Dominion Paving Limited v. Labourers' International Union of North America, Local 183

[1985] OLRB Rep. July 1022

2093-84-U; 2094-84-U Dominion Paving Limited Complainant, Labourers' International Union of North America, Local 183, International Union of Operating Engineers, Local 793, Amalgamated Transit Union, Local 113, Michael Reilly, Frank Spera, John Ricciuto, James Carruthers and Roy Hinds, Respondents

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members B. L. Armstrong and I. M. Stamp.

APPEARANCES: William S. Challis and Frank Bel Castro for the complainant; S. B. D. Wahl, M. O'Brien and E. Ford for Labourers' International Union of North America, Local 183 and International Union of Operating Engineers, Local 793; H. M. Pollit for Amalgamated Transit Union, Local 113, James Carruthers and Roy Hinds.

DECISION OF THE BOARD; June 26, 1985

1. This is a complaint under section 89 of the Labour Relations Act, together with an application under section 135(1) of the Act, alleging that the named respondents have unlawfully picketed a job site upon which the complainant was carrying out work for the City of Toronto.

2. The complainant in the course of proving its case has called as a witness Michael Reilly, one of the individuals named as a respondent in these proceedings, and an officer of the respondent Local 183. The complainant has, part way through its examination- in-chief, sought to cross-examine Mr. Reilly, and asserts that it is entitled to do so as a matter of right. In putting forward this position, the complainant relies upon section 53.07 of the new Rules of Civil Procedure, 0. Reg. 560/84, which provides in part:

"53.07(1) A party may secure the attendance of a person who is,

(a) an adverse party;

(b) an officer, director or sole proprietor of an adverse party;

as a witness at a trial...

(3) A party calling a witness referred to in sub-rule (1) may cross-examine him or her."

Those Rules are stated to apply only to civil proceedings:

"1.02(1)

(a) in the Supreme Court of Ontario and the District Court of Ontario; and,

(b) in the Surrogate Courts of Ontario, as provided in the Surrogate Courts Act, except where a statute provides for some other procedure."

The complainant argues, however, that the Board ought to exercise the discretion given it in evidentiary matters in favour of adopting a rule akin to 53.07 for its own proceedings.

3. Section 103(2)(c) provides:

"103.-(2) without limiting the generality of subsection (1), the Board has power,

(c) to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not."

Notwithstanding this latitude, the Board, by and large, as pointed out in, for example, T. R. S. Food Services Limited, [1976] OLRB Rep. April 154, at 155,

follows the basic rules of evidence in an attempt to conduct ordered and fair hearings and has regard to the pronouncements of the courts with respect to evidentiary matters."

In addition, the Board recognizes the importance of acting on evidence which has "cogency in law". See Reimer Overhead Doors Ltd., [1984] OLRB Rep. Oct. 1493; R. v. Barber, [1968] 2 0. R. 245 (Ont. C.A.). The Board is always mindful, therefore, of the ordinary rules of evidence, as developed by the Courts at common law. The Rules of Practice, on the other hand, are specific statutory enactments which are often inconsistent with the common law, and which do not apply, by their own terms, to proceedings before this Board. Whether the Board considers any of the Rules of Practice an appropriate guide in one of its own proceedings is a matter for it, in its discretion, to assess and decide.

4. It is the view of the Board that section 53.07 is not appropriate for adoption in these proceedings so as to allow the complainant to call and then cross-examine an adverse party as of right. It is to be noted that sections 53.0 1(2) and (4) of the Rules pointed out by counsel for the respondent Michael Reilly stands much closer to the existing state of the common law and provide:

"53.01

Leading Questions on Direct Examination

(4) where a witness appears unwilling or unable to give responsive answers, the trial judge may permit the party calling the witness to examine him or her by means of leading questions.

While at the same time:

Trial Judge to Exercise Control

(2) The trial judge shall exercise reasonable control over the mode of interrogation of the witness so as to protect the witness from undue harassment or embarrassment and may disallow a question put to a witness that is vexatious or irrelevant to any matter that may properly be inquire into at the trial."

There appears little doubt that at common law the trier of fact has always had a discretion to permit cross-examination or leading questions of one's own witness where that becomes necessary "in order best to answer the purposes of justice." Bastin v. Carew, Exeter, August 19th, 1824. The Canadian Encyclopedic Digest, 4thh edition, states at 57-961:

"On cross-examination of an opponent's witness, ordinarily no question can be objected to as leading. The same rule applies where a witness called by the examining party is, in fact, hostile or biased against his cause, or is, for any other reason, unwilling to tell all he knows. But in such cases the leave of the trial judge to cross-examine should be obtained."

