CHAPTER 3

EVIDENCE

 

3.7 Weight or Probative Value

3.7.2 The Weight To Be Given to Testimony

3.7.2.1 Ordinary Witnesses

In the common law tradition, as a rule, any person is competent to testify but there are exceptions that could apply to administrative tribunals, such as children and persons with a mental incapacity. The Canada Evidence Act adds that a person is not incompetent to give evidence by reason of interest or crime (s. 3) Section 3 of the Canada Evidence Act. Under the Code of Civil Procedure (art. 295), relationship, connection by marriage and interest are objections only to the credibility of a witness. The same rule is found in common law provinces.

An oath is not necessary to testify before a federal administrative tribunal, but any tribunal "has power to administer an oath to every witness who is legally called to give evidence before it" (Canada Evidence Act, s. 13) Section 13 of the Canada Evidence Act. As we have already noted, no witness is compellable in administrative tribunals such as the Board of Referees.^{530 Citation} However, the board may apply to the Federal Court for an order compelling a person to appear or produce documents. The application may be opposed on the grounds that the evidence sought is irrelevant or illegal. We know of no cases in which this Federal Court remedy was pursued. If the Court orders a witness to appear, that person becomes a witness to whom the chairperson can administer an oath, as he or she is called to give evidence before the board.

Where a witness is absent, a litigant may ask for an adjournment if he or she shows the efforts made to secure the witness' attendance and states that such attendance is necessary and that the absence is not the result of a scheme on his or her part. The court or tribunal will normally grant the adjournment if it finds the evidence the witness is likely to give will materially affect the outcome of the proceedings.^{531 Citation}

A party may ask the court to exclude witnesses to ensure their testimony is not influenced by the evidence they hear before they give their version of the facts. Such exclusions are generally granted, except in respect of the parties, who cannot be excluded.^{532 Citation} Exclusion is required in sexual harassment cases.^{533 Citation}

If a circumstance of sexual or other harassment is being considered, the chairperson may order that the proceedings be held in private pursuant to s. 114(2) of our Act Section 114(2) of the Act. Where such an order is granted, the testimony in the hearing is given in the absence of the claimant or employer. Later that day or on the next working day, the chairperson directs that the evidence be provided to the excluded claimant or employer, as the case may be, by making available to that claimant or employer a copy of the audio recording of that evidence. The excluded claimant or employer, as the case may be, may then respond to that evidence orally at a hearing before the Board of Referees in the absence of all other persons excluded. The chairperson then directs that the response be communicated, in the same manner and within the same time, to the claimant or employer who did not provide that response. That person may then respond to that response (ss. 80-81 of the EI Regulations   Subsection 80-81 of the Regulations).

The chairperson determines the order in which testimony is given. The appellant is normally first to give evidence before appellate administrative tribunals, even if the burden of proof is reversed. Once a party has examined his or her witness, the other party cross-examines; thereafter the first party may re-examine his or her witness.

The chairperson may decide how many witnesses a party may call, especially where it is likely a new witness will repeat what a previous witness said.^{534 Citation} However, the board must ensure it is not restricting the reasonable opportunity each party must be given to present all aspects of his or her case.^{535 Citation}

Where a claimant intends to read from a document he or she has prepared, the chairperson may ask the claimant to put down the document and provide an oral summary of it.^{536 Citation} However, the chairperson must give the claimant enough time to present his or her case adequately.^{537 Citation}

 

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