E. Ford

During a hearing into allegations of unlawful picketing, the complainant called an adverse party as a witness and sought to cross-examine him as of right, relying on Rule 53.07 of the Rules of Civil Procedure.

The Ontario Labour Relations Board declined to adopt the civil rule, holding that it would instead apply the common law discretion to permit leading questions or cross-examination only if the witness demonstrates hostility or an unwillingness to answer.

The Board also ruled that section 9 of the Ontario Evidence Act does not prevent the witness's answers from being used against him in the very proceeding in which he is testifying, as the statutory protection against self-incrimination applies only to independent contemporaneous or subsequent proceedings.

The complainant, a dependent contractor operating a crane, alleged that the respondent union violated the Labour Relations Act by requiring his employer to discharge him after denying him union membership.

The union brought a preliminary motion to dismiss the complaint without a hearing, arguing that the complainant was not an employee covered by the collective agreement and therefore no prima facie case was established.

The Board dismissed the preliminary motion, finding that the complainant had made out a prima facie case that he was a dependent contractor and that the collective agreement was latently ambiguous regarding his inclusion in the bargaining unit.

The Board directed the matter to be listed for a full hearing.