[1984] OLRB Rep. June 798
1296-82-U; 0195-83-U Luciano D'Alessandro and Donato Marinaro, Complainants, v. Labourers' International Union of North America, Local 1089, and Rocco D'Andrea, Respondents
BEFORE: Robert D. Howe, Acting Chairman, and Board Members F. W. Murray and W. F. Rutherford.
APPEARANCES: Ed J. Brogden and Dianne L. Haskett for the complainants; A. M. Minsky, R. D'Andrea and D. D'Andrea for the respondents.
DECISION OF THE BOARD; June 6, 1984
- These are complaints under section 89 of the Labour Relations Act in respect of certain hiring hall referrals. The complaints were consolidated by the Board on August 18, 1983 (along with certain other section 89 complaints which are no longer before the Board). The complaints allege various violations of section 69 of the Act, which provides:
Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith.
Mr. Marinaro's complaint also alleges a violation of section 70 of the Act in relation to the impugned referrals. (In addition to section 69, Mr. D'Alessandro also initially alleged that he had been dealt with by the respondents contrary to section 68 of the Act. However, that allegation was withdrawn on February 2, 1984 by Mary Portiss, who was at that time acting as his counsel.)
- In a decision dated July 11, 1983 in File No. 1278-82-U (reported in [1983] OLRB Rep. July 1160), another panel of the Board found that the respondent trade union (also referred to in this decision as "Local 1089") had engaged in arbitrary and discriminatory referrals to employment and designations to employment in the administration of its hiring hall contrary to section 69 of the Act, and made an extensive order to remedy the situation. That complaint was brought by Joe Portiss, who is serving as an advisor to complainants' counsel in the instant case. On January 31, 1984, the present panel of the Board heard submissions of the parties concerning the extent to which we could rely in the instant proceedings on the findings made in the Portiss case. On February 1, 1984, the Board made the following oral ruling (which counsel for the respondents requested the Board to provide in the form of a written decision):
Having carefully considered the submissions of the parties, we are not prepared to adopt, without proper proof before this panel, the findings of fact contained in the decisions of the Board, differently constituted, in the Joe Portiss case (File No. 1278-82-U). With respect to the extent to which the Board can rely upon findings made in an earlier decision, see generally Radio Shack, [1979] OLRB Rep. March 248; Re Tandy Electronics Ltd., 1979 CanLII 1914 (ON HCJ), [1979], 26 O.R. (2d) 68 (Div. Ct.); Napev Construction Limited, [1980] OLRB Rep. June 862; and Oakwood Park Lodge, [19801 OLRB Rep. Oct. 1501.
The present complainants were not parties to the Portiss complaint, nor were they privies to any of those parties. Thus, if Mr. Portiss's complaint had been dismissed, they would not have been precluded from filing the present complaints by the concept of res judicata, issue estoppel, or any analogous legal principle. Moreover, the issue before the Board in the Portiss case was whether the respondent trade union contravened section 69 of the Act by acting arbitrarily, discriminatorily or in bad faith in the selection, referral, assignment or scheduling of Mr. Portiss to employment. The issue in the present case is whether the respondent trade union has acted arbitrarily, discriminatorily or in bad faith in the selection, referral, assignment, designation or scheduling of Donato Marinaro and Luciano D'Alessandro to employment. Although the Board awarded extensive relief to remedy the hiring hall abuses which it found in that case, we do not view that decision as being a decision in rem which is binding as against any and all future parties. The respondents elected to call no evidence in respect of the complaint by Joe Portiss. However, they are entitled by the rules of natural justice and by section 102(13) of the Act to present evidence and make submissions in respect of the present consolidated complaints if they wish to do so. As indicated in our earlier ruling in which we found the section 89(5) "reverse onus" to be inapplicable in the present case, the onus is on the complainants to duly prove their complaints on the balance of probabilities. The fact that another member of their union succeeded in proving his complaint and obtained monetary and other relief from the Board does not assist the present complainants, although the existence of the broad remedial order made in that case is a matter of public record and can be taken into account in the present case in determining the appropriate remedy to be granted to the complainants if their case succeeds. Similarly, the method of calculation of damages set forth in that panel's decision dated September 30, 1983 (reported in [1983] OLRB Rep. Sept. 1554) may well be of assistance to the present panel if it becomes necessary to quantify damages, since we would be unlikely to deviate from that approach unless we were satisfied that the approach adopted in that case is inappropriate in the circumstances of the present case. Thus, the existence of the Portiss decisions is by no means irrelevant to the present proceedings. However, for the aforementioned reasons, we are not prepared to accede to the complainants' request that we adopt and apply the findings of fact contained in those decisions.
