United Brotherhood of Carpenters & Joiners of America, Local 27 v. Povoa Carpentry Trim, 1988 CanLII 3675

[1988] OLRB Rep. June 619

3337-87-R; 3338-87-R; 0052-88-U; United Brotherhood of Carpenters & Joiners of America, Local 27, Applicant/Complainant; v. Povoa Carpentry Trim o/b 563808 Ontario Inc. and Labourers' International Union of North America, Local 183; F. J. Carpentry, Respondents v. Labourers' International Union of North America, Local 183, Intervener

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.

APPEARANCES: David McKee and Luis Camara for applicant/complainant; M. Failes and Jose Lopez for the respondent Povoa Carpentry Trim; no one appearing for the respondent F. J. Car­pentry; Michael Mitchell, Tanya Lee and Quinto Ceolin for the intervener.

DECISION OF THE BOARD; June 8, 1988

1. Board File Nos. 3337-87-R and 3338-87-R are applications for certification by the United Brotherhood of Carpenters and Joiners of America, Local Union 27 ("Local 27"). Local 27 is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affili­ated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on April 10, 1980, the designated employee bargaining agency is the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America.

2. Board File Nos. 3337-87-R and 3338-87-R are applications for certification within the meaning of section 119 of the Labour Relations Act and are applications made pursuant to section 144(1) which provides:

144.-(1) An application for certification as bargaining agent which relates to the industrial, com­mercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (3) or by voluntary recogni­tion.

3. In Board File No. 3337-87-R, Local 27 seeks to be certified as the exclusive bargaining agent for a unit of employees of Povoa Carpentry Trim, o/b 563808 Ontario Inc. ("Povoa") which it describes, in paragraph 7 of its application, as:

(a) All Carpenters and Carpenters' Apprentices employed by the Employer in the Indus­trial~ Commercial and Institutional Section of the Construction Industry in the Prov­ince of Ontario; and

(b) All Carpenters and Carpenters' Apprentices employed by the Employer in Board Area 8 excluding the Industrial, Commercial and Institutional Sector, save and except non-working Foreman and persons above the rank of the non-working Foreman.

In the same file, the Labourers' International Union of North America, Local 183 ("Local 183") has applied, by intervention, to be certified as the exclusive bargaining agent for a unit of employ­ees of Povoa which it describes, in paragraph 3 of its intervention, as:

All carpenters and carpenters' apprentices in the employ of the Respondent in Ontario Labour Relations Board Area 8 in all sectors of the construction industry, save and except the indus­trial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

Local 183 is a trade union within the meaning of section l(l)(p) of Labour Relations Act. Its appli­cation for certification is one within the meaning of section 119 of the Act but does not relate to the industrial, commercial and institutional sector of the construction industry referred to section 117(e) of the Act.

4. In Board File No. 3338-87-R, Local 27 is applying to be certified as the exclusive bar­gaining agent of employees of F. J. Carpentry ("F. J"), in a unit described, in paragraph 7 of the application, as:

(a) All Carpenters and Carpenters' Apprentices employed by the Employer in the Indus­trial, Commercial and Institutional Section of the Construction Industry in the Prov­ince of Ontario; and

(b) All Carpenters and Carpenters' Apprentices employed by the Employer in Board Area 8 excluding the Industrial, Commercial and Institutional Sector, save and except non-working Foreman and persons above the rank of non-working Foreman.

Local 183 has also applied, by intervention, for certification in that application. It seeks certifica­tion for a unit of employees it describes, at paragraph 3 of its intervention, as:

All carpenters and carpenters; apprentices in the employ of the Respondent in Ontario Labour Relations Board Area 8 in all sectors of the construction industry, save and except the indus­trial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foremen.

Further, at paragraph 7(3) of its intervention Local 183 states:

The Intervener takes the position that the Respondent herein is actually the business name for two or three piece work carpenters who are employees of Povoa Carpentry Trim o/b 563808 Ontario Inc., which is the Respondent in Board File 3337-87-R

The Intervener herein makes this application in the alternative and only in the event the Respondent herein is found by the Board to be an employer in its own right.

5. Board File No. 0052-88-U is a complaint under section 89 of the Labour Relations Act, by Local 27, alleging that Povoa and Local 183 have dealt with Local 27 in a manner contrary to sections 3,13, 64, 66, and 70 of the Labour Relations Act. Although it is not clear, on the face of the complaint, what relief Local 27 seeks, it is evident that the complaint is related to the applica­tion in Board File No. 3337-87-R.

6. All three matters came on for hearing together on May 6, 1988. At the hearing, the Board ordered that they be consolidated.

7. Local 27 proceeded to call its evidence first. Its second witness was Alberto Macaes Morim. In the course of the examination-in-chief of that witness, counsel for Local 27 sought to invoke section 23 of the Evidence Act R.S.O. 1980 c. 145, a declaration that he is a hostile witness, and leave to cross-examine him.

8. At common law, a party is not permitted to introduce general evidence to impeach the character of its own witness. It can, however, contradict him/her with respect to particular facts, even though doing so could consequently impeach the general character of the witness (see Bradley v. Ricardo (1831) 131 E.R. 321; Harper v. Griffiths 65 O.L.R. 688 (Ont. C.A.); Sitkoffv. Toronto Ry (1916), 1916 CanLII 526 (ON SCAD), 36 O.L.R. 97 (Ont. C.A.)). The uncertainty that resulted from this situation led to the enactment of statutory provisions like section 23 of the Evidence Act which provides that:

9. 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.

