2 total
Motion granted to strike affidavit on judicial review as it failed to meet the Keeprite exception.
The moving party university brought a motion to set aside a decision of a single judge of the Divisional Court who refused to strike an affidavit filed by the responding party association on an application for judicial review of a labour arbitration award.
The arbitration upheld the termination of a professor for failing to grade students objectively.
The Divisional Court panel found that the motions judge erred in law by admitting the affidavit, as it did not meet the narrow Keeprite exception for admitting new evidence on judicial review.
The motion was granted and the affidavit was struck in its entirety.
Affidavit evidence admitted on judicial review due to absence of record and potential evidentiary gaps.
The respondent union sought judicial review of a labour arbitration award that partially upheld the dismissal of a tenured university professor.
On an interim motion, the university asked the court to exclude an affidavit from counsel who had attended the arbitration hearing, arguing the material was inadmissible on judicial review.
Applying the principles from Keeprite and subsequent authority, the court held that affidavit evidence may be admitted in rare circumstances to demonstrate a complete absence of evidence on an essential point or a breach of natural justice.
Given the absence of a formal record of the arbitration proceedings and concerns regarding reliance on a disputed report, the court found the case fell within the exceptional category.
The affidavit evidence was permitted to be considered by the Divisional Court on the judicial review.
