Affidavits on Judicial Review

Parties will sometimes seek to have a decision of a labour arbitrator overturned through judicial review.  In Ontario, the application is heard by the Divisional Court.  The application is supported by a "record" that includes, for example, the decision, exhibits that were admitted before the arbitrator.  Affidavits are used.   

But how far can the affidavits go?  The issue was recently considered by the Ontario Divisional court in 142445 Ontario Limited (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636. 

The leading case on the admissibility of affidavit evidence is Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (Ont. C.A.).  The employer argued that there was no evidence before the arbitrator to support a finding that the grievor had admitted throwing coffee in the face of another employee.  Affidavit evidence was filed to show that there was no evidence to support that finding. The Court allowed the affidavits to come before it in order to show that there was "no evidence" before the arbitrator.

The evidence could also be admitted to show that the arbitrator, in rendering his/her decision, acted without jurisdiction.

The Court of Appeal was quick to dissuade parties from thinking that affidavits to supplement the record was the norm rather than the exception.  The Court held that such instances were "exceptional" and "rare".

In 142445 Ontario Limited (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636 the employer brought a judicial review application and, in its materials filed in support of the application, was included an affidavit of an associate of the Employer’s counsel at the hearing.  The Court described the affidavit: 

Her affidavit appended some documents which had not been before the arbitrator.  More importantly, it included, as Exhibits A through H, typewritten copies of notes made during five days of the hearing, either by Ms. Seal or by Employer’s counsel or a law clerk.  The notes were redacted to remove privileged material.

The Union brought a motion to strike the notes and the documents that were not before the arbitrator. The judge hearing that motion struck out the portions of the affidavit dealing with the documents, but not the notes stating as follows:

For the reasons that follow, I find that the affidavit evidence is essential to the Applicant’s argument that a jurisdictional error has occurred and in the absence of a transcript, it is reasonable to put the affidavit containing notes of the evidence submitted at the hearing before the reviewing court.

The Union brought a motion to vary the motion judge's order.

Though the employer argued before the Divisional Court that Keeprite should not be followed, the court rejected that argument and held that the employer had not brought itself into the "rare" case that justified supplementing the record through the inclusion of hearing notes.  The Court noted the practicalities:

 One of the purposes of administrative tribunals is to provide an expeditious and inexpensive method of settling disputes.  Often, these proceedings are much less formal than judicial proceedings.  In keeping with this objective, a number of tribunals do not transcribe their proceedings – for example, the Ontario Labour Relations Board, the Human Rights Tribunal of Ontario and labour arbitrators under the Labour Relations Act.

If extensive affidavits can be filed on applications for judicial review in order to permit parties to challenge findings of fact before such tribunals, there would be a significant incentive for parties to seek judicial review since they could then attempt to reframe the evidence that was before the arbitrator.  As a result, the process of judicial review is likely to be more prolonged and more costly.

Moreover, there may be real difficulties in trying to recreate the evidence before the tribunal, where the parties have conflicting views as to what has been said.  Where there is a dispute about the evidence, the reviewing court will be put in the unfortunate position of trying to determine what the evidence was before the tribunal in order that it can then decide whether the decision was unreasonable.   Such a process is unfair to the administrative tribunal and undermines its role as a fact finder in a specialized area of expertise.    

The Court found that the motions judge had misapplied Keeprite which remains the law in Ontario.