Rarotonga, 2010

Simon's Legal Resources

(Ontario)

Most Popular
Contracts / Torts / Evidence / Limitations / Tenant Plus / welfare (ontario works) / odsp / human rights / employment / consumer / E-Access
ADMINISTRATIVE LAW | SPPA / SMALL CLAIMS / CIVIL COURT / CIVIL APPEALS / JUDICIAL REVIEW

home / about / Little Friends Lefkada (Greece) / testimonials / Conditions of Use

Online Litigation Assessment
Intake

Associated Site
Canadian Animal Law

Judicial Review - Evidence - Keeprite Current (SPD)

Lately, the Keeprite standard for extra-record evidence to be admitted on a judicial review has expanded to even include the appeal law concept of 'fresh evidence'. In appeal law [see Evidence on Appeal] the case of Palmer v The Queen (SCC, 1979) has long-governed the admissibility of fresh evidence on a statutory appeal.

. Parent, also known as Murray v. OIPRD

In Parent, also known as Murray v. OIPRD (Div Ct, 2022) the Divisional Court considered fresh evidence in a judicial review context:
[18] In 30 Bay ORC Holdings v. Toronto, 2021 ONSC 251 (Div. Ct.) at para. 114, this court recently summarized the circumstances in which a court will admit additional evidence on an application for judicial review.
In general, the evidence on an application for judicial review is restricted to the evidence that was before the original decision-maker. There are, however, exceptions to this general rule. What have come to be known as the Keeprite principles govern new evidence on judicial review: Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.) These principles were most recently confirmed by this Court in Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.). There are three criteria:
(a) the materials ought to have been included in the record of proceedings (i.e., they are properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22);

(b) although the materials are not part of the record, they are properly added to the record because of one of the narrow exceptions to the principle that the record before the Divisional Court is the official record from the tribunal below. The usual examples of materials that may be admissible on this basis are:
(i) to set out general background that would assist the court;

(ii) to show procedural defects that are not apparent from the record or the reasons – for example, a reasonable apprehension of bias or a denial of procedural fairness; or

(iii) to show a complete lack of evidence to support a material finding of fact;
and

(c) materials that are properly “fresh evidence” on the application.
. Lovell v. Ontario (Minister of Natural Resources and Forestry)

In Lovell v. Ontario (Minister of Natural Resources and Forestry) (Div Ct, 2021) the Divisional Court considered the bar on fresh evidence in a judicial review, and exceptions:
[5] The application is a review of the decision below, not a fresh hearing de novo in this court. Evidence that was not before the decision-maker below is generally not admissible on an application for judicial review from the decision.[1] This principle is applied routinely to preclude evidence sought to be placed before this court that was not part of the record below.

[6] There are exceptional circumstances in which this court will admit additional evidence on an application for judicial review, which have been summarized recently by this court as follows:
In general, the evidence on an application for judicial review is restricted to the evidence that was before the original decision-maker. There are, however, exceptions to this general rule. What have come to be known as the Keeprite principles govern new evidence on judicial review: Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.) These principles were most recently confirmed by this Court in Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.). There are three criteria:
(a) the materials ought to have been included in the record of proceedings (i.e., they are properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22);

(b) although the materials are not part of the record, they are properly added to the record because of one of the narrow exceptions to the principle that the record before the Divisional Court is the official record from the tribunal below. The usual examples of materials that may be admissible on this basis are:

(i) to set out general background that would assist the court;

(ii) to show procedural defects that are not apparent from the record or the reasons – for example, a reasonable apprehension of bias or a denial of procedural fairness; or

(iii) to show a complete lack of evidence to support a material finding of fact; and

(c) materials that are properly “fresh evidence” on the application.[2]
. 30 Bay ORC Holdings Inc. et al. v. City of Toronto

In 30 Bay ORC Holdings Inc. et al. v. City of Toronto (Div Ct, 2021) the Divisional Court considered the test for fresh evidence in a judicial review context:
[113] The City’s motion to strike significant portions of the Applicants’ evidence is premised on both the restricted availability of filing new evidence on a judicial review and general principles surrounding the admissibility of affidavit evidence.

[114] In general, the evidence on an application for judicial review is restricted to the evidence that was before the original decision-maker. There are, however, exceptions to this general rule. What have come to be known as the Keeprite principles govern new evidence on judicial review: Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.) These principles were most recently confirmed by this Court in Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.). There are three criteria:
(a) the materials ought to have been included in the record of proceedings (i.e., they are properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22);

(b) although the materials are not part of the record, they are properly added to the record because of one of the narrow exceptions to the principle that the record before the Divisional Court is the official record from the tribunal below. The usual examples of materials that may be admissible on this basis are:
(i) to set out general background that would assist the court;

(ii) to show procedural defects that are not apparent from the record or the reasons – for example, a reasonable apprehension of bias or a denial of procedural fairness; or

(iii) to show a complete lack of evidence to support a material finding of fact; and
(c) materials that are properly “fresh evidence” on the application.




CC0

The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.