CITATION: Association of Professors v. University of Ottawa, 2016 ONSC 2897
DIVISIONAL COURT FILE NO.: 2022/14
DATE: 20160520
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, C. HORKINS and ARRELL JJ.
B E T W E E N :
ASSOCIATION OF PROFESSORS OF THE UNIVERSITY OF OTTAWA
Applicant/Responding Party
– and –
UNIVERSITY OF OTTAWA
Respondent/Moving Party
Sean McGee and Alison McEwen, for the Applicant/Responding Party
Lynn Harnden and Céline Delorme, for the Respondent/Moving Party
HEARD: April 29, 2016
M. DAMBROT J.:
[1] The moving party (the “University”) brings this motion pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, for an order setting aside the decision of a single judge of the Divisional Court refusing to strike an affidavit (the “Udell affidavit”). The Udell affidavit was filed by the responding party (the “Association”) in its application for judicial review of the decision of a labour arbitrator. The Association is seeking to set aside the award of the arbitrator upholding the termination of a professor’s employment with the University on the basis that he did not grade his students objectively in a course in which all of his students were awarded an “A+”.
Background
[2] The Udell affidavit was sworn by one of the counsel for the Association on the arbitration and relates to the evidence that was heard by the arbitrator. It covers five areas of evidence:
reliance by the arbitrator on a report prepared by a student during a presentation made by the professor (the “report”);
failure of the arbitrator to comment upon and weigh the evidence of the Dean of Science;
failure of the arbitrator to comment upon and weigh evidence relating to the methodology of the professor;
failure by the arbitrator to weigh certain evidence regarding the credibility of two students as witnesses; and
failure of the University to place in evidence any policy or procedural rules.
[3] In the report referred to in the first part of the Udell affidavit, the student said that she was present at a speech delivered by the professor at Queen’s University in which he discussed his grading method. She reported that, in relation to the pertinent course, he said, “I proposed to the students that it would be impossible to fail, and that there would be no grades and no institutional evaluation.”
[4] The report of the student was filed in the arbitration without the student being called as a witness on the basis of an agreement between the parties. In the Udell affidavit, the affiant asserts that the basis of the agreement was that:
…the document would not be admitted for the truth of its content, but as an aide memoire for the Arbitrator and to put in context his notes on the questions asked of [the Professor].
[5] In an affidavit filed by the University on this motion, a lawyer – who was one of the counsel for the University at the arbitration (the “Delorme affidavit”) – swore that the University transcribed the Arbitrator’s oral ruling on the issue as follows:
A: Think it should be entered in relation to excerpts on which the witness was questioned. Otherwise I am stuck with pages of answers on that document and no document in front of me…
[6] In the Udell affidavit, the affiant says that during the cross-examination of the professor, the professor reviewed the report, indicated that it was not complete, and that many of the explanations for his position were omitted. The professor also testified that while he may have made statements similar to the ones in the report, the wording and tone did not accurately reflect the presentation. Many other statements made by him in the course of his presentation qualified the points in the report, and that important context was missing. The professor also said that he did not intend to mislead his audience and that, considered in the context of the entirety of the speech, he had spoken the truth.
The Decision of the Motions Judge
[7] The motions judge divided his reasons into two parts. He dealt first with paragraphs 1-13 of the affidavit (which concerns the report), and then with the cross-examination of the Dean of Science and the evidence of two other students.
[8] In his reasons refusing to strike paragraphs 3-13 of the affidavit, which relate exclusively to the use of the report, the motions judge stated, at para. 19:
Given the unique circumstances, paragraphs 3-13 are necessary and in keeping with Keeprite and Kingston Utilities, this affidavit evidence should be admitted on the judicial review to “show an absence of evidence on an essential point”.
[9] It would appear that when the motions judge said that the evidence was admissible “to show an absence of evidence on an essential point”, he meant that the affidavit was necessary to show that there was an absence of evidence of the making of the report, since it was only filed for a limited purpose, and not as evidence of the truth of its content.
[10] The motions judge next considered the admissibility of the parts of the affidavit referencing the cross-examination of the Dean of Science and the evidence of the two other students about the promises made by the professor with respect to the marks he would award. He concluded that these parts of the affidavit should also be admitted before the panel hearing the appeal. He made no reference to the parts of the affidavit referring to the professor’s evidence about his methodology and the fact that the University did not adduce evidence of its policies and procedures.
[11] With respect to the two additional parts of the affidavit that he concluded were admissible, he stated, at paras. 20-22:
It is difficult to separate the input of the evidence or lack of evidence of Mrs. Robinson [the student who made the report] and the circumstances of her somewhat bizarre involvement in this matter, from the other areas of concern identified by the Applicant, APUO.
