[1981] OLRB Rep. June 634
0076-81-U International Union of Operating Engineers, Local 793, Complainant, v. The Corporation of the Town of Meaford, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members C. G. Bourne and H. Simon.
APPEARANCES; S. B. D. Wahl, B. McMillan and J. Redshaw for the complainant; Donald F. O. Hersey, Robert A. Macpherson and Mayor Gordon Crapper for the respondent.
INTERIM DECISION OF THE BOARD; June 22, 1981
- This matter arises out of a complaint alleging that the respondent employer has failed to bargain in good faith and, in effect, has sought to undermine the bargaining rights of the complainant. A central part of the complainant's case is a meeting which took place between the employer and the employees in the bargaining unit on October 27, 1980, just prior to the employees' own meeting to discuss ratification of a tentative settlement. The complainant summonsed one Stewart Merrifield, an employee in the bargaining unit, to testify before the Board. In the course of his evidence, Mr. Merrifield gave an account of the meeting with the employer which, the complainant alleges, differs materially from the account given to the complainant's business agent on October 27th. Also in the course of his evidence, Mr. Merrified testified that he and the other employees believed that the union would simply "drop out of the picture" if the employees voted against the settlement (which they did), and the employees would go back to dealing with the employer through their superintendent. The complainant also asserts that Mr. Merrifield gave his evidence in a most reticent manner Based on all of the foregoing, the complainant seeks leave of the Board to:
(a) fully cross-examine his own witness, Mr. Merrifield, immediately; or, if not permitted to do so,
(b) introduce proof to the Board that Mr. Merrifield did make the prior inconsistent statements to the business agent as alleged, and then to fully cross-examine Mr. Merrifield.
In the Board's view, no basis whatever exists for the complainant's first request. This, as will be discussed below, would depend on the Board being satisfied that Mr. Merrifield has demonstrated himself to be a "hostile" witness, as that term is used in the Common Law, and the Board is not so satisfied at the present time.
- The complainant's second request is grounded upon section 24 of The Evidence Act, R.S.O. 1970, c. 151. That section reflects the narrow limits within which a party may be permitted to impeach the credibility of its own witness, and provides as follows:
A party producing a witness shall not be allowed to impeach his credit by gene ral evidence of bad character, but he may contradict him by other evidence, or, if the witness in the option of the Judge or other person presiding proves adverse, such party may, by leave of the Judge, or other person presiding, prove that the witness made at some other time a statement inconsistent with his present testimony, but before such last mentioned proof is given, the circumstances of the proposed statement sufficient to designate the particular occasion shall be mentioned to the witness and he shall be asked whether or not he did make such statement.
In the context of this case, that section raises two issues for the Board: firstly, what is the meaning of "adverse" (and is it distinct from "hostile"), and secondly, is the Board called upon to make the finding of adverseness before it hears the evidence of other witnesses seeking to prove the prior inconsistent statement, or afterwards?
These questions were comprehensively dealt with by the Ontario Court of Appeal in Wawanesa Mutual Insurance Company v. Hanes (1961) 1961 CanLII 28 (ON CA), OR. 495, which was in turn considered immediately thereafter by the same Court in Boland v. The Globe and Mail, (1961) 1961 CanLII 162 (ON CA), O.R. 712. The points at issue here were not considered by the majority in the Supreme Court of Canada when Wawanesa reached that level, so that the majority decision of the Court of Appeal represents the present state of the law for this province. The Board finds the reasons of MacKay, J.A., to be particularly helpful in gaining an appreciation of the issues at hand, and, likely MacKay, J.A., proposes to set out in some detail the actual facts giving rise to the Court's decision.
