142445 Ontario Ltd. v. International Brotherhood of Electrical Workers, Local 636 et al., (2009) 251 O.A.C. 62 (DC)

• Judge: Crane, Swinton and Low, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: May 15, 2009
• Jurisdiction: Ontario
• Citations: (2009), 251 O.A.C. 62 (DC)

142445 Ont. v. IBEW (2009), 251 O.A.C. 62 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JN.021

142445 Ontario Limited, carrying on business as Utilities Kingston (applicant) v. The International Brotherhood of Electrical Workers, Local 636 and Deborah Leighton (respondents)

(107/09)

Indexed As: 142445 Ontario Ltd. v. International Brotherhood of Electrical Workers, Local 636 et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Crane, Swinton and Low, JJ.

May 15, 2009.

Summary:

An arbitrator allowed a union's grievances respecting the discipline of three members. The employer sought judicial review. It filed an affidavit which appended some documents which had not been before the arbitrator and included, as exhibits, typewritten copies of notes made during five days of the hearing by the employer's counsel, an associate or law clerk. The union moved to strike the notes and the documents that were not before the arbitrator. The motions judge ordered that the documents be struck, but dismissed the motion respecting the notes. The union brought a motion pursuant to s. 21(5) of the Courts of Justice Act to vary the order of the motions judge.

The Ontario Divisional Court allowed the motion and struck the notes.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - An employer sought judicial review of an arbitrator's decision - It filed an affidavit which included, as exhibits, typewritten copies of notes made during five days of the hearing by the employer's counsel, an associate or law clerk - The union moved to, inter alia, strike the notes - The motions judge dismissed the motion respecting the notes - The union brought a motion pursuant to s. 21(5) of the Courts of Justice Act to vary the motions judge's order - The Ontario Divisional Court held that the leading case on the admissibility of affidavit evidence to supplement the record was still Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980, Ont. C.A.) and outlined several policy reasons for continuing to follow it - Keeprite stated that affidavit evidence to supplement the record should be admitted only in "rare" or "very exceptional" circumstances - Here, the employer had not met the onus of showing that the affidavit evidence, in the form of notes of the evidence at the hearing, was admissible on the Keeprite test - As the motions judge erred in applying the Keeprite test and failed to strike the evidence, the motion to vary was granted and the notes were struck.

Arbitration - Topic 8758

Judicial review (incl. appeals) - Practice - Evidence - Affidavit evidence - [See Administrative Law - Topic 3345 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 13].

Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville), [1997] 1 S.C.R. 793; 210 N.R. 101, refd to. [para. 13].

Keeprite Workers' Independent Union v. Keeprite Productions Ltd. (1980), 29 O.R.(2d) 513 (C.A.), appld. [para. 14].

Ontario Secondary School Teachers' Federation v. Thames Valley District School Board et al., [2004] O.T.C. 1037 (Sup. Ct.), refd to. [para. 18].

Thompson Products Employees' Association v. TRW Canada Ltd. (2003), 169 O.A.C. 144 (Div. Ct.), refd to. [para. 18].

Securicor Investigations and Security Ltd. v. Labour Relations Board (Ont.), United Steelworkers of America and United Steelworkers of America, Local 7105 (1985), 8 O.A.C. 372; 50 O.R.(2d) 570 (Div. Ct.), refd to. [para. 18].

Medis Health and Pharmaceutical Services Inc. v. Teamsters, Chemical and Allied Workers, Local 132 (2001), 147 O.A.C. 334 (Div. Ct.), refd to. [para. 18].

Aylmer Police Association v. Aylmer Police Services Board, [2004] O.A.C. Uned. 560 (Div. Ct.), refd to. [para. 18].

C.M.G. Innovations Co. v. Labour Relations Board (Ont.) et al., [2006] O.A.C. Uned. 569 (Div. Ct.), refd to. [para.18].

Hamilton (City) v. United Brotherhood of Carpenters and Joiners of America, Local 18 et al. (2007), 220 O.A.C. 100 (Div. Ct.), refd to. [para. 18].

Denby v. Agriculture, Food and Rural Affairs Tribunal (Ont.), [2005] O.J. No. 492 (Div. Ct.), refd to. [para. 19].

Denby et al. v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al. (2006), 216 O.A.C. 130 (Div. Ct.), refd to. [para. 20].

Brookfield Lepage Johnson Controls Facilities Management Services Ltd. v. Labour Relations Board (Ont.) et al. (2007), 221 O.A.C. 70 (Div. Ct.), refd to. [para. 21].

Hartwig v. Saskatoon City Police Association - see Stonechild, Re.

Stonechild, Re (2007), 304 Sask.R. 1; 413 W.A.C. 1; 2007 SKCA 74, refd to. [para. 22].

Board of Education of Windsor v. Windsor Women Teachers' Associations et al. (1991), 52 O.A.C. 98; 86 D.L.R.(4th) 345 (C.A.), refd to. [para. 25].

Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 26].

Planet Development Corp. and Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740, [1990] 3 S.C.R. 644; 123 N.R. 241; 88 Nfld. & P.E.I.R. 15; 274 A.P.R. 15, refd to. [para. 27].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 28].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206 (S.C.C.), refd to. [para. 28].

Authors and Works Noticed:

Brown, Donald, J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (Looseleaf), para. 12:3100 [para. 29].

Counsel:

Christopher Edwards and Brian Abrams, for the applicant/responding party;

Craig Flood and Chris Foy, for the respondent, IBEW Local 636/moving party;

Christopher Thompson, for the intervenor, the Attorney General of Ontario.

This motion was heard at Toronto, Ontario, before Crane, Swinton and Low, JJ., of the Ontario Divisional Court. Swinton, J., delivered the following decision for the court on May 15, 2009.