IN THE MATTER OF AN ARBITRATION UNDER THE CANADA LABOUR CODE, R.S.C. 1985 c. L-2
BETWEEN: JENNIFER THACKER, ADA LI, KATERINA SLIACKY AND ANTONY SCOTT (the “Grievors”)
AND: IAMAW, DISTRICT LODGE 140 (the “Union”) AND:
UNITED AIRLINES, INC. (the “Employer”) (Re: No Evidence Motion/Document Motion)
ARBITRATOR: Stan Lanyon, Q.C. COUNSEL: Shane Todd and Eric Mennel for the Employer Ib Petersen for the Grievors Tania Canniff for the Union DATE OF HEARING: October 7 & 8, November 24 & 25, 2014 May 27 & 28, June 9, 10 & 11, September 1 & 2, 2015 Vancouver, B.C. WRITTEN SUBMISSIONS: January 8 & April 1, 2016 ORAL ARGUMENT: April 7, 2016 DATE OF AWARD: September 12, 2016 2 A W A R D I.
Introduction
[1] The Grievors have filed a no evidence motion. They argue that the Employer has “…failed to adduce evidence on one or more material points …” (para. 4). They state that the evidence in this hearing consisted of a series of alleged ticket transactions and the viva voce testimony of one witness, Ms. Pinto, a lay witness, who is employed in the Employer’s Fraud Department. The Grievors claim that both this documentary evidence, and the viva voce testimony, “consisted largely, if not entirely, of hearsay evidence, including improperly admitted (and baseless) opinion evidence, speculation and conjecture” (para. 4).
[2] The Grievors further contend, that although the Employer claims that their terminations were based on violations of the Employer’s rules of conduct, it has, in fact, chosen to portray the conduct of the Grievors as fraud. Therefore, in light of the allegation of fraud, the Employer should be held to a higher evidentiary standard; and as a result, it must prove that each of the sixty-three (63) alleged violations constituted fraud. This requires the proof of the elements of both mens rea and actus reus with respect to each of the 63 transactions. The Grievors say that none of the evidence adduced to date meets this standard. In fact, the Grievors claim that all the evidence is simply uncorroborated hearsay.
[3] In the alternative, the Grievors claim that the Employer’s conduct with respect to its document production and disclosure has been “highly prejudicial” (para. 9). This conduct includes the Employer’s failure to comply with production orders made by this Arbitrator, its failure to preserve all relevant documents, its failure to produce documents that were no longer in its possession or control, its failure to produce documents in a timely fashion, and its failure to properly authenticate all documents in evidence. Further, the Employer has failed to provide an adequate explanation with respect to its conduct in failing to produce all relevant documents. 3
[4] In the further alternative, the Grievors argue that should both their no evidence motion and its document motion fail, they then seek access to the Employer’s “entire litigation file” (para. 284), and demand that there be an “independent forensic certification” of all documents (para. 11).
[5] Finally, the Grievors reserve the right to amend their claim to include “punitive, aggravated and other damages” (para. 11). They also seek legal costs for this application and all legal costs incurred to this point.
[6] A similar motion for remedies for the alleged breaches of production orders, dated June 15, 2015, was filed by the Grievors on August 19, 2015. At the conclusion of the Employer’s case on September 2, 2015, Counsel for the Grievors indicated that he was going to expand his original application. This amended application was filed on January 5, 2016, and is 90 pages in length. The claims it makes are quite expansive.
[7] The Employer replies that the no evidence motion must fail because the evidence adduced establishes a prima facie case for discipline for the Grievors’ violations of its Rules of Conduct, No. 2. It says that each of the four Grievors made impermissible changes to the dates of travel, to changes in destinations, to changes in the routing of their flights, to the violations of fare codes, all of which were ticket transactions that were made without collecting the appropriate fares or service fees. It says that the evidence demonstrates that the Grievors, as well as their family members or friends, benefitted from these changes.
[8] Further, the Employer argues that the Grievors’ no evidence motion is in fact an insufficient evidence motion. It says that the Grievors should be required to make an election as to whether or not they will call evidence; or alternatively, the Employer argues that the Grievors have already made an election by filing what is in fact an insufficient evidence motion. [9] Moreover, the Employer rejects the Grievors’ argument that it must meet the evidentiary standard of having to demonstrate a prima facie case for theft or fraud. It states that this is a unilateral expansion or alteration of the grounds of discipline by the Grievors in an attempt to hold United to a more onerous and different standard of proof. 4
[10] With respect to the Grievors’ motion claiming that it failed to disclose documents, the Employer replies that it has complied with all production orders made by this Arbitrator. Further, it says that it has attempted in good faith to produce all documents relevant to the Grievors’ claims. It maintains that it has not deliberately destroyed documents in order to suppress evidence. Moreover, the Employer asserts that there is no factual basis to conclude that any documents have been altered, or are otherwise, not authentic. It denies that is has waived any privilege over its litigation file. Finally, it states that throughout the entire course of this arbitration, both the Employer and its Counsel, have acted in good faith, and in an ethical and a professional manner. It requests that all Grievors’ motions with respect to the production and disclosure of documents be dismissed.
[11] Both parties understand that this is primarily a “documents case”. This will become evident as these reasons unfold. These documents have some complexity to them. Most of the Grievors’ motion rely on allegations with respect to these documents. Counsel for the Grievors identified a good number of these documents in evidence by their Exhibit (“Ex”) numbers. I have, therefore, adopted the same practice.
II. Facts General Background
[12] The Employer’s sole witness was Ms. Toni Salvato-Pinto. She was on the witness stand for eleven days. Cross examination took place over a period of four days, two days of which were in June 2015, and the remaining two days were in September 2015.
[13] Ms. Pinto has been employed with United Airlines Inc. (Employer/United) for approximately 20 years (April 1995). She began her employment with United in the Reservations Department and at the airport ticket office in Chicago. She later taught ticket reservation classes. In 2003, she joined Corporate Security. She is now a Senior Investigator with Corporate Security; specifically, she deals with the investigation of ticket violations.
[14] United’s corporate ticket policy is set out in two rules or policies it has established. The first policy is entitled Rules of Conduct of IAMAW Represented Employees (“Rules of Conduct”) (Ex 2): 5 Rules of Conduct for IAMAW Represented Employees Violations of one or more of the following Rules will result in discharge unless mitigating factors are considered applicable: … 2. Unauthorized deviation from established rules and procedures when providing travel services for one’s self, one’s friends, relatives, or co-workers including, but not limited to: a) creating a fictitious record or price b) holding a seat(s) out of inventory c) refunding of a ticket d) inappropriate waiving of a fare rule or restriction e) inappropriate upgrading of a class of service.
[15] The second policy is entitled “Our Code of Business Conduct” (“Code of Conduct”) and applies to all management and bargaining unit employees (Ex. 3). The purpose of the Code of Business Conduct is set out in its introduction: “A guide to the ethical and legal responsibilities we share and applies to all employees …” One component of this policy deals with unauthorized deviations from fare rules: When the Customer is a Friend, Relative or Fellow Employee Employees must be cautious when making decisions regarding travel for friends, relatives and fellow employees. These travelers may not be afforded preferential accommodation as a result of their relationship to a United employee. When providing travel services for yourself or your friends and family, any unauthorized deviation from established rules for pricing, issuance, exchange or refunding of tickets; any waiving of travel restrictions or other terms affecting the applicability of discount fares; and inappropriate upgrades of call-of-service; or any use of our computerized reservation system to improperly remove seats from inventory or block space on United or any other carrier is prohibited. Any such deviation requires the advance approval of your supervisor or manager. (page 4)
[16] Ms. Pinto referred to the violation of ticket policies by employees as the “waivers and favours rule”. 6
[17] Ms. Pinto testified that all employees are informed of this policy. For example, in October and November 2009 (Ex 4), all employees were sent an email “Reminder Regarding United’s Code of Business Conduct”. In addition, she testified that each of the four Grievors received training in this Code of Conduct (Ex 88 – 92). This training will be reviewed more extensively later in this Award. Investigation
[18] Ms. Pinto testified that United’s head office is in Chicago, Illinois. Located at this Head Office, there is an Ethics and Compliance group that is housed in the Legal Department. On December 16, 2010, this Department received an anonymous complaint (Ex 152) alleging that Jennifer Thacker was conducting fraudulent ticket activities at the Vancouver International Airport. Ms. Pinto and her colleague, Ms. Susan McKeever, a fellow Investigator, were assigned to investigate the ticket activity of Ms. Thatcher and a fellow employee, Mr. Antony Scott. There was also a hotline phone message file (opened December 17, 2010), which complained of a ticket transaction by Jennifer Thacker and Tony Scott (Ex 5).
[19] The investigation of suspected ticket violations by employees follows a standard procedure which involves a review of all of the ticketing activity of an employee over a period of two years. In this case it was 2008 to 2010. What is tracked is the reservation history of each ticket. This involves examining every line of every entry made by an employee under their own unique employee file number. The purpose of this investigation is to identify any “irregular operations”. All ticket reservation histories that involve any irregular operations are then printed. A series of interview questions is then prepared to be used in interviewing the employees involved.
[20] In this case the investigation initially involved a group of seven employees (three were ultimately reinstated, leaving the current four Grievors, whose terminations remained in force). Interviews were then set up at the Vancouver station. These interviews involved the four Grievors, Ms. Pinto and Ms. McKeever, Nigel Newsome and Brian Bird, Management employees at Vancouver Station, and a Union representative (Laura Sharp) (Ex 81 – 84). More will be said about these interviews later in this Award. 7 Examples of the Grievor’s Alleged Ticket Transactions [21] In evidence, there are ticket transactions with respect to Ms. Thacker (Ex 7 – 27); ticket transactions with respect to Mr. Scott (Ex 29 – 40); ticket transactions with respect to Ms. Sliacky (Ex 45 – 53); and ticket transactions with respect to Ms. Li (Ex 57 – 80). The number of ticket transactions may vary because one transaction may involve more than one Grievor. With respect to the other three employees who were initially discharged along with the four Grievors, but were ultimately reinstated, the alleged ticket transactions are as follows: T.B., (Ex 94 – 100); M.R., (Ex 104 – 112) and V.B., (Ex 117 – 124). [22] For the purpose of this no evidence motion, I have chosen to review one ticket transaction for each of the Grievors, to demonstrate, as Counsel for the Grievors states, “the nature and character of the evidence” (para. 65). Each ticket transaction represents an alleged violation of the Employer’s Rules of Conduct and Business Code of Conduct. The Employer argues that all the alleged ticket transactions, involving these four Grievors, fall within Rule 2 of the Rules of Conduct: an “Unauthorized deviation from established rules and procedures when providing travel services for one’s self, one’s friends, relatives or co-workers ….”
[23] The first ticket transaction introduced into the hearing was Ex 7(a) – (f). It involves Ms. Thacker. All the ticket transactions in evidence contain the same three basic elements as Ex 7. Each of the ticket transactions is composed of three documents. The first document, Ex 7a, is the Online Ticket Information System (“OTIS”). Ms. Pinto stated, that this is the accounting record. It sets out financial information, for example, credit card information. Second, are Exs 7b and 7c, the Electronic Ticket Information System (“ETIS”). This is an Auditor’s Coupon, and sets out the issuing date of the ticket, the issuing agent, the place of issue, the name of the passenger, etc. The third document, Exs 7d-f, is the Passenger Name Record (PNR). This is the history of the reservation. It is a record of every keystroke made by ticketing agent under their employee file number with respect to a specific reservation. This reservation system was known as the Apollo reservation system (“Apollo”). 8
[24] As stated, the reservation history (PNR) contains the employee’s file no. The Grievors’ files numbers are as follows: Mr. Scott, 189552, Ms. Thacker, 146132, Ms. Sliacky, 183530 and Ms. Li, 133703. [25] Ms. Pinto testified that all three ticket transaction documents are made in the usual and ordinary course of United Airline’s business. The Union objected to the admissibility of these documents. These documents were admitted as Business Records under section 30 of the Canada Evidence Act, R.S.C. 1985, c.C-5 (“CEA”). This issue will be addressed later in this Award. [26] With respect to each and every ticket Ms. Pinto read through and interpreted the entire code set out in the PNR, some of which were quite extensive, as well as reading and interpreting both the ETIS and OTIS documents.
[27] At the beginning of each exhibit there is the handwriting of the investigators on the face of the OTIS document. These notes include, in some cases, the cost of the difference in ticket fares. Neither this handwritten information, nor similar information in the summaries, was admitted into evidence. Thus, although Ms. Pinto could not testify as to the exact amount of money lost with respect to each transaction, for example, the actual fares in existence at the time of flight, she could, from the documents and the fare codes, determine whether such fees, for example, service fees, were collected. [28] Ex 7(a) – (f) is attached to this Award as Appendix ‘A’. It is an example of a ticket transaction that is made up of precisely the same three documents (OTIS, ETIS, PNR) as are all the other ticket transactions in evidence with respect to all four Grievors and the three employees who were reinstated. Ex 7(a) – (f) has the handwriting of the investigator on the OTIS document (Ex 7(a)), but all handwriting other than this is my own. Ms. Thacker – Exhibit 7(a) – (f) [29] In this ticket transaction, Ms. Thacker (Employee #146132) was the passenger. Ms. Ada Li was the issuing ticket agent (Employee #133703). The ticket, as set out in Ex 7b, 9 was issued on December 31, 2008. The flight was to leave Vancouver on January 14, 2009, and fly to San Francisco. The connecting flight, on the same day, was from San Francisco to Las Vegas. The fare code classification was “W”. However, on January 2, 2009, the date of departure from Vancouver was changed from January 14, 2009 to January 13, 2009. This meant that the customer no longer qualified for the 14 day advance purchase fee. A further change was made on January 12, 2009, with respect to the routing (the day before departure). This January 13, 2009 flight was changed to fly from Vancouver to Chicago (rather than Vancouver to San Francisco), and then Chicago to Las Vegas. Thus, the ticket was changed twice within a two week period, and no service fees were collected for any of these changes. Mr. Scott – Exhibit 32 (a) – (q)
[30] Mr. Scott (Employee #189552) booked a flight for his parents, Peter and Joan Hackett, on June 25, 2010. The flight was booked for November 15, 2010. It went from Seattle to Chicago and then Chicago to Richmond, Virginia. The return flight was from Richmond to Chicago, Chicago to Seattle, on November 23, 2010. The inventory booked was “L” Class. This fare was eligible for a 20% employee discount. Three days later, on June 28, 2010, changes were made to the dates of the flight and the booking class. The flight now left on August 5, 2010: Seattle to Chicago, Chicago to Richmond (change from “L” to “E” inventory); returning on August 9, 2010, Richmond to Chicago, Chicago to Seattle. The return booking class or inventory was now “Y” class. “Y” class is the highest coach class inventory. This ticket was revalidated and there were no fare differences or service fees collected. [31] On July 10, 2010, Ms. Thacker rebooked the flight with a new routing. The flight was to leave on August 5, 2010: Vancouver (no longer Seattle) to Chicago, Chicago to Richmond. This ticket was endorsed “invol”, meaning “involuntary”. A ticket is endorsed “involuntary” when a flight has been cancelled by United itself; for example, a flight cancelled due to weather. An involuntary designation, Ms. Pinto said, is never issued a month ahead of a scheduled flight. The effect of claiming that a ticket is involuntary is that 10 it overrides or bypasses all the fare codes. As well, Ms. Thacker changed the booking class from “L” to “E”.
