John Clark et al. v. Representatives Association of Ontario et al., 1991 CanLII 6065

Ontario Labour Relations Board

[1991] OLRB Rep. May 598

1810-89-U John Clark et al., Complainants v. Representatives Association of Ontario; Local 414 of the Retail, Wholesale and Department Store Union, AEL­CIO-CLC; and Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Respondents

BEFORE: Paula Knopf, Vice-Chair.

DECISION OF THE BOARD; May 9, 1991

Reasons for Decision

1. The purpose of this decision is to provide written confirmation and clarification of an oral ruling given by the Board on April 5, 1991 with respect to an issue of evidence that arose in the course of this hearing. The substantive issues in the case involve allegations of violations of sec­tion 68 of the Labour Relations Act. There are three complainants. Each of them gave extensive evidence over numerous days of hearings. They and their supporting witnesses were examined and subjected to lengthy cross-examinations. The cross-examinations were detailed and rigorous. These cross-examinations often covered several days of hearings.

2. The evidentiary issue which requires this interim ruling arose when the respondents began to call evidence in defense of the complaint. The Representatives Association of Ontario's [RAO] first witness Dan Garvey, began to give evidence concerning events and conversations which had been attested to by all of the complainants and other supporting witnesses. In some aspects of Mr. Garvey's evidence, his testimony directly contradicted the evidence given by or on behalf of the complainants. In those situations, the evidence that Mr. Garvey gave had been sug­gested to the complainants or their witnesses during their cross-examinations and they had had the opportunity to react to the evidence. However, other aspects of Mr. Garvey's testimony intro­duced evidence of conversations and circumstances which had not been suggested to or put to the complainants or their witnesses when they were testifying. For example, Mr. Garvey added further details to conversations that had been the subject of extensive cross-examination of the complain­ants, even though these new details had never been suggested to the complainants. Counsel for the complainants took objection to this type of evidence arguing that it offended the rule in Browne v. Dunn (1893), 6 R. 69 (H.L.). Counsel for the complainants argued that the rule in Browne v. Dunn should prevent the respondents from calling any evidence that was different from evidence given by the complainants and that had not been suggested to or put to the complainants while they were on the witness stand. Counsel for the complainants argued that the rule in Browne v. Dunn is one of fairness and expediency to ensure a witness has a chance to respond to evidence that will be called against him or her and to ensure that the trial is conducted in a controlled and practical way. The Board was reminded of its policy of applying the Browne v. Dunn rule as was done in the case of Luciano D'Alessandro and Donato Marinaro, [1985] OLRB Rep. Feb. 241.

3. Counsel for the RAO responded to the objection by arguing that the evidence his client wished to introduce did not offend the rule in Browne v. Dunn because it was not being tendered to impeach the complainants' credibility or contradict their testimony. Instead, it was said that the evidence was being offered to add further details and recollections of conversations than had been introduced by the complainants. Further, counsel for the respondent RAO undertook that the Board would not be asked to impute any lack of credibility against the complainants with regard to any of the details given by the respondents which had not been put specifically to the complain­ants. Counsel for Representatives Association of Ontario also introduced the case of Machado v. Berlet et al. (1986) 1986 CanLII 2600 (ON HCJ), 15 C.P.C. 2d 207 (H.C.J.) and J. Sousa Contractor Limited, [1988] OLRB Rep. October 1027.

4. Counsel for the respondent R.W.D.S.U. adopted the argument of counsel for the Rep­resentatives Association of Ontario and argued that the evidence sought to be introduced should not be seen as contradicting the evidence called by complainants or be seen as evidence that would be used to impeach the credibility of the complainants. Instead, the Board was asked to consider the evidence as "filler" or details being offered on issues that were not matters of credibility and which could be used in conjunction with the evidence of the complainants on the critical points.

5. In reply, counsel for the complainants argued that no meaningful distinction can be drawn between evidence offered to "contradict" the testimony of the complainants from evidence that would be "different" than the evidence of the complainants. Mr. Wray expressed concern over the possibility of having to recall the complainants to deal with some of the statements and thus prolonging an already very lengthy proceeding.

6. The rule in Browne v. Dunn, supra, imposes a duty on an opposing counsel to give a witness an opportunity to explain evidence which will be called later to impeach the credibility or testimony of that witness. Fundamentally, the rule is one of fairness and is meant to exclude evi­dence that was not first offered to an opposing witness to give him/her a chance to rebut it. It is useful to quote the original rule and its rationale from Browne v. Dunn where Lord Herschell explained:

"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examina­tion showing that that imputation is intended to be made, and not take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which