COURT FILE NO.: 209/06
DATE: 20070129
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Re: CITY OF HAMILTON v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 18 AND ONTARIO LABOUR RELATIONS BOARD
Before: Lane, Swinton and M.G.J. Quigley JJ.
Counsel: Christopher G. Riggs Q.C. and John-Paul Alexandrowicz, for the Applicant/Respondent Party
Douglas J. Wray, for the Respondent/Moving Party
Heard at Toronto: January 8, 2007
E N D O R S E M E N T
[1] On this motion, United Brotherhood of Carpenters and Joiners of America, Local 18 (the "Union"), moves under subsection 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to set aside a decision of Madam Justice Ellen Macdonald dated October 24, 2006. In her decision, Macdonald J., sitting as a single judge of the Divisional Court, dismissed a motion brought by the Union to strike out all or part of the affidavit of Gary F. Kuzyk. The City of Hamilton (the "City") filed that affidavit in support of its May 2006 application for judicial review of the September 12 and November 9, 2005 decisions of the Ontario Labour Relations Board. Those decisions resulted in the certification of the Union as bargaining agent for a number of carpenters employed by the City working in construction, and a determination by the Board not to reconsider that decision. It was accepted by the parties before us that the argument of the judicial review application must await the resolution of this motion respecting Macdonald J.'s decision.
Background
[2] A bit of history is helpful to understand the circumstances in which this motion arose. On September 1, 2005, the Friday before the Labour Day weekend, the Union filed an application for certification with the Board to represent carpenters and carpenters' apprentices employed by the City in the construction industry. The Union stated in that application that to the best of its knowledge it was submitting membership evidence on behalf of two of three persons in the bargaining unit. The Union was required to deliver a copy of its certification application to the City and did so by fax transmission addressed to Mr. Nick Roundis, a facilities supervisor with the City.
[3] Apparently unbeknownst to the Union, the fax number used to send the certification application was not the usual number at which Mr. Roundis received facsimile transmissions. It was not the office location to which he regularly reported for work and he checked the receipt of fax transmissions to this number at that different office location only infrequently. Consequently, it took some days for the Union's certification application to come to the City's attention.
[4] By that time, the two-day response period stipulated in subsection 128.1(3) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Schedule A, as amended (the "Act") had expired. That was the statutory period within which the City was required to respond to the Union's certification application. The last day for response by the City was September 6, 2005. In the absence of a response from the employer, the Board issued a decision on September 12, 2005 certifying the Union as the bargaining agent for the particular individuals. It did so on the basis of the material filed before it by the Union.
[5] On October 7, the City filed a Request for Reconsideration. It asked the Board to reconsider its earlier decision and revoke the certificate it issued to the Union. The City's Request for Reconsideration was a substantial document. It comprised 141 pages of factual assertions, submissions and argument in support of its reconsideration request. Several grounds for reconsideration were advanced, but the principal ground upon which the request was made was that the City had not been "properly" served by the Union with the original certification application. The City asserted that the failure to provide it with timely notice was the only reason that it failed to file a timely response with the Board. The Union filed a response to that reconsideration request. Amongst other things, it responded that it had obtained the contact information for Mr. Roundis directly from "his assistant."
[6] On November 9, 2005, the Board issued a decision in response to that and the other two grounds advanced by the City in the reconsideration request. It stated that the only ground that had any likelihood of causing it to reconsider its decision was the assertion that improper delivery of the certification application had deprived the City of its right to file a response and/or provide the employer information mandated by the Act within the statutory time limits set out in subsection 128.1(3). However, in the Board's view, improper service alone would not have provided the City with a basis to disturb the Board's findings respecting the three individuals in the proposed bargaining unit. It would only have permitted the employer to argue about the nature of the work being performed on the day of the Union's application. The Board determined not to reconsider its decision, dismissing the alternative grounds of argument as the basis to merit reconsideration, and concluding that the untimeliness of the City's response would not have affected the result.
[7] This conclusion, however, was subject to one important caveat. The Union insisted that it had provided adequate service of notice to the City when it faxed the application to Mr. Roundis. It stressed that it had received the fax number to which it directed the certification application directly from "Mr. Roundis' assistant". Therefore, in its submission, it was not open to the City to assert it had not been properly served. The Board decided that, if the City disputed that assertion by the Union, it would allow the City one last possibility of reconsideration provided it made submissions on the point, including all material facts, by November 15, 2005. The City chose not to take up that invitation from the Board. Instead, it commenced this application for judicial review of the Board's decisions five months later in May of 2006.