[32] Ms. Pinto testified that these different inventories or booking classes represent different fares. The airline allows so many fares at each class in order to make a flight profitable. When a “fare bucket” is sold out at one inventory, or class, a customer must purchase the next higher fare bucket or inventory. The ticket changes with respect to the flights taken by Mr. Scott’s parents did not involve the collection of any fare differentials, booking class, routing changes (taxes) or service fees. Ms. Sliacky – Exhibit 49 (a) – (p) [33] The two passengers in this case were Hana Sandrik and Cornelia Popa. The original tickets were booked on Expedia.com on June 29, 2010. The original itinerary was Seattle to Chicago, Chicago to Amsterdam, on August 20, 2010. The following day, August 21, 2010, the flight continued from Amsterdam to Nairobi. Their return flight was on October 8, 2010: Nairobi to Brussels, and on the following day, October 9, 2010, from Brussels to Toronto, Toronto to Seattle. This flight, therefore, originated in Seattle and terminated in Seattle.
[34] Several weeks later, on July 8, 2010, Ms. Sliacky (Employee #183530) changed the flights to originate and terminate out of Vancouver. She booked Vancouver to Chicago, leaving August 20, 2010, and a return flight, on October 9, 2010, Brussels to Chicago, Chicago to Vancouver. No service fees, no fare differences and no taxes were collected. Ms. Sandrik and Ms. Popa were family friends. Ms. Sandrik had previously traveled on Ms. Sliacky’s companion buddy passes. Ms. Li – Exhibit 66 (a) – (f)
[35] On December 30, 2008, Jennifer Thacker booked travel for herself, on January 22, 2009, from Las Vegas to San Francisco, San Francisco to Vancouver, in “W” class, a 14 day advance purchase. On December 31, 2008, Ada Li issued a ticket for herself: Las Vegas to 11 San Francisco, San Francisco to Vancouver for January 22, 2009; a 14 day advance purchase. On January 2, 2009, Ms. Li changed the date of her booking. Her new flights now departed on January 15, 2009, (as opposed to January 22, 2009), and revalidated this ticket without collecting any fare differences or service fees, and bypassing the 14 day advanced fare rule. On January 10, 2009, Ms. Li changed her flights to a later time for travel on the same day, January 15, 2009. Once again, she revalidated her ticket without collecting any fare differences or service fees, and bypassing the 14 day advanced purchase rule. She traveled with Jennifer Thacker to Las Vegas on that date. [36] All 63 ticket transactions are essentially the same as these four transactions. They all involve ‘waivers and favours’ of United fare rules by the Grievors that breach Rule 2 of the Rules of Conduct. Interviews
[37] The Employer has adopted a standard form question and answer format for all its investigations/interviews. These specific questions are prepared ahead of the individual interviews with respect to each employee. A short summary of each ticket violation was prepared and copies of these alleged ticket transactions were provided to each of the Grievors during their respective interview. Ms. McKeever asked the questions and Ms. Pinto recorded the answers. The Grievors had a Union representative present. At the beginning of each interview Ms. McKeever read out a standard introductory paragraph that stated, in part, “We recently found some concerning activity under your file number which is why we are holding this fact finding investigation with you”. The employee was asked to be “open and honest”, and warned that the questions they were to be asked were ones that the investigators “may already know the answers to”. The recorded questions and answers are conversational in nature. Ms. Li: Interview February 23, 2011 (Exhibit 81)
[38] Ms. Li’s interview began with questions about her length of service (18 years), the positions which she has held (customer service, baggage, gate, ticketing), and her awareness of the Code of Business Conduct. Ms. Li indicated that she was aware of the Code of 12 Business Conduct. When asked about her understanding with respect to waiving fares for friends and family, she replied “If co-worker comes to me with date change I don’t charge”. When asked again, “What is your understanding”, she replied, “I can lose my job”.
[39] Ms. Li testified that she was not “officially tkt [ticket] trained” and that she worked at the counter “one day”. She received assistance with regard to ticket changes from either the Help Desk for International flights, or from ticket agents around her with respect to Domestic flights.
[40] Ms. McKeever asked a number of questions about the “lowest or cheapest booking class in the coach cabin”, what booking classes had “the most restrictions” (T, S, Q and V); what were the higher booking classes (H, U, E, M, B, Y), and what was the most expensive booking class, (Y). She replied, that with respect to a ticket change, that was required for the same day, she would book another code, and then book “whatever is available”; however, if it was not the same day, then she would book the same class of service. She did not charge a fee, or the difference in fare, but she would charge a service fee.
[41] Ms. Li stated that she understands that the “correct reason for exchanging a ticket as “invol” [involuntary] is when a flight “is disrupted” and/or “cancelled”. She recognized that tickets are not “invol” weeks in advance. She agreed that a ticket is revalidated if it is “same class of svc [service] and charge svc [service] fee on SST”.
[42] When questioned if she had been asked to provide fare waivers for co-workers or friends, she replied, “Not often”. When asked if she “say[s] no” to these inquiries, she replied, “Sometimes”; she repeated her answer when she was asked the same question again, “I change it sometimes”. When asked “Why”, she replied, “I don’t know. I work with the person”.
[43] Ms. Li was then asked if she had approached her co-workers to make changes to revenue tickets and to bypass the fare rules. She replied, “Not much”. When asked if she goes to co-workers to make changes to her tickets she replied, “Yes, I don’t ask them to waive the change fee. If they come to me I would never ask them to pay. I don’t ask and probably there is but I don’t ask. I didn’t think about it but yes”. 13 [44] Ms. Li is then asked about 31 different ticket transactions. In response to Ex 66, the ticket reviewed above with respect to Ms. Li, she replied, “I usually don’t issue my own tkt [ticket] but I don’t remember this one”. With respect to Ex 73 (a) – (g), when asked if she recalled her cousin phoning her and asking her to change a flight without charging any additional fees for a friend, she replied, “Yes”. And with respect to Ex 74 (a) – (g), when asked if the same cousin asked her to waive fees with respect to changes on this specific ticket, she again replied, “Yes”. When questioned if she asked a co-worker to do this she replied, “I don’t know, probably I did but I don’t remember”. There are also a number of ticket transactions about which she had no specific recollection. Mr. Scott: Interview: February 24, 2011 (Ex 82)
[45] Mr. Scott’s interview began with questions about his length of service (12 years), the history of his jobs at United, which had included work on the ramp, baggage, gate, check in and ticket. He stated that he had heard of the Employer’s Code of Business Conduct but had not read it. With respect to fare waivers, when asked how he was to treat friends and family he replied, “Treat them as paxs [passengers] and would seek auth [authority] from Sup [supervisor] manage[r] to do that”. He was then asked the same series of questions about his knowledge of the lowest and cheapest booking classes to which he responded, “Yes, I know. Charge change fee on SST $150”.
[46] Mr. Scott stated that he has never been ticket trained. He said that he does his weekly TL 17 lessons. He does “not often” work at the ticket counter. When asked about his level of ticket expertise he replied, “Go by what I was shown. Some stuff I can do some I have to get help on, call res, some fellow employees”. When asked about the correct reason for changing a ticket as “invol”, he replied, “flight interruptions, weather”. When asked when it was proper to revalidate a ticket he replied, “If everything matches up. Date change, if we are totally smoking busy I would collect on SST. Auto Ech [exchange] can’t get to work on Canada tkts [tickets]. Revalidate makes person check in ready and cuts down on ticketing”.
[47] When Mr. Scott was questioned about how often he has been asked to provide fare waivers for co-workers, friends or family members, he replied “A couple of times I guess 14 can’t say off hand. I’m nervous. I don’t think anyone has ever come out and asked me.” When asked “Have you?”, he replied, “Probably”. He was asked if he requested other employees to bypass fare rules, and replied, “Not to provide a waiver”; and when asked if he paid the fees, he replied “Probably. I would give them my visa card. I don’t question that”.
[48] Mr. Scott was then questioned about 13 ticket transactions. With respect to Ex 32, reviewed above, he stated that, Peter and Joan Hackett were “My parents, my mom and step dad”. When questioned if he had asked Jennifer Thacker to do this transaction, he replied, “Yes, I never questioned it. Okay”. When asked who else did he ask, he stated, “I issued the orig [original] tkt [ticket], Dragan [Milosevic], U 163428, revalidate it”. And when questioned, did you ask him?, he replied,“Yes I guess so”. With respect to Ex 40, a ticket for Jennifer Thacker, he agreed that he had made changes to the ticket without charging her any fees, stating, “I think she asked me to change it and I took it upon myself to waive the fare difference and service fee. Yes.”
[49] With respect to ticket training, and training in general, Ms. Pinto testified that Mr. Scott was responsible for ensuring that the employees at the Vancouver Station took their training lessons. Katerina Sliacky Interview: February 24, 2011 – Ex 83
[50] Ms. Sliacky had been employed with United for 13 years. Her different job duties at United included ticketing, check in, and baggage. She had been ticket trained “two or three years ago” in Vancouver. She stated that she was not aware of the Code of Business Conduct. She said that she was familiar with the different booking classes, replying, “I can read the booking code difference, yes, I think I can get around”. She stated she understands the requirement to charge differences in fees and service fees when passengers are rebooking their flights. However, she did not “remember how to do it in the PNR”.
[51] Furthermore, she understood that exchanging a ticket as “invol” takes place when there is a cancelled flight. However, she was not sure about the practice of revalidating a ticket. She stated that she has never been asked to waive fares for co-workers, friends or 15 family members, nor has she ever requested that co-workers make changes to bypass fare rules for herself. She understands that the Employer’s rules prohibit such fare waivers.
[52] Ms. Sliacky was asked about 10 ticket transactions. With respect to Ex 49, reviewed above, she stated that she knows Hana Sandrick and Cornelia Popa, “Through my husband”. She stated that they were “going to work there [Nairobi], I would probably do it for other PAXs [passengers]. Well I did it. If they had a reason that I would believe I would do it. I do it for people I know and I would probably do it for people I don’t know”.
[53] There are some ticket transactions that she could not recall. Jennifer Thacker Inteview: February 23, 2011 – Ex 84
[54] Ms. Thacker stated that she has been employed with United for approximately 18 years. Her various job duties had included working at both the ramp and in baggage. She had not worked in ticketing. When asked about her awareness of the Code of Business Conduct she stated “I can’t quote it, no. I’m not going to guess. I would guess it is looked down upon but we do it for pax [passengers]”. She stated that she was not aware of the fare rules, “Can’t say I am”. When asked about different booking classes, she responded “Yes, know they vary between different airlines, but know B less restricted than T, yes”. She agreed that she had exchanged tickets as “invol”, replying “Yes I do it, or have done it”. She has designated tickets involuntary to another carrier when flights have not been timely.
[55] With respect to revalidating tickets, she does this when “Cities are the same, same starting point and destinations are the same. If flight is oversold would change person date and reval [revalidate]. If pax just want to change. Would have to hear situation. She asks “Can I do it with a change fee?” The interviewer responds “Yes”. [56] Ms. Thacker stated she has a “Pre-Exc” status and therefore she gets herself the “best deals”. She buys her tickets “from the counter”, and she usually makes her own reservations, and then asks to be “ticketed”. She stated that she knows how to look for the best deals, “Yes a button you push, best buy. I ask the computer to give me the best buy”. 16
[57] Ms. Thacker stated that she is current on her weekly lessons. She agreed that she has been asked to waive fees but doesn’t know “how many times”. She asks for assistance when it comes to ticketing. She knows that co-workers have waived fare rules for her, “I know they have been waived and nothing has been said. I believe one or two times they have been collected”.
[58] Ms. McKeever then reviewed some 29 different ticket transactions with Ms. Thacker. In response to Ex 7 (a) – (f), reviewed above, when she was questioned if she had asked co-workers to waive the fees with respect to this Exhibit, she replied, “If I remember that one, I usually never check myself in. No I don’t remember anyone asking for a change fee. When was this? When was the tkt [ticket] issued? I wouldn’t know for sure. I was thinking this one we screwed up and they priced out. I must have screwed up. I believe I screwed up”. When asked if she went to a supervisor she replied, “I made the assumption that it was not a big deal so did not bother a supervisor”.
[59] With respect to Ex 18 she replied, “I didn’t realize I had so many tickets changed. I see how it looks”.
[60] Ms. Thacker did not recall a number of the other transactions. Written Statements (Ms. Li, Ex 132; Mr. Scott, Ex 134; Ms. Sliacky, Ex. 136; Ms. Thacker Ex. 138)
[61] At their interviews, each of the Grievors provided the Employer with a brief written statement.
[62] Ms. Li in her written statement (Ex 132), dated February 23, 2011, wrote that “As per our meeting today I answer all questions to my best knowledge”. She further wrote that “I realized change fee has been waived in several incidents but I don’t recall all incidents”; however, she did things “according to my knowledge”. She also wrote that she was not formally ticket trained and that she was “under the impression that we will waived change fees for fellow employees”. 17
[63] Mr. Scott’s statement was dated February 24, 2011. Mr. Scott wrote that at the interview “we discussed details regarding change fees and booking codes on only employee ticketing”. Further, that they had discussed his “lack of ticket training”. Also discussed was the collection of fees.
[64] Ms. Sliacky wrote that at the interview they had discussed the fact that change fees had not been collected and that certain tickets should not have been designated involuntary. She commented that “mistakes made due to not knowing or simply providing a favour for a friend or a valued customer”. This statement was dated February 24, 2011. [65] Ms. Thacker noted the presence of Ms. McKeever, Ms. Pinto, Nigel Newsome and Brian Bird, and Laura Sharp at her interview. She wrote that Ms. McKeever asked different “background scenarios”, and that Ms. Pinto, Mr. Newsome and Mr. Bird all took notes. She wrote that Ms. McKeever asked questions about individual tickets that she had purchased. She wrote that she has never had any ticket training. She stated that she had never asked co-workers to waive change fees or asked for breaks because of her preferred status. She was “astounded” by the “potential value of the presented ticket issues and the complexity of different types of tickets”. Finally, she wrote that it has been “difficult” and “stressful” to try and recall all of the past circumstances.
[66] All these written statements and the interviews were accompanied by a confidentiality agreement (Li, Ex 131; Scott, Ex 133; Sliacky, Ex 135; Thacker, Ex 137). Additional Fare Policies
[67] On December 1, 2008, in a letter to all employees entitled, “Pleasure Travel – Policy Compliance”, the Employer made it clear that the pleasure travel privileges enjoyed by employees of United must comply with the Code of Business Conduct and the Pleasure Travel Policy itself. It states that pleasure travel is a “privilege” and that violations of the Code of Business Conduct would be investigated and disciplinary action up to and including discharge would be imposed (Exhibit 85).
[68] A similar notice was sent to all employees, dated May 10, 2010, once again addressing itself to Pleasure Travel privileges, and notifying employees that any abuse of its 18 Pleasure Travel Policy may result in discipline up to and including discharge (Ex 86). Finally, there is an Online Ticketing Policy entitled, “Employer Discount 20 Program”, which entitles employees to 20% off most published fares for Pleasure Travel tickets. The policy notes that, “All fare rules apply” (Ex 87).
Station Audit/ Random Audit
[69] During their investigation, Ms. Pinto stated that one rationale raised with regard to the Grievors’ practices of waiving fare rules was that, “everyone else was doing the same thing”. This was a reference to the bargaining unit employees at the Vancouver station. As a result, Ms. Pinto and Ms. McKeever conducted two audits.
[70] The first audit was a survey of seven additional employees. This random audit was with respect to any employee file numbers associated with the seven employees who were initially terminated, including the four Grievors. She and Ms. McKeever conducted this audit. Thus, there was a total of 14 employees whose ticketing practices were examined. Ms. Pinto testified that among these seven additional employees there were “one off, or two off” violations; however, there was no pattern of violations similar to the Grievors’.
