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Judicial Review - Evidence - Keeprite Current (SPD)
MORE CASES
Part 2
Lately, the Keeprite standard for extra-record evidence to be admitted on a judicial review has been 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.
. Windrift Adventures Inc. v. Chief Animal Welfare Inspector
In Windrift Adventures Inc. v. Chief Animal Welfare Inspector (Div Court, 2023) the Divisional Court considers two JRs [one by a dog-owner and one by the Chief Animal Welfare Inspector (CAWI)] against animal care cost 'Statement of Account' decisions of the ACRB (Animal Care Review Board) under the Provincial Animal Welfare Services Act (PAWS), here regarding a large-scale dog seizure.
In these quotes the court considered Keeprite and JR record issues, here in the context of a JR motion for fresh evidence:[33] Our role on these applications is to review the findings of fact made by the tribunal below, not to decide the matter anew. Accordingly, the general rule is that evidence that was not in the record before the tribunal below is inadmissible: Bernard v. Canada (Revenue Canada), 2015 FCA 263.
[34] There are three recognized exceptions to this general rule. The first is where the evidence seeks to provide general background information. However, this information cannot consist of evidence that goes to the merits of the matter. The second is where the affidavit is designed to tell the reviewing court that there was a complete absence of evidence before the tribunal below on a certain subject-matter. As put in Bernard at para. 24: “This can be useful where the party alleges that an administrative decision is unreasonable because it rests upon a key finding of fact unsupported by any evidence at all.” The third exception concerns evidence that goes to the issue of natural justice, procedural fairness, improper purpose or fraud that could not have been put before the original decision-maker: see: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R.(2d) 513 (C.A.)).
[35] None of the evidence at issue falls within the Keeprite exceptions. The evidence does not contain necessary background information, nor does it speak to concerns about procedural fairness, improper purpose or fraud. While Windrift argues that there was a complete absence of evidence on the issue of the care provided to the dogs while boarding, this is not the case. Our reasons for this finding are discussed in more detail below.
....
[38] In our view, Windrift’s fresh evidence motion is an attempt to file voluminous affidavit evidence designed to challenge the Board’s factual findings based on evidence that was not before it at the time of the decision. In essence, it is an invitation to have this Court “re-try” the merits of the decision de novo, on a new record. This is precisely the type of fresh evidence application that courts performing a judicial review function must discourage.
[39] For these reasons, we decline to admit the fresh evidence. . Folz v Algoma Family Services
In Folz v Algoma Family Services (Div Court, 2023) the Divisional Court considered a JR of IPC-PHIPA adjudication denials regarding requests for personal health information held by a child protection agency, specifically, information: "... made in relation to an intensive treatment program for the Applicant’s son".
In these quotes the court comments on the difficulty in isolating the relevance of different portions of affidavits, here in light of the JR 'Keeprite' record fresh evidence doctrine:[23] Moving to the affidavits, the Applicant relies on the principles in Re Keeprite Workers’ Independent Union and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.) and related cases, which provide that supplementary evidence is permitted in limited circumstances. Unfortunately, these two affidavits are an amalgam of material, some of which is simply inadmissible, some of which is already in the record of proceedings, some of which does not fall within the permitted circumstances for additional evidence, and some of which does.
[24] We accept the evidence that explains why the Applicant, himself, did not initiate a reconsideration. The evidence about court orders in the family law proceedings is unnecessary. The record of proceedings includes the court orders that the Adjudicator reviewed, as discussed further below. The proposed evidence about the nature of the family law proceedings, and whether there was a basis in the record for other findings, contains argument about what conclusions should be drawn from the record. Those arguments may be made without supplementing the record of proceedings. However, in this case, even if we accepted all of the affidavit evidence it would not change the outcome. It is therefore unnecessary to go through the problems with the evidence in more detail. . Humberplex Developments v Attorney General for Ontario
In Humberplex Developments v Attorney General for Ontario (Div Court, 2023) the Divisional Court considered the 'Keeprite' principles of what may be added to a JR record stemming from a tribunal hearing (statutory power of decision):[15] The evidence before the courts on judicial review is generally restricted to the record that was before the decision-maker. The court’s role is to review the legality of the decision when it was made. There are few exceptions to this general rule. Sometimes the court will permit affidavit evidence in these circumstances:(i) where the affidavit provides general background that is needed to understand the relevant issues, however, care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker;
(ii) where the evidence of an alleged defect cannot be found in the record, such as procedural defects that are not apparent on the record;
(iii) where the evidence highlights a complete lack of evidence before the decision-maker regarding a finding of fact; and,
(iv) where the evidence is relevant to the exercise of the court’s remedial discretion.
Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644, at paras. 10-13; 'Namgis First Nation v. Canada (Fisheries and Oceans), 2019 FCA 149, at para. 10. . Agbontaen-Moses v Neighbourhood Link Support Services
In Agbontaen-Moses v Neighbourhood Link Support Services (Div Court, 2023) the Divisional Court considered a motion for a record addition issue in a JR, here where the tribunal (the HRTO) has a practice of not recording it's hearings. Given the unusual HR practice regarding the record - where the JR practice is to presumptively default to the 'record before the tribunal' - I quote the court's fuller reasoning in applying the applicable test:[7] There is no dispute about the principles that apply to the question of whether a party can supplement the Record of Proceedings. Generally, the evidence before the courts on judicial review is restricted to the record that was before the decision-maker. The court’s role is to review the legality of the tribunal’s decision when it was made. There are few exceptions to this general rule, summarized in 'Namgis First Nation v. Canada (Fisheries and Oceans), 2019 FCA 14, at para. 10. Sometimes the court will permit an affidavit in these circumstances:(i) where the affidavit provides general background that is needed to understand the relevant issues, however, care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker;
(ii) where the evidence of an alleged defect cannot be found in the record, such as procedural defects that are not apparent on the record;
(iii) where the evidence highlights a complete lack of evidence before the decision-maker regarding a finding of fact; and,
(iv) where the evidence is relevant to the exercise of the court’s remedial discretion. [8] The NLSS submits that the first three exceptions apply here. I disagree. The bulk of the Affidavit appends documents from the Record of Proceedings and discusses them. This does not fall within an exception. It is completely unnecessary. The documents are in the Record of Proceedings. The NLSS ought not use an affidavit to discuss them as if it is evidence. It may discuss them its factum on the application.
[9] The only issue is the remaining paragraphs 9 and 10 and Exhibit L. Paragraph 9 recounts what are described as oral rulings made in response to the Applicant’s Request for an Order. It appends as an exhibit both the notes of the affiant from the hearing, and a second set of notes described as notes of a NLSS human resources manager who attended the hearing.
[10] To the extent that the affiant is testifying about her recollection of a ruling made at the hearing, that evidence would fall within the above exception for procedural defects not apparent on the record. There is no recording or transcript. The respondent is faced with an application for judicial review based upon the absence of a ruling. It can put its evidence forward on whether or not there was a ruling. Paragraph 10 also relates to that issue.
[11] There are other objections to paragraph 9. That paragraph at least arguably could be an attempt to go beyond the affiant’s recollection and instead characterize the notes. It is also not clear that the Affidavit contains what is needed to put forward the notes, and for what purpose they are put forward.
[12] I therefore strike out the Affidavit with leave to permit both sides to deliver affidavit evidence on the narrow point of their recollection regarding whether or not a ruling was made regarding the Request for an Order, and if so, what the ruling was. . LifeLabs LP v. Information and Privacy Commissioner of Ontario
In LifeLabs LP v. Information and Privacy Commissioner of Ontario (Div Court, 2023) the Divisional Court briefly characterizes the record that a court may allow on a JR:[14] The motion judge discussed what should be included in a record of proceedings for judicial review. He cited the relevant statute and the oft-quoted decision of Lord Denning in R. v. Northumberland Compensation Tribunal ex parte Shaw (1951), [1952] 1 K.B. 338 (Eng. C.A.), at pp. 351-2; quoted with approval in Endicott v. Ontario (Director, Office of the Independent Police Review), 2014 ONCA 363, at para. 43. The motion judge understood that he could, and in appropriate cases should, order production of more documents from a decision-maker where it is necessary to properly adjudicate the issues raised. . City of Toronto v. CUPE Local 79 and Mathew Wilson
In City of Toronto v. CUPE Local 79 and Mathew Wilson (Div Court, 2022) the Divisional Court considered fresh evidence admissible in a judicial review application:[11] As set out in Canadian Union of Public Employees, Local 5852 v. Scarborough Health Network, 2022 ONSC 604 (“Scarborough Health Network”), at para. 51, “[i]n most circumstances, the evidence before the court on judicial review is restricted to the record that was before the Arbitrator. It is only in exceptional circumstances that affidavit evidence is admissible to supplement the record on judicial review.” Affidavit evidence can be admitted either to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record: Scarborough Health Network, at para. 53, citing from 142445 Ontario Limited (Utilities Kingston) v. IBEW, Local 636, 2009 CanLII 24643 (Ontario Div. Ct.) (“Utilities Kingston”), at para. 18.
[12] Affidavit evidence may also be admitted to provide general background that might assist the court in understanding the underlying issues: Canadian National Railway Company, at para. 11.
[13] The City does not claim that the affidavit evidence in this case falls within the three recognized exceptions outlined above. It instead submits the circumstances in this case are sufficiently exceptional to justify the admissibility of affidavit evidence to supplement the record. It submits the arbitrator made an error in applying the test for discrimination under the Human Rights Code, which is quasi-constitutional legislation. It goes on to say that human rights legislation is the “last protection” of the most vulnerable members of our society, in this case referring to the two complainants, who were racialized members of the public dealing with a City representative.
[14] These submissions are not a basis for admitting the affidavit. While the allegations in this case are serious, the affidavit evidence falls squarely within the type of evidence that has been repeatedly rejected by this Court on an application for judicial review.
