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Judicial Review - Evidence - Keeprite Exceptions (2). Kaplan-Myrth v. Ottawa Carlton District School Board
In Kaplan-Myrth v. Ottawa Carlton District School Board (Div Court, 2024) the Divisional Court dismissed a school board trustee's JR against a school board.
Here the court considers a JR 'fresh evidence' motion:B. The Motion for Fresh Evidence
[25] In respect to the motion to adduce fresh evidence, the test is set out in Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). Fresh evidence is admissible only in exceptional circumstances, namely, to provide background information to demonstrate an absence of evidence on an essential point, or to show a breach of procedural fairness that cannot be proven with reference to the record: Windrift Adventures Inc v. Chief Animal Welfare Inspector, 2023 ONSC 4501 (Div. Ct.), at para. 34 [leave to appeal to Ont. CA denied January 23, 2024], citing Keeprite. . 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 exceptions to the normal Keeprite rule regarding the contents of a JR record:Issue Two: Should All or Parts of the Affidavits in Support of the Application be Quashed?
[34] The general rule is that, on an application for judicial review, affidavits containing material that was not before the decision-maker at first instance will not be allowed.[9] The record that goes before the reviewing court should essentially be the material that was before the decision-maker at the time the decision was being made.
[35] In Lachance v. Ontario (Solicitor General)[10], Madam Justice Ryan Bell summarized the narrow circumstances in which additional evidence will be permitted on an application for judicial review beyond the official record as follows:(a) materials that ought to have been included in the record of proceedings (that is, they are properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act);
(b) evidence that was not before the decision-maker but which,
(i) sets out general background that would assist the court;
(ii) shows procedural defects that are not apparent from the record or the reasons; or
(iii) shows a complete lack of evidence to support a material finding of fact; and
(c) materials that are properly “fresh evidence” on the application. (citations omitted)[11] [36] An applicant may deliver affidavit evidence of documents that they say ought to have been considered by the decision-maker but are not in the Record of Proceeding in support of an argument that the record supporting the decision was legally deficient.[12]
....
Background Information and Relevance
[43] An affidavit in support of an application for judicial review that provides general background information may be permitted but the affidavit is not to be in the nature of spin or advocacy.[15]
....
[46] I am cognizant that the nature of the decision in the present case may not warrant the extensive Record proposed by the Applicant. As the Ontario Court of Appeal stated in Endicott v. Ontario (Independent Police Review Office), where the complexity of the matter, the rights affected and the deliberative process of the statutory decision-making power are at the lower end of the spectrum, the record may be more narrowly circumscribed.[16] However, after a careful review of the affidavits, I find that the evidence in them is not clearly irrelevant to the issues raised in the Application. Therefore, at this stage in the proceedings I do not find it appropriate to strike any of the material in the three affidavits of Ms. Ratushny and Ms. Hayman on the basis of relevance.
Absence of Evidence
[47] One of the exceptions to the rule against supplementing the record on judicial review with additional is evidence is where it is necessary to show that the decision-maker made a decision in the absence of evidence.
....
[50] The City relies on the decision of Justice Corbett in Lovell v. Ontario (Minister of Natural Resources and Forestry).[17] In that case, the respondent moved, in advance of the hearing on the merits, to strike evidence filed by the applicants on their application for judicial review. The evidence the respondents sought to lead in that case was fresh evidence that they would have led had the decision-maker permitted them to do so. Justice Corbett held that this was not a case where the procedural fairness issue could not be fully appreciated without seeing the evidence the applicants would have adduced if they had been given the chance.
[51] The present situation is different from the motion before Justice Corbett in Lovell. The Applicant is not seeking to adduce fresh evidence. They are seeking to adduce evidence which they say existed at the time the decisions were made, and which should have been provided to the decision-makers and was not. In addition, they allege that there is evidence that was before the decision-makers but is not in the Record of Proceedings that the City was required to produce. The Applicants state that it is necessary for the panel to see that evidence to understand that the decision-makers had no evidentiary basis upon which to find, as they did, that the requirements of s. 7.4.2.3 of the RPHCD Plan were met.
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Speculative Evidence
[55] Statements that speculate as to the existence of facts that are outside the scope of the deponent’s information or knowledge are impermissible in an affidavit.[19] . Kids Kingdom Daycare Inc. v. Ontario (Min. of Education)
In Kids Kingdom Daycare Inc. v. Ontario (Min. of Education) (Div Court, 2023) the Divisional Court considered (and allowed) a JR, here under the Child Care and Early Years Act, 2014. These quotes outline a JR record issue, where the court applies the Keeprite exception 'to show an absence of evidence on an essential point':[4] I would allow the application and remit the matter to a different director for a fresh decision. As I will explain, the Director's decision was procedurally unfair to Kids Kingdom because, although the Director purported to rely on the results of the December inspection in her February decision not to approve Ms. Burgess, her reasons demonstrate that she based her decision on concerns not disclosed to Kids Kingdom, thereby depriving Kids Kingdom of the right to know the case it had to meet.
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ISSUES
[23] Kids Kingdom submits that it was denied procedural fairness by the Director, that her decision was unreasonable, that the Director was biased, and that this court should therefore order the Director to approve Ms. Burgess. In support of its submissions, Kids Kingdom seeks to rely on affidavit evidence of Ms. Burgess and Mr. D’Amato regarding the hours that Ms. Burgess worked, what occurred during the meeting of August 18, 2022, and what occurred during the inspection of Mr. Korn on December 21, 2022. The respondent objects to the introduction of this evidence.
....
[27] The respondent submits that the challenged evidence of Ms. Burgess and Mr. D'Amato is an attempt to reframe or contradict evidence that was before the Director and, therefore, impermissibly strays into the merits of her decision: Martin v. Ontario Civilian Police Commission, 2020 ONSC 1116 (Ont. Div. Ct.), at para. 17. I am unable to agree.
[28] The respondent is correct in submitting that the judicial review of an administrative decision is ordinarily based only on the record that was before the decision maker: APUO v. University of Ottawa, 2016 ONSC 2897 (Ont. Div. Ct.), at para. 15. However, exceptionally, affidavit evidence may be admitted to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by reference to the record alone: 142445 Ontario Ltd. v. I.B.E.W., Local 636 (2009), 251 O.A.C. 62 (Ont. Div. Ct.), 2009 CanLII 24643, at para. 18; Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (Ont. C.A.). In my view, the challenged evidence of both Ms. Burgess and Mr. D’Amato fits within these exceptions.
[29] Ms. Burgess’s evidence about what happened during the meeting of August 18 is admissible to support Kids Kingdom’s argument about bias and her evidence about her hours of work is admissible to demonstrate the procedural unfairness that resulted from the Director’s failure to give notice.
[30] Mr. D’Amato’s evidence about the inspection by Mr. Korn on December 21, 2022, is admissible to show either a complete absence of evidence or bias. Section 33 of the CCEYA provides that an inspector must prepare a report following an inspection and must give a copy of that report to a director. Yet, I have been unable to find the report in the record of the decision maker. Further, the Director made no reference to the report and no reference in her decision to the evidence given by Kids Kingdom to the inspector. Either the report should have been before the Director or, if it was, it should have been considered.
[31] For these reasons, I would admit the challenged evidence of both Ms. Burgess and Mr. D’Amato. . Knight v. HRTO
In Knight v. HRTO (Div Ct, 2020) the Divisional Court considered the administrative duty of a tribunal under s.20 of the SPPA to supply their record to an appellate court (here on judicial review):[2] This case has required a significant level of case management by Mr. Justice Corbett. Most recently, the applicant indicated that she was not satisfied that the record of proceedings prepared by the HRTO (about 1,500 pages) was complete or adequate. She has proposed supplementing that record with almost 5,000 pages of additional documentation contained in 86 bundles, organized more or less chronologically.
[3] In a lengthy case management endorsement of November 20, 2020, Corbett J. explained to Ms. Knight that there were only three bases on which she could persuade the court that materials not provided by the HRTO in its record of proceedings ought to be before the court on the application for judicial review. These three grounds are derived from well-established legal precedent known as the Keeprite principles, most recently confirmed by this Court in Canadian National Railway Company v. Teamsters Canada Rail Conference and Andrew Sims Q.C., 2019 ONSC 3644. The three factors are:(a) the materials ought to have been included in the HRTO’s record of proceedings (i.e., that they are properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act);
(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. ....
[5] At the heart of the applicant’s motion is s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, C.S. 22, as amended. Section 20 provides:A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include,
(a) any application, complaint, reference or other document, if any, by which the proceeding was commenced;
(b) the notice of any hearing;
(c) any interlocutory orders made by the tribunal;
(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;
(e) the transcript, if any, of the oral evidence given at the hearing; and
(f) the decision of the tribunal and the reasons therefor, where reasons have been given. [6] The applicant takes the position that the additional documents contained in the 86 bundles were all “evidence filed with the tribunal”. Thus, she relies upon the first ground of the Keeprite principles. The applicant does not rely on the second or third grounds under Keeprite.
[7] The applicant has misconstrued the meaning of the phrase “documentary evidence filed with the tribunal” used in s. 20(d) of the SPPA. During her oral submissions it became clear that, in the applicant’s view, anything that she sent to the registrar of the HTRO or to the Executive Chair of Social Justice Tribunals Ontario and the Executive Chair and Executive Lead of Tribunals Ontario fall within the term “documentary evidence filed with the tribunal”. This is an unreasonable and incorrect interpretation of s. 20(d).
