Ontario Public Service Employees Union (Miceli) v. The Crown in Right of Ontario (The Ministry of Transportation), 2001 CanLII 25756

GSB#0598/97, #0863/97

UNION# 97B629, 97D930

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Miceli)

Grievor

-and-

The Crown in Right of Ontario

(The Ministry of Transportation)

Employer

BEFORE Eva E. Marszewski Vice-Chair

FOR THE GRIEVOR Nelson Roland, Counsel

Barrister & Solicitor

FOR THE EMPLOYER Joe Cocker, Counsel

Management Board Secretariat, March 29, 1999

Len Hatzis, Counsel,

Management Board Secretariat, April 12, 13, and May 2, 2000

HEARING March 29, 1999, April 12, 2000, April 13, 2000 and May 2, 2000.

INTERIM DECISION

The parties have requested a written ruling with respect to objections by Union Counsel to questions put by Employer Counsel to his witness after the close of the Union’s case. The objections to the questions were based on a Browne and Dunn argument. The issues raised by the Grievor and the facts pertinent to the determination of the Brown & Dunn issue may be briefly summarized as follows.

The Grievor, Bob Miceli, held an Automotive Technician II, Mechanic 2 position in the Ministry’s garage in Sault Ste. Marie, Ontario, when he received a Surplus Notice dated July 24, 1997 and was laid off. He has alleged that the Employer failed to re-call him to work pursuant to Article 20.6 of the Collective Agreement, that a competition for Transportation Enforcement Officer in Sault Ste. Marie was flawed, that the Ministry violated Article 24 of the Collective Agreement by not granting the him the requested training for Transportation Enforcement Officer III, that an independent contractor was hired to do work that should have been assigned to him and finally that the Ministry failed to comply with labour legislation by failing to provide him with a “Record of Employment” Certificate within the required time limits. The Grievor sought the following relief: that this Board declare that the competition for Transportation Enforcement Officer was flawed and that he, the Grievor, ought to be declared the successful candidate, that he be given the training opportunity which had first been approved and then denied. Moreover, the Grievor sought a declaration that he ought to have been recalled to the Automotive Technician II, Mechanic 2 position in Sault Ste. Marie and that the Employer ought pay to the Grievor all the monies that were paid to the contractor who was hired to do his work, and finally, a declaration that he should have been given his “Record of Employment” Certificate.

The Employer took the position that the Grievor’s lay-off was due to the Ministry’s privatization and downsizing initiatives, that there was no position into which the Grievor could have been recalled. It was asserted that in July, 1996, there was a Ministry, province-wide, consolidation of garages and warehouses. The Employer’ Surplus Notice was dated July 24, 1996 and gave the Grievor seven days to consider the options set out by the employer. While most employees chose the payment option, Mr. Miceli chose option #2. The relevant portions of the Ministry’s letter read as follows:

As a result of workforce reductions in the Ministry of Transportation, your position of Automotive Technician II, Mechanic 2, will be declared surplus on July 31, 1996 and your last date of work will be January 30, 1997. Effective July 31, 1996 this letter provides you with notice of lay-off as required by Article 24.2.1 of the Collective Agreement.

Upon review of your employment record you have the following options:

2. You may remain on notice for a period of six months and continue to be considered for assignment to a vacancy, if one becomes available. If you are not assigned to a vacancy before your lay-off on January 30, 1997, you will have recall rights for 24 months from that date, if you leave your termination pay with the ministry in trust. You may also broaden your geographic parameters beyond 40 km and specify the locations to which you will relocate. No relocation expenses will be provided.

AND

3. If you choose to remain on notice, you may be eligible to displace another employee. In order for us to identify a less senior employee for you to displace, you must complete the attached form and return it to us within three working days. You will be advised no later than August 7, 1996, if you are able to exercise displacement rights.

I urge you to review Article 24 and Appendix 14 of the OPSEU Collective Agreement before you make your decision. An entitlements package is attached for your information. Please contact your Human Resources Consultant Kent Broughton, if you have any questions.

