David J. Bannon

The applicant brought a motion to set aside an order denying its request to file an affidavit as part of its record in an application for judicial review of an Ontario Labour Relations Board decision.

The applicant argued that the affidavit was necessary to show the Board's findings of fact were unreasonable.

The Divisional Court dismissed the motion, finding no error of law by the motion judge, who was bound by established precedent that restricts the admission of new affidavit evidence on judicial review.

The respondent worked as an illustrator for the appellant until her employment was terminated.

She initially filed an Employment Standards Act complaint against the employment agency that placed her, but later withdrew it and commenced a civil action for wrongful dismissal against the appellant.

The appellant moved to dismiss the action, arguing it was barred by s. 64.3(2) of the ESA, which prevents an employee from commencing a civil action relating to the same termination if they have filed a complaint.

The Divisional Court dismissed the appeal, holding that the statutory bar only prevents a civil action against the same alleged employer against whom the complaint was filed.