Summoning a witness (hearings involving labour relations matters)
Introduction
The purpose of this guide is to provide parties representing themselves with information about summoning a witness under the Federal Public Sector Labour Relations Act (FPSLRA) and the various associated costs. This guide is only an informal tool, which should be used in conjunction with the FPSLRA and the Federal Public Sector Labour Relations Regulations ("the Regulations"). Both the FPSLRA and the Regulations can be accessed on the website of the Federal Public Sector Labour Relations and Employment Board ("the Board") at www.fpslreb-crtespf.gc.ca, under Legislation.
General information
If you wish to compel the attendance of a witness in order to bring forth documents/evidence or provide testimony before the Board, you can request that a summons be authorized by the panel of the Board, which must then be served by you.
Under s. 20(a) of the Federal Public Sector Labour Relations and Employment Board Act (PSLREBA):
20. The Board has, in relation to any matter before it, the power to
(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a superior court of record;
Please see Appendix A for a sample summons. Summonses may vary slightly from the example provided. Please note: summonses are prepared by the Board based on information that you supply.
Requesting a summons
Pursuant to sections 18 and 103 of the Federal Public Sector Labour Relations Regulations (Regulations), the party requesting the summons is required to provide information before the summons can be issued. Such information may include the following:
- the name, address, title and employer of the person to be summoned; and
- the substance of that person's proposed testimony.
(Note: When a witness must also produce documents, the request should include an explanation of the documents' relevance with respect to the issues raised by the proceedings.)
For more information please consult sections 18 and 103 of the Regulations.
Serving a summons
According to section 41 of the PSLREBA and section 248 of the FPSLRA, persons who are summoned to attend as a witness at any proceeding are entitled to receive fees and allowances for so attending that are equal to those to which the person would be entitled if summoned to attend before the Federal Court.
Pursuant to section 42 and paragraph 128(1)(a) of the Federal Courts Rules, a summons is not considered valid unless it was personally served to the witness and was issued in a reasonable amount of time before the scheduled hearing date. In addition, either you or the party requesting the summons may be required to provide the witness, in advance, with conduct money or attendance fees in accordance with the applicable provincial legislation.
Federal Courts Rules (SOR/98-106)
42. No witness is required to attend under a subpoena unless the subpoena has been personally served on the witness in accordance with paragraph 128(1)(a) and witness fees and travel expenses have been paid or tendered to the witness in the amount set out in Tariff A.
128.(1) Personal service of a document on an individual, other than an individual under a legal disability, is effected
(a) by leaving the document with the individual;
If your witness fails to attend a hearing, and you wish to request an adjournment based on that witness's failure to appear, you will be required to prove that proper service of the summons has occurred and that the appropriate fees have been paid. A party seeking to enforce a summons is encouraged to seek legal advice.
For more information please consult the Federal Courts Rules.
How to ensure proper service
As mentioned above, to uphold/enforce a summons, you or the party requesting the summons must be able to prove that proper service of the summons has occurred. This includes personal service of the summons, as well as providing the appropriate attendance fees and conduct money to your witness.
Please note that, further to paragraph 128(1)(a) of the Federal Courts Rules, in most circumstances provincial legislation dictates that proper service of a summons will require the summons to be personally handed to your witness as opposed to delivering by mail or leaving it with another person.
Personal service can be conducted through a number of different means, as follows:
- personally handing your witness the summons (you may wish to swear an affidavit of service);
- having another party/person serve the summons and swear an affidavit of service; or
- using a commercial process server.
In all cases, ensure that the person serving the summons can prove delivery by taking note of
- the place, date and time of delivery;
- the circumstances surrounding delivery; and
- the names and positions of any persons who may later be mentioned in an affidavit of service.
Costs and fees
As previously noted, in most circumstances provincial legislation dictates that, at the time of service, you or the party requesting the summons will be required to provide, in advance, conduct money or attendance fees in accordance with the applicable provincial legislation.
- Conduct money Money paid to a witness summoned to attend a hearing to defray the expenses of coming to, staying at and returning from the hearing. This also includes a daily allowance, as well as applicable meals and overnight accommodations.
In accordance with section 41 of the PSLREBA and section 248 of the FPSLRA, witnesses who are summoned before the Board are entitled to receive fees and allowances for attending equal to those summoned to attend before the Federal Court.
Pursuant to section 42 of the Federal Courts Rules, witness fees and travel expenses shall be paid in accordance with the amounts set out in Tariff A.
Federal Courts Rules (SOR/98-106)
Tariff A
3.(1) Subject to subsection (2), a witness is entitled to be paid by the party who arranged for or subpoenaed his or her attendance $20 per day plus reasonable travel expenses, or the amount permitted in similar circumstances in the superior court of the province where the witness appears, whichever is the greater.
(2) Where a witness, other than a party, is an expert witness, the daily rate referred to in subsection (1) shall be $100.
(3) A party may pay a witness, in lieu of the amount to which the witness is entitled under subsection (1) or (2), a greater amount equal to the expense or any loss incurred by the witness in attending a proceeding.
For more information please consult Tariff A of the Federal Courts Rules.
Please note that all costs, fees and allowances for the attendance of a witness, including those relating to the service of the summons, are borne directly by the party summoning the witness. This means that if you want a witness to appear, it is solely your responsibility to ensure that they have been served and that they have been financially compensated.
Expert witnesses
An Expert witness is someone who possesses special skills or knowledge, and whose opinion is admissible in evidence on matters falling within his/her expertise. (i.e.: doctor or psychologist) (Labour Law: A Dictionary of Canadian Labour Law, Sack and Poskanzer, 1984)
Pursuant to Tariff A of the Federal Court Rules, an expert witness summoned before the Board is entitled to be paid a daily rate of $100 per day.
Please note the following before submitting a request to summon an expert witness:
- The party requesting the summons must obtain permission from that expert to summon them.
- If the expert witness agrees, a copy of their curriculum vitae must be forwarded to the other party's counsel in advance, as well as copies of any expert information that he/she will rely on in support of their testimony.
- If the expert witness does not wish to appear, he/she may be summoned as an ordinary witness. However, they may only testify on the facts of the case, and cannot express their opinions in interpreting the facts.
- The party summoning the witness must indicate how much time their testimony will require, as well as the date and time anticipated for the appearance.
Provincial legislation
For your convenience, listed below you will find a table of provincial statutes and regulations which will aid you in determining the appropriate witness fees and allowances. If the information is available in both official languages, it will be linked in the language of the guide.
Please note the following chart is informal and is only intended to guide you in determining the approximate costs of summoning a witness. Please consult your provincial legislation and/or regulations for a more comprehensive and up-to-date overview. The links below were current as of November 30, 2011.
Reminder
This guide is meant to give you helpful information, not legal advice. We encourage you to seek the aid of a lawyer, as they will be in the best position to give you advice regarding the most current processes and procedures