Izrailov v. Greyhound Canada Transportation Corp.

Izrailov v. Greyhound Canada Transportation Corp.
Collection
Canadian Human Rights Tribunal
Date
2020-07-29
Neutral citation
2020 CHRT 22
File number(s)
T1853/8312
Decision-maker(s)
Luftig, Olga
Decision type
Ruling
Decision status
Interim
Grounds
National or Ethnic Origin
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2020 CHRT 22
Date: July 29, 2020
File No.: T1853/8312
Between:
Dmitri Izrailov
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Greyhound Canada Transportation Corp.
Respondent
Ruling
Member: Olga Luftig
Table of Contents
I. Background 1
A. The Disputed Documents 2
B. The applicable law 3
C. The Hours of Service Audits 5
D. Documents admitted on the consent of the parties 5
II. Disputed Documents which were ruled on at the hearing 5
A. Disputed Documents HR1-36, HR1-39, HR1-41, HR1-42, HR1-44, HR1-45 and HR1-46 – Hours of Service Audits 6
(i) Analysis: Disputed Documents HR1-36, HR1-39, HR1-41, HR1-42, HR1-44, HR1-45 and HR1-46 15
B. The Hours of Service Audits 15
C. The Driver Audit Spreadsheet 17
D. Disputed Documents R2-57, R2-58, R2-59, R2-60, R2-61, R2-63, R2-64; R2-65; R2-68, R2-69, R2-70, R2-71, R2-72; and R2-74, R2-75, R2-76, R2-77 20
(ii) Analysis 23
E. Other Disputed Documents 25
(iii) Analysis 27
F. Other Disputed Documents: C1-9 28
(iv) Analysis 29
G. Other Disputed Documents: R4-135, R4-169, and R4-176 30
H. Other Disputed Documents: HR1-52 33
I. The December 2, 2016 Tribunal letter to the parties and post-Ruling submissions 34
III. Ruling 35
I. Background
[1] When the orders at the end of this Ruling were rendered, the hearing for the Complaint had taken place from February 9 to February 27, 2015 and November 16 to 18, 2015. The next hearing dates were scheduled for December 14, 2016 to December 16, 2016, for the parties to present their final arguments and submissions.
[2] The usual procedure once parties have closed the calling of evidence portion of their cases, but before they submit their final arguments and submissions, is for the parties and the Tribunal, including the Tribunal’s Registry Officer present at the hearing, to verbally go through each of the parties’ Books of Documents (also called Exhibit Books) and any loose documents, and refer to each document one by one and state whether the document was admitted during the hearing or not. During the hearing, the Tribunal Registry Officer in attendance is meant to keep track of documents which are admitted into evidence as the hearing unfolds. The parties are also expected to keep track of the documents admitted into evidence, since they rely not only on testimony but also on the documents to establish their case.
[3] Once agreement is reached on which documents were admitted, the parties and the Tribunal remove from the Books of Documents all those documents which were not admitted. This is done so that the parties do not rely in their final arguments on documents which were not admitted and so that the hearing Chair does not refer to or take unadmitted documents into account in the final Decision.
[4] If there is a dispute about whether a document was admitted into evidence, the Tribunal Registry Officer will also look at his record to see what it shows, and after hearing the parties’ submissions, the Tribunal chair will issue a ruling to settle the dispute.
[5] In the hearing of this inquiry, this procedure was not precisely followed because what had originally been scheduled as the last hearing dates in November 2015 were adjourned before their scheduled end in order to deal with an evidentiary issue which arose during the cross-examination of the Complainant’s last scheduled witness. The issue of which documents had been admitted into evidence was addressed after the resolution of the evidentiary issue and before the parties made their final arguments and submissions.
[6] Therefore, in order to deal with the process of whether documents were admitted during the hearing, the Tribunal proceeded via e-mails to and from the parties and a Case Management Conference Call (CMCC). On November 3, 2016, the Registry Officer sent to the parties the Tribunal’s lists (Tribunal’s Initial Exhibits Lists) of documents in the parties’ Exhibit Books which she had recorded as entered and admitted into evidence (entered), the dates of such admission, and which documents had not been entered or referred to during the hearing. The Tribunal requested that the parties advise the Tribunal if they thought there were any errors in the Tribunal’s Initial Exhibit Lists.
