DIV. COURT FILE NO.: 86/04
DATE: 20041119
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION – Applicant
- and -
THE THAMES VALLEY DISTRICT SCHOOL BOARD, W.B. RAYNER, JAMES FORSTER, AND MARILEE MARCOTTE -- Respondents
BEFORE: GROUND J.
COUNSEL: Roy C. Filion for the Respondents, Moving Party
David A. Wright for the Applicant, Responding Party
MOTION
HEARD: November 1, 2004
E N D O R S E M E N T
[1] This motion is brought by the Respondent, The Thames Valley District School Board (“Thames Valley”) for an Order striking paragraphs 48 through 65 of the affidavit of Ian J. Fellows (“Fellows”) sworn in support of an application by The Ontario Secondary School Teachers Federation (“OSSTF”) of an arbitration award issued September 2, 2003 where the Board of Arbitration (the “Board”) found that Thames Valley had met the onus of showing just cause for the termination of secondary school teacher X on clear and cogent evidence
[2] There is no transcript of the proceedings before the Board of Arbitration and the record before this court consists of the award and the exhibits filed at the hearing before the Board.
[3] The award is a most thorough examination of all of the issues raised at the hearing including the delay in disclosure of a conversation alleged by the student complainants to have taken place in the corridor of the high school and a delay in correcting an error with respect to the time of receipt of a particular e-mail alleged to have been sent by X to student S. The award also deals in detail with the issue of credibility as between X and S, particularly with respect to the alleged conversation in the corridor, and concludes:
We accept the fact that S certainly gave confusing evidence on certain matters which we have already reviewed. However his evidence as to the hallway conversation was clear and consistent. In fact, in accordance with the principal’s instructions, he made a note of the conversation on the day when he came home from school, a note which he showed to his father immediately upon completion. If S is not telling the truth about the tic note it is not because of confusion. If he is misleading this board we ask why he is doing so.
For the forgoing reasons we accept the evidence of S over that of the grievor as to the conversation in the hall on February 20, 2001 and having reached that conclusion we must find that the Board has met its onus of showing just cause for the termination of the grievor on “clear and cogent” evidence.
[4] In my view, it is clear from the award that the decision of the Board was based upon its findings of credibility as between S and X particularly with respect to the conversation in the corridor and, whether the standard review is patent unreasonableness or is reasonableness simpliciter, this court must extend a high degree of deference to findings of fact of the Board based upon its determination as to the credibility of the witnesses appearing before it.
[5] It is the submission of Thames Valley that affidavit evidence will only be admissible on an application for judicial review in unusual circumstances where it is submitted for the purpose of establishing that the arbitrator lacked jurisdiction or that there was complete absence of evidence to support a finding of a material fact by the arbitrator. Thames Valley submits that OSSTF does not allege that the Board committed a jurisdictional error or made a finding of a material fact unsupported by any evidence but that OSSTF challenges the Board’s findings of fact and credibility as being unreasonable and patently unreasonable. Thames Valley further submits that the Fellows affidavit is an attempt to expand the record to undermine the findings of fact and credibility on which the decision of the Board was based, that the Fellows affidavit selectively edits the testimony to skew the testimony in favour of X and that the admission of such affidavit would only lead to responding affidavits from Thames Valley and cross examinations and warring affidavits as to testimony before the Board in respect of which there is no transcript and no reference in the award.
[6] It is the submission of OSSTF that this motion is premature and that the question of the admissibility of the Fellows affidavit should be left to the panel hearing the judicial review application. OSSTF further submits that an exception to the rule as to the non-admissibility of affidavit evidence on an application for a judicial review as set out in Re Keeprite Workers’ Independent Union et al and Keeprite Products Ltd. (1980) 29 O.R. (2d) 51 (C.A.) is that affidavit evidence may be submitted to show that a finding of fact by an arbitrator was supported by no evidence and that the Fellows affidavit establishes that there was no evidence to support critical findings of fact by the Board or that the findings of fact were contrary to the evidence presented at the hearing and that, accordingly, the admission of the Fellows affidavit is essential to establish the basis for OSSTF’s application for judicial review that the findings of fact, and presumably the findings of credibility made by the Board, were unreasonable and patently unreasonable. OSSTF also submits that the Fellows affidavit establishes that the findings of fact by the Board on which they determined that X did not suffer prejudice as a result of failure to disclose and therefore suffered no procedural unfairness were equally unreasonable and patently unreasonable. OSSTF further submits that the traditional rule as to the inadmissibility of affidavit evidence on an application for a judicial review as set out in Keeprite, supra should be revised in view of the pragmatic and functional approach outlined by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 160 D.L.R. (4th) 193 as to the degree of deference to be accorded to decisions of administrative tribunals and that affidavit evidence should be admitted to the extent that it demonstrates that an administrative decision is incorrect, unreasonable or patently unreasonable depending upon the applicable standard of review. It is their submission that “no evidence” standard is no longer applicable and that, under the Pushpanathan, supra, principle, the court may conduct a rather probing examination of the facts on which the administrative tribunal reached its conclusion to determine whether such findings were reasonable based upon all of the evidence before the tribunal.
[7] With respect to the issue of whether the motion before this court is premature and the question of admissibility of the Fellows affidavit should be left to the Divisional Court panel hearing the application for judicial review, it is my view that this court is in as good a position as the panel to determine whether based on either the traditional Keeprite test or the modified Keeprite test as submitted by OSSTF, the Fellows affidavit ought to be admitted. In addition it is my view that to leave the question of admissibility until the hearing by the panel precludes the filing of responding affidavits by Thames Valley and the cross examination on such affidavits which would prejudice Thames Valley. I am accordingly not prepared to dismiss the motion on the basis that it is premature.
[8] With respect to the applicable test to be applied to determine whether the Fellows affidavit should be admitted in evidence before the Divisional Court with respect to the findings of fact and of credibility made by the Board, I am of the view that the determination of whether such findings were patently unreasonable or unreasonable simpliciter must be determined on the basis of the record of the proceedings before the Board, being the award and the exhibits, and that there is no basis in law, on either the traditional Keeprite test, or the modified Keeprite test, to admit the Fellows affidavit to augment the record. In my view, there was ample evidence before the Board and a very thorough consideration of the credibility of both X and S on which the board could reasonably have come to the findings of fact and of credibility made by it. With respect to the findings of the Board that X was not prejudiced by the delays in disclosure and that there was therefore no procedural unfairness, I am not satisfied that, even accepting the statements in the Fellows affidavit at face value, the affidavit would establish that the Board committed such a jurisdictional error that the award of the Board should be set aside. In my view, even taking the statements made in the Fellows affidavit at face value (keeping in mind the fact that Thames Valley has not had an opportunity to file a responding affidavit or to cross examine Fellows on his affidavit), there was ample evidence before the Board on which they could have reasonably concluded that the delays in disclosure did not prejudice X to the extent that there was procedural unfairness in the proceedings before the Board.
[9] Accordingly, an Order will issue striking paragraphs 48 through to 65 of the affidavit of Ian J. Fellows sworn on August 10, 2004 in support of the within application for judicial review.
[10] The parties may make brief written submissions to me as to the costs of this motion on or before December 6, 2004.
Ground J.
Released: November 19,9 2004