FPSLREB Decisions

Application before the Board

1 This decision concerns a grievor's request to give her testimony by means of a teleconference rather than in person at a hearing.

Context

2 The grievor, Joy Grunerud, is a legal assistant at the Edmonton Regional Office of the Department of Justice ("the employer").

3 On January 17, 2003, Ms. Grunerud filed a grievance challenging the retroactive date of her reclassification to the CR-05 group and level and requesting acting pay at that group and level from February 25, 2000 to October 2002.

4 The employer denied the grievance at all levels of the grievance procedure. The employer's response at the final level was delivered on July 31, 2003. Ms. Grunerud's grievance was referred to adjudication on July 7, 2004. In the covering letter referring the grievance to adjudication, the bargaining agent anticipated the employer's objection relating to the timeliness of the reference and requested that the Public Service Staff Relations Board ("the former Board") exercise its discretion under section 63 of the P.S.S.R.B. Regulations and Rules of Procedure, 1993 ("the former Regulations").

5 On March 31, 2005, the employer objected to the jurisdiction of the former Boardto hear the matter on the basis that the grievance had not been referred to adjudication within the time limits prescribed in subsection 76(1) of the former Regulations as they applied at the time of the reference to adjudication. Subsection 76(1) provided that the grievor had 30 days after the day on which she received a reply at the final level of the grievance process to refer her grievance to adjudication under section 92 of the Public Service Staff Relations Act, R.S., 1985, c.P-35 ("the old Act").

6 Both the grievance dealing with the retroactive date of reclassification and the timeliness objection were scheduled for a hearing on July 3 and 4, 2007. A first request for the postponement of the hearing was denied, but the issue of timeliness was set down to be dealt with through a teleconference hearing. The teleconference was postponed on two occasions, and eventually there was insufficient time to schedule another.

7 On June 13, 2007, the Public Service Alliance of Canada, the bargaining agent, with the consent of the employer, requested that the July hearing dates be used to deal only with the timeliness issue and not with the substance of the grievance. The parties had agreed to hold this hearing in Ottawa, rather than in Edmonton, and to have the grievor offer her testimony by telephone because she was ill and housebound. The Chairperson agreed that the hearing be held in Ottawa under those conditions. As Vice-Chairperson, I was assigned to conduct the hearing on the timeliness issue.

8 On June 28, 2007, at 15:34, the Board received another request for a postponement from the bargaining agent on behalf of the grievor because of a death in her family. The postponement was granted, but a pre-hearing conference with the representatives for both sides was set for July 3, 2007, to discuss related procedural issues related to holding a hearing on the timeliness of the grievance and the grievor's request to give her testimony by telephone.

9 According to the grievor's representative, her testimony is key to explaining why the grievance could not be referred to adjudication within the prescribed time limits. He argues that it would be most difficult to replace the grievor's testimony with an agreed statement of facts or another form of evidence. The grievor's evidence will be that workplace issues and her medical condition prevented the grievance from being referred to adjudication in a timely fashion.

10 The grievor is presently incapacitated because of a medical condition. Because of the discomfort and inconvenience caused by this disorder, she would prefer not to attend a hearing in person but to testify by telephone. Her representative admits that whether the grievor is at home or at the hearing venue, she will need to take frequent breaks.

11 Counsel for the employer argues that having the grievor testify by telephone raises some procedural issues that are difficult to overcome, namely, the introduction of documents and references to documents already filed in evidence that can be used during cross-examination.

12 After hearing the parties, I issued an oral ruling that the grievor should be required to attend the hearing in person. The grievor's representative requested that this decision be issued in the form of a written interim decision. The present decision is therefore a response to this request.

Reasons

13 On April 1, 2005, the Public Service Labour Relations Act ("the new Act"), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 39 of the transitional provisions of the Public Service Modernization Act, the Board continues to be seized with this application, which must be disposed of in accordance with the new Act.

