Canadian Union of Postal Workers v. Canada Post Corporation, docket T-950-98

Date: 19980625

Docket: T-950-98

BETWEEN:

              CANADIAN UNION OF POSTAL WORKERS

                                                                                              Applicant

                                                 - and -

                         CANADA POST CORPORATION

                                                                                          Respondent

                                  REASONS FOR ORDER

       (Rendered orally at a telephone conference at Ottawa, Ontario,

                                   Thursday, June 25, 1998)

HUGESSEN J.

[1] I am prepared to rule at this time on the two narrow questions of admissibility which are before me, but some of the broader questions as to where that takes the case will have to await further discussion and further submissions by counsel.

[2] What I call the two narrow questions are first, whether it is now possible to put in the record of this judicial review application a transcript and the supporting tapes of a session of the mediator-arbitrator which was held on April 15, 1998, a session at which, amongst other things, the mediator-arbitrator gave a brief summary of his version of the conversation which he had with Mr. Marshall on the aeroplane on April 3, 1998, which was overheard by Mr. L'Espérance. In my view, this transcript clearly may be made part of the record here, as being a part of the record of the Tribunal whose decision is the subject to the application for judicial review. That deals with its technical admissibility. As to what weight the explanation given by the mediator-arbitrator in that transcript with regard to that conversation is going to have, that is entirely a matter for the judge who will hear the application for judicial review. I take Mr. McDougall's point, and he will no doubt make it again with even greater force before the judge, that the mediator-arbitrator has not been cross-examined on his version of that conversation, but it remains that what he said was part of the record of the Tribunal which he presided and led up to the very decision which is the subject-matter of the application for judicial review.

[3] The second evidentiary point I have to decide has to do with notes prepared by Mr. L'Espérance on April 4, 1998, giving his version of the conversation which he had overheard between the mediator-arbitrator and Mr. Marshall. While, as a purely technical matter, those notes are not evidence in the sense that Mr. L'Espérance asserts and agrees that he has a present recollection of that conversation, it seems to me that they should be part of the record for exactly the same reasons as the notes of the other participant, Mr. Marshall, have been made part of the record. First of all, the notes, on Mr. L'Espérance's own showing formed the basis of the affidavit which he swore on April 15, 1998. Second, it seems to me that for the purposes of the judge who has to hear the application for judicial review, the existence of those notes and the ability to compare those notes with the affidavit and indeed with the evidence which Mr. L'Espérance gives, will be helpful in the process of assessing credibility, just as the notes of Mr. Marshall will also be helpful in the process of assessing credibility.

[4] Accordingly, I will allow both the notes of Mr. L'Espérance and the transcript and tape of the session of April 15, 1998 to be put into the record.

[5] The much more critical question for me as the case-manager is what is now to happen in the face of the agreement by both parties that this case requires the oral hearing of witnesses since there are serious issues of credibility. It seems to me that if I am to order an oral hearing I cannot be at all sure that the date presently fixed of July 13, 1998, will survive since both counsel agree that the hearing will take longer than the one day which has presently been reserved.

[6]         It may be that there could be other ways of doing this. Counsel might like to look at Rule 107 which allows the Court to order the trial of an issue if counsel could frame the issue which needs to be tried in a way which would allow that to happen in a relatively short period of time. That may be one way of resolving the problem which both counsel and the Court face.

[7]         One final point, before I ask for further submissions from counsel with regard to dates. Mr. McDougall has made much of the fact that he has not been able to cross-examine the mediator-arbitrator and has asked that such cross-examination be a condition of the admission of the transcript. I cannot make an order of that sort. The mediator-arbitrator has not filed an affidavit upon which he could be cross-examined. He has not, very properly, chosen to seek intervenor status in these proceedings and there can be no question of his being cross-examined. If, however, there is to be an oral hearing of witnesses, it would, of course, be possible for either party to call him as a witness if he was willing to come and he could then be cross-examined.

[8]         I invite the submissions of counsel.

                                                                                          Hugessen J.                      

                                                                                                   Judge

FEDERAL COURT OF CANADA TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                      T-950-98

STYLE OF CAUSE:                   CANADIAN UNION OF POSTAL WORKERS v.

CANADA POST CORPORATION

PLACE OF HEARING:              Ottawa, Ontario

DATE OF HEARING:                 June 25, 1998

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN