[1986] OLRB Rep. March 329
0599-85-U Nick Barbieri, John Cabral, John Cardoso, Mike Mihajlovic and Carmen Principato, Complainants, v. Michele Gargaro, Arthur E. Coia, Angela Fosco, Ugo Rossini and Labourer's International Union of North America and Local 506 of the Labourer's International Union of North America, Respondents
BEFORE: Judge R. S. Abella, Chairman, and Board Members W. H. Wightman and S. O 'Flynn.
APPEARANCES: Jeffrey S. Leon, Robert W. Staley, Nick Barbieri, John Cabral, John Cardoso, Mike Mihajiovic and Carmen Principato for the Applicants; Chris G. Paliare and Ugo Rossini for the Respondents Angela Fosco, Arthur Coia and Labourer's International Union of North America; and Paul J. Schrieder for the Respondent Michele Gargaro and Local 506 of the Labourer's International Union of North America.
DECISION OF THE BOARD; March 24, 1986
This is an application pursuant to section 89 of the Labour Relations Act alleging that the respondents have violated sections 70 and 3 of the Act.
At the commencement of the cross-examination of the complainant Nick Barbieri, counsel for the International asked whether he had referred to notes before giving his evidence in chief. Barbieri replied that he had. He stated that some of the notes were prepared in consultation with and for the benefit of his own lawyer in the preparation of this application and that others were notes he made following certain events. He stated that these latter notes were thrown out after he had used them to prepare notes for his counsel. Barbieri claims that he had refreshed his memory prior to giving evidence primarily by reading the detailed particulars of his application to this Board dated June 10th, 1985. During the course of his examination-in-chief, Barbieri did not refer to any notes.
Counsel for the respondent International sought production of all the notes, relying on the Board's decision in McGregor Hosiery Mills, [1976] OLRB Rep. Oct. 583. The Board ruled orally that in this case the notes ought not to be produced.
In McGregor Hosiery, the Board observed:
what is the law with respect to the weight that ought to be attached to the evidence adduced through the complainant's witnesses arising out of their failure to produce their notes for Inspection by counsel? . . The results of the Board's research into the issues described herein by no means indicate a clear-cut answer. The cases are quite clear that notes referred to by a party and relied upon as evidence must be produced and filed(past recollection recorded). There is no question that in this case the complainant has not attempted to make use of the notes with a view to relying upon statements or events recorded therein. . . Nevertheless, it may be safely concluded that the notes were resorted to with a view to refreshing their memories (past recollection revived). There is no doubt that had these notes been referred to during the course of the hearing, the witnesses would be duty bound to produce the notes for inspection by opposing counsel as an aid in cross-examination. In such cases, however, the witness must satisfy the trier of fact that the notes were prepared contemporaneously with the event before recourse may be made for the purpose of refreshing his memory. (see Regina v. Husbands [1974] C.R.N.S. 188 at P.190 with respect to the judicial authorities cited.)
Having reviewed the authorities, the Board is of the view that an accurate reflection of the The Law of This Province on the issue is that it is within the discretion of the trier of fact to direct that notes referred to by a witness prior to a hearing for the purpose of refreshing his memory be produced with a view to aiding opposing counsel to conduct his cross-examination. And where the evidence shows that these notes were relied upon immediately prior to trial, then the discretion held by a trier of fact to direct their production ought to be exercised. Failure to produce the said notes apparently is at the peril of the party refusing production with respect to the weight to be attached to the witness' testimony.
(emphasis added)
Clearly the question of whether or not to order production of notes used to refresh a witness's memory but not referred to by him or her during examination-in-chief is a matter for the discretion of the adjudicator. In the case of R v. Montfils et al 1971 CanLII 470 (ON CA), [1972] 1 O.R. 11 (C.A.) the Court held that a trial judge had not exceeded his jurisdiction in ordering the production of a police officer's notes not relied upon during examination-in-chief. In Regina v. Lewis 1968 CanLII 830 (BC SC), [1969] 3 C.C.C. 235 (B.C.S.C.), the court, citing with approval the case of Regina v. Musterer U967), 61 W W R. 63, ruled that when a police officer had refreshed his memory from notes "5 or 10 minutes before coming into court", the trial judge ought to permit production. But the court also observed:
There is no absolute rule that in every case a witness must make any notes or documents made by him relevant to the trial available to counsel for the opposite side. Certainly if he has need in Court to refresh his recollection of past events by reference to notes made at or near the time of those events, the Magistrate will invariably order production of those notes or documents for inspection by defence counsel for the purpose of possible cross-examination.
In the case of Regina v. Kerenko, Cohen and Stewart (1964) 49. D.L.R. (2d) 760 (Man. C. A.), the Court upheld the decision of a trial judge who had refused to compel production of notes not referred to during examination-in-chief. The court stated:
The police officer freely admitted in cross-examination that he had referred to his notes to refresh his memory but gave no indication when he did so. At that stage defence counsel asked him to produce the notes. Crown counsel objected and after hearing argument that afternoon and early next morning the learned trial Judge ruled against the motion. His ruling was correct. The notes were not used when the constable gave his testimony and he is not bound to produce them under such circumstances. The opposite would that every time notes in writing have been prepared, the party who prepared them would be bound to produce them if requested because, obviously, he may have made use of them at some time to refresh his memory. It is only where the witness requires his notes to refresh his memory at trial that he may be called upon to produce them, and this to test his accuracy and credibility since he was unable to give his evidence without the use of same.
This decision was followed in the case of Regina v. Bonnycastle, ex parte Attorney-General of Saskatchewan 1968 CanLII 544 (SK QB), [1969] 3 D.L.R. (3d) 288 (Sask. Q.B.).
- All the reported cases make clear that it is a matter for the discretion of a trier of fact to determine whether to order the production of notes used to refresh a witness's memory prior to giving evidence, but not referred to during the course of this evidence.
It is also clear that one of the factors the adjudicator is entitled to consider is how much time elapsed between referring to the notes and giving evidence. In the circumstances of this case, we are not prepared to order production of any notes. Before a proceeding is adjourned to permit a witness to recover any notes, counsel must at the very least prepare the factual basis through cross-examination for the exercise of the panel's discretion. Barbieri was not asked when he had last referred to those notes. We do not know if the time lapse was a matter of days, hours or minutes. Nor was Barbieri summonsed to produce any notes or records notwithstanding that respondent's counsel had ample time to do so.
Those notes Barbieri prepared to assist his counsel in the preparation of this litigation are privileged and beyond the reach of opposing counsel.
For all the foregoing reasons, the respondent's motion is denied.