To ensure that a witness attends a hearing, the party seeking to call the witness may apply for a summons, also commonly referred to as a subpoena. The Federal Public Sector Labour Relations and Employment Board (Board), an arbitration board, a public interest commission or an adjudicator (that is, the “decision-maker”) has the authority to summon witnesses to a hearing, enforce their attendance, and compel them to give oral or written evidence under oath or solemn affirmation (FPSLREBA, ss. 20(a) and (f), and FPSLRA, ss. 147(1), 174(1), 226(1)).
The party requesting the summons must file a request with the Board.
If a case conference or pre-hearing conference is to be held, a party wishing to summon a witness should normally wait until the conference is over before applying for the summons.
a) Required information for a summons
The party’s request for a summons must include the following information:
- The Board’s case file number;
- the name and address of the witness to be summoned;
- the date, time, and place where the witness is required to appear, if known;
- a statement of the evidence that the witness is expected to give at the hearing; and
- a detailed description of the documents and other things that the witness must produce at the hearing, if any.
An application for a summons does not need to be copied to the other parties, intervenors, or interested persons
b) Consideration of the summons application
The summons request will be considered. If the decision-maker has concerns about the relevance of the evidence to be provided by the proposed witness or the appropriateness of the summons, it may seek clarification.
If the issuance of the summons is considered appropriate, the Board will prepare and deliver it to the party who requested it. This may be done by electronic mail, courier or fax.
c) The requesting party must deliver the summons and pay witness fees and allowances
The party who requested the summons is responsible for ensuring that the witness is served with the summons as soon as possible and at least seven days before the appearance of the witness in order to provide him or her sufficient notice.
The summons may be served by any of registered mail, hand, or process server, as well as by fax or email, provided the witness agrees to be served by either of these methods. Whatever means is used, the party serving the summons must have written proof that the witness received it.
As stated in s. 41 of the FPSLREBA, a person who is summoned to attend as a witness at any proceeding is entitled to receive fees and allowances for attending, equal to those to which the person would be entitled if summoned to attend before the Federal Court. The fees are set out in Tariff A of the Federal Courts Rules, SOR/98-106. They are paid by the party requesting the summons and should ordinarily be paid in advance. The Board will not direct how the fees and allowances are to be paid. The witness and the person requesting his or her attendance must deal with the matter.
If the hearing is postponed, the party that summoned the witness is responsible for notifying the witness as soon as possible, to avoid any unnecessary travel and expense. The requesting party must also notify the witness of the new date at least seven days before the witness is due to appear if time allows. As the issued summons is still valid, it is not necessary to apply for a new one.
d) If a summoned witness fails to attend
If a summoned witness fails to attend a hearing, the summoning party may wish to request an adjournment based on that failure to appear. If so, the summoning party may be required to prove that the witness was served with the summons and that the appropriate witness fees and allowances were paid. If the summoning party wishes to enforce a witness summons, they may consider seeking legal advice.