Warren v. Ontario Labour Relations Board, 2012 ONSC 1735
CITATION: Warren v. Ontario Labour Relations Board, 2012 ONSC 1735
DIVISIONAL COURT FILE NO.: 587/10
DATE: 20120404
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, PEPALL and HARVISON YOUNG JJ.
B E T W E E N:
DEAN WARREN Applicant
- and -
ONTARIO LABOUR RELATIONS BOARD and NATIONAL HOCKEY LEAGUE Respondents
J. Thomas Curry and Jon Laxer, for the Applicant
John-Paul Alexandrowicz and Hilary Jarvis, for the Respondent National Hockey League
HEARD at Toronto: March 7, 2012
Swinton J.:
Overview
[1] Dean Warren (“the applicant”) has brought a motion pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to set aside or vary the order of Hoy J. (as she then was) dated October 4, 2011 quashing his affidavit dated May 30, 2011, which had been filed for this application for judicial review.
[2] For the reasons that follow, I would allow the motion to vary to the extent that I would order that a substantial part, but not all, of the affidavit should be struck.
Factual Background
[3] The applicant is a former referee with the National Hockey League (“NHL”) whose employment was terminated in 2008. He believed his activities as a Vice-President of the NHL Officials Association (“OA”), a position he assumed in September 2006, played a part in the NHL’s decision to terminate his employment. He claims that his performance reviews deteriorated after his election and were overwhelmingly negative in 2007 through 2008.
[4] As a result of the termination, he filed an application under s. 72 of the Labour Relations Act, S.O. 1995, c. 1, Sched. A, to challenge his termination before the Ontario Labour Relations Board (“the Board”), arguing that he had been dismissed because of union activity. In such a proceeding, the onus is on the employer to show that the decision to terminate was not motivated by “anti-union animus.”
[5] The Board held a nine day hearing and issued lengthy written reasons dismissing the application. The applicant then brought an application for judicial review, in which he argues that the Board made two findings of fact central to his case without a basis in the evidence. As well, the Board acted unfairly by relying on evidence that had been struck from the record and by refusing to allow one witness to be questioned on reprisal by the NHL.
[6] The applicant filed a 32-page affidavit in support of his application for judicial review, which was accurately described by the motions judge as follows (at para. 12 of her Reasons):
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.
[7] The NHL then brought a motion to strike the affidavit, which succeeded. The applicant now seeks to set aside or vary that order.
[8] On a motion to vary a decision to strike an affidavit, the Court should not intervene unless the motions judge has made an error of law or a palpable and overriding error of fact.
The Applicable Principles
[9] Affidavit evidence is only admissible to supplement the record of proceedings in applications for judicial review in limited circumstances:
- where there is a complete absence of evidence on an essential point (Keeprite Workers’ Independent Union v. Keeprite Products Limited (1980), 29 O.R. (2d) 513 (C.A.) at p. 8 (Quicklaw version) and Windsor Board of Education v. Windsor Women Teachers’ Assns., [1991] O.J. No. 2148 (C.A.) at p.8 (Quicklaw version)), or
- where the evidence discloses a breach of natural justice that cannot be proven by reference to the record (142445 Ontario Limited (Utilities Kingston) v. International Union of Electrical Workers, Local 386, [2009] O.J. No. 2011 (Div. Ct.) at para. 18).
[10] Some cases have suggested a broader basis for the admission of affidavit evidence in applications for judicial review, permitting such evidence where the interests of justice require it (Denby v. Ontario (Agriculture, Food and Rural Affairs Tribunal), [2005] O.J. No. 4952 (Div. Ct.); Brookfield Lepage Johnson Controls Facilities Management Services Ltd. v. Ontario Labour Relations Board, [2007] O.J. No. 490 (Div. Ct.)). However, the courts have generally been very reluctant to permit affidavit evidence to supplement the record of proceedings on judicial review, even where there is no transcript (Taucar v. University of Western Ontario, 2011 ONSC 1535 (Div. Ct.) at para. 16).