Once you have elected your option please forward a signed copy of this letter to your Human Resources Consultant. If you do not respond by 4:30 p.m. July 31, 1996, you will be deemed to have chosen to remain on notice, as outlined in paragraph two above.

He did not apply for the Mechanic position in Wawa, as that would have taken him out of the 40 Km. range from Sault Ste. Marie with the consequence that he would not have been able to apply for a position in Sault Ste. Marie. He chose to remain in Sault Ste. Marie and was therefore the only mechanic left there with recall rights except for one mechanic senior to the Grievor who was not surplused and retained the only mechanic job left in Sault Ste. Marie. Sometime within the month, a position of Transportation Enforcement Officer II came open in Sault Ste. Marie. The position was not posted at the time and the Grievor decided that he wanted to be eligible for the job. He discussed the option with Mr. Kent Broughton, the Human Resources Consultant who had been designated by the Ministry as the H.R. person directly responsible for the downsizing process in Sault Ste. Marie. Mr. Broughton advised the Grievor to enroll in a Law Enforcement course at Sioux College. The Grievor took this advice and completed a basic Law Enforcement course in December, 1996.

The Grievor also met with the District Engineer for Sault Ste. Marie, Bob Van Veen, the Ministry’s senior management person. Subsequent to the meeting with Van Veen, the Grievor confirmed by letter dated September 16, 1996, his request to receive the developmental training for the position of Transportation Enforcement Officer II. He copied the letter to Broughton. Although the letter was misdirected, it eventually reached Van Veen. By letter dated September 25, Mr. Van Veen approved the Grievor’s request for the Drivers and Vehicles training beginning November 4, 1996 and extending to the end of the Grievor’s notice period. Van Veen also approved a training period for the week of October 7^th for the purpose of familiarizing the Grievor with the Drivers & Vehicles operations. The Grievor had also met with the District Manager of Drivers and Vehicles at which time he determined that there was no one else in that department that wanted training.

On October 7, the Grievor went on the developmental training assignment at the Heyden weigh scales outside of Sault Ste. Marie to become familiarized as an enforcement officer. The following day, they went another 100 km. to Sprague, Ontario, about 150 Km east of Sault Ste Marie. About ten minutes after the Grievor arrived at the work location and commenced his job shadowing assignment, around 4 or 5 p.m., Mr. Harrington called the job site Supervisor and advised him that the Grievor’s training request had been denied. The Grievor was to return to Sault Ste. Marie immediately. Harrington told the Grievor that the order came from his Supervisor in Thunder Bay.

Understandably, the Grievor was very upset. Upon his return to Sault Ste Marie, on October 9, he called Broughton in Thunder Bay. The latter apparently knew nothing of the change of direction and thought that Van Veen was in Toronto. The Grievor testified that Broughton advised him not to grieve. Acting on that advice, the Grievor decided not to grieve and instead thought that he could get to the bottom of the situation himself. Eventually, the Grievor discovered that the training was cancelled by Linda Jackson, the Regional Manager of Drivers and Vehicles.

Upon the conclusion of the Union’s case, the Employer first called Mr. Ainsworth, the shop foreman in Sault Ste. Marie, and then called Mr. Kent Broughton from the Ministry’s Human Resources Department. During Broughton’s Examination-in-Chief, Counsel for the Employer asked him whether or not he could recall meeting with the Grievor with respect to the issue of the training exercise which was terminated on October 9, 1996. Broughton answered that he had received a phone call from the Grievor.

