Hostile Witness Rule

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Date Retrieved:	2024-11-26
CLNP Page ID:	2362
Page Categories:	Legal Principles
Citation:	Hostile Witness Rule, CLNP 2362, <https://rvt.link/d5>, retrieved on 2024-11-26
Editor:	MKent
Last Updated:	2024/09/23

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Commonwealth Plywood Co. Ltd. v Rancourt, 2018 CanLII 72583 (ON LRB)

13. Ontario’s Divisional Court has confirmed an employer can call the grievor as its own witness in a labour arbitration: Canada Post Corporation v. Canadian Union of Postal Workers, (1991), 1991 CanLII 13501 (CA LA), 21 L.A.C. (4^th) 350 (CPC), rev’d Ont. Div. Crt., November 12, 1991.  The Divisional Court’s decision is unreported, but extracts from its decision overturning an arbitrator’s refusal to allow Canada Post to call the grievor as its own witness have been quoted in various arbitral awards[1]:

Generally speaking, although the arbitrator is and remains the master of the procedure to be followed, each party should be free to call whatever evidence and in whatever sequence it chooses. Canada Post sought to exercise that right. It proposed to proceed in a somewhat unusual way, but one which, in the circumstances was entirely understandable and justifiable. It is also a right which has been legitimated by the court. Bourdouhxe v. Institut Albert-Prevost (1974), 77 C.L.L.S.C. 14, 212 (Que. C.A.). The arbitrator's order denies Canada Post's right to proceed in that fashion.

...

20. An adverse witness is not the same thing as a hostile witness, the latter finding allowing for impeachment.  As noted at paragraph 16.69 in The Law of Evidence in Canada, supra:

16.69 …This is a right which has not been taken away by the statutory provisions. It is arguable that this right is available only if hostility is established in the Common Law sense, and not in its watered-down version based on judicial interpretation of adversity. Certainly something more than a “bad answer” on examination in chief ought to be required before the party calling the witness is allowed to cross-examine him or her. It seems quite plausible to allow contradiction by a previous inconsistent statement, but not to allow full cross-examination simply because the witness has given evidence that is unfavourable to the party calling the witness. In the former case, the change of posture warrants an explanation by cross-examination. The latter case is just one of the hazards of litigation. It is a truism that every witness can be a double-edged sword.

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21. In D'Alessandro v. Labourers' International Union of North America, Local 1089, 1984 CanLII 975 (D’Alessandro), the Board examined the concept of a hostile witness, as well as s. 23 of the Evidence Act.  It refused to declare a witness hostile and permit cross-examination:

8. A party seeking leave of the Board to embark upon a full cross-examination of a witness called by that party must satisfy the Board that the witness has proven "hostile" (or that some other proper basis exists for granting such leave). Having duly considered the written submissions of counsel and all of Ms. Iacobelli's testimony to date, we have concluded that there is no factual or legal basis for the complainants' contention that Ms. Iacobelli is a hostile witness. In Reference re R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, at page 213, Kellock J. defined "hostile" as "not giving. . . evidence fairly and with a desire to tell the truth because of a hostile animus toward the [party who called the witness]." The issue of hostility is determined by the Board observing the witness as she gave her evidence, and considering her demeanour, general attitude, and the substance of her evidence (see, for example, The Corporation of the Town of Meaford, [1981] OLRB Rep. June 634, and the authorities referred to in that decision). We are not, of course, in a position to conclusively determine at this stage of the proceedings the matter of Ms. Iacobelli's credibility as a witness, or the weight to be given to her evidence. That can only be done after we have heard and considered all of her testimony, and all of the other evidence that has been and will be adduced during the course of this case. It is sufficient for the purposes of this decision to find that Ms. Iacobelli has not in any of her testimony to date demonstrated hostility towards the complainants…

…

12. In summary, complainants' counsel has not satisfied us that he should be permitted to cross-examine Ms. Iacobelli at this stage of the proceedings on the basis of common law principles concerning hostile witnesses, on the basis of section 23 of the Evidence Act, or on any other basis. Counsel has not cited, nor has the Board's independent research revealed, any authority which would support the proposition that inconsistencies between a witness's testimony during examination-in-chief and her testimony in cross-examination make it appropriate for a tribunal to permit counsel to cross-examine the witness during re-examination, in the absence of a finding of hostility on the part of the witness. Nor are we satisfied as a matter of policy or procedure that the Board should permit such cross-examination in the circumstances of this case.

