[1985] OLRB Rep. February 241
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, Vice-Chairman, and Board Members F. W. Murray and W. F.
Rutherford.
APPEARANCES: Ed J. Brogden for the complainants; A. M. Minsky, R. D'Andrea and D. D'Andrea for the respondents.
DECISION OF THE BOARD; February 14, 1985
The purpose of this decision is to provide, in written form, certain unanimous oral rulings given by the Board on February 8, 1985 in respect of these consolidated matters, as requested by counsel for the complainants.
During the continuation of hearing of these consolidated complaints on February 7, 1985, counsel for the complainants and counsel for the respondents made various submissions to the Board concerning the proper scope of reply evidence. After recessing for the evening to consider those submissions, the Board made the following unanimous oral ruling at the commencement of the continuation of hearing on February 8, 1985:
Since the majority of the Board's hearing time yesterday was taken up by submissions of counsel concerning whether or not certain evidence could properly be adduced as reply evidence, it may be useful for the Board to rule not only on the specific point which has been argued (most recently), but also to provide a more general indication of what we perceive to be the proper scope of reply evidence. During his submissions in support of his contention that evidence concerning the Union meeting of May 12, 1983 may properly be called in reply, counsel for the complainants contended that he could call certain witnesses to testify about that meeting as part of his case in chief and hold another witness in reserve to be called in reply in the event that the respondents called witnesses to contradict evidence on that point given by the complainants' witnesses in chief. Apart from a general reference to Phipson on Evidence, without referring the Board to any particular page or passage in that text, counsel cited no authority for that proposition.
it is well established in the law of evidence and in the Board's jurisprudence that a plaintiff or complainant cannot split his case in the manner suggested by counsel for the complainants. As noted in Phipson on Evidence (12th Ed. 1976) at paragraph 616, "[e]vidence in reply ... must, as a general rule, be strictly confined to rebutting the defendant's case, and must not merely confirm that of the plaintiff. See also Wilco-Canada Inc., [1983] OLRB Rep. Jan 165, in which the Board wrote as follows at paragraph 13:
The normal scope of reply evidence is aptly described in the following passage from Sopinka and Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974) at page 517:
"At the close of the defendant's case, the plaintiff has a right to adduce rebuttal evidence to contradict or qualify new facts or issues raised in defence. As a general rule, however, matters which might properly be considered to form part of the plaintiff's case in chief are to be excluded. A plaintiff is therefore precluded from dividing his evidence between his case in chief and reply, for two very practical reasons:
first, the possible unfairness of an opponent who has justly supposed that the case in chief was the entire case [he] had to meet, and, secondly, the interminable confusion that would be created by an unending alternation of successive fragments of each case which could have been put in at once in the beginning' [6 Wigmore on Evidence, s. 1873, p. 511].'
(See also Allcock Laight & Westwood Limited v. Patten, Bernard and Dynamic Displays Ltd., 1966 CanLII 282 (ON CA), [1967] 1 OR. 18 (C.A.).
Counsel for the complainants has contended that this, and various other evidence which he seeks to adduce as reply evidence, is admissible for the purpose of impugning the credibility of witnesses called by the respondents and, in particular, of Dan D'Andrea. Impugning the credibility of a witness called by a respondent is, of course, a legitimate function of reply evidence, but, as contended by counsel for the respondents, it is subject to a number of limitations, including the following:
(1) the aforementioned fundamental principle which requires that reply evidence relate to new facts or issues raised in defence, and which prevents a complainant from splitting his case;
(2) the requirement, often referred to as the rule in Browne v. Dunn, by which (to quote from paragraph 1593 of Phipson on Evidence) "[where it is intended to suggest that a witness is not speaking the truth upon a particular point his attention must be directed to the point by cross-examination so that he may have an opportunity of explanation; see also Sopinka and Lederman, at pages 512 and 513, which read, in part, as follows: "If counsel is considering the impeachment of the credibility of a witness by calling independent evidence, he must confront the witness with this evidence in cross-examination while he is still in the witness box"; and
(3) the collateral fact rule which, subject to certain exceptions, provides that "answers given by a witness to questions put to him on cross-examination concerning collateral facts are treated as final and cannot be contradicted by extrinsic evidence": see Sopinka and Lederman at pages 511 and 512, in which it is also noted that "[w]ithout such a rule, there is a danger that litigation will ... be prolonged and become sidetracked and involved in numerous subsidiary issues. Avoiding any unwarranted prolongation of proceedings is always a legitimate consideration in Board proceedings, and this is particularly true in the present case, which has already continued for in excess of thirty days of hearing over a period of eighteen months.
