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.
