The Halifax Regional Centre for Education (HRCE) sought to introduce an affidavit from a lawyer, Mallory Adams, to supplement the record on judicial review.
HRCE challenged a Nova Scotia Labour Board decision allowing the Nova Scotia Union of Public and Private Employees (NSUPE) to create a separate bargaining unit for trades and maintenance workers.
The Labour Board granted the application to split the bargaining unit, but HRCE argued the Board’s decision was unreasonable, misapplied legal tests, and lacked supporting evidence.
The Union opposed the affidavit, arguing that the judicial review should be based on the existing record.
The Court ruled that:
Affidavits generally cannot supplement the record on judicial review.
Exceptions exist (e.g., proving procedural unfairness, filling gaps in the record, or showing an absence of evidence).
Parts of Adams’ affidavit (paragraphs 7 and 14) were admissible to show the Board ignored agreed facts.
The remainder of the affidavit was inadmissible as it amounted to reinterpreting evidence rather than proving an absence of evidence.
The Union’s request to introduce its own affidavit was denied but could be pursued through a separate motion.
No monetary award specified.
Successful Party:
The decision does not resolve the judicial review itself but only the admissibility of affidavit evidence.
HRCE (the employer) partially succeeded, as two paragraphs of their affidavit (7 and 14) were admitted.
NSUPE (the union) partially succeeded by having most of the affidavit excluded.
