COURT FILE NO.: 752/02
DATE: 20040922
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GRAVELY, CARNWATH AND PITT JJ.
B E T W E E N:
AYLMER POLICE ASSOCIATION
Applicant
- and -
AYLMER POLICE SERVICES BOARD
Respondent
Martin Doane, for the Applicant
David S. Thompson, for the Respondent
HEARD: September 22, 2004
ENDORSEMENT
THE ISSUES
[1] A dispute arose between the applicant, Aylmer Police Association (the “Association”) and the respondent, Aylmer Police Services Board (the “Board”) as to the method of calculating sick leave credits under the governing Collective Agreement.
[2] In arbitrating a grievance filed by the Board, labour arbitrator Belinda Kirkwood found that an “authorized sick day” in Article 18.3 of the Collective Agreement was an 8 hour day rather than a shift, which is based on a compressed work week of 12 hour days or shifts.
[3] The Association seeks judicial review of the decision on two grounds:
(i) the Arbitrator lost jurisdiction by making findings of fact for which there was no evidence, that she failed to consider vital evidence, and that she misunderstood other evidence;
(ii) the decision was patently unreasonable.
JURISDICTION
[4] Fundamental to the jurisdiction argument is the request that we consider the affidavit of P.C. Kaastra. Mr. Kaastra was the president of the Association. He was a witness at the hearing and was present throughout. His affidavit summarizes his recollection of some of the evidence. The affidavit is tendered on the basis that there was no reporter present and the affidavit takes the place of a record. It is intended to demonstrate where the Arbitrator went wrong in her assessment of the evidence.
[6] If we were to permit the use of the affidavit, that evidence would not, in our view, establish a denial of natural justice and consequent loss of jurisdiction.
[7] Essentially, all it does is mention some evidence not specifically referred to by the arbitrator, and seeks to substitute Mr. Kaastra’s recollection of the testimony of Deputy Chief Reimer for the specific findings of the Arbitrator in that respect.
[8] These are not the “rare” or “very exceptional” circumstances that might call for the admission of affidavit evidence contemplated by the Ontario Court of Appeal in Keeprite Worker’s Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.) (leave to Appeal to S.C.C. denied).
[9] Our ruling is that the affidavit evidence may not be referred to in this hearing. Nor are we satisfied that the Arbitrator ignored or failed to consider relevant evidence or did anything that could have lead to a loss of jurisdiction.
REASONABLENESS
[10] Whether the standard of review is patent unreasonableness or reasonableness, (see Voice Construction Ltd. v. Construction and General Workers’ Union Local 92) (2004) 2004 SCC 23, 1 S.C.R. 609, per Major J. at p. 22) the Decision here meets the test. There is a logical line of analysis leading to the Arbitrator’s findings based on the evidence which she accepted.
[11] The application is dismissed.
[12] The Respondent will have its costs inclusive of the motion before Lane J. in the amount of $5,000.00.
GRAVELY J.
CARNWATH J.
PITT J.
Date: September 22, 2004
Date of Release: September 30, 2004
COURT FILE NO.: 752/02
DATE: 20049022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GRAVELY, CARNWATH AND PITT JJ.
B E T W E E N:
AYLMER POLICE ASSOCIATION
Applicant
- and -
AYLMER POLICE SERVICES BOARD
Respondent
E N D O R S E M E N T
GRAVELY J.
Date: September 22, 2004
Date of Release: September 30, 2004