Analysis
[11] During oral argument on the present motion to vary, counsel for the applicant indicated that he no longer seeks to rely on the whole affidavit for purposes of the application for judicial review. Rather, counsel has recast the relief sought since the earlier motion was determined and seeks only to preserve a limited number of paragraphs in the affidavit, as set out below.
[12] Had the applicant not significantly reduced the scope of the affidavit that he seeks to introduce, I would agree with the motions judge that the affidavit is inadmissible. As first drafted, it was clearly an attempt to provide another view of the evidence that was before the Board in order to attack the Board’s weighing of the evidence.
[13] In the present motion to vary, the applicant focused on four parts of the affidavit: the information related to an email from Clarence Campbell, part of the evidence of Brian Murphy, the refusal to permit questioning of Dan Marouelli about reprisal, and the reliance on evidence from Terry Gregson when that evidence had been struck.
The Campbell email
[14] In paragraphs 27 and 28 of the applicant’s affidavit, he refers to an email dated February 14, 2007 from Colin Campbell, NHL Vice-President of Hockey Operations, to Stephen Walkom, then Director of Officiating, which states, “Can we use this shit to remove him or is there an HR excuse”.
[15] The Board found that the email related to an attached videoclip (Reasons, para. 124). The applicant states in his affidavit that Mr. Walkom did not testify that the email related to “an emailed clip”; Mr. Walkom could not recall what it related to; and there was no evidence that this statement related to an emailed clip. Mr. Campbell did not testify.
[16] The applicant submits that this email, with its reference to an HR excuse, is a “smoking gun” in the case. He also argues that this part of his affidavit shows an absence of evidence to support an essential finding of fact by the Board and, therefore, it is admissible under the Keeprite principle.
[17] The motions judge was not satisfied that the interpretation of the email was an essential point in the case. Elsewhere in her reasons, she described the essential point to be why the NHL terminated the applicant’s employment (at para. 15). She also stated that even if this were evidence going to an essential point, there was not an absence of evidence on this point.
[18] In my view, the motions judge erred in law in excluding this evidence. The motions judge appears to equate “an essential point” with the ultimate question in issue. That is not the test in Keeprite, where the reference to an essential point is to a pivotal finding by the decision-maker.
[19] Here, the finding that there was no anti-union animus was an essential finding in this case. Often, anti-union animus must be proved by circumstantial evidence. The applicant argues that this email, properly understood as having no videoclip attached, is important evidence to support an inference of anti-union animus.
[20] In my view, the motions judge erred in striking paragraphs 27 and 28, with the exception of the final sentence of paragraph 28, in which the applicant opines that the Board erred. These paragraphs should be left for consideration by the panel hearing the application, which can decide whether they are ultimately probative.
Brian Murphy’s evidence
[21] In the motion materials and factum filed for the present motion to vary, the applicant sought to introduce a summary of the evidence of Brian Murphy, at one time the President of the OA. This part of the affidavit seeks only to call into question the Board’s findings of fact by pointing to parts of testimony to which the Board did not refer. As such, the summary is not admissible under the Keeprite test.
[22] In oral argument, counsel confined his submissions to paragraph 35(e) and (f), where the applicant states that he told Brian Murphy in November 2007 that he believed the NHL was trying to terminate him, and that Mr. Murphy told him to document events and to keep him informed. The applicant seeks to admit this evidence on the basis that the Board made a finding not supported by the evidence – namely, that the applicant did not raise a concern about anti-union animus until late in the process (Board Reasons, para. 185).
[23] The motions judge refused to admit this evidence because she concluded that the applicant had not established a complete absence of evidence on an essential point. In her view, “[t]he essential point was why the NHL terminated Mr. Warren”, and there was considerable evidence on this point.
