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Judicial Review - Evidence - Keeprite Current (2). Taccone v. Registrar, Funeral, Burial and Cremation Services Act, 2002
In Taccone v. Registrar, Funeral, Burial and Cremation Services Act, 2002 (Div Court, 2024) the Divisional Court considered a JR evidentiary 'record' issue, here in the context of a motion to strike an affidavit.
Here the court extensively sets out the rationale for not admitting fresh evidence on a JR:[7] As required by s. 10 of the Judicial Review Procedure Act, RSO 1990, c J.1, the Registrar has filed a Record of Proceedings. It consists of some 50 documents amounting to approximately 750 pages.
[8] There was no formal oral hearing held by the Registrar. The applicants’ requests for reimbursement were made in correspondence. The parties engaged in a somewhat iterative process of bilateral communication that led to the Registrar making a formal, written refusal decision on March 5, 2024. The applicants asked the Registrar to reconsider his decision. He refused and made his decision final by letter date April 18, 2024.
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[10] The issues are crystallized, understandable, and are accessible in the material filed.
[11] At 750 pages, the size of the Record of Proceedings is not especially daunting. However, the material uses some technical terms and maps that are beyond the ken of lay people.
[12] In addition to the Record of Proceedings, the Registrar has delivered a 38-page affidavit that describes the entire investigative process from beginning to end from the Registrar’s point of view. The affidavit gives some description of the statutory scheme and then goes through much of the Record of Proceedings providing a thorough chronology of events and communications between the parties from the Registrar’s perspective.
[13] The Affidavit would be unremarkable evidence in chief by a defendant in a piece of commercial litigation if the reimbursement right was contained in a contract and the applicants were suing to prove their entitlement to funds under the contractual terms.
[14] But this is not commercial litigation between private parties in a dispute over the intention and meaning of a contract. The Registrar in this case has exercised his statutory power of decision to deny the reimbursement to which the applicants claim entitlement under a statute.
[15] The Registrar’s decision is not subject to an appeal right. It is a final exercise of governmental authority.
[16] People who are detrimentally affected by government decisions have the right to ask the court to review the decisions. But the Court’s role in conducting a judicial review is quite different from the role of the government decision-maker. As explained by Stratas JA in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 (CanLII),[19] 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), [2000] 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. [17] In 2019, the Supreme Court of Canada noted the distinction between the roles of the court and the administrative decision-maker even more starkly. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII) the Supreme Court of Canada provided express direction to courts conducting judicial review, that their role is to consider the justifiability, transparency, and intelligibility of an administrative decision focusing first and foremost on the reasons for decision written by the decision-maker. At para. 84 of the Vavilov decision, the Court explained:As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion [Notes omitted.] [18] Paying respectful attention to the decision-makers’ reasons includes understanding the evidentiary record that was before him or her. But, in all but extreme cases, it does not include re-assessing the factual findings made by the decision-maker. The Supreme Court of Canada explained:[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, at para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: ibid. [19] The requirements to pay respectful attention to the reasons in light of the record that was before the decision-maker, and to refrain generally from reviewing the decision-maker’s findings of facts, usually makes extraneous evidence that was not contained in the record before the decision-maker irrelevant.
[20] Applicants are required to adduce their evidence to the decision-maker. The decision-maker was required to provide his or her reasons to the applicants in the decision. A decision-maker cannot deliver post-decision evidence to explain or expand upon his or her decision while it is under review by the court. In fact, efforts to provide later clarification of a decision for the purpose of appeal may be seen to undermine the presumption of integrity enjoyed by the decision-maker. Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60 (CanLII), at paras 83 et seq.
[21] Generally speaking, therefore, in a judicial review proceeding, no additional evidence is admissible if it was not before the decision-maker. . Yan v. Mohawk College
In Yan v. Mohawk College (Div Court, 2024) the Divisional Court dismissed a JR against an HRTO decision that found no discrimination by the College respondent.
Here the court considered an issue about the JR record (Keeprite):[12] There is also a preliminary objection to paras. 8-12 of the applicant’s affidavit filed in support of her application for judicial review. That evidence recounts regulatory proceedings against the applicant at the CTCMPAO in 2016. The affidavit indicates that those regulatory proceedings related to patient care, which is not the subject of the HRTO complaint. The affidavit also identifies a CTCMPAO investigator who the applicant says she saw on campus on the day of the above group presentations for her course in 2018. The applicant submits, based on this evidence, that she did not know why he was there.