Under the circumstances, it is my opinion, that this is the “rare” exception envisaged by the case law whereby it will be necessary for the Divisional Court Panel to have before it evidence from the original hearing on which the Arbitrator made his findings. In addition, the lack of recording in this particular case requires that affidavits such as that of Natasha Udell be provided to the panel.
In my role in this motion, I find that the panel will ultimately be tasked with accepting or not accepting the contents of the affidavits. To exclude such affidavit materials in this isolated situation would be too prejudicial to the arguments that the Applicant, the APUO, wishes to advance.
The Argument
[12] The University argues that affidavits are only admissible on an application for judicial review to show a complete absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by mere reference to the record. The affidavit here accomplishes neither, and, as a result, should have been struck.
[13] The Association does not take issue with the narrow test for the admission of affidavit evidence, but rather it argues that the test is met. First, the Association argues the affidavit evidence is necessary to show that the arbitrator relied on evidence that wasn’t before him, specifically the content of the report that was not in evidence for the proof of the truth of its contents. Second, the affidavit evidence is admissible to demonstrate a breach of natural justice that cannot otherwise be fully understood, specifically that the arbitrator failed to consider certain important evidence.
Analysis
[14] Some tribunals that exercise adjudicative powers do not keep transcripts of their proceedings. In particular, there is a practice in labour arbitration hearings not to record or transcribe proceedings, even though there is discretion to do so. At common law, a tribunal has no obligation to have a transcript made as an element of procedural fairness: see Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 386 (SCC), [1997] 1 S.C.R. 793. In the absence of a statutory right to a recording, courts must instead determine whether the record before it allows it to properly dispose of the application for appeal or review. Ordinarily, in applications for judicial review of labour arbitration awards, the arbitrator gives full reasons and the absence of a transcript presents no difficulty.
[15] On applications for judicial review, in an effort to fill perceived gaps in the reasons of an arbitrator, litigants sometimes attempt to supplement the record by the filing of new evidence in the form of affidavits of persons who were present at the hearing with these individuals swearing to their recollection of what transpired. Such efforts face an obstacle. Generally, the evidence before the courts on judicial review is restricted to the evidence that was before the decision maker, and new evidence is not admissible: see Association of Universities and Colleges of Canada v. The Canadian Copyright Licensing Agency, 2012 FCA 22, 428 N.R. 297, at para. 19. This is because the court’s function is not appellate; rather, its role is to review the legality of the decision when it was made.
[16] There are two exceptions to this rule. The leading case on the admissibility of supplementary evidence in Ontario remains Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). A most helpful restatement of the rule taking into account subsequent cases is found in 142445 Ontario Ltd. (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636 (2009), 2009 24643 (ON SCDC), 251 O.A.C. 62 (Div. Ct.), a case in which an affidavit containing redacted notes of an employer’s counsel made during an arbitration was ruled inadmissible in a judicial review of an arbitration award. Swinton J. stated, for the Court, at para. 18:
The Keeprite standard for the admission of affidavit evidence on judicial review has been applied in numerous decisions involving labour boards and labour arbitrators. These cases have held that affidavit evidence can be admitted either 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…
[17] With this authoritative statement of the law in mind, I turn to the reasons of the motions judge.
[18] I begin by noting that the standard of review is not in dispute. A panel on a motion pursuant to s. 21(5) of the Courts of Justice Act “will not interfere with a decision of the motions judge unless he or she has made an error of law or a palpable and overriding error of fact”: see Marsden v. Her Majesty the Queen, 2012 ONSC 6118, at para. 2.
[19] I turn next to the ruling of the motions judge with respect to paragraphs 1-13 of the Udell affidavit. In my view, these paragraphs do not meet the test for the admission of affidavit evidence.
[20] I begin with the obvious. Counsel for the University was entitled to cross-examine the professor on an alleged prior statement made by him to a third party without first proving the prior statement. No prior agreement of the Association was required. Of course, if the professor denied making the statement, its contents would not have been in evidence for proof of their truth. But that is not what happened here.