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33.  The Federal Court’s comments in RNC Média inc. v. Coté, 2015 FC 439 also dealt with a Quebec case, albeit yet another one arising under the Canada Labour Code.  Even in that context, while the Federal Court referred to the Quebec practice of calling the other side as its witness, it still distinguished between leading questions and cross-examination:

[16] As is commonly the practice in such proceedings, the applicant chose to call the respondent as a witness when making its case. This is the context in which the adjudicator first restricted what the applicant refers to as the cross-examination of the respondent but was, in fact, an examination-in-chief. The adjudicator returned to this issue in his decision and, relying on paragraphs 242(2)(b) and (c) of the Code, submitted that he was in control of the proceeding and of the evidence presented to him and that he was not subject to the rules of the Code of Civil Procedure of Québec. He was therefore not required to allow counsel for the applicant to put leading questions to his own witness, the respondent. Here is how he disposed of the issue:

[translation]

[102] Therefore, when the Employer or its counsel calls the complainant as a witness to establish the facts underlying its claims, it cannot, in my view, rely on article 306 of the Code of Civil Procedure to ask questions that suggest the desired answer, i.e. leading questions, nor may it criticize the complainant or cross-examine him as it would an opposing party within the meaning of the Code of Civil Procedure, that is, a party having interests opposed to the party who is questioning him, which is what counsel for the Employer did in this case.

[17] With respect, I am of the opinion that putting leading questions to a witness must be distinguished from criticizing him or her or conducting a proper cross-examination. I have difficulty seeing how counsel for the employer could examine the complainant effectively and encourage the discovery of facts relevant to the complaint if counsel did not have some latitude and could not ask questions in such a way as to suggest the desired answer. Although the adjudication of an unjust dismissal complaint is more akin to an inquiry than to a civil trial, the fact remains that the complainant has interests opposed to those of the employer. The applicant argues that it was entitled to cross-examine the applicant when making its case, while the respondent argues that it was not entitled to ask leading questions. Like Adjudicator Weatherill in Re Royal Canadian Mint and Public Service Alliance of Canada, 1978 CanLII 3399 (ON LA), [1978] OLAA No 100, 20 LAC (2d) 127 (cited with approval by Adjudicator Bastien in National Bank of Canada v Paitich, 2011 CanLII 89184 (CA LA) at para 57), I find that the balance lies between these two positions:

There is no doubt, and the board has already ruled, that the employer is entitled to call the grievor as its witness. In doing so, the employer puts that person forward as a credible witness, and while he is obviously adverse in interest to the employer, he is not necessarily a hostile witness. Unless it is established, either by the witness’s behaviour and demeanour (and we would add that it would take an extreme case to lead us to the conclusion required), or by proof of his having made a prior inconsistent statement which he has denied, that he is a hostile witness, then he is not subject, on examination by the party calling him, to the sort of rigorous cross-examination to which one might subject a witness called by the other side. Leading questions which attack his credibility or his powers of observation, for example, may not be put. Counsel may, however, since the witness is adverse (although not hostile), put questions which are leading to a certain degree. We think the criteria for judgment in these circumstances must be realism and fairness. It is not fair, especially in a labour arbitration, to make one’s own case by cross-examining the other party whom one calls as one’s own witness. On the other hand, it is not realistic to expect enthusiastic and voluminous response from a witness called in such circumstances. Leading questions may be put, then, but with restraint.

(Emphasis added)

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37. An understanding of the common law and Ontario’s Evidence Act, supra, remain relevant when the Board decides whether a witness is adverse or, worse, hostile.  As noted in Povoa, supra:

13. The Board is also satisfied that, having regard to the prior inconsistent statement by Morim, the seriousness and obvious relevance of the contents thereof (see The Corporation of the Town of Meaford, [1981] OLRB Rep. June 634 at para. 10), and Morim's manner and demeanour on the witness stand, Morim is a witness hostile to Local 27 and we so declare. Accordingly, and having regard to the purpose of this proceeding, the Board, in its discretion, grants leave to Local 27 to cross-examine Morim on all matters relevant to the issues before the Board.

38. The Board further agrees with the observation in Re Seneca College, 1986 CarswellOnt 3664 (Seneca) that a party in a labour arbitration cannot automatically cross-examine its own witness:

An employee of an opposite party may be called as a witness in the same manner as an employer calling a grievor or union representative as its witness and if they have certain knowledge of which they can give testimony not previously available to the examiner, there may be cause for an adjournment to provide time to consider such evidence, but unless it can be established that those witnesses are hostile within the commonly understood meaning or that they have made prior inconsistent statements and are adverse witnesses, the consistent practice is that the party calling such a witness cannot cross-examine him. We are not persuaded to depart from that generally accepted procedure which we find ought to be followed in this case.

(Emphasis added)

39. The Board does not agree with Commonwealth’s suggestion in its Reply that Seneca no longer accurately describes the situation in Ontario.

40. Commonwealth may call Mr. Rancourt as its own witness but the usual restrictions apply.  Exceptionally, should Mr. Rancourt prove adverse regarding a prior inconsistent statement, or hostile, then Commonwealth may be provided with greater leeway.  There is certainly no presumption in this regard arising from the fact that Commonwealth decided to call Mr. Rancourt as its own witness. Commonwealth could have put in its case and then conducted a full cross-examination of Mr. Rancourt following his testimony in chief.