CITATION: Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644
DIVISIONAL COURT FILE NO.: 485/18 DATE: 20190613
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, M. Edwards and Favreau JJ.
B E T W E E N :
CANADIAN NATIONAL RAILWAY COMPANY
Applicant
– and –
TEAMSTERS CANADA RAIL CONFERENCE AND ANDREW SIMS Q.C.
Respondent
Richard J. Charney and Rika Sawatsky
for the Applicant
Michael Church and Brooke Auld
for the Respondent Teamsters Canada Rail Conference
No one appearing for the respondent Andrew Sims Q.C.
HEARD at Toronto: June 11, 2019
BY THE COURT:
Overview
[1] The applicant, Canadian National Railway Company, brings a motion pursuant to section 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to set aside the order of Conway J. dated October 19, 2018. In her decision, the motion judge dismissed the applicant's motion to file four affidavits in support of its application for judicial review.
[2] At the conclusion of the hearing, we dismissed the motion with reasons to follow. These are the reasons.
Background
[3] The underlying application for judicial review involves a grievance brought by the respondent, Teamsters Canada Rail Conference, on behalf of one of its member conductors who claims that the applicant violated the collective agreement by requiring him to couple the cars from his train to cars from another train when he arrived in the yard.
[4] The Arbitrator presiding over the arbitration is a member of the Canadian Railway Office of Arbitration & Dispute Resolution, which is an administrative body responsible for the resolution of railway disputes. The Canadian Railway Office of Arbitration & Dispute Resolution is governed by its own rules, which require the parties to agree in advance on a Joint Statement of Issues. The parties then present their positions on the joint issues in written briefs and through oral submissions.
[5] In this case, in a decision dated April 19, 2018, the Arbitrator upheld the grievance, finding in favour of the respondent.
[6] The applicant commenced an application for judicial review to the Divisional Court on August 9, 2018. The application raises the following grounds for reviewing the Arbitrator's decision:
a. The Arbitrator failed to have proper regard to a Circular prepared by the applicant;
b. The Arbitrator denied the applicant's right to procedural fairness by ignoring the applicant's oral submissions regarding past practice; and
c. The Arbitrator deprived the applicant of its right to natural justice by failing to provide reasons on the relevance of the applicant's Circular.
[7] On October 19, 2018, the applicant brought a motion before the motion judge for leave to file four affidavits sworn by executives employed by the applicant who attended the arbitration. The motion judge dismissed the motion, finding that the applicant's proposed evidence did not meet the exceptional circumstances for the admission of affidavit evidence on an application for judicial review. Specifically, she found that the proposed evidence went "well beyond" the exceptions for admission of affidavit evidence on an application for judicial review, and that the affidavits amounted to an attempt to place additional evidence and arguments before the Divisional Court. She further found that admitting the proposed affidavits would not be of assistance to the panel on the application because doing so would give rise to "dueling affidavits, cross-examination and a lack of focus". Finally, the motion judge did grant leave to the applicant to file one affidavit consisting of a neutral, non-argumentative and non-repetitive description of the record, attaching loose exhibits and the award.
The Court's jurisdiction and standard of review
[8] A panel of the Divisional Court has the authority to hear a motion to set aside the order of a single judge of the Court pursuant to section 21(5) of the Courts of Justice Act.
[9] The panel does not hear a motion to set aside de novo. Rather, the standard of review applicable on a motion brought pursuant to section 21(5) of the Courts of Justice Act is correctness on a question of law and a palpable and overriding error with respect to an error of fact: The Law Society of Upper Canada v. Piersanti, 2018 ONSC 640 (Div. Ct.), at para. 9.
Applicable legal principles
[10] Case law from the Court of Appeal for Ontario and this Court has established that, on an application for judicial review, affidavit evidence should only be admitted in the following limited circumstances:
a. To show the absence of evidence on an essential point; or
b. To disclose a breach of natural justice that cannot be proven by a mere reference to the record.
See Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (ONCA), at paras. 20, 26-27; and 142445 Ontario Ltd. v. IBEW, Local 636, 2009 24643 (ON SCDC), [2009] O.J. 2011 (Div. Ct.), at para. 18.
[11] Affidavit evidence may also be admitted to provide general background that might assist the court in understanding the underlying issues. However, as held in Assn. of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22 (Fed. C.A.), at para. 20"[c]are must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider".
[12] In 142445 Ontario Ltd, at paras. 31-33, this Court explained the policy reasons for limiting affidavit evidence on an application for judicial review:
31 One of the purposes of administrative tribunals is to provide an expeditious and inexpensive method of settling disputes. Often, these proceedings are much less formal than judicial proceedings. In keeping with this objective, a number of tribunals do not transcribe their proceedings - for example, the Ontario Labour Relations Board, the Human Rights Tribunal of Ontario and labour arbitrators under the Labour Relations Act.