[21] The arbitrator stated the following in his reasons:
On October 18, 2007, Professor Rancourt was a keynote speaker at Queen’s University, where the title of his address was “On the responsibility of university professors to create anarchism; liberation through anti-hierarchy activism”. A report on Professor Rancourt’s address prepared by a University of Ottawa student and editor to the students newspaper (attending the talk with the purpose of monitoring the communication by Professor Rancourt), was entered into evidence. Although the grievor was very reluctant to acknowledge the content of the report, he finally, through cross-examination and following extensive explanation on the context in which he was speaking, agreed to some portion of its content. As reported by the student, Professor Rancourt, in relation to his course given in September 2005, said “I proposed to the students that it would be impossible to fail, and that there would be no grades and no institutional evaluation.” [emphasis in original]
[22] Once the professor acknowledged the content of some parts of the report, those parts of the report became admissible for the proof of their content, leaving the weight to be assigned to it to the arbitrator having regard to the professor’s explanations and other evidence.
[23] Far from contradicting what the arbitrator said, the Udell affidavit confirms that the professor effectively conceded in cross-examination that he made the statement attributed to him in the report and similar statements. However, he insisted that the statement in the report was incomplete, out of context and inaccurate in wording and tone. Again, once he made these concessions, the content of much of the statement in the report became admissible for the proof of its truth, leaving the weight to be assigned to it to the arbitrator having regard to the professor’s explanations and other evidence.
[24] In addition, there is other evidence that is capable of confirming the content of the report. By way of example only, there was evidence before the arbitrator that after his address the professor was interviewed by a radio station reporter. The reporter asked him the following question and received the following answer:
Question: You mentioned how you weren’t grading. Are you still not grading given the fact that there has been some type of regulation passed at the university to require grades?
Answer: Yeah, I still don’t grade. I refuse to grade. So what I’ve done recently is I’ve simply given everyone the top grade, automatically without any possibility of getting a lower grade than that. That’s the first rule of the classroom, the first thing that’s announced on the first day is we will not talk about grades beyond this point. I’ll explain what it’s going to be about and you’re all going to get an A+ at the end of it. I explain why and how it is and how I want them to have the freedom to criticize the course, to say what they think, to follow their interests, to research what they feel they need to, and so on. And so yeah, I still do that. And I will defend that to the end. They’re going to have to take me to court to take that away.
[25] As a result, paragraphs 1-13 of the affidavit cannot possibly be admissible to show an absence of evidence on an essential point. First, at least some of the content of the report was properly before the arbitrator as proof of the truth of the essential matter in question: that the professor did not grade his students objectively. Second, there was other evidence that supported the same essential point.
[26] Given these circumstances, in my respectful view, it is plain that the motions judge made an error of law in refusing to strike paragraphs 1-13 of the affidavit, and in any event made a palpable and overriding error of fact.
[27] I turn to the remainder of the affidavit. Clearly, the basis of the decision of the motions judge for refusing to strike the remainder of the affidavit cannot stand. To repeat, he gave no reasons for refusing to strike some of the remaining paragraphs, and refused to strike other paragraphs on the basis that “it is difficult to separate the input of the evidence or lack of evidence of Mrs. Robinson [the student who made the report] and the circumstances of her somewhat bizarre involvement in this matter, from the other areas of concern identified by the Applicant, APUO.” He also said that “the lack of recording in this particular case requires that affidavits such as that of Natasha Udell be provided to the panel.”
[28] With respect to his first reason, I am unable to see how refusing to strike the first thirteen paragraphs led him to the conclusion that other paragraphs should not be struck. But in any event, in light of my conclusion that the first thirteen paragraphs should be struck, the motions judge’s basis for not striking other paragraphs disappears.
[29] With respect to his second reason, it is simply wrong in law. The simple lack of a recording does not require the admission of affidavits.
[30] In my view, the remainder of the affidavit is nothing more than an effort to place before the Divisional Court the Association’s version of the evidence in order to permit the Association to challenge the arbitrator’s findings of fact. That is precisely what the Court of Appeal in Keeprite said is not permitted.
Disposition
[31] For these reasons, the motion is granted, and the Udell affidavit is struck in its entirety.
[32] Counsel agreed that costs should follow the event, and should be fixed at $5,000 all inclusive. As a result, we award costs to the moving party fixed in that amount.
Dambrot J.
C. Horkins J.
Arrell J.
RELEASED: May 20, 2016
CITATION: Association of Professors v. University of Ottawa, 2016 ONSC 2897
DIVISIONAL COURT FILE NO.: 2022/14
DATE: 20160520
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, C. HORKINS and ARRELL JJ.
B E T W E E N :
ASSOCIATION OF PROFESSORS OF THE UNIVERSITY OF OTTAWA
Applicant/Responding Party
– and –
UNIVERSITY OF OTTAWA
Respondent/Moving Party
REASONS FOR JUDGMENT
M. DAMBROT J.
RELEASED: May 20, 2016