[7] The Complainant’s response was that certain documents which the Tribunal’s Initial Exhibit Lists recorded as not entered were or should have been entered.
[8] The Respondent’s position was that a) the Tribunal had in fact entered a few of the documents shown as not entered and b) it objected to the admission of the other documents which the Complainant wished to have entered.
[9] In this context, the Tribunal convened a CMCC on November 18, 2016 (November 18 CMCC) for the parties to make oral submissions on the admissibility of the documents in issue.
The Disputed Documents
[10] In this Ruling, the documents on which there was no agreement between the Complainant and the Respondent as to whether the Tribunal had admitted them during the evidentiary portion of the hearing are called the “Disputed Documents”, including three documents the Complainant added at the November 18 CMCC.
[11] During the November 18, 2016 CMCC, the Registry Officer who had also been at the hearing, assisted the parties and the Tribunal by stating what her records indicated as to which Disputed Documents had been admitted by the Tribunal during the hearing. The CMCC proceeded in accordance with the Tribunal’s November 3, 2016 letter to the parties, and each document listed was discussed. Furthermore, it is worth noting that the Commission did not participate in the November 18 CMCC.
[12] On December 2, 2016, the Tribunal wrote to the parties with its decision on the admission and non-admission of the Disputed Documents, without reasons (the December 2, 2016 Letter), and advised that because the hearing was scheduled to resume on December 14, 2016, the Tribunal would include the reasons for its rulings with the final Decision. These reasons are set out below.
[13] I find that for the purposes of this Ruling, the Disputed Documents can generally be classified into two groups.
[14] The first group of Disputed Documents are almost all Hours of Service Audits (also called Audits) done on individual Respondent drivers, and are specifically:
Commission Documents HR1-20; HR1-23; HR1-36; HR1-39; HR1-41; HR1-42; HR1-44; HR1-45; HR1-46; and
Respondent Documents R2-57; R2-58; R2-59; R2-60; R2-61; R2-63; R2-64; R2-65; R2-66; R2-67; R2-69; R2-71; R2-72; R2-74; R2-75; R2-76; R2-77 and R4-159.
[15] The second group of Disputed Documents are on various subjects. Specifically, these Disputed Documents are: Complainant’s C1-6 and C1-9; Commission’s HR1-52; and Respondent’s R4-135, R4-169 and R4-176.
The applicable law
[16] Subsection 50(2) of the Canadian Human Rights Act, R.S.C. 1985, c.H-6 (the Act) authorizes the Tribunal to decide all questions of law or fact necessary to determine the matter.
[17] Subsection 50(3)(c) of the Act authorizes the Tribunal Member at a hearing to receive and accept any evidence and other information the Member sees fit, whether or not that evidence or information is or would be admissible in a court. The main limitation is that the Member may not admit or accept as evidence anything that a court would not admit because of any privilege under evidence law. Further, a conciliator involved in settling a complaint could not be called as a witness at a hearing.
[18] Therefore, the Tribunal has a great deal of discretion in admitting evidence, so long as the Tribunal Member exercises that discretion in accordance with the requirements of natural justice (subsection 48.9(1) of the Act), which include the right of all parties to have a full and fair hearing, as codified in subsection 50(1) of the Act.
[19] The Canadian Human Rights Tribunal Rules of Procedure (Tribunal Rules) also have a bearing on the issue of admission of documents. Specifically, Tribunal Rule 9(4) states:
“Except with the consent of the parties, a document in a book of documents does not become evidence until it is introduced at the hearing and accepted by the Panel.”
It is pursuant to Tribunal Rule 9(4) that the Tribunal and the Parties conduct the procedure of removing from the parties’ books of documents those documents which have not been admitted into evidence.
[20] In deciding whether to admit a document into evidence, the main criteria is that the document must be relevant to the issues in the complaint (First Nations Child and Family Caring Society of Canada and Assembly of First Nations v. Attorney General of Canada (representing the Minister of Indian Affairs and Northern Development Canada), 2015 CHRT 1 (FNCFCSC v. Attorney General), at para. 25, referring to para. 67 in FNCFCSC v. Attorney General, 2014 CHRT 2 (FNCFCSC 2014).
[21] Another factor the Tribunal must take into account in deciding if it admits a document is whether the probative value of the document outweighs the prejudice of admitting it at this stage of the proceedings. In order to answer this, the Tribunal also takes into account and weighs what reasonably needs to be done in order to alleviate or cure any such prejudice.
