Thacker et al. v. IAMAW, District Lodge 140 and United Airlines, Inc.
2016 CarswellBC 2569 (Lanyon)
This decision arose out of the four Grievors’ no-evidence motion after 11 days of hearing in a dismissal case. The Grievors were Customer Service Representatives at Vancouver International Airport. The Employer Airline claimed that the Grievors had taken advantage of its rules relating to ticket changes and dismissed the Grievors.
The case was “document heavy.” A large portion of the Employer’s evidence consisted of copies of printouts of ticket transaction documents from United’s reservation system, which, at the time of hearing, no longer was in service. These were electronic documents under the Canada Evidence Act (“CEA”). United’s only witness was an investigator from its headquarter in Chicago who had been involved in the investigation. She had no personal knowledge of the transactions she testified about. The Arbitrator permitted these and other documents to be entered, largely without proper authentication (at the time they were tendered), over the objections of the Grievors. Many were admitted as “business records.” It is clear that an arbitrator has the authority to admit evidence, including hearsay, even though such evidence may not be admissible in a court of law, for example, under the Canada Labour Code (s. 60 and 16).
The Arbitrator noted that there are two approaches to no-evidence motions. The mandatory approach, which is the practice among others in Ontario, “requires the party making the no evidence motion to elect whether to call evidence prior to bringing the motion itself.” The discretionary approach, which is the practice among others in BC, “leaves the question of an election to call evidence to be decided by the arbitrator on a case by case basis.” In BC, there is, as well, a distinction between a no-evidence and an insufficient evidence motion, in which case the moving party is not permitted to call evidence (Surfwood Supply Ltd v. General Alarms Ltd.); an approach adopted by the BC Labour Relations Board and BC arbitrators.
Based on the (2001) decision of the BC Court of Appeal, Birkenhead Resorts Ltd. v. Bemister, the Arbitrator expressed the view that Surfwood Supply had proven of dubious benefit:
112 … 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 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.
Nevertheless, the Arbitrator permitted the Grievors to call evidence if their no motion failed.
The Grievors argued that the totality of United’s evidence – ticket transaction records, other documents and viva voce testimony – were exclusively hearsay and could not be relied upon to establish a prima facie case (Girvin v. Consumers’ Gas Co., 1973 CarswellOnt 281, [1973] O.J. No. 2323, [1973] O.J. No. 814, 1 O.R. (2d) 421, 40 D.L.R. (3d) 509). In Girvin, the Court concluded that an employer could not rely exclusively on hearsay evidence to establish just cause. In British Columbia Maritime Employers Assn. v. I.L.W.U., Local 500 [2001] C.L.A.D. No. 450, 100 L.A.C. (4th) 318, 66 C.L.A.S. 103, arbitrator Munroe found that hearsay evidence was admissible for the purpose of establishing a prima facie case.
The Arbitrator stated that he would “review the ticket transactions, and [the investigator’s] evidence, on the basis that the exclusive reliance on hearsay evidence amounts to no evidence” (Para. 120).
The Arbitrator held that each ticket transaction record, which were, in fact, “hard copy” photocopies of three separate documents (as opposed to the underlying data) – an accounting record, an electronic audit coupon and a passenger name record – were business record for the purposes of the CEA. Despite the fact the copies were generated in the course of the alleged investigation of the Grievors, the Arbitrator concluded that:
- … these documents were not originally produced, constructed or developed during [the] 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.
The Arbitrator also concluded that the records were electronic documents as set out in the CEA. He determined that the records had been authenticated based hearsay evidence of United’s only witness, the investigator, whom, he found, provided sufficient evidence of the functioning of the computer reservation system. Other documents, for example, United’s alleged rules, were admitted as “business records.” Ultimately, the Arbitrator dismissed the no evidence motion.
Stay tuned for the continuation ….