14 Paragraph 40(1)(c) of the Act provides that hearings may be conducted by any means of telecommunication, as follows:

…

40.(1) The Board has, in relation to any matter before it, the power to

…

(c) order that a hearing or a pre-hearing conference be conducted using any means of telecommunication that permits all persons participating in the conference to communicate adequately with each other.

…

15 There is not a great body of jurisprudence to provide guidance in a case such as this. The one reported case, Canadian Broadcasting Corporation v. A.C.T.R.A. (1993), 33 L.A.C. (4d) 250 (Palmer), refers to the following unreported cases: Bell Canada v. Syndicat des Travailleurs en Communication du Canada (P. Kropveld), unreported, January 19, 1979 (Lippé); L'Association du Personnel Navigant des Lignes Aériennes Canadiennes v. Nordair, unreported, May 2, 1980 (Hartt), and Bell Canada v. D.G.Farrell, unreported, June 7, 1985 (O'Shea).

16 In Canadian Broadcasting Corporation, the parties agreed that it was within the power of the arbitrator to grant a request that a witness be heard by means of a telephone conference. At issue was the union's concern that without the protection of an oath, the witness' testimony could unfairly jeopardize the grievor and that the inability to physically view her would undermine the credibility of her evidence. Arbitrator Palmer took the view that while the witness could not take an oath, she could affirm her testimony. With respect to the issue of credibility, arbitrator Palmer adopted the view of arbitrator Hartt that the loss of visibility was acceptable compared to the alternative of depriving the employer the opportunity to put forward an important aspect of its case. In Canadian Broadcasting Corporation, the witness resided in Paris, France, and could not be subject to a subpoena to attend a hearing in Toronto, Ontario. This apparently persuaded the arbitrator that the evidence could not be reasonably compelled in any other manner. Arbitrator Palmer also adopted the reasoning of arbitrator O'Shea in the Bell Canada case, that the difficulty, expense and delay that were inherent in bringing a witness (in that case from Saudi Arabia to Toronto) substantially outweighed the union's objections to hearing the evidence by telephone. Accordingly, the arbitrator admitted the evidence subject to a number of procedural guidelines.

17 I agree that in the cases cited above, the reasons for allowing a witness to be heard by means of a telephone conference were persuasive. However, I am of the view that the circumstances of the present matter invite a different ruling.

18 Ms. Grunerud resides in Edmonton, and the grievance is scheduled to be heard in Edmonton, as the practice of the Board is to hold hearings in the city closest to the grievor's work location. The grievor's representative acknowledges that attendance at a hearing is not impossible but rather an inconvenience that may cause the grievor discomfort and distress. Moreover, there is no medical evidence before me that the disorder is disabling or that the grievor cannot leave home. In fact, the most recent postponement of the hearing was for the purpose of allowing the grievor to attend a funeral.

19 The requirement for frequent breaks during the hearing is not an insurmountable obstacle. It is the same obstacle that would occur whether the grievor attends the hearing or testifies from her residence, and it can be adequately managed by appropriate hearing planning. Otherwise, there are no compelling reasons associated with travel, venue, expense or delay as in the cited cases that prevent the grievor from attending the hearing.

20 As well, I must take into consideration the fact that the grievor's evidence is key to her application to extend the time limits for referring her grievance to adjudication. Against this must be balanced against the employer's right to challenge that evidence through cross-examination.

21  In this regard I must be cognizant of the rule of audi alteram partem, that is, the right to be heard. The fairness and credibility of the adjudication process requires that parties have a complete opportunity to be heard. This includes the obligation for the adjudicator to receive all the relevant evidence that a party wishes to bring forward and to decide a case based on that evidence. An adjudicator will have breached the rules of natural justice if he or she denies a party a complete opportunity to be heard.