We are very concerned, however, about the potential length of the present proceedings, and the associated costs to the parties and to the Board. Accordingly, we strongly urge counsel to meet and attempt to agree upon as many pertinent facts as possible so as to narrow and define the factual issues in dispute between the parties. It appears to us that it is in the interest of all of the parties to minimize as far as possible the number of days of hearing time required to litigate this case, so as to minimize legal and other costs associated with it and avoid unnecessarily protracted and costly litigation.
- On April 12, 1984, Mr. Brogden, who (along with Ms. Haskett) had by that time become counsel for both complainants, subpoenaed and called Anna Iacobelli to testify as a witness in these proceedings. At the beginning of her testimony, Ms. Iacobelli testified that she has worked for the respondent trade union since June of 1979, initially as a receptionist and later as a bookkeeper. Her duties as a receptionist included "taking dues, sending people out to work, filing, typing, answering the phone, and transferring men in and out". At all material times, the respondent Rocco D'Andrea, who is the business manager of Local 1089, has been her immediate supervisor, but she also takes instructions from Orfeo Iacobelli, whom she advised the Board
(near the outset of her evidence) to be her father and (as President of Local 1089) a member of the Local's Executive Board. Mr. Iacobelli is also a full-time business representative of Local 1089.
- Mr. Brogden's examination-in-chief of Ms. Iacobelli continued for approximately five and a half hours on April 12 and a further five and a half hours on May 1. She was then cross-examined by respondents' counsel for about an hour on May 1 and for approximately four hours on May 2. When Mr. Brogden was asked by the Board near the end of that hearing day if he wished to re-examine the witness, he advised the Board that it was his intention to have Ms. Iacobelli "declared an adverse and hostile witness", and to seek leave to cross-examine her, on the basis of (alleged) inconsistencies between her evidence-in-chief and her evidence in cross-examination. After hearing some initial submissions with respect to that matter and with respect to whether the hearing should be adjourned to afford complainants' counsel an opportunity to prepare further submissions on the matter, the Board, after recessing to consider the situation, ruled as follows:
Having regard to all the circumstances, including the hour of the day, and in an effort to avoid any unnecessary loss of hearing time, we are prepared to afford counsel for the complainants an opportunity to submit written argument concerning this matter, such argument to be provided to the Board and to counsel for the respondents on or before Monday, May 14, 1984. Counsel for the respondents will then have an opportunity to respond by means of written submissions to the Board and to counsel for the complainants on or before Wednesday, May 23rd. Counsel for the complainants will then have an opportunity to submit written reply argument to the Board and to counsel for the respondents on or before Wednesday, May 30. It is our hope that this process will permit the Board to be in a position to rule on this matter by the commencement of the continuation of hearing scheduled for June 12, 1984 in this matter.
The written submissions filed with the Board on behalf of the complainants pursuant to that ruling were prepared by Ms. Haskett. In those submissions, counsel requests the Board to grant Mr. Brogden leave to "fully cross-examine Ms. Iacobelli. In support of that position it is alleged that Ms. Iacobelli is a hostile witness. In the alternative, counsel relies upon section 23 of the Evidence Act, R.S.O. 1980, c. 145, as a statutory basis for fully cross-examining Ms. Iacobelli, or cross-examining her on certain statements made by her in examination-in-chief which are allegedly inconsistent with other statements made by her during cross-examination.
In his written response to those submissions, Mr. Minsky submits on behalf of the respondents that Ms. Iacobelli's answers given in cross-examination are not inconsistent with her answers given in examination-in-chief and that, in any event, the preconditions for the application of section 23 of the Evidence Act have not been met. He further submits that there is no factual or legal basis for the complainants' claim that Ms. Iacobelli is a hostile witness.
