DATE: 20020905 DOCKET: M24728 (C32386)
COURT OF APPEAL FOR ONTARIO
WEILER, AUSTIN and LASKIN JJ.A.
BETWEEN:
JACK VERNON
C. Scott Ritchie, Q.C.,
for the appellant
Plaintiff (Appellant)
- and -
GENERAL MOTORS OF CANADA LIMITED, BASIL HARGROVE, JOHN KOVACS, JOHN CAINES, DON WHALEN, JERRY SMITH, DAVID BROADBENT and CHARLIE PEEL
J. Brett Ledger and Laura K. Fric, for the respondent General Motors of Canada Limited
L.N. Gottheil, for the respondents
Hargrove, Kovacs, Caines, Whalen,
Defendants (Respondents)
Smith, Broadbent and Peel
Heard: August 30, 2002
BY THE COURT:
[1] On this motion, the appellant Jack Vernon asks for two orders: first, an order augmenting the record on appeal to include page 145 of the 1990 Master Agreement Booklet; and second, an order permitting him to amend his statement of claim by substituting a new para. 7 and adding a para. 14(b). We are all of the opinion that both orders should be granted. Any resulting prejudice to the respondents can be dealt with by appropriate terms.
[2] As directed by Moldaver J.A., we treat the motion to include page 145 as a motion for leave to introduce fresh evidence. On fresh evidence motions, this court ordinarily applies the criteria in R. v. Palmer, [1980] 1 S.C.R. 759, and the respondents contend that the appellant has not met these criteria. Even accepting that the appellant cannot satisfy the Palmer test – and we make no finding on whether he can or cannot – we think there are two answers to the respondents’ contention. First, this court has always retained an overriding discretion to admit fresh evidence where the interests of justice require it. Second, the context in which this motion arises is important. This is not a typical fresh evidence motion because the evidence in question, page 145, was read to the motions judge during oral argument, though not marked as an exhibit. Taking these two considerations together, we have concluded that, in the interests of justice, the appellant should be permitted to rely on page 145 of the 1990 Master Agreement Booklet in prosecuting his claim.
[3] The appellant’s claim is based on a combination of Document 12 (the terms of a job security program) contained in the 1990 Booklet, a 1993 memorandum of understanding and an alleged oral agreement. The company’s motion to stay or dismiss the appellant’s claim was based on Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 583 (S.C.C.). General Motors successfully argued before the motions judge that the parties intended this dispute to be arbitrated under the collective agreement. In granting the motion, McDermid J. concluded that Document 12 was part of the collective agreement.
[4] General Motors’ motion record included the basic terms of the Master Agreement Booklet (pp. 1-113) and Document 12, but not page 145. That page, which precedes Document 12 in the Booklet and applies to it, may be relevant in determining both whether Document 12 was part of the collective agreement and what the parties intended. Indeed, in an unrelated arbitration – Re General Motors of Canada Ltd. and CAW-Canada Local 199 (2001), 93 LAC (4th) 329 – General Motors relied on page 145 in arguing before the arbitrator that the grievance in question was not arbitrable. In fairness, we think that the appellant should be permitted to make the same argument in these proceedings.
[5] In concluding that leave should be granted to include page 145 in the appeal record, we can do no better than quote the words of McLachlin J.A. in Davis, Daignault, Schick & Co. v. K & H Hldg. Ltd. (1986), 3 B.C.L.R. (2d) 273 at 274:
This is not the usual case for an application to adduce new evidence on appeal. The fact that much of the evidence in question appears to have been placed before the chambers judge distinguishes it from many of the decisions of the court, including those decisions to which I was referred. …
The court in determining whether new evidence should be adduced must take as its main object that justice be done in all the circumstances of the case. In this case, where evidence relating to the matters raised by the new evidence appear to have been put before the trial judge, I feel that in all fairness I must allow the appellant to put that evidence before the Court of Appeal. It may be that in the final analysis it will not prove to be helpful, as the respondent contends before me, but the issues are not so clear in my mind that I can say that that evidence might not play a part in the decision before the Court of Appeal. Therefore I would allow the application.
[6] One other aspect of the motion to admit page 145 deserves mention. It relates to the Union’s position. The Union’s main position does not turn on whether Document 12 is or is not part of the collective agreement. Instead, relying on the Supreme Court of Canada’s decision in Gendron v. Supply and Services Union of PSAC, Local 50057, [1990] 1 S.C.R. 1298, the Union argues that the Ontario Labour Relations Board has exclusive jurisdiction over the appellant’s complaints about the Union’s conduct. We thus considered whether we should admit page 145 only in respect of the appellant’s case against the company. We have decided not to do so for two reasons. First, it is impractical, and second, though the Union relies mainly on the principles in Gendron, it also sought a stay on the principles in Weber. We therefore simply grant leave to admit page 145.
[7] The second branch of the appellant’s motion asks for leave to amend the statement of claim. Ordinarily, such a motion would not be controversial because none of the respondents has yet delivered a statement of defence. But the effect of the amendments sought by the appellant is to withdraw the statement in para. 7 of the statement of claim, on which the motions judge relied, that Document 12 was part of the existing collective agreement.
[8] Having admitted page 145, in our opinion it would make little sense to preclude the appellant from amending his statement of claim. The court has discretion to permit an amendment, even if it amounts to the withdrawal of an admission. In the interests of fairness, we permit the amendments requested.
[9] Both respondents submit that they will be prejudiced by the granting of the appellant’s motion. We think that the following terms, which we impose, will address the respondents’ claim of prejudice:
The respondents shall have leave to file responding material addressing both the inclusion of page 145 in the record and the amendments to the statement of claim;
At the respondents’ option, we will order that their motions to stay or dismiss the action be reargued before a motions judge on the augmented record;
If the respondents wish the appeal to proceed, this panel shall hear it on a convenient date. Laskin J.A. shall case manage the filing of any further material and the scheduling of the appeal. The parties may make submissions to him by telephone conference call or in chambers; and
The costs of this motion shall be reserved until either the proceeding is transferred to the motions judge for re-argument or until the appeal is heard. The parties shall deliver submissions in writing on the costs of this motion within 30 days.
Released: SEP 05 2002 KMW
Signed: “K.M. Weiler J.A.”
“Austin J.A.”
“John Laskin J.A.”