I read an interesting procedural case decided by Graham Clarke called Commonwealth Plywood Co. Ltd. v Rancourt, 2018 CanLII 72583 (ON LRB) that considered “whether the rules of natural justice permit an employer to call the respondent employee as its first witness and then proceed to cross-examine him.” I would have thought the answer is, sure, you can call whoever you want as a witness (though, obviously, calling the opposing party takes some, well, putting it politely, guts and comes with, lets say, a little risk), but that you don’t, as a matter of right, get the green light on cross-examining the witness. But I was interested to read that:
In Quebec, legislative provisions and custom allow a party to call the opposing party, such as an employer calling a grievor in an arbitration, as its first witness and then conduct a cross-examination. The issue for the Board is whether that practice finds support in Ontario.
Didn’t know that that’s how it worked in Quebec.
In Ontario, however, after conducting a really thorough, detailed and thoughtful analysis, Vice-Chair Clarke reached the following conclusions:
- A party can call the opposing party as its own witness (Canada Post Corporation v. Canadian Union of Postal Workers, (1991), 21 L.A.C. (4th) 350);
- A party cannot impeach its own witness (Evidence Act, s. 23);
- A party can present other evidence which contradicts the testimony of its own witness (United Brotherhood of Carpenters & Joiners of America, Local 27 v. Povoa Carpentry Trim, 1988 CanLII 3675 (ON LRB); Evidence Act, s. 23);
- The Board may grant leave to a party to question an adverse witness for prior inconsistent statements (Centro; Wawanesa; Evidence Act, s. 23);
- The Board may grant leave to allow a party to cross-examine a hostile witness (Povoa; D’Alessandro v. Labourers’ International Union of North America, Local 1089, 1984 CanLII 975 (ON LRB); Hanes v. Wawanesa Mutual Insurance Co., 1961 CanLII 28 (ON CA), 1961 CanLII 28; Re Seneca College, 1986 CarswellOnt 3664).
It is to be noted that in Commonwealth counsel for the responding party agreed to call him when presenting his case. This was raised in the context of the discussion about civil cases and calling the adverse party as a witness under the Rules of Civil Procedure. I’ve never called the opposing party as a witness in an arbitration case. I suppose it might be different if there was some sort of free standing ability to cross-examine but, seeing how, in Ontario, there doesn’t seem to be, you proceed at your own risk.