) ) Kognitive Marketing Inc. v. Singer, 2017 ONSC 7117

CITATION : Kognitive Marketing Inc. v. Director of Employment Standards 2017 ONSC 7219 DIVISIONAL COURT FILE NO.: 51/15 DATE: 20171128 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT J. Henderson, H. Pierce, J. Fregeau JJ.

BETWEEN: ) ) Kognitive Marketing Inc. and Singer Investments Limited and Shapiro Investments Inc. and Toskan Investments Limited Applicants – and – Director of Employment Standards and Ontario Labour Relations Board Respondents ) ) ) ) ) ) ) ) ) )) ))) David McNevin, for Kognitive Marketing, Singer Investments, Shapiro Investments and Toskan Investments Judy Chan, for Director of Employment Standards Leonard Marvy and Aaron Hart, for Ontario Labour Relations Board ) ) ) HEARD: November 28, 2017 j. HENDERSON j. [ 1 ] A preliminary issue to this judicial review application has arisen.

That issue relates to the admissibility before this court of two affidavits filed on behalf of the applicants. Both of the affiants gave evidence at the hearing before the Board. [ 2 ] The applicants submit that the affidavits do not constitute fresh evidence, but, rather, that the affidavits are admissible in accordance with the principles set out in the decision of Keeprite Workers Independent Union and Keeprite Products Ltd ., 1980 CanLII 1877 (ON CA) , [1980] O.J.

No. 3691. [ 3 ] It is the applicants’ position that the Board failed to consider material evidence that was before the Board and/or made findings that were not supported by the evidence. Therefore, the applicants submit that these two affidavits are admissible as an exception to the usual process. [ 4 ] Both of the respondents object to the admissibility of these affidavits. [ 5 ] The difficulty that confronts the panel today is that there is no motion by any of the parties with respect to the admissibility of these affidavits.

That is, the applicants have not sought leave to introduce this evidence and the respondents have not moved to strike this evidence. [ 6 ] The applicants submit that the affidavits are important to the applicants’ case.

However, if the affidavits are admissible, the respondents may wish to cross-examine on the affidavits and/or file responding material. [ 7 ] Unfortunately, none of the parties have flagged this issue for us because each of the parties seems to believe that the other party should have brought a motion. [ 8 ] The general rule is that, on an application for judicial review, affidavits containing material that was not before the decision maker at the first instance will not be allowed. We refer to the case of Sierra Club Canada v.

Ontario (Ministry of Natural Resources and Ministry of Transportation) , 2011 ONSC 4086 at para. 13 . [ 9 ] In our view, if the applicants wish to file evidence that was not before the Board, the onus is on the applicants to bring a motion for leave to do so in advance of the application. See Alghaithy v. Ottawa University , 2011 ONSC 5879 at para. 33 . [ 10 ] In our view, the judicial review application in this matter cannot proceed until the admissibility issue is resolved. If the

applicants are not prepared to proceed without these affidavits today, we will entertain a request to adjourn to permit the applicants to bring such a motion. “Justice J. Henderson” J. Henderson J. I agree “Justice H. Pierce” H. Pierce J. I agree “Justice J. Fregeau” J. Fregeau J. Date of Oral Reasons for Judgment: November 28, 2017 Date of Release: November 28, 2017 CITATION : Kognitive Marketing Inc. v. Director of Employment Standards 2017 ONSC 7117 DIVISIONAL COURT FILE NO.: 51/15 DATE: 20171128 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT J. Henderson, H. Pierce, J. Fregeau JJ.

BETWEEN: Kognitive Marketing Inc. and Singer Investments Limited and Shapiro Investments Inc. and Toskan Investments Limited Applicants – and – Director of Employment Standards and Ontario Labour Relations Board Respondents ORAL REASONS FOR JUDGMENT J. Henderson J.

Date of Oral Reasons for Judgment: November 28, 2017 Date of Release: November 28, 2017