Brian Abrams

The union brought a motion to vary an order of a single judge that permitted the employer to file affidavit evidence containing notes of a labour arbitration hearing on an application for judicial review.

The Divisional Court granted the motion and struck the affidavit evidence, finding that the motions judge erred in law by failing to properly apply the Keeprite standard.

The court held that affidavit evidence is only admissible in rare circumstances to show a complete absence of evidence on an essential point or a breach of natural justice, neither of which were established by the employer.

The applicant, a worker member of the joint health and safety committee, appealed an inspector's decision not to issue an order against the employer.

The applicant alleged the employer violated the Occupational Health and Safety Act by testing a new bulk emulsive explosive without consulting the committee or allowing a designated member to be present.

The Board dismissed the appeal, finding that the testing was conducted solely to determine the product's efficiency, not for health and safety purposes, and therefore the statutory right to be present did not apply.