[22] Notwithstanding that I ruled on the admissibility of a number of the Disputed Documents at the hearing, in the interest of fairness, I again heard the parties’ submissions during the November 18 CMCC on such documents to permit them to raise any points they thought were material and may not have been raised at the hearing and to see if the parties had a different understanding or interpretation of any ruling I had made at the hearing. Having said that, those submissions had to raise material points of natural justice, including procedural fairness, in order to change a ruling made at the hearing.
The Hours of Service Audits
[23] There was no dispute that the Hours of Service Audits at issue were done by the Respondent’s Burlington Initial Response Centre (BIRC) on individual Respondent bus drivers. The Audits’ purpose was to find if the drivers audited complied with the legislated Hours of Service laws and regulations. I will describe the layout and contents of the Hours of Service Audits later in this Ruling.
Documents admitted on the consent of the parties
[24] At the November 18 CMCC, the parties agreed that the following documents had been entered into evidence at the hearing: HR1-20, an Hours of Service Audit on one of the Settling complainants, and HR1-23, the Respondent’s proposed termination letter for that Settling complainant. Therefore, I ruled them admitted as Exhibits HR1-20 and HR1-23.
[25] Document R4-159 is an Hours of Service Audit on the Complainant. The Respondent had not entered it at the hearing. The Complainant wished to have it entered. At the November 18 CMCC, Respondent counsel reviewed the document again and stated she did not object to having R4-159 entered. I therefore ruled at the November 18 CMCC that the document was admitted as Exhibit R4-159.
II. Disputed Documents which were ruled on at the hearing
[26] R2-66 is a Respondent Hours of Service Audit on one of its drivers who had been a Respondent’s witness. At the hearing, on November 18, 2015, the Complainant sought to have it admitted into evidence through the Respondent’s witness Mel Levandoski, Manager of Labour Relations during the relevant period. The Respondent objected on the ground that Mr. Levandoski did not have anything to do with the Hours of Service Audit, as he was the Manager of Labour Relations and could not speak to it. After hearing both parties’ submissions, I ruled that R2-66 was admitted into evidence. I told the Complainant at that time that although I was admitting the document, it was at my discretion as to how much weight I would give it. At the November 18 CMCC, the Registry Officer confirmed the ruling. After hearing the parties’ submissions at the November 18 CMCC, I did not change this ruling.
Disputed Documents HR1-36, HR1-39, HR1-41, HR1-42, HR1-44, HR1-45 and HR1-46 – Hours of Service Audits
[27] HR1-36 is an Hours of Service Audit of one of the Complainant’s witnesses who was a former Greyhound driver. The Tribunal’s Initial Exhibit Lists indicated that HR1-36 had not been entered at the hearing. The Registry Officer confirmed this at the November 18 CMCC.
[28] At the November 18 CMCC, there was no dispute that the Complainant had not questioned his witness about HR1-36. There was also no dispute that he had wanted to cross-examine Mr. Levandoski on it and that the Respondent had objected on the ground that the Complainant should have questioned his witness whose Audit it was if he wanted to cross-examine Mr. Levandoski on it.
[29] The Complainant submitted that during the hearing, whenever he tried to ask any witness about any of the Hours of Service Audits, including Mr. Levandoski, the Respondent objected on the basis that Mr. Levandoski or another witness was not the correct person to ask – that he should have asked someone else. The Complainant submitted that Greyhound created HR1-36, and because Mr. Levandoski was a Greyhound manager, the Complainant asked him about it.
[30] He also argued that Mr. Levandoski and others made the decision to fire the Complainant based on the Hours of Service Audits. Therefore, because Mr. Levandoski represented Greyhound, the Complainant should have been permitted to question him about HR1-36.
[31] At the November 18 CMCC, the Complainant did not make any submissions about why the Complainant’s witness had not been asked about his own Hours of Service Audit in HR1-36.
[32] The Complainant also submitted that HR1-36, HR1-39, HR1-41, HR1-42, HR1-45 and HR1-46 were all related to the Driver Audit Spreadsheet.
