CITATION: City of Toronto v. CUPE Local 79 and Mathew Wilson, 2022 ONSC 6971

DIVISIONAL COURT FILE NO.: 363/22

DATE: 20221209

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: City of Toronto

Applicant (Responding Party)

AND:

Canadian Union of Public Employees, Local 79 and Mathew Wilson

Respondent (Moving Party)

BEFORE: O’Brien J.

COUNSEL: A. Esonwanne, for the Applicant

D. Wray and E. Carr, for the Respondent CUPE, Local 79

HEARD: December 8, 2022

ENDORSEMENT

Overview

[1] This motion is brought by the Canadian Union of Public Employees (“CUPE”) Local 79 seeking an order striking portions of an affidavit filed by the City of Toronto (“City”). The City filed the affidavit of Jasminder Janda, a City employee, in support of an application for judicial review challenging a labour arbitration award. Mr. Janda attended and took notes at the arbitration hearing.

Background

Labour Arbitration

[2] The labour arbitration arose in response to a grievance challenging the dismissal of the grievor, Michael Rushton. Mr. Rushton was a Municipal Standards Officer with 19 years of service for the City. Mr. Rushton was dismissed following an incident involving two members of the public on June 16, 2020, when restrictions were in place related to the COVID-19 pandemic. The two members of the public, Eva Amo-Mensah and Deborah Ampong (the “complainants”) were working out in Centennial Park. They identified as Black and were long-time residents of the City. They made the following allegations against Mr. Rushton. They said:

• He told them they could be shot for trespassing;

• He demanded to see their identification and not the identification of the two non-black soccer players in the same area; and

• He attempted to record the license plate of their vehicle.

[3] The complainants alleged Mr. Rushton’s treatment of them constituted discrimination on the basis of race.

[4] The City hired a third-party investigator to investigate the allegations. The investigator concluded the allegations of racism were established. As a result, the City terminated the grievor’s employment.

[5] In detailed reasons, the arbitrator concluded that Mr. Rushton’s conduct was not racially motivated. However, he found that the conduct did breach the City’s Public Service By-Law. He concluded that Mr. Rushton’s discharge should be substituted with a 30-day disciplinary suspension. The City was ordered to reinstate Mr. Rushton, without loss of seniority, and with compensation for lost wages.

Affidavit

[6] Mr. Janda’s affidavit is based on his recollection of the proceeding before the arbitrator, the notes he took during the proceeding, the City lawyer’s notes taken during the proceeding, and the hearing exhibits. In his affidavit, he more specifically provides evidence related to the following:

• Four videos admitted into evidence. Mr. Janda provides evidence concerning CUPE’s position on the admissibility of the evidence and both parties’ positions on other points related to the videos. Mr. Janda also provides details as to what occurred in each video, though the videos were exhibits at the hearing;

• Details of the evidence of Ms. Amo-Mensah;

• Details of the evidence of Ms. Ampong;

• Details of the evidence of the Municipal Licensing Officer, Trevor Quinn;

• Details of the evidence of Mr. Rushton;

• Exhibits admitted into evidence; and

• Details of the City’s closing submissions to the arbitrator.

Submissions of the Parties

[7] CUPE does not take issue with the inclusion of exhibits from the hearing. At the hearing of the motion, counsel also advised that CUPE did not object to para. 29 of Mr. Janda’s affidavit, which outlines some parts of the City’s closing submissions before the arbitrator. It objects to the other evidence provided by Mr. Janda. CUPE submits that the impugned portions of Mr. Janda’s affidavit do not fall within the limited circumstances in which affidavits are permitted to supplement the record on an application for judicial review.

[8] The City submits that the impugned portion of the affidavit should be admitted on the basis that this case constitutes the type of “exceptional circumstances” in which affidavit evidence should be permitted to augment the record on an application for judicial review.

[9] The City raises a secondary issue, which can be dealt with briefly. It submits that the admissibility of the affidavit should be left to the panel hearing the judicial review. While in some circumstances, a motion to strike affidavit evidence is directed to the panel hearing the judicial review, in this case, this matter was scheduled as a preliminary motion. Though it remains open to me to defer the determination of admissibility to the panel, it is appropriate in the circumstances of this case to make the decision at this motion. A determination now will allow CUPE to decide whether cross-examinations on the affidavit are necessary and to file responding evidence. There is also a benefit to having the record defined in advance of a hearing on the merits: Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644, at para. 13 (“Canadian National Railway”). The concern about defining the record is particularly applicable in this case, given that the affidavit of Mr. Janda summarizes substantial factual evidence. The City’s factum on the judicial review refers to this evidence in many paragraphs, such that if the panel were to strike the affidavit, or portions of it, the evidence would not be easily excisable from the argument.

[10] For the reasons that follow, the motion is allowed. The affidavit is struck. It may be reconstituted to include only para. 29 of the current affidavit and the exhibits that were filed at the hearing before the arbitrator.

