Ontario Labour Relations Board
[1992] OLRB Rep. July 772
1499-90-R; 1500-90-R; 1512-90-R International Union of Operating Engineers, Local 793, Applicant v. Camaro Enterprises Limited, Respondent v. Group of Employees, Objectors
BEFORE: Judith McCormack, Vice-Chair, and Board Members J. Lear and J. Kurchak.
APPEARANCES: S. B. D. Wahl, E. Kaplanis and J. Slaughter for the applicant; William S. Gardner and Barry Mulder for the respondent; Len Miller for the objectors.
DECISION OF THE BOARD; July 21, 1992
These are three applications for certification which were consolidated by the Board by a decision dated April 30, 1992. There are a number of issues in dispute between the parties which are the subject of ongoing hearings before another panel of the Board. This panel convened a hearing into an allegation that Carolyne Baron did not pay at least one dollar at the time she applied for membership in the applicant. The respondent asserts that Edward Kaplanis, an organizer for the applicant, supplied the dollar that was paid with respect to Ms. Baron's application.
At the hearing of this matter, the Board heard the evidence of Carolyne Baron, an employee of the respondent at the time of these events, Edward Kaplanis, an organizer and business representative for the applicant, and Len Miller, another employee of the respondent and a representative of a group of employees opposing the applications for certification. Subsequently, the parties filed lengthy written submissions in lieu of oral argument. On July 2, 1992 the Board issued the following decision:
After carefully considering the evidence before us and the parties' submissions, we have determined the non-pay allegation with respect to Carolyne Baron must be dismissed. Our reasons will follow.
These are the reasons for that decision.
Carolyne Baron told the Board that she attended a union meeting on August 1st, 1991 in Mr. Kaplanis' room at the Best Western Motel in Dryden, Ontario with the intention of joining the applicant. She testified that Mr. Kaplanis was seated at a desk in the room, and that employees walked over to the desk, one by one, to apply for membership. When Ms. Baron went up to the desk, Mr. Kaplanis took down certain information from her on an application for membership, including her name, address, birth date, employer, classification, social insurance number, phone number, and so forth. Ms. Baron signed the application and Mr. Kaplanis signed in the location designated for a witness. There is a receipt portion attached to the application which indicates that one dollar was received from Ms. Baron by Mr. Kaplanis. Both signed that as well. At some point in this process, according to Ms. Baron, she gave Mr. Kaplanis one dollar of her own money. She testified that Mr. Kaplanis did not pay the dollar for her.
Mr. Kaplanis' evidence essentially corroborates that of Ms. Baron in all material respects. He told the Board that he has been a provincial organizer for seven years, and that in that time he has been involved in fifty or sixty union organizing campaigns. He testified that he did not provide Ms. Baron with the dollar, that it had been "pounded into his brain" to perform the card signing process properly, and that he was a professional who would not do anything so foolish as the respondent asserted. More specifically, Mr. Kaplanis testified that Ms. Baron was one of a number of employees who were concerned about signing membership cards on the respondent's premises, and who attended at his hotel room on August 1, 1991. He testified that he asked Ms. Baron for the information required on the application for membership, and filled out the application and receipt accordingly. According to Mr. Kaplanis, Ms. Baron signed the form and gave him a dollar. Mr. Kaplanis identified his own signatures on both the application and receipt portion, and he testified that he did not provide the dollar for Ms. Baron.
The respondent's original allegation stipulated that Len Miller had witnessed Mr. Kaplanis paying one dollar for Ms. Baron's application. However, when Mr. Miller gave evidence, he indicated that he was not present when Ms. Baron joined the applicant and had no first hand knowledge about it at all. He did, however, have a conversation with Ms. Baron in the early fall of 1990 while he was circulating a petition in opposition to the applicant. He testified that in that conversation, Ms. Baron told him that she had joined the union but had not paid one dollar, and that Mr. Kaplanis had paid the one dollar for her. This was the sum total of his knowledge with respect to this matter.
Ms. Baron could not recollect making this statement to Mr. Miller. However, she did agree in cross-examination that she had said to counsel for the respondent in a telephone call in May of 1992 that she was not sure about paying the dollar, and that she did not think she had. She also acknowledged that more recently she had said to two other individuals that she could not remember anything about the dollar payment on the receipt portion of the application, that she did not honestly believe that she had paid the money, and that she could not remember paying the amount of money because the event had happened close to two years ago. When confronted with these statements in cross-examination, Ms. Baron told the Board in essence that since the time of these conversations, she had attempted to remember the signing of her card with more clarity and was successful in recalling the facts to which she testified before us.
Mr. Kaplanis also gave evidence with respect to certain inquiries made by Jack Slaughter, the Form 80 declarant in this matter. The parties further agreed on the admission of several exhibits into evidence with respect to those inquires.
