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Judicial Review - Evidence - Keeprite Record Exceptions (SPD)

. Lafond v. Her Majesty the Queen in right of Ontario ['narrative']

In Lafond v. Her Majesty the Queen in right of Ontario (Div Ct, 2021) the Divisional Court considered the affidavit evidence admissible in a judicial review application:
[6] First, the respondents challenged a brief affidavit of the applicant. That affidavit provided some background and described what the applicant was, and was not, told about the decision to suspend her parole. We concluded that the affidavit was admissible. It contains evidence that could not have been part of the ex parte Board hearing record. It sets out general background and alleges procedural defects from the applicant’s perspective. This evidence falls within the exceptions permitting admissibility in Keeprite Workers Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.).
. Rosianu v. Western Logistics Inc. [federal]

In Rosianu v. Western Logistics Inc. (Fed CA, 2021) the Federal Court of Appeal commented that the usual rule was that only the evidence before to tribunal below should be heard on judicial review, with exceptions:
[28] There is no absolute right to produce evidence on an application for judicial review. As mentioned by the Federal Court, the evidentiary record is usually limited to what was before the administrative decision-maker (Federal Court’s reasons at para. 28, citing Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para. 19, [2012] F.C.J. No. 93 (QL) [Canadian Copyright Licensing Agency]). There are only a few exceptions to this rule, such as providing background information or providing material information necessary to determine whether there has been a breach of procedural fairness. These exceptions are explained in detail in Canadian Copyright Licensing Agency at paragraph 20.
. Kadri v. College of Physicians and Surgeons of Ontario

In Kadri v. College of Physicians and Surgeons of Ontario (Div Ct, 2020) the Divisional Court considered the treatment of fresh evidence in a judicial review:
[21] Judicial review of a decision of an administrative decision maker is normally done on the basis of the material that was before the decision maker (see, for example, Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (Div. Ct.) at para. 40; 142445 Ontario Limited (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636, 2009 CanLII 24643 (Div. Ct.) at paras. 10-12). In this case, that material is found in the Record of Proceedings filed by the College.

[22] In limited circumstances, evidence may be adduced in a judicial review proceeding to supplement the record of proceedings (Sierra Club at para. 14; Utilities Kingston at paras. 15, 18). First, it may be adduced to show that there was an absence of evidence on an essential point in the decision. Second, it may be adduced to show that there was a denial of procedural fairness that is not evident from the record. Third, it may be adduced to provide general background that may assist the court in understanding the underlying issues in the application for judicial review. However, with respect to this third criterion, the evidence must not be an attempt to provide supplementary evidence going to the merits of the case (Association of Universities and Colleges of Canada v. The Canadian Copyright Licensing Agency, 2012 FCA 22 at para. 20).
. Sticky Nuggz Inc. v. Alcohol and Gaming Commission of Ontario ['narrative' - questionable]

In Sticky Nuggz Inc. v. Alcohol and Gaming Commission of Ontario (Div Ct, 2020) the Divisional Court dealt with a 'fresh evidence' issue, applying a more lenient standard when the underlying procedure was rudimentary:
[34] Before turning to the Applicant’s arguments, I will deal with a preliminary, evidentiary issue raised by the Respondent. The Respondent objects to the admission of evidence from Mr. Bertucci. The evidence explains the history of the matter from the Applicant’s perspective and describes the “due diligence” efforts undertaken by the Applicant to satisfy itself that its proposed location complied with the school distance requirement.

[35] The Respondent argues that the Applicant’s due diligence is irrelevant to the issues on the application for judicial review. The Respondent also submits that, as a general rule, affidavit evidence containing material that was not before the decision-maker is not admissible on judicial review unless it: a) provides non-argumentative background information; b) demonstrates that the decision-maker decided an essential point without any evidence; or, c) demonstrates the decision-maker breached the rules of natural justice.

[36] I would admit the evidence.

[37] This was a somewhat unusual process. There was no “hearing” before the Registrar in the normal sense of the word. The process was somewhat informal and took place, essentially by email, over a short period of time.

