In BC Hydro & Power Authority and International
Brotherhood of Electrical Workers, Local 258 (August 4, 2015)
Arbitrator Moore considered the Employer's application to call
rebuttal evidence. In particular, BC Hydro (or the
"Employer") sought to call expert rebuttal evidence
regarding albacore tuna. The Union opposed the application, arguing
the rebuttal evidence was collateral to the reasons for the
Grievor's termination and violated the collateral fact
By way of background, this application arose in the context of a
termination grievance. The Grievor, a Power Line Technician, was
terminated from BC Hydro due to alleged breaches of the
Employer's Code of Conduct and alleged theft of power
facilitated by installing a second service line to his own property
and by operating a power diversion.
Following his dismissal, the Employer discovered certain
suspicious text messages on the Grievor's work issued cell
phone. One of the text messages read: "Linder got 1850 sq ft
yesterday". The Employer suspected this text message was code
for the price per pound of marijuana and that the Grievor was
involved in the illegal sale of marijuana. The Employer presented
evidence to this effect during its case.
The Union provided no explanation for the text message until the
Grievor took the stand and stated, for the first time in his direct
examination, that the text message actually referred to the price
per pound of albacore tuna. The Grievor described going on a
fishing trip in April 2013, catching several hundred pounds of
albacore tuna, and selling them to family and friends.
Following the close of the Union's case, the Employer
applied to call expert rebuttal evidence regarding the price and
availability of albacore tuna in April 2013 off the coast of
British Columbia. The rebuttal evidence was sought to prove the
Grievor fabricated his explanation.
The Employer argued it should be permitted to call the rebuttal
evidence because the Grievor's explanation for the text message
was not provided until the Union responded to the Employer's
case, and the Employer could not have reasonably anticipated this
The Union opposed this application, arguing the rebuttal
evidence was collateral to the main issues and offended the
collateral fact rule.
In the result, Arbitrator Moore allowed the Employer's
application, finding the expert testimony was proper rebuttal
evidence in the circumstances of the case for three reasons.
First, the Employer could not have reasonably anticipated the
Grievor's explanation prior to the Union's case being put
in. Second, the evidence would not necessarily amount to collateral
evidence because it was potentially relevant to the Grievor's
termination and of sufficient importance to the case. Third, the
collateral fact rule was inapplicable because the new facts in
question arose in direct examination, and the collateral fact rule
only applies to answers given by a witness to questions first put
to them in cross-examination, concerning collateral facts.
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