[13] This evidence is supplemental to the record and does not fall within the categories of additional evidence that are permitted in an application for judicial review, as set out in Re Keeprite Workers’ Independent Union and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.), leave to appeal to S.C.C. refused, [1980] 2 S.C.R. viii. However, even if we were to admit all of that evidence, it would not change the outcome of this application. . Rockcliffe Park Residents Association v. City of Ottawa
In Rockcliffe Park Residents Association v. City of Ottawa (Div Court, 2024) the Divisional Court allowed an motion to strike affidavits in the JR record, here where a residents' association applied to challenge the City's "issuance of a heritage permit under section 42 of the Ontario Heritage Act".
Here the court considers whether motions to quash non-record affidavits that have been subsequently entered in the record should be brought pre-hearing - or only at the JR hearing:Issue One: The Timing of the Motion to Quash the Affidavits
[29] In the Applicant’s view, the case law clearly establishes that a motion to quash affidavit evidence should not be determined on a preliminary basis, but rather should be heard and decided by the panel hearing the application for judicial review.
[30] I disagree that the case law clearly establishes a rule about the timing of pre-emptive motions to quash affidavit evidence. In Lockridge v. Director, Ministry of the Environment, Justice Harvison Young noted that there are two principles that run through the jurisprudence on the appropriate timing of motions to quash evidence in the context of applications for judicial review.[2] On the one hand, the courts have generally been reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits.[3] On the other hand, there are decisions such as Sierra Club v. Ontario, in which this Court stated that issues about admissibility of affidavit evidence should be determined by a motions judge prior to a hearing before the Divisional Court panel so that the hearing on the merits of the application may proceed expeditiously and efficiently.[4]
[31] In Lockridge, Justice Harvison Young (as she then was) decided to follow the hybrid approach to a motion to quash, which was developed in Gutierrez v. The Watchtower Bible and Track Society of Canada et al.[5] and applied in Holder et al. v. Wray et al.[6]. Justice Harvison Young stated that the hybrid approach is justified because “[d]efining the record appropriately in advance of the hearing enhances the panel’s ability to determine the merits and is thus in the interests of justice”.[7] According to this approach, where there is material in the affidavits that is clearly inadmissible, it should be struck. However, the court must be careful not to usurp the role of the panel in determining the merits of the application. In Justice Harvison Young’s view, when there is doubt concerning the admissibility of affidavit material, it should not be struck.
[32] Using the hybrid approach to the motion to quash affidavit evidence, Justice Harvison Young struck affidavit evidence that was wholly irrelevant to the issues raised in the application, improper opinion evidence, unattributed hearsay evidence, speculative evidence and argument. Of note, Justice Harvison Young did not strike any evidence on the basis of irrelevance except for one affidavit where it was clear that the evidence did not relate to an issue raised in the application. In the result, Justice Harvison Young struck some of the evidence but dismissed the motion with respect to many other requests to strike, without prejudice to the respondents’ right to argue the admissibility issues before the panel hearing the application on the merits.
[33] I adopt the approach of Harvison Young J. in Lockridge. In my view, it strikes the appropriate balance between fairness and efficiency. It is also consonant with the view that defining the evidentiary record prior to a hearing may have a heightened importance in applications for judicial review and in class action proceedings.[8]
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[37] In the present case, the Applicant argues that the four affidavits provided by Ms. Ratushny, Ms. Hayman and Mr. Charlton fit within the exceptions outlined above and are therefore admissible in their entirety. In addition, the Applicant argues that the Supreme Court of Canada’s decision in Vavilov[13] has expanded the scope for the admissibility of evidence on an application for judicial review.
[38] I am of the view that it is not appropriate for me at this stage in the process to rule on the latter point raised by the Applicants with respect to the increased scope of the Application Record following Vavilov. Rather, in employing the hybrid approach, I am limited to examining the affidavits to determine if all or parts of them are clearly or obviously inadmissible based on the rules of evidence and the general principles regarding the admissibility of evidence on applications for judicial review.[14] Where it was unclear to me whether the evidence falls within one of the exceptions or may meet an expanded definition of admissibility, I have erred on the side of caution and left that for the determination of the Panel. What follows are my reasons for striking or not striking parts of the affidavit evidence proffered by the Applicant. . Geddes v. Chief Animal Welfare Inspector
In Geddes v. Chief Animal Welfare Inspector (Div Court, 2024) the Divisional Court dismisses a JR against the Animal Care Review Board (ACRB) under the PAWS animal welfare regime. The ACRB decisions confirmed orders that "certain animals— which had been removed from the Applicant’s property by Animal Welfare Services (“AWS”) — should not be returned to the Applicant. The Board also confirmed seven Statements of Account (“SOA”), payable by the Applicant in the total amount of $105,059.35."
