Date: 20110209

Docket: S070696

Registry: Vancouver

Between:

Sukhwinder K. Grewal

Plaintiff

And

Khalsa Credit Union

Defendant

Before: The Honourable Mr. Justice Goepel

Oral Evidentiary Ruling

[1] The plaintiff, Sukhwinder K. Grewal was for several years employed by the defendant Khalsa Credit Union (“Khalsa”) as a branch manager. She now seeks damages for wrongful dismissal. Whether Ms. Grewal was dismissed or voluntarily resigned is a major issue in the litigation. During the last several years of her employment, Mr. Dalbir Sohi was Khalsa’s Chief Executive Officer.

[2] In 1999, Khalsa, pursuant to the provisions of s. 275 of the Financial Institutions Act, R.S.B.C. 1996, c. 141 [FIA], was placed under the supervision of the Financial Institutions Commission (the “Commission”). In March 2005, Khalsa sought to be released from supervision. When that request was denied, Khalsa sought a full hearing on the matter.

[3] Pursuant to the provisions of the FIA, the hearing was open to the public. Witnesses testified under oath. The hearing lasted 13 days. On June 14, 2006, the Commission released a 50-page written decision that concluded that Khalsa should not be released from supervision (the “Decision”).

[4] The main issue canvassed in the hearing was Khalsa’s corporate governance. One specific allegation concerned the Board of Directors’ alleged interference with Mr. Sohi’s effort to terminate Ms. Grewal. Paragraphs 91 to 101 of the Decision discuss the interaction between the Board and Mr. Sohi concerning Ms. Grewal.

[5] It is common ground that the Decision should become an exhibit in these proceedings. It is referenced in correspondence and its existence is part of the factual matrix surrounding Ms. Grewal’s departure from the Credit Union.

[6] The plaintiff submits that pursuant to the public document exception to the hearsay rule the Decision is admissible for the truth of the findings of fact set out in the Decision. The defendant takes the position that that rule does not apply to decisions of this nature and the Decision is not admissible for its truth.

[7] At common law, statements made in public documents are admissible as an exception to the rule against hearsay evidence. The basis of the exception is set out in Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3d ed. (Markham, ON: LexisNexis Canada, 2009), at para. 6.295:

In the belief that public officers will perform their tasks properly, carefully and honestly, an exception to the hearsay rule was created for written statements prepared by public officials in the exercise of their duty. When it is part of the function of a public officer to make a statement as to a fact coming within his knowledge, it is assumed that, in all likelihood, he or she will do his or her duty and make a correct statement. The circumstance of publicity also adds another element of trustworthiness. Where an official record is necessarily subject to public inspection, the facility and certainty with which errors would be exposed and corrected provides an additional guarantee of accuracy. Before this exception to the hearsay rule comes into play, however, the following preconditions, cumulatively providing a measure of dependability, must be established:

(1)        The subject matter of the statement must be of a public nature.

(2)        The statement must have been prepared with a view to being retained and kept as a public record.

(3)        It must have been made for a public purpose and available to the public for inspection at all times.

(4)        It must have been prepared by a public officer in pursuance of his or her duty.

[8] At para. 6.299, the authors note that public documents that are admissible under the exception encompass more than government reports and surveys prepared by an official whose duty it is to investigate or record his or her findings. Admissible documents include public registers and records, official certificates, statutes, parliamentary journals and gazettes.

[9] This application does not, however, involve such documents. This application relates not to records, but to information reviewed and summarized by a decision maker after hearing evidence. As noted at para.15 of the Decision, the reasons do not recite all evidence tendered at the hearing.

[10] The issue before the Commission was the role of the Board of Directors in Khalsa’s governance. The interaction between the Board and Mr. Sohi concerning Ms. Grewal formed a small part of the evidence on that issue. The Commission made no findings as to the appropriateness or otherwise of Mr. Sohi’s conduct. Mr. Sohi’s conduct is, however, one of the main focuses of this trial and one that I expect I will ultimately be required to comment on in resolving the issues before me.

[11] In recent years, there have been other attempts to extend the public document exception to various types of hearings and reports:  Radke v. M.S., 2005 BCSC 1355 (Police Complaints Commission); Robb Estate v. St. Joseph’s Health Centre (1998), 31 C.P.C. (4th) 99 (Ont. Div. Ct.) [Robb Estate] (Royal Commission); Rumlie v. British Columbia, 2003 BCSC 234 (Ombudsman and Special Counsel) Report; and Blais v. Freson Market Ltd., 1999 ABQB 507 (Labour Relations Board decision). In each of those cases, the parties attempted to put reports of various inquiries before the court pursuant to the public document exception. In each case, the court refused.

[12] As noted by McDonald J. in Robb Estate, at para. 23, which dealt with the admission of the Krever Royal Commission of Inquiry into the Blood System, if the report was admitted the defendants would not have the opportunity to test the evidentiary findings which are contained in the report. They could not cross-examine the authors of the decision, nor would they know with certainty the evidence upon which the particular findings contained in the report are based. Similar concerns apply here.

[13] In India v. Singh, [1996] B.C.J. No. 2792 (S.C.), the court appears to have admitted a report of an Indian government inquiry into torture allegations into evidence under the public document exception. It did so without any analysis of the rule and in my respectful view it was clearly wrongly decided. In those circumstances I need not follow it:  McCready v. Nanaimo (City), 2005 BCSC 762 at paras. 46-47, 46 B.C.L.R. (4th) 331.

[14] Findings in prior proceedings can lead to questions of issue estoppel: Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77; British Columbia (Attorney General) v. Malik, 2009 BCCA 201. In such cases, parties are precluded from relitigating issues previously decided in another proceeding. However, the plaintiff does not seek admission of the Decision on the basis of issue estoppel.

[15] Khalsa intends to call Mr. Sohi as a witness at this trial. The circumstances of his report to the Board and the other matters canvassed before the Commission will undoubtedly come before me in the course of this trial. It will be necessary for me to make findings of fact arising from those events. The findings that the Commission made in that regard are not relevant to my determination.

[16] I find that the report is not admissible for its truth pursuant to the public document exception to the hearsay rule. That exception does not extend to decisions of factfinding bodies like the Commission.

“R.B.T. Goepel J.”