[71] The second audit was a station audit. The first part of this audit was to review Boarding Compensation Vouchers. These compensation vouchers are issued when a flight is overbooked. The purpose of this audit was to look for “employees with higher amounts that stood out”. With respect to these vouchers they found “no outliers”. The second part of the audit was with respect to “cash voids”. This involves agents who handle cash, for example, baggage fees. This has a potential for the theft of cash. Once again, they found “no outliers” at the Vancouver station. Training [72] A training transcript was introduced into evidence for each of the Grievors. These transcripts set out the training activity, the start date, the completion date, the score and the amount of time spent on each training task. They contain multiple pages; for example, the training transcript for Ms. Sliacky (Ex 89), is eight pages. The training transcripts for the other Grievors are: Ms. Li’s (Ex 90); Ms. Thacker’s (Ex 91) and Mr. Scott’s (Ex 92). On 19 each transcript there is the following record of training: TL17/76, November 2009, Code: ii_1109-v1. The time varies for this lesson from 8 – 17 minutes. The lesson is set out in Exhibit 88. It concerns the Code of Business Conduct, specifically, the violation of waiving fees or fare restrictions. Three Reinstated Employees [73] Of the seven employees initially terminated, three were reinstated. These employees were T.B., M.R. and V.B. In summary, Ms. Pinto testified that these three individuals were reinstated because they did not personally benefit from any of the travel, or with respect to the lack of collection of any fares and service fees; in other words, they neither traveled on these tickets, nor did they benefit from the non-payment of these fees. In some cases they did not know the person who was traveling on the ticket.
Grievance Procedure.
[74] The grievance procedure at United is somewhat unique. A hearing is held before a hearing officer at Step 3 of the grievance procedure. Ms. Pinto conducted the case for the Employer at the Step 3 of this grievance procedure along with Mr. Newsome, the Manager of the Vancouver Terminal. She stated that the Grievors, did not, at any time, either during the course of the interviews on February 23 and 24, 2011, or at the Step 3 hearing, state that they had permission from their supervisors or managers to make changes to the ticket transactions that they were involved in.
[75] Ms. Pinto also introduced into evidence a statement by M.R. (one of the three employees reinstated). This statement was made at the Step 3 hearing and reduced to writing (Ex 115). With respect to tickets issued to Ms. Sliacky (Ex 108), Ms. Li (Ex 109) and Ms. Thacker (Exhibit 110), in which fare differences and service fees had not been collected, she wrote that she felt “pressured” to make the changes without collecting the required fees.
[76] Ms. Pinto testified that in her thirteen years as an investigator she has done hundreds of investigations involving waivers and favours similar to this case. However, this was the 20 “biggest fraud”, both in terms of the “number of employees” and “the number of infractions”.
Cross Examination
[77] The Grievors cite and rely upon the evidence arising out of Ms. Pinto’s cross-examination. As a result, I have provided a summary of that evidence.
[78] Cross examination of Ms. Pinto took place over four days: June 10 and 11, 2015 and proceeded several months later on September 1 and 2, 2015.
[79] Ms. Pinto testified that the Apollo reservation system had been in place since the time she first joined United in 1995. She was familiar with this reservation system. She had been a ticket reservation agent and worked at the ticket office in Chicago between 1995 and 1998. She has been involved with the investigation of ticket fraud since 2003. She is currently a Senior Investigator.
[80] The Apollo reservation system was discontinued in 2012 when United merged with Continental Airlines. The ticket reservation system is now Continental’s Shares System. The Apollo Reservation System was run by Galileo, a separate company. Galileo was used by travel agencies and United Airlines.
[81] Ms. Pinto agreed that she had no direct knowledge of the management practices at the Vancouver Terminal. The only members of management that she knew at the Vancouver Airport were Mr. Newsome, the General Manager, and Mr. Brian Bird.
[82] Ms. Pinto stated that she and Ms. McKeever reviewed the ticketing history of the individual employees at Vancouver prior to their interviews in February 2011; and that they conducted their audit of the station after their interviews with the Grievors. She said that she and Ms. McKeever “worked as a team”; they reviewed all tickets and prepared the interview questions. Each ticket transaction required the “investigation of the documents PNR history” – the reservation history. When asked if she was aware of the local culture at Vancouver, which emphasized “bums in seat no matter what” and “don’t ask, just get it done”, Ms. Pinto replied that no employee could “take advantage of the Company”. Ms. 21 Pinto confirmed that the training records (Exhibit 89 – 92) were obtained after the investigation for the purposes of the arbitration hearing. She obtained these documents “via email”; that she had no personal knowledge of these documents, nor could she testify that the Grievors had actually received the training with respect to the Code of Conduct as set out in these training transcripts.
[83] Ms. Pinto confirmed that the coded history of each ticket is derived from Apollo; however, the hard copy documents themselves are United’s documents. This history is set out in the Passenger Name Record (PNR). This history is made up of the keyboard entries performed by a specific employee number. The employee’s file number is disclosed in the PNR Record. A hypothetical question was put to Ms. Pinto about whether someone else, other than the Grievors, could have used their employee file number, and their password, to perform the ticket transactions. She acknowledged that this was possible.
[84] Ms. Pinto stated that the accounting record (OTIS) is not an Apollo document. A computer program entitled Fast Air is the “mask” or “intermediary” in front of Apollo that was devised to make it “easier for agents” to operate on Apollo.
[85] Ms. Pinto testified that they began the investigations by “pulling the reservations and data” for Jennifer Thacker and Antony Scott. If the ticket and raw data showed a violation they produced that ticket. If there was no violation they did not produce the ticket. In order to derive the “raw data”, both she and Ms. McKeever ran various “queries”. And any queries that led to violations resulted in her, or Ms. McKeever, “pull[ing] the three [OTIS, ETIS, PNR] documents”. All the information retrieved was based upon the employee’s individual file number. Documents were viewed on a computer screen and then printed out. The normal timeline for reviewing potential violations is 2 years. [86] Although the “inquiry” began with Ms. Thacker and Mr. Scott, it eventually grew to seven individuals, all of whom were dismissed. She stated the investigation “expanded as we read the PNR histories”. The reservation history reveals all other employee file numbers involved in the ticket transactions. Ms. Pinto agreed that there was no further investigation after the employees were terminated. 22
[87] Ms. Pinto stated that the interviews with the Grievors took place on February 23 and 24, 2011. Present were herself and Ms. McKeever. On behalf of United’s Management in Vancouver were Mr. Newsome and Mr. Bird. A Union Business Agent was also in attendance. The Grievors were given no advance notice of the meetings, nor were they given any documentation ahead of time. Ms. Pinto stated this is standard policy. Each alleged ticket transaction had been copied and was disclosed to the Grievor during the interview. The internal fare policies of United were not given to the Grievors during the interview.
[88] Ms. Pinto testified that she is familiar with all the fare rules and has worked with them “continuously since 2003”. They are set out in the Tariffs. These fare rules change all the time. In order to determine a prospective fare an agent must “pull the tariff for that particular fare”; for example, a ticket agent would pull the tariff for a flight from one specific city to another. This fare would be set out from the highest to the lowest fare, and would include advanced fare rates, booking class codes and seat availability.
[89] Ms. Pinto stated that during the investigation she did not have access to an employee’s personnel file. These personnel files are held locally by the Employer. These personnel files are confidential, along with each employee’s password. Employees are prohibited from sharing their password with other employees.
[90] With respect to the length of the Grievors’ fact finding interviews in February 2011, Ms. Pinto stated that, “We don’t set a clock for a meeting; it takes as long as the [employee] needs, and they get to write a statement”. With respect to the answers recorded by her in the interviews, she testified, “What was said, was what I typed”. Ms. Pinto had no further involvement with this matter after the Step 3 grievance hearing on May 3, 2011. As well, she was not involved in the discipline of the Grievors.
[91] Ms. Pinto acknowledged that she and Ms. McKeever did not preserve the raw data of those tickets where there were no violations; nor did they destroy this data. And that having to read all this raw data involved, “reviewing thousands of lines of data”. 23
[92] Ms. Pinto, when asked if the Grievors had committed “fraud”, replied that they had “committed a form of fraud, yes”. However, she said that they had “not been charged with fraud”; rather, they had been “charged with Rule 2 violations”.
[93] Ms. Pinto acknowledged that she could not say which ticket transactions she had initially reviewed during her research, and which ones had initially been reviewed by Ms. McKeever. An administrative assistant printed off the documents. Ms. Pinto testified that these ticket transaction documents, for example, those in Ex 7 (a) – (f), are “standard documents of United Airlines”, and that they were “all documents made in the ordinary course of business”.
[94] Ms. Pinto agreed that there were no copies of tariffs produced in evidence; rather, she stated that it is “just what I see in the fare bases code”. This was a reference to the three documents themselves; for example, a ticket is reissued nine days in advance, while claiming a 21 day advanced fare (Ex 9; Thacker). The PNR history will also reveal when a ticket agent records the fact that they had the permission of a supervisor to make the required changes (i.e. waive fare rule).
[95] The Employer agreed to the following stipulation: United stipulates that in the ticket information presented in evidence there are instances where the grievors did not make the changes to the ticket information. United stipulates that its position is that the grievors violated its rules by either making the changes to the ticket information or benefitting from those changes. United stipulates that its position is that [T.B., V.B. and M.R.] did not benefit from the changes made by them to the ticket information in evidence. (Ex 139)
[96] Ms. Pinto stated that there is no violation of the fare rules if no ticket is issued. It is only when the ticket is issued that the fare rules apply.
[97] In general, Ms. Pinto explained that the lower the fare inventory (cheaper tickets), the greater the number of restrictions; thus, there are specific fare rules that attach to the amount of the fare paid. She said that although some of the Grievors stated they had not 24 been trained in ticket transactions, some of their transactions were quite “sophisticated”.Ms. Pinto agreed that she had no personal knowledge of the ticket practices in the Vancouver station.
[98] Ms. Pinto testified that the same investigation process was conducted with respect to all 14 employees; the seven initially terminated, and the seven that were part of the random audit. With respect to the random audit (7 employees), United does not have any raw data of that review. No raw data was kept unless it revealed a violation; as well, no data was kept where there was “a single instance of a violation”; such as a “one off or two off” violation.
[99] With respect to the station audit, Ms. Pinto explained that there were “certain things that one can audit at the station level, specifically, boarding vouchers (customer problem resolution certificates) and cash voids”. Ms. Pinto said that they did not keep the records with respect to the station audits.
Re-Examination
[100] In re-examination, Ex 147, 148 and 149, were introduced. These are “cheat sheets” for ticket agents to help them better understand Apollo, and United’s own documents. Ex 150 is a printout of a policy with respect to IRROPS (Irregular operations), dated October 22, 2008. Ex 151, entitled, “Empowerment”, states that as of August 28, 2002, United “will no longer offer fare/ticketing rule waivers. Further, the “only exception to a fare/ticketing rule waiver is to correct a UA agent error”. Under the “Never List” it states that an employee is never to “authorize fare rule waivers”. Ex 152 is the original anonymous complaint with respect to the ticketing practices of Ms. Thacker.
[101] Counsel for the Grievors was given a second opportunity to cross-examine Ms. Pinto with respect to the exhibits entered into re-examination. He canvassed Ex 150, 151 (fare policies) and 152 (original anonymous complaint). Ms. Pinto acknowledged that the “one off/two off rule” was not in writing. She further stated that whether the amount involved was $1 or $10,000, a fare violation amounted to a breach of the Employer’s Policies and Rules.
[102] Finally, Ms. Pinto stated that Apollo is “no longer in use by United”. 25
III. Analysis and Decision
[103] As stated, the Grievors have filed an extensive submission, approximately 90 pages, dated January 8, 2016. It outlines many objections. First, is their no evidence motion. There are many elements to this motion, including an argument that a different legal standard ought to apply to the evidence. In the alternative, there are objections to United’s document production and disclosure. In the further alternative, they argue that United must disclose its entire litigation file, and that an independent forensic certification of all documents be conducted with respect to its May 2014, demand for documents, including but not limited to, the origin, source, authenticity and any changes that may have been made to these documents.
[104] I will deal with the no evidence motion first. No Evidence Motion
[105] It is the standard rule, that the party that bears the evidentiary burden, is the one that is required to prove its case. At the conclusion of that party’s case, the opposing party may ask an arbitrator to dismiss the grievance, because the party bearing the evidentiary burden has failed to produce any evidence on one or more elements that are required to be proven; in other words, there is no evidence with respect to one or more of the material elements. This motion is referred to as a no evidence motion and is analogous to a non-suit motion in a civil proceeding before the Courts.
[106] In Canadian Labour Arbitration, 4th Edition (Carswell: Toronto), Donald J. M. Brown, Q.C. and David M. Beatty (Brown and Beatty), there is a review of motions for non-suit at paragraph 3:2640. There are two main approaches to a motion for non-suit, or a no evidence motion, in the arbitral jurisprudence. The first approach requires the party making the no evidence motion to elect whether to call evidence prior to bringing the motion itself. Should the party making the motion elect to call evidence, the hearing continues, and therefore, the no evidence motion is essentially redundant. If the moving party elects not to call evidence, their case is closed, and the parties will then argue the non-suit motion. This 26 argument will therefore be based on the whole of the evidence. This analysis requires a weighing of all the evidence. This is the practice in Ontario, New Brunswick and Newfoundland. The Employer refers to this as the Mandatory Approach.
[107] The rationale for this approach is threefold: first, a no evidence motion will invariably delay the proceedings while the motion is ruled upon by the Arbitrator. Second, there is an issue of fairness. If the moving party is not required to elect, they will receive a preliminary ruling on the strength, weaknesses and sufficiency of the responding parties’ case. They will then have the opportunity to bolster their own case. This also requires the adjudicator to perform two assessments of the evidence. Third, requiring an election discourages no evidence motions. The arbitration process is intended to be an efficient means of solving workplace disputes and to be resolved on their merits rather than through procedural stratagems.
[108] The second approach, referred to as the Discretionary Approach, follows the provincial civil procedures rules set out in the jurisdiction where the arbitrator sits. This approach leaves the question of an election to call evidence to be decided by the arbitrator on a case by case basis. This approach is customary in British Columbia, the Northwest Territories, Nova Scotia and Alberta (Brown & Beatty, 3:2640).
[109] Moreover, in British Columbia there is a distinction between a no evidence motion and an insufficient evidence motion. With respect to a party making a no evidence motion they are not put to their election. Should a party’s no evidence motion fail, they are still entitled to call evidence. In contrast, the party that makes an insufficient evidence motion is taken to having closed its case. They are not permitted to call evidence should their insufficient evidence motion fails. This distinction was set out in Surfwood Supply Ltd v. General Alarms Ltd. [1976] 3 W.W.R. 93 (B.C.S.C.) (McKenzie, J.): 8 Applying that principle to the exercise of the trial judge’s discretion in a civil case, it seems that the judge must first discover the basic nature of the motion. If it is based on some lack of an essential ingredient, such as any evidence of negligence, then the appropriate ruling would appear to be to allow argument on the issue of whether or not there is any evidence. Failure to persuade the judge that there is no 27 evidence should not foreclose the defendant’s right to call evidence. 9 In contrast to this, if the defendant’s motion is based on the weakness or insufficiency of the plaintiff’s case – lack of proof on a balance of probabilities – then the defendant should know at the outset of his motion that he will not be allowed to call evidence should the motion fail. 10 In every civil case the judge has to decide if the plaintiff has proved his case on a balance of probabilities. He has to weigh the evidence to make this determination. If the defence were allowed to argue weight of evidence at the end of the plaintiff’s case and then if unsuccessful on that motion be allowed to call evidence and argue weight again at the end of the trial, then the judge would have to decide the onus of proof issue twice in the same case. This seems to be an unreasonable duplication. 11 In the “no evidence” kind of motion the judge is being invited to note a complete lack of evidence on a vital point. He is not asked to weigh but simply to observe. The defence is saying, in effect, “Why should I be put to the bother and expense of mounting a defence when there is nothing to defend against”. If the judge disagrees and discerns evidence where defence counsel has seen none, then the defence should be allowed to call evidence to meet the case made out by the plaintiff. (paras. 8 – 11)
[110] The Industrial Relations Council of British Columbia adopted the legal framework outlined in Surfwood Supply in a certification matter, see: Western Versatile Construction Corp and UA Local 170, I.R.C. Decision No. C120/88; application for reconsideration dismissed I.R.C. Decision No. C143/88; application for judicial review dismissed see UA v. Industrial Relations Council, December 12, 1988, Vancouver Registry No. AAA2807. Similarly, Arbitrator Bird in Re: Unitel Communications Inc. and Canadian Association of Communication and Allied Workers, (1991) 18 L.A.C. 4th 367, applied this framework, commenting that it was: …sound in principle and providing good guidance for an arbitrator acting under the Canada Labour Code R.S.C. 1985 c.L-2. I hold the distinction made in Surfwood Supply Ltd. between a 28 no evidence motion and an insufficient evidence motion as valid and significant.” (p. 375).
