EVIDENCE
Judicial review of Adjudicator’s decision applicant unjustly dismissed by First Nation from job as Special Constable— Applicant off sick for significant periods, took two weeks off for honeymoon—Terminated for abandonment of position— Case spanning four years before Adjudicator; final decision rendered six years after Adjudicator’s appointment—Both sides to blame for delays—Adjudicator eventually held First Nation failed to discharge onus of proving, on balance of probabilities, had just cause for termination—Whether Adjudicator’s failure to draw adverse inference from respondent’s failure to testify patently unreasonable error in law or excess of jurisdiction—First Nation suggested Adjudicator came to dubious, wrong conclusions on critical matters which “cried out for complainant’s testimony and employer’s opportunity to cross‑examine her”—Applicant cited Norway House Indian Band v. Canada (Adjudicator, Labour Code), [1994] 3 F.C. 376 (T.D.) in which Muldoon J., in a case similar to this, said that, complainant having declined to testify, Adjudicator ought to have drawn all adverse inferences open to him and this may well have resulted in dismissal of complaint—Judge added that Adjudicator’s failure to do so gave appearance of bias; revealed indifference to employer’s loss of opportunity to cross‑examine—Court unable to accept argument based on Norway House—While respondent would not testify voluntarily, under provisions of Canada Labour Code, could have been subpoenaed by First Nation and this was not done—Party cannot, after negative decision, raise complainant’s non‑appearance as issue unless did everything possible during proceeding to cause complainant’s appearance—If Norway House places legal obligation on Adjudicator to draw adverse inference, that is not correct statement of law—As stated in Sopinka & Lederman, The Law of Evidence in Civil Cases, failure by defendant to testify, once prima facie case made out, may be subject of adverse inference but such failure will not, in itself, fill gap in case of party having burden of proof—No obligation for decision maker to draw adverse inference from failure to testify—Decision maker should look not only at whether defendant failed to testify but also whether failed to call any witness—No obligation herein on Adjudicator to draw adverse inference—First Nation had neither made out prima facie case nor produced sufficient evidence to discharge burden of proof—Furthermore, adverse inference inappro-priate, respondent having called witness on fundamental issues of sick leaves, days taken off work—Unclear as to what adverse inferences Adjudicator could have been obliged to make—If involved shifting burden of proof, that secondary burden satisfied by testimony of respondent’s witness—If involved assumption First Nation correct in all assertions against respondent, effect would be to discharge it of obligation to prove case on balance of probabilities—On facts, Adjudicator not erring by not drawing adverse inference from respondent’s failure to testify—Application denied—Canada Labour Code, R.S.C., 1985, L‑2, ss. 16 (as am. by S.C. 1998, c. 26, s. 5), 242 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16; S.C. 1998, c. 26, s. 58).
Chippewas of Kettle & Stony Point First Nation v. Shawkence (T‑1822‑03, 2005 FC 823, Snider J., order dated 10/6/05, 21 pp.)