Judicial Review - Evidence - Federal. Tazehkand v. Bank of Canada
In Tazehkand v. Bank of Canada (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR of a CHRC decision dismissing a complaint by the appellant "alleging that he had been the victim of discrimination based on his race and his national or ethnic origin", here in a Bank of Canada hiring decision.
In these quotes the court considered an issue that redounds in both administrative fairness law regarding limiting evidence - and JR law regarding fresh evidence and the admissible 'record'. The Federal Court (below) held that a Privacy Commissioner's report (regarding emails exchanged between the parties) that - due to it's late submission (not the fault of the complainant) - was not considered in the investigator's report, could not be considered for the JR on standard JR 'record' doctrine that only material before the tribunal at the time of decision was admissible:
 Dr. Tazehkand sought to file a report from the Office of the Privacy Commissioner in support of his application for judicial review. This report related to his attempt to obtain information from the Bank regarding his job application. Dr. Tazehkand had initially received just three emails from the Bank in response to his request for information under the Privacy Act, R.S.C., 1985 c. P-21. He was, however, party to more than a dozen emails between him and Bank representatives. This led Dr. Tazehkand to file a complaint with the Privacy Commissioner, which ultimately resulted in the Bank releasing nearly 150 pages of redacted internal emails.. Mackie v. Teamsters Canada Rail Conference
 Dr. Tazehkand mentioned his Privacy Act complaint in the submissions that he provided to the Commission in response to the investigation report, where he referred to “ongoing proceedings in the Office of the Privacy Commissioner of Canada … directly related to this complaint”. Dr. Tazehkand then briefly summarized the status of those proceedings. At no time, however, did he ask that the Commission delay making its decision with respect to his human rights complaint until the Privacy Act process was completed. The Commission thus cannot be faulted for dealing with Dr. Tazehkand’s human rights complaint when it did, and he was not denied procedural fairness in this regard.
 It was in relation to this last matter that Dr. Tazehkand argues that the Federal Court erred in excluding the Privacy Commissioner’s Report. According to Dr. Tazehkand, the Federal Court should have admitted the Report as it illustrated the Bank’s poor conduct towards him, and proves that the Bank forced him to go to the Privacy Commissioner to get information regarding his job application, rather than just giving him the information he sought. The Report also shows that the Privacy Commissioner sided with him regarding the Bank’s conduct.
 Dealing with this last issue first, Dr. Tazehkand has not persuaded me that the Federal Court erred in excluding the Report of the Privacy Commissioner.
 The Privacy Commissioner’s Report was released shortly after the Commission dismissed Dr. Tazehkand’s human rights complaint. As a result, it had not been before either the investigator or the Commission when they dealt with Dr. Tazehkand’s complaint. Dr. Tazehkand nevertheless included the Report in his Applicant’s Record in the Federal Court, which led to an objection from the Bank as to its admissibility.
 In refusing to admit the Report, the Federal Court observed that, subject to limited exceptions, judicial review is ordinarily to be conducted based on the record that was before the administrative decision maker. The Federal Court found that Privacy Commissioner’s Report did not come within any of the recognized exceptions identified in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22.
 Dr. Tazehkand has not identified a reviewable error in the Federal Court’s decision to exclude the document, which relates to a different proceeding under a different statute to that under consideration in this appeal.
In Mackie v. Teamsters Canada Rail Conference (Fed CA, 2022) the Federal Court of Appeal considered a motion to strike evidence in a JR application under the Keeprite principles, and exceptions thereto [Keeprite is not mentioned]:
 The respondent correctly cites authorities for the general principle that evidence that was not before a tribunal should not be considered in judicial review of its decision. This Court described the principle as follows in the context of a judicial review of a decision of the Copyright Board in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297 (Access Copyright):. Andrews v. Public Service Alliance of Canada
 Now before the Court is an application for judicial review from this decision on the merits. In such proceedings, this Court has only limited powers under the Federal Courts Act [R.S.C. 1985, c. F-7] to review the Copyright Board’s decision. This Court can only review the overall legality of what the Board has done, not delve into or re-decide the merits of what the Board has done.....
 Because of this demarcation of roles between this Court and the Copyright Board, this Court cannot allow itself to become a forum for fact-finding on the merits of the matter. Accordingly, as a general rule, the evidentiary record before this Court on judicial review is restricted to the evidentiary record that was before the Board. In other words, evidence that was not before the Board and that goes to the merits of the matter before the Board is not admissible in an application for judicial review in this Court. As was said by this Court in Gitxsan Treaty Society v. Hospital Employees’ Union, 1999 CanLII 7628 (FCA),  1 F.C. 135 at pages 144-45 (C.A.), “[t]he essential purpose of judicial review is the review of decisions, not the determination, by trial de novo, of questions that were not adequately canvassed in evidence at the tribunal or trial court.” See also Kallies v. Canada, 2001 FCA 376 at paragraph 3; Bekker v. Canada, 2004 FCA 186 at paragraph 11.