[33] This Ruling refers many times to a document called the Driver Audit Spreadsheet. In the parties’ Books of Documents, the Driver Audit Spreadsheet is found in the Respondent’s Books of Documents as Exhibit R1-29 and in the Commission’s Book of Documents as Exhibit HR1-31. Exhibit R1-29 is a larger, more readable version of the smaller copy at Exhibit HR1-31. Exhibit HR1-31 also includes a cover email from Respondent counsel to Commission counsel enclosing the Driver Audit Spreadsheet. Notwithstanding that one Exhibit is larger than the other, except for the cover email, the two Exhibits are exactly the same and I call each one the Driver Audit Spreadsheet.
[34] There is a consent order dated October 17, 2013 that governs the use of the Driver Audit Spreadsheet and which provides that its content is proprietary and confidential information belonging to the Respondent. In accordance with its terms, although later in this Ruling I describe the contents of the Driver Audit Spreadsheet generally, and I try to do so in detail which is sufficient for this Ruling, while at the same time complying with the terms of the October 17, 2013 consent order.
[35] At the November 18 CMCC, the Complainant wished to have HR1-36 admitted into evidence because BIRC had done all the Hours of Service Audits, including this one, and they were directly related to the Driver Audit Spreadsheet. He submitted that the Audits and the Driver Audit Spreadsheets were not separate documents, rather they should be considered together as one document. This was because, in his submission, the discipline decisions set out in the Driver Audit Spreadsheet were based on the drivers’ Hours of Service Audits, and HR1-36 was an example. The Complainant wanted to show that although there were drivers who committed Hours of Service violations similar to or the same as those the Complainant committed, Greyhound nevertheless disciplined them differently – specifically, Greyhound did not fire them but fired the Complainant - and HR1-36 was an example of that different treatment.
[36] The Complainant stated at the November 18 CMCC that he was very frustrated at one point in the hearing because of all the Respondent’s objections to him questioning certain witnesses on some of the individual Hours of Service Audits. He submitted that I, as hearing Chair, had said to him that at the end of the hearing we would go through each document and decide what he wanted to put in and what he didn’t want to put in.
[37] In response to this, the Respondent submitted that at the hearing, the process which was going to be followed was explained to the parties, as was the pulling of documents; the hearing Chair explained this many times during the hearing, including when the Complainant started handling his own case. For example, on February 17, 2015, the hearing Chair explained the process to him, including the process of admission of documents into evidence.
[38] The Respondent further submitted that the Complainant was given the opportunity to decide which documents he wanted to put into evidence – for example, at the end of the first day the Complainant testified, the Tribunal Member encouraged him to think more that night if there were additional documents that he wanted to put into evidence. The Respondent submitted that the process was clearly explained to him.
[39] At the November 18 CMCC, Respondent counsel submitted the same argument against the admission of HR1-36 as she had at the hearing. In addition, the Respondent also submitted that its notes of the hearing were that after the Respondent objected to the Complainant questioning Mr. Levandoski about the Hours of Service Audit in HR1-36, the Complainant indicated he would move on, and then proceeded to question Mr. Levandoski on the Driver Audit Spreadsheet and that this seemed reflected in the Registry Officer’s notes.
[40] The Respondent further submitted that all the documents at issue from the Commission’s Book of Documents HR-1 had been ruled on at the hearing and that as a matter of procedural fairness, those rulings ought to stand.
[41] HR1-39 is an Hours of Service Audit on a former Respondent bus driver, who the Settling complainants and the Complainant had planned to call as a witness but could not find. The Tribunal’s record shows that on February 17, 2015 at the hearing, the Complainant wished to introduce HR1-39 into evidence during his own direct testimony. Respondent counsel objected on the ground that he was not familiar with it and could not speak to its contents.
[42] In responding to the objection, the Complainant stated that he wanted to use HR1-39 to demonstrate that the Union had been “selective” in who it assisted.
[43] After hearing the parties’ submissions, I ruled that HR1-39 was not relevant to the issues in the Complaint and would not be entered into evidence.
[44] At the November 18 CMCC, the Complainant added another ground for the admission of HR1-39 - namely, that being an Hours of Service Audit, it was the reason the Respondent decided on the discipline for this driver, as set out in the Driver Audit Spreadsheet. He again submitted that the two documents were not separate but were essentially one document and had to be read together because the Driver Audit Spreadsheet was based on the individual Hours of Service Audits.
