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Judicial Review - Evidence - Introduction

Some Necessary Perspective on JR Law

This topic is about the evidence to be considered in a judicial review (JR). However, this area of law is tricky due to the fact that while most JRs involve tribunal hearings - some don't, and that 'some don't' reality skews the overall picture of what JR evidence law is.

If you refer back to s.3 ['Remedies'] you will recall that there are numerous different categories of JR cases. One category, called "statutory power of decisions" (SPD), contains all tribunal hearings - but, not all SPD cases involve tribunal hearings. Some SPD 'decisions' are not made by a tribunal hearing. Tribunal hearing are a sub-set of SPD JR cases that I will label 'hearing SPDs'.

That's not the only confusion that arises with JRs. Referring back to s.3 ['Remedies'] again you will see that SPDs are themselves a further sub-set of 'statutory power' (SP) injunction and declaration cases [JRPA 2(1)2], and - even further - that SP cases are separate from that whole range of 'prerogative writ' [JRPA 2(1)1] cases out there.

So in a real sense 'hearing SPD' cases - which form the vast bulk of JR cases out there by number - are a sub-sub-sub-set of the conceivable categories of JR cases out there. Given this, and the overwhelming number of 'hearing SPD' cases out there, it's not surprising that the case law is overwhelmingly skewed towards this limited category of JR case.

The Creation of an SPD-Hearing Evidence Record

Returning now to the present topic, that of JR evidence law, it's obvious that cases that involve a 'hearing' have a distinct evidentiary situation. Hearings are all about organizing and formally presenting evidence. In fact, the Statutory Powers Procedure Act (SPPA) - which uses essentially the same SPD definitions as the JRPA - requires [at s.20] that "(a) tribunal shall compile a record of any proceeding in which a hearing has been held which shall include, ..." all the standard documentary requirements that we have come to expect in modern Ontario administrative litigation practice, including documentary evidence and transcripts. In short, the law requires that evidence in hearings be scrupulouly organized - and maintained in an organized state, and that's called a 'record'. This makes the evidence-organization for a 'hearing SPD' far, far simpler than for any other form of JR.

Obtaining the SPD-Hearing Record for Use at the JR

So far, so good - but now it gets confusing.

You would think that if Ontario law is going to the trouble of compelling it's tribunals to create and keep an articulated 'record' [SPPA 20], that requiring it's mandatory use by the parties at a JR of that hearing would be automatic - but that's not to be. JRPA s.10 reads:
Record to be filed in court
10 When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.
This provision has two implications for the use of records at a JR (and all JRs are held in a court). First, it's only when an applicant decides to serve their 'Notice of Application for JR' on the tribunal ['the person making the decision'] that any duty to file the record on anyone arises, and second, when that happens, there is no duty placed upon the tribunal to served the record on the parties or anyone else - only on the court.

Parties normally want a copy of the record, but the Tribunal doesn't have to provide them with it - even if the applicant serve the Notice of Application on the tribunal. They do sometimes, but if the tribunal feels financially-stressed or just has a cranky policy, parties may face the need to attend the court in person to copy the record tediously at their own expense. In other scenarios, the party may get a call or a letter from Tribunal staff promising to serve them with a copy of the record, but only if they undertake to serve them with their JR application and related documents. In other cases, the tribunal may not even know that a JR has been commenced - it can get that disorganized.

The design behind this odd logistical arrangement is apparently to allow an applicant the choice of when they want the record before to court, as that is not always deemed necessary. It likely originated in pre-self-repper times when most JRs were conducted by counsel (lawyers) and this sort of thing was managed more gentily. Like most things about self-reppers the Ontario legislature prefers to ignore the fact that most people can't afford lawyers, something that any judge will tell you is out-of-touch with reality.

Now, the absence of Ontario law making the Tribunal an as-of-right party to the JR application (and thus requiring that applicants serve them with their Application as they serve the other parties), can trigger a range of confusing annoyances (at least), and a highly prejudicial element in the conduct of the proceeding (at most).
Note: Actually SPPA 20 [the 'record' creation duty] applies to court appeal cases as well, and other related law either allows a party to move before the court to compel the tribunal to forward all or part of it's SPPA 20 'record' to the court [RCP 61.09(2)], or - in a parent statute such as HIA 24(2) for example - to compel the whole record to be provided to the court by administrative act.
All Other JR Types (Other Than 'SPD-Hearing' Cases)

Remember from above, that SPD-Hearing JR cases are only a sub-sub-sub-category of all the conceivable JR types, but that the vast majority of JR case law revolves around this singular type. The other (non-hearing) JR categories can be simpler acts or omissions, can be involve of the old-style prerogative writ remedies, and also can be the non-SPD 'statutory powers' injunction and declaration remedies. In these cases there is no hearing 'record' to be had - so the Keeprite 'record only' principle won't work. But, due to the over-representation of hearing-SPD cases in the case law, the result has been an effective 'over-development' of this one type of case doctrine. This is particularly the case given the 'tidy and complete'-nature of the SPPA 20 evidence record requirement, and the absence of any similar statutory requirements regarding non-SPD-Hearing cases.

The net effect is to end up with very little case (and no statutory) doctrine on the evidence law dealing with these other types of cases. But, here's my read of how the law will develop.

The main extant evidence-JR line of cases follows from the Keeprite (Ont CA, 1980) case. With SPD JRs, the general rule is that only the evidence that was before the tribunal or body below, and that therefore is contained in the 'record' being passed up to the JR court, is admissible. So, for example, in Michalski v. McMaster University (Div Ct, 2022) the Divisional Court holds that:
[9] ... We agree that the evidentiary record on an application for judicial review must be restricted to the evidence that was before the original decision-maker, subject to certain narrow exceptions: Parent, also known as Murray v. OIPRD, 2022 ONSC 1308 (Div. Ct.), at para. 18. ...
Exceptions have been developing since the first Keeprite case, but - as I've been stressing - Keeprite is necessarily a 'hearing-SPD' case, so it suffers from not being applicable to the numerous other categories - because (repeat after me) only hearing-SPD cases have a record.

But Keeprite is doing quite well at developing JR evidence law in a progressive way, so - if you just delete the 'only the record' part of the Keeprite doctrine - it would be quite natural to sleeze in all the non-record 'exceptions' - and even the appeal 'fresh evidence'-Palmer doctrine - to apply to all the 'other' JR cases. In fact, given that no other JR cases have 'records', the argument for broadening access to other evidence is all the stronger.

Statutory Power Procedures Act (SPPA), s.20

Judicial Review Procedures Act (JRPA), s.10


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