At that point, Union Counsel objected to the question on the grounds that it was intended to contradict the Grievor with respect to his evidence that Mr. Broughton had advised him not to grieve the cancellation of his developmental training. He took the position that if Broughton’s evidence was intended to contradict the Grievor on material facts, then such a contradiction should have been put to the Grievor by Counsel for the Employer when the Grievor was still on the stand and had the opportunity to speak to the issues arising from the questions put to him in cross-examination and then again on re-examination. Moreover, there had been no manifest notice given to the Grievor while he had been on the stand that his testimony on this issue would be contradicted or impeached by the Employer’s evidence. It was submitted that the defect could not be cured by calling the Grievor to give evidence in reply because that would force the Grievor to split his case. Counsel for the Union relied upon the decision of the English Court of Appeal in Browne v. Dunn (1894) The Reports 67 (Lord Herschell). Union Counsel submitted that the credibility of a witness cannot be impeached after that witnesses’ testimony is concluded if the material facts which are to be relied upon in the impeachment argument were not put to the witness, giving the witness full opportunity to explain. In addition, the Union also relied upon the following cases in making its submissions on this issue: Re Laidlaw Waste Systems Ltd. (St. Catharines) and Canadian Union of Public Employees, Local 1045 (1993) 1993 CanLII 16630 (ON LA), 37 L.A.C. (4^th) 146 (Whitehead); Re the Crown in Right of Ontario (Ministry of Transportation and Communications) and Ontario Public Service Employees Union, Grievance of Taraschuk (1985) 1985 CanLII 5383 (ON LA), 19 L.A.C. (3d) 161(Delisle); and Avenue II Community Program Service and O.P.S.E.U., Grievance of David Rawson, (Unreported Decision, March 18, 1996) (Simmons).

Counsel for the Employer countered that there is no absolute Browne v. Dunn rule, that this Board has the discretion to determine whether or not it ought to allow Counsel to put the challenged questions to the witness. Subsequently, the Union would still have the right to call reply evidence if necessary. Moreover, it was submitted that if the Grievor was aware, or if there was “a reasonable basis for concluding that the veracity of the evidence would be challenged subsequently in the proceeding”, then the Grievor would not be taken by surprise. The issues raised by Counsel for the Employer must have come out in Steps 1 and 2 of the Grievance procedure and could not be taking the Grievor by surprise. Counsel submitted that a case by case analysis was required to determine what was appropriate in each and every case. In Counsel’s submission, there were three options available to the Board: allow the Grievor to be re-called to testify (but not in reply), allow the Union to decide whether or not to recall the Grievor in reply, and allow all of the questions in any event and have the answers weighed at the end of the case in determining the outcome of the case. The Employer relied upon the following cases in making its submissions: Palmer v. the Queen, (1979) 106 D.L.R. (3d) p.212., (McFarlane, J.A.); Machado v. Berlet et al. (1986) 1986 CanLII 2600 (ON HCJ), 57 O.R. (2d) 207 (Ewaschuk, J.), [1986] O.J. No. 1195 (also rep 32 D.L.R. (4^th) 634; R. v. Verney (M.) (1993) 67 O.A.C.279 (1993) (Mr. Justice Finlayson); Hurd et al. and Hewitt et al. (1994) 20 O.R. (3d) p.639 (Mr. Justice Griffiths); Re the Donwood Institute and Ontario Public Services Employees Union, Local 541, (1996) 56 L.A.C. (4^th) p.1 (Ian Springate); Green v. Canada (Treasury Board) [1997] F.C.J. No. 964 File No. T-1710-96 (Cullen J.); Green v Canada (Treasury Board) [2000] F.C.J. No.379 File No. A-542-97 (Robertson J.).

Union Counsel agreed that while the Browne v. Dunn rule is not absolute, the permissible exceptions are those spelled out by the two judges: Lord Herschell and Lord Morris, and subsequently interpreted by case law submitted. Consequently, it was submitted that I am required to exercise my discretion judicially and consistently with the caselaw. With respect to the question of whether or not the Grievor was taken by surprise, it was submitted that there was no evidence in this hearing with respect to the challenge of the Grievor’s version of his conversation with Broughton, nor was there any evidence concerning what transpired during the Grievance procedure, and properly so, since all discussions entered into during the grievance procedure are confidential and therefore not admissible in evidence.

