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Evidence - Privates Notes at a Hearing

. Ontario Secondary School Teachers' Federation v. Ontario

In Ontario Secondary School Teachers' Federation v. Ontario (Div Court, 2023) the Divisional Court considered OLRB labour JRs by the two teachers' unions (the EFTO and the OSSTF), here regarding the "duty to bargain in good faith pursuant to s. 17 of the Labour Relations Act". The OLRB dismissed the OSSTF application entirely - but allowed the EFTO application, though without any remedy.

In these quotes the court considers a JR fresh evidence motion by an applicant, here where the applicant argues for a new 'Keeprite' exception when the tribunal does not keep a formal transcript of it's evidence:
OSSTF Motion to Admit Fresh Evidence

[78] The decision of the OLRB to dismiss OSSTF’s application relied, among several other things, upon its finding that the Crown did not demand OSSTF to withdraw its grid movement grievances or do so on the basis of any misrepresentation. OSSTF claims that this finding is an error and that Blakely admitted during cross-examination that he asked for and received from OSSTF an undertaking to withdraw its grid delay grievances. The OLRB does not record or provide an official transcription of its proceedings, so this purported evidence is not in a certified official transcript of the proceedings.

[79] On this judicial review, OSSTF sought leave to file as fresh evidence the affidavit of Bob Fisher, an OSSTF staff representative who attended the hearing before the OLRB. The evidence sought to be admitted includes Fisher’s recollection of the evidence given at the hearing as well as notes taken by him.

[80] OSSTF submits that Fisher’s evidence is necessary because of the OLRB’s finding that the Crown did not require the withdrawal of the grid delay grievances in its negotiations with OSSTF. OSSTF argues that this conclusion was arrived at without evidence and was made despite a contrary admission from Blakely.

[81] Alternatively, OSSTF argues that the fresh evidence is necessary to evaluate the extent to which this alleged factual error had an impact upon the reasoning of the OLRB. It also argues that the fresh evidence is necessary to show that the OLRB failed to account for Blakely’s alleged admission in the decision, and that a denial of natural justice occurred as a result.

[82] In the further alternative, OSSTF submits that a new exception to the general rule against admitting such evidence should be made where an administrative body creates no record or transcript of viva voce evidence, and the underlying decision does not account for what OSSTF describes as a “critical evidentiary conflict”.

[83] The Crown opposes the motion to admit fresh evidence on the basis that none of the established exceptions apply to allow its admission, and there is no basis to establish a new exception. Hearing notes have consistently been rejected for not satisfying any of the exceptions.

[84] Further, OSSTF had a full opportunity to raise the issue of whether the Crown required an undertaking, to submit specific evidence to that effect before the OLRB, and to make final argument on the point with reference to the evidence said to be in support of its position in that regard. The OSSTF did not do so.

[85] Additionally, the Crown argues that OSSTF’s submission conflates the applicable standard of reasonableness in this instance with procedural fairness. There was no conflict on the facts. Even if there were such a conflict, a decision maker is not required to make explicit findings of every element in the facts that lead to its conclusion.

[86] The Crown also submits there is no credible basis to create a new exception to admit hearing notes taken by a party’s representative. This is an attempt to unduly expand the exceptions. Hearing notes taken by a representative are inherently inappropriate to admit as evidence because they raise concerns of reliability, accuracy, independence and objectivity, especially when taken by one of the parties (See: Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.), leave to appeal to S.C.C. refused, 35 N.R. 85 n).

[87] The OLRB also submitted that the affidavit evidence should not be admitted because it does not satisfy the established requirements, nor does it fall into the Keeprite exception where it is being tendered to demonstrate an absence of evidence.

[88] The OLRB submits that an argument that an administrative body did not take evidence into account is an issue of reasonableness, and not natural justice. It notes that OSSTF submitted to the OLRB at the hearing a summary of evidence, including hearing notes, which are different than what the OSSTF seeks to have admitted as fresh evidence on this judicial review. It points to the potential this raises for an unsuitable comparison of the notes of all parties as well as those of the adjudicator were such evidence admitted.

[89] The motion is characterized by the Respondents as a mere attempt to seek a re-weighing of the evidence that was before the OLRB by this court in order to secure a more favourable result.

[90] For the reasons advanced by the Crown and the OLRB, I am of the view that the “fresh” evidence sought to be tendered by OSSTF is not fresh, does not meet the test for admission nor should it qualify for the establishment of a new exception to the test for the admission of fresh evidence.

[91] I agree with both Respondents that this attempt by OSSTF to either augment or impugn the record is actually made in to support an argument that the OLRB ought to have made different findings of fact, and ought to have weighed the evidence differently. It must be remembered that this is an application for judicial review in which the basic standard of review is one of reasonableness. Even an appeal is not a forum that allows an opportunity simply to re-argue the case in the hope of securing a different outcome.

[92] Accordingly, the motion to admit fresh evidence is dismissed.
. Davidson v. Canada (Attorney General)

In Davidson v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered the interesting issue of when notes, taken by the party and his wife, were admissible on whether he was treated with procedural unfairness at the tribunal below:
[18] Further on the question of evidence, in support of his application before this Court, Mr. Davidson filed his affidavit attaching as an exhibit a copy of the notes taken by his wife and him during the two-day hearing before the Board. He relied heavily on these notes while advancing his written and oral submissions. Counsel for the respondent did not object to the filing of these notes and did not object to Mr. Davidson referencing them in his written materials or during his oral submissions.

[19] While it is unfortunate that a transcript of this hearing is not available and while it is understandable that Mr. Davidson wishes to offer the best evidence he can regarding the oral testimony provided during the hearing before the Board, nonetheless, this Court may not rely on notes taken by the applicant or his wife. Unlike certain tribunals, such as in the context of citizenship and immigration matters where the recording of proceedings is routine, hearings before the Board are not recorded.

[20] In my view, the notes taken during the hearing cannot be described as new evidence, and therefore, I need not be concerned with their admissibility under the exceptions to the admissibility of new evidence set out in paragraph 20 of this Court’s decision in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright) 2012 FCA 22, 428 N.R. 297.

[21] Further, the notes from Mr. Davidson’s spouse are being used to challenge findings of fact and invite this Court to re-hear and re-weigh the evidence in order for us to arrive at our own conclusions as to the merits. That is not our role. We must therefore disregard these notes.
. Moore v. The Estate of Lou Ferro et al

In Moore v. The Estate of Lou Ferro et al (Div Ct, 2022) the Divisional Court considered the admissibility of private notes made at a hearing (they were not admitted):
[62] More specifically, with respect to the introduction of evidence of an attendee’s notes of a proceeding, in 142445 Ontario Limited (Utilities Kingston) v. The International Brotherhood of Electrical Workers (2009), 2009 CanLII 24643 (ON SCDC), 251 O.A.C. 62 (Div. Ct.), Swinton J. stated the following, at paras. 32 and 33:
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.
[63] In effect, Mr. Moore is attempting to present as fresh evidence notes taken by an observer of the HRTO proceedings. That is not a proper circumstance for the court to admit fresh evidence. For that reason, it was not permitted.


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Last modified: 21-12-23
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