2015 ONSC 3748
DIVISIONALCOURT FILE NO.: DC-14-2044
DATE: 20150610
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R. D. GORDON, R. S. J.
BETWEEN:
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
Applicant / Responding Party
– and –
UNIFOR, LOCAL 3011
Respondent / Moving Party
D. Bruce Sevigny, for the Applicant / Responding Party.
David Jewitt, for the Respondent / Moving Party.
HEARD: May 22, 2015
r. d. gordon, r. s. j.
Overview
[1] UNIFOR Local 3011 (“the Local”) has brought this motion to strike certain paragraphs and exhibits contained in the affidavit of Sue Baribeau and in the factum filed by The Professional Institute of the Public Service of Canada (“PIPSC”) in its Application for Judicial Review of a decision made by Arbitrator Brian Keller on July 23, 2014.
Background
[2] The parties entered into arbitration to resolve a series of classification grievances filed by a group of Employment Relations Officers employed by PIPSC. At issue was: (1) Whether or not the duties associated with the position of Employment Relations Officer had substantially changed; and (2) What is the appropriate job classification having regard to those changes.
[3] The Arbitrator allowed the grievance. He found that the position had substantially changed and determined that the position should be classified at a higher level, namely, Level 7 of the classification schedule.
[4] PIPSC’s application for judicial review is premised on its view that the arbitration was to have proceeded in two phases: firstly on the issue of whether the position of Employment Relations Officer had substantially changed; and secondly, and only if the first issue was determined in favour of the Local, on the issue of the appropriate classification level. It says that because of its understanding that the arbitrator was not going to proceed with the second issue until the first was determined, it was surprised to see the arbitration decision deal with both issues. It says that the arbitrator exceeded his jurisdiction and breached the rules of natural justice and procedural fairness by deciding the second issue without giving it an adequate opportunity to lead evidence and make argument.
[5] It is noteworthy that part way through the arbitration, the Local sought to introduce evidence of an expert, Elizabeth Millar, to provide a specific and updated classification rating for the position of Employment Relations Officer. In a ruling on the admissibility of her evidence dated March 20, 2014, the arbitrator said the following:
It is useful to take the parties back to the hearing on June 16, 2012. At that time, the parties agreed on the initial issue in dispute and how this matter would proceed. It was agreed that the initial issue to be determined was whether the job performed by the grievors was either a new position under section 14.01(b), or an existing position substantially changed pursuant to section 14.01(c). The evidence led by the union to this point is consistent with me having to make that determination.
It was then acknowledged by the parties that if the evidence does not substantiate that either the position is new or substantially changed, the grievances would be dismissed. If, on the other hand, it was determined that the position was either new or substantially changed, two further determinations would have to be made. The first would be to determine the date the position was created or changed and the second was how much compensation would be owed to the grievors.
Implicit in the above, is that there is no need, at this stage of the proceeding, to determine the appropriate classification level of the work performed during the material time by the grievors. Should I find in favour of the grievors on the substantive issue relating to article 14 then that question will have to be answered by me, unless the parties are able to resolve it themselves.
Accordingly, it is my determination that to determine the issue of whether article 14 is engaged or not, the report of Ms. Millar is of no assistance, and not relevant. Accordingly, the report is not to be admitted as this time, nor is the evidence of Ms. Millar required. I point out, however, that should I find in favor of the union on the issue of whether article 14 is engaged or not, and should the parties not agree on the appropriate level of classification, then the evidence of Ms. Millar could be relevant in determining that issue. It would be understood, of course, that she would be testifying at that time, not as an expert witness in the legal sense, but as an advocate on behalf of the grievors and subject to cross-examination by the employer.
[6] In support of its application for judicial review, PIPSC has filed an affidavit of Sue Baribeau, its Human Resources Officer. In that affidavit, she refers to and appends as an exhibit, the report of Ms. Millar. Her affidavit filed on this motion indicates that during the voir dire on the admissibility of Ms. Millar’s evidence, Ms. Millar testified and was questioned extensively on the contents of her report. Although this was disputed by counsel for the Local, there was no evidence before me to the contrary.
[7] The Local objects to the report being included or referred to in detail in the documents filed in the judicial review application, and takes issue with other aspects of Ms. Baribeau’s affidavit, arguing that it does not comply with the Rules of Civil Procedure.
Applicable Law
[8] The admissibility of affidavit evidence on an application for judicial review was succinctly stated in Sierra Club Canada v. Ontario (Ministry of Natural Resources), 2011 ONSC 4980. The general rule is that, on an application for judicial review, affidavits containing material that was not before the decision maker at first instance will not be allowed. The record that goes before the reviewing court should essentially be the material that was before the decision-maker at the time the decision was being made. However, as provided in Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 114 D.L.R. (3d) 162 (Ont. C.A.), affidavit evidence is permissible to supplement the record in exceptional circumstances to demonstrate an absence of evidence on an essential point in the decision (which is to say, to demonstrate jurisdictional error) or to show a breach of natural justice that cannot be proved by mere reference to the record.
[9] If otherwise admissible, an affidavit should not contain legal argument, irrelevant information or improper hearsay. To the extent an affidavit includes such material, it is appropriate to strike the impugned provisions.
Analysis
[10] Although the arbitrator ruled that Ms. Millar’s evidence was not relevant in his determination of the first issue, that is, whether the job position had substantially changed, he found her evidence to be relevant to the issue of classification and seems to have anticipated having her provide testimony on that issue at a subsequent time.
[11] Given that: (1) her evidence was relevant on classification; (2) on the evidence before me she gave evidence at the voir dire as to classification; and (3) the arbitrator went on to make a finding as to classification, an inference might be drawn that he in fact considered Ms. Millar’s evidence on that point in making his determination. As there is no transcript of the proceeding, the evidence she gave on the issue of classification is best reflected in the report that formed the basis of her testimony.
[12] It strikes me as fair, in these circumstances, to allow the PIPSC to include in its materials the report and the references to it so that its argument on breach of natural justice can be fully understood and considered by the court.
[13] With respect to the balance of the objections taken by the Local, it is my view that the affidavit of Ms. Baribeau is not objectionable. To begin with, she is the human resources officer for PIPSC with first-hand knowledge of the matters deposed to. Secondly, the manner in which the affidavit is drafted does not, in my view, amount to legal argument. Rather, the affidavit gives the background necessary for the court to understand the breaches of natural justice that are alleged, and to understand the impact those breaches could have had on PIPSC’s ability to adequately address the issues before the arbitrator. The affidavit is an appropriate supplement to the record because the breaches of natural justice and procedural fairness cannot be fully appreciated by reference to the record alone.
Conclusion
[14] The Local’s motion is dismissed. If the parties are unable to agree on costs they may make written submissions to me, not to exceed three pages plus attachments each, within 45 days.
R. D. Gordon, R. S. J.
Released: June 10, 2015
2015 ONSC 3748
DIVISIONALCOURT FILE NO.: DC-14-2044
DATE: 20150610
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R. D. GORDON, R. S. J.
BETWEEN:
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
Applicant / Responding Party
– and –
UNIFOR, LOCAL 3011
Respondent / Moving Party
RULING ON MOTION
Released: June 10, 2015