CITATION: Ontario Shores Centre for Mental Health v. Ontario Public Service Employees Union, 2011 ONSC 358
DIVISIONAL COURT FILE NO.: 399/10
DATE: 20110118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ONTARIO SHORES CENTRE FOR MENTAL HEALTH
Applicant
(Responding Party)
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Respondents
(Moving Party)
Ian R. Dick, for the Applicant
David Wright, for the Respondent (Moving Party)
HEARD at Toronto: January 14, 2011
Endorsement
ENDORSEMENT: ferrier j.:
[1] The Ontario Public Service Employees Union ("the Union") seeks by this motion to strike out affidavit material filed by the applicant and made part of its application record in the pending application for judicial review.
[2] This matter originally arose from individual grievances filed by three employees of the Union and one policy grievance filed by the employer and proceeded to arbitration between the parties before a labour arbitrator.
[3] The parties proceeded by means of an agreed statement of facts and did not call viva voce evidence.
[4] Central to the issues before the arbitrator were part of the provisions of section 32.06 of the collective agreement. The relevant provisions are as follows:
Employees shall be entitled to four months written notice of permanent or long-term layoff.
After receipt of such written notice, affected employees will have a period of up to 14 calendar days to indicate to the employer their choice of options as outlined below.
[5] The issue before the arbitrator concerned whether or not the collective agreement allowed the employer to serve notices of layoff on employees who are on leave and, in particular, whether or not the employer could serve notices of layoff on employees on pregnancy leave, short term sick leave, or long-term sick leave.
[6] In dealing with the issue, the arbitrator considered the purpose of the entitlement to four months written notice of layoff. This was important to a consideration of the issue.
[7] The affidavit in question is deposed by David Ross, a lawyer with the Hicks Morley firm which represents the employer. Mr. Ross was in attendance throughout the hearing before the arbitrator.
[8] Paragraph 9 of his affidavit states as follows:
I have reviewed the award as well as my notes of the hearing and believe there are several statements in the award that do not reflect what actually transpired in the course of the hearing. These include:
• Contrary to the arbitrator’s statement (Award, page 22) that both the employer and OPSEU agreed that the purpose of the entitlement to four months written notice of layoff was to provide employees, “…with a period of time to consider their financial position, and to plan for their future”, the Centre expressly advised arbitrator Newman that the purpose of providing two weeks per year of severance upon the effective date of layoff, not the four months layoff notice, was to provide a period of time for workers to consider their financial position and plan their future;
• While the arbitrator was correct in finding (Award, page 22) that the Centre’s view was that "each individual, regardless of their status at the moment they received notice, has exactly the same period of time within which to consider their finances and plan their future, the "period of time" to which the Centre was referring was the 14-day period for a worker to make a decision on which option to pursue in the event of layoffs and not the four months notice of layoff;
• The Centre agreed at the hearing that the purpose of providing five months notice to OPSEU of a pending layoff was to allow OPSEU to examine alternative options to layoff. The Centre never agreed that the purpose of providing four months to employees was to allow employees to consider options to layoff.
[9] As correctly noted by counsel for OPSEU, it is established law that affidavit evidence to supplement the record on an application for judicial review is admissible only in highly limited circumstances, namely, where there is no evidence to support a finding of fact which is important to the decision, or to show a breach of natural justice. See: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2(3); Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (CA) at pp. 4, 5, 7 and 8 (QL); 142445 Ontario Ltd. (c.o.b. Utilities Kingston) and International Brotherhood of Electrical Workers, 2009 24643 (ON SCDC), [2009] O.J. No. 2011 (QL) at para. 16, 17, 18, 33 and 37.
[10] In my view, the finding of the arbitrator concerning what the employer agreed to or did not agree to in the discussion concerning the purpose of the entitlement to four months notice, can be characterized either as admissions of fact by the employer or as submissions made in the course of the proceeding by the employer.
[11] If they are characterized as admissions of fact, then there is no evidence upon which the arbitrator could make those factual findings, if the employer did not make such admissions. Mr. Ross swears that the employer did not make such admissions. This would bring the affidavit material within the exception in Keepright, supra and in Utilities Kingston, supra.
[12] If the findings are characterized as submissions made by the employer, and the employer did not makes such submissions, it would put the employer in an impossible position unless the affidavit were admitted. This is so because, in the absence of the affidavit material, the panel in all likelihood would not permit the employer to resile from important submissions recorded by the arbitrator nor would the panel likely permit the employer to advance submissions different from those recorded by the arbitrator.
[13] In short, without such affidavit evidence, the employer would be bound by admissions of fact that were not made, or by positions taken that were not taken. This clearly would produce a denial of natural justice.
[14] I am mindful of the practical considerations in permitting the affidavit to be part of the record. OPSEU may well wish to file a responding affidavit. Conceivably there may be cross examinations. I am mindful that this course should be avoided for all the reasons expressed in the case law.
[15] Nevertheless, I am of the view that this is one of those exceptional cases where the affidavit material should be permitted.
[16] That said, the notes appended to Mr. Ross’s affidavit are not necessary and are ordered struck from the material.
[17] Except in reference to the notes, the motion is dismissed with costs fixed at $2,500 plus H.S.T.
Ferrier J.
Released: January 18, 2011
CITATION: Ontario Shores Centre for Mental Health v. Ontario Public Service Employees Union, 2011 ONSC 358
DIVISIONAL COURT FILE NO.: 399/10
DATE: 20110118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ONTARIO SHORES CENTRE FOR MENTAL HEALTH
Applicant
(Responding Party)
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Respondents
(Moving Party)
ENDORSEMENT
Ferrier J.
Released: January 18, 2011