The court denied a JR fresh evidence request, here under the 'Keeprite' JR record standard:Should the Applicant’s motion to admit fresh evidence be granted?
[20] The Applicant seeks to supplement the evidentiary record with the Affidavit of Sarah Quildon, affirmed April 3, 2024 (the “Quildon Affidavit”). The Quildon Affidavit attaches as exhibits email correspondence and laboratory reports. Exhibit “A” is an email chain between the Applicant and AWS Senior Inspector Carly Atrooshi, dated May 16, 2023, indicating that a nilgai was being treated for a skin condition and a male zebra had what appeared to be minor abrasions on his body that occurred during the zebra’s return to the Applicant. The laboratory reports attached as Exhibit “B”, dated May 3, 2023, indicate that a zebra tested positive for strongyles and one male lemur tested positive for giardia, while the rest tested negative.
[21] The sole issue on this motion is whether the court should permit the Applicant to supplement the evidentiary record with the Quildon Affidavit. CAWI submits it should not because (1) the Applicant does not meet the Keeprite test3; (2) the proposed new evidence lacks the appropriate context such that it has limited probative value; (3) the laboratory reports were available to the Applicant before the Board released its reconsideration decision and should have been submitted to the Board; and (4) the Applicant is attempting to split his case. [3 Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.).].
[22] We agree that the motion at issue should not be granted.
[23] First, the Applicant does not meet the Keeprite test. Affidavit evidence is admissible on judicial review only in exceptional circumstances, namely, to provide background information, demonstrate an absence of evidence on an essential point, or to show a breach of procedural fairness that cannot be proved with reference to the record.4
[24] The Applicant argues that the proposed new evidence demonstrates there was a breach of procedural fairness before the Board because it shows that some animals were sick or injured while in CAWI’s care and this was not disclosed to the Applicant prior to the hearing. This argument is untenable. The Exhibits to the Quildon Affidavit are dated May 2023 – nearly seven months after the Board’s hearing of the Applicant’s appeal on October 14 and 19, 2022 and over four months after the Board released its decision on December 30, 2022. The SOA costs at issue before the Board were for a time period up to July 19, 2022. The Applicant has offered no evidence indicating that alleged injuries/illnesses documented in Exhibits “A” and “B” existed during the relevant time period of the SOAs or Keep in Care Decisions at issue, and/or existed at the time of the hearing, and/or were not disclosed.
[25] At the hearing, CAWI produced evidence from veterinarians that were treating the animals while in its care, including their medical reports, which were current to the Board’s deadline for exchanging evidence in mid-September 2022. This included evidence that a male lemur had tested positive for giardia and that the male zebra had tested positive for strongyles, both shortly after being removed from the Applicant’s care. The Applicant chose not to cross- examine any of the veterinarians, chose not to seek additional disclosure, and made no arguments as to the significance of this evidence during the hearing.
[26] The proposed evidence does not show a breach of procedural fairness or an absence of evidence on an essential point. The Keeprite test is not met. . Boua v. Office of the Independent Police Review Director
In Boua v. Office of the Independent Police Review Director (Div Court, 2024) the Divisional Court considered Keeprite principles on the content of a JR record:[8] As a general principle, the record on judicial review is restricted to the record that was before the decision-maker below: Durham (Regional) Police Service v. Ontario Civilian Police Commission, 2021 ONSC 2065, at para. 45. Fresh evidence may be permitted in limited circumstances, 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: Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). In a case management direction dated October 16, 2023, Ms. Boua was advised that the principles articulated in Keeprite would apply to her motion to cross-examine Mr. Anderson. . Liu v. Ontario Labour Relations Board
In Liu v. Ontario Labour Relations Board (Div Court, 2024) the Divisional Court considers the contents and nature of a JR record:[14] ... An application for judicial review would not be a de novo hearing of Ms. Liu’s complaints about the Union and the employer. The judicial review application would be based on the evidence before the Board. Fresh evidence is only admissible on a judicial review application in exceptional circumstances. The proposed fresh evidence must fit into one of the narrow exceptions namely, to show a breach of natural justice that is not apparent on the record or to show a complete absence of evidence on an essential point: Kids Kingdom Daycare Inc. v. Ontario (Min. of Education), 2024 ONSC 487(Div. Ct.), at para. 28, Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.). ... . Lachance v. Solicitor General of Ontario
In Lachance v. Solicitor General of Ontario (Div Court, 2023) the Divisional Court consider a JR by local residents, here to resist ["quash the decision of the Solicitor General"] the construction of a new Ontario correctional facility.
