3919-97-R Ontario Pipe Trades Council and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 463, Applicants v. Bill Bailey of Belleville Limited, Andreynolds Company Limited, Reynolds-Smith Holdings Inc., 574246 Ontario Limited c.o.b. as R & S Plumbing, R & S Plumbing/Mechanical and R & S Mechancial, 772702 Ontario Inc. c.o.b. as Shaw’s Pumps & Plumbing, Shaw’s Mechanical and Shaw’s Plumbing & Heating and 994451 Ontario Inc. c.o.b. as Quality Plumbing and Heating, Responding Parties.
BEFORE: Inge M. Stamp, Vice-Chair.
APPEARANCES: Craig Flood, Crystal Stewart for the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 463 and the Ontario Pipe Trades Council; Larry Cann for the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 463; Garth Cochrane, Brian Christie for the Ontario Pipe Trades Council; Alan Whyte, Don Shaw and Leslie Hamilton for Shaw’s Pumps & Plumbing and all the numbered companies; Colin Boyd and Gerald Kennelly for a Group of Employees (first day of hearing); Donald B. Jarvis and Roger Chartrand for Quality Plumbing and Heating.
DECISION OF THE BOARD; September 1, 2000
This application pursuant to section 69/1(4) of the Labour Relations Act (the “Act”) (and a section 133 grievance) was filed with the Board on January 26, 1998. There have been a total of 17 hearing days in this matter to date. During the course of the last two days of hearings on April 18 and 19, 2000 the parties asked the Board to rule on an evidentiary issue.
The responding parties completed their evidence-in-chief on April 18, 2000. The applicant called Joseph Jordan (“Jordan”) to give evidence under a summons to witness. The following is a brief summary of Mr. Jordan’s evidence leading up to the objection by the responding parties.
Jordan is a journeyman plumber and holds a plumbers’ masters licence issued by the City of Belleville. Jordan was employed by R & S Plumbing/Mechanical (“R&S”) where he served his apprenticeship. Roger Chartrand (“Chartrand”) was his supervisor and was the person who hired him to work at R&S. Jordan worked for R&S approximately 7 to 8 years starting in 1990. Eventually Jordan became a working foreman for R&S working on a broad range of projects.
Jordan was not an employee at the time of the certification of R&S by the applicant (“Pipefitters” or “U.A”). Jordan had a disagreement with Chartrand and left R&S to go to work for Don Shaw as a plumber at Don Shaw’s Pumps and Plumbing (“Shaw’s Pumps”). Jordan performed work on everything from residential plumbing to industrial and commercial work. On occasion Jordan worked as a foreman on projects and had daily contact with Don Shaw.
Jordan worked for Shaw’s Pumps for two years. After that Jordan left to start his own plumbing business, a sole proprietorship called Jay’s Plumbing (“Jays”). Jays signed a voluntary recognition agreement with the applicant. The business was not successful. After closing down his business Jordan was referred out to work by the U.A.
Jordan was referred through the union hiring hall to R&S to work as a working foreman for Chartrand on a 3-week project at the Sears Warehouse in Belleville.
After the R&S job was done Jordan obtained a referral from the union to work for Fox at Sears.
Subsequently Jordan was telephoned at home by Chartrand asking him if he was available to give him a hand with jobs at Canadian Tire in Hawkesbury and Bancroft and some Tim Horton projects. Jordan and Chartrand agreed on the conditions for the job in Hawkesbury. No mention was made of any company name. Just that Jordon would be working for Chartrand. Don Shaw’s name did not come up.
Jordan worked as a working foreman in Hawkesbury, supervising the men, making sure materials were on site.
Jordan testified that Chartrand said “he had got a company together so he could get around the union”. (“He” being Roger Chartrand).
The next question put to the applicant’s witness gave rise to the objection that is the subject of this decision.
Counsel for the applicant asked Jordan: “did he (Chartrand) mention how Mr. Shaw was involved in this?
Following are summaries of submissions made by the parties with respect to the applicability of the Browne v. Dunn rule.