[15] In Moore v. The Estate of Lou Ferro, 2022 ONSC 1343 (“Moore”), the applicant brought an application for judicial review of a decision of the Human Rights Tribunal of Ontario. He sought to admit into evidence notes taken by his wife during the proceedings before the tribunal. This Court rejected the evidence. In doing so, at para. 62, it reproduced Swinton J.’s comments in the following passages from Utilities Kingston. These passages raise the specific problems with admitted evidence provided by attendees at a hearing (that do not fall within the recognized exceptions):If extensive affidavits can be filed on applications for judicial review in order to permit parties to challenge findings of fact before such tribunals, there would be a significant incentive for parties to seek judicial review since they would then attempt to reframe the evidence that was before the arbitrator. As a result, the process of judicial review is likely to be more prolonged and more costly.
Moreover, there may be real difficulties in trying to recreate the evidence before the tribunal, where the parties have conflicting views as to what has been said. Where there is a dispute about the evidence, the reviewing court will be put in the unfortunate position of trying to determine what the evidence was before the tribunal in order that it can decide whether the decision was unreasonable. Such a process is unfair to the administrative tribunal and undermines its role as a fact finder in a specialized area of expertise. [16] Indeed, Moore more directly adjudicated a question of discrimination than did the current arbitration. It was an application before the HRTO alleging discrimination under the Ontario Human Rights Code, R.S.O. 1990, c. H.19. The current matter involved the grievance of a dismissal. Although the case at bar raises serious and important issues, the complainants’ rights were not being directly adjudicated. . Adams v. Aamwjiwnaang First Nation
In Adams v. Aamwjiwnaang First Nation (Div Court, 2022) the Divisional Court considers Keeprite principles of judicial review evidence use:[21] On an application for judicial review, the record is generally restricted to the evidence that was before the decision maker when the decision was rendered: Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd., 29 O.R. (2d) 413 (“Keeprite”). There are certain exceptions, for example, to provide relevant background information, to show a breach of procedural fairness that cannot be proved by reference to the record and to show an absence of evidence to support a finding of fact on an essential point: Keeprite, at 517; Scott v. Toronto (City), 2021 ONSC 858, 2021 CarswellOnt1444, at paras. 19-20. This court has found that “[w]hat was on the mind of the decision maker but not articulated at the time cannot be relevant to this exercise”: Guelph and Area Right to Life v. Guelph (City), 2022 ONSC 43, 150 O.R. (3d) 574, at para. 74. . Pryde v. Chief Animal Welfare Inspector
In Pryde v. Chief Animal Welfare Inspector (Div Court, 2022) the Divisional Court stated the basics of the Keeprite JR fresh evidence doctrine:[18] As a general principle, the record on judicial review is restricted to the record that was before the decision maker below: DRPS v. The Ontario Civilian Police Commission 2021 ONSC 2065 (Div. Ct.) at para. 45. In limited circumstances fresh evidence may be permitted, for example, to show there was an absence of evidence on an essential point, to disclose a breach of natural justice that cannot be proved using the record, or to provide general background that may assist the court in understanding the issues: See Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.); Scott v. Toronto (City), 2021 ONSC 858 (Div. Ct.) at paras. 19-20. . Dr. Luchkiw v. College of Physicians and Surgeons of Ontario
In Dr. Luchkiw v. College of Physicians and Surgeons of Ontario (Div Court, 2022) the Divisional Court considered a JR of a disciplinary finding of the 'Inquiries, Complaints and Reports Committee' (ICRC) of the College of Physicians and Surgeons of Ontario (CPSO), here regarding issuing COVID vaccination exemptions and related COVID matters. In this quote the court considers fresh evidence in the JR context:Preliminary Issue - Fresh Evidence
[42] As a preliminary issue, Dr. Luchkiw brought a motion to admit fresh evidence on the judicial review application. She seeks to place before the court 66 affidavits sworn by her patients and clinic staff. She argues that the fresh evidence is necessary to allow the Court to weigh the harm caused to her patients by the Suspension Order.
[43] Fresh evidence, particularly ex post facto evidence is “rarely admissible” in judicial reviews given that the function of the reviewing court is not to hear the case de novo: Grenier v. Canada (Attorney General), 2016 FC 687, at para. 38. The essential purpose of the reviewing court is to review the decision, not to make findings of fact based on evidence that was not before the administrative tribunal: Canada (Attorney General) v. Delios, 2015 FCA 117, at paras. 41, 42.
[44] There are three recognized exceptions to the general rule prohibiting fresh evidence on a judicial review:(a) Background information to assist the reviewing court in understanding the history and the nature of the case that was before the administrative decision-maker;
(b) Affidavit evidence disclosing a complete absence of evidence on a material point; and
(c) Evidence relevant to natural justice, procedural fairness or fraud that could not have been raised before the decision-maker: Bernard v. Canada (Revenue Agency), 2015 FCA 263, at paras. 20-27. . 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.
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