Summoning a witness

Introduction

The purpose of this guide is to provide parties representing themselves with information about summoning a witness under the Public Service Labour Relations Act (PSLRA) and the various associated costs. This guide is only an informal tool, which should be used in conjunction with the PSLRA and the Public Service Labour Relations Board Regulations ("the Regulations"). Both the PSLRA and the Regulations can be accessed on the website of the Public Service Labour Relations Board ("the Board") at www.pslrb-crtfp.gc.ca, under Legislation and Forms.

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 a Board Member/adjudicator, which must then be served by you.

With respect to complaints, under paragraph 40(1)(a) of the PSLRA:

40. (1) 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;

With respect to grievances referred to adjudication, under paragraph 226(1)(a) of the PSLRA:

226. (1) An adjudicator may, in relation to any matter referred to adjudication,
(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;

For more information please consult section 40, and section 226 of the PSLRA.

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 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.)

In the case of complaints, it is up to the Board or Board Member, if one has been appointed, whether to grant the request for summons. In the case of grievance referrals, the determination is made by the Chairperson or adjudicator, if one has been appointed.

For more information please consult sections 18 and 103 of the Regulations.

Serving a summons

Section 248 of the PSLRA states the following:

248. A person who is summoned by the Board, an arbitration board, a public interest commission or an adjudicator to attend as a witness at any proceeding under this Act is entitled to receive fees and allowances for so attending 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 248 of the PSLRA, 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.

Province	Statutes	Regulations
Alberta	Judicature Act, R.S.A. 2000, c. J-2 section 28.1(1)(a)(v)	Alberta Rules of Court, Alta. Reg. 124/1010 Rule 6.17 Schedule B, Division 3 Public Service Subsistence, Travel and Moving Expenses Regulation Section 15
British Columbia	Court Rules Act, R.S.B.C. 1996, Chapter 80 Paragraph 1(2)(e)	Supreme Court Civil Rules, B.C. Reg. 168/2009 Rule 12-5(35) Appendix B, Schedule 3
Manitoba	Court of Queen's Bench Act, C.C.S.M. c. C280 Section 92 (x)	Court of Queen's Bench Rules, Man. Reg. 553/88 Rule 34.04(5) Tariff “B” – Tariff of Disbursements
New Brunswick	Judicature Act, R.S.N.B. 1973, c. J-2, ss. 73 and 73.11 Provincial Court Act, R.S.N.B. 1973, c. P-21, s. 23.1	Rules of Court, N.B. Reg. 82-73 Rule 59, Tariff D Rule 55.03(4) Inquiry and Formal Hearing Procedure Regulation - Provincial Court Act, N.B. Reg. 2004-132 Subsection 3(3)
Newfoundland and Labrador	Judicature Act, R.S.N.L. 1990, c. J-4, s. 55	Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D Rule 30.04 Rule 55, Appendix – Scale of Costs, III – Witnesses Interprovincial Subpoena Act, R.S.N.L. 1990, c. I-20
Nova Scotia	Costs and Fees Act, R.S.N.S. 1989, c. 104 Section 16	Fees and Allowances under Part I and Part II of the Act, N.S. Reg. 149/2008 Tariff D: Tariff of Disbursements Allowable to a Party Entitled to Costs Nova Scotia Civil Procedure Rules Part 11, Rule 50
N.W.T. and Nunavut	Judicature Act, R.S.N.W.T. 1988, c. J-1 Section 83	Rules of the Supreme Court of the Northwest Territories, N.W.T. Reg. 010-96 Rule 248 Fees and Allowances Regulations, N.W.T. Reg. 031-96 Schedule C
Ontario	Courts of Justice Act, R.S.O. 1990, c. C.43 Section 66	Rules of Civil Procedures, R.R.O. 1990, Reg. 194 Rule 53.04 (4) Tariff A, Part II - Disbursements
Prince Edward Island	Judicature Act, R.S.P.E.I. 1988, c. J-2.1 Section 35	Rules of Civil Procedure Rule 58 – Assessment of Costs Tariff A, Part II – Disbursements
Quebec	Code of Civil Procedure, R.S.Q. c. C-25 Section 281.1	Regulation respecting indemnities and allowances payable to witnesses summoned before courts of justice, R.Q. c. C-25, r.2 Directive sur les frais remboursables lors d'un déplacement et autres frais inhérents (C.T. 194603)
Saskatchewan	Queen's Bench Act, 1998, S.S. 1998, c. Q-1.01 Paragraph 28(1)(f) Court of Queen’s Bench Rules Subsection 307(2)	Tariff of Costs Schedule IV, “A”
Yukon	Judicature Act, RSY 2002, c. 128 Section 38	Rules of Court for the Supreme Court of Yukon Rule 27(15)-(17) Appendix C, Schedule 3

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.