[8] As stipulated by the Judicial Review Procedures Act, R.S.O. 1990, c. J.1 as amended, upon receipt of the City's application for judicial review, the Board prepared and filed with this Court the record of proceedings in which the decisions under review were made. Those proceedings amounted to a record of a "paper hearing". No viva voce evidence was heard and no transcripts were prepared. Since no actual hearing was ever held by the Board, the record prepared by the Board constitutes as complete and accurate an account as is available of the information and submissions that the Board had before it when it made the two decisions that are now the subject of judicial review.
Admissibility of the Kuzyk Affidavit
[9] In spite of the existence of a full documentary record from the Board's original certification and subsequent reconsideration decisions, the City sought to introduce further evidentiary support for its application for judicial review. It filed the affidavit of Gary J. Kuzyk sworn May 10, 2006. It also filed its Applicant's factum on the judicial review application. Not surprisingly, that document refers to and relies heavily upon the facts asserted in the Kuzyk affidavit. It is the additional information, allegations and characterizations contained in the Kuzyk affidavit, going beyond the record prepared by the Board, to which the Union takes exception. It is that material which caused the Union to bring its motion before Macdonald J. to strike out all or portions of that affidavit and related portions of the factum. That motion raised squarely the extent to which new affidavit evidence not advanced before a tribunal ought to be permitted on judicial review of that tribunal's decision.
[10] The City asserts that the Board's decisions are in breach of natural justice, given that the City had none of its information before the Board at the time of the initial certification decision, and that the Board chose to deny the City's reconsideration request in the face of the City's extensive written submissions. As the motions judge phrased it at paragraph 5 of her endorsement:
Further, it is said that a denial of natural justice occurs from the Board's refusal to reconsider the certification of the respondent Union after the Board learned of the City's failure to receive proper notice of the application and this, combined with the Board's refusal to give the City the opportunity to be heard or participate in the certification process, constitutes a denial of natural justice.
The motions judge then continued at paragraphs 6 and 7 as follows:
Confining myself to the sole issue of whether or not it is proper for the City to file Mr. Kuzyk's affidavit in support of the application for judicial review, I conclude that the City is correct in its assertion that Mr. Kuzyk's affidavit properly provides evidence that may establish the Board's denial of natural justice to the City. The affidavit deposes that the Board certified the respondent Union in circumstances where there was an absence of evidence before the Board which ought to have been there when the Board exercised its power to certify the respondent Union.
In the face of precedent for the admission of affidavit evidence to show a denial of natural justice by the Board, I have determined that in these circumstances the City is entitled to establish a denial of natural justice through the proposed affidavit evidence and ought not to be restricted to the record of the administrative tribunal responsible for the denial of natural justice. It is correct to say, as the City does in paragraph 38 of its factum, that it is evident that where an application for judicial review relates to serious issues of natural justice, it is preferable for the court to take in account sworn evidence that is directly relevant to this issue rather than to be limited to a party's pleadings before the tribunal or the tribunal's synopsis of those pleadings. I agree that judicial review of a denial of natural justice requires the Divisional Court to consider the entire evidentiary record, relevant circumstances, and factual context. I also agree that in the circumstances of this case the City is entitled to submit affidavit evidence that relates to the issue of whether or not the Union possessed the requisite level of membership support.
[11] The moving party submits that the motions judge erred in concluding that the City's allegations that it was denied natural justice entitle it to advance new affidavit evidence on judicial review of the Board's decision. On that judicial review, it argues that the City should be restricted to the record of the Board and pleadings that were before it and on which it reached its decisions. It argues that courts in Ontario have consistently held that affidavit evidence in support of an application for judicial review should be admitted in only the most exceptional of circumstances. In Re Keeprite Workers' Independent Union et al. v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 514 (O.C.A.) at page 521, Morden J.A. stated
...the practice of admitting affidavits of this kind should be very exceptional, it being emphasized that they are admissible only to the extent that they show jurisdictional error. I would think that the occasions for the legitimate use of affidavit evidence to demonstrate the exacting jurisdictional test of a complete absence of evidence on an essential point would, indeed, be rare.
