Misra v. Canadian Union of Public Employees (CUPE) Local 79, 2016 ONSC 5713
CITATION: Misra v. Canadian Union of Public Employees (CUPE) Local 79, 2016 ONSC 5713
DIVISIONAL COURT FILE NO.: 176/16
DATE: 20160912
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Ajay Misra
Applicant
– and –
Canadian Union of Public Employees (CUPE) Local 79
Respondent (Moving Party)
– and –
City of Toronto
Respondents
Counsel:
Ajay Misra, In Person
Douglas J. Wray, for the Respondent (Moving Party)
Darragh Meagher, William Martin (Student-At-Law) for the Respondents
HEARD at Toronto: September 12, 2016
ORAL REASONS FOR JUDGMENT
DAMBROT, J. (ORALLY)
[1] On October 13, 2015 the Applicant, Ajay Misra filed an application with the Ontario Labour Relations Board (“OLRB”) pursuant to the Ontario Labour Relations Act (the “Act”) against the Union, Canadian Union of Public Employees Local 79 (“CUPE 79”) alleging that the Union had violated a trade union statutory duty of fair representation as set out in section 74 of the Act. The application was dismissed on February 10, 2016.
[2] On April 14, 2016, the Applicant filed a notice of application for judicial review of the OLRB’s decision, and on or about May 9, 2016, the OLRB served and filed a three volume record of proceedings pursuant to section 10 of the Judicial Review Procedure Act. Shortly after, the Applicant served and filed his own application record together with his factum and a book of authorities.
[3] The record filed by the Applicant consists of a great many records and excerpts from records occupying a great many pages apparently obtained from a variety of sources over a lengthy period of time. He did not file an affidavit identifying the documents or providing a factual background that could justify the receipt of these documents on this judicial review application.
[4] CUPE 79, the Moving Party before me, supported by the City of Toronto, seeks an order striking out the application record filed by the Applicant and an order directing the Applicant to file a revised factum deleting reference to and reliance on any documents or facts contained in the struck record that are not in the record filed by the OLRB.
[5] The general rule in this court, which has been repeated frequently in our jurisprudence, is that on an application for judicial review, affidavits containing material that was not before the decision-maker at first instance will not be received. 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 made.
[6] As a rare exception to this general rule, the court may permit affidavit evidence to supplement the record of proceeding when it is alleged that a breach of natural justice has occurred or that a jurisdictional error has been made arising from a complete absence of evidence on an essential point in the decision.
[7] No basis has been made out in this case for the admission of the documents in the application’s record.
[8] The Applicant points out that some of the material was before the OLRB on an application for reconsideration brought after the filing of the impugned material in this court. However, the fact that the material in question may have been before the OLRB on a reconsideration application does not make it admissible in this judicial review application.
[9] Accordingly, an Order will go striking the Applicant’s application record and directing that the Applicant file an amended factum.
[10] Counsel for CUPE 79 has advised the court that there is a certain limited amount of material that was before the OLRB but not included in the Record prepared by OLRB and has undertaken to cooperate with the Applicant and ensure that this omitted material is placed before the Divisional Court on the hearing of the judicial review application.
COSTS
[11] I have endorsed the Motion Record as follows: “Motion granted in terms of reasons delivered orally today. Costs to CUPE 79 from the Applicant fixed in the amount of $1,000.00 all in, payable forthwith.”
DAMBROT J.
Date of Reasons for Judgment: September 12, 2016
Date of Release: September 15, 2016
CITATION: Misra v. Canadian Union of Public Employees (CUPE) Local 79, 2016 ONSC 5713
DIVISIONAL COURT FILE NO.: 176/16
DATE: 20160912
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Ajay Misra
Applicant
– and –
Canadian Union of Public Employees (CUPE) Local 79
Respondent (Moving Party)
– and –
City of Toronto
Respondents
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: September 12, 2016
Date of Release: September 15, 2016