32 If extensive affidavits can be filed on applications for judicial review in order to permit parties to challenge findings of fact before such tribunals, there would be a significant incentive for parties to seek judicial review since they could then attempt to reframe the evidence that was before the arbitrator. As a result, the process of judicial review is likely to be more prolonged and more costly.
33 Moreover, there may be real difficulties in trying to recreate the evidence before the tribunal, where the parties have conflicting views as to what has been said. Where there is a dispute about the evidence, the reviewing court will be put in the unfortunate position of trying to determine what the evidence was before the tribunal in order that it can then decide whether the decision was unreasonable. Such a process is unfair to the administrative tribunal and undermines its role as a fact finder in a specialized area of expertise.
[13] Finally, in Sierra Club Canada v. Ontario, 2011 ONSC 4086 (Div. Ct.), at paras. 7-9, this Court held that it is appropriate for the Court to determine the admissibility of affidavit evidence in advance of an application for judicial review where possible to ensure that the record on the application is defined in advance of the hearing on the merits.
Analysis
[14] The applicant argues that the motion judge made a number of errors of fact and law when she dismissed the motion to admit the four proposed affidavits. The specific errors identified by the applicant in its factum and during argument are as follows:
a. The motion judge made a palpable and overriding error of fact in finding that "the parties also presented loose exhibits and orally highlighted their evidence and argument", which the applicant says ignores its evidence that there was extensive "past practice" argument at the hearing that does not form part of the written record;
b. The motion judge made a palpable and overriding error of fact in finding that CN's past practice "was not included by CN in its written submission";
c. The motion judge made a palpable and overriding error of fact in finding that "CN's past practice […] is covered in the past jurisprudence";
d. The motion judge made a palpable and overriding error of fact in finding that "the terminology is already contained in the record";
e. The motion judge made an error of law in denying the motion on the basis that "the issue of the Circular was in the record";
f. The motion judge made an error of law in finding that the affidavits "simply recite what was said to the Arbitrator";
g. The motion judge made an error of law in failing to consider whether the affidavits addressed a breach of natural justice;
h. The motion judge made an error of law by considering the potential for dueling affidavits; and
i. The motion judge made an error of law by adopting an unduly restrictive approach to the admissibility of affidavit evidence on an application for judicial review.
[15] We do not agree that the motion judge made any reviewable errors. We note that many of the errors identified by the applicant as errors of law are really errors of fact. For example, the issue of whether the Circular was in the record is a question of fact and not of law.
[16] In any event, we do not see any palpable and overriding errors of fact or errors of law in the motion judge's decision. Ultimately, the applicant's primary complaint is that the Arbitrator's reasons do not address some of the arguments it claims were made at the arbitration. The adequacy of reasons is not a matter of procedural fairness but rather an issue that may go to the reasonableness of the decision: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62. Affidavits are certainly not required to argue that the Arbitrator's reasons are insufficient.
[17] It is noteworthy that each of the affidavits the applicant seeks to file contains what appears to be a detailed account of what was said during the oral submissions before the Arbitrator. They go into detail about specific submissions and the exchange of questions and answers with the Arbitrator. It is hard to see how the content of these affidavits could possibly fit within the narrow exceptions for admitting affidavit evidence on an application for judicial review. They do not serve to demonstrate the absence of evidence on an essential finding by the Arbitrator or a breach of natural justice that cannot be proven by reference to the record. Ultimately, we agree with the motion judge's conclusion that the affidavits appear to be an impermissible attempt to supplement the record with additional arguments and evidence. The evidence sought to be adduced is precisely the type of evidence this Court cautioned against at para. 33 in 142445 Ontario Ltd. and that the Federal Court of Appeal cautioned against at para. 20 in Universities and Colleges of Canada.
Conclusion
[18] Accordingly, the motion is dismissed.
[19] As agreed by the parties, the respondent is entitled to costs in the amount of $5,000 all inclusive.
[20] Also, as agreed by the parties, the applicant's deadline for perfecting its application for judicial review is extended to September 30, 2019.
BACKHOUSE J.
M. EDWARDS J.
FAVREAU J.
RELEASED:
CITATION: Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644
DIVISIONAL COURT FILE NO.: 485/18 DATE: 20190613
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, M. Edwards and Favreau JJ.
B E T W E E N :
CANADIAN NATIONAL RAILWAY COMPANY
Applicant
– and –
TEAMSTERS CANADA RAIL CONFERENCE AND ANDREW SIMS Q.C.
Respondent
REASONS FOR JUDGMENT
RELEASED: June 13, 2019