[111] However, a more recent statement of the law was rendered by the British Columbia Court of Appeal in Birkenhead Resorts Ltd. v. Bemister, (2001) 87 B.C.L.R. (3d) 172. The Court commented on the distinction between a no evidence and insufficient evidence motion, stating that the distinction has “created more difficulties and uncertainty than it has solved”, and further, that it has “proven to be a dubious benefit”:
[1] This is an appeal by the plaintiff appellants, Birkenhead Resort Ltd. and Jolene Preston, from the dismissal on a no evidence motion of their action for negligence. In issue is Rule 40(8) of the Rules of Court that states as follows: At the close of the plaintiff’s case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff’s case.
[2] In the recent case of Roberge v. Huberman (1999), B.C.J. No. 695, Esson J.A. gave some history relating to this provision. He said this about the origins of the sub-rule at paras. 62-65:
[62] The “no evidence” motion is an established aspect of the procedure in criminal trials. Because of the burden on the Crown to prove each element of the charge, and the absence of any burden on the accused, it is essential that the accused have the opportunity to argue “no evidence” before deciding whether to call evidence.
[63] That consideration does not apply to civil trials in which each side is required to plead its case and has the burden of advancing its case. Historically, the prevailing view has been that the court should not entertain a no evidence motion in a civil trial unless the defendant elects to call no evidence. Where such an election is made, the distinction between “no evidence” and “insufficient evidence” effectively disappears. All the evidence for both parties being before the court, the evidence can be weighed and a conclusion reached as to 29 whether the plaintiff has discharged the ultimate burden. Thus, the court may be spared the arid and often confusing intellectual exercise of having to decide whether the evidence heard to that point is, as a matter of law, “no evidence”. And the parties are spared the risk of a finding of “no evidence” being reversed on appeal and of a new trial being ordered.
[64] Prior to 1990, these disadvantages of non-suit motions resulted in the general rule that a defendant seeking to bring a motion for a non-suit based on no evidence was required to elect whether to call evidence. That had long been the practice in England. But in February 1990 these Rules were enacted in this Province: 40(8) At the close of the plaintiff’s case, the defendant may apply to have the action dismissed on the ground that there is no evidence to support the plaintiff’s case. (9) A defendant is entitled to make an application under subrule (8) without being called upon to elect whether or not to call evidence.
[65] The discretion to require an election was thus removed. Whether there is a similar rule anywhere else I do not know. As we approach a decade of experience with Rule 40(9) I respectfully raise the question whether the time has come for an analysis of its costs versus its benefits.
[3] Mr. Justice Esson’s concluding comments in the above passage highlight the difficulty faced by both counsel and the judiciary in many cases that have involved a consideration of this sub-rule. The subtle analyses and distinctions that are often required pose a problem for counsel advising clients at trial and on appeal. Likewise, it is difficult for the judiciary in their endeavour to decide on which side of the line, often a rather shadowy line, a particular case may fall. It may well be that the enactment of this sub-rule was an initiative that has created more difficulties and uncertainty than it has solved. For example, in Roberge, supra, the trial judge and this Court came to differing conclusions on this very issue. My review of the 30 authorities has demonstrated that the issue of whether the sub-rule can be successfully invoked may arise in many disparate fact patterns. I venture to suggest that the importation of the sub-rule from the criminal law into the civil law has proven to be of dubious benefit. (pages 173-4)
[112] Turning to the Grievors’ no evidence motion in the current matter, I respectfully conclude that the Mandatory Election approach, in Ontario, New Brunswick and Newfoundland, is the preferred approach, both under the B.C. Labour Relations Code. R.S.B.C. 1996 c.244, and under the Canada Labour Code; that is, a party moving a no evidence motion should be required to elect whether or not they will be calling evidence, prior to bringing such a motion. If the moving party elects to call evidence the hearing continues in the ordinary course, and the no evidence motion is redundant. If the party elects not to call evidence, then their case is closed, and the parties will argue the no evidence motion based upon the whole of the evidence. I conclude that this particular approach is more consistent with the arbitration process under both the British Columbia Labour Relations Code and the Canada Labour Code. The arbitration process is meant to be an efficient means of solving workplace disputes. The Discretionary Approach involves delay, a lack of fairness, and a duplication of the arbitral analysis of the evidence.
[113] However, in spite of this conclusion, I have decided to conduct my analysis of the no evidence motion in the manner requested by the Grievors; that is to say, the Grievors will have the right to call evidence in the event their no evidence motion fails. As will be evident, and as the Employer argues, there are many aspects to the Grievors’ no evidence motion which does in fact amount to an insufficient evidence motion. The Grievors, however, argue that this case raises the issue of the nature and character of the evidence adduced in this matter. Moreover, the Grievors make a wide number of claims with regard to the issue of document production, and the admissibility of those documents. In fairness to all parties, these issues should be addressed. Ticket Transactions 31
[114] As the Grievors state, the evidence in this matter primarily consists of ticket transactions that the Employer alleges violated its fare policies, and the viva voce testimony of Ms. Pinto, a Senior Investigator, employed in United’s Fraud Department, who has read and interpreted these documents.
[115] Throughout its submission the Grievors repeatedly argued that the ticket transactions “amount to hearsay – double, triple, quadruple hearsay if admitted for the truth of the content contained therein. They were not business records” (para. 158). In addition, they claim that Ms. Pinto’s evidence was “opinion hearsay evidence, speculation and conjecture” (para. 160). It is fair to say that this is the primary approach taken by the Grievors with respect to its no evidence motion. In its submission, these points are repeated in its Introduction (paras. 1 – 11), in the No Evidence Motion Sections (paras. 63 – 68), in the section entitled, “Ms. Pinto’s Testimony, General Comments (paras. 112 – 128), and then repeated under the headings “Alleged Ticket Transaction Documents” (paras. 129 – 160), “United Rules” (paras. 161 – 183), “Established Rules” (paras. 184 – 190), “Knowledge of Rules (paras. 191 – 205), and finally, under the heading, “Alleged Ticket Transactions” (paras. 238 – 269).
[116] The Employer, in its written argument, characterizes The Grievors’ approach as follows:
The Grievors repeatedly, explicitly and exhaustively argue that the alleged hearsay testimony and documents are insufficient to support a conclusion that an essential element of the case has been proven and/or to uphold the termination. See for example, Grievor’s Amended Motion, dated January 8, 2016, at paragraphs 4, 5 (where they plead the arbitrator must carefully scrutinize United’s evidence to ensure it is clear and cogent), 7, 21, and 67 – 69, 85, 113, 114, 121, 125, 12 (where they conclude no weight can be given to Ms. Pinto’s testimony at all), 130, 133, 134, 158, 163, 167, 184, 193, 194, 196, 203, 204, 205 (where they conclude there is no direct evidence of the Rules and Code of Conduct and the arbitrator cannot rely on hearsay), 231, 234, 235, 237, 238, 241, 242, 256, 257, 261, 267, and 268. 32 (bolding in original) (para. 50)
Arbitrators Authority
[117] First, it is not in dispute that an arbitrator has the authority to admit evidence, including hearsay, even though such evidence may not be admissible in a court of law. Section 60(1) of the Canada Labour Code, sets out the powers of an arbitrator. These include the following: Powers of arbitrator, etc.
60 (1) An arbitrator or arbitration board has
(a) the powers conferred on the Board by paragraphs 16(a), (b), (c) and (f.1);
(a.1) the power to interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is conflict between the statute and the collective agreement;
(a.2) the power to make the interim orders that the arbitrator or arbitration board considers appropriate;
(a.3) the power to consider submissions provided in the form that the arbitrator or the arbitration board considers appropriate or to which the parties agree;
(a.4) the power to expedite proceedings and to prevent abuse of the arbitration process by making the orders or giving the directions that the arbitrator or arbitration board considers appropriate for those purposes; and (b) power to determine any question as to whether a matter referred to the arbitrator or arbitration board is arbitrable. 33 …
Powers of Board 16 The Board has, in relation to any proceeding before it, power
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;
(a.1) to order pre-hearing procedures, including pre-hearing conferences that are held in private, and direct the times, dates and places of the hearings for those procedures;
(a.2) to order that a hearing or a pre-hearing conference be conducted using a means of telecommunication that permits the parties and the Board to communicate with each other simultaneously; (b) to administer oaths and solemn affirmations;
(c) to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not;
(d) to examine, in accordance with any regulations of the Board, such evidence as is submitted to it respecting the membership of any employees in a trade union seeking certification;
(e) to examine documents forming or relating to the constitution or articles of association of 34 o (i) a trade union or council of trade unions that is seeking certification, or o (ii) any trade union forming part of a council of trade unions that is seeking certification; (f) to make such examination of records and such inquiries as it deems necessary;
(f.1) to compel, at any stage of a proceeding, any person to provide information or produce the documents and things that may be relevant to a matter before it, after providing the parties the opportunity to make representations; (bolding added)
[118] In the current matter, the Employer argues, that since the admissibility of hearsay evidence is statutorily permitted, then this makes the issue of hearsay evidence a matter of weight, not admissibility. Therefore, the Grievors’ no evidence motion is in fact an insufficient evidence motion. This is because the Grievors are asking that the arbitrator evaluate the testimony and conclude that no weight should be attached to it. There is some persuasive force to this argument.
[119] However, the Grievors rely upon the decision of the Ontario Divisional Court in Re: Gervin et al and Consumers Gas Company, (1973) 40 D.L.R. 3d 509. It involved a judicial review of an arbitration award where the Court found that notwithstanding that hearsay evidence was admissible under the Ontario Labour Relations Act (Section 37.7(c)), an arbitration board cannot rely solely on hearsay evidence as the basis for its findings of fact. Section 16 (c) of the Canada Labour Code is similar and permits an arbitration board “to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not”.
[120] With respect to a no evidence motion, the issue is whether a prima facie case has been made out. In British Columbia Maritime Employers’ Association (2001), 100 LAC (4th) 318, Arbitrator Munroe relied upon signed unsworn statements and hearsay evidence for the 35 purpose of determining the existence of a prima facie case with respect to misconduct. However, for the purposes of this motion, I will review the ticket transactions, and Ms. Pinto’s evidence, on the basis that the exclusive reliance on hearsay evidence amounts to no evidence.
Business Documents
[121] The first argument of the Grievors is that the ticket transactions are not business documents under Section 30 of the CEA. Section 30(1) reads as follows:
Business records to be admitted in evidence 30(1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.
[122] The definition of a record is set out in Section 37.12. It reads as follows:
… record includes the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced, and, except for the purposes of subsections (3) and (4), any copy or transcript admitted in evidence under this section pursuant to subsection (3) or (4).
[123] Beginning with the first ticket transaction, Ex 7 (a) – (f), Ms. Pinto described these three separate documents (OTIS, ETIS and PNR) as “all documents made in the ordinary course of business”. In summary, each ticket transaction is made up of three documents: first, is the Online Ticket Information System (OTIS, Ex 7a). This is not an Apollo record; rather, it is United’s financial accounting of the ticket. The second document is the Electronic Information System (ETIS) (Ex7b). This is an Auditor’s Coupon, and includes information such as the place of issue, the issuing agent, the date of issue of the ticket. The third document is the Passenger Name Record (PNR, Ex 7c, d, e and f). This document is the history of the reservation. It is a record of every keystroke of a ticket agent, identified by their employee file number, in the creation of that specific reservation. The PNR is a printout of Apollo. However, all the hard copy documents in evidence are not Apollo 36 documents; rather, they are from United’s own computer system, as the Grievors acknowledged: “Obviously the hard copy documents were United…” (para. 286).
[124] All the information contained in the documents (“raw data”), was “pulled”, or retrieved, by Ms. Pinto and Ms. McKeever. They all directly relate to specific employee file numbers. Ms. Pinto stated that the investigation of these ticket reservation histories (PNR) started with Ms. Thacker and Mr. Scott, and “expanded as we read the PNR histories”. The result was that this initial research and investigation grew from two individuals (Ms. Thacker and Mr. Scott) to seven individuals: the four Grievors; Ms. Thacker, Ms. Li, Ms. Sliacky and Mr. Scott, and three others, who were ultimately reinstated: T.B., M.R. and V.B.
[125] The standard investigative process is that United’s Fraud Department will review a two year reservation history, in this case 2008 – 2010. Those ticket transactions, whose PNR history showed a fare violation, were printed; but those PNR histories that did not show such a violation were not printed. Ms. Pinto testified that in looking for any potential fare violations in the reservation histories she would review “thousands of lines of data”, searching for ticket transactions that were “out of the ordinary”.
[126] The PNR history, in addition to disclosing all the employee file numbers involved in the creation of a reservation, also includes the cancellation of the flights, segments of flights, routing, inventories, fare codes, fare discounts, etc. The OTIS includes all the financial information with respect to a ticket. The ETIS includes the ticket numbers, the passenger name, issuing date, routing of the ticket, the fare base codes, total value of the ticket, check ins, exchanges, refunds, revalidations, etc. From these documents Ms. Pinto, for example, could state that a ticket had been revalidated (Exhibit 17b), a procedure which enables the ticket agent to bypass the fare rules. These documents are made contemporaneously with the creation of the reservation. For example, the PNR reservation history is created at the time the passenger and the ticket agent are creating the reservation. Tickets are created at the time they are issued. Accounting records are created at the time the customer incurs the cost. These records are contemporaneous with the events. They are standard form documents, and the evidence establishes that they are created by the Employer in the “usual 37 and ordinary course of business”. I therefore conclude that these three category documents (OTIS, ETIS, PNR) fall within Section 30(1) of the CEA, and as an exception to the hearsay rule, are admissible for the truth of their contents.
[127] At one point in their submission, the Grievors argued that these documents (OTIS, ETIS and PNR) were created in the course of an “inquiry or investigation” and, therefore, are inadmissible as a business record under Section 30.10 of the Act. [128] I conclude these documents were not originally produced, constructed or developed during Ms. Pinto’s and Ms. McKeever’s investigation of the ticket transactions. These ticket transactions are records that were written, recorded and stored, contemporaneously with the events they described, and in United’s usual and ordinary course of its business. During the investigation they were simply reproduced and printed. This information existed and was retained by United prior to these proceedings. Electronic Documents [129] The Grievors’ next objection, under the CEA, is that these three documents are electronic documents under Section 31.1, and, therefore, are required to be properly authenticated. They claim the Employer has failed to properly authenticate any and all documents, but particularly these ticket transactions.
[130] I conclude that these documents meet the definition of electronic documents set out under the CEA. I will address Sections 31.1 (Authentication of Electronic Documents), Section 31.2 (Application of Best Evidence Rule – Electronic Documents), Section 31.2(2) – (Printouts), Section 31.3 (Presumption of Integrity) and Section 31.8 – (Definitions).