In Wawanesa the plaintiff had insured the defendant under the standard automobile accident policy. The defendant, during the term of the policy, was involved in a serious automobile accident with one Woodward and others. As the result of an action by Woodward et al, against the defendant, judgment was obtained against the defendant. This judgment to the extent of their policy was paid by the insurance company, and they then brought action against the defendant to recover the sum so paid, pursuant to s. 214 of the Insurance Act, R.S.O. 1950, c. 183 [now R.S.O. 1970, c. 224], on the ground that the insured, the defendant, at the time of the accident, was in breach of the statutory provisions of the policy in that he was at all material times under the influence of intoxicating liquor to such an extent as to be for the time being incapable of the proper control of his automobile. One of the witnesses the plaintiff was relying upon was a Dr. MacIntosh, who happened, from his office window, to observe the defendant entering a local hotel on the day on which the accident subsequently occurred. Dr. MacIntosh was most unwilling to testify, and eventually had to be arrested by bench warrant and brought before the Court by the Sheriff. The evidence which he then gave was as follows:
Q. Had you seen Hanes and Earl on the day you heard about the accident? A. Yes. Q. Where were they when you saw them? A. I was sitting in my office. Q. Where were they when you saw them? A. They drove down the street, between my office and the hotel. Q. In a car? A. In a car. Q. Do you remember what kind of car? A. I cannot say. A dark colour as far as I can remember. Q. Did it stop? A. They went down the street and turned round. It is 40 feet across there. They came across and parked. Q. On the side or the main street? A. On the side street. Q. Who was driving? A. I cannot say. Q. It was one of the two? A. Yes. Q. What did they do when they got out. A. They got out and turned into the hotel at the side door opposite my place, and then went into the side door. Q. You observed them there? A. Yes, but I didn't see anything different about their walking... Q. You did not what? A. They had three steps to go up, and I didn't notice them waver or anything. Q. They got in a the side door? A. Yes. Q. What time of the day was that? A. I cannot say the time of day—it was night, while it was dark. Q. And did you see them again that evening? A. I saw them when they came out. Q. What time? A. Twenty minutes afterwards, or half an hour. I would not say definitely. Q. How did they proceed when they came out of the hotel and went to the car? A. I did not see them when they went to the car, and I did not know which was the driver, or who got in this side or that. I was not interested, I was just casually looking out. Q. How did they walk? A. All right, as far as I know. Q. How do you mean? A. As far as I could see... Q. Did you have any difficulty seeing them? A. No, I was looking through the window, and it was about 40 feet away.... Q. Was there any conversation between you and your grandson in reference to these men? A. I suggested... Q. Just answer the question. Was there any conversation. Do not tell me what the conversation was. A. No, no. I don't remember any conversation about them. We were talking about other things. Q. Was anything said, at any time, by you to your grandson about these men? I am not asking you what was said, but was anything said? A. I don't remember that. I don't remember. Q. In what manner did the driver proceed in the car, after getting into it and driving off? A. From what I could see he drove up the street and turned north. Q. Did you observe anything particular about the manner they drove? A. No. ... Q. Did you see them turn to go north. A. Yes. Q. How long was it before you received this telephone message that you saw them proceed in that direction? A. I would judge about 15 to 20 minutes, maybe a bit longer.
While one can glean a hint of reticence from the above, one cannot appreciate the position counsel for the plaintiff found himself in until one is made aware that Dr. MacIntosh gave the following statement to the Sheriff prior to the trial:
MR. HEWWIT: . . . I have information as to what Dr. MacIntosh saw. I have a statement in which he describes... His LORDSHIP: Indicate to me, so that I can judge the materiality of it... . (Mr. Hewitt brings the statement into Chambers). MR. HEWITT: My lord, if I may paraphrase it, he was sitting in the room looking outside, he saw car, he saw it stop and a mar. get out of the car, looked intoxicated, staggered, made his way to the hotel. The wall used for support to get to the hotel door. Tried the other door facing my house, couldn't get in, went to the front door, supporting on the wall of the hotel. Remained an hour or so and came out staggering towards the car. HIS LORDSHIP: I thing that is sufficient for the purpose of this warrant..
Counsel for tie plaintiff made application to the Trial Judge for leave to cross-examine the witness MacIntosh (as well as a second witness), and to introduce under section 24 of The Evidence Act then section 20), the prior inconsistent statement. The learned Judge adopted the view that "adverse” in section 24 meant "hostile", and refused the application on the ground that the witnesses did not by their manner and demeanour in the witness box show hostility.
- On appeal, Porter, C.J.O., began his analysis by noting that the authorities in this area differed, but that the weight of English and Canadian authority tended to support a construction which would render "adverse" as the equivalent of "hostile" in the sense of showing a hostile mind. As the learned Chief Justice was to note in the succeeding case of Boland v. The Globe & Mail, supra, at page 720:
... There was authority which indicated that "adverse", meant "hostile", in the sense of a hostile mind towards the party producing him, and that such hostility could be determined only by the demeanour of the witness and his manner of giving evidence.
