[1991] OLRB Rep. February 178
1067-88-G; 1068-88-G; 1465-88-JD United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Dufferin Construction Company, Respondent; United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. The Foundation Company of Canada Limited, Respondent; Labourers' International Union of North America, Local 183, Complainant v. Dufferin Construction Company, a Division of St. Lawrence Cement Inc. and United Brotherhood of Carpenters and Joiners of America, Local 27, Respondents
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: James Nyman and L. Monaco for United Brotherhood of Carpenters and Joiners of America, Local 27; A. M. Minsky and Roger Quinn for Labourers' International Union of North America, Local 183; Bruce W. Binning for Dufferin Construction Company; Carl Peterson for The Foundation Company of Canada Limited; Carl Peterson for Airport Development Corporation.
DECISION OF THE BOARD; February 6, 1991
These are two referrals of grievances in the construction industry for final and binding arbitration under section 124 of the Labour Relations Act and a work assignment complaint made under section 91 of the Act in respect of which an application was made for a determination under section 150 of the Act which provides as follows:
The Board shall, upon the application of a trade union, a council of trade unions, or an employer or employers' organization, determine any question that arises as to whether work performed or to be performed by employees is within the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e).
The "work performed or to be performed" is descriptively referred to by the parties as the construction of the departures level bridge at Terminal 3 of Pearson International Airport. The hearings related to the section 150 application commenced in November 1988 and were continuing in October, 1990. In the course of a hearing on October 29, 1990, while James Nyman, counsel for United Brotherhood of Carpenters and Joiners of America, Local 27 ("the Carpenters"), was examining his first witness in the case, Janet Willings, about her qualifications, counsel for The Foundation Company of Canada Limited ("Foundation") moved to have the Board require Nyman to qualify Willings as an expert witness in bridge construction. The Board heard the parties' submissions on whether it should require Nyman to do so. Nyman's submissions included an outline of the type of evidence he intended to adduce through Willings. The Board ruled orally as follows:
The Board has considered the submissions of the parties on the issue of whether [the Carpenters] should be required to qualify Janet Willings as an expert witness in bridge construction. The Board has decided that it is unnecessary to do so. The Board's brief reasons for its decision are the following.
The ultimate question to be decided in these proceedings is whether the work performed in connection with the departures level bridge at Terminal 3 of Pearson International Airport is within the industrial, commercial and institutional ("ICI") sector of the construction industry referred to in clause (e) of section 117 of the Labour Relations Act. That question is within the Board's expertise to answer and clause (e) of section 117 requires the answer to be determined by the "work characteristics" of the work in dispute.
In the Board's view, it is neither necessary nor helpful to qualify a witness as expert in any area of evidence going to work characteristics before admitting the evidence of that witness. What does matter to the Board is whether the evidence is relevant to and helpful in deciding the ultimate question of whether the work in issue is work within the ICI sector.
Therefore, the Board will not require Nyman [counsel for the Carpenters] to call further evidence as to witness' qualifications for the purpose of qualifying her as an expert witness before giving any of the testimony which he has summarized for the Board as long as the Board is satisfied that the testimony is relevant to the matter before it and has probative value.
- By letter dated November 13, 1990, from Foundation counsel, the Board has been asked to exercise its discretion under subsection 106(1) of the Act and reconsider and vary or revoke its ruling. Counsel for Dufferin Construction Company ("Dufferin") and for Labourers' International Union of North America, Local 183 ("the Labourers") support the application and adopt Foundation counsel's submissions. Nyman responded to the request for the Carpenters by letter dated December 5, 1990. The parties mere content to have the Board decide the request on the basis of their written submissions. The request concludes as follows:
In making our request for consideration herein, we rely on John Entwistle Construction Limited, [1979] O.L.R.B. Rep. 1096, since our request raises a "significant and important issue of Board policy" which requires the Board to determine if it should vary or revoke its evidentiary ruling of October 29, 1990. It is submitted that as a matter of policy the Board ought to exclude opinion evidence unless the witness qualifies an [sic] expert within the meaning of the jurisprudence in this area.
Accordingly, for the foregoing reasons, we request the Board to reconsider its Decision and require Carpenters' Union, Local 27 to establish Ms. Willings' qualifications as an expert before she is or continues to be entitled to give opinion evidence concerning bridge construction, including the work characteristics of bridge construction as compared to other structures. In default of a finding by the Board that she is such expert, we request that the Board strike those portions of her testimony which constitute opinion evidence from the record and order and direct that she not be entitled to give any further opinion evidence in this matter.
The Board's Practice Note No. 17 dealing with applications for reconsideration referred as follows to the Entwistle decision cited in the request.