For the purposes of this decision we are prepared to assume, without deciding, that there are some inconsistencies between Ms. Iacobelli's answers in examination-in-chief and her answers in cross-examination. Indeed, it would he rather remarkable if there were not at least some minor inconsistencies in the evidence of a witness testifying for a total of approximately sixteen hours, over the course of three days, concerning numerous events which occurred over a span of several years. However, in fairness to the witness, we feel compelled to observe that at least some of the alleged inconsistencies appear to have arisen from the fact that she was responding to substantially different questions. For example, testimony that the witness is not required to read collective agreements as part of her job is not inconsistent with testimony that she "sometimes" does look at collective agreements and has some awareness of their contents (on the basis of what others have told her about them) and their impact on the operation of a hiring hall. The same may be said of Ms. Iacobelli's evidence concerning the requirement of attempting to telephone for two hours (at intervals of approximately ten minutes) persons whose names have reached the top of the out-of-work list, which evidence was later qualified in cross-examination concerning calls to members with specific qualifications listed next to their names on that list. It is also apparent from both the written submissions of Ms. Haskett and Mr. Minsky that neither of them have completely accurate notes of the evidence. For example, Mr. Minsky indicates (at page 7 of his submissions) that his "notes reveal that the entire question of calling a member for a period of two hours was raised in cross-examination for the first time". However, in actual fact that matter arose in Ms. Iacobelli's testimony-in-chief in respect of the matter of why Mr. Marinaro was not called until 2:00 p.m. on May 6, 1983, rather than earlier that day. Similarly, Ms. Haskett suggests (at page 2 of Schedule "A" to her submissions on behalf of the complainants) that Ms. lacobelli indicated in examination-in-chief that a member who was sick would be "in limbo", but stated in cross-examination that if a member was sick he was kept at the top of the list until he could return to work. In fact, what Ms. Iacobelli testified in both examination-in-chief and in cross-examination is that a member is "in limbo" until he provides a medical certificate indicating that he is fit to go to work, after which he must wait seven days before being referred to work on the basis of his name being, in effect, at the "top of the list".
A party seeking leave of the Board to embark upon a full cross-examination of a witness called by that party must satisfy the Board that the witness has proven "hostile" (or that some other proper basis exists for granting such leave). Having duly considered the written submissions of counsel and all of Ms. Iacobelli's testimony to date, we have concluded that there is no factual or legal basis for the complainants' contention that Ms. Iacobelli is a hostile witness. In Reference re R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, at page 213, Kellock J. defined "hostile" as "not giving. . . evidence fairly and with a desire to tell the truth because of a hostile animus toward the [party who called the witness]." The issue of hostility is determined by the Board observing the witness as she gave her evidence, and considering her demeanour, general attitude, and the substance of her evidence (see, for example, The Corporation of the Town of Meaford, [1981] OLRB Rep. June 634, and the authorities referred to in that decision). We are not, of course, in a position to conclusively determine at this stage of the proceedings the matter of Ms. Iacobelli's credibility as a witness, or the weight to be given to her evidence. That can only be done after we have heard and considered all of her testimony, and all of the other evidence that has been and will be adduced during the course of this case. It is sufficient for the purposes of this decision to find that Ms. Iacobelli has not in any of her testimony to date demonstrated hostility towards the complainants. It is true that Ms. Iacobelli was quite annoyed by Mr. Brogden's suggestion that she was not a truthful witness. It is also true that she was admonished by the Board when she expressed that annoyance from the witness box during the course of Mr. Brogden's submissions to the Board on the afternoon of May 2nd. While we do not agree with Mr. Minsky that Ms. Iacobelli's reaction to Mr. Brogden's submissions is "an irrelevant and extraneous consideration" with respect to the issue of hostility, we are satisfied that her reaction, although not appropriate in the context of a Board hearing, is somewhat understandable under the circumstances and does not, in any event, establish her to be a hostile witness in the sense referred to above.
For the foregoing reasons, counsel for the complainants' request to cross-examine Ms. Iacobelli on the basis of her being a hostile witness is denied. We shall now proceed to consider whether section 23 of the Evidence Act provides a basis for permitting such cross-examination, as submitted on behalf of the complainants. That section provides as follows:
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may contradict him by other evidence, or, if the witness in the opinion 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
As submitted by counsel for the respondents, it is apparent from the language of that section that it is inapplicable in the circumstances of the present case. That the words "at some other time" refer to a time other than a time at which the witness was testifying before the Board as a witness in the instant case is apparent from the fact that the section contemplates that the party seeking to rely on that provision will "prove" that the witness made such statement. Before "such . . . proof is given", the section requires that "the circumstances of the proposed statement sufficient to designate the particular occasion shall be mentioned to the witness.
By way of contrast, the inconsistent statements upon which complainants' counsel relies were (allegedly) made by the witness during her examination-in-chief in the present proceedings. Thus, there is nothing for the Board to give counsel leave to prove. Further support for that position is provided by Wawanesa Mutual Ins. Co. v. Hanes, 1961 CanLII 28 (ON CA), [1961] O.R. 495 (Ont. C.A.) in which MacKay J. A., in explaining the policy basis for section 23, wrote as follows (at page 534):
The only purpose of a trial, in so far as the facts of a case are concerned, is to ascertain the truth of the matters in issue 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's 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.
