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.