The context for the decision in Browne v. Dunn is a battle between neighbours in The Vale in Hampstead, England in 1891. One resident, Mr. James Loxham Browne, had taken out two summonses, one against Mr. Benjamin Paine for assault, and the second against Mrs. Hoch for abusive language. The two summonses were to be dealt with in court on August 5, 1891. On August 4, 1891, the defendant Paine, the defendant Hoch’s husband, along with seven others signed a retainer authorizing a lawyer, Mr. Cecil W. Dunn, to appear in court on their behalf the next day, August 5, 1891, for a summons and order that Browne

“… has continuously for many months past, both by acts and words, seriously annoyed us, and each of us, and other residents in the Vale aforesaid, whereby he has endeavoured to provoke a breach or breaches of the public peace or whereby a breach or breaches of the public peace has been in danger of being committed.”

On August 5^th, prior to the commencement of the proceedings against Paine and Hoch, and the cross-summons by Paine, Dunn mentioned his application to the magistrates who suggested that Dunn’s application be postponed until after the Paine and Hoch matters had been dealt with. The outcome of all of these proceedings was that Browne was required to keep the peace.

Subsequently, Browne discovered the contents of the retainer document and brought a libel and defamation action against Dunn alleging that the retainer of Dunn was a sham and motivated by Dunn’s personal animosity towards Browne. At the trial, one of the signatories of the retainer, Mrs. Cooke, (who was also a daughter of another one of the signatories) testified on behalf of Browne. All the other signatories of the retainer, except Mr. King who was not called, testified against Browne. All witnesses except Mr. McCombie and Hoch were cross-examined, but only as to the merits of the various quarrels they had with Browne. McCombie and Hoch were not cross-examined at all. No one was cross-examined with respect to the circumstances surrounding the signing of the retainer of Dunn. The jury found a verdict for Browne and assessed damages at 20L. Dunn successfully appealed to the Court of Appeal. Browne then appealed to the House of Lords but was unsuccessful.

The lead decision of the House of Lords was written by Lord Herschell, L.C.

The relevant portions of the Browne v. Dunn decision written by Lord Herschell read follows:

Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound whilst he is in the box, to give him an opportunity of making explanation which is open to him; and, as it seems to me that not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. [Italics added] Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the store which he is telling.

Lord Halsbury also commented (at page 76) on the question of the significance of a failure to cross-examine a witness:

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.

However, Lord Herschell described one situation where his rule might not apply. This situation has, in subsequent case law, been described as the first exception to the rule in Browne v. Dunn:

Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. [italics added]. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.

If Lord Herschell set out the rule and the first exception, Lord Morris added (at p. 79) the second exception to the rule:

My Lords, there is another point upon which I would wish to guard myself, namely, with respect to laying down any hard-and-fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit. In this case, I am clearly of opinion that the witnesses, having given their testimony, and not having been cross-examined, having deposed to a state of facts which is quite reconcilable with the rest of the case, and with the fact of the retainer having been given, it was impossible for the plaintiff to ask the jury at the trial, and it is impossible for him to ask any legal tribunal, to say that those witnesses are not to be credited. But I can quite understand a case in which a story told by a witness may have been so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the box. [italics added]. I therefore wish it to be understood that I would not concur in ruling that it was necessary, in order to impeach a witness’s credit, that you should take him through the story which he had told, giving him notice by the questions that you impeached his credit.

In 1979, the Supreme Court of Canada considered the Browne v Dunn rule in their decision in a criminal appeal, Palmer v. the Queen (Supra). In Palmer, McIntyre endorsed the Court of Appeal decision, written by McFarlane, J.A. on behalf of the Court, at p. 229, as follows:

The second ground of appeal argued was that the trial Judge should have found that the evidence of Douglas Palmer raised at least a reasonable doubt of his guilt. With particular reference to the three occasions to which I have just referred, it was said that Palmer’s evidence was not shaken in cross-examination and it is suggested he was not specifically questioned about one or two of them. Reference was made to Browne v. Dunn (1894) The Reports 67, and to R. v. Hart (1932), 23 Cr. App. R. 202. I respectfully agree with the observation of Lord Morris in the former case at p. 79:

“I therefore wish it to be understood that I would not concur in ruling that it was necessary in order to impeach a witnesses’ credit, that you should take him through the story which he had told, giving him notice by questions that you impeached his credit.”