[131] Section 31.1 requires a party seeking to enter into evidence an electronic document to prove its authenticity with evidence that demonstrated that the document is what it is purported to be: Authentication of electronic documents 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence 38 capable of supporting a finding that the electronic document is that which is purported to be. (emphasis added)
[132] Section 31.2(1) states that proof with respect to the integrity of the recording and the storing of electronic documents is met if they satisfy the best evidence rule: Application of best evidence rule – electronic documents 31.2 (1) The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or (b) if an evidentiary presumption established under section 31.4 applies. (emphasis added)
[133] Section 31.2(2) states that despite Section 31.2(1) above, and “in the absence of evidence to the contrary”, an electronic printout will satisfy the best evidence rule, if the information recorded or stored in the printout has been consistently be relied upon: Printouts (2) Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout. (emphasis added)
[134] Section 31.3(a) deals with the presumption of integrity of an electronic documents system. The integrity of such a system is proven if at all material times the computer system was operating properly, or if was not, that the integrity of the documents were not affected, and further, that there are no other reasonable grounds to doubt the integrity of the electronic document system: 39 Presumption of Integrity 31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven (a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic document system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system; (emphasis added)
[135] The focus of the above sections with respect to the integrity of an electronic document system is in the recording and storing of the data (Section 31.2(1), 31.2(2) and 31.3). This is also a primary element in the definition of an electronic document and an electronic documents system. I reproduce the entire definition section, which also defines a computer system:
31.8 The definitions in this section apply in sections 31.1 to 31.6. computer system means a device that, or a group of interconnected or related devices one or more of which, (a) contains computer programs or other data; and (b) pursuant to computer programs, performs logic and control, and may perform any other function.
data means representations of information or of concepts, in any form. electronic document means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data. electronic documents system includes a computer system or other similar device by or in which data is recorded or stored 40 and any procedures related to the recording or storage of electronic documents. (emphasis added)
[136] In the Law of Evidence in Canada, Sopinka et. al. Third Edition, Lexis Nexis (2009) (“Sopinka”), the authors deal with several aspects of Sections 30 and 31 of the CEA. At paragraph 6.246, page 305, they state that “Computer printouts are now a part of every day business life”. Certainly, United ticket transactions are significant example of this fact. They go on to state in that same paragraph, with respect to their admissibility under Section 30, the following: Some courts have accepted the reliability of computers without stipulating any preconditions to the admissibility of their printouts under s. 30. To admit them, however, would require acknowledgement that double or multiple hearsay would not be a bar to the application of s. 30.
[137] In dealing with the issue of double, or multiple hearsay, Sopinka reviews the few cases to date with respect to this issue under Section 30 of the CEA:
6.229 Only a few judicial decisions have considered this aspect of the Canada Evidence Act provision and they have tended not to be so restrictive in interpretation. In fact, they have accepted the proposition that double hearsay is admissible under s. 30. In R. v. Grimba, the Crown tendered expert fingerprint evidence to demonstrate that the fingerprints taken from the accused on his arrest were the same as those on a fingerprint record over the name of another individual obtained from the FBI identification records. The expert had not made the fingerprint record and had no personal knowledge of its accuracy, but had been with the FBI for 11 years and described the FBI as serving as a reservoir for fingerprints. Callaghan J. admitted the evidence and stated:
Section 30 was placed into the Canada Evidence Act in 1968 … It would appear that the rationale behind that section for admitting a form of hearsay evidence is the inherent circumstantial guarantee of accuracy which one would find in a business context from records which are relied upon in the day to day affairs of individual 41 businesses, and which are subsequent to frequent testing and cross-checking. Records thus systematically stored, produced and regularly relied upon should, it would appear, under s. 30, not be barred from this Court’s consideration simply because they contained hearsay or double hearsay.
6.230 In R. v. Martin, Jackson J.A., after reviewing the cases on this point and holding that double hearsay does not preclude admissibility, stated: Section 30 would have accomplished little if the author of the data contained in a business record had to be called to testify. The complexity of modern business demands that most records will be composed of information gleaned by the maker from others.
6.231 The Court in R. v. L. (M.) also acknowledged, without deciding the issue, that case law seems to suggest that s. 30 is sufficiently elastic to permit the admission of double hearsay.
[138] With respect to Sections of the CEA dealing with Electronic Documents (ss 31.1 to 31.8) Sopinka states the following:
6.248 The Canada Evidence Act now includes provisions (ss. 31.1 to 31.8) to facilitate the admissibility of electronic documents which means data that is recorded or stored in or by a computer system or other similar device. It would include such electronic matters as emails and voicemails.
6.249 The focus of admissibility is on the authenticity and reliability of the electronic documents which can be demonstrated by showing the integrity of the electronics documents system rather than the individual record itself. There is a presumption of integrity if among other things, it is shown that the computer was operating properly. Generally, in considering the system’s integrity, the court may have regard to standards used to ensure the reliability and integrity of the system. They may include such factors as: contemporaneous recording of information and data; routine business data and entry; reliance on the data by the business organization; software reliability; processing verification of data in records; security against unauthorized access; maintaining back-up copies; and proper retention and disposition of electronic records. 42 (emphasis added) Canadian General Standards Board, Standards on Electronic Records as Documentary Evidence (CAN/CGSB 72.34 – 2005 (December 1, 2005)) (footnote 301)
[139] The above criteria are general standards, which “may include such factors” as the eight listed. I interpret this permissive language to mean that some of these factors, and they may vary, will be required in some circumstances, and that perhaps in other circumstances, all eight factors will need to be demonstrated. For example, there has not to date been a general requirement that a party introducing emails was obligated to adduce expert or lay evidence with respect to all eight factors. However, there may be an exceptional case where that would be required. These factors will, of course, be viewed within the requirements of the CEA, specifically Sections 31.1 – 31.8.
[140] The decision in R. v. Oland, 2015 N.B.Q.B. 245 (Walsh, J.) involved a charge of second degree murder against Dennis Oland for the murder of his father, Richard Oland. There were a number of interim decisions, one of which (Ruling #4) involved the admissibility of Call Detail Records (CDR). Specifically, the cellular tower information contained within the CDRs for the cellphones of both father (Rogers’ CDR) and son (Telus’ CDR). The information recorded and stored included such matters as dates and times of calls, calling numbers, duration of calls, subscriber identities, first and last cell towers, etc. This information was produced as a result of Court Orders obtained by police. This is not uncommon. Rogers receives approximately 1500 such Production Orders a year.
[141] Testimony with respect to these CDRs was adduced through Telus’ and Rogers’ security investigators, who are employees in their respective corporate security departments. Telus has its own in-house software to collect the required information to comply with these Production Orders. The Security Officer for Telus testified that Telus records and stores information with respect to its subscriber use of their cell phone in the usual and ordinary course of its business. This information is important to Telus for “billing, customer satisfaction and fraud detection purposes” (para. 13). It is forwarded to the police in an “Excel format” (para. 15). 43
[142] Rogers employed a commercially available software – Cognos – as its search engine to produce the required information. It produced “raw results” into an Excel format. These were produced by an analyst in Toronto. The security investigator was in Montreal – Ms. Gill. She received the raw results and changed them. She amended the format and made both deletions and additions to the documents. In the circumstances of this case, the original data on Rogers’ server (for July 2011) no longer existed. It was expunged after 13 months pursuant to Company policy. What was saved were only the raw results relied upon.
[143] First, Mr. Justice Walsh concluded that although these security investigators “fields are not information technology (“IT”), in my opinion the nature of their work and their years of experience permits them, at the very least, to give reliable evidence as to the very existence of such computer systems … the Court is satisfied that such records exist” (para. 38).
[144] He stated that there is an “inherent reliability” (underlined in original) to business records under Section 30 of the CEA. He concluded that Rogers’ electronic document (CDR) was admissible under Section 30(1) CEA, and was “therefore prima facie admissible for the truth of its content through the testimony of Ms. Gill [security investigator] for Rogers” (para. 45).
[145] Mr. Justice Walsh rejected the argument that because the CDR’s were in fact in a new format (Excel) they were inadmissible under Section 30(10). And with respect to an objection that the CDR had been created during the course of the investigation he stated that this information was recorded and stored in the usual course of business; therefore, Ms. Gill did not create them, rather she was the “gatherer” of them (para. 50).
[146] After finding that the CDR was admissible under Section 30 of the CEA, Mr. Justice Walsh addressed the Electronic Document provisions, specifically Section 31.1 – 31.3. First, with respect to the requirement of authenticity, he cited and relied upon Judge Pociocco’s article, Proof and Progress: Coping with the Law of Evidence in a Technological Age, 2013 11 Canadian Journal of Law and Technology 181 (“Law of Evidence in a Technological Age”), which concludes that the authentication rule in Section 31.1 mirrors the common 44 law; nothing new is added. Thus, the CDR could be authenticated by either direct or circumstantial evidence (para. 56). He therefore determined that the CDR itself, and Ms. Gill’s testimony (security investigator), were sufficient evidence to conclude that the CDR was what it purported to be – “a compilation/collection of electronic records of information related to Richard Oland’s cell phone collected and stored by Rogers in the usual and ordinary course of business” (para. 57).
[147] Mr. Justice Walsh then addresses the best evidence requirements. The Defense had argued that there was no evidence with respect to either Rogers’ computer system or the Cognos software; further, that it was “fallacious” (para. 60) to assume that a computer system always operated properly.
[148] However, Mr. Justice Walsh rejected this argument, concluding that the presumption of integrity under Section 31.3(a) had been met with respect to Rogers’ computer system, although there was only circumstantial evidence before him: 61 The Court understands the Defence complaints as to the lack of direct evidence on the technical, inner workings of Rogers’ computer systems and the associated ‘Cognos’ software and the lack of direct evidence as to quality control and quality assurance related thereto from technically qualified persons. And, of course, in the traditional sense it would be the better evidence. However, for the Canada Evidence Act it is not the only kind of evidence envisioned when it comes to electronic documents. This is to say, with respect, that the Defence insistence on direct evidence from the Crown on these matters fails to come to grips with the Canada Evidence Act’s so-called “best evidence” approach specific to electronic documents and the related “presumption of integrity” provisions, provisions which have been designed to “facilitate the admissibility of electronic evidence” (See R v. Mondor, 2014 ONCJ 135 at para. 33); pragmatic provisions I might add, that recognize that there is not always a need for a phalanx of technical IT oriented witnesses in each and every case when evidence generated by or through computer systems is proffered in a court. … 63 Rogers is one of the “Big Three in the communications industry in Canada. Telus is another. As found before, the 45 evidence satisfies that Rogers made records of the identified information in the usual and ordinary course of its business. As also found before, the bulk of that information is data collected and stored by an automated computerized process triggered by the use of a subscriber’s cell phone. As for that data, I am satisfied on circumstantial evidence that that system was working properly – because it would necessarily be designed and relied upon to accurately record that information given the nature and purposes of that information (i.e. phone usage records kept in the ordinary and usual course of business) and the nature of the business (i.e. by a major communication service provider). As put by a Judge in another cell phone record case: “the evidence satisfies me that, from a business point of view, the very existence of [Rogers] is predicated upon their respective computer information systems being accurate” (R. v. Hall, supra at para. 67). Moreover, here Ms. Gill was in a position in the company (the Security Department) where, she testified, she would be alerted to problems with data collection (i.e. the computer systems). This makes eminent sense given the role her Department plays within the organization. And, no such problems for the relevant period were brought to her attention. 64 The foregoing represents circumstantial guarantees of trustworthiness. In saying that, I fully recognize that the evidence on the operation of Rogers’ computer systems in relation to the source records is minimal. But, in the absence of evidence to the contrary, in my view the Canada Evidence Act really does not demand more in circumstances such as these: Item i., s. 31.3(a) requires only evidence capable of supporting a finding of proper or unimpaired operation of the relevant electronic document system. The proponent has only an evidential burden. (Manual of Criminal Evidence, supra, at p. 1088)
[149] And with respect to the Cognos software, he also concluded that the circumstantial evidence before him was sufficient to conclude that it was operating properly: 72 I find that there are circumstantial guarantees of trustworthiness surrounding the extraction of the information by the ‘Cognos’ software program given its purposes and usage. Ms. Gill, who is not an ‘IT’ specialist, could not testify as to as to the “inner workings”, so to speak, of the software program, nor, for that matter, the “inner workings” of the computer 46 server maintained and operated by Rogers in Toronto. However, the commercially available Cognos software is routinely used and relied upon within Rogers to extract information of the sort here from its source. Again, in cases of Production Orders Rogers has an implicit if not an explicit duty in complying with the Order to reliably extract their source information. As well, the contents of the documents produced comprising the CDR is some evidence that the system was operating properly given the nature of the resulting information, i.e. it did what was expected of it. I have in mind here the visual depictions put into evidence of the Cognos program screens that show the inputs required in order to run the program. In this regard I accept the following: Again, judicial notice can be taken that computers function by downloading information on command. If targeted information is discovered in response to a command that is some evidence of functionality. The very retrieval of the data provides confirmation that the “electronic documents system” was operating properly as it demonstrates that the “electronic documents system” successfully performed the function it was intended to perform. (“Law of Evidence in a Technological Age, supra at p. 206) 73 I recognize that a Rogers analyst actually ran the Cognos software to extract the “raw results”, not Ms. Gill. However, it would be unreasonable to infer, without more, that if the analyst had experienced problems of some sort or was otherwise concerned about the results she would not have alerted the Security Department given the purposes for which the “extraction” of the data was intended. After all, the internal company procedures for responding to Production Orders reveals an understandable team approach to the task, wherein one depends on the other. There is nothing inherently suspect in such an approach that would undermine the circumstantial guarantees of trustworthiness the Court has found exists (see Kon Construction Ltd. v. Terranova Developments Ltd., supra at para. 47). 74 There is circumstantial evidence capable of supporting a finding that the ‘Cognos’ software that was employed for these purposes was operating as expected at the relevant time. It has the hallmarks of functionality. 47
[150] Mr. Justice Walsh concluded that the CDRs met the presumption of integrity under Section 31.3(a) of the CEA: 85 In sum, the Court is satisfied under Section 31.3(a) of the Canada Evidence Act that the presumption of integrity surrounding the CDR has been met by reason of circumstantial evidence capable of supporting a finding that all material times the computer systems or other similar devices used by Rogers’ electronic documents systems were operating properly.
[151] In the circumstances of this matter I will deal first with the issue of authenticity, followed by the best evidence rule and the related statutory presumptions of integrity under Sections 31.1 to 31.8 of the CEA. It will become evident that when addressing these statutory provisions, the same facts, and conclusions of fact, are inextricably intertwined when dealing with both electronic documents and the electronic document systems from which they are derived.
[152] Section 31.1 addresses the issue of authenticity. A party seeking to admit electronic documents must produce evidence that is capable of demonstrating that a document is authentic – that it is, what it purports to be. As previously noted, Judge Paciocco, in the Law of Evidence in a Technological Age, supra, writes that this requirement simply incorporates “the ‘low’ common law authenticity standards”; as a consequence, all that is required is “some evidence that a document is what it purports to be” (page 196). This requirement may be met with either direct or circumstantial evidence. Mr. Justice Walsh, in R. v. Oland, supra, cited Judge Paciocco, and relied upon this standard (para. 56). He concluded that the CDR itself, combined with the testimony of Ms. Gill [security investigator], “is that evidence” (para. 57).
[153] Ms. Pinto thoroughly reviewed approximately 63 ticket transactions (OTIS, ETIS, PNR) with respect to the four Grievors, as well as approximately another 20 ticket transactions with regard to three other employees who were ultimately reinstated. These ticket transactions were recorded and stored in the usual and ordinary course of United’s business. It is undisputed that they are United’s documents. I therefore conclude that these electronic documents are what they purport to be – United’s ticket transactions. 48
[154] Second, is the issue of the best evidence rule set out in Section 31.2(1) of the CEA. An electronic document satisfies the best evidence rule if the integrity of the electronic document system in which the document was recorded and stored is proven. In reference once again to Judge Paciocco’s article, Law of Evidence in a Technological Age, supra, he writes that this best evidence rule does not revive the old common law best evidence rule, most notably with respect to the issue of original documents; rather, he writes “any observable translation of a computer code is sufficient” (page 200). Indeed, the force of this rule is much reduced: “…. The primary role the best evidence provisions of the Canada Evidence Act play is as merely an adjunct to authenticity” (page 200).