[45] HR1-41 is an Hours of Service Audit of a Greyhound driver in Edmonton, Alberta which the Complainant wished to testify about and put into evidence at the hearing. The Respondent objected to having the Complainant testify about the document because he was not familiar with it and could not speak to its contents. The Complainant made submissions on his position. I considered the parties’ submissions and stated to the Complainant that because he had had nothing to do with the Audit and it was not addressed to him, my ruling was that it would not be admitted into evidence. The Complainant then stated that none of the Hours of Service Audits he wished to enter and testify about, being HR1-41 to HR1-48 were his. I then asked him if he was abandoning those documents, and he responded “yes”.
[46] The Registry Officer’s records confirmed this and confirmed that HR1-41, HR1-42 and HR1-46 were not entered.
[47] At the November 18 CMCC, the Complainant acknowledged that he knew and understood what he had said at the hearing about abandoning the documents but submitted that at the time he said that, he did not realize that the Hours of Service Audits and the Driver Audit Spreadsheet were related to each other.
[48] The Respondent contended that her notes of the hearing were that the Complainant accepted the ruling, confirmed that he abandoned the documents and moved on to an already admitted Exhibit.
[49] HR1-44 is an Hours of Service Audit of a Respondent driver in London, Ontario. At the November 18 CMCC I told the parties that my notes indicated that at the hearing, specifically on February 9, 2015, Commission counsel referred the Commission’s witness Mr. Al-Khafaji to the document, and then cross-referenced HR1-44 to HR1-31, the Commission’s copy of the Driver Audit Spreadsheet. Commission counsel questioned Mr. Al-Khafaji on HR1-31 and asked to have it admitted into evidence; it was admitted as Exhibit HR1-31. Commission counsel did not ask to have HR1-44 admitted.
[50] The Complainant sought HR1-44’s admission into evidence because it was an Hours of Service Audit which he contended demonstrated that Greyhound treated drivers in similar situations differently. Further, HR1-44 was also related to the Driver Audit Spreadsheet.
[51] At the November 18 CMCC, the Respondent submitted that if the Tribunal admitted HR1-44 into evidence, it would be admitting a document which was hearsay – it could not speak for itself and this would prejudice the Respondent. To alleviate this prejudice, it would have to call Mr. Butler back to testify. If the Complainant simply wanted to put HR1-44 into evidence and comment about it, Mr. Butler would have to have an opportunity to respond to it, otherwise its admission would be prejudicial to the Respondent.
[52] The Respondent submitted that the Complainant could have put the document to Mr. Butler in cross-examination in order to get an understanding of how to read the document, why the data says what is says and why the driver was or was not disciplined. The Complainant had the opportunity to do so and did not. Putting the document in at this stage without Mr. Butler’s testimony would be highly prejudicial to the Respondent.
[53] The Complainant countered that Mr. Butler did not do the Audit, implying that he would not have been able to answer his questions.
[54] The Respondent also submitted that the driver whose Hours of Service were the subject of the Audit in HR1-44 was also named in the Driver Audit Spreadsheet, and that the Respondent’s witness David Butler had testified about this driver. The Complainant had therefore had an opportunity to cross-examine Mr. Butler on this driver but did not do so. If the Complainant thought the Hours of Service Audit of that driver was inconsistent with what Mr. Butler testified to, he needed to have put those concepts to Mr. Butler in cross-examination.
[55] The Complainant did not agree that if the Tribunal admitted HR1-44 into evidence, Mr. Butler would have to be recalled to testify about it. He submitted that Mr. Butler’s explanation of why he made the discipline decision for the driver in HR1-44 was in the Driver Audit Spreadsheet. He, the Complainant, did not have to ask Mr. Butler any more questions about why he made that discipline decision or why he decided on the discipline for every single person shown in it.
[56] HR1-45 is an Hours of Service Audit on a driver who is also named in the Driver Audit Spreadsheet. The Tribunal’s Initial Exhibit Lists showed HR1-45 as not entered.
[57] At the hearing, the Complainant had wanted to cross-examine Mel Levandoski on HR1-45. The Respondent objected on the ground that Mr. Levandoski had not authored the Audit and did not know about it.