In my opinion, the effect to be given to the absence or brevity of cross-examination depends upon the circumstances of each case. There can be no general or absolute rule. It is a matter of weight to be decided by the tribunal of fact, vide: Sam v. Canadian Pacific Limited (1976) 1975 CanLII 1044 (BC CA), 63 D.L.R. (3d) 294, and cases cited there by Robertson, J.A., at pp. 315-7. In the present case Douglas Palmer was cross-examined extensively. It seems to me the circumstances are such that it must have been foreseen his credit would be attached if he testified to his innocence. In any event, this was made plain when he was cross-examined. The trial Judge gave a careful explanation of his acceptance of the story of Ford and rejecting that of Douglas Palmer. I cannot give effect to this ground of appeal.

I am in full agreement with these words and I do not consider it necessary to add to them save to emphasize that the finding against the credibility of Palmer was made upon much more than the evidence of these three events. It was based upon a consideration of the whole of the evidence including the full examination and cross-examination of Palmer. I would dismiss the appeal.

In 1985, in a decision of this Board in the case of Taraschuk, (Supra), chaired by Delisle, the issue involved criticisms expressed in an appraisal letter which were not raised with the employee during the relevant period and then subsequently were not raised during the employee’s cross-examination. The relevant section of the award reads, at p 162, as follows:

It is important to note that the Grievor was not cross-examined with respect to any of his evidence. Counsel for the Ministry sought to later have the supervisor testify to instances when he had been critical of the Grievor. This was ruled objectionable. [The decision then proceeds to quote the above quoted passage from Lord Herschell’s decision in Browne v. Dunn].

In cases where evidence has been permitted with respect to matters that were not put in cross-examination to the appropriate witnesses, it has been recognized that the party that failed to cross-examine (as would have been required to according to the Browne v. Dunn rule) but is nevertheless permitted to adduce its own evidence on the same point gains an advantage over the other party because it: “gains the advantage of further cross-examination of the impeached witness”. This is the recognized outcome in the decision in Machado v. Berlet (Supra). Where the Court stated, at page 209, as follows:

Counsel for the plaintiff submits that the films cannot now be used to impeach the plaintiff’s testimony if the rule in Browne v. Dunn has been breached. Undoubtedly, there is precedent to that effect: R. v. Jackson and Woods (1974), 1974 CanLII 1522 (ON HCJ), 20 C.C.C. (2d) 113 Ont. H.C.J.). It seems to me, however, that the more prevalent practice is to permit the impeaching evidence to be tendered (R. v. Dyck, 1969 CanLII 988 (BC CA), [1970] 2 C.C.C. 283, 70 W.W.R. 449, 8 C.R.N.S. 1919 (B.C.C.A.)), subject to the right of the plaintiff to call reply evidence to explain the impeaching evidence and subject to the right of adverse comment to the jury by both plaintiff’s counsel and the judge during address and charge. I will adopt that practice to this case. I note, however, that opposing counsel gains a further advantage by following this procedure. He gains the advantage of further cross-examination of the impeached witness.

In the decision of Whitehead in Re Laidlaw (Supra), the arbitrator found that the Browne v. Dunn rule does not constitute a mere legal technicality but rather that its breach constitutes a:

….fundamental defect in a cross-examination. [The arbitrator found that] the rule in Brown v. Dunn is also settled law in the courts in Canada (Sopinka, Lederman and Bryant, cited above, at p. 876), in the courts in Ontario (United Cigar Stores Ltd. v. Buller & Hughes, cited above, at pp. 147-8) and in the courts in other provinces… On the basis of the authorities referred to me, I also conclude that the rule in Browne v. Dunn is now a generally accepted principle of arbital jurisprudence in Canada (Gorsky, Usprich and Brandt,… at pp. 10 – 46;….