[8] The key to a proper understanding of s. 20(d) is the word “evidence”. Sending documents to the registrar of the institution of the HRTO does not make those documents evidence in a hearing. Providing documents during the disclosure phase of the prehearing process does not make those documents evidence. Sending documents to the Executive Chair of Social Justice Tribunals Ontario and subsequently the Executive Chair and Executive Lead of Tribunals Ontario, in the context of complaints about the hearing vice chair, does not make those documents evidence in the hearing. Reference to a flash drive in the applicant’s “will say” statement submitted at the hearing does not make documents contained on the flash drive evidence. . Graham v. New Horizon System Solutions
In Graham v. New Horizon System Solutions (Div Court, 2023) the Divisional Court considered Keeprite fresh evidence in a JR proceeding when relevant on an issue of administrative unfairness:[12] The Court did admit one piece of evidence that Ms. Graham provided in the additional material. This was a statement the Adjudicator of the HRTO made at the hearing to the effect that she was “an abuse of process person” when it came to signed settlements. The statement is discussed further below. None of the parties objected to the admission of this statement and the responding parties made substantive submissions in response to it. This statement is admitted into evidence under the exception for evidence to disclose a breach of natural justice that cannot be proven on the available record: 142445 Ontario Limited (Utilities Kingston) v. IBEW, Local 636, 2009 CanLII 24643 (Div. Ct.), at para 18. . Wijayaratnam v. Office of the Independent Police Review Director ['fairness']
In Wijayaratnam v. Office of the Independent Police Review Director (Div Ct, 2021) the Divisional Court sets out an exception to the 'record-only' evidence judicial review rule:[27] The Applicant seeks to introduce fresh evidence by way of an affidavit. On a judicial review, the Court will normally consider only the material that was before the administrative decision-maker. In this case, that material is found in the Record of Proceedings. However, in certain limited circumstances, evidence that is not in the Record of Proceedings may be considered on judicial review – for example, to demonstrate a denial of procedural fairness that is not apparent from the record (see, for example, Queensway Excavating & Landscaping Ltd. v. City of Toronto, 2019 ONSC 5860 (Div. Ct.) at para. 46). . Sobczyk v. Ontario ['absent material point', 'fairness', 'narrative']
In Sobczyk v. Ontario (Div Ct, 2021) the Divisional Court succinctly states the fresh evidence principle in judicial reviews:[24] As a general principle, evidence that was not before the decision-maker and that goes to the merits of the matter is not admissible on an application for judicial review. There are, however, limited circumstances in which the record may be supplemented: (a) to show the absence of evidence on an essential point; (b) to disclose a breach of natural justice that cannot be proven by reference to the record; or (c) to provide general background that might assist the court in understanding the underlying issues. [See Durham Regional Police Service v. The Ontario Civilian Police Commission, 2021 ONSC 2065]. . Scott v. Toronto (City) ['narrative', 'complete absence of evidence on a material point', 'fairness']
In Scott v. Toronto (City) (Div Ct, 2021) the Divisional Court considered a judicial review of a 'parking pad' permit denial by a municipal 'Community Council'. The court canvassed law regarding the record on the judicial review:What is the record on judicial review?
[18] Generally, the record on judicial review is restricted to what was before the decision-maker: Bernard v. Canada Revenue Agency, 2015 FCA 263, para. 13. That is because this court’s function is to review the decision below, not to hear the case de novo.
[19] There are exceptions to the general rule. In this case, a relevant exception relates to background information, described by Stratas J.A. as “non-argumentative orienting statements that assist the reviewing court in understanding the history and nature of the case that was before the administrative decision-maker” (Bernard v. Canada Revenue Agency, 2015 FCA 263, para. 21). This may include affidavit evidence setting out a neutral summary of procedures, summarizing or identifying key evidence before the decision-maker below, and evidence that otherwise facilitates the court’s reviewing task and does not invade the administrative decision-maker’s role as fact-finder and merits-decider (Bernard, paras. 23 and 28). 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: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.).