[58] At the November 18 CMCC, the Complainant asserted that he had asked Mr. Levandoski about HR1-45 because Mr. Levandoski had testified that one of the reasons Greyhound fired the Complainant dealt with passenger safety. The Complainant had wanted to show Mr. Levandoski that other drivers, such as the one audited in HR1-45, which the Complainant characterized as showing a great many Hours of Service violations, had done exactly the same thing as the Complainant but Greyhound did not fire them.
[59] The Respondent submitted that the Complainant had asked Mr. Levandoski if he had seen HR1-45 before, and Mr. Levandoski had responded that he had not.
[60] At the November 18 CMCC, the Complainant acknowledged that when the Respondent objected to him asking Mr. Levandoski about HR1-45, he had moved on to question Mr. Levandoski on the Driver Audit Spreadsheet, which contained the discipline issued for the driver whose Hours of Service Audit was HR1-45.
[61] He had also asked Mr. Levandoski whether the discipline for that driver shown in the Driver Audit Spreadsheet was appropriate, and what Mr. Levandoski thought it should have been. The Respondent objected to the question on the ground that it sought an opinion from Mr. Levandoski, who, as Greyhound’s Labour Relations Manager, had never seen the Audit before and as Manager of Labour Relations, was not qualified to give that opinion.
[62] The Complainant also acknowledged that at the hearing, he had said that he abandoned HR1-45. He submitted that he had said that he did not need HR1-45 because he thought it was in the Driver Audit Spreadsheet. But then he checked it and found that not everything was there. He submitted that like the other Hours of Service Audits, HR1-45 and the Driver Audit Spreadsheet were not two documents but rather were one.
[63] At the November 18 CMCC, the Complainant submitted that he was asking that HR1-45 be admitted into evidence to demonstrate that Greyhound treated drivers who had committed the same or similar Hours of Service violations as he had differently than it treated him – that Greyhound picked people to discipline for reasons other than the Hours of Service violations.
[64] The Complainant thought that HR1-45 was important to his case because this Audit revealed that the driver had committed a very large number of violations; however, the Driver Audit Spreadsheet showed that the Discipline Issued to the driver was what the Complainant submitted was minimal because the Respondent decided that the violations were “not intentional”. The Complainant argued that it was not credible that the driver, who he submitted was born in Canada, did not commit the violations intentionally, and that the Complainant, an immigrant, did commit his violations intentionally. The Complainant wished to have the document admitted in order to demonstrate that the Respondent treated this driver differently than it treated him, a Russian immigrant, even though the driver had committed the same violations as the Complainant and had committed many violations.
[65] At the November 18 CMCC, the Respondent further argued that there had to be some procedural certainty. The parties had dealt with this issue in the middle of Mr. Levandoski’s testimony and it was procedurally unfair to deal with it again. At the hearing, the Complainant had stated he was abandoning HR1-45, and the Respondent had and has a right to rely on that statement.
[66] The Respondent stated that the prejudice to the Respondent if the Hours of Service Audit HR1-45 was admitted was that on its face, it did not provide enough information about why the Respondent disciplined that driver the way it did. To cure that prejudice, the Respondent would have to call a witness to testify on it.
[67] The Respondent also submitted that no driver was fired or disciplined based on the Hours of Service Audit alone. She described an Hours of Service Audit as a review done by BIRC based on the documents the Respondent then had from the driver’s Logbook After this review, someone mandated by Greyhound would have asked the driver for an explanation of any irregularities in the Audit. Only if the driver’s response was not satisfactory did the Respondent issue discipline. All of that had to be explained by a witness. Respondent counsel did not know whether she would have to recall Robert Davidson, David Butler or call another witness, because different Regional Managers were responsible for different drivers.
[68] The Complainant stated that on page 8 of the Driver Audit Spreadsheet, using himself as an example, “everything” was in there, including why Greyhound issued the discipline. He submitted that everything about the discipline for the driver in HR1-45 was also there, and there was no reason to recall or call any Respondent witnesses to testify about the Hours of Service Audit.
[69] The Complainant stated that he had not realized at the time that all the Hours of Service Audits were related to the Driver Audit Spreadsheet. He contended that the Hours of Service Audits and the Driver Audit Spreadsheet were in reality one document, because the discipline issued in the Driver Audit Spreadsheet was based on the Hours of Service Audits.