The arbitrator found that the Union did not give the witnesses

…sufficient opportunity to provide any clarifications or explanations of their evidence in light of the evidence the union intended to lead later...

In the Re Laidlaw case, Mr. Whitehead further considered the Union’s argument that he ought to exercise his statutory discretion to admit evidence in dispute even if the rule in Browne v. Dunn has been violated because:

the evidence is “proper” pursuant to s. 45(8.1), para. 10 of the Labour Relations Act and in order that the “real substance” of the dispute can be resolved pursuant to s. 45 (8), para. 1 of the Act.

However, in that case, Counsel for the Employer argued that an expanded right of reply would not cure the resulting prejudice to the employer’s witnesses because the Union would end up with two opportunities at cross-examination of the employer’s witnesses, in effect splitting the union’s case. The arbitrator found, at pp. 158-159, that;

…in this connection, …. in the normal course of an arbitration hearing, the obligation to put a witness, and the party calling that witness, on notice in cross-examination of the witness, that the evidence will be called to contradict evidence given and therefore to challenge the witness’s credibility and to give the witness an opportunity to respond to that evidence, is a fundamental principle of fairness and not a mere legal technicality.

…I find that counsel for the employer was entitled to assume that standard labour arbitration practices and rules of evidence were in effect during the hearing including the rule in Browne v. Dunn. I also find that the representative for the union ought reasonably to have been aware of the high probability that an arbitrator would enforce standard practices and rules including the rule in Browne v. Dunn. Finally, I find that the employer would be prejudiced in the circumstances if I admitted the evidence sought by the union contrary to this standard rule.

…I also agree with the submissions of counsel for the employer that a board of arbitration should not exercise its powers pursuant to S.45 (8), para.1 of the Act to address the “real substance” of the differences in circumstances where the effect of addressing the real substance would be to deny a party or a witness a fair hearing.

The Laidlaw decision has been followed in other cases, including by a decision by Gordon Simmons in Avenue II Community (Supra), provided at this hearing by Union Counsel.

In the case of R. v. Verney, (Supra) Mr. Justice Finlayson found, at p. 288, (Justices McKinlay and Abella concurring), that the Browne v. Dunn case does not create an absolute rule but rather “is a rule of fairness that prevents the ‘ambush’ of a witness”. Mr. Justice Finlayson’s concluded as follows:

28This admonition, based on a civil case, Browne v. Dunn, [1894] 6 The Reports 27, was not warranted in this case. Browne v. Dunn is a rule of fairness that prevents the “ambush” of a witness by not giving him an opportunity to state his position with respect to later evidence which contradicts him on an essential matter. It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness’s evidence-in-chief putting him on notice of every detail that the defence does not accept. Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness. Having the witness repeat in cross-examination, everything he said in chief, is rarely the tactic of choice. For a fuller discussion on this point, see R. v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; 1980 CanLII 175 (SCC), 30 N.R. 81; 1989 CanLII 25 (SCC), 50 C.C.C. (3d) 193, at pp. 209-210 C.C.C.

In Hurd and Hewitt (Supra), Mr. Justice Griffiths of the Ontario Court of Appeal considered the application of the Browne v. Dunn decision and the subsequent Supreme Court of Canada decision in Palmer. He appeared to apply the Morris exception in Browne v. Dunn to the facts of the case before him and he concluded, at p. 652, as follows:

My analysis of these authorities leads to the conclusion that there are no absolute rules in Canada as to the questioning of witnesses at hearings or trials adjudicating between parties. The argument that a party puts after failing to ask obvious questions of a witness may be so severely impaired as to be characterized as incredible. Yet, the evidence of a witness may be so obviously flawed that a party’s best interest lies in leaving that evidence to stand naked. In either event, the tribunal must assess the evidence and adjudicate upon the rights of the parties as those rights appear from that evidence, and not the evidence minus that which appears unfair to third parties.

