The applicant union brought a motion for leave to file an affidavit in support of its application for judicial review of an Ontario Labour Relations Board decision.
The affidavit sought to challenge numerous factual findings made by the Board, alleging they were unreasonable or made without evidence.
The Divisional Court dismissed the motion, applying the strict test that affidavit evidence is only admissible on judicial review in rare and exceptional circumstances to demonstrate a complete absence of evidence on an essential jurisdictional point.
The court found the applicant failed to meet this exacting standard, as the Board had received some evidence on the primary functions in dispute, and the affidavit merely reflected the applicant's counsel's differing notes of the proceedings.