[24] The motions judge did not err in striking this part of the affidavit, although I reach that conclusion for a different reason. Paragraph 35(e) does not state that Mr. Murphy testified he was informed by the applicant that the NHL was attempting to terminate him for reasons associated with his union activity. All it states is that Mr. Murphy testified he was told that the applicant believed the NHL was attempting to terminate him. Given the absence of any reference to an anti-union motive in this communication, I fail to see how this evidence is relevant or goes to show the absence of evidence on an essential finding of fact.
The Marouelli evidence
[25] The applicant seeks to include paragraphs 39 to 41 of the affidavit to show that the Board refused to allow Dan Marouelli to give evidence about the NHL’s attempts to punish him for testifying at the Board hearing on behalf of the applicant. This evidence is said to go to an issue of procedural fairness.
[26] The motions judge refused to admit this evidence because she concluded that the Notice of Application for judicial review made no mention of a breach of natural justice or denial of procedural fairness. In my view, she erred. While those words are not used explicitly in the Notice of Application, the Notice does raise the issue of Mr. Marouelli’s curtailed examination as an issue, stating that the Board erred in law by refusing to admit relevant evidence of the NHL’s reprisal against Mr. Marouelli.
[27] The fact that the applicant did not ask for a written ruling on this evidentiary matter is not, in my view, fatal to raising it as a ground of judicial review or leading evidence to show the nature of the ruling.
[28] Whether or not this evidence is ultimately persuasive is not the issue on this motion. It will be for the panel hearing the application for judicial review to decide whether there was a denial of procedural fairness. However, the affidavit evidence is admissible to attempt to prove a denial of procedural fairness not apparent from the record.
The Gregson evidence
[29] The applicant states at paragraphs 31 to 33 of his affidavit that the Board cut off cross-examination of Terry Gregson, who became Director of Officiating during the hearing before the Board. Mr. Gregson was a former OA officer.
[30] According to the applicant’s affidavit, the Board ruled that it would strike Mr. Gregson’s evidence in chief respecting his belief that being on the union executive was a good career move, and it would not permit further cross-examination on this subject. However, at paragraph 33 of the decision, the Board refers to Mr. Gregson’s direct examination evidence about it being good for an official to participate in OA activities, and in para. 157 about Mr. Gregson’s belief that being on the OA executive was a great education and opportunity and had never hurt him in his dealings with the NHL.
[31] The applicant argues that this part of the affidavit is admissible to show a denial of fairness by the Board: having ruled that a line of questioning should not be pursued, it then relied on evidence it said would be excluded.
[32] In my view, the motions judge erred in failing to permit this evidence, given that the evidence is introduced to show a denial of natural justice. Again, it is not fatal that the applicant failed to ask for a written ruling. The issue of the treatment of Mr. Gregson’s evidence is raised in the Notice of Application for Judicial Review.
Conclusion
[33] For these reasons, the motion to vary is granted, the order of the motions judge is set aside, and an order is to go striking the affidavit except for paragraph 27, the first four sentences of paragraph 28, paragraphs 31 to 33, and paragraphs 39 to 41.
[34] The applicant sought costs of the motion to vary in the amount of $2,500.00. The motions judge had ordered costs of $6,000.00 to the NHL in the motion before her.
[35] If one looks at the result of the original motion and the modest parts of the affidavit still remaining after this motion to vary, it appears that success has been divided. It was reasonable for the NHL to bring the original motion to strike the affidavit and to pursue that course, given the relief sought by the applicant in his factum for the motion to vary. Therefore, it is fair that each party should bear its costs of the original motion and the motion to vary. Accordingly, the costs order of the Motions Judge is set aside and there is no order as to costs.
Swinton J.
Pepall J.
Harvison Young J.
Released: April 4, 2012
CITATION: Warren v. Ontario Labour Relations Board, 2012 ONSC 1735
DIVISIONAL COURT FILE NO.: 587/10
DATE: 20120404
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, PEPALL and HARVISON YOUNG JJ.
B E T W E E N:
DEAN WARREN Applicant
- and -
ONTARIO LABOUR RELATIONS BOARD and NATIONAL HOCKEY LEAGUE Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: April 4, 2012