The Ontario Labour Board examined the application of the Browne v. Dunn principle in 1996 in the decision in Re The Donwood Institute, (Supra) (Ian Springate). The Board did not prevent Counsel from asking certain questions on the basis of the Browne v. Dunn argument. In my opinion, it was implicit in the Board’s decision that the questions were permitted because the subject matter of the statement had been covered during the cross-examination of the witness even though the statement itself had not been put to the witness. The relevant portions of the Board’s decision read (on pages 2, 4, 7 respectively) as follows:

This award addresses four objections raised by counsel for the Employer respecting evidence given by the grievor. Three of the objections were based on the fact that statements made by the grievor about what she was told by Ms. Sabloff were not put to Ms. Sabloff when she was being cross-examined. The other objection concerned a statement the grievor claimed was made to her by Mr. Larry Jelinek, an employee called as a witness by the Employer, which was not put to Mr. Jelinek when he was being cross-examined. The arbitration board made oral rulings with respect to two objections and reserved its rulings with respect to the other two. Counsel for the Employer asked that the oral rulings be confirmed in writing.

It is clear from the R. v. Palmer and Hurd v. Hewitt cases that in Ontario there is no absolute rule respecting the cross-examination of witnesses prior to attacking their credibility. Further, there is no absolute requirement that a tribunal be fair to an individual witness. Logically, however, there is a requirement that parties to an arbitration proceeding be assured of a fair hearing. Nothing in the cases referred to above detracts from this requirement. Ms. Sabloff was the senior representative of the Employer at MAARS. We believe it would be unfair to the Employer to rely on a statement alleged to have been made by Ms. Sabloff which directly undermines the Employer’s position if during her testimony Ms. Sabloff was not given an opportunity to address either the alleged statement itself or the subject matter of the alleged statement.

We do not believe there is a legal requirement that each and every alleged exchange between the grievor and Ms. Sabloff that the grievor mentioned in her evidence had to be put to Ms. Sabloff. Further it is not apparent at this point what impact, if any, the alleged statement by Ms. Sabloff might have in these proceedings. Given these considerations we propose to take the statement in as evidence and leave it to the conclusion of the proceedings to decide what weight, if any, to give to the statement, including the impact of the fact that the statement was not put to Ms. Sabloff.

In Green v. Canada, (Supra), Mr. Justice Cullen reviewed the decision of an adjudicator in a termination of employment case. In that case, it was alleged by Counsel for the terminated employee that the adjudicator had erred in allowing counsel for the employer, in final submissions, to raise issues relating to the credibility of the employee’s evidence which had not been specifically challenged. The Court decided, (commencing at p.3), as follows:

This rule was violated, the applicant submits, because the adjudicator concluded that the reason that the applicant left the Tower was not because he thought that it was permissible to do so based on a previous authorization for a colleague, Mr. Lariviere, to do so. Mr. Lariviere had not been cross-examined on the evidence that contradicted the applicant’s evidence on this point. If counsel is considering the impeachment of the credibility of a witness by calling independent evidence, the witness must be confronted with this evidence while she or he is still in the witness box. Thus, the adjudicator improperly relied on the contradictory evidence in making her finding of credibility against the applicant.

The statute clearly provides that the adjudicator is not bound by the strict rules of evidence such as are applied in courts of law.

14. The standard of review regarding the adjudicator’s approach to the evidence is thus lower that that applied to a court.

15. The adjudicator allowed counsel to the employer, in closing submissions, to raise issues of credibility on evidence not specifically challenged. Counsel to the applicant submits that the consideration of evidence that should have excluded under the rule in Browne v. Dunn led to the finding of credibility against the applicant. Counsel further submits that this finding was the fundamental reason why the adjudicator did not reinstate the applicant. Counsel submits that the adjudicator cannot rely on evidence inadmissible in a court of law in making a finding fundamental to her decision in the case.