[38] Given the informal and abbreviated process that took place and having reviewed the affidavit, I do not find the Bertucci affidavit inadmissible on the application for judicial review. It provides background on the Applicant’s perspective and on what the Applicant perceives as the issues. Its relevance, weight and utility can and will be addressed in the context of the merits of the Applicant’s application.
. NM v. Dufferin-Peel Catholic District School Board

In NM v. Dufferin-Peel Catholic District School Board (Div Ct, 2020) the Divisional Court sets out the criteria for fresh evidence, specific to a judicial review proceeding:
[39] Fresh evidence on judicial review should only be admitted in limited circumstances: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). Those circumstances are to show the absence of evidence on an essential point; or to disclose a breach of natural justice that cannot be proven by mere reference to the record; or to provide general background that might assist the court in understanding the underlying issues. See: Keeprite at p. 521; Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.).
. The Ontario Mission for the Deaf v. Buchan ['no evid on material'/fairness/narrative]

In The Ontario Mission for the Deaf v. Buchan (Div Ct, 2021) the Divisional Court considered grounds for fresh evidence in a judicial review application:
[16] Generally, the Court is to decide an application for judicial review on the record before the original decision maker. The court will consider additional evidence on an application for judicial review in limited circumstances, which include to show the absence of evidence on an essential point, to demonstrate a breach of natural justice that cannot be proven by reference to the record, or to provide general background that might assist the court in understanding the underlying issues: Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.), at paras. 10-12.
. OPSEU, Local 329 v. Waypoint Centre for Mental Health Care [Keeprite - unnecessary]

In OPSEU, Local 329 v. Waypoint Centre for Mental Health Care (Div Ct, 2022) the Divisional Court considered a fresh evidence issue in the course of a judicial review:
[13] The union moves to admit fresh evidence in the form of an affidavit of its lawyer who appeared on the arbitration. She would depose that she told the arbitrator, with the consent of the employer, that Waypoint scheduled its employees hours ahead of time.

[14] Before admitting such evidence, we have to ask, first, whether the affidavit material shows that there is no evidence to support a finding of fact and second whether the evidence relates to a fact that is essential to the decision: 142445 Ontario Ltd. v. I.B.E.W., Local 636, 2009 CanLII 24643 (ON SCDC), [2009] O.J. No. 2011 (Div. Ct.). I would answer both questions in the negative.

[15] The fact to which the affiant would depose was already before the arbitrator in the agreed statement of facts and the information provided to him in oral submissions on consent. There is no finding of fact that was not supported by any evidence. The additional information was not essential to the decision in any event. The arbitrator’s ruling turned on the wording of the collective agreement, not whether the employer had a practice of setting work schedules in advance. The fresh evidence is not admissible.
. Laforme v. The Corporation of the Town of Bruce Peninsula [Keeprite exceptions failed]

In Laforme v. The Corporation of the Town of Bruce Peninsula (Div Ct, 2021) the Divisional Court considered an issue of fresh evidence in a judicial review matter:
Preliminary Evidence Issue

[21] As recognized by the parties, on an application for judicial review, with few exceptions, the court reviews the decision below on the basis of the record that was before the original decision maker: 30 Bay ORC Holdings Inc. et al. v. City of Toronto, 2021 ONSC 251 (Div. Ct.), at para. 114. As set out in 30 Bay, at para. 114, exceptions include evidence that sets out general background to assist the court, shows procedural defects in the decision-making process, or shows a complete lack of evidence to support a material finding of fact.

[22] In this case, both sides filed expert evidence in support of their positions regarding the impact of the project on the Beach. This evidence was not before the Authority when it granted the permit.

[23] Both sides conceded that this court cannot rely on this evidence in reviewing the reasonableness of the Authority’s decision because the Authority did not have the evidence before it when it decided to issue the permit.

[24] The applicant argues that the court can and should consider the expert evidence in deciding whether the Town acted unreasonably in deciding to proceed without obtaining a permit under the Endangered Species Act, 2007, without obtaining environmental approval under the Environmental Assessment Act and without considering the impacts of the Official Plans for Bruce County and the Town. In my view, again, it would not be appropriate for the Court to consider this evidence in deciding these issues. They do not meet any of the exceptions to the principle that the court should not consider materials beyond those that were before the original decision maker



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