[1983] OLRB Rep. January 84
0745-81-R Labourers' International Union of North America, Local 183, Applicant, v. Heart Construction Co. Ltd., Respondent, v. United Brotherhood of Carpenters and Joiners of America Local 1190, Intervener
BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: J. Sack, Q. C. and C. M. Mitchell for the applicant; no one appearing for the respondent; David A. McKee and James Tobin for the intervener.
DECISION OF THE BOARD; January 27, 1983
The Labourers' International Union of North America, Local 183 ("Local 183") has made allegations of improper or irregular conduct with respect to certain alleged conduct which was attributed to the United Brotherhood of Carpenters and Joiners of America, Local 1190 ("Local 1190"), the respondent and the Ontario Carpentry Contractors Association ("OCCA"). In the course of adducing evidence with respect to its allegations, Local 183 served a subpoena on Mauro Angeloni, the secretary of the OCCA. This subpoena was in the form of a subpoena duces tecum and required Mr. Angeloni to bring with him certain documents which were believed to be in his custody. After certain delays, Mr. Angeloni agreed to appear before the Board and agreed that the previous subpoenas duces tecum that had been served on him by Local 183 were binding in respect of his appearance before the Board. He further agreed to produce all of the required documents before the Board.
At the hearing, Local 183 was permitted to inspect the documents which were in the custody of Mr. Angeloni. Local 183 then sought to prove certain of these documents and compare the handwriting on documents which were previously in evidence before the Board. In this way Local 183 sought to avoid calling Mr. Angeloni, as a witness with the result that Local 1190 would not be given the opportunity to cross-examining Mr. Angeloni (who was perceived by Local 183 as being allied in interest with Local 1190). Mr. Angeloni and Local 1190 opposed this method of proving the documents and the Board after hearing brief argument ruled orally that the documents in question were to be proved through the calling of Mr. Angeloni as a witness.
Subsequently, Local 183 asked the Board to reconsider its decision. The Board entertained this request and more detailed and elaborate argument was addressed to the Board.
A subpoena duces tecum has been defined in Black's Law Dictionary as follows:
A process by which the court, at the instances of a suitor, commands a witness who has in his possession or control some document or paper that is pertinent to the issues of a pending controversy, to produce it at the trial.
There is no issue before the Board concerning its authority to issue a subpoena duces tecum. The nature and scope of the subpoena duces tecum is derived from a number of nineteenth century English cases. One of the earliest cases to deal with this point was Davis v. Dale (1830) 172 E.R. 729, where it became necessary to give in evidence certain written agreements. The agent who held them was served with a subpoena duces tecum and was subsequently called upon by the plaintiff to produce the documents without being sworn as a witness in the cause. The defendant argued that the course pursued by the party calling such a person assumed that he was in possession of the papers required, which assumption, it was claimed, the plaintiff had no right to make. The defendant also argued that the only way to ascertain this fact was for the question to be put to the agent, and the putting of the question would clearly render the agent as a witness, and entitle the other side to cross-examine. The court, through Lord Chief Justice Tindal, expressed the view that a person having custody of papers and being subpoenaed to produce them on the trial of a cause, may be called on to put them in without being sworn. Accordingly, the agent was not sworn and the defendant was not given an opportunity to cross-examine.
- A few years later, support was expressed for the proposition that the subpoena duces tecum has two separate aspects in the comments of Parke, J. in Perry
v. Gibson (1834) 110 E.R. 1125, 1126, where he stated:
I always thought that a subpoena duces tecum had two distinct objects and that one might be enforced without the other.
Parke, J. made reference to the ad testiticandum and the duces tecum aspects of the subpoena, with the first requiring attendance for the purpose of giving oral testimony and the latter requiring the person to attend and produce the documents which had been referred to. This point was further elucidated in the same year in Summers v. Moseley (1834) 149 E.R. 849, where Bayley, B. indicated that it does not follow that because a person is called upon to produce a document or documents that he must be called upon to give oral evidence. At page 853, he stated as follows:
That question which was very important as a rule of evidence, was, whether a bailiff having been called by the plaintiff to produce the warrant from the sheriff under which he had acted, had a right to insist upon being sworn in the ordinary form as a witness, so as to give the defendant an opportunity of cross-examining him, or whether the plaintiff in the cause had a right to insist upon the production of the warrant without the bailiff being sworn. Several cases were cited upon the argument as having been decided in conformity with the rule as contended for on behalf of the plaintiff, but they were all cases at Nisi Prius, and as the question is one of great importance and frequent occurrence, and it is highly desirable that the rule of evidence should be fixed, we were desirous of having an opportunity of communicating on the subject with the Judges of the other courts before we delivered our judgment. We have accordingly had a communication with the other Judges, and the result is, that we are of opinion that the cases ruled at Nisi Prius, and relied upon on behalf of the plaintiff, were rightly ruled, and that the officer is compellable to produce the document in his possession without being sworn, the party calling him to produce it not having occasion to ask him any question.
- More recently in Tribune Newspaper Company Limited v. Fort Frances Pulp and Paper Company Limited (1932) 1932 CanLII 291 (MB CA), 40 Man. R. 401, 409, Ronson, J. A. stated:
There is no need to elaborate the fact that a person subpoenaed in this way [subpoena duces tecum] may be called on to produce documents without being sworn, or he may be sworn and then submit to examination as to the existence, whereabouts or control of the documents.
Similarly, in Cross on Evidence, 4th Edition, the following comment appears:
Someone who simply produces a document pursuant to a subpoena duces tecum does not have to be sworn if there is another witness who can identify the document. This means that the person producing it cannot be cross-examined.
- In Canadian texts, Holmstead and Gale states at page 1429 as follows: The two phases of testimony, personal and documentary are deemed to be separate, and the summoning party is entitled to require the witness to produce the document, without putting him on the witness stand to speak as to his general knowledge of the case.
The practice of having a document produced without swearing the witness is known as calling a witness on his subpoena and in The Law of Evidence in Civil Cases (1974), Sopinka and Lederman at page 499 refer to Lyone v. Long 1917 CanLII 227 (SC EnBanc), [1917] 3 W.W.R. 139, which case set forth a number of situations in which "witnesses" were not subject to cross-examination. One example of this exemption was:
A witness called merely to produce a document where the document requires no proof or is to be proved by other means.
- For the foregoing reasons, the Board reconsiders and revokes its previous oral ruling in this matter. Local 183 may endeavour to prove the documents in Mr. Angeloni's custody through the forensic expert without the necessity of calling Mr. Angeloni as a witness.