Association of Professors of the University of Ottawa v. University of Ottawa

(Ontario) (Civil) (By Leave)




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Courts — Motion to strike affidavit tendered on judicial review — Motion dismissed, but affidavit struck on judicial review of that decision — Leave to appeal that decision — Whether the test for admissibility of affidavits is subject to conflict in the appellate courts — Whether Divisional Court erred in determining that there was evidence on which the arbitrator could have made certain factual findings — Whether the Divisional Court erred in determining that the motions judge had made an error of law or a palpable and overriding error — Whether the Divisional Court erred in determining that denying the possibility of filing an affidavit is not a denial of natural justice — Whether the Divisional Court erred in determining that the Association should not, in the circumstances of this case, be permitted to provide the Court with any affidavit in support of its application for judicial review.

Professor Rancourt was a tenured Professor at the University of Ottawa and a member of the Association of Professors of the University of Ottawa. The Association brought three grievances on his behalf. All three grievances were heard by a single arbitrator in hearings that spanned 28 dates over a two-year period. No transcript or record of the hearing was produced. The Arbitrator allowed the first grievance but denied the second and third. The Association sought judicial review and sought to file an affidavit made by its in-house legal counsel, Natasha Udell, in support. Ms. Udell had been present at the arbitration on the dates addressed in her affidavit, and she affirmed, inter alia, that the Arbitrator had relied on a report prepared by a student which was not admitted for the truth of its contents, but only to be used as an aide memoire for the Arbitrator, and had failed to comment upon and weigh certain evidence.

Before the judicial review was heard, the University brought a motion to strike the Udell affidavit. Scott J. dismissed the motion. The University sought to vary Scott J.’s order. A panel of three judges of the Divisional Court granted the motion, striking the Udell affidavit in its entirety. The Association sought leave to appeal to the Court of Appeal for Ontario, which was denied.