Submissions on behalf of Shaw's Pumps
Counsel for Shaw's Pumps asserted that the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6R. 67 (H.L.) applied to the question posed to Jordan. The rule states that if one is going to call contradictory evidence to prove a proposition, one is required to put the proposition to the witness in chief. This was not done with respect to the witness, Don Shaw. Accordingly, the line of questioning commenced upon by counsel for the applicant is inadmissible.
Counsel for Shaw's Pumps cited the following cases: Edscha of Canada Inc., unreported arbitration decision (Briggs, May 12, 1994); John Clark [1991] OLRB Rep. May 598; Ontario Hydro, unreported decision of the OLRB (July 16, 1996).
The allegation in Counsel's question was that there was a scheme for Chartrand to go to a new company and get away from the union. Mr. Shaw had completed his testimony before the Board, and this issue had not been raised during his testimony. Furthermore, the applicant's pleadings, filed in January 1998, made no reference to a scheme to avoid bargaining rights. Neither did the cross-examination of Shaw, who was the key witness on behalf of Shaw's Pumps.
Counsel asserts that Shaw's Pumps would be severely prejudiced if this testimony were allowed.
In the alternative, Counsel submits that Mr. Shaw should be entitled to give reply evidence to deal with this new allegation.
Submissions on behalf of Quality Plumbing
Counsel for Quality also submits that the Board should apply the rule in Browne v. Dunn. If a party adverse in interest is going to call contradictory evidence on a matter central (as opposed to collateral) to the issue before the Board, or is going to attack the credibility of a witness in cross-examination, that witness must be put on notice that such an attack will be taking place.
Counsel submits that if the applicant had intended to call evidence from Jordan or anyone else to establish that Chartrand was involved in a scheme to avoid bargaining rights, Chartrand should have been alerted to this fact during cross-examination. Lord Herschell, in Browne v. Dunn, calls this the "intention to impeach."
Counsel also referred the Board to Regina v. Verney 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 where the Court, in discussing Browne v. Dunn stated at page 9:
“Browne v. Dunn is a rule of fairness that prevents the 'ambush' of a witness by not giving him an opportunity to state his position with respect to later evidence which contradicts him on an essential matter."
Counsel argued there are a number of reasons why a witness should be advised of the intention to impeach. First, a witness should know what is going to happen before he or she answers questions in cross-examination. Secondly, a tribunal has a greater chance of getting at the truth where a witness is specifically confronted and told that impeaching evidence will be called. Thirdly, there is the matter of efficiency: if a matter is put to a witness and the witness agrees to its veracity, there is no need to subsequently impeach the witness.
Counsel asked the Board to remember that the events alluded to occurred in 1992, the application was filed in 1998, and the matter has already taken 17 hearing days. In addition, the applicant has failed to plead a mischief intention as part of its 69/1(4) case.
Section 1(4) is designed to avoid the mischief of trying to evade bargaining rights. The fact that such mischief was not pleaded militates against its introduction at this stage in the proceeding.
Counsel asked the Board to recall the context in which this issue arose earlier in the hearing. The union was specifically put on notice that Quality was concerned about the applicant's intention to call contradictory evidence. Quality sought a direction from the Board that the applicant be required to advise whether or not it intended to call contradictory evidence. This was not an objection, but a request for a direction. The Board declined to make such a direction. Counsel argued that no clear notice was given to Chartrand that his testimony would be challenged.
Counsel for Quality submits had the applicant pleaded any scheme to avoid the union’s bargaining rights or cross-examined Don Shaw on that issue, there would have been an opportunity of cross-examination of Don Shaw. Further, counsel could have addressed that issue in its examination-in-chief of Chartrand.
Submissions on behalf of the Applicant
Counsel for the union argued there was no impropriety in its line of questioning as there is no rule of law or principle that would lead the Board to reject evidence to be tendered. The evidence the union was seeking to adduce was consistent with the scope of evidence allowed in such a proceeding, and evolved logically from the issues raised in the applicant's pleadings.
