Labourers' International Union of North America, Ontario Provincial District Council v. William S. Burnside (Canada) Limited
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 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; July 20, 2001
1The Board made the following oral rulings during the continuation of the hearing in this matter on July 17 and July 18, 2001 in respect of an objection raised by counsel for William S. Burnside (Canada) Limited (“Burnside Canada”) to the admission of title abstracts obtained from the Ottawa Land Titles Office into evidence.
Evidentiary Ruling July 17, 2001
2Counsel for the applicants seeks to introduce into evidence during the cross-examination of William S. Burnside title abstracts obtained from the Land Titles Office in Ottawa relating to the ownership of the Hines Road properties (88, 93 and 95 Hines Road). Counsel for Burnside Canada objected to those documents being received by the Board at this stage of the proceedings.
3Both Douglas Burnside and William S. Burnside had testified that those properties were 90% owned by Burnside Canada and 10% owned by Dolyn Developments Inc. (“Dolyn”).
4Counsel for the applicants wants to confront William S. Burnside with those title abstracts which, counsel says, indicate that the legal title of those properties is held by Burnside Canada. There was reference, just before counsel for Burnside Canada objected to the introduction of those documents, to Burnside Canada holding those properties as trustee for the beneficial owners, Burnside Canada and Dolyn.
5Counsel for Burnside Canada relies on the Board’s decision in this matter dated February 18, 2000 in which I wrote:
…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.
6Counsel for the applicants submits that the issue of the legal ownership of the Hines Road properties did not manifest itself until the testimony of William S. Burnside and therefore arose after the Board’s February 18, 2000 decision. Secondly, counsel submits that the title abstracts which he wishes to introduce are matters of public record and do not come within the category or nature of the documents the Board had intended the applicants to produce which, in counsel’s submission, related to documents that were private property, not matters of public record.
7Counsel for the applicants had opposed the Board making the order contained in its February 18th decision. In that decision I noted:
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.
In my opinion, confronting the witness in cross-examination with documents that have not been produced was precisely what the Board’s February 18, 2001 decision had intended to preclude. There was nothing in that decision distinguishing between documents that were private property and documents in the public domain.
8As for the issue of when the applicants could reasonably have determined that those documents would be relied on because the issue did not become patent until well after the Board’s February 18th order, I observe that both William S. Burnside and Douglas Burnside had testified about the ownership of the Hines Road properties. Furthermore, I note that the documents on their face indicate that they were prepared by the Land Titles Office, presumably for the applicants, in December 1999, well before the Board’s February 2000 decision. If the applicants had those documents in their possession in early 2000 and there was some likelihood that the applicants would wish to rely on them, they should have been produced in accordance with the Board’s February 18, 2000 decision.
9Finally, I also accept the argument of counsel for Dolyn who submitted that the documents also purported to challenge the credibility of Douglas Burnside who had also testified about the ownership of the Hines Road properties. The applicants could have tried to confront Douglas Burnside with those title abstracts when he had testified, but chose not to do so.
10Therefore, I am satisfied that the applicants, by not producing the land titles abstracts they wished to have entered into evidence for inspection by the responding parties prior to May 15, 2000, failed to comply with the Board’s order of February 18, 2000. In that decision, I set out the consequence of failing to produce the documents as follows:
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 applicants have not provided any grounds for the Board granting leave to introduce those documents at this stage of the proceeding. The objection to the admissibility of the documents made by counsel for Burnside Canada is therefore sustained.
Evidentiary Ruling July 18, 2001
11Counsel for the applicants, after having had the responding parties obtain and produce the documents listed in the Land Titles Office abstracts or register in respect of 88, 93 and 95 Hines Road presses to have the abstracts themselves entered as an exhibit in these proceedings. Counsel for Burnside Canada continues to object to their introduction and that objection is supported by counsel for Dolyn.
12In effect, counsel for the applicants wants to have me reconsider my decision yesterday in light of the documents that had been produced by the responding parties earlier today. He submits that the state of the Land Titles Office register is relevant in and of itself. While that may well be the case, the reasons for excluding the register from evidence yesterday had nothing to do with relevance and everything to do with the time in this proceeding when the applicants produced it to the other parties.
13Counsel for the applicants has not persuaded me that the applicants had any better reasons today for not having produced the title abstracts or register prior to yesterday’s hearing than they did yesterday. Under these circumstances, despite the relevance of the Land Titles Office abstracts based on the applicants’ legal theory of the use of the Land Titles Office abstracts, I am not persuaded to reconsider my ruling in this matter.
14The objection to the introduction of the Land Titles Officer register into evidence is sustained.
15Following the completion of the testimony of William S. Burnside, the responding parties had completed the presentation of their cases. Counsel for the applicants indicated that he would be calling Gerry Mullin as his first witness when the hearings resumed.
16During the course of discussions among counsel and the Board, a suggestion had been made about the possibility of engaging in mediation before the applicants opened their case. Counsel discussed the matter with their clients, in my absence, and in particular, whether I should undertake mediation efforts. At the conclusion of the hearing on July 18, 2001 counsel advised me that they and their clients had agreed to have me act in that capacity and I indicated that I would be prepared to do so on the clear understanding that the parties accepted that the mediation would not affect my continuing to hear and decide these matters should a settlement not be reached.
17I advised counsel that I was prepared to undertake mediation efforts with their clients’ agreement and understanding that all discussions that take place during the mediation process are privileged; that is, nothing that is said while mediation is taking place can be referred to or relied upon by any party or person during the continuation of the hearing of these matters or in any other proceeding before this Board. Counsel also understood and accepted that my acting as a mediator in these matters and that any comments made by me or to me during the mediation would not disqualify me from continuing to hear and decide these matters should a settlement not be reached.
18The hearings in these matters are scheduled to continue before me in Ottawa on August 22, 23 and 24 and October 4 and 5, 2001. The mediation will take place in Ottawa on August 22nd commencing at 9:30 a.m. at a location to be fixed by the Registrar. If no settlement is reached on that day, the applicants will begin to present their case in the afternoon of August 22nd or, at the latest, on August 23rd and the matter will continue with the expectation that the evidence will be completed by the end of the day on August 24, 2001. The Board will receive the parties’ arguments on October 4 and 5, 2001.
19These matters are referred to the Registrar to fix the location of the mediation meeting and hearing for August 22, 2001. The hearings scheduled for August 23, 24 and October 3 and 4, 2001, if it is necessary to proceed, will take place in Board Room 712, Public Service Staff Relations Board, 240 Sparks St., 7th Floor, West Tower, C.D. Howe Building, Ottawa, Ontario, commencing at 9:30 a.m. each day.
"Harry Freedman"
for the Board