Warren v. Ontario (Labour Relations Board), 2011 ONSC 5848
CITATION: Warren v. Ontario (Labour Relations Board), 2011 ONSC 5848
DIVISIONAL COURT FILE NO.: DC-10-00000587 00JR
DATE: 20111004
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Dean warren
Applicant
(Responding Party)
- and -
ONTARIO LABOUR RELATIONS BOARD and NATIONAL HOCKEY LEAGUE
Respondents
(Moving Parties)
J. Thomas Curry, for the Applicant (Responding Party)
John-Paul Alexandrowicz and
Hilary Jarvis, for the Respondents (Moving Parties)
HEARD: September 30, 2011
HOY J.
REASONS FOR DECISION
[1] This is a motion by the National Hockey League (“NHL”), the Respondent in the Application by Dean Warren for Judicial Review, for an order striking out the thirty-two page affidavit of Mr. Warren sworn May 30, 2011.
[2] Mr. Warren, a former NHL referee, brought an application before the Ontario Labour Relations Board (the “Board”), alleging that the NHL had terminated his employment because he exercised rights under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “Act”). At the time his employment was terminated, Mr. Warren was on the executive of the National Hockey League Officials Association (the “OA”). He alleged he was terminated because he was an OA executive and advanced certain positions in that role.
[3] The Board conducted a nine-day hearing, over a twelve-month period. On October 6, 2010, about six months after the hearing concluded, the Board released a detailed decision, 209 paragraphs and 48 single-spaced pages in length, dismissing Mr. Warren’s application. Relying on the evidence of Mr. Gregson, the NHL’s senior manager of officiating at the time, about Mr. Warren’s deficiencies as a referee, it found that the NHL’s decision was essentially a work-related decision and not, on the evidence before the Board, tainted by animus as a result of Mr. Warren’s exercise of his rights under the Act.
[4] In December of 2010, Mr. Warren filed his application for judicial review, alleging, inter alia, that the Board erred in law in its application of the relevant legal principles and in its evaluation of some of the testimony and documentary evidence introduced at the hearing. In particular, it alleges that the Board erred in ignoring certain evidence, refusing to admit certain evidence and relying on evidence that it had previously indicated would not form part of the record. The application does not assert that the Board violated Mr. Warren’s natural justice or procedural fairness rights. Nor does it assert that the Board exercised its statutory power of decision in circumstances where there was no evidence and no facts to support the findings of fact made by the Board in concluding that the NHL’s decision was not tainted by animus as a result of his exercise of rights under the Act.
[5] Pursuant to s. 20 of the Statutory Powers of Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), the record for the court on a judicial review includes the document commencing the proceeding, the notice of any hearing, any interlocutory orders made by the tribunal, documentary evidence, the transcript (if any) of the oral evidence, and the decision and reasons therefor, when reasons have been given.
[6] There is no requirement for a tribunal to transcribe its proceedings and, in keeping with the objective of administrative tribunals to provide an expeditious and inexpensive method of settling disputes, a number of tribunals, including the Board, do not transcribe their proceedings. (142445 Ontario Limited (Utilities Kingston) v. International Union of Electrical Workers, Local 386 2009 24643 (Div. Ct.), paras 11-13, 31).
[7] While there is no transcript, the record in this case includes two thick volumes of documentary evidence containing, among other things, numerous e-mails.
[8] In my view, Utilities Kingston, para. 18, and Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.) accurately state the law with respect the admissibility of affidavit evidence to supplement the record on a judicial review. It is admissible only to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record.
[9] As Swinton J. observed at paras. 32 and 33 of Utilities Kingston,
If extensive affidavits can be filed on applications for judicial review in order to permit parties to challenge finding of fact before such tribunals, there would be a significant incentive for parties to seek judicial review since they could then attempt to reframe the evidence that was before the arbitrator. As a result, the process of judicial review is likely to be more prolonged and more costly.
Moreover, there may be real difficulties in trying to recreate the evidence before the tribunal, where the parties have conflicting views as to what has been said. Where there is a dispute about the evidence, the reviewing court will be put in the unfortunate position of trying to determine what the evidence was before the tribunal in order that it can then decide whether the decision was unreasonable. Such a process is unfair to the administrative tribunal and undermines it role as a fact finder in a specialized area of expertise.
[10] Swinton J. struck the proposed affidavit evidence, noting that the court on a judicial review will only be concerned with whether the Board’s decision was supported by some logically probative evidence. She found that the proponent of the affidavit at issue was effectively inviting the court to, on review, re-weigh the evidence, and not alleging an absence of evidence to support an essential finding.
[11] In my view, Mr. Warren similarly seeks, through his affidavit, to invite the reviewing court to re-weigh the evidence that was before the Board, and does not allege a complete absence of evidence to support an essential finding of the Board.
[12] His affidavit, variously, speaks to factual issues addressed in the Board’s decision, highlights what he says was evidence of some witnesses not specifically referenced in the Board’s decision, attacks the interpretation of an e-mail made by the Board, raises procedural issues and contains argument.