Here, the court comments on JR record 'rights':[37] I agree with the finding of Ryan Bell J. that by bringing this application for judicial review the applicants became entitled to receive all documents concerning their claims. Ryan Bell J. adopted the words of Sharpe JA in Payne v. Ontario Human Rights Commission, 2000 CanLII 5731 (ON CA) at para. 161:An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court’s inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed. . Filippova v. Whyte
In Filippova v. Whyte (Div Court, 2023) the Divisional Court considered a fresh evidence issue within a JR:[49] Generally, the record on judicial review is restricted to what was before the decision-maker because this court’s function is to review the decision below, not to hear the case de novo. There are, however, exceptions to the general rule. One exception is background information that would assist the court in understanding the history and nature of the case that was before the administrative decision-maker. A second exception is affidavit evidence disclosing the complete absence of evidence on a material point – that is, not what is contained in the record, but what cannot be found in the record. A further exception is for evidence relevant to natural justice, procedural fairness, improper purpose, or fraud that is not contained in the tribunal’s record, and that could not have been raised before the decision-maker: Scott v. Toronto (City), 2021 ONSC 858, 100 Admin. L.R. (6th) 312 (Div. Ct.), at paras. 18-20. . Ontario Secondary School Teachers' Federation v. Ontario
In Ontario Secondary School Teachers' Federation v. Ontario (Div Court, 2023) the Divisional Court considered OLRB labour JRs by the two teachers' unions (the EFTO and the OSSTF), here regarding the "duty to bargain in good faith pursuant to s. 17 of the Labour Relations Act". The OLRB dismissed the OSSTF application entirely - but allowed the EFTO application, though without any remedy.
In these quotes the court considers a JR fresh evidence motion by an applicant, here where the applicant argues for a new 'Keeprite' exception when the tribunal does not keep a formal transcript of it's evidence:OSSTF Motion to Admit Fresh Evidence
[78] The decision of the OLRB to dismiss OSSTF’s application relied, among several other things, upon its finding that the Crown did not demand OSSTF to withdraw its grid movement grievances or do so on the basis of any misrepresentation. OSSTF claims that this finding is an error and that Blakely admitted during cross-examination that he asked for and received from OSSTF an undertaking to withdraw its grid delay grievances. The OLRB does not record or provide an official transcription of its proceedings, so this purported evidence is not in a certified official transcript of the proceedings.
[79] On this judicial review, OSSTF sought leave to file as fresh evidence the affidavit of Bob Fisher, an OSSTF staff representative who attended the hearing before the OLRB. The evidence sought to be admitted includes Fisher’s recollection of the evidence given at the hearing as well as notes taken by him.
[80] OSSTF submits that Fisher’s evidence is necessary because of the OLRB’s finding that the Crown did not require the withdrawal of the grid delay grievances in its negotiations with OSSTF. OSSTF argues that this conclusion was arrived at without evidence and was made despite a contrary admission from Blakely.
[81] Alternatively, OSSTF argues that the fresh evidence is necessary to evaluate the extent to which this alleged factual error had an impact upon the reasoning of the OLRB. It also argues that the fresh evidence is necessary to show that the OLRB failed to account for Blakely’s alleged admission in the decision, and that a denial of natural justice occurred as a result.
[82] In the further alternative, OSSTF submits that a new exception to the general rule against admitting such evidence should be made where an administrative body creates no record or transcript of viva voce evidence, and the underlying decision does not account for what OSSTF describes as a “critical evidentiary conflict”.
[83] The Crown opposes the motion to admit fresh evidence on the basis that none of the established exceptions apply to allow its admission, and there is no basis to establish a new exception. Hearing notes have consistently been rejected for not satisfying any of the exceptions.
[84] Further, OSSTF had a full opportunity to raise the issue of whether the Crown required an undertaking, to submit specific evidence to that effect before the OLRB, and to make final argument on the point with reference to the evidence said to be in support of its position in that regard. The OSSTF did not do so.
