Ontario Labour Relations Board
2160-98-R Labourers International Union of North America, Ontario Provincial District Council and Labourers International Union of North America, Local 527, Applicants v. William S. Burnside (Canada) Limited, Dolyn Developments Inc., Responding Parties.
3276-98-G Labourers International Union of North America, Local 527, Applicant v. William S. Burnside (Canada) Limited, Dolyn Developments Inc., Responding Parties.
4251-98-R Dolyn Developments Inc., Applicant v. William S. Burnside (Canada) Limited and Cote & Ryde Construction Ltd., Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: S.B.D. Wahl and G. Mullin for the applicants; Michael S. Ruddy for William S. Burnside (Canada) Ltd.; Jacques A. Emond and Doug Burnside for Dolyn Developments Inc.
DECISION OF THE BOARD; February 18, 2000
During the examination-in-chief of Douglas Burnside at the continuation of the hearings in these matters, counsel for Dolyn Developments Inc. ("Dolyn"), in anticipation of the applicant's cross-examination of Mr. Burnside, sought to introduce evidence with respect to the creation and operation of the Dolyn internet website. Counsel for the applicant had introduced copies of certain pages downloaded from that website in the course of representations with respect to the production of documents that ultimately resulted in the decision in these matters dated September 10, 1999. Counsel for Dolyn submitted that the website and the pages the applicant obtained from that website, having been created well after these applications had been filed with the Board, were irrelevant to the issues in these matters. Counsel for the applicant disagreed. I determined that rather than rule on the admissibility of those documents now, I would reserve on the issue and permit the evidence (and cross-examination) in respect of the Dolyn website to proceed and would, if necessary, rule on their admissibility at the conclusion of the hearing.
Counsel for each of the responding parties, at the end of the fifth day of hearings in these matters, requested that the Board direct counsel for the applicant to produce the documents upon which he intended to rely at the continuation of hearings in these matters. Counsel for the applicant objected to the Board making that kind of order. After hearing submissions from counsel for the applicant, the Board did not need to hear submissions from counsel for either of the responding parties and made the following oral ruling:
Counsel for each of the responding parties is requesting a production order directing the applicant to produce the documents upon which it intends to rely at the continuation of the hearings in this matter in July and August. Counsel for the applicant objects to the Board making the production order sought by the responding parties on two broad grounds:
a) producing documents before the responding parties' evidence is completed may adversely affect the applicant's ability to conduct an effective cross-examination since the principals of the responding parties will know what documents are in the applicant's possession and therefore may well be able to anticipate counsel's cross-examination; and
b) some documents upon which the applicant intends to rely are in the possession or control of third parties and therefore the applicant may not have them in its possession before the commencement of the continuation of the hearings in this matter as it would have to obtain them from those third parties through a summons to witness.
The responding parties did not press the issue of production of documents that are in the hands of third parties and the Board therefore need not determine whether the Board has the power under the Labour Relations Act, 1995, S.O. 1995, c. 1 or the Statutory Powers Procedure Act, R. S. O. 1990, c. S. 22 to order third parties to produce documents prior to a hearing. Obviously, if the documents upon which the applicant intends to rely are under the control of third parties and cannot be obtained voluntarily, the applicant need not produce those "third party documents" to the responding parties until they are made available to the applicant in response to a summons to witness served on those third parties returnable at the continuation of the hearing in these matters.
With respect to the documents over which the applicant has control or are in the applicant's possession, if the applicant intends to rely on those documents at the hearings in these matters then they must be produced prior to the continuation of the hearings as it is preferable to have as much disclosure as possible before the hearings commence or in this case, continue. The Board does not encourage "hearings by ambush", despite the view of applicant's counsel that the use of surprise during a cross-examination can often get at the truth more effectively than if the witness is prepared for what is coming. I have no doubt that counsel for the applicant will be able to conduct an effective and thorough cross-examination even if the documents upon which he intends to rely that are in the possession or control of the applicant are produced to the responding parties. Indeed, the production of the documents well before the next hearing may save some hearing time.
Therefore, the applicant is directed to produce for inspection by counsel for each of the responding parties all of the documents upon which the applicant intends to rely at the continuation of the hearings in this matter, except those documents in the possession or under the control of third parties that the applicant has been unable to obtain voluntarily. Such production must be made on or before Monday, May 15, 2000. Should the documents ordered produced not be produced for inspection by May 15, 2000 the applicant will not be permitted to refer to or rely on them at the continuation of the hearing except with leave of the Board.
The parties agreed that at the continuation of these hearings, the testimony of Douglas Burnside would continue first with the completion of his examination-in-chief and then he would be cross-examined first by counsel for William S. Burnside (Canada) Limited and then by counsel for the applicant. Counsel for Dolyn would then conduct the re-direct examination, if any, of Douglas Burnside before counsel for the applicant begins the cross-examination of William S. Burnside.
These matters are to continue before this panel of the Board on July 18, 19, 25, 26, 27, August 2 and 3, 2000.
"Harry Freedman"
for the Board