In Rio Tinto Alcan Primary Metal North America (2012), 217 L.A.C. (4th) 131 (Steeves), the arbitrator reviewed the use of particulars both as part of the grievance arbitration process and within the court system. In the context of this case, he distinguished between providing particulars that are knowingly false as compared to providing particulars that contain an inadvertent falsehood:
I have little difficulty in concluding that particulars that contain a statement that the person presenting the particulars knows is false, are objectionable and in some circumstances, could result in a finding that there has been an abuse of the arbitration process. I emphasize that “knowingly false” needs to be read as a phrase: it means that information is false and it was known to be false by the party/person presenting the information. To be clear, false information that arises from inadvertence or mistake might be objectionable, but not in the sense of a deliberate falsehood. Cases of reckless indifference to the truth of information presented as particulars will have to be considered on a case-by-case basis. It is perhaps necessary to add that it would be naïve to expect that representatives, when they are preparing particulars, do not emphasize the strong parts of their evidence and try to minimize the attention given to other aspects of their case.
The arbitrator concluded that while the particulars were vague, “that is not, by itself, an abuse of process problem and the usual remedy is for the party who received the particulars to seek clarity from the other side or make an application to the arbitrator for an order requiring particulars that are clear and specific.” He also commented that particulars “need not set out all of the evidence relied on by the party presenting the particulars [but need only] disclose the material facts relating to each issue in dispute.”
On the issue of cross-examination, the arbitrator reproduced a lengthy excerpt from The Law of Evidence in Canada authored by Bryant, Lederman and Fuerst:
The Supreme Court of Canada, in R. v. Lyttle [ S.C.J. No. 8], reaffirmed the principle that counsel can question a witness in cross-examination regarding matters that need not be proved independently, provided that counsel has a good faith basis for putting the question … The scope of cross–examination, however, is not without some limits. It must be relevant. It must not be harassing or repetitious or constitute a misrepresentation. These are matters within a trial judge’s discretion to control in order to ensure fairness.
The Supreme Court said that although counsel is not obliged to provide an evidentiary foundation for assertions made in cross-examination, as an officer of the court, counsel is subject to the requirements of professional integrity and must have a “good faith basis” for putting the questions. Major and Fish JJ., writing for the Court, said:
In this context, a “good faith basis” is a function of the information available to the cross-examiner, his or her belief in its likely accuracy, and the purpose for which it is used. Information falling short of admissible evidence may be put to the witness. In fact, the information may be incomplete or uncertain, provided the cross-examiner does not put suggestions to the witness recklessly or that he or she knows to be false. The cross-examiner may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition. The purpose of the question must be consistent with the lawyer’s role as an officer of the court; to suggest what counsel genuinely thinks possible on known facts or reasonable assumptions is in our view permissible; to assert or imply in a manner that is calculated to mislead is in our view improper and prohibited.
If the assertion in cross-examination is manifestly tenuous or suspect, the trial judge may inquire of and seek assurance from counsel that a good faith basis does exist for putting the question. If satisfied in this regard, and if the question is not otherwise prohibited, the judge should permit counsel to put the question to the witness.
In concluding that the questions put to the witness on cross-examination were permissible, arbitrator Steeves stated:
With regards to cross-examination, the arbitral process requires broad latitude to be given to questions in cross-examination. In this case a witness was challenged over statements he made before the hearing that were inconsistent. As well, his evidence raised some difficulties with the same statements. It is permissible to explore in cross-examination inconsistencies in previous statements and in evidence, as was done in this case.