22 While the context of labour adjudication is to provide a forum to have matters resolved promptly and informally, this must be balanced with the need to respect the rules of natural justice. In Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471, Justice Lamer made the following statement in this regard (at pages 488 and 489):

The difficulty of this question arises from the tension existing between the quest for effectiveness and speed in settling grievances on the one hand, and on the other preserving the credibility of the arbitration process, which depends on the parties' believing that they have had a complete opportunity to be heard. Professor Ouellette speaks in this regard of the [TRANSLATION] "…perpetual contradiction between freedom of operation and its necessary procedural aspects" (Y. Ouellette, "Aspects de la procédure et de la preuve devant les tribunaux administratifs" (1986), 16 R.D.U.S. 819, at p.850 …

23 Justice Lamer also cites with approval the following extract from Prof. Ouellete's article (at page 489):

[Translation]… the major decisions which formulated the principle of the independence of administrative evidence from technical rules have in the same breath made it clear that this independence must be exercised in accordance with the rules of fundamental justice. It is not sufficient for administrative tribunals to operate simply and effectively; they must attain this high ideal without sacrificing the fundamental rights of the parties.

24 In Université du Québec à Trois-Rivières, the employer sought to introduce evidence about an absence of funding that had led to the termination of two research assistants. The union objected on the grounds that the employer was trying to modify the grounds relied on in the notices of termination. The arbitrator sustained the objection and subsequently allowed the grievances. The Superior Court of Québec allowed the motion in evocation by the employer on the ground that the arbitrator had exceeded his jurisdiction by refusing to hear relevant and admissible evidence. The court ordered a new arbitration before another arbitrator. The Court of Appeal affirmed this judgment. The appeal to the Supreme Court of Canada was primarily to determine whether the arbitrator's refusal to allow the employer to introduce evidence was a decision subject to judicial review. The Supreme Court held that the arbitrator had indeed failed to comply with a rule of natural justice by failing to consider relevant evidence.

25 While the facts of this case are not identical to those in Université du Québec à Trois-Rivières, the general principles set out by the court certainly are. Justice Lamer, speaking for Justices La Forest, Gonthier and Iacobucci, recognizes the wide latitude given to an arbitrator in determining the scope of an issue presented to him or her and that only a patently unreasonable error or a breach of natural justice can constitute an excess of jurisdiction and give rise to judicial review. The majority of the court, at page 471, states that "a grievance arbitrator is in a privileged position to assess the relevance of the evidence" that is tendered by the parties. Nonetheless, an arbitrator will be found to have exceeded his or her jurisdiction where evidence is excluded "that has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice"(emphasis added, at page 491).

26 Justice L'Heureux-Dubé, in concurrent reasons, states this view (at page 495):

Refusing to hear relevant and admissible evidence is a breach of the rules of natural justice. It is one thing to adopt special rules of procedure for a hearing, and another not to comply with a fundamental rule, that of doing justice to the parties by hearing relevant and therefore admissible evidence … 

27 In this grievance, the employer has raised the fact that cross-examination will be difficult, if not ineffective, if there is no possibility to deal with exhibits. In this regard, the purpose of cross-examination is relevant. Cross-examination of a witness centres not only on the facts elicited during examination-in-chief, but on all the facts in dispute, whether or not raised by examination-in-chief. Consequently, cross-examination is also a means of obtaining additional information or of testing a witness' credibility. In this case, given the importance of the grievor's testimony, her absence from the proceedings significantly limits the employer's ability to cross-examine her and, consequently, has an impact on the fairness of the proceedings just as in Université du Québec à Trois-Rivières. Therefore, I must allow the employer's objection that the grievor's testimony given by means of a teleconference does not effectively fulfill the requirement of providing the employer with the complete opportunity to be heard. Accordingly, this consideration prevails over any inconvenience for the grievor in attending the hearing.

28 For all of the above reasons, I make the following order:

Order

29 Ms. Grunerud is to attend the hearing on the preliminary issue of the timeliness of her grievance if she intends to testify with regard to this issue.

July 27, 2007

Michele A. Pineau,
Vice-Chairperson