Counsel argued that the rule in Browne v. Dunn was not an absolute one. Rather a tribunal should look at what remedial efforts are necessary to balance the competing interests and the prejudice to one party from being denied the right to rely on specific evidence versus the prejudice suffered by the other party should the tribunal allow that evidence to be tendered.
Counsel also submitted that if there were any prejudice, it could be rectified by allowing the responding parties to recall its witnesses. Counsel argued that in the responding parties' interpretation of the rule, a party would always be required to give notice to a witness that his or her evidence would be challenged. This implies that a witness will only testify truthfully or accurately if he or she is advised that someone will be testifying to the contrary.
Counsel submitted that the second issue raised by Quality was not a Browne v. Dunn matter, but a question of sufficiency of the pleadings. On February 3, 2000, at approximately 3:00 p.m., counsel for Shaw's Pumps started to lead evidence regarding improper conduct of the union. The applicant objected and asked the Board to rule that the evidence not be admitted.
The Board ruled orally that it would allow the questions, and noted that those matters had not been pleaded.
Counsel now argues that the Board should be consistent in its rulings. Counsel argued that while the question surrounding the creation of Quality was not specifically pleaded, it should have been obvious to the parties that it was a live issue.
Counsel urged the Board to allow this line of questioning. Any prejudice to the responding parties could be addressed through cross-examination of the recall of Shaw, Chartrand, or any other witness. Counsel argued that the employers were asking the Board to refuse to entertain evidence without having heard it.
Written reply submissions by the Applicant
The parties agreed that the applicant could make written reply submissions with respect to two additional authorities provided by the responding parties.
Counsel for the applicant takes the position that neither of these authorities undermine the applicant's position that the evidence it seeks to put before the Board is proper.
Counsel asserts that it has complied with the rule in Browne v. Dunn by adverting to the intent to impeach during cross-examination. Alternatively, counsel points to paragraph 16.148 in Sopinka and Lederman, Law of Evidence in Canada (second edition) to assert that the rule is not absolute in any event. The same position is taken by the arbitrator in Re: Laidlaw Waste Systems Ltd. (St. Catharines) (1993) 1993 CanLII 16630 (ON LA), 37 L.A.C. (4th) 146.
DECISION
This application was filed with the Board on January 26, 1998. The parties made their opening statements on the first day of hearing on June 24, 1999. The responding parties, Shaw and Quality, completed their evidence-in-chief on April 18, 2000.
The applicant in its opening statement outlined the theory of its case with respect to Shaw and Quality. The applicant asserted that Roger Chartrand who was still a principal of R&S which is bound to the union’s collective agreement, was working for and providing significant input into the business of Quality.
Quality, a non-union company, was incorporated by Don Shaw, the principal of Shaw’s Pumps and Plumbing, also a non-union company. Don Shaw remained as president of Quality from 1992 until 1997.
Counsel for the applicant took the position there were overlapping relationships. There was an acquisition of Quality by Roger Chartrand from Don Shaw.
There was nothing in the pleadings or in the opening statement of any scheme and/or plan by Don Shaw and Roger Chartrand to circumvent the applicant’s bargaining rights.
No questions were put to Don Shaw in cross-examination about any scheme or his involvement in any scheme to avoid the union’s bargaining rights with respect to R&S. There were some questions put to Don Shaw by counsel for the applicant about the reasons for starting up Quality. However there were no suggestions or any indication that it would be alleged that Don Shaw and Roger Chartrand were involved in a scheme to avoid the union’s bargaining rights vis-a-vis R&S or that Quality was set up for the purpose of circumventing the applicant’s bargaining rights with respect to R&S.
There is no doubt that the “rule” of Browne v. Dunn, supra, or the principle of fairness, required some indication to Don Shaw that there was an allegation that he was involved in a scheme or plan to avoid the union’s bargaining rights, if the applicant intended to rely on this evidence for the purpose of the section 1(4). At a minimum the proposition should have been put to Don Shaw during cross-examination.
