Executive Summary: Key Legal and Evidentiary Issues

• Admissibility and relevance of expert evidence in judicial review of labour disputes.

• Interpretation and application of section 107 of the Canada Labour Code regarding government intervention in legal strikes.

• Timeliness and procedural fairness in submitting late expert reports.

• Distinction between legal and factual questions reserved for the court versus expert opinion.

• Influence of international labour standards and ILO jurisprudence on Canadian law.

• Allocation of costs following an unsuccessful procedural motion.

Facts of the case

The dispute arose when the Syndicat des débardeurs, SCFP, Section locale 375 du Syndicat canadien de la fonction publique, representing dockworkers, sought permission to file the affidavit and expert report of Professor Anthony James Giles in a judicial review proceeding. The union’s request came more than six months after its initial evidence had been submitted, and after it had previously opposed a motion by the Attorney General of Canada to refer the matter to special case management, arguing that such a referral was merely dilatory. Professor Giles, who is not a lawyer but has expertise in industrial relations and public administration, prepared a report addressing the federal labour policy on strikes, the legislative history and use of section 107 of the Canada Labour Code, and the relevance of international labour law, particularly the jurisprudence of the International Labour Organization (ILO).

Policy terms and legal framework

At the heart of the case was section 107 of the Canada Labour Code, which grants the federal government authority to intervene in legal strikes or lockouts by directing the Canadian Industrial Relations Board to end such actions and impose binding arbitration. The expert report sought to provide historical context for section 107, its legislative amendments, and its application prior to 2024. It also speculated on why the government had not previously used section 107 to end legal work stoppages and discussed the ILO’s position on the right to strike and the status of port workers under international conventions. The union argued that Professor Giles’s expertise was necessary to understand the broader context and implications of section 107, while the respondents challenged the admissibility, relevance, and timeliness of the report.

Court’s analysis

Justice Gagné, presiding over the Federal Court, applied the admissibility test for expert evidence from R v Mohan, which requires that such evidence be relevant, necessary, not subject to exclusionary rules, and provided by a properly qualified expert. The court found that the report was inadmissible, holding that it was partly irrelevant, unnecessary, and subject to exclusion. The judge emphasized that the interpretation and application of section 107, including its legislative history and the intent of Parliament, are matters for the court, not for expert witnesses. The report’s discussion of international labour law and public policy models was also deemed unnecessary, as these arguments could be made by counsel and did not require expert testimony. The court concluded that the proposed expert evidence did not meet the Mohan criteria and therefore could not be admitted.

Outcome and costs

The court rejected the union’s motion to admit the expert report, finding it failed the test for admissibility. As a result, the report could not be filed in support of the judicial review application. The court ordered costs in favor of the respondents, namely the Attorney General of Canada and the Association des employeurs maritimes.