The Board also stated in John Entwistle Construction Limited, [1979] O.L.R.B. Rep. Nov. 1096 at ¶5:
"The Board exercises its jurisdiction under section 95(1) [as it then was] of the Act to reconsider and vary or revoke any decision with care and caution in order not to undermine the finality of its decisions and, as stated by the Board in Canadian Union of General Employees, [1975] OLRB Rep. April 320:
"Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously."
These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board's decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision."
The Board may reconsider and vary or revoke any decision, order, direction, declarations or ruling pursuant to subsection 106(1) which reads as follows:
106.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
Counsel for Foundation, Dufferin and the Labourers submit that the Board erred in law when it refused to require that Willings be qualified as an expert witness before giving "opinion" evidence. In support of their position they rely substantially on the common law relating to the admissibility of opinion evidence and not on any Board jurisprudence. The Board is prepared to acknowledge, for the purposes of this decision, that the case law relied upon by those parties may reflect accurately what the courts require for evidence to be admissible in the courts. The Board, however, has the express power under subsection 103(2)(c) of the Act "to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not". Those are terms which accommodate proceedings before a specialized administrative tribunal, as the Board is, and they include the power to admit hearsay evidence. Thus, to the extent that opinion evidence of a witness unqualified as an expert in the matter is in the nature of hearsay, the Board has a statutorily conferred power to admit it.
The Board's power to admit hearsay evidence overrides the common law limitations on admitting it and that power has been affirmed by the courts, both respecting subsection 103(2)(c) and the similarly worded subsection 44(8)(c). The judgements of the courts in that respect were canvassed by the Board in Reimer Overhead Doors Ltd., [1984] OLRB Rep. Oct. 1493 at paragraphs 12 through 17. One of the judgements canvassed was that of the Ontario Court of Appeal in R. v. Barber et al., 1968 CanLII 446 (ON CA), [1968] 2 O.R. 245. At 252 the court recognized the extent to which the power given by the Legislature to an arbitrator under subsection 44(8)(c) overrides the common law:
By that clause the Legislature recognized that arbitrations will frequently be presented before arbitration boards by lay persons. Accordingly, it relaxed the strict rules as to the admissibility of evidence and in particular allowed hearsay evidence to be adduced without objection.
The Court added the qualification that "that provision does not relieve a board from acting only on evidence having cogency in law". This caution was interpreted by the Ontario Court of Appeal in Noranda Metal Industries Limited, Fergus Division v. Local Union 2345, IBEW et al.,[1984] CLLC ¶14,024, at 12,098:
Obviously, if evidence is irrelevant, it cannot be relied upon even although it has been admitted. I think that is all that Jessup J.A. meant in stating that the provision of the Labour Relations Act referred to by him "does not relieve a board from acting only on evidence having cogency in law". It is apparent that the present section 44(8)(c) is intended to permit an arbitrator to rely on relevant evidence even where such evidence is not admissible in a court of law.
Since the Board's power under section 103(2)(c) of the Act to admit evidence is the same as that of an arbitrator under section 44(8)(c), the Court of Appeal clearly seems to have said that the Board may admit and rely on hearsay where it is relevant to what the Board must determine. Thus, it would appear that the Court has equated relevance with admissibility. In that respect, Foundation counsel appears to be challenging that equation when he contends, in the application for reconsideration, that ",...the Board confused relevancy of evidence with admissibility of evidence and thereby erred in law in failing to require [the Carpenters] to qualify [Willings] as an expert before giving opinion evidence.". In the Board's opinion, its ruling that it would admit Willings' testimony as long as it is relevant to the matters before the Board and has probative value satisfies the equation. Beyond that, should any of Willings' evidence be hearsay, the parties will have the opportunity in final argument to instruct the Board on the weight to be given to that evidence. As the Board observed in Reimer, supra, at paragraph 10: ". . .[t]he Board has regularly admitted hearsay evidence and has then addressed the issue of the weight to be given, if any, to such evidence.".
Therefore, in the circumstances in which the Board made its ruling not to require counsel for the Carpenters to qualify Janet Willings as an expert witness in bridge construction and for all of the above reasons, the Board declines to reconsider and vary or revoke the ruling. Furthermore, for the same reasons, insofar as the request is grounded in the submission that, as a matter of policy, the Board ought to exclude unqualified opinion evidence, the Board is not satisfied that the request establishes the need for such a policy. Whether to admit such evidence is for the Board to decide in the particular circumstances before it. For example, the Board might want to qualify as expert in a particular field of medical practice a witness giving medical evidence about another witness' competence and compellability. In the view of this Board panel, however, it would unduly limit the Board's exercise of its subsection 11 03(2)(c) powers to adopt a policy of excluding all opinion evidence unless the witness is qualified as expert within the meaning of the common law jurisprudence relied on by counsel in making this application.
In the result, the application for reconsideration of the Board's ruling not to require counsel for the Carpenters to qualify Janet Willings as an expert in bridge construction is dismissed.