Analysis

[11] As set out in Canadian Union of Public Employees, Local 5852 v. Scarborough Health Network, 2022 ONSC 604 (“Scarborough Health Network”), at para. 51, “[i]n most circumstances, the evidence before the court on judicial review is restricted to the record that was before the Arbitrator. It is only in exceptional circumstances that affidavit evidence is admissible to supplement the record on judicial review.” Affidavit evidence can be admitted either to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record: Scarborough Health Network, at para. 53, citing from 142445 Ontario Limited (Utilities Kingston) v. IBEW, Local 636 (Ontario Div. Ct.) (“Utilities Kingston”), at para. 18.

[12] Affidavit evidence may also be admitted to provide general background that might assist the court in understanding the underlying issues: Canadian National Railway Company, at para. 11.

[13] The City does not claim that the affidavit evidence in this case falls within the three recognized exceptions outlined above. It instead submits the circumstances in this case are sufficiently exceptional to justify the admissibility of affidavit evidence to supplement the record. It submits the arbitrator made an error in applying the test for discrimination under the Human Rights Code, which is quasi-constitutional legislation. It goes on to say that human rights legislation is the “last protection” of the most vulnerable members of our society, in this case referring to the two complainants, who were racialized members of the public dealing with a City representative.

[14] These submissions are not a basis for admitting the affidavit. While the allegations in this case are serious, the affidavit evidence falls squarely within the type of evidence that has been repeatedly rejected by this Court on an application for judicial review.

[15] In Moore v. The Estate of Lou Ferro, 2022 ONSC 1343 (“Moore”), the applicant brought an application for judicial review of a decision of the Human Rights Tribunal of Ontario. He sought to admit into evidence notes taken by his wife during the proceedings before the tribunal. This Court rejected the evidence. In doing so, at para. 62, it reproduced Swinton J.’s comments in the following passages from Utilities Kingston. These passages raise the specific problems with admitted evidence provided by attendees at a hearing (that do not fall within the recognized exceptions):

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 would 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.

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 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.

[16] Indeed, Moore more directly adjudicated a question of discrimination than did the current arbitration. It was an application before the HRTO alleging discrimination under the Ontario Human Rights Code, R.S.O. 1990, c. H.19. The current matter involved the grievance of a dismissal. Although the case at bar raises serious and important issues, the complainants’ rights were not being directly adjudicated.

[17] One of the primary pieces of evidence the City seeks to admit relates to whether Mr. Rushton asked the two teenage soccer players using the same park as the complainants for identification, as he did the two complainants. The arbitrator found that Mr. Rushton did ask the soccer players for identification. According to the City, Mr. Rushton testified at the hearing that he would request identification from individuals after introducing himself. He further admitted that he never introduced himself in this case. The arbitrator did not address Mr. Rushton’s alleged evidence that he did not introduce himself.

[18] This evidence does not fall within a recognized exception to supplement the record. It does not demonstrate an absence of evidence on an essential point. Rather, it is an attempt to add evidence that the arbitrator did not specifically mention. The arbitrator discussed in detail the issue of whether Mr. Rushton asked the teenagers for identification over more than a page of his reasons. In addition, as set out in the transcripts reproduced in the arbitrator’s reasons, the issue of identification arose in the videos admitted into evidence. Overall, the arbitrator’s reasons reveal that there were several sources of evidence on this point. The City is simply seeking to add an additional fact on this issue.

[19] Neither this piece of evidence, nor the affidavit as a whole, puts this case in a different category from the cases in which evidence of this type has been rejected. To admit this evidence would invite CUPE to submit an affidavit setting out its version of various points of evidence, leading to the problems identified by Swinton J. above.

[20] This case is not like Alghaithy v. Ottawa University, 2011 ONSC 5879, cited by the City. There, this Court admitted an affidavit that supplemented the record before the senate appeals committee at a university. Some of the affidavit evidence was admitted to “demonstrate a validly raised allegation of constitutional error.” That case did not involve the review of a decision of a labour arbitrator. In addition, the applicant became aware of most of the evidence the Court admitted only after the committee decision, even though the information had been in the possession of the respondent university.

[21] In this case, the City has not raised a valid constitutional error. While the Human Rights Code is a quasi-constitutional legislation, I do not see a basis to distinguish this case from other cases before arbitrators or the Human Rights Tribunal of Ontario. The jurisprudence is clear that unless the evidence falls within one of the recognized categories, and absent exceptional circumstances which do not exist here, the record before the arbitrator or tribunal at such a hearing cannot be supplemented by affidavit evidence.

Disposition and Costs

[22] Therefore, the motion is allowed. The affidavit of Mr. Janda is struck. The City has leave to file a reconstituted affidavit attaching exhibits that were admitted at the arbitration hearing and reproducing para. 29 of the current affidavit.

[23] I understand the judicial review is scheduled to be heard on February 28, 2023. In view of the need for the City to file revised materials, the schedule for the exchange of materials on the judicial review must be adjusted. The parties shall comply with the following schedule:

(1) By January 5, 2023, the City shall file its revised affidavit and factum;

(2) By January 31, 2023, CUPE shall file its responding material; and

[24] Pursuant to the agreement of the parties, the City shall pay CUPE costs of the motion in the amount of $3,500.00.

O’Brien J

Date: December 9, 2022