On the basis of these facts, the respondent asserts that we should find that Ms. Baron did not pay at least one dollar with respect to her application for membership. Among other things, he argues that Ms. Baron's testimony before the Board was not credible, that Mr. Kaplanis' evidence was unreliable and that the Board should accept Ms. Baron's prior inconsistent statements as evidence as to the truth of what occurred. Counsel for the applicant argues, among other things, that a reading of sections 105(2)(a) and 105(2)(c) together indicate that the Board is not permitted to accept Ms. Baron's prior inconsistent statements as evidence of the truth of their contents, that the testimony of both Ms. Baron and Mr. Kaplanis was credible, and that the membership application itself is a contemporaneous documentary record upon which the Board can rely.
The obligation that an applicant for membership in a trade union must pay at least one dollar arises from section 1(1) of the Labour Relations Act. That section defines "member" in this context as including a person who has applied for membership in a trade union and has paid an amount of at least one dollar to the union on his or her own behalf in respect of initiation fees or monthly dues. While the Board has observed that this payment is now symbolic, and has said that it will not generally scrutinize casual gifts or loans in this regard between rank and file employees, that lack of scrutiny does not necessarily extend to loans or gifts from union officials (Calvano Lumber & Trim Co. Ltd., [1988] OLRB Rep. Aug. 735). Thus the allegation that Mr. Kaplanis paid the dollar for Ms. Baron raises an issue with respect to the membership evidence.
Turning to the testimony at the hearing in this regard, we share a number of the respondent's reservations about Ms. Baron's evidence. There is no doubt that the prior inconsistent statements which she acknowledges having made cast significant doubt on the reliability of her testimony. However, even if we reject her evidence in its entirety, we are left only with Mr. Kaplanis' testimony to the effect that Ms. Baron did pay one dollar, and Mr. Miller's evidence about another previous inconsistent statement. In other words, there is no direct affirmative evidence that Ms. Baron did not pay one dollar. Mr. Miller has no first hand information about the payment, and while Ms. Baron acknowledges making previous inconsistent statements, she now testifies under oath that those previous statements were untrue. It is for this reason that the respondent urges us to use Ms. Baron's previous inconsistent statements as evidence of the truth of their contents, and not just to impeach her credibility.
We observe at this point that we do not accept counsel for the applicant's view that we cannot rely on evidence of this nature because it would not be admissible in a court of record. Sections 105(2)(a) and 105(2)(c) read as follows:
(2) Without limiting the generality of subsection (1), the Board has power,
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce the documents and things as the Board considers requisite to the full investigation and consideration of matters within its jurisdiction in the same manner as a court of record in civil cases;
(c) to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not.
Counsel argues that the Board summoned and thereby compelled Ms. Baron to give evidence pursuant to section 105(2)(a). Reading these sections together, he asserts that the Board may admit evidence that may not be admissible in a court of law, but it may not rely upon evidence of witnesses that it summonsed if the evidence given is not admissible "in the same manner as a court of record in civil cases". In other words, he argues that we can hear such evidence and our proceedings will not be vitiated by so doing, but that we cannot rely upon it, at least with respect to a summoned witness.
In our view, this is not a cogent approach to sections 105(2)(a) and 105(2)(c). It is more logical to interpret the phrase "in the same manner as a court of record in civil cases" as referring to the power to summon and enforce the attendance of witnesses and the other enumerated powers in the subsection. In other words, the Board can "summon and enforce the attendance of witnesses in the same manner as a court of record in civil cases". Section 105(2)(c) then deals with the nature of oral and written evidence the Board may accept, whether from a summonsed witness or otherwise. Indeed, a similar provision was found in Re United Glass & Ceramic Workers of America et al and Pilkington Brothers (Canada) Ltd. et al (Ont. H.C.J.) (1978), 1978 CanLII 1711 (ON HCJ), 89 D.L.R. (3d) 737 to permit an arbitration board to rely on a previous inconsistent statement for the truth of its contents. There is no inconsistency between sections 105(2)(a) and 105(2)(c), and thus no reason to interpret the former as qualifying or limiting the latter in the manner counsel urges. As a result, we conclude that we have a discretion as to whether we rely on evidence such as previous inconsistent statements and that we are not precluded from so doing by section 105(2)(a).
At the same time, we are not persuaded that we should depart lightly from the practice of the courts in this regard, particularly in the circumstances of this case. That practice, generally speaking, is not to rely on previous inconsistent statements as evidence of the truth of their contents. In The Law of Evidence in Canada (John Sopinka, Sidney N. Lederman and Alan W. Bryant, Toronto: Butterworths, 1992), the authors summarize the courts' approach at page 871:
When a prior inconsistent statement is proved after the witness has denied making it, it has only limited evidential value. Unless the witness concedes the truth of the contents of the previous statement, it does not become evidence of the truth of the facts contained therein. Its only purpose is to impair the witness' credibility and thereby may have the effect of neutralizing the witness testimony. It only goes to show that the witness is not one who should be believed. The reasons advanced for and against the preservation of this rule are the same as in the case of a previous inconsistent statement that is proved on the examination of a party's own witness. Given the fact that the inconsistent statement is admissible only as evidence of the witness' lack of credibility, the judge or jury are not obliged to disregard all of the witness' testimony because of the contradiction, but they may give whatever weight to the evidence that they feel is appropriate in light of the contradiction.