Porter, C.J.O., in Wawanesa went on the state:
... I deem it to be my duty to consider the authorities afresh with a view to decide whether this or some other construction of the statute should be followed in Ontario.
The dissenting decision of Roach, JA. in Wawanesa proceeds entirely on the basis that "adverse' means nothing different from "hostile". The majority, however, concluded the opposite at page 505:
If it had been intended that a witness must be shown to be hostile in mind before the statement could be admitted, the statute could have said so. The work "adverse" is a more comprehensive expression than "hostile". It includes the concept of hostility of mind, but also includes what may be merely opposed in interest or unfavourable in the sense of opposition in position.
Schroeder, J.A., who wrote the majority decision in Boland, concurs with the majority conclusion in Wawanesa on precisely the same ground (see page 733 in Boland). Porter, C.J.O., then summarized his conclusion in Wawanesa as follows:
I am of the opinion that s.24 of the Evidence Act covers the whole field of prior inconsistent statements made by a witness of a party producing him. It embraces inconsistent prior statements made by a hostile witness, and by one who though not hostile is unfavourable in the sense of assuming by his testimony a position opposite to that of the party calling him.
- The words "by his testimony" in the quote above suggests that the declaration of "adverseness" precedes any consideration of the alleged inconsistent statement, as does a first reading of the remarks of the learned Chief Justice at the bottom of page 502.
The statute places upon the Judge the duty, first, to form an opinion as to whether the witness "proves adverse". If he is of the opinion that the witness has proven adverse, the circumstances of the proposed statement sufficient to designate the particular sufficient to designate the particular occasions shall be mentioned to the witness, and the witness must be asked whether or not he did make such statement. Finally, and only after this is done, the Judge may in his discretion, allow proof that the witness made such statement.
His full meaning, however, can be gleaned from his comments in Boland, at page 720.
Since the trial of this action, the whole question of such prior inconsistent statements has been reviewed by this Court in the Wawanesa Mutual Inc. Co. v Hanes 1961 CanLII 28 (ON CA), 28 D.L.R. (2d) 386, [1961] O.R. 495. By that decision the word "adverse" was held not to be restricted to the case where a witness was "hostile" but to include any case where the witness by his testimony assumes a position opposite to that of the party calling him, and is shown to have made a former inconsistent statement. If the Judge forms such an opinion, he then may in his discretion, allow the statement to be put to the witness, and if the witness does not admit that he made it, to allow proof that he did make it. The Judge, however, in considering whether he should admit the statement, should consider its relevancy and importance, and should satisfy himself that the two statements are inconsistent with one another. There is wide discretion given to the Judge by the section. (emphasis added)
as well as from the following passage in Wawanesa itself:
In cases where application is made to introduce a prior inconsistent statement under the Act, the Judge should, to determine whether a witness is adverse, consider the testimony of the witness, and the statement, and satisfy himself upon any relevant material presented to him that the witness made the statement. He should consider the relative importance of the statement, and whether it is substantially inconsistent. I think the Judge is entitled to consider all the surrounding circumstances that may assist him in forming his opinion as to whether the witness is adverse. It would be proper and the safer course, if such an enquiry becomes necessary, to conduct it in the absence of the jury, if the case is being tried by a jury. If after due enquiry the Judge is satisfied that the witness is adverse, he may consider whether under all the circumstances, and bearing in mind the possible dangers of admitting such a statement, the ends of justice would be best attained by admitting it. The section does not contemplate the indiscriminate admission of statements of this kind.