16. However, the credibility finding, though an important one, was not the sole reason why the adjudicator did not reinstate the applicant. (emphasis added). It is stated clearly in the adjudicator’s reasons that also fundamental to her decision was the breaking of the bond of trust between the applicant and the employer, the gravity of the misdemeanour, as well as her assessment of the applicant’s appreciation of the gravity of his actions.

17. Because the credibility finding was not at the heart of the adjudicator’s decision, I can find no authority to interfere with this aspect of the decision.

Since the credibility finding was not the sole basis for the adjudicator’s decision, the Court chose not to interfere with the decision even though it appeared that the Court might have come to a different determination with respect to the evidentiary Browne v. Dunn issue.

It is clear from the cases referred to by Counsel in this hearing that the Browne v. Dunn rule applies in Canada and more specifically in Ontario. The Re Laidlaw decision reviews in some detail the authorities in support of this conclusion. Moreover, it is also clear from the cases that the rule is not an absolute rule but rather that its application involves a judicial exercise of discretion. The cases also set out some parameters for the exercise of this discretion and these may be summarized as follows:

1. The Browne v. Dunn rule prevents the subsequent calling of evidence with the intention of impeaching a prior witness when there was no cross-examination of the prior witness on any of the evidence relating to the issue (Lord Herschell in Browne v. Dunn and Finlayson J., in R. v Verney);

2. The rule prevents the ambush of a prior witness by later evidence which contradicts that witness on an essential matter where there was no cross-examination of the prior witness on that essential matter; (Finlayson J., in R. v Verney);

3. The rule prevents the calling of evidence to contradict a prior witness and challenge that witness’s credibility, where the prior witness was not allowed the opportunity to respond to that evidence. The rule is thus one of the fundamental requirements of a quasi-judicial proceeding, namely, a requirement of natural justice and fairness (Whitehead, RE Laidlaw). In this sense, it is a rule “essential to fair play and fair dealing with witnesses” (Lord Herschell, L.C., in Browne v. Dunn);

4. The rule does not require counsel to ‘slog’ through every detail of a case in cross-examination (Finlayson J., in R. v. Verney);

5. The rule does not preclude the calling of evidence with respect to the contents of a statement, which contents were dealt with in a prior cross-examination of the witness (whose credibility is to be impeached), even though the entire actual statement was not specifically put to the witness being cross-examined. (Springate, in RE Donwood);

6. The rule does not preclude the calling of specific evidence which seeks to challenge a prior witness’ credibility if that witness’ credibility was extensively challenged, albeit not by the specific evidence in question but through other evidence (McFarlane, J.A. in Palmer v. the Queen);

7. The rule does not preclude the calling of subsequent evidence to impeach the prior witness where the evidence of the prior witness was so obviously flawed, “so incredible and romancing a character” that better judgement suggested it ought to have been left without being cross-examined upon (Lord Morris, Browne v. Dunn).

In the case before me, there was no indication given to the witness in his cross-

examination that his credibility was to be impeached by the employer’s subsequent evidence with respect to an essential matter; namely, the Grievor’s failure to grieve the unexpected termination of his training assignment. The notice to impeach must be clear and unambiguous. On the particular facts of this case, the situation cannot be fixed by allowing the Grievor to testify in reply since that would force the Union, as it would have forced the Employer in Re Laidlaw, to split its case and would force the Grievor to be subjected to two sets of cross-examinations. In conclusion, I find that the rule of Browne v. Dunn applies to the facts of this case. I find that the Employer has not met its obligation to put the Grievor on notice of the intended challenge to the veracity of his evidence relating to his discussions with Mr. Broughton. In particular, I find that evidence relating to the Grievor’s discussions with Mr. Broughton about the filing of a grievance with respect to the termination of the Grievor’s training assignment and the particulars of the Ministry’s ‘work to home’ distance requirement are inadmissible for all of the reasons set out above. This hearing will continue on a date to be scheduled by the Board.