Executive Summary: Key Legal and Evidentiary Issues

• Motion dealt with the admission, outside normal timelines, of the affidavit of Wesley Lesosky in a judicial review challenging a ministerial directive under section 107 of the Canada Labour Code.

• The applicant union relied on evidence from a separate Air Canada–CUPE labour dispute to illustrate the impact of section 107 directives on the right to strike and to bargain collectively under section 2(d) of the Charter.

• The court held that the affidavit related to different parties, a different collective bargaining history, and a distinct labour dispute, and therefore did not form part of the proper factual foundation for this constitutional challenge.

• The court found that the affidavit did not fall within the constitutional exception to the general rule that evidence on judicial review is limited to what was before the decision maker.

• The court concluded that admitting the affidavit would open a procedural “can of worms” by requiring additional evidence and witnesses about the Air Canada–CUPE dispute, causing substantial and serious prejudice to the respondents.

• The applicant’s motion was dismissed, and costs were granted to both respondents, with no specific amount stated in the decision.

Facts and background of the case
The case concerns a motion brought by the International Longshore and Warehouse Union Ship and Dock Foremen, Local 514, which is certified to represent foremen and certain other employees employed by companies operating in ports in British Columbia. The union has filed an application for judicial review challenging a November 12, 2024 directive issued by the Minister of Labour and Seniors to the Canada Industrial Relations Board. Under that directive, the Minister instructed the Board to order the British Columbia Maritime Employers Association and all of its members, as well as all employees represented by the union, to resume and continue their operations and duties, to assist the parties in reaching a settlement of the outstanding terms of their collective agreement by imposing final binding arbitration, and to extend the term of the existing collective agreement until a new collective agreement is determined by an arbitrator pursuant to section 107 of the Canadian Labour Code, RSC 1985, c L-2. The union alleges that this directive is inconsistent with rights and values protected by the Canadian Charter of Rights and Freedoms because it had a disproportionate impact on the rights to strike and to bargain collectively protected under section 2(d) of the Charter.

The motion to admit the Lesosky affidavit
In the context of this judicial review, the union brought a motion under Rule 312 of the Federal Courts Rules for an order admitting the affidavit of Wesley Lesosky after the deadline for service of affidavits, which in this matter was May 21, 2025. Mr. Lesosky is the President of the Air Canada Component of the Canadian Union of Public Employees, the exclusive bargaining agent for 10,517 flight attendants and service directors at Air Canada and Air Canada Rouge. CUPE has filed a similar application for judicial review (file T-3029-25) challenging a directive under section 107 made in a labour dispute between Air Canada and its flight attendants during the summer of 2025. The Lesosky affidavit describes events that occurred after the affidavit deadline in this case, including Air Canada’s August 12, 2025 declaration of an impasse and request to the Minister to apply section 107, the initiation of a strike by the union and a lockout by Air Canada on August 16, 2025, the Minister’s direction that same day to resume operations and impose final binding arbitration, the union’s August 17, 2025 bulletin advising members not to return to work until a tentative agreement could be voted on, Air Canada’s approach to return to the bargaining table on August 18, 2025, the CEO’s statement that he thought the Minister’s section 107 directive would be enforced, and the parties’ conclusion of a tentative agreement on August 19, 2025 which ended the strike and lockout. The union characterized this testimony as concrete evidence of the impact of the Minister’s use of section 107 on the right to strike and the right to bargain collectively in a similar private sector labour dispute.

The court’s test for late evidence and the constitutional exception
The court identified the sole issue as whether the Lesosky affidavit met the test for admission outside the regular timeline. It noted that an applicant seeking to file additional affidavits must satisfy two preliminary requirements: the evidence must be relevant to an issue properly before the court, and it must be admissible on an application for judicial review. If those requirements are met, the court then considers whether it is in the interests of justice to exercise its discretion to admit the evidence by weighing factors that include whether the evidence was or could have been available with due diligence at the time the original affidavits were filed, whether the evidence will assist the court in the sense that it is relevant and sufficiently probative to affect the result, and whether the evidence will cause substantial or serious prejudice to the other party. The union argued that the affidavit related directly to the constitutional issue in this case—the impact of a section 107 directive on Charter-protected rights—and that it fell within the constitutional exception that allows additional evidence so the court can have a proper factual foundation for deciding constitutional questions.

Why the court rejected the affidavit
The court disagreed with the union and declined to admit the affidavit. It first held that the affidavit concerned different parties, with a different collective bargaining history, involved in an entirely different labour dispute. The court noted that the respondents’ expert, Professor Chaykowski, did not conclude that imposing interest arbitration could never have a chilling or narcotic effect on private sector parties, but instead examined the specific bargaining history of the parties in this case to conclude that it did not have such an effect. The court also accepted the Association’s position that important context was missing from the affidavit, including prior rounds of negotiation and the detailed bargaining positions in August that led to the breakdown in talks, the issuance of strike and lockout notices, and the Minister’s intervention. The court found that the constitutional exception did not apply because the factual foundation for the union’s Charter challenge is its own labour dispute with the British Columbia Maritime Employers Association and the impact of the Minister’s intervention on the union and its members, not the factual background of other disputes. It further observed that admitting the affidavit would amount to a procedural “opening of a can of worms,” as it would necessitate additional information and fact witnesses relating to the Air Canada–CUPE dispute, involving individuals not currently part of this application and dealing with sensitive information. In the court’s view, this would impose an undue burden on the respondents and create an imbalance between the parties.

Outcome of the motion and consequences for the parties
The court concluded that the Lesosky affidavit was not relevant to the issues before it and was inadmissible because it did not fall under any exception to the general rule preventing parties on judicial review from filing evidence that was not before the decision maker. The court also held that admitting the affidavit would cause significant prejudice to both respondents and would unnecessarily expand the scope and delay of the proceedings. As a result, the court dismissed the applicant’s motion. In its formal order, the court stated that the applicant’s motion is dismissed and that costs are granted to both respondents, the British Columbia Maritime Employers Association and the Attorney General of Canada, without specifying any monetary amount.