[70] The Complainant further submitted that Mr. Levandoski was making the discipline decision on the drivers based on these Audits. He submitted that the Audit contained in exhibit HR1-45 found that the driver had committed multiple violations, but as the Complainant saw it, Greyhound’s discipline was very light. He wanted to use HR1-45 as an example to demonstrate that Greyhound treated drivers who had committed the same Hours of Service violations as the Complainant differently than it did the Complainant, who Greyhound fired.
[71] The Respondent submitted that since the Complainant had confirmed he was abandoning this document during the hearing, it would be procedurally unfair to admit the document into evidence at this stage.
[72] Further, the document on its face did not tell the Tribunal enough about the investigation which was done after the Hours of Service Audits. The Respondent reminded the Tribunal that Mr. Davidson had testified about the investigations he had done, but that to enter HR1-45 into evidence would entail having to call another witness to testify.
[73] HR1-46 is also an Hours of Service Audit. The Registry Officer confirmed that this was one of the documents the Complainant had said he was abandoning at the hearing. At the November 18 CMCC, the Complainant stated that he had abandoned HR1-46 because he did not know that he would not be able to come back to it again.
[74] The Complainant stated he wanted HR1-46 admitted to show exactly which violations this Audit found for the driver. He acknowledged that he could go to the Driver Audit Spreadsheet and refer to the same driver, but he submitted that in order to demonstrate the “complete picture”, he wanted to show exactly what the driver had done.
[75] The Respondent’s position on HR1-46 was the same as its position on HR1-45.
[76] The Respondent agreed that each one of the individual Hours of Service Audits related to the Driver Audit Spreadsheet but contended that each one of the individual Audits had to be explained by a witness. Further, the Complainant had the opportunity to cross-examine Mr. Butler, for example, when he testified about the Driver Audit Spreadsheet. If there were flaws in the Hours of Service Audits, someone needed to testify about them but at this stage, they should not simply be put into evidence without having anyone testify about them.
[77] The Respondent also submitted that it was not necessary to admit these individual Hours of Service Audits into evidence because the Tribunal already had the “ultimate evidence”, which was in the Driver Audit Spreadsheet, and which was cross-examined on at the hearing.
(i) Analysis: Disputed Documents HR1-36, HR1-39, HR1-41, HR1-42, HR1-44, HR1-45 and HR1-46
[78] I find that at the November 18 CMCC, the Complainant’s main argument in support of admitting into evidence all the above Hours of Service Audits at issue, including those found in the Commission’s Book of Documents HR1, was that the discipline decisions Greyhound made for non-compliant drivers were based on the results of their Hours of Service Audits. Those discipline decisions were set out in the Driver Audit Spreadsheet. He submitted that the individual Hours of Service Audits and the Driver Audit Spreadsheet were essentially one document. Therefore, he argued that the Tribunal should admit the individual Hours of Service Audits so that it had the “complete picture” of the violations those drivers committed.
The Hours of Service Audits
[79] I find that most of the Hours of Service Audits at issue contain the following information:
driver’s name;
their Regional Manager;
city location of their home terminal;
date of Audit;
the period Audited;
Auditor’s name and Auditor’s dated signature;
whether the driver was Hours of Service Compliant;
date or dates of Hours of Service Violations in the period audited;
a chart for Log Infractions, filled in if the driver had any;
a Comments section specifying the Hours of Service violations, if any;
A separate page made up of an Hours of Service Recap for the month or period Audited.
[80] With respect to the Hours of Service Recap, in addition to the requirement to keep the daily Logbook, Greyhound required that each driver also keep a daily running tally of their Hours of Service, covering one month, which was meant to let the driver know how many Hours of Service the driver had available for the next day, the next week and so on. This running tally was called the Hours of Service Recap.
[81] Having said that, BIRC did the Hours of Service Recap in the Hours of Service Audits as part of its Audit process to assist in demonstrating whether the drivers were committing Hours of Service violations.
[82] I note that Disputed Documents R2-59, R2-63, R2-64 and R2-68 (dealt with in next part of this Ruling) are also Hours of Service Audits, but which consist of one page, made up of an Hours of Service Recap purporting to show Hours of Service violations, and at the bottom, has the driver’s name, whether and when the driver committed Hours of Service violations in the period audited, and for most of this group, the dates the driver committed them.
[83] None of the Hours of Service Audits contain the discipline which was issued for the drivers who were found not compliant with the Hours of Service.
