[1990] OLRB Rep. November 1142
0723-89-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. Maple Engineering & Construction Canada Ltd., Respondent v. Christian Labour Association of Canada, Intervener
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.
DECISION OF THE BOARD; November 7, 1990
- By letter dated October 30th, 1990, the intervener, Christian Labour Association of Canada has written to the Board as follows:
We hereby confirm our objection raised during the examinations held on October 29, 1990, while Mr. J. Woszynski, counsel for the Applicant, cross examined witness Ken Kelp.
Mr. Woszynski put questions to this witness which clearly conveyed that there exists earlier testimony which is different from, if not contrary to the witness' recollection. Mr. Woszynski did this by such statement as "we heard from Jim Zettel that he was working as a signalman" and "Mr. Zettel testified he was guiding concrete" and "Mr. Zettel testified you were----
It is our position that Mr. Woszynski's questioning was improper since the "testimony" referred to no longer exists, since no transcript will be made of the tapes recorded during the examination of Mr. Jim Zettel because the Applicant has conceded that Mr. Jim Zettel is in fact a labourer.
The Board will, therefore, be unable to compare Mr. Kelp's testimony with any statements made by Mr. Jim Zettel.
It is our position that the Applicant's questions cast doubt on Mr. Kelp's integrity and the accuracy of his statements, and should not be allowed.
Sincerely, "H. Kuntz"
Hank Kuntz
It does not appear that the intervener is seeking any direction or ruling from the Board.
Even if it was, its letter does not, in our view, reveal any basis upon which it would be appropriate for the Board to intervene in the inquiry being conducted by the Labour Relations Officer in this matter. As the Board observed in Strongland Construction Ltd., [1987] OLRB Rep. Oct. 1330:
3.... Board Practice Note #4 provides an adequate mechanism for dealing with the concerns raised by the respondent in this case, and it would not be appropriate for the Board to depart from its usual practice in such matters in either of the ways suggested by it. To accede to the respondent's request would be to invite objections and requests for rulings which would ultimately serve to do little more than cause further delays in the certification process. The appropriate time for the Board to deal with such matters is after it has received the Labour Relations Officer's report and the submissions of the parties with respect thereto. Accordingly, the respondent's request is denied and the Board Officer is directed to continue with his enquiry.
(and see Kaneff Properties Limited, [1980] OLRB Rep. Nov. 1653).
- Further, the credibility of a person who testifies in the course of an enquiry conducted by a Labour Relations Officer pursuant to Board authorization may properly be put in issue. If it is, it must, like any other issue, be determined on the basis of the material before the Board. Accordingly, questions will not generally be found to be improper merely because they may raise an issue of credibility (see Dunmark Electric (Ancaster) Limited, [1988] OLRB Rep. May 489, Jasper Construction (Board File No. 2227-86-R, December 17, 1986, unreported)).