Those well known rules and principles have evolved over the centuries as part of the common law, and have generally been adopted by the Board, as master of its own procedure, in the interests of fairness to all of the parties and witnesses who appear before it.
In the absence of the written agreement (dated August 24, 1984) entered into by counsel for the complainants and counsel for the respondents, the complainants would be precluded from adducing, as reply evidence, evidence which is merely confirmatory of evidence called by the complainants concerning the May 12, 1983 meeting as part of their case in chief. Although it is far from certain that paragraph 1(b) of that agreement was intended to change that situation, that paragraph is somewhat ambiguous and can arguably be construed to permit such evidence to be adduced by the complainants as reply evidence, and by the respondents as what has been described by counsel as "surrebuttal evidence", following such reply evidence, as contended by counsel for the complainants. Under the circumstances, we are prepared to adopt that approach in the interests of fairness and in order to avoid any possibility of surprise to the complainants or respondents.
- At 2:00 p.m. on February 8, 1985, the Board ruled as follows:
Having considered the submissions of the parties, we are not satisfied that the evidence concerning the meeting of September 8, 1983 which complainant's counsel seeks to adduce as reply evidence through Gerry Varrichio could not, through the exercise of due diligence, have been adduced as part of their case in chief, as was done through the testimony of Frank Garrett on October 18, l984, particularly in view of the fact that Mr. Minsky notified Mr. Carrett during cross-examination that he intended to call Dan D'Andrea to contradict Mr. Carrett's evidence in respect of that matter. Failing that, we are not satisfied that through the exercise of due diligence, in preparing for his cross-examination of Dan D'Andrea, complainant's counsel could not have placed himself in a position to satisfy the requirements of the rule of Browne v. Dunn in respect of that evidence. In this regard, we note that at the request of complainants' counsel, the hearing was recessed on December 12, 1984 one and one half hours in advance of the time to which the Board had earlier indicated it was prepared to sit, in order to afford complainants' counsel time to prepare for his cross-examination of Dan D'Andrea. When the hearing resumed on the following morning, complainants' counsel made no suggestion that he had not had sufficient time to prepare for that cross-examination or to explore any appropriate avenues of investigation with respect to it. Accordingly, we are of the view that this evidence cannot properly be called in reply, either on the basis of the rule which precludes a complainant from splitting his case, or on the basis of the rule in Browne v. Dunn, as explained in our earlier ruling today. Accordingly, Mr. Minsky's objection is upheld.
- At approximately 2:45 p.m. on February 8, 1985, the Board made the following ruling, after recessing to consider the submissions of the parties:
Counsel for the complainants seeks to adduce, as reply evidence, evidence that the respondent Rocco D'Andrea "offered office and position to certain people if they could get this case terminated". Complainants' counsel concedes that the alleged attempt was unsuccessful. The only basis on which he suggests that this evidence is relevant is, in effect, that a respondent would not seek to resolve a case in such manner unless he had violated the Labour Relations Act. However, we view that to be a non sequitur; settlement efforts take place not only in respect of cases which would be lost if litigated, but also in respect of cases which would be won, as the cost of litigation, particularly in protracted cases of this type, is a factor which generally prompts parties to consider settlement. While we certainly would not condone activity of the type alleged by complainants' counsel, and while it may be that it could appropriately form the basis for other proceedings, we are not persuaded that it legitimately forms any part of the subject matter of these proceedings.