[13] What seemed to me to be the four key matters which Mr. Warren seeks to put before the reviewing court are: (1) Mr. Murphy of the OA testified that Mr. Warren told him that he feared that his involvement in the OA would be used to terminate his employment; (2) his challenge of the Board’s interpreting of “this shit” in an e-mail to Mr. Walkom of the NHL, which read, “Can we use this shit to remove him or is there an HR excuse”, as referring to an e-mailed clip of a broadcast showing Mr. Warren in action on the basis that Mr. Walkom, according to Mr. Warren, testified that he could not recall what those words referred to; (3) the Board’s refusal to allow counsel for Mr. Warren to examine Mr. Marouelli, a then-referee, regarding his belief that he had not been permitted to referee in the play-offs because he was testifying on behalf of Mr. Warren in the hearing; and (4) the Board’s reference in its decision to the evidence of Mr. Gregson, that being part of the OA was positive for one’s career with the NHL despite, Mr. Warren says, the Board’s indication that it would not consider such evidence.
[14] I will address them in turn.
[15] Even if what Mr. Murphy says Mr. Warren told him is not challenged, Mr. Warren has not established that there is a complete absence of evidence on an essential point. The essential point was why the NHL terminated Mr. Warren. It is clear from the Board’s decision that there was considerable evidence on this point.
[16] With respect to the e-mail, I am not satisfied that the interpretation of the words in question is an essential point. In any event, in my view there was not a complete absence of evidence with respect to that point. The Board appears to have interpreted the e-mail in light of its finding, which I do not understand Mr. Warren to dispute, that Mr. Walkom had been sent a video clip with the e-mail.
[17] Mr. Warren submits in his Application for review that Mr. Marouelli’s evidence as to why he believed he was not selected to referee the finals was relevant and the Board erred in refusing to admit it. Counsel for Mr. Warren did not obtain a written ruling from the Board on this procedural matter. I understand counsel for Mr. Warren to argue on this motion that not permitting a non-party witness to testify as to all matters he wishes to amounts to breach of natural justice. Breach of natural justice is not, however, advanced as a ground on his application for judicial review. Whether the NHL in fact did not select Mr. Marouelli to referee in the play-offs because of his support for Mr. Warren is not an essential point. Counsel for Mr. Warren acknowledges that the Board was aware of Mr. Warren’s argument that Mr. Marouelli’s support of him was a factor in the NHL’s decision not to select Mr. Marouelli to referee in the play-offs. As indicated above, the essential point is why the NHL terminated Mr. Warren, and there in not a complete absence of evidence on that point.
[18] Nor is there a written ruling with respect to the Board’s alleged error in considering evidence of Mr. Gregson regarding the implications of OA membership that Mr. Warren says the Board indicated it would not consider. In any event, considering such evidence is the opposite of a “complete lack of evidence.”
[19] As counsel for the NHL pointed out, no contemporaneous notes are attached to Mr. Warren’s affidavit. It would appear that it is based on his recollection of the hearing at the time of swearing, which was more than a year after the hearing dates, and in some cases, close to two years later. Counsel for the NHL advises that if Mr. Warren’s affidavit is not struck, it would need to cross-examine Mr. Warren on his affidavit and file its own detailed affidavit. As Swinton J. indicated, this would trigger a process that undermines the Board’s roll as fact finder.
[20] Counsel for Mr. Warren relies on the statement in Sinai v. Carr, 2010 ONSC 8025 at para. 35, [2010] O.J. No. 4909, 271 O.A.C. 115 (Ont. Div.Ct.), that fresh evidence is admissible to supplement the record under review where it shows jurisdictional error, a breach of natural justice or where the interests of justice require it, to argue that Mr. Warren’s affidavit is admissible if I determine that the interests of justice require it, even if the test delineated in Utilities Kingston is not made out. Counsel submits that if Mr. Warren’s affidavit is not admitted, he will, given the absence of a transcript, be prejudiced in his submissions on review, and the interests of justice therefore require that his affidavit be admitted.
[21] Sinai v. Carr is very different from this case. In Sinai v. Carr, the applicant had not testified or called any evidence. In light of the consent of the responding counsel and the seriousness of the consequences of the order under review, the applicant was permitted to file an affidavit. Keeprite makes clear that evidence, such as Mr. Warren’s, directed to showing what the evidence was that was given before a board is not “fresh evidence”. Mr. Warren testified at length and called witnesses in support of his position. On counsel for Mr. Warren’s argument, affidavit evidence would be admissible any time there was not a transcript.
[22] In the result, the NHL’s motion for an order quashing Mr. Warren’s affidavit is granted.
[23] Counsel for the NHL sought costs of $7,500, if successful, on the basis that costs in the amount of $10,000 were awarded in Utilities Kingston, and $7,500 were awarded in Taucar v. University of Western Ontario, 2011 ONSC 1535, another motion to strike an affidavit before judicial review.
[24] Counsel for Mr. Warren submitted that costs of $2,500 were fair and reasonable.
[25] Utilities Kingston clarified the law, making this motion less complex. In Taucar, the affiant was represented by her spouse. Little J.’s reasons express concerns as to counsel’s objectivity, and it may have been a factor in the award. In the circumstances of this case, $6,000, all inclusive, is in my view a fair and reasonable amount for Mr. Warren to pay the NHL on account of its costs and he is ordered to do so.
Hoy J.
Released: October 4, 2011
CITATION: Warren v. Ontario (Labour Relations Board), 2011 ONSC 5848
DIVISIONAL COURT FILE NO.: DC-10-00000587 00JR
DATE: 20111004
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Dean warren
Applicant
(Responding Party)
- and -
ONTARIO LABOUR RELATIONS BOARD and NATIONAL HOCKEY LEAGUE
Respondents
(Moving Parties)
REASONS FOR DECISION
Hoy J.
Released: October 4, 2011