Hostile Witness Rule

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2362
Page Categories:
Citation:	Hostile Witness Rule, CLNP 2362, <>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2024/03/28

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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.

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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.