Carolyn V. Forbes v. BDO Dunwoody Ltd., and Ministry of Labour
File No.: 3281-00-ES Employment Practices Branch File No.: 53001151 Date: July 9, 2001
Before: David A. McKee, Vice-Chair.
DECISION OF THE BOARD
1This is an application for a review of a decision of an employment standards officer pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, ch. E-14 ("the Act"). The applicant seeks an adjournment. The responding party refuses to consent.
2The applicant seeks an adjournment because she is "unable to complete preparations for the hearing". It appears from her letter that this preparation consists of the serving of summonses on various potential witnesses. She has recently suffered severe injuries as a result of an automobile collision. Attending to the insurance claim, car repairs and numerous medical procedures have left her unable to attend in Toronto to serve the summonses she wishes to serve. She does not say that the injuries prevent her from appearing at the hearing on July 11, 2001. However, like any party, she wishes to be prepared to conduct her case fully when she starts.
3The responding party opposes the adjournment. The core of this opposition appears to be an assertion that the persons the applicant proposes to serve as witnesses are not compellable or that they have no relevant evidence to give. The Board cannot determine that question on the basis of the material in the file.
4The Board will proceed in the following fashion. The hearing will proceed on July 11, 2001 as scheduled. However, the applicant will not be required to call any witness other than herself. That is, if in the course of the hearing the applicant wishes to call a witness to give admissible evidence on a relevant matter, she will very likely be granted an adjournment for that purpose. However, the applicant should not assume that this means that she will be entitled to a hearing merely because she wants to require the attendance of a witness. She should be prepared to state what it is she believes that witness will say, and to demonstrate that this evidence is relevant and admissible in the proceeding. Witnesses give evidence as to facts, not a view of the law or the manner in which the Act should be interpreted.
5For instance, the application contains a statement about what a Ms. Shirley Koski would say about the Act and the Employment Standards Manual. If that is all that such a person would be called to testify to, the applicant would not likely be permitted to call her as a witness. The Board determines what the Act means and how it applies to any fact situation. The applicant will be able to tell the Board how she thinks the Act should apply to her particular circumstances, and indeed will be requested to do so. No witness may do so as part of their evidence.
6Accordingly, the applicant should appear on July 11, 2001 prepared to tell the Board all of the facts of which she has first-hand knowledge. She should also have a list of other witnesses she wishes to call and either what she expects them to say or the areas on which she wishes to examine them. She should also be prepared to explain to the Board, assuming that the witnesses she proposes to call would give the evidence she expects them to give, why her claim should succeed.
7I am not seized of this application.
"David A. McKee"
for the Board