[155] Mr. Justice Walsh held that the best evidence rule in 31.2(1) must be “read together” with Section 31.3, the presumption of integrity (para. 58); and specifically, in the circumstances before him, Section 31.3(a). (Section 31.3(a) is also relevant to the current matter). Section 31.3(a), absent evidence to the contrary, presumes the integrity of an electronic document system if there is evidence ‘capable” of demonstrating that at all material times the computer system was “operating properly”. There is no evidence to the contrary before me.
[156] In the circumstances before him, Mr. Justice Walsh acknowledged “the lack of direct evidence on the technical inner workings of Rogers’ computer systems and the associated Cognos software and the lack of direct evidence as to quality control and quality assurance from technically qualified persons” (para. 61). However, he adopted the view that these best evidence provisions are designed to facilitate the admissibility of electronic documents, and do not require expert evidence in all cases. In the circumstances before him, where the evidence of the operation of Rogers’ computer system was ‘minimal’, he concluded that nothing more was demanded than “circumstantial guarantees of trustworthiness” (para. 64).
[157] With respect to the ‘Cognos’ software, Mr. Justice Walsh wrote that Ms. Gill (Security Investigator at Rogers) was not an ‘IT specialist’ and therefore did not testify as to the “inner workings” of the Cognos software, or to the computer server maintained and operated in Toronto (Ms. Gill worked in Montreal) (para. 72). Nonetheless, Mr. Justice Walsh concluded that the Cognos software was routinely relied upon by Rogers to retrieve 49 the information required to comply with the Courts’ Production Orders; these Orders required reliability in the extraction of such information. Further, the contents of the CDR itself was evidence of the computer system operating properly. He quoted once again from Judge Pociocco’s article that the “very retrieval of the data provides confirmation that the ‘electronic document system’ was operating properly” (para. 72). This was because the computer system performed the function it was intended to perform. Mr. Justice Walsh concluded that these were circumstantial guarantees of trustworthiness; indeed, he wrote they are the “hallmarks of functionality” (para. 74).
[158] In the current matter, Ms. Pinto did not give evidence as an expert witness. She is not an IT specialist. She is a Senior Investigator with United’s Corporate Security Department. She did not testify as to the “inner workings” of either United’s computer system or the Apollo reservation system. (More will be said about Ms. Pinto’s evidence in the following section of this Award). However, I conclude that Ms Pinto did provide the sufficient evidence that is capable of supporting a finding that the computer system at United, and the Apollo reservation system, were at all material times operating properly.
[159] As previously noted, Ms. Pinto read through every ticket transaction, including the PNR codes, over 11 days of testimony. Ms. Pinto has worked with precisely these same types of documents over a period of 20 years, including 17 years with the Apollo reservation system (1995 – 2012). She was trained with respect to these documents, first as a ticket agent, as are all ticket agents, then as an instructor, teaching ticket agents, and thirdly, for 13 years, as an investigator responsible for investigating any ticket violations. She had done hundreds of investigations with respect to these type of ticket transactions. The Grievors in their submission, recognize that Ms. Pinto has “some specialized knowledge” (122) with respect to such ticket transactions.
[160] In cross-examination, the Grievors were not able to demonstrate that Ms. Pinto had wrongly interpreted these documents, or that any of these documents contained any errors. Therefore, there is no evidentiary foundation that challenges the reliability or accuracy of these electronic documents or the electronic document systems. Thus, in contrast to the 50 sworn testimony of Ms. Pinto, and the trustworthiness of United’s business records, there is no evidence with respect to the unreliability or the inaccuracy of these electronic documents.
[161] Indeed, the approach of the Grievors has not been to challenge the accuracy of each of these individual document (OTIS, ETIS, PNR) but rather to object to the “nature and character of this evidence” (65). It is to the admissibility of these documents as a whole to which the Grievors object; arguing that they are hearsay, and therefore unreliable, and further, that they do not comply with Sections 31.1 to 31.8 of the CEA.
[162] First, there is no dispute that the documents are United documents. Second, these documents are created by ticket agents, contemporaneous with the events recorded and stored. Third, this data is routinely entered in the usual and ordinary course of United business under Section 30 of the CEA. As Mr. Justice Walsh notes, Section 30 recognizes the “inherent reliability” of such documents. These documents, in particular, are part of the core elements of United’s business –ticket transactions with respect to the reservations and financial information of customers flying on its airline. This requires a high degree of accuracy and reliability both for United and its customers. Fourth, access to United’s computer system requires not only training and knowledge, but entry into the system requires employees to enter their employee numbers and their confidential passwords. I conclude that these factors represent circumstantial guarantees of trustworthiness of United’s computer system and Apollo under Section 31.3(a) of the CEA. Therefore, this evidence is capable of supporting a finding that United’s computer system and Apollo were operating properly.
[163] In addition, or in the alternative, these electronic documents are admissible under Section 31.2(2) of the CEA. This section states that, in the absence of evidence to the contrary, a printout satisfies the best evidence rule if it has been manifestly or consistently acted on, or relied on, as a record of the information recorded or stored in that printout. Judge Paciocco, in Law of Evidence in the Technological Age, supra, described this provision as “unique” because it prescribes a presumption of law, not fact; the provision reads, “a printout satisfies the best evidence rule” (page 210). The rationale for this provision is that if a printout is consistently acted upon as a record of the information recorded and stored, this 51 increases the likelihood that any errors will be discovered and corrected; and therefore such printouts will be highly reliable and will meet the test of integrity to be admitted under this provision.
[164] I have found that these ticket transactions are admissible under Section 30 of the CEA – they are made in the usual and ordinary course of United business. This is an important aspect of reliability. Further, these ticket transaction documents are manifestly and consistently relied and acted upon as a record of the information recorded or stored in these printouts. It is in United’s interest that errors in these printouts would be routinely and expeditiously discovered and remedied. They are a core part of United business. It is a fundamental to United’s business that they are accurate and reliable. I therefore conclude that these printouts meet the requirement of Section 31.2(2) of the CEA and satisfy the best evidence rule under Section 31.2(1).
[165] With respect to United’s computer systems, one of its own programs was called “Fast Air”. Ms. Pinto stated that this was a “mask”, or an “intermediary” system overlaying Apollo, which was instituted in order to make the Apollo reservation system more user friendly for the ticket agents. It offered a menu approach to Apollo. Further, the Apollo information was stored in Galileo. The Grievors argue that these additional computer systems added levels of hearsay, and problems of authenticity, which the Employer had a duty to address. I note that the definition of a computer system (31.8) expressly contemplates a “group of interconnected or related devices” that produces electronic documents in the form of printouts such as those relied upon by United. In her testimony, Ms. Pinto has addressed all these interconnected or related devices. Her evidence is that these electronic printouts, made in the usual and ordinary course of United’s business, accurately set out the ticket transactions involving the Grievors. Once again, I note that the Grievors did not establish in cross-examination any evidence to the contrary. I therefore accept that these documents comply with the requirements of sections 31.1 – 31.8 of the CEA. 52
Ms. Pinto’s Evidence
[166] Next is the Grievors challenge to Ms. Pinto’s viva voce evidence as a whole. Notwithstanding the fact the Grievors have frankly acknowledged that Ms. Pinto has a “specialized knowledge”, the Grievors state that she was not qualified as an expert, and as a result, all her evidence was simply “unadulterated hearsay” (para. 114). Further, her evidence falls within the category of opinion evidence, and therefore, is “based on hearsay upon hearsay upon hearsay” (para. 125). Moreover, she was led in direct examination, with answers being suggested to her. In addition, her testimony with respect to fare rules should not be given any weight because “thousands of pages” of fare rules have not been disclosed. Although this may be “an onerous requirement” (para. 125) this is the result of the numerous ticket infractions that have been alleged by the Company. As a result, the Grievors argue that Ms. Pinto’s evidence is “of no use”, and should be “completely disregarded” (para. 128). Finally, she has no personal knowledge of any of the Grievors’ ticket transactions. She did not directly witness any of them.
[167] A basic principle of law is that a lay witness may not give opinion evidence. A lay witness may testify only to observations within their knowledge. The exception are expert witnesses, who have a specialized knowledge, and are therefore permitted to provide conclusions of fact. In, Sopinka, at p. 774, paragraph 12.9, Modern Statement of Lay Opinion Rule: Helpfulness, there is reference to the Supreme Court of Canada’s decision in R. v. Graat, (1982) 2 S.C.R. 819, in which Mr. Justice Dickson, (as he then was) comments on the distinction between fact and opinion:
Except for the sake of convenience there is little, if any, virtue in any distinction resting on the tenuous and frequently false antithesis between ‘fact’ and ‘opinion’. The line between ‘fact’ and ‘opinion’ is not clear. (page 835)
[168] At paragraph 12.10 Sopinka states that in returning to “broad principles” in R. v. Graat, supra, Mr. Justice Dickson “put the admissibility of such evidence on a sound and straightforward basis:” 53 The witness had an opportunity for personal observation. They were in a position to give the court real help. (page 836)
[169] Continuing at paragraph 12.14 (page 776) Sopinka provides a summary as to when a lay witness’ opinion will be received: Courts now have greater freedom to receive lay witnesses’ opinion if: (1) the witness has personal knowledge of observed facts; (2) the witness is in a better position than the trier of fact to draw the inference; (3) the witness has the necessary experiential capacity to draw the inference, that is, form the opinion; and (4) the opinion is compendious mode of speaking and the witness could not as accurately, adequately and with reasonable facility describe the facts she or he is testifying about. But as such evidence approaches the central issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences. It is always a matter of degree. As the testimony shades towards a legal conclusion, resistance to admissibility develops.
[170] Ms. Pinto testified about United’s rules and policies that prohibit employees from waiving United’s fare rules for themselves, their family and their friends. She explained how the Grievors’ actions violated these rules. She did so by reading and interpreting United’s own business records. She has been employed at United for 20 years, first as a ticket agent, then she taught ticket agents about Apollo, and finally, for the last 13 years she has acted as a Senior Investigator involved in the investigation of ticket transactions that violate United’s waiver and favours policy.
[171] I conclude that Ms. Pinto falls within three of the four above circumstances that permit the acceptance of opinion evidence from a lay witness. First, Ms. Pinto’s experience in using the system, in teaching the system, and in conducting investigations with respect to United’s computer system, and Apollo, places her is in a far better position than this arbitrator to form the conclusions of fact that flow directly from the interpretation of the OTIS, ETIS and PNR documents. This testimony was subject to rigorous and lengthy cross-examination. Second, although Ms. Pinto was not qualified as an expert, she certainly has the experiential capacity to reach those conclusions. As stated, she has 20 years 54 experience with regard to ticketing transactions, including under the Apollo reservation system. She has conducted hundreds of investigations that involve violations of United’s fare policies. Finally, the business documents in this case are complicated. They cannot be interpreted accurately and adequately without resort to Ms. Pinto’s conclusions of fact. Further, there was no evidence in cross-examination of Ms. Pinto that cast any material doubt on her interpretation of those documents.
[172] The Grievors argue, however, that Ms. Pinto did not have personal knowledge of the ticket transactions. That is correct. Ms. Pinto was not personally present to observe each of the alleged ticket transactions made by the Grievors. Thus, they argue her evidence is unadulterated hearsay, and therefore cannot be relied upon with regard to any of the alleged ticket violations.
[173] Finally, with reference once again to Mr. Justice Walsh’s decision in R. v. Oland, supra, expert IT evidence is not a precondition to meeting the requirements of Sections 31.1 to 31.8 of the CEA. The evidence of a security investigator, such as Ms. Pinto, is capable of providing circumstantial evidence that a computer system is operating properly.
[174] Although the ticket transaction documents are hearsay, they may be admitted for the truth of their contents if they meet the requirements of Section 30 and 31 of the CEA. Ms. Pinto was able to establish that these documents met the requirements of these two provisions of the CEA. Further, contrary to the claims of the Grievors, Ms. Pinto did not show any animosity towards them; rather, she remained consistent in her evidentiary task, which was to interpret these documents. She did so with both a professional and calm demeanour throughout her testimony. Her evidence does not amount to multiple levels of hearsay; rather, these documents fall within the exception to the hearsay rule under Sections 30 and 31 of the CEA, and therefore can be admitted for the truth of their contents. 55 Fare Rules
[175] Next, the Grievors raise an issue with respect to United’s “fare rules”. Ms. Pinto testified that the ticket agents enter a command into Apollo with respect to the fare rules and pull up a “tariff”. She explained that this tariff would, for example, display fares between two cities. It would reveal “pages of fares, low to high, with respect to the cost of flights between these two cities” (any cities). It would display the “correct fare for that time period”. The ticket agent would then pick the applicable time period and fare; for example, determining whether the advance fare of 14 days was applicable. They would also choose the fare based code, such as “W”, “L” or “T”, which indicates the fare restrictions that accompany that fare rate. These fares change all the time.
[176] However, similar to the raw data of any tickets that were not printed (the PNR, OTIS and ETIS), none of these past tariffs exist because Apollo is no longer in effect at United, and such information is not retained after a period of 18 months. Although Ms. Pinto is not able to derive the price of a ticket in existence in 2008 between two cities, she is able to derive information with respect to whether or not such fares or fees were collected based upon the PNR history, and the OTIS and ETIS documents. The accuracy of these conclusions have not been materially challenged. Ultimately, Ms. Pinto’s evidence with respect to these documents are a matter of weight.
[177] Further, the Grievors argue that Ms. Pinto was led with respect to this evidence with answers being suggested at certain points. As a general rule, it is permissible to lead a witness with respect to documents. This is a case where there are a plethora of documents. However, if an answer has been suggested to a witness that answer will be given little or no weight.
[178] The Grievors’ next challenge is to claim that all the Company rules and policies are hearsay, and that they are dependant upon subordinate rules, such as fare rules. Further, they argue that Ms. Pinto has no personal knowledge of how these rules or policies have been “promulgated” (para. 184). In addition, they say Ms. Pinto has no personal knowledge as to whether or not the Grievors knew about these Company policies and rules, nor the manner in which they were enforced at the Vancouver Station. 56
[179] Ms. Pinto identified the Rules of Conduct for bargaining unit employees, as well as the Code of Business Conduct. It is worth repeating these: Rules of Conduct for IAMAW Represented Employees Violations of one or more of the following Rules will result in discharge unless mitigating factors are considered applicable:
… 2. Unauthorized deviation from established rules and procedures when providing travel services for one’s self, one’s friends, relatives, or co-workers including, but not limited to: a) creating a fictitious record or price b) holding a seat(s) out of inventory c) refunding of a ticket d) inappropriate waiving of a fare rule or restriction e) inappropriate upgrading of a class of service. …
Our Code of Business Conduct When the Customer is a Friend, Relative or Fellow Employee Employees must be cautious when making decisions regarding travel for friends, relatives and fellow employees. These travelers may not be afforded preferential accommodation as a result of their relationship to a United employee. When providing travel services for yourself or your friends and family, any unauthorized deviation from established rules for pricing, issuance, exchange or refunding of tickets; any waiving of travel restrictions or other terms affecting the applicability of discount fares; and inappropriate upgrades of call-of-service; or any use of our computerized reservation system to improperly remove seats from inventory or block space on United or any other carrier is prohibited. Any such deviation requires the advance approval of your supervisor or manager. 57
[180] Ms. Pinto’s occupation is to investigate any alleged violation of these rules and policies. She has conducted more than a hundred such investigations. The Code of Business Conduct was published to all employees on October 22, 2009 (Ex 4). Ex 89 – 92 are training transcripts for each of the Grievors. They demonstrate, on their face, that each of the Grievors was trained in the Code of Business Conduct, set out in Ex 88. In addition, United’s Pleasure Travel Policy for employees (Ex 85 and 86) was sent to all employees in the 2008 – 2010 time period. They state that a violation of the fare rules will result in discipline up to an including discharge. Further, the Employee 20% discount policy stated that all fare rules applied to this policy (Ex 87). And United’s Policy, entitled Empowerment (Ex 151, Aug 2002), stated that employees were never to “authorize fare rule waivers”. I conclude that these Company rules and policies with respect to ticket violations are produced in the usual and ordinary course of United’s business. As business documents, they fall within the exceptions to the hearsay rule, and are admitted into evidence for the truth of their contents.