 The respondent acknowledges that there are exceptions to this general principle, but argues that none applies in this case. The exceptions were discussed in Access Copyright at paragraph 20 and in Sharma v. Canada (Attorney General), 2018 FCA 48, 288 A.C.W.S. (3d) 790 at paragraph 8:
... New evidence may be admitted where (1) it provides general background in circumstances where that information might assist in understanding the issues relevant to the judicial review but does not add new evidence on the merits (2) it highlights the complete absence of evidence before the administrative decision-maker on a particular finding, or (3) it brings to the attention of the judicial review court defects that cannot be found in the evidentiary record of the administrative decision-maker: Access Copyright at para. 20; Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128; Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 116. As this Court explained in Access Copyright at paragraph 20, “[i]n fact, many of these exceptions tend to facilitate or advance the role of the judicial review court without offending the role of the administrative decision-maker”.
In Andrews v. Public Service Alliance of Canada (Fed CA, 2022) the Federal Court of Appeal considered the admissibility of evidence in a first instance federal judicial review, starting with the rule that only the record below is admissible, exceptions to that rule and fresh evidence:
 The applicant argues that her affidavit and its numerous exhibits should be admitted by this Court as fresh evidence, even if most of the exhibits were not before the Board. She concedes that fresh evidence is generally inadmissible in the context of an application for judicial review, but contends that exhibits 1 to 33 and 35 to 39 fit within the general background information exception to this rule. In her view, the impugned exhibits are non-argumentative and will assist this Court’s understanding of the relevant circumstances and nature of the case in a factually complex matter. Striking them would prevent the Court from understanding the entirety of the matter. Moreover, the applicant argued that no prejudice to the respondent would arise from accepting these exhibits because the respondent has copies of many of them, and some were alluded to by the respondent in their response filed with the Board.
 It is beyond dispute that, in principle, the only evidence that can be considered in a judicial review application is the evidence that was before the decision maker: see, for example, Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297 at paras. 18-20 [Access Copyright]; Connolly v. Canada (Attorney General), 2014 FCA 294, 466 N.R. 44 at paras. 7-8; Bernard v. Canada Revenue Agency, 2015 FCA 263, 261 A.C.W.S. (3d) 441 at paras. 13-22, 29-36 [Bernard]. This principle derives from the role of a reviewing court, which is not to make findings of fact or to determine matters on the merits, but rather to examine the reasonableness of the administrative decision maker’s decision. For a reviewing court to accept fresh evidence on judicial review would be tantamount to performing a de novo analysis of the evidence itself.
 There are three established exceptions to this rule that align with this Court’s role as a reviewer, one of which is known as the "“general background”" exception upon which the applicant relies in her submissions. Under that exception, a party can file an affidavit providing fresh information in circumstances where the information might assist the reviewing court to better understand the relevant issues: Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171 at paras. 44-46; Sharma v. Canada (Attorney General), 2018 FCA 48, 288 A.C.W.S. (3d) 790 at para. 8 [Sharma]. The general background information exception is limited to non-argumentative statements or summaries of the evidence which were before the merits-decider; in no circumstances should it introduce new information that goes to the merits of the case: Bernard at para. 23.
 In the case at bar, the evidence that was before the Board is easily identifiable since the decision was made on the basis of the applicant’s initial complaint, the Union’s submissions in response, and the applicant’s reply. Had the applicant wished to file the numerous exhibits that she appended to her affidavit and filed with this Court, she could have done so before the Board. Even though some of the information contained in those exhibits was before the administrative decision maker, the documents themselves were not before the Board when it made its decision. Moreover, the impugned exhibits are not mere summaries of the evidence that was before the Board, nor do they truly qualify as general background information. To the contrary, the information contained in these documents goes directly to the merits of the case and the applicant relies on them to challenge the Board’s findings of fact.
 Whether the affidavit and the impugned exhibits would prejudice the respondent or cause unnecessary interruptions are considerations largely irrelevant to the issue before us. This Court’s jurisprudence is to the effect that the key consideration when determining the admissibility of fresh evidence on judicial review is the court’s limited role in fulfilling this function: Bernard at paras. 14-18; Access Copyright at paras. 17-19; Sharma at para. 8. In this case, admitting nearly 40 documents – which were available at the time of the Board’s decision and were not put before it – clearly conflicts with the Court’s role on judicial review.
 Moreover, I am not convinced that none of the exhibits are prejudicial to the respondent. For example, the applicant claims that the Union was notified of her termination on July 7, 2020, as a result of being copied on a letter that she sent on that day to the Minister of Public Services and Procurement Canada. In that correspondence, she addressed two letters that she received from the Canada Pension Centre according to which she had left Fisheries and Oceans Canada in February 2020 and was no longer employed in the public service. As noted by the respondent, the applicant’s letter is ambiguous and does not clearly state that her employment had been terminated; had this letter been filed with the Board, the Union could have made representations in that respect.
 Finally, the applicant relied on the fresh evidence that she seeks to introduce before this Court to make a number of new arguments. This Court cannot consider these new arguments because its role is strictly limited when performing a judicial review as noted above. For example, she alleges in her written representations that the Union "“correctly informed her of the proper grievance procedure, including the 25-day limit to file a grievance, in June 2019”" (Applicant’s Memorandum at para. 77), but goes on to say that the Union thereafter misdirected her as to her obligations and gave her inconsistent explanations (Applicant’s Memorandum at para. 78). The applicant also claims, on the basis of the affidavit and exhibits filed with this Court, that the Union was incompetent in neither responding nor following-up on her impending termination, an argument that she did not raise before the Board and that is nowhere to be found in her initial complaint.
 For all of the foregoing reasons, I am therefore of the view that exhibits 1 to 33 and 35 to 39 of the applicant’s affidavit should be struck from the record.