[85] Additionally, the Crown argues that OSSTF’s submission conflates the applicable standard of reasonableness in this instance with procedural fairness. There was no conflict on the facts. Even if there were such a conflict, a decision maker is not required to make explicit findings of every element in the facts that lead to its conclusion.
[86] The Crown also submits there is no credible basis to create a new exception to admit hearing notes taken by a party’s representative. This is an attempt to unduly expand the exceptions. Hearing notes taken by a representative are inherently inappropriate to admit as evidence because they raise concerns of reliability, accuracy, independence and objectivity, especially when taken by one of the parties (See: Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.), leave to appeal to S.C.C. refused, 35 N.R. 85 n).
[87] The OLRB also submitted that the affidavit evidence should not be admitted because it does not satisfy the established requirements, nor does it fall into the Keeprite exception where it is being tendered to demonstrate an absence of evidence.
[88] The OLRB submits that an argument that an administrative body did not take evidence into account is an issue of reasonableness, and not natural justice. It notes that OSSTF submitted to the OLRB at the hearing a summary of evidence, including hearing notes, which are different than what the OSSTF seeks to have admitted as fresh evidence on this judicial review. It points to the potential this raises for an unsuitable comparison of the notes of all parties as well as those of the adjudicator were such evidence admitted.
[89] The motion is characterized by the Respondents as a mere attempt to seek a re-weighing of the evidence that was before the OLRB by this court in order to secure a more favourable result.
[90] For the reasons advanced by the Crown and the OLRB, I am of the view that the “fresh” evidence sought to be tendered by OSSTF is not fresh, does not meet the test for admission nor should it qualify for the establishment of a new exception to the test for the admission of fresh evidence.
[91] I agree with both Respondents that this attempt by OSSTF to either augment or impugn the record is actually made in to support an argument that the OLRB ought to have made different findings of fact, and ought to have weighed the evidence differently. It must be remembered that this is an application for judicial review in which the basic standard of review is one of reasonableness. Even an appeal is not a forum that allows an opportunity simply to re-argue the case in the hope of securing a different outcome.
[92] Accordingly, the motion to admit fresh evidence is dismissed. . Ashcroft Homes v. Tarion Warranty Corporation
In Ashcroft Homes v. Tarion Warranty Corporation (Div Court, 2023) the Divisional Court considered a JR of a decision by Tarion under s.14 of the Ontario New Home Warranties Plan Act (ONHWPA) "ordering it to pay $7,500 compensation to the purchaser for delayed occupancy".
Here the court considers the allowable 'record' on a JR:Evidence that was not before the decision-maker
[2] Tarion objects to the use of new information filed by the Applicant contained in portions of the affidavit of Manny DiFilippo sworn December 10, 2022. Mr. DiFilippo’s affidavit includes evidence about the background of the epidemic and evidence concerning the impact of the dismissal of this application on the Applicant’s business.
[3] The evidence about the pandemic is more than mere background. It could have been placed before Tarion if due diligence had been exercised. The evidence about the impact of Tarion’s ruling on the Applicant’s business is not relevant to whether the decision was reasonable. We would not have admitted it as fresh evidence.
[4] Our decision is based on the record before the decision-maker. It would not be in the interest of justice to allow the Applicant to expand the record. This is a review of the reasonableness of a decision. There is no complaint about the procedure followed by the decision-maker. There has been no application to admit fresh evidence. The Applicant is not entitled to do the evidence over on review: Lovell v. Ontario (Minister of Natural Resources and Forestry), 2022 ONSC 423 at paras. 5-7 (Div. Ct.). . A. Z. v. Office of the Independent Police Review Director
In A. Z. v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considered a JR of the dismissal of OIPRD screening, investigation and examination of a complaint of local police misconduct, here regarding their handling of sexual assault allegations. Paras 1-35 are illustrative of police and OIPRD procedures in such matters.
In these quotes the court considers the judicial review record before it, here on a fresh evidence request:[40] On a judicial review, the court will normally consider only the material that was before the administrative decision-maker. In certain limited circumstances, additional evidence may be considered on judicial review – for example, to demonstrate a denial of procedural fairness that is not apparent from the record or to show an absence of evidence on an essential point: Wijayaratnam v. Office of the Independent Police Review Director, 2021 ONSC 6303 (Div. Ct.), at para. 27; Queensway Excavating & Landscaping Ltd. v. Toronto (City), 2019 ONSC 5860, 93 M.P.L.R. (5th) 84 (Div. Ct.), at para. 46.
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