With respect to the responding party Quality and Chartrand, the Board does not agree with counsel’s assertion that in this case, or in any other case, a party must indicate to the witness that it is going to call contradictory evidence if it puts a different version of events to a witness in cross-examination. The Board’s understanding of Quality’s position is that it is not enough to say “my understanding of what happened is different” but must then indicate to the witness “and I am going to call evidence to that effect.”
There were a series of questions put to Chartrand by counsel for the applicant about his intentions to get out of his union obligations with respect to R&S. At the time counsel for Quality requested that the Board direct counsel for the applicant to disclose whether he would be calling evidence with respect to the propositions put to the witness. The Board declined to make such a direction and indicated that if the applicant did not call the evidence, then Roger Chartrand’s evidence would stand as uncontradicted. However the questions put to Chartrand did not disclose that the scheme involved Don Shaw.
As long as a witness has been put on notice that there is a different version and has had an opportunity to respond, the rule of fairness, in the Board’s view, has been met. Otherwise it suggests that a witness need not tell the truth unless he or she is faced with the threat of the evidence being called.
If the applicant had put the responding party Shaw on notice that it was going to allege this scheme to avoid the union bargaining rights and Mr. Shaw’s involvement in such a scheme, or given any indication that this was going to be an issue before the responding party Shaw closed its case, there would be no issue.
However the nature of the allegation involves both responding parties and although Quality was put on notice of a scheme (but not Mr. Shaw’s involvement) there is considerable prejudice to Shaw’s Pumps. There was a lengthy period of time from the date of filing until the day when Don Shaw was cross-examined by the applicant. The application date was January 26, 1998, cross-examination of Don Shaw took place February 29, 2000.
There is no explanation before the Board as to why Don Shaw’s alleged involvement in a scheme to avoid the union’s bargaining rights or the existence of a scheme, was not raised until the examination-in-chief of Jordan on April 18, 2000.
The conversation that Jordan referred to in his evidence took place sometime in 1992 or 1993. The application is filed some five years later. The first time an allegation of a scheme to avoid the union’s bargaining rights is raised is two years after the application is filed, or approximately 7 years after that conversation took place.
This is a serious allegation and there is no explanation before the Board as to why it is raised this late in the proceeding.
The Board has a discretion under the Act to determine its own procedure and to accept such evidence as it considers proper. In view of the length of time involved in this proceeding it is simply too late to introduce this new allegation. It is based on a conversation that took place some years ago. There is no explanation why this fact was not pleaded or raised before the responding parties completed their evidence.
Any allegations involving Don Shaw in a scheme to assist Roger Chartrand to avoid Chartrand’s company’s (R&S) bargaining rights should have been put to Don Shaw so that he might have had an opportunity to respond. This was not done.
The issue with respect to the Board’s ruling on February 3, 2000 admitting evidence regarding the “alleged” improper conduct of the union is entirely different from the Browne v. Dunn issue. There was no unfair labour practice complaint filed by the responding parties. What relevance, if any, this evidence regarding the union conduct has in this section 69/1(4) application was left to argument.
Prior to this decision being released counsel for the applicant kindly provided the Board with a recent decision of the Ontario Court of Appeal in Regina v. McNeill (2000) 2000 CanLII 4897 (ON CA), 48 O.R. (3rd) 212, with special reference to paragraphs 38 to 50. The Board received written submissions from counsel for Shaw’s Pumps with respect to Regina v. McNeill. The Board considered the comments in Regina v. McNeill and the submissions with respect to that decision, in deciding this matter.
Having carefully reviewed all of the authorities cited and having regard to the circumstances of the conduct of this case the Board finds that the evidence the applicant is seeking to adduce through Jordan at a minimum should have been put to Don Shaw during his cross-examination. It is too late in the proceeding to raise new allegations, especially in this situation where the responding parties have a statutory duty to proceed first and put in all of their evidence. The Board must weigh all of the factors in order to address the competing interests involved. Having regard to the circumstances of this case the applicant is barred from calling any evidence or relying on any evidence as it relates to any involvement of Don Shaw in any alleged scheme to avoid the union’s bargaining rights.
This matter will continue on the dates scheduled.
“Inge M. Stamp”
for the Board