Court File and Parties

CITATION: Agbontaen-Moses v. Neighbourhood Link Support Services, 2023 ONSC 2576

DIVISIONAL COURT FILE NO.: 22-270

DATE: 20230502

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: RAPHAEL AGBONTAEN-MOSES, Applicant

AND:

NEIGHBOURHOOD LINK SUPPORT SERVICES and CANADIAN UNION OF PUBLIC EMPLOYEES AND ITS LOCAL 3202, Respondents

BEFORE: Matheson J.

COUNSEL: Eli Smolarcik, for the Applicant/Moving Party

Tommy Hong, for the Neighbourhood Link Support Services, Respondent

Devon Paul, for the Canadian Union of Public Employees and its Local 3202[^1]

HEARD: April 27, 2023, in Toronto (by videoconference)

ENDORSEMENT

[1] The Applicant moves to strike out the affidavit of Naomi Calla sworn October 7, 2022 (the Affidavit) delivered by the Neighbourhood Link Support Services (NLSS) in response to this application for judicial review. The Applicant submits that the Affidavit fails to fall within the narrow exceptions by which a party is permitted to supplement the Record of Proceedings.

[2] The underlying application for judicial review challenges the decision of Adjudicator Overend of the Human Rights Tribunal of Ontario (HRTO) dated February 7, 2017 and the related reconsideration decision dated April 14, 2022. These decisions of the HRTO relate to the Applicant’s complaint of discrimination against his then former employer, NLSS. Unfortunately, the HRTO does not routinely record its hearings. The absence of a recording is the reason for the main issue on this motion.

[3] Prior to the HRTO hearing, the Applicant filed a request for an order for the production of documents and information (“Request for an Order”). The NLSS and the Union responded, and the HRTO notified the parties that the Request for an Order would be addressed by the Adjudicator at the onset of the hearing.

[4] After the hearing, the HRTO released the decision dismissing the complaint. The reasons do not refer to a ruling being made on the Request for an Order.

[5] The application for judicial review is largely based on the absence of a ruling on the Request for an Order. The Applicant says that there was no ruling, and if there had been one it would have had an impact on the outcome.

[6] The affiant is a lawyer who represented the NLSS at the HRTO hearing. The bulk of the Affidavit consists of the witness recounting, summarizing or characterizing documents that form part of the Record of Proceedings. Those documents are also appended as exhibits. The rest of the Affidavit consists of two paragraphs and one exhibit, which relate to the subject of whether or not the Adjudicator made a ruling on the Applicant’s Request for an Order at the hearing.

[7] There is no dispute about the principles that apply to the question of whether a party can supplement the Record of Proceedings. Generally, the evidence before the courts on judicial review is restricted to the record that was before the decision-maker. The court’s role is to review the legality of the tribunal’s decision when it was made. There are few exceptions to this general rule, summarized in 'Namgis First Nation v. Canada (Fisheries and Oceans), 2019 FCA 14, at para. 10. Sometimes the court will permit an affidavit in these circumstances:

(i) where the affidavit provides general background that is needed to understand the relevant issues, however, care 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;

(ii) where the evidence of an alleged defect cannot be found in the record, such as procedural defects that are not apparent on the record;

(iii) where the evidence highlights a complete lack of evidence before the decision-maker regarding a finding of fact; and,

(iv) where the evidence is relevant to the exercise of the court’s remedial discretion.

[8] The NLSS submits that the first three exceptions apply here. I disagree. The bulk of the Affidavit appends documents from the Record of Proceedings and discusses them. This does not fall within an exception. It is completely unnecessary. The documents are in the Record of Proceedings. The NLSS ought not use an affidavit to discuss them as if it is evidence. It may discuss them its factum on the application.

[9] The only issue is the remaining paragraphs 9 and 10 and Exhibit L. Paragraph 9 recounts what are described as oral rulings made in response to the Applicant’s Request for an Order. It appends as an exhibit both the notes of the affiant from the hearing, and a second set of notes described as notes of a NLSS human resources manager who attended the hearing.

[10] To the extent that the affiant is testifying about her recollection of a ruling made at the hearing, that evidence would fall within the above exception for procedural defects not apparent on the record. There is no recording or transcript. The respondent is faced with an application for judicial review based upon the absence of a ruling. It can put its evidence forward on whether or not there was a ruling. Paragraph 10 also relates to that issue.

[11] There are other objections to paragraph 9. That paragraph at least arguably could be an attempt to go beyond the affiant’s recollection and instead characterize the notes. It is also not clear that the Affidavit contains what is needed to put forward the notes, and for what purpose they are put forward.

[12] I therefore strike out the Affidavit with leave to permit both sides to deliver affidavit evidence on the narrow point of their recollection regarding whether or not a ruling was made regarding the Request for an Order, and if so, what the ruling was.

[13] If there are any disputes about the newly delivered evidence, and whether it complies with the above exception, they may be raised before the panel at the hearing of the application for judicial review.

[14] Given divided success, there shall be no order as to costs.

Matheson J.

Released: May 2, 2023

[^1]: Attending, but taking no position on the motion.