FAQ's Cases - Stewart McKelvey

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18Analysis and Decision:Should the Board draw an inference from the fact that Mr. Lepper was not called to testify?[85] Counsel for the Union argued that the Board should draw an inference that theevidence of Mr. Lepper would not have supported the Employer’s case due to its failure to callhim to testify. In his argument, he referred to Mr. Lepper as a “phantom” who was involved inthe decisions, but failed to testify as to his role. From that, counsel for the Union invited theBoard to invoke the rule in Murray v. The City of Saskatoon (No. 2) 15 .[86] The rule in Murray v. Saskatoon was stated succinctly by the SaskatchewanCourt of Queen’s Bench in Marlowe Smith v. General Recorders Ltd. et al 16 as follows:2011 CanLII 72774 (SK LRB)… When a witness who could testify to facts in issue is not called, an inferencemay be drawn that the testimony would be contrary to, or at least would notsupport, the case of the party making assertions that might best be provedthrough that witness. Murray v. City of Saskatoon (No. 2) (1951), 4 W.W.R.(N.S.) 234….[87] This rule has been established law for some time. The history of the rule wasrecounted by the Supreme Court of Canada in R. v. Jolivet 17 . At paragraph 25 - 28, Mr. JusticeBinnie, speaking for the Court says:25 The general rule developed in civil cases respecting adverse inferences fromfailure to tender a witness goes back at least to Blatch v. Archer (1774), 1 Cowp.63, 98 E.R. 969, where, at p. 65, Lord Mansfield stated:It is certainly a maxim that all evidence is to be weighed accordingto the proof which it was in the power of one side to have produced,and in the power of the other to have contradicted.26 The principle applies in criminal cases, but with due regard to the division ofresponsibilities between the Crown and the defence, as explained below. It issubject to many conditions. The party against whom the adverse inference issought may, for example, give a satisfactory explanation for the failure to call thewitness as explained in R. v. Rooke 1988 CanLII 2947 (BC CA), (1988), 40C.C.C. (3d) 484 (B.C.C.A.), at p. 513, quoting Wigmore on Evidence (Chadbournrev. 1979), vol. 2, at § 290:In any event, the party affected by the inference may of courseexplain it away by showing circumstances which otherwise account15 Supra, Note 1316 [1994] 121 S.L.R. 296, CanLII 5152 (QB)17 [2000] SCC 29 (CanLII); 185 DLR (4th) 626; 144 CCC (3d) 97; 33 CR (5th) 1
19for his failure to produce the witness. There should be no limitationupon this right to explain, except that the trial judge is to be satisfiedthat the circumstances thus offered would, in ordinary logic andexperience, furnish a plausible reason for nonproduction. [Italics inoriginal; underlining added.]27 The party in question may have no special access to the potential witness.On the other hand, the “missing proof” may lie in the “peculiar power” of the partyagainst whom the adverse inference is sought to be drawn: Graves v. UnitedStates, 150 U.S. 118 (1893), at p. 121. In the latter case there is a strongerbasis for an adverse inference.28 One must also be precise about the exact nature of the “adverse inference”sought to be drawn. In J. Sopinka, S. N. Lederman and A. W. Bryant, The Lawof Evidence in Canada (2nd ed. 1999), at p. 297, § 6.321, it is pointed out thatthe failure to call evidence may, depending on the circumstances, amount “to animplied admission that the evidence of the absent witness would be contrary tothe party’s case, or at least would not support it” (emphasis added), as stated inthe civil case of Murray v. Saskatoon, [1952] 2 D.L.R. 499 (Sask. C.A.), at p.506. The circumstances in which trial counsel decide not to call a particularwitness may restrict the nature of the appropriate “adverse inference”.Experienced trial lawyers will often decide against calling an available witnessbecause the point has been adequately covered by another witness, or anhonest witness has a poor demeanour, or other factors unrelated to the truth ofthe testimony. Other jurisdictions also recognize that in many cases the mostthat can be inferred is that the testimony would not have been helpful to a party,not necessarily that it would have been adverse: United States v. Hines, 470F.2d 225 (3rd Cir. 1972), at p. 230, certiorari denied, 410 U.S. 968 (1973); andthe Australian cases of Duke Group Ltd. (in Liquidation) v. Pilmer & Ors, [1998]A.S.O.U. 6529 (QL), and O’Donnell v. Reichard, [1975] V.R. 916 (S.C.), at p.929.2011 CanLII 72774 (SK LRB)[88] At issue here is the testimony which may have been adduced through Mr.Lepper. Counsel for the Employer argued that there was no need to call Mr. Lepper becausethe Employer had provided testimony from both Mr. Holodryga and Ms. Outerbridge respectingthe matters at issue. Ms. Outerbridge was involved in all of the telephone conferences in whichMr. Lepper participated and provided evidence respecting those calls. Similarly she waspresent at all of the “tool box” meetings and provided evidence respecting those meetings.[89] Counsel for the Union did not specify what inference he expected the Board todraw other than a negative inference that Mr. Lepper’s evidence would not support orcorroborate the evidence provided by Ms. Outerbridge.[90] In R. v. Jolivet, the Supreme Court was considering an appeal of a criminalmatter from the Quebec Court of Appeal. At issue was a comment in the opening statement of
