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Judicial Review - Evidence - Keeprite Exceptions (3). 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 lists exceptions to the JR record 'fresh evidence' exclusion rule:[22] Exceptions exist, however. Justice Stratas explains in Association of Universities and Colleges Canada,[20] There are a few recognized exceptions to the general rule against this Court receiving evidence in an application for judicial review, and the list of exceptions may not be closed. These exceptions exist only in situations where the receipt of evidence by this Court is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker (described in paragraphs 17-18, above). In fact, many of these exceptions tend to facilitate or advance the role of the judicial review court without offending the role of the administrative decision-maker. Three such exceptions are as follows:(a) Sometimes this Court will receive an affidavit that provides general background in circumstances where that information might assist it in understanding the issues relevant to the judicial review: see, e.g., Estate of Corinne Kelley v. Canada, 2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada (Attorney General), 2005 FC 1013 at paragraphs 39-40; Chopra v. Canada (Treasury Board) (1999), 1999 CanLII 8044 (FC), 168 F.T.R. 273 at paragraph 9. 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, invading the role of the latter as fact-finder and merits-decider. In this case, the applicants invoke this exception for much of the Juliano affidavit.
(b) Sometimes affidavits are necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfil its role of reviewing for procedural unfairness: e.g, Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980) 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). For example, if it were discovered that one of the parties was bribing an administrative decision-maker, evidence of the bribe could be placed before this Court in support of a bias argument.
(c) Sometimes an affidavit is received on judicial review in order to highlight the complete absence of evidence before the administrative decision-maker when it made a particular finding: Keeprite, supra.
[Emphasis added.] [23] The law is the same in Ontario. See: Gao v. Health Profession Appeal and Review Board, 2023 ONSC 742 (CanLII) at para. 16 and Keeprite cited above. The court continues to examine to proposed fresh evidence on the argument that it fit into the 'narrative' exemption, although denying it on the basis that (in part) it amounts to an extended factum:[27] The proposed evidence in this case does not fit into the “background” exception recognized in the case law. First, the evidence very much exceeds the limited role of background and “goes to the merits” as described by Stratas JA. In addition, allowing a decision-maker to expand on his or her understanding of the evidence and approach to the decision, beyond the words of the decision itself, is contrary to, and undermines, the careful demarcation of roles of the court and the decision-maker.
[28] This case is not a close call in my view. The Registrar starts at the beginning and gives his evidence on each step of the way through the investigation(s) that were being conducted by the applicants that are then the subject matter of his impugned decision.
[29] The affidavit is not required simply to put documents before the court on a neutral basis and without commentary. The affidavit does not exhibit any documents. Rather, it refers in the main to documents that are already before the court in the Record of Proceedings. The sole use of the affidavit then it to provide the commentary (and in some places spin) to which the applicants object.
[30] While some of the impugned affidavit explains the statutory scheme that is hitherto unknown to the court, this is really submissions for a factum. In fact, interpretation of a statute comes better from counsel as submissions than from a layperson as evidence.
[31] Even to the extent that the affidavit has some helpful background about the statutory scheme, it is not appropriate to expand factum length by moving submissions to an affidavit.
[32] There are differing views about whether this type of decision is best made by the panel that hears the application or by a single judge in advance. Counsel for the Registrar submits that the better process would be to defer the applicants’ motion to the panel and then to allow the parties a few extra pages of factum to deal with the motion.
[33] There are two competing policies at play. First, if the evidence may be helpful to the panel to aid them in deciding the merits, then the panel may wish to see it. On that basis, they should be the ones who decide if the affidavit should be allowed. On the other hand, it is important to keep judicial review proceedings focused on the issues, orderly, organized, and concise. A judicial review proceeding is not a time to throw everything at the wall to see what sticks.
[34] In Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316 (CanLII) Harvison Young J (as she then was) reconciled the competing policies in this way:[50] These two principles, considered within the context of the present case, are by no means irreconcilable. Defining 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. As I will discuss below, there is material contained within the affidavit material that is clearly inadmissible