin, J. discussed the three different views on the effect of final and binding arbitration clauses in labour legislation: concurrent jurisdiction, overlapping jurisdiction and exclusive jurisdiction:

“Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal, and the courts cannot try it.”

33 Referring to s.45(1) of the Ontario Labour Relations Act which provides that “all differences” between parties arising form the interpretation, application, administration or alleged violation of a collective agreement shall be settled by arbitration, the Courts said:

“The word ‘differences’ denotes the dispute between the parties, not the legal actions which one may be entitled to bring against the other. The object of the provision – is all proceedings arising form the difference between the parties, however those proceedings may be framed. Where the dispute falls within the terms of the Act, there is no room for concurrent proceedings.”

…

39 If arbitration boards have the jurisdiction to deal with Charter claims and grant the appropriate remedies thereunder, surely, one might argue, they have the authority to consider a procedural application for relief against the rule respecting the confidentiality of discovery evidence.

40 In my view, the jurisdiction to consider the application to use the discovery evidence is found within the general jurisprudence in an arbitration board to control its own procedure and from the statutory obligation on an arbitration board to ensure a fair hearing.

41 The jurisdiction may also be found under the authority of Weber.

42 The essential character of this dispute, whether the termination of Sansalone was for just cause, places it firmly within the scope of the collective agreement.

43 Section 82 of the Labour Relations Code requires an arbitration board to have regard “for the real substance of the matters in dispute and the respective merits of the positions of the parties …”

44 The issue in the case before me is essentially one of credibility. Did Sansalone engage in the alleged wrongful conduct with Chow?

45 The discovery evidence which Sansalone received in the civil action and wishes to use in these proceedings may have a bearing on that question. Thus the procedural question is within the scope of the collective agreement and within my jurisdiction.

What is the overall thrust of the foregoing authorities? Firstly, it is clear that the provisions of section 13 of the Canadian Charter of Rights and Freedoms can have no application in the instant case. This arbitration is a civil proceeding which concerns the issue of whether the Company had just cause to terminate the services of Mr. Solmundson. There are no criminal or quasi-criminal consequences to these proceedings. Labour arbitration is well within the scope of civil proceedings found by the courts, as reflected in Knutson, not to be proceedings in which incrimination is a critical element, for the purposes of section 13 of the Charter. On that basis the section can have no application and the position of the Union based upon it must be rejected.

Nor am I satisfied that this board should decline to admit the evidence flowing from the examination for discovery on the basis that to do so would violate the expectation of privacy which generally attaches to discovery proceedings. The granting of such a privilege must, in any case, be balanced against the general interests of justice. In the instant dispute it is clear that the entire case of the employer rests upon the information gained through its receipt of the transcript of the grievor’s evidence taken during the discovery stage of his divorce litigation. The exclusion of that evidence, and the Company’s subsequent investigation based upon it, would leave the employer with virtually no case. Given the serious nature of the allegations with respect to the grievor’s conduct, and the employer’s obvious legitimate business interests in that regard, I am satisfied that the interests of justice and sound labour relations must be found to favour the admission of the evidence in question, even if it should involve some encroachment on the grievor’s expectation of privacy.

For all of the foregoing reasons the Arbitrator is satisfied that the preliminary objection of the Union with respect to the admissibility of the evidence gained by the Company from the grievor’s examination for discovery cannot be sustained. The evidence will be admitted, and the parties are advised to contact the Arbitrator with respect to the further scheduling of this matter for a hearing upon its merits.

Dated at Toronto, May 15, 2000

_________________________________________

MICHEL G. PICHER

ARBITRATOR