The Court, therefore, is distinguishing between the Trial Judge having the statement before him so that he may consider its effect, and whether he should then "admit" it, in the sense, normally, of allowing it to be proved in front of the jury. Since the Labour Relations Board functions, to date, without the use of juries, this distinction would appear to have little weight for the purposes of proceedings before our own tribunal. Rather than conducting a redundant voir dire, it may be more appropriate for the Board to request counsel to state the particulars of the prior inconsistent statement on which he relies, so that the Board may make an assessment of its potential effect prior to the hearing being side-tracked by actual proof of the statement. This, however, is simply a matter of procedure to be determined by the Board in the exercise of its discretion in each particular case. What is clear, is that the Board must in some way have the alleged prior inconsistent statement before it prior to ruling that a witness has not proven adverse, so that the proffering party is never deprived of the opportunity to have the Board consider the impact of the statement itself in its deliberations. As the Court noted in Boland, at page 734, on the procedure for finding "adverseness":
It is utterly improbable that the witness' testimony would have been offered if it had been anticipated that his evidence would have taken an untoward turn, and adverseness in a witness generally presents itself to the party who called him as a highly astonishing and unexpected development. The fact that the witness who is alleged to have proven adverse made at some other time a statement at variance with his testimony then under consideration is in the highest degree material to the subsidiary issue thus raised and, indeed, I cannot think of any single factor or piece of evidence that would be more competent as an aid in its determination. Whether it should be held that a witness has or has not proven adverse must depend upon the circumstances of each particular case.
Once the Board itself "admits" the evidence, of course, nothing further turns on a declaration of "adverseness", since the only effect of that finding is to legitimize the introduction into evidence of the prior inconsistent statement. This anomaly appears simply to reflect the fact that the language of section 24 (as well, as noted, of the learned Justices) contemplates trials of juries, and true voir dires.
- To put the matter in perspective, consider the situation which arose in Wawanesa. It is questionable whether one could have discerned even "adverseness" from the evidence which Dr. MacIntosh was giving at the trial, particularly where the witness remained calm and courteous. But when one adds to the evidence the knowledge of Dr. MacIntosh's prior inconsistent statement, the witness' "adverseness" becomes readily apparent. In Boland the learned Trial Judge fell into the same error as occurred in Wawanesa, and the Court of Appeal
The learned Judge's failure to receive and consider this evidence before deciding whether to grant or withhold the leave sought by the plaintiff was error in relation to a matter of substance which is sufficient in itself to justify an appellate Court in reviewing the exercise of the trial Judge's discretion. (emphasis added)
As MacKay, J.A., commented in Wawanesa, at pages 529 and 534:
I think there is support in many of the decisions I have referred to for the proposition that it is in the interests of justice that where a witness has previously made a statement in regard to the matters in issue at a trial that is inconsistent with his testimony in the witness-box, that that fact should be made known to the trial tribunal in order that proper weight may be giver to the evidence.
The only purpose of a trial, in so far as the facts of a case are concerned, is to ascertain the truth and it seems to me that this purpose might well be defeated if a party were not permitted to show that a witness called by him in good faith, on reliance of the witness' previous statement, has told a story in the witness-box inconsistent with his previous statement in respect of the same facts. In such case it is of the utmost importance, in the interests of justice, that such a witness should be compelled to explain his change of story.
- This demonstrates the policy basis for establishing the lesser test of "adverseness" for the introduction of a prior inconsistent statement, as opposed to "hostility". As Porter, C.J.O., pointed out in Wawanesa, at page 505, hostility is a form of adverseness; but it is not synonymous with that word. It is a higher form of adverseness (just as "gross negligence" is a higher form of "negligence"). And it is only a finding of hostility which will permit the full cross-examination ultimately sought by the applicant in the present case. MacKay, J.A., succinctly sums up in Wawanesa, at page 528, the full law of evidence governing this area, and it is useful to reproduce his comments here:
It is to be observed that the only right given by s.[24] is, if the witness proves adverse, with leave of the Judge, to prove that the witness made at other times a statement inconsistent with his present testimony. There is nothing in the section as to cross-examination and the section does not come into operation unless there is evidence to prove a prior inconsistent statement. There is, I think, no question that if a witness proves hostile and is so declared by the Judge, counsel may cross-examine the witness gene -ally as to the matters in issue in the manner stated by Cross, including cross-examination as to any prior inconsistent statements, whereas on an application made under s.[24] of the Evidence Act, the only right that can be given is to prove the prior inconsistent statement after having drawn to the attention of the witness the statement and the circumstances of the making of it and asking him whether he had in fact made it. If he admits having made it, that admission supplies the proof, and the calling of witnesses to prove the making of it would be unnecessary, but unquestionably he could be questioned in regard to whether the prior statement was true and if he admitted its truth it would be evidence to be considered in the case. If he denies its truth but admits having made it, or if he does not admit having made it and it is proved by other witnesses that he did, then it goes only to the credibility of the witness.