Grounds of Dismissal
[181] The Grievors next contend that the termination notices have not satisfied the first ground of Wm. Scott & Co., [1977] 1 Can L.R.B.R. 1 (Weiler), whether or not an employee has given just and reasonable cause for discipline. This may involve dismissal, or discipline short of dismissal – i.e. a disciplinary suspension. The Grievors argue that their termination notices are hearsay and that Ms. Pinto has no personal knowledge of the actual grounds for dismissal (para. 83). In essence, the Grievors argue that they could have been dismissed for good reason, bad reason, or no reason at all.
[182] These dismissals were imposed by local management in Vancouver, specifically, the Vancouver Manager, Nigel Newsome, who was the author of the dismissal notices. Each of the termination notices for the Grievors is identical. For example, the termination notice with respect to Ada Li reads as follows: This discipline is for violation of Rule(s) of Conduct No. (s) 2. Unauthorized deviation from established rules and procedures when providing travel services for one’s self, one’s friends, relatives, or co-workers including, but not limited to: a) creating 58 a fictitious record or price, b) holding a seat(s) out of inventory, c) refunding of a ticket, d) inappropriate waiving of a fare rule or restriction, e) inappropriate upgrading of a class of service. You were involved in ticket transactions for either yourself or co-workers and friends. Tickets were purchased, and then subsequently the flights were changed to different dates, to higher and more expensive booking codes, with no collection of the fare increase due to the company. Further, change fees were waived. Please see the attached for specific examples.
[183] Turning to the testimony of Ms. Pinto, she investigated all the ticket transactions which are the basis of the grounds for the dismissal of the Grievors. She provided United with the information that formed the basis for their dismissal.
[184] Second, she represented the Employer at the Step 3 grievance hearing, supporting the dismissal of the four Grievors for their alleged ticket transactions. She therefore has personal knowledge of the grounds for dismissal of the Greivors.
[185] I accept that the Greivors were dismissed from their employment because of their alleged violations of United’s Rule of Conduct No. 2.
Interviews
[186] The Grievors were interviewed on February 23 and 24, 2011 at the Vancouver station. The Grievors object to the admissibility of the record of these interviews (paras. 206 – 231). Although these interviews may be “potentially inculpatory” (para. 207), the Grievors claim that they were designed as “pressure cookers” (para. 208), and amounted to no more than a “hatchet job” (para. 209). In addition, they assert these interviews were “incompetently performed and botched” (para. 230). Moreover, they say Ms. Pinto neglected to expressly testify that the contents of the interviews were true. Finally, the Grievor’s claim that questions and answers set out in the interviews conflate the past and present with regard to the actual knowledge of the Grievors with respect to United’s rules and policies. For example, if a Grievor answered that they knew of United’s rules and policies, that may have been true at the time of the interview, however, it may not have 59 been true at the time of the alleged ticket transactions. In summary, all of the Grievors statements are once again hearsay, and therefore, the arbitrator cannot base his conclusion on these interviews.
[187] The fact finding investigation interviews are set out in Ex 81 – 84: Ms. Li, Ex 81; Mr. Scott, Ex 82; Ms. Sliacky, Ex 83 and Ms. Thacker, Ex 84.
[188] As stated, during the interviews, Ms. McKeever asked the questions and Ms. Pinto took the notes. At the beginning of each interview, Ms. McKeever read out an introductory passage which advised the Grievors to be “open and honest with us”; and that with respect to some questions, Ms. Pinto and Ms. McKeever already knew the answers. Copies of the alleged ticket transactions were reproduced and were presented to the Grievors. Each Grievor was advised as to which rule or policy had been violated.
[189] In summary, each of the Grievors recalled some transactions but could not recall other transactions. With respect to some transactions they acknowledged that the did not collect the appropriate fees. In some cases they thought that they had the ability to make such a decision to waive fees. None of them stated that they had the permission of a supervisor or a manager to make a decision to not collect the appropriate fees or fares. Ms. Pinto testified that the Grievors were given as much time as they needed to answer the interview questions. With respect to the accuracy of the answers given by the Grievors in their interviews, Ms. Pinto stated in cross examination that, “what was said, was what I typed”.
[190] Ms. Pinto was present for all the interviews. She recorded the answers given by each of the Grievors. Her notes corroborate her evidence. She relied on the notes. That is understandable. The interviews took place more than five years ago. I accept this evidence for the truth of its contents. I do not accept that it is “hearsay upon hearsay upon hearsay” (para. 125). The Grievors’ statements are potentially inculpatory. And there is no evidence before me to support a conclusion that these interviews were designed as pressure cookers, or were a hatchet job, or were incompetently performed. In fact, the evidence is to the contrary. Finally, at least with respect to some ticket transactions, the Grievors are the “authors” of these documents and have admitted to creating these reservations. 60
Actus Reus/Mens Rea
[191] Finally, the Grievors argue that this arbitration board should adopt and rely upon the definition of fraud as found in the Criminal Code of Canada, R.S.C. 1985 c. C-46 ( paragraphs 93 – 107). They cite and rely on the Supreme Court of Canada decision in R. v. Zlatic, [1993] 2 S.C.R. 29, with respect to the following four elements that constitute the offence of fraud: with respect to actus reus, that there is the dishonest conduct and deprivation resulting from this dishonest conduct; and with respect to mens rea, there must be the subjective knowledge of both the dishonest conduct and the potential deprivation. The Grievors claim that the Employer “must prove the actus reus and mens rea elements with respect to each and every alleged transaction” (para. 107) with regard to the dismissal of each of the Grievors.
[192] The Employer replies that this argument is a “unilateral expansion and alteration of the grounds for discipline by the Grievors in an attempt to hold United to a more onerous and different standard of proof – one that requires clear, cogent and compelling evidence of theft or fraud that was done with the requisite intent” (para. 59).
[193] In cross examination, Ms. Pinto was asked if the unauthorized violation of Rule 2 amounted to “fraud”. She replied that the ticket transactions that violated Rule 2 was a “form of fraud, yes”. However, she stated that the Grievors had “not been charged with fraud”; rather they had been “charged with Rule 2 violations”. Further the termination notices with respect to all four Grievors, reproduced earlier, cite specifically Rule 2: This discipline is for violation of Rule(s) of Conduct No. (s) 2. Unauthorized deviation from established rules and procedures when providing travel services for one’s self, one’s friends, relatives, or co-workers …
[194] The Grievors’ terminations were based on the violation of Rule 2. Rule 2 prohibits employees from deviating from the established rules and procedures with respect to providing travel services for themselves, their family and friends, and their co-workers. There is evidence that this rule was brought to the attention of all employees, including the Grievors, through general correspondence (Ex 4), and through specific training (Ex 89 – 92). Ms. Pinto’s evidence demonstrated specific instances in the ticket transaction documents 61 (OTIS, ETIS and PNRs), where the Grievors, identified by their respective employee file numbers, failed to collect the appropriate fares and fees. They, or their colleagues, family or friends, benefitted from such changes. The Grievors argue that there is the possibility that someone else could have used the Grievors’ file numbers, and their passwords, and that these other persons are therefore responsible for all of the alleged violations. Ms. Pinto’s answer in cross-examination was that she agreed that such a scenario was “possible”. However, no further specific instances were put to Ms. Pinto in cross-examination; and in their interviews, none of the Grievors suggested that other employees had used their employee file numbers, or their passwords, to create the reservations set out in the ticket transactions. Therefore, this “possibility” is mere speculation. Alternatively, Counsel argues that these ticket transactions may be the result of the Grievors’ negligence, mistake or misunderstanding of the fare rules (para. 255).
[195] It is well within the control of the Grievors to take the stand and give evidence that someone else, not them, was responsible for all these transactions, and/or, that all these transactions were the result of their misunderstanding of the fare rules. However, these possible explanations lie with the Grievors, not the Employer.
[196] As stated, I agree with the Employer that much of the Grievors’ submission constitutes an insufficient evidence motion, not a no evidence motion. A clear example are the Grievors’ interviews. To allege that these interviews amounted to no more than a “hatchet job”, and were conducted “incompetently”, is clearly a matter of weight; and one that requires more than a mere allegation.
Conclusion – No Evidence Motion
[197] I have provided this comprehensive overview of the evidence in response to the Grievors’ expansive no evidence motion. One of the purposes for doing so is to provide the Grievors with the opportunity to elect to call evidence; including the opportunity, if they so chose, to take the witness stand and address the violations of which they are accused. 62
[198] In conclusion, I find that the evidence adduced by the Employer has established a prima facie case. Therefore, the Grievors must elect whether or not they will call evidence. If they do so the hearing will continue. If they elect not to call evidence, the evidentiary portion of this hearing will have concluded. They will then argue their case based upon the Employer’s evidence, which will constitute all the evidence in this matter. The evidentiary standard will be the balance of probabilities.
[199] However, this does not end the matter. The Grievors have also made alternative arguments with respect to document production and disclosure, document retention, evidentiary rulings, United’s litigation file, and the certification by an independent forensic expert with respect to the origin, source, authenticity and any changes made to documents sought in its May 2014 demand for documents. I will now deal with these matters.
Documents Motion
[200] The Grievors argue that United’s document disclosure and production can be characterized in the following manner: first, its failure to comply with the Arbitrator’s production orders, for example, training records and fare records; second, its failure to properly authenticate ticket transactions; third, its failure to preserve relevant documents (i.e. fare rules); fourth, its failure to produce documents that are not under its control or power (i.e. fare rules); fifth, its failure to disclose documents in a timely fashion (Exhibits 148, 149 and 152); and sixth, its failure to adequately explain these omissions (recited in paras. 8, 55 and 315 of the Grievors’ submission). They say these failures have been “highly prejudicial” generally, and to their cross-examination specifically. As a result, they seek an “extraordinary remedy” (para. 10); that is, that their grievances should be upheld without any further hearing of this matter. In addition, they should be reimbursed for their legal costs, and they also reserve their right to amend their claim for compensation to include “punitive, aggravated and other damages” (para. 11).
[201] As stated, the Canada Labour Code, Sections 16 (a), (b), (c) and f(1), authorizes an arbitrator to order the production and disclosure of documents, and to make interim rulings. 63
[202] The Grievors have cast a very wide net with their demand for documents, dated May 25, 2014. This demand was dealt with in a conference call on September 3, 2014. It is invariably the case in arbitration that an initial demand for documents may well be overbroad, however, after that initial demand, the production and disclosure of documents continued to take place throughout the arbitration hearing. Arbitrators will exercise their discretion liberally in such circumstances. Arbitrations, wherever possible, do not want the exclusionary rules of evidence to be determinative of any particular issue. Each side will be given every opportunity to “tell their story”. Neither side is permitted the strategy of attempting to restrict the issue of relevance within the parameters of the framework of their own case. Relevance and admissibility are determined by the governing labour relations statute, and the arbitral law. And importantly, evidentiary rulings are informed by the Courts jurisprudence and the rules of natural justice.
[203] The documents that were initially ordered were the Employer’s reliance documents and those directly relevant to the conduct of the Grievors with respect to their alleged ticket transactions. Both parties in their submissions, and in the hearing, implicitly and expressly understood that the process of document disclosure was an ongoing process in this matter. During the course of Ms. Pinto’s evidence, documents that were potentially relevant were ordered disclosed. The Employer complied by doing a search for any potential documents, and if such documents existed, they were disclosed. This process is what took place over the course of this hearing. The approach of the Grievors was to demand every possible document that may have been marginally relevant, and to object to any document which the Employer sought to introduce; which was their right.
[204] In addition to this general approach of the Grievors, specific document issues arose, as is set out in their no evidence motion. First is the issue of raw data. This refers to the data set out in OTIS, ETIS and PNR documents. United has not retained those documents with respect to ticket transactions between 2008 – 2010 where no violations arose, either in respect to these four Grievors, or the seven initially terminated, or the other seven individuals who were part of the random audit, or the bargaining unit as a whole. Apollo was discontinued at United in 2012, and documents were preserved for a period of only 18 64 months. United has no access to Apollo. The Grievors understand this, but do not accept it. They say that all of this raw data ought to have been preserved.
[205] The objective of the Grievors in this case is to impeach the Employer’s documents, specifically, the ticket transactions which were authored by the Grievors, because the Employer has not produced and preserved documents for a two year period that demonstrate all those ticket transactions where there were no violations of the Company’s policies or rules. Essentially they argue that the mere absence of such documents is prejudicial. They are of course entitled to make such an argument. However, I conclude that there has been no misconduct by the Employer with respect to its inability disclose or preserve such documents that would warrant the outright dismissal of the Employer’s case. United’s policy of not retaining these ticket transaction documents longer than 18 months is not an unreasonable policy and I conclude that United has made good faith efforts to provide all existing documents.
[206] Second, I have dealt with the authentication of the ticket transactions under the CEA. I have found that these documents meet both the definition of documents made in the usual and ordinary course of business, under Section 30, and further, that they comply with the requirements for electronic documents under Section 31 of the CEA.
[207] Third, the Grievors argue that some employee file numbers were not disclosed. This is true. The Grievors, at para. 29, of its demand for documents, dated May 25, 2014, asks for, “Employee identification numbers at the Vancouver station”. This was a demand for the identification numbers of approximately 70 – 80 employees. The Employer stated that these employee file numbers were confidential. Further, the relevance of all employees file numbers was not established, specifically, those employees that were not involved in any of the alleged ticket transactions.
[208] There are two things to note. First the Grievors had in their document brief, entered into evidence as Ex A, for the purpose of identification, an employee telephone list for the relevant period in 2009, which was actually a list of all employee file numbers they had requested. Second, Ms. Pinto described the initial investigation as “snowballing”, by which she meant that while tracing each of the Grievors’ ticket transactions by way of their PNR 65 reservation history, other employee file numbers would arise with respect to the same transaction. Ms. Pinto would identify those ticket agents by their employee file numbers. The participation of these other ticket agents in any alleged violation ultimately proved not to be material to that violation – i.e. they did not benefit from the transaction. At no point during the hearing was Counsel for the Grievors compelled to ask for the name of any employee file number that appeared in any of the ticket transactions in evidence because the employee file numbers were already in their possession in the form of the telephone directory. And as set out in their submission (paras. 247, 249 and 251), the Grievors have identified all the potential relevant ticket agents involved in these ticket transactions.
[209] Fourth, the Grievors claim that Ex 148, 149 and 152 were not disclosed in a timely way. They were introduced in re-examination by the Employer. Ms. Pinto described Ex 147, 148 and 149 as “cheat sheets” to enable ticket agents to better understand the Apollo reservation system. There is nothing new in these documents. They are helpful guides to the existing ticket transactions entered into evidence. It would have been helpful to have them earlier. After re-examination, the Grievors were given the opportunity to conduct a re-cross-examination (sur cross). The veracity of these documents was not challenged.
