Underlying judicial review involves ministerial direction for employees to resume operations
Canada’s Federal Court has found portions of a career union leader’s affidavit relating to a dispute between Canada Post Corporation and the Canadian Union of Postal Workers (CUPW) inadmissible for being impermissible opinions, legal arguments, or extrinsic evidence.
In Canadian Union of Postal Workers v. Canada (Attorney General), 2025 CanLII 122008 (FC), the labour minister issued a Dec. 13, 2024 direction in the course of the dispute. The direction under s. 107 of the Canada Labour Code, 1985, asked the Canada Industrial Relations Board (CIRB) to:
- Weigh Canada Post’s and CUPW’s likelihood of arriving at negotiated agreements by Dec. 31, 2024, in the circumstances
- Order Canada Post and its employees to resume operations and extend the existing collective agreements’ term until May 22, 2025, if the parties were unlikely to negotiate the agreements by Dec. 31, 2024
The CIRB found it unlikely that the parties would negotiate agreements by Dec. 31, 2024, in the circumstances. Thus, the CIRB ordered Canada Post and its employees to recommence operations pursuant to the minister’s direction.
Last Apr. 17, CUPW applied for a judicial review of the minister’s direction. It alleged that:
- The minister incorrectly and unreasonably interpreted s. 107 of the Labour Code
- The minister’s direction – including his interpretation and application of ss. 1, 2(d), 2(b), and 7 of the Canadian Charter of Rights and Freedoms and ss. 1(a), 1(d), 1(e) and 2(e) of the Canadian Bill of Rights – was incorrect and unreasonable
- The minister’s direction went beyond his jurisdiction under the Labour Code
On July 25, CUPW filed an affidavit from Geoff Bickerton, its research director from 1977–2023.
Supported by the federal attorney general, Canada Post moved for an order striking out 107 of 173 paragraphs and 41 out of 49 exhibits in the Bickerton affidavit. It specifically sought to strike the following portions:
- paragraphs 16–18, 23, 25–28, 30, 31, 34, 35, 38, 39, 41, 47, 49, 51, 52, 54–76, 78–81, 83–91, 93, 94, 98–104, 108, 109, 112, 114, 117–122, 124–150, 158, 163, and 169–172
- exhibits D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Z, AA, BB, CC, DD, EE, FF, GG, HH, LL, NN, OO, PP, QQ, RR, SS, TT, UU, VV, and WW
Canada Post alleged that portions of the Bickerton affidavit were inadmissible because they:
- contained unqualified and speculative lay opinion and argument
- made legal conclusions regarding the ultimate legal issues subject to judicial review
- included irrelevant and improper extrinsic evidence, including hearsay and evidence beyond Bickerton’s personal knowledge
CUPW countered that Bickerton was a participant expert, whose evidence did not amount to arguments on the ultimate issue.
Portions struck
The Federal Court struck the affidavit’s impugned portions from the record. The court determined that intervening at this stage and striking out the inadmissible evidence would serve the interests of justice.
First, the court ruled that Bickerton offered unqualified lay opinions and inadmissible arguments on the ultimate legal issue subject to judicial review, which was whether the minister justifiably interpreted and applied s. 107 under both the Labour Code and the Charter.
The court did not consider Bickerton a participant expert in the proceedings. The court noted that he could testify as an experienced fact witness within his area of experience as a career union leader.
The court held that Bickerton provided improper opinion evidence that went far beyond his qualifications. The court pointed out that legal arguments should only be present in the parties’ memoranda of fact and law.
Lastly, the court found that it should strike the rest of the impugned portions of the affidavit because they amounted to inadmissible extrinsic evidence, including hearsay and evidence beyond Bickerton’s knowledge, which were impermissible on judicial review.