See also: Re Securicor Investigations and Security Ltd. and Ontario Labour Relations Board et al. (1985), 1985 1978 (ON SC), 50 O.R. (2d) 570 (Ont. Div. Ct.) and Medis Health and Pharmaceutical Services Inc. v. Teamsters, Chemical and Allied Workers, Local 132, [2001] O.J. No. 2254 (Ont. S.C.J.).
[12] These cases establish, in the moving party's submission, that there are only two circumstances where our courts have permitted affidavit evidence to be admissible in support of a judicial review application. The first is where it is alleged that the Board made a finding of fact on an essential point when there was no evidence to support the Board's finding, and the second is where there has been an allegation of a denial of natural justice that cannot be proven by mere reference to the Record of the Board.
[13] The motions judge had jurisdiction under subsection 20(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to entertain the City's motion seeking an order permitting the introduction of the Kuzyk affidavit on the application for judicial review. In the course of considering that motion and reaching her decision, the motions judge exercised her discretion to permit the whole of the affidavit to be admissible at the judicial review hearing before a full panel of this Court. The authorities make clear that the motions judge was entitled to exercise that discretion as she considered fit in the circumstances, and we are permitted to intervene in the exercise of her discretion only if she misdirected herself or if her decision is "clearly wrong": see Elsom v. Elsom, 1989 100 (SCC), [1989] 1 S.C.R. 1367 (S.C.C.); Peel Non-Profit Housing Corp. v. McNamara, 1991 7304 (ON SC), [1991] O.J. No. 364 (Ont. Div. Ct.); Salter v. Beljinac, 2001 40231 (ON SCDC), [2001] O.J. No. 2792 (Ont. Div. Ct.).
[14] Dealing first with evidence relating to notice, we are of the view that the motions judge was not "clearly wrong" in concluding that affidavit evidence ought to be received by the Divisional Court on this issue as it goes to establish the City's allegation that it was denied natural justice by the Board.
[15] The Divisional Court has the right to have before it evidence that may be relevant to the natural justice issue, even if it was not contained in the Board's record. In reaching this conclusion, we are not addressing the Union's assertion that an opportunity was provided to the City in the Board's November 9 reconsideration decision to bring such evidence to the Board itself or the uncontested fact that the City declined to avail itself of that opportunity. These are matters that may more properly be considered by the panel of the Divisional Court hearing the application as part of its overall consideration of the merits. Accordingly, we would not interfere with the motions judge's refusal to strike paragraph 3 of the Kuzyk affidavit.
[16] However, the motions judge erred in failing to strike paragraphs 4 to 14. These paragraphs of the Kuzyk affidavit contain material not before the Board. This material did not factor into the Board's decision-making process, either on the initial decision, or on the decision given in response to the reconsideration request. On the application for certification, the Board had the Union's material. On the City's Request for Reconsideration the Board had the very extensive documentation provided by the City in support of its request as well as the Union's response.
[17] In our opinion, the Keeprite decision, and others that have followed and applied it, provide clear direction that the evidence in paragraphs 4–14 is not admissible. In the present case, as noted, the City filed voluminous materials on the reconsideration application to the Board in support of its contention that the Board had erred in certifying the Union. The "no evidence" foundation for judicial review cannot succeed as the basis to permit the introduction of the Kuzyk affidavit.
[18] In our opinion, there is evidence that was before the Board both at the time of its original certification decision and at the time of its decision not to reconsider that decision with respect to these matters. This is not a case where there was no evidence before the Board. Neither is there any indication that the information in the Kuzyk affidavit was not available at the time of the Reconsideration request. In accordance with the Keeprite principle, we conclude that the interests of justice do not require that the balance of the Kuzyk affidavit, consisting of paragraphs 4 through 14, are required to permit another panel of this Court to consider the City's judicial review application with respect to the Board's decision. For this reason, we allow the Union's motion in part. The order of the motions judge is set aside and an order is to go striking paragraphs 4 to 14 of the affidavit and requiring the City to file an amended factum without reference to those parts of the affidavit.
[19] In light of the fact that success on this motion was divided, there will be no costs for this motion or the motion before Macdonald J.
Lane J.
Swinton J.
M.G.J. Quigley J.
DATE: January , 2007