FAQ's Cases - Stewart McKelvey

21[95] Similarly as noted in the quotation above, the Court cautioned that thecircumstances in which trial counsel decide not to call a particular witness may restrict thenature of the appropriate “adverse inference”. Experienced trial lawyers will often decideagainst calling an available witness because the point has been adequately covered by anotherwitness”. That was precisely the reason provided by the counsel for the Employer as to why thewitness was not called.[96] Counsel for the Employer, as is counsel for the Union, is an experienced counselbefore this tribunal. We find the explanation offered by counsel for the Employer to bereasonable, particularly in light of the Supreme Court’s direction in Jolivet as noted above. Wetherefore, decline to draw any inference resultant from Mr. Lepper’s failure to testify.2011 CanLII 72774 (SK LRB)[97] Another point could also be made, and that is that it was open for the Union tohave called Mr. Lepper, who could have been declared to be a hostile witness. This option wasnot explored by counsel for the Union who could have requested a Subpoena to Mr. Lepper forhis appearance. However, this option was not explored by either counsel, nor suggested by theBoard and accordingly, we decline to rule on this point.The Issues to be Determined[98] There are three principal issues to be determined in this matter. They are:1. Did the Employer commit an unfair labour practice contrary to section11(1)(e) of the Act?2. Did the Employer commit an unfair labour practice contrary to section11(1)(a) of the Act?3. If a breach of the Act has been found to have occurred, what are theremedies which should be ordered by the Board?[99] For the reasons that follow, we answer these questions as follows:1. No2. No3. As a result of no breach having been found, no remedy is required.