Page 1 and 2: The Labour Relations BoardSaskatche
Page 3 and 4: 3unionized workforce at their plant
Page 5 and 6: 5[15] In addition, there was some h
Page 7 and 8: 7Employee “D”: He was on his pr
Page 9 and 10: 9[37] The Board did not have the be
Page 11 and 12: 11[48] Shortly after Mr. Copeland b
Page 13 and 14: 13credible reason for the disciplin
Page 15 and 16: 15outlined by the Board in RWDSU v.
Page 17: 173. Order for captive audience mee
Page 21 and 22: 21[95] Similarly as noted in the qu
Page 23 and 24: 23[103] Also, in The Newspaper Guil
Page 25 and 26: 25rights under the Act. The Employe
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Page 35 and 36: - 2 -[2] The plaintiff, Susan Chart
Page 37 and 38: - 4 -by the time she finished there
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Page 41 and 42: - 8 -would feel grateful for the fo
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Page: 14[37] When parties contract
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Page: 16addressing the issue of a c
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Page: 18application of mitigation:
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Page: 202008 ONCA 479, 91 O.R. (3d)
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Page: 22[56] Notably, the concern e
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Page: 24termination without cause,
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Page: 26[64] The costs on the appli
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The parties agree this Board has th
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Mr. Wallace. The evidence is that M
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Mr. Mutter and Mr. Wallace each tes
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Mutter spoke. He testified he was a
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saw (or was told by the crew) Mr. K
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and heard, as well as other factors
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When viewed in that light, it is fa
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IN THE SUPREME COURT OF BRITISH COL
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Balogun v. Deloitte & Touche, LLP P
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Page 2of the immediate problem that
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Page 4- He admitted that he had pla
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Page 626 26. The Grievor's conduct
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Page 8he had a problem with was fro
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Page 10supervisor. Counsel argued t
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Page 12hope to gain a financial ben
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Page 1483 83. McKinley is an import
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Page 16(iv)Has the employer attempt
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HUMAN RIGHTS TRIBUNAL OF ONTARIO___
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[1] This is an Application under se
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[10] Sean McKay also testified on b
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THE LAW[19] Section 5 of the Code p
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that ensued. There is no evidence t
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HUMAN RIGHTS TRIBUNAL OF ONTARIO___
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[1] The applicant has filed two App
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CHRONOLOGY OF KEY EVENTS[11] The ap
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tasks beyond his functional limits
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do what they can and that if someon
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checking summaries before stating t
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Roehl in June or to the respondent
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Section 10 of the Code defines hara
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was assigned duties that required h
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-last portion of the day he levels
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[66] I recognize that some of the c
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was made aware on May 22/07 that hi
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“To be honest Tony I don’t know
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is older, or believed that the appl
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[91] The applicant also submitted t
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steps to address allegations of dis
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this period lessening, in my view,
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[109] The respondent submits that i
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that the events of May 22 may have
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Accordingly, I am requiring the par
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