(Emphasis added.)
See also page 529 at which the learned appellate justice wrote, in part, as follows:
... 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 at 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 given to the evidence.
- All that section 23 empowers a party to do (with leave of the Board) is to prove that the witness made a statement inconsistent with the witness's "present testimony". In this regard, reference may usefully be made to the following passage from MacKay J. A.'s aforementioned judgment (at page 528):
lt is to be observed that the only right given by s. [23] 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 generally 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. [23] 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 the 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 having made it and it is proved by other witnesses that he did, then it goes only to the credibility of the witness.
In the instant case, the statements which complainants' counsel relies upon are said to form part of the witness's "present testimony". Thus, it is nonsensical to speak of the Board giving complainants' counsel leave to prove that such statements were made. If they were in fact made, they already form part of the evidence before us. Moreover, this situation does not fall within the ambit of the policy considerations described by MacKay J. A. in the Wawanesa case. This is not a situation in which "a witness called by [complainants' counsel] in good faith, in reliance on the witness's previous statement, has told a story in the witness box inconsistent with [her] previous statement in respect of the same facts", and in which the Board may be misled by the witness's testimony in its quest for the true facts, by virtue of being unaware of the earlier inconsistent statement. As noted above, the inconsistent statements were allegedly made before the Board as part of the witness's evidence-in-chief and, therefore, can be duly considered by the Board in assessing the weight to be given to the witness's other evidence without any need for relying upon section 23. Thus, it is our conclusion that section 23 of the Evidence Act provides no support for the request by complainants' counsel for leave to cross-examine Ms. Iacobelli.
A four page "reply" to Mr. Minsky's submissions was filed with the Board by Mr. Brogden. That document includes submissions which go considerably beyond the proper scope of reply argument. For example, in that document Mr. Brogden suggests for the first time that he should be permitted to cross-examine Ms. Iacobelli on the ground that she "was treated by all counsel and. . . by the tribunal, as if she was an expert witness". If we were of the view that there was any merit in those of Mr. Brogden's "reply" submissions which exceed the proper ambit of reply argument, we would have to decide whether to disregard those submissions or to take them into account only after affording Mr. Minsky an opportunity to answer them. However, it is unnecessary to resolve that question in the present case since none of the submissions contained in that document persuade us that complainants' counsel should be afforded an opportunity to cross-examine Ms. Iacobelli at this stage in the proceedings. Ms. Iacobelli was neither declared to be an expert witness nor so treated by the Board or by counsel. As indicated above, she testified concerning the operation of Local 1089's hiring hall on the basis of her experience as a receptionist (and later a bookkeeper) in that respondent's office. She has a Grade 12 education, but has no special training in secretarial or other skills pertaining to the operation of a hiring hall, nor is there any evidence that she has any familiarity with the operation of hiring halls other than Local 1089's. To the extent that counsel seeks leave in his reply to cross-examine Ms. Iacobelli on the basis that, as a matter of policy, the Board should permit counsel to test her honesty and the accuracy of her evidence by "the only method available to our adversary system of practice", we note that there are well-established principles which govern the use of that method and that the Board, while not strictly bound by the rules of evidence and procedure adopted by the Courts, does not find it appropriate to permit the unprecedented and unwarranted departure from those procedures which complainants' counsel advocates in this case.
In summary, complainants' counsel has not satisfied us that he should be permitted to cross-examine Ms. Iacobelli at this stage of the proceedings on the basis of common law principles concerning hostile witnesses, on the basis of section 23 of the Evidence Act, or on any other basis. Counsel has not cited, nor has the Board's independent research revealed, any authority which would support the proposition that inconsistencies between a witness's testimony during examination-in-chief and her testimony in cross-examination make it appropriate for a tribunal to permit counsel to cross-examine the witness during re-examination, in the absence of a finding of hostility on the part of the witness. Nor are we satisfied as a matter of policy or procedure that the Board should permit such cross-examination in the circumstances of this case.
For the foregoing reasons, counsel for the complainants' request for leave to cross-examine Ms. Iacobelli at this stage of the proceedings is hereby denied. This ruling does not, of course, preclude counsel from renewing his request to cross-examine Ms. Iacobelli if she proves to be a hostile witness during the course of her re-examination. It also does not preclude counsel from re-examining Ms. Iacobelli concerning the statements in question in order to clarify testimony given in-chief that has been obscured in cross-examination (see Sopinka and Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworth & Co. (Canada) Ltd., 1974) at page 516).