For purposes of this proceeding, we assume, without finding, that section 23 of the Evidence Act applies. When a party seeks, as Local 27 does in this proceeding, to invoke that provision, the judge or other person presiding is obliged to determine whether or not the witness has been proven "adverse". If such a finding is made, circumstances sufficient to designate the occasion(s) when the witness allegedly made, at some previous time, a statement inconsistent with his/her present testi­mony must be put to the witness and s/he must be asked whether s/he made such a statement. If the witness admits having made such a statement s/he may be asked if it was true. If the witness denies making such a statement, the person presiding may allow the allegedly prior inconsistent statement to be proved, and, if proved, admitted into evidence. If the witness admits the truth of a prior inconsistent statement, it is admissible as evidence of the truth of its contents. If s/he does not admit its truth, the only effect that it can have, by itself, is to impeach the witness’s previous testi­mony at the hearing (Wawanesa Mutual Insurance Co. v. Hanes 1961 CanLII 28 (ON CA), [1961] O.R. 495 (Ont. C.A.); Boland v. The Globe & Mail Ltd. 1961 CanLII 162 (ON CA), [1961] O.R. 712 (Ont. C.A.) and see also R v. Duckworth (1916), 37 O.R. 197 (Ont. C.A.).

9. Section 23 of the Evidence Act covers the field with respect to prior inconsistent state­ments made by a witness of a party producing him/her. The policy underlying it was explained by McKay J. A. in Wawanesa, supra, at pages 529 and 534 as follows:

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 in 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.

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, had told a story in the witness-box inconsistent with his previous statement in respect of the same facts. In such case it is of utmost importance, in the interests of justice that such a witness should be compelled to explain his change of story.

10. In addition, it is evident that a finding that a witness is adverse within the meaning of section 23 of the Evidence Act does not mean that s/he is "hostile" within the meaning of the com­mon law. Hostility is a higher form of adversity. To put it another way, all hostile witnesses are adverse but not all adverse witnesses are hostile. The significance of the difference is illustrated by the effect of a finding that a witness merely is adverse compared to that of a finding that a witness if hostile. As MacKay J. A. stated at pages 528 and 532 of Wawanesa, supra:

It is to be observed that the only right given by s. [23] [of the Evidence Act] 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 supplied the proof and the calling of 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 denied its truth but admits having made it, or if he does not admit having made it and it is proved by other witnesses that he did, then it goes only to the credibility of the witness.

This decision points up the difficulty or result of treating the word "adversity" in the statute as meaning "hostile" because unquestionably if the witness is "hostile" the common law rule applies and he is subject to a general cross-examination as to all matters in issue; whereas, under the statute, if he is adverse, the only right given is to prove the prior inconsistent statement and cross-examination should be limited to the prior inconsistent statement only.

The law in Ontario is that a prior inconsistent statement by a witness may be considered as evi­dence of adversity or of hostility. In determining whether a witness is hostile, a court or tribunal is not limited to a consideration of the witness’s demeanour and manner. Unless Local 27 can satisfy the Board that Morim is hostile, in the sense that he is not giving his evidence fairly and with the desire to tell the truth because of an antagonistic attitude toward the applicant, it cannot be per­mitted to cross-examine him fully (see Wawanesa, supra and see also Reference Re R. V. Coffin 1956 CanLII 94 (SCC), [1956] S.C.R. 191 (SC.C.)).

11. Morim was less than forthcoming in response to the questions asked of him in examina­tion in chief. Counsel for Local 27 asked Morim whether he had had any discussion with Jose Lopez, the owner of Povoa, about a union or unions. Morim said "I didn't speak to anybody, noth­ing". Counsel then asked Morim whether he had heard Lopez discussing "going or not going union with anyone". Morim answered "no". Counsel then put to Morim the circumstances of a meeting earlier that morning, prior to the hearing with counsel and Local 27's Luis Camara, and suggested to Morim that he had said, at that meeting, that "Lopez had told you it would be more expensive for him if you joined Local 27 and he would have to reduce what he paid you if you joined Local 27 and that it would be better for you to join Local 183". Eventually and reluctantly, Morim admitted making that statement or one to that effect.

12. The Board is satisfied that Morim's statement to the applicant at the morning meeting prior to the hearing is inconsistent with his statement under oath that he had had no discussion with Lopez about unions. Accordingly, the fact that that statement was made is admissible as evi­dence in this proceeding. The Board is also satisfied that Morim is a witness adverse to Local 27, the party calling him.

13. The Board is also satisfied that, having regard to the prior inconsistent statement by

Morim, the seriousness and obvious relevance of the contents thereof (see The Corporation of the Town of Meaford, [1981] OLRB Rep. June 634 at para. 10), and Morim's manner and demeanour on the witness stand, Morim is a witness hostile to Local 27 and we so declare. Accordingly, and having regard to the purpose of this proceeding, the Board, in its discretion, grants leave to Local 27 to cross-examine Morim on all matters relevant to the issues before the Board.

14. The hearing will continue on the dates scheduled by the Board at the hearing (June 20, August 2, October 26, 27, 1988).