[20] Another 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 (Bernard, para. 25). If a party knew of the issue at the time, this should be on the record. If a party failed to object before the decision-maker, it generally cannot raise an objection for first time on judicial review (Bernard, paras. 26-30). . Bastien v. University of Toronto ['narrative' exception]
In Bastien v. University of Toronto (Div Ct, 2021) the Divisional Court made some basic comments of judicial review:[13] An application for judicial review is not a trial de novo or rehearing of the underlying dispute. It is a review of the decision below, in this case the decision of the AAC, based on the record that was before the AAC.[1] Apart from uncontroversial background evidence, affidavit evidence to supplement the record below is admissible only in exceptional circumstances.[2] . Michalski v. McMaster University ['fairness', 'bias']
In Michalski v. McMaster University (Div Ct, 2022) the Divisional Court identified an exception to the contents of the record for judicial reviews:[91] ... Although evidence on an Application for judicial review is generally restricted to that which was before the original decision-maker, there are recognized exceptions to the general rule, including the admissibility of materials “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”: 30 Bay ORC Holdings v. Toronto, 2021 ONSC 251, 13 M.P.L.R. (6th) 52 (Div. Ct.) at para. 114; Murray, at para.18. ... . Poyton v. Office of the Independent Police Review Director [evidence failing Keeprite test]
In Poyton v. Office of the Independent Police Review Director (Div Ct, 2022) the Divisional Court briefly states the judicial review record doctrine in Keeprite in relation to newspaper articles:[5] The Applicant seeks to adduce two newspaper articles (one from the BBC and the other from CTV news. Both articles address the many unsolved murders of Indigenous women, and the characterization of those murders as a “genocide”. No proper basis has been offered to justify adding these materials to the record when they were not before the decision-maker below: Re Keeprite Workers’ Independent Union and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 OR (2d) 513 (CA). An allegation of systemic racism was not made to the respondent. Further, these articles are not admissible as evidence in this court as evidence of the truth of their contents in any event. In most circumstances, including this one, newspaper articles are classic hearsay evidence and are not admissible without an evidentiary foundation such as admissible expert evidence in which the truth of the articles is adopted. . Teksavvy Solutions Inc. v. Bell Canada [fed] exceptions for 1. ground-relevant evidence 2. narrative 3. relating to remedial discretion
In Teksavvy Solutions Inc. v. Bell Canada (Fed CA, 2022) the Federal Court of Appeal considers the documentary record in a judicial review case:[8] The general rule as to the documentary record on an application for judicial review was set out at paragraph 7 of ‘Namgis, as follows:Thus, the normal rule, subject to limited exceptions, is that only material that was before the administrative decision-maker, the merits-decider, is admissible on judicial review: see, e.g., Association of Universities at para. 17; Delios at para. 42; Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189. Attempts in the first-instance reviewing court to file evidence that goes to the merits of the administrative decision and that was not before the administrative decision-maker must be rebuffed. [9] This rule is subject to certain exceptions, whose application is the subject matter of the dispute between the parties. The exceptions are listed at paragraph 10 of ‘Namgis as follows:a) General background affidavits;
b) Affidavits concerning grounds of review where evidence cannot be found in the record of the administrative decision-maker;
c) Affidavits to highlight gaps in the record; and
d) Affidavits relevant to the reviewing court’s remedial discretion.
(collectively the Exceptions) ....
[13] The respondents argue that the documents which they seek to introduce come within the Exceptions. Normally, those who seek the benefit of an exception have the burden of demonstrating that they are entitled to that benefit: Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361 at para. 38, Offshore Logistics Inc. v. Halifax Longshoremen’s Association, Local 269, 25 Admin L.R. (3d) 224 (F.C.A.), 2000 CanLII 15852 at para. 58, Rubin v. President of Canada Mortgage & Housing Corp., [1989] 1 FC 265 (F.C.A.), 1988 CanLII 5656 at para. 25, El Maki v. Canada (Employment Insurance Commission), 98 C.L.L.C. 240-006 (F.C.A.), 1998 CanLII 8060 at para. 5, Defence Construction Canada v. Ucanu Manufacturing Corp., 2017 FCA 133, [2018] 2 F.C.R. 269 at para. 75.
[14] As a result, I am not prepared to order that the Contested Materials be included in the Appeal Book subject to their admissibility being challenged by an objecting party. The onus is on the party claiming the benefit of the Exceptions to show that they are entitled to that benefit. . Durham Regional Police Service v. The Ontario Civilian Police Commission ['no fresh evidence', 'absent material point', 'fairness', 'narrative']
In Durham Regional Police Service v. The Ontario Civilian Police Commission (Div Ct, 2021) the Divisional Court considered the distinction between fresh evidence on an appeal versus a judicial review (JR), and the contents of a JR record:[45] The DPRS’ reliance on the Palmer test is misplaced. It is directed to the admission of fresh evidence on an appeal. In this case, however, the evidence is sought to be relied on as part of the record on judicial review. Generally, the record on judicial review is restricted to what was before the decision-maker. There are, however, limited circumstances where the record may be supplemented: e.g., to show the absence of evidence on an essential point, to disclose 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: Keeprite; Scott v. Toronto (City), 2021 ONSC 858 at paras. 19-20.
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