[210] Ext 152 was the anonymous email, dated December 16, 2010, that commenced the investigation into Ms. Thacker’s ticket transactions. This email sets out the referral of this matter to the Ethics and Compliance Department, a part of United’s Legal Department; specifically, to Ms. McKeever. This email corroborates the existing testimony of Ms. Pinto. Counsel for the Grievors re-cross-examined with respect to it; nothing new arose.
[211] Fifth, Counsel for the Grievors, at paras. 287 and 289, complains that documents related to the station audit, and the random audit of seven other employees, have not been produced. This refers to the part of Ms. Pinto’s evidence, where during the investigation, she and Ms. McKeever ran queries with respect to seven other employees (the random audit) to determine whether “everyone else was doing the same thing” with respect to ticket transactions as the Grievors. The station audit consisted of two basic reviews: first, a review of Boarding Compensation Vouchers; these are vouchers given to customers who voluntarily decide to take a later flight; and second, cash voids, with respect to baggage 66 issues. Both present the opportunity for theft of monies. The conclusion was that there were no “outliers” in Vancouver with respect to either the random audit or the station audit. No documents, however, were kept with respect to either of these two audits. The fact that such documents have not been retained provides the Grievors with the opportunity to argue that Ms. Pinto’s vive voce testimony ought to be given less weight with respect to this aspect of her investigation. Indeed, that is an argument that is open to the Grievors with respect to any corroborating documents that have not been retained.
[212] Sixth, is the June 15, 2015, email sent to Counsel for the Grievors and to this Arbitrator. On June 10, 2015, (Day 8 of the hearing), Counsel for the Grievors commenced his cross-examination of Ms. Pinto. He asked a series of question of Ms. Pinto with respect to the training documents (Ex 88 – 92). These documents canvas the online training the Grievors had received over the course of their employment. The specific issue was training with respect to United’s Code of Business Conduct, in particular, the subject area with respect to “waivers and favours”, as set out in Ex 88 and Ex 4. Ms. Pinto stated that she received these training documents from the Employer’s Training Department. She agreed that she had no personal knowledge as to whether or not the Grievors had actually taken any of the courses set out in their respective training transcripts. The training transcript for each Grievor reveals a course described as “TL/76 November 2009 Code: tl_ 1109 – v.1”. Ms. Pinto stated that this is the course with respect to the Code of Business Conduct set out in Exhibit 88 and Exhibit 4. Counsel for the Grievors asked, and I ordered, that the Employer search for any additional documents with respect to training. Cross-examination continued on June 10 and 11, 2015. Three more days were scheduled, September 1, 2 and 3, 2015. Only September 1 and 2, 2015, proceeded and were primarily devoted to cross-examination. There was a short re-examination and re-cross examination.
[213] Several days after the hearing adjourned, on June 11, 2015, Counsel for the Employer, on June 15, 2015, forwarded an email confirming that lesson tl_ 1109 – v.1, recorded in Ex 89 – 92 of the training documents for the Grievors, was devoted to the Code of Business Conduct. An email chain (five emails) demonstrated that Ms. Pinto had requested these training documents in April and May 2015. The following day, June 16, 2015, Counsel for the Grievors objected to the email having been disclosed to this arbitrator 67 at the same time it had been disclosed to him. He states in his submission, paras. 278 – 284, that this direct disclosure to the arbitrator was an attempt by the Employer to “shore up its witness (and its case) outside of the context of the hearing” (para. 279).
[214] Counsel for United and Ms. Pinto, at the request of Counsel for the Grievor, and at my instruction, were required to determine if there were any further training documents with respect to the Code of Business Conduct, and their relationship to the training transcripts. This search required Counsel for the Employer and Ms. Pinto to communicate with one another with respect to the production of any such documents while she was still under cross-examination. United made this attempt, and it was confirmed in this email, that the Grievors’ training included the Code of Business Conduct. This information was already in evidence in Ex 4 and 88, in conjunction with Ex 89 – 92.
[215] Ultimately, however, the Employer chose not to enter into evidence these documents. The Grievors did not object. Although United’s Counsel ought to have forwarded these emails to Counsel for the Grievors first, none were entered into evidence. Forwarding the exhibits directly to me was a procedural error. There was no improper purpose in doing so. There was no prejudice to the Grievors.
[216] However, the Grievors now claim that notwithstanding these emails are not part of the evidentiary record, they nonetheless form part of United’s “litigation file”. They state that the word “file” should be interpreted in the “broadest possible sense” (para. 281). They argue that this disclosure was intentional, and thus, the Employer has waived privilege over their entire litigation file. Therefore, “United’s entire litigation file” must be disclosed (para. 284).
[217] As stated, Counsel for the Grievors has continually made demands for documents throughout this hearing. At para. 74 of his submission he claims that “…United has intentionally failed to disclose and produce relevant documents and failed to comply with the oral order of the arbitrator (some of which were on consent) – in spirit and in letter”.
[218] Moreover, in oral argument, Counsel asserted that United has acted in bad faith with regard to the production and disclosure of documents; and that this conduct has amounted 68 to an “abuse of process”. Further, he argued that “United has acted in bad faith with a view to sandbagging the Grievors”. In addition, he contends that there has been the “deliberate destruction of documents by United in furtherance of sandbagging the Grievors”.
[219] First, it should be stated that Counsel for United, Eric Mennel, conduct in this matter has met all professional and ethical standards. Mr. Petersen, notwithstanding his allegations, has on more than one occasion confirmed that he is not making any personal allegations against Mr. Mennel. [220] Second, I do not accept Counsel for the Grievors claim that United has sought to deliberately hide documents or destroy them in an attempt to “sandbag” the Grievors; or that United has acted in bad faith, or that in any other way its conduct has amounted to an abuse of the arbitral process.
[221] Third, are the issues of privilege and waiver.
[222] All relevant and probative evidence is admissible in court and in arbitration proceedings; that is the cornerstone of the administration of justice. However, notwithstanding that there may be evidence that is relevant and probative, such evidence may nonetheless be inadmissible because of the doctrine of privilege. Privilege protects certain classes of communications.
[223] There are two main categories of privilege. First, is prima facie or class privilege. An example is solicitor/client privilege. Second, is case by case privilege. In such circumstances, there is no prima facie protection with respect to communications, and the party claiming the privilege must meet the criteria set out in the Wigmore test. (R. v. Gruenke [1991] 3 S.C.R. 263, R. v. McClure [2001], 1 S.C.R. 445, Blank v. Canada (Minister of Justice) [2006] 2 S.C.R. 319).
[224] Counsel for the Grievors does not assert that solicitor-client privilege is at issue with respect to Mr. Mennel’s email of June 15, 2015. I note that only a client, and not the solicitor, may waive solicitor-client privilege. Rather, Counsel for the Grievor demands United’s entire litigation file as it is “broadly defined”. I take this to be an issue of litigation privilege, which he argues United has waived. 69
[225] Litigation privilege protects documents from disclosure to an opposing party if they have been made in the course of a legal proceeding. This rule of exclusion applies under the following two circumstances: first, the document was created when there was a reasonable prospect of litigation; and second, the dominant purpose of the document was in furtherance of this litigation (Hamalainen v. Tippola, (1991) 62 BCLR (20) 254; Blank, supra).
[226] The British Columbia Court of Appeal in Doman Forest Products Ltd., v. GMAC Commercial Credit Corp., (2004) 36 B.C.L.R. (4th) 70; 2004 B.C.C.A. 512 addressed the issue of when privilege has been waived; where there is an implied intention to do so, and fairness requires it:
[12] Solicitor-client privilege, which protects the fundamental civil and legal right of citizens to communicate in confidence with their lawyers, will not be lightly abrogated: Desconteaux v. Mierzwinski, [1982] 1 S.C.R. 860 at 875. IT will, however, be considered waived when a party makes its state of mind material to its claim or its defence in such a way that to enforce the privilege would be to confer an unfair litigation advantage on the party claiming it. As McLachlin J., then a member of the Supreme Court of British Columbia, explained in S. & K. Processors Ltd., v. Campbell Avenue Herring Producers Ltd. (1983), 45 B.C.L.R. 218 at 220-21, 35 C.P.C. 146 at 148-49 (S.C.): Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege: (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost: Rogers v. Hunter, [1982] 2 W.W.R. 189, 34 B.C.L.R. 206 (S.C.). … As pointed out in Wigmore on Evidence, (McNaughton Revision, 1961), vol. 8, pp. 635-36, relied on by Meredith J. in Rogers v. Hunter, supra, double elements are predicated in every waiver – implied intention and the element of fairness and 70 consistency. In the cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive the privilege at least to a limited extent. The law then says that in fairness and consistency it must be entirely waived. In Rogers v. Hunter, the intention to partially waive was inferred from the defendant’s act of pleading reliance on legal advice. In Harich v. Stamp (1979), 27 O.R. (2d) 395, 11 C.C.L.T. 49, 14 C.P.C. 246, 59 C.C.C. (2d) 87, 106 D.L.R. (3d) 340 (C.A.) [leave to appeal to S.C.C. refused [1980] 1 S.C.R. xii], it was inferred from the accused’s reliance on alleged inadequate legal advice in seeking to explain why he had pleaded guilty to a charge of dangerous driving. In both cases, the plaintiff chose to raise the issue. Having raised it, he could not in fairness be permitted to use privilege to prevent his opponent exploring its validity. (para. 12)
[227] Returning to the email of June 15, 2015, Counsel for the Grievors wanted information that the training lesson identified as TL-1109 on the Grievor’s transcripts was also the lesson identified as TL 17/76. This was confirmed in Mr. Mennel’s email of June 15, 2015, and copied to both Grievors’ Counsel and the Arbitrator. This was in addition to Counsel’s original and subsequent demands for all relevant training documents. Mr. Mennel’s response, and email chain requesting this information were not admitted into evidence following Counsel for the Grievors’ objection to them. It was the Employer who chose not to introduce them into evidence. Counsel for the Grievors did not object to this decision to omit them from evidence in these proceedings. And, he did not make any further demand for training documents. What he has done instead is to demand United’s entire litigation file, stating that June 15, 2015 emails, should in fact be deemed, or construed as a waiver of United’s litigation privilege.
[228] First, at the relevant time Ms. Pinto was testifying in cross-examination to facts in issue – specifically, the Grievors’ training transcripts. The Employer had been repeatedly accused of not properly searching for, and producing documents. This email confirmed the information requested by the Grievors, and the email chain (April and May 2015) set out United’s efforts to seek this information. Second, I requested that the Employer seek the information requested by Counsel for Grievors, and disclose it. The information requested 71 was not part of any litigation file, it was a relevant fact in dispute. However, disclosing the emails requesting the information was both prudent and reasonable. It was prudent because the witness was under cross-examination and this communication was disclosed to all. And it was reasonable given the attacks by Counsel as to United’s alleged improprieties with respect to searching and producing such documents.
[229] In any case, I do not find that Counsel for the Grievors demand for information and documents with respect to Grievors’ training, and my request that they produce all such information and/or documents, and the emails disclosing the search for that same information, can in any way be construed or deemed as a waiver of United’s litigation privilege – either expressly or implicitly.
[230] Moreover, there is no issue of fairness in these circumstances. Counsel for the Grievors is entitled to all the Grievors’ training records. They had been produced. He asked for more information and records. These were produced, along with additional emails with respect to his request for this information and/or documents. Counsel for the Employer did not introduce this information/documents into evidence. Counsel for the Grievors did not object. He made no further request for training information/documents. As a result, there is no prejudice to the Grievors.
[231] The next claim of the Grievors, set out at paras. 155, 277, 303 and 304, is that United’s conduct has denied them a “fair hearing” because United has deliberately destroyed documents. It raises a claim in spoliation.
[232] The Employer argues that in order to establish a claim for Spoliation there must first be evidence that documents were intentionally destroyed or disposed of; second, that such evidence was relevant to the contemplated litigation; and third, that a reasonable inference can be drawn that the evidence was destroyed or disposed of in order to affect the litigation (Dyk v. Protec Automotive Repairs. [1997] B.C.J. No. 1895 (B.C.S.C.); 151 D.L.R. (4th) 374). [233] I have already found that there is no factual basis on which to conclude that any relevant documents were intentionally destroyed or disposed of by United. This is purely speculation or conjecture by Counsel for the Grievors. Thus, I do not hesitate to conclude, 72 that in the circumstances before me, the grounds for a claim of spoliation have not been met.
[234] Next, the Grievors claim that they were prejudiced by the denial of an adjournment in order to deal with the issue of the disclosure of documents. As stated previously, the Employer called one witness who testified over a period of 11 days, four of which were under cross-examination. Counsel for the Grievors accurately described this hearing as “acrimonious” (para. 1).
[235] Counsel for the Grievors objected to most documents, as well as to many aspects of Ms. Pinto’s evidence. He has described her evidence as “double, triple and quadruple hearsay” as well as “conjecture and speculation”.
[236] The hearing commenced on October 2014 and proceeded until September 2015 (Argument on these motions was heard on April 7, 2016). There were many months in between these hearing dates. Over this time period there were multiple requests for documents, and accusations by Counsel for the Grievors that it was improbable that such documents did not exist. Counsel refers to the lack of documents such as documents related to the station audit, the random audit, the investigation, and raw data. He argues that the lack of these documents has been “highly prejudicial” to his cross-examination. During cross-examination, Counsel, therefore, requested a further adjournment based upon his same demand for documents, all in furtherance of his view that such documents ought to exist, or alternatively, that they had been deliberately destroyed. I did not accept Counsel for the Grievors claim that United has deliberately concealed or destroyed documents. I therefore declined to grant an adjournment on that basis. Throughout this hearing, I have found no factual basis for Counsel for the Grievors claim that any documents have been deliberately concealed, destroyed or altered.
[237] I find that United has not breached any production orders I have made, nor have they intentionally concealed documents or destroyed them “in order to sandbag the Grievors”. Further, they have not waived privilege over their “entire litigation file” as broadly defined by the Grievors. As a consequence, and even assuming that I have jurisdiction to make such an order, there is no factual basis to order an independent forensic 73 examination of all documents requested by the Grievors in their May 2014 demand for documents. Finally, there is no basis for an award of legal costs with respect to the Grievors’ no evidence motion or for the legal costs incurred by them to date with respect to this arbitration hearing. All such remedial demands would constitute extraordinary remedies that are not supported by the circumstances before me.
Conclusion:
[238] The Grievors argue that the evidence adduced by the Employer amounts to no more than hearsay and opinion evidence – specifically with respect to the ticket transaction documents and Ms. Pinto’s viva voce testimony. Moreover, they say the Employer has intentionally concealed or destroyed relevant documents in this matter. It asks for the exceptional remedy that the Employer’s case be summarily dismissed and that they be awarded their legal costs.
[239] Hearsay and opinion evidence are normally excluded in an adjudicative proceeding (although statutorily admissible in labour arbitration) because of their inherent unreliability and lack of probative value. However, I have ruled that United’s ticket transaction documents meet the requirements of Section 30 and 31 of the CEA and, thus, are admissible for the truth of their contents. In addition, I have determined that United has not misconducted itself with respect to the production and disclosure of documents relevant to this proceeding.
[240] Notwithstanding the Employer’s argument that much of the Grievors’ no evidence motion is in fact an insufficient motion, I have addressed their application on the former basis. I do so specifically to provide the Grievors with the opportunity to call evidence. As a result, the Grievors have the ability to re-argue the issues they have raised in their no evidence motion. Finally, the extensive overview of the evidence required to fully address the Grievors’ “no evidence motion” is a good illustration as to why the mandatory election process is the preferred policy with respect to such no evidence motions in labour arbitrations.
[241] It is so Awarded. 74
[242] Dated at the City of New Westminster in the Province of British Columbia this 12th day of September, 2016. Stan Lanyon, Q.C. 75 76 77 78 79 80