The Driver Audit Spreadsheet
[84] I find that the Driver Audit Spreadsheet is made up of 13 pages. Each page contains information on BIRC Hours of Service Audits on various drivers, such information divided into columns, titled as follows:
Driver Name;
Location;
Auditor;
Date of Audit;
Regional Manager Responsible;
Month/Year Audited;
Whether the driver was Hours of Service Compliant;
Log Infractions, if any;
Comments on Infractions;
Discipline Issued
[85] The Driver Audit Spreadsheet covers Audits which BIRC performed between January 2010 and mid-April 2011.
[86] The first six pages of the Driver Audit Spreadsheet contain the above information for between 23 and 35 drivers per page. Almost all these drivers are shown as “Compliant” with the Hours of Service. The Discipline Issued column is blank because the Respondent did not discipline these drivers. Some were given commendations for their Logbook record keeping.
[87] Pages seven, eight, nine and ten contain the names of fewer drivers – for example, page 10 contains the names of 10 drivers - because some of the drivers who the Audits found not to be Hours of Service Compliant were either audited more than once or seemed to have required more room for the information in the Comments on Infractions and Discipline Issued columns.
[88] Page 11 has the information on the Audits of 14 drivers; page 12, information on the Audits of 23 drivers, and page 13, information on the Audits of 11 drivers.
[89] In the first nine pages, if an Audit found that a driver was compliant with the Hours of Service, the column titled Hours of Service Compliant states “Compliant”. In the last four pages, if the Audit found the driver was compliant with the Hours of Service, that column states “Yes”.
[90] The Complainant submitted that the Respondent based its discipline decisions, including its decisions to fire him, on the Hours of Service Audits. The Respondent countered that no driver was disciplined or fired based on the Audits alone, and that the Respondent also took into consideration the findings from its further investigations. I find that both these arguments deal with substantive issues that are beyond the scope of this Ruling which addresses only the admissibility of certain documents. The Decision on the merits will address these arguments.
[91] I find that the Driver Audit Spreadsheet’s Comments on Infractions column and Discipline Issued columns, when read together, provides the reader with not only the relevant information from the drivers’ individual Hours of Service Audits but additionally with any discipline Greyhound rendered, and many times, a brief note on the reason Greyhound rendered that discipline. This gives the reader sufficiently comprehensive information about the Hours of Service violations.
[92] I further find that there was no evidence that there were any errors in the information transferred from the individual Hours of Service Audits at issue to the Driver Audit Spreadsheet – in other words, there was no evidence that what was in the Driver Audit Spreadsheet was not accurate. The individual Audits sometimes contained more information about specific violations, but I find that the relevant information in the individual Audits is contained in the Driver Audit Spreadsheet.
[93] With respect to the discipline decisions Greyhound made for the drivers as a result of the Hours of Service violations found in their Hours of Service Audits, each time the driver’s name appears in the Driver Audit Spreadsheet, the Comments on Infractions column sets out, with what I find is reasonably ample specificity, what their Hours of Service violations were.
[94] The Complainant acknowledged at the November 18 CMCC that the information from these individual Hours of Service Audits is in the Driver Audit Spreadsheet.
[95] He seeks to have them admitted so that the Tribunal can have what he referred to as the complete picture of what the Hours of Service violations in most of these Audits were, which in turn he submits would demonstrate that the Respondent fired him but did not fire the drivers in these Hours of Service Audits who committed the same Hours of Service violations as he did.
[96] The Complainant also submits that the Respondent does not need to recall Mr. Davidson or Mr. Butler to testify about these Hours of Service Audits because both already testified about the Driver Audit Spreadsheet.
[97] I find that almost all the information from the individual Hours of Service Audits at issue is contained in the Driver Audit Spreadsheet. I find that on its face, the Driver Audit Spreadsheet provides sufficient relevant information about the Hours of Service violations committed by the drivers in these disputed Hours of Service Audits without requiring the admission into evidence of those drivers’ specific Hours of Service Audits comprising Disputed Documents HR1-39; HR1-41; HR1-42; and HR1-46.
[98] I find it reasonable that in order to alleviate the prejudice to it if the Tribunal were to admit these individual Hours of Service Audits into evidence, the Respondent would need to recall witnesses such as Mr. Butler or Mr. Davidson or both to testify about the individual Hours of Service Audits.
[99] I think the main question