And the Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982, The Carswell Company Limited, Toronto) outlines at Chapter 21, 'Manner of Questioning Witness', the current state of the law with respect to the use of leading questions on examination-in-chief as follows:

"Notwithstanding the general prohibition upon leading questions on examination-in-chief and re-examination, an examiner should, in certain situations, lead the witness and in others he may lead with the judges' permission. In these instances, leading questions are permitted because (i) convenience, efficiency or necessity outweighs the danger of suggestion or (ii) the danger of suggestion is very low. The 'exceptions' to the ban against leading questions are as follows:

(d) If the witness is against the party calling him or unwilling to testify, to overcome his lack of cooperation and obtain his testimony, the examiner may, in the judge's discretion, ask leading questions."

In addition, of course, full rights of cross-examination are available to a party calling a witness if the witness demonstrates "hostility" in the stand in the sense of an apparent unwillingness to answer questions and tell the truth. R. v. Coffin, (1956) 1956 CanLII 94 (SCC), S.C.R. 191, at page 213; Town of Meaford, 11981] OLRB Rep. June 634. Such rights do not, however, flow from the mere circumstance of the witness being opposite or adverse in interest in the proceeding itself. As Chief Justice Carter commented in Atkinson v. Atkinson (1982) 1975 CanLII 1660 (NB COCT), 10 N.B.R. 271 (C.A.):

"It does not necessarily follow that an opposite party on the record must be a hostile witness at the trial.. When a party has been.. .called by the opposite party he is, we conceive, to be treated and examined as any other witness would be, until he assumes a hostile attitude, or conducts himself on the stand in such a way as to satisfy the judge that an examination in the shape of a cross-examination is necessary for the elucidation of the case, or the extracting of truth. This is a matter which must be in the discretion of the Judge, who will perhaps more frequently have occasion to exercise it where the adverse party is called than in other cases.

(emphasis added)

5. Counsel for the complainant has already been allowed considerable latitude in his manner of examining Mr. Reilly by opposing counsel, presumably in the light of the case law and the practical circumstances, and it may be that the examination can now be completed on that basis. Should a further issue over the form of questioning arise, however, the Board will deal with that issue on the basis of the manner in which the witness appears to be giving his responses, in accordance with the principles referred to above.

6. On the subsidiary issue of whether, on the basis of section 9 of the Ontario Evidence Act, the answers of Mr. Reilly can be "used against him" in these proceedings, the Board does not find anything in the authorities cited by the respondent to persuade it that they cannot.

The section provides:

"Section 9(1) A witness shall not be excused from answering any question upon the ground that the answer may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person or to a prosecution under any Act of the legislature.

(2) If, with respect to a question, a witness objects to answer upon any of the grounds mentioned in subsection (1) and if, but for the section or any Act of the Parliament of Canada, he would therefore be excused from answering such question, then, although he is by reason of this section or by reason of any Act of the Parliament of Canada, compelled to answer, the answer so given shall not be used or receivable in evidence against him in any civil proceeding or in any proceeding under any Act of the Legislature."

Counsel for the respondent places reliance on the absence of the word "other" in describing the proceedings in which the witness has immunity, and contrasts that to the inclusion of the word "other" in comparable legislation elsewhere. In determining the intent of the section, however, it must be noted that in any proceeding to which the immunity is read to extend, the legislation declares that the witness's answer (which he is compelled under subsection (1) to give) not only shall not be used against him, but shall not even be "receivable" in whatever proceeding the Legislature had in mind. That, it seems to us, underscores the difficulty with the respondents' position. As Rose, J. observed in R. v. Fox (1899), 18 P.R. 343,

if the action could be said to be a proceeding, matter, or question under any Act of the Legislature of Ontario within the meaning of sec. 9, he would be compellable to answer any question pertinent and material to the issue, even though the question might tend to subject him to independent criminal proceedings or to an independent prosecution for a penalty....

The absurdity of the contrary view, if I may say so, would appear, if a person on trial for a criminal offence were to go into the witness box to give evidence, and should object to answer some question put to him by counsel for the Crown, on the ground that the answer might tend to criminate him, and were told by the counsel: 'Your privilege not to answer has been taken away statute; you must answer, but your answer so given shall not be used or receivable in evidence against you in this trial.' would not the witness answer: 'That is no protection, for as I give my answer it is used and received in evidence against me."'

And in Chambers v. Jaffery, (1906) 12 O.L.R. 377, Britton, J., stated with respect to the same Ontario provision, at page 383:

'It must now be considered as settled law and practice that the protection to a witness from his answers extends only 'to danger from independent contemporaneous or subsequent prosecution."'

We accept that as the correct interpretation of section 9.