- The applicant, therefore, must satisfy the Board that its witness is "hostile" if it is to have full rights of cross-examination. In Referencere R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R.191, at page 213, Kellock, J defined "hostile" as "not giving her evidence fairly and with a desire to tell the truth because of a hostile animus toward the [party who called her]." The next question, then, may be stated in the dissenting words of Roach, J.A., in Wawanesa, at page 517:
The next question is,—How is hostility determined? Until that question cropped up in this case I did not think there was any doubt as to how it would be determined. It would be determined, so I thought and still think, by the Judge observing the witness as he gave his evidence in the witness-box, his demeanour and his general attitude and the substance of his evidence.
Whether evidence of a prior inconsistent statement could be added to the list of factors has long been a matter of judicial debate. As Grove, J. said, for example, in the 1886 case of Rice v. Howard, 16 Q.B.D. 681, at 684:
It would be a very nice question, and one upon which I should entertain great doubt, whether the judge, where there is nothing in the witness' demeanour to show that he is hostile, ought to receive extraneous evidence of the kind tendered in the present case for the purpose of determining whether he is hostile or not.
The majority of the Court in Wawanesa, however, disagreed with Grove, J. and Roach, J.A., and affirmed the view that the trier of fact may apply evidence of a prior inconsistent statement as part of the material to establish that a witness is hostile.
- The Board, in summary, reaffirms the procedure it follows in dealing with allegations of prior inconsistent statements by a party's own witness, as outlined in F. G. Bradley Co., [1973] OLRB Rep. June 342, at paragraph 9:
... The Board upon a motion made pursuant to section 24 of The Evidence Act, will permit counsel to adduce evidence of prior statements allegedly made by his witness which are inconsistent with the testimony of such witness as adduced during the course of the hearing, provided that these statements are put to the witness and the witness denies making them. Counsel's inquiry in this regard will be restricted generally to questions relating to the circumstances surrounding the making of the alleged inconsistent statements and he will not be permitted to cross-examine his witness on extraneous matters. Of course, if the witness admits the statement, that ends the matter. Assuming, however, that the statements are denied, counsel will then be permitted to introduce evidence to show that such alleged statements were in fact made. At the conclusion of such evidence, the Board must then decide as to whether on the balance of probabilities the alleged prior inconsistent statements were in fact made. If the Board is satisfied on the basis of all of the evidence that the statements were made, then normally counsel will be permitted to cross-examine the witnesses on the basis that the witness is "adverse" or "hostile".
The only portion of the above passage which now might be clarified is the final sentence. The use of the term "adverse" in the last line in conjunction with the word "hostile" (as in the Ontario Court of Appeal case of R. v. Cooper, 1969 CanLII 496 (ON CA), [1970] 2 OR. 54) makes it clear that "adverse" is being used in connection with rights of cross-examination only in its stronger sense of being actually "hostile", in accordance with the foregoing summary of the case law. To avoid any confusion in future, one might be better not to use the term "adverse" at all when speaking of full rights of cross-examination, since that word appears only within the context of section 24 of The Evidence Act, which, as MacKay, J.A. pointed out, has nothing to do with the matter of cross-examination at large. On the other hand, the finding of a prior inconsistent statement might well, depending on its seriousness and relevance, and the likelihood of a mere lapse in memory, be sufficient in itself to cause the Board to declare the witness "hostile" for the purpose of cross-examination (see, e.g. R. v. Hunter, [1956] V.L.R. 31, quoted with approval by the majority in Wawanesa), in which case the concepts of "adverseness" and "hostility" do in fact merge. Whether this will "normally" be the result, however, remains to be determined on a case-by-case assessment.
- The end result of this interim decision, therefore, is that the applicant will be permitted to place its alleged prior inconsistent statement before the Board if it chooses, and if the Board ultimately determines that the statement was made, the applicant may use that as a factor in persuading the Board to declare the witness Merrifield to be hostile. From that declaration would then flow the applicant's sought-after right to cross-examine Mr. Merrifield at large.