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Judicial Review - Evidence - Keeprite Exceptions (2)

. 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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