Arbitrator Clarifies Rule on Subsequent-Event Evidence

A recent arbitration decision confirmed that the admissibility of subsequent-event evidence is dependent on its relevance to the merits of the case.

The grievor, a Labourer/Truck Driver for the City of Hamilton, underwent surgery. As a result of the procedure, he developed ongoing foot pain and chronic back pain. These ailments kept the grievor from attending at his employer’s labour-intensive workplace.

The City accepted the grievor’s absences as sick leave until his claim for long term disability (LTD) benefits was denied, at which time it was requested that he return to work. The grievor did not do so; instead, he submitted contradictory medical certificates, some stating that he was fit to return to work and others stating that he suffered from ongoing pain and was under the care of a surgeon and physician.

The City requested on three occasions that the grievor complete an independent medical examination as well as a functional abilities examination to determine under which conditions a return to work would be possible. However, the grievor did not attend at any of these assessments, nor communicate with his employer. It was alleged that a medical certificate of inability to attend work due to psychiatric/psychological stress was submitted, but this was never confirmed.

In due course, a non-disciplinary termination was effected in accordance with the collective agreement. The collective agreement provided that an employee may be terminated for being absent without leave without sufficient reason, frustrating the employment contract, and abandoning a position.

The Canadian Union of Public Employees, Local 5167 grieved the denial of LTD benefits and the termination.

At arbitration, the employer raised a preliminary objection to the admittance of subsequent-event evidence: psychiatric or psychological assessments of the employee that had been completed post-termination. The City argued that it would be prejudiced by not having seen the evidence previously and by not having had the opportunity to test its veracity. It also submitted that such evidence was irrelevant, as it did not speak to the reasonableness of the decision to terminate the grievor and deny his LTD benefits at the time these decisions were made.

For its part, the Union sought reinstatement of the grievor without a return to work based on the position that the grievor is totally disabled. The Union also stated that pre- and post- termination evidence, which demonstrated that the employer was aware of the grievor’s psychological/psychiatric conditions, was relevant to establish that the grievor suffered from certain disabilities.

Ultimately, Arbitrator Surdykowski determined that any evidence of the grievor’s psychological condition that shed light on the reasonableness of the employer’s decisions was admissible, even if this evidence was generated subsequent to the events in question.

The importance of this decision lies in the Arbitrator’s treatment of a well-established principle applicable to both labour and employment dispute resolution. In Cie minière Québec Cartier v. Quebec (Grievances arbitrator), the Supreme Court of Canada established that in order to preserve finality and fairness for all parties involved, evidence that is generated subsequent to the impugned decision is inadmissible for the purposes of

determining the justness or reasonableness of the decision in issue, unless it sheds light on that decision at the time the decision was made and implemented. Previously, this rule had generally been applied only to disciplinary grievances. Arbitrator Surdykowski has now clarified that the rule applies equally to non-disciplinary grievances.

This decision is of assistance to employers as it serves to clarify the application of the principle in Québec Cartier. It also provides certainty to employers that post-discharge evidence will only be considered where it sheds light on the decision to terminate at the time that decision was made.