This approach has been applied in the labour relations context as well. In Canadian Labour Arbitration (Morley R. Corsky, S. J. Usprich and Gregory J. Brandt, Scarborough, Ont: Carswell, 1991), the authors describe at pages 10-36 the rationale for the rule, which is based on "the reasonable principle that the arbitration should be decided on the basis of the evidence at the hearing, not on statements that people made at other times and places". While counsel for the respondent was able to refer us to some authorities critical of the courts' approach, including the minority opinion of Estey, J. in Mclnroy and Rouse v. The Queen, 1978 CanLII 175 (SCC), [1979] 1 S.C.R. 588, it is clear that the current state of the law is unchanged.
We are not inclined to depart from such a well-established rule in the particular circumstances of the matter before us. Leaving aside the broader debate with respect to the merits of that rule, in this case Ms. Baron has stated under oath before us that she did pay a dollar, and that her previous inconsistent statements were untrue. She has also offered some explanation for the discrepancy. While we find ourselves unconvinced by that explanation, the effect in this particular case is to render her credibility generally impaired. The result is that we have little confidence in her previous inconsistent statements as well. In addition, those statements were not made under oath or in comparable circumstances in terms of bringing home to Ms. Baron the importance of telling the truth. Indeed, if Ms. Baron did in fact volunteer this information to Mr. Miller while he was circulating a petition against the union, these circumstances strike us as particularly unconducive to reliable statements about such matters.
Counsel for the respondent suggests that because Ms. Baron's previous statements were closer in time to the event of applying for membership, they are more credible. However, the only statement that was closer in time to the event was that alleged to have been made to Mr. Miller, which is also the only one that Ms. Baron does not acknowledge having made. All the other statements were made shortly before the hearing in this matter, and a considerable length of time after the event. Mr. Miller is not a disinterested witness himself, representing as he does employees opposed to the union. Moreover, Mr. Miller alleges that this statement was made while he was circulating the petition, that is, after these applications had been filed with the Board. As a result, the comments of the Divisional Court in Re United Glass & Ceramic Workers, supra, in this regard are not applicable.
In addition, Ms. Baron's previous statements were not by any means unequivocal. For the most part, they were qualified by considerable doubt on her part. In her testimony before us, she is now quite sure she paid the dollar. While her previous uncertainty raises significant questions with respect to her current confidence in this regard, it also suggests that it would be unwise to rely on her previous statements for the truth of what occurred.
Finally, during the course of the hearing, it emerged that there was other direct evidence available in the form of other individuals who may have witnessed the transaction. During the hearing, counsel for the respondent became aware of the identities of those individuals but did not indicate any desire to call them as witnesses. While in the circumstances of the case we understand why he might be reluctant to do so, at the same time we are not persuaded that we should rely on unsworn, equivocal and untimely statements where there was other direct evidence available to the respondent, and where direct evidence was in fact provided by Mr. Kaplanis.
Counsel for the respondent argued that if we do not accept previous inconsistent statements as evidence of the truth of their contents, the Board cannot accept and rely upon membership evidence, a form of written hearsay, as an indication of employee wishes where those employees subsequently sign a petition opposing the union. In his view, if we apply the courts' approach to previous inconsistent statements across the board, membership evidence could only be used to attack the credibility of a subsequent petition.
One of the flaws in this argument is that membership evidence, while it has been characterized as a form of written hearsay, is also a unique form of evidence with specific statutory authority and application, and numerous safeguards. (See Roytec Vinyl Co., [1990] OLRB Rep. June 720 for a more detailed description of this statutory scheme and the institutional precautions taken by the Board.) Moreover, membership evidence is not necessarily inconsistent with a subsequent petition opposing a union. Indeed, the Board considers petitions to represent a subsequent change of heart by those employees who previously signed membership cards, not a statement that they never applied for membership. As a result, the analogy urged upon us is an ill-fitting one, and does not persuade us that the rule with respect to previous inconsistent statements should be abandoned in this case.
We therefore declined to rely on Ms. Baron's previous inconsistent statements as evidence of the truth of their contents, with the effect that there was no affirmative evidence before us that Ms. Baron did not pay a dollar in regard to her application. We were left with the testimony of Ms. Baron, about which we have expressed significant reservations, and that of Mr. Kaplanis, both of whom testified that a dollar was paid by Ms. Baron. Mr. Kaplanis' testimony about the dollar was unshaken in cross-examination, and a number of the respondent's assertions about his credibility were simply not borne out by the evidence. We concluded that regardless of where the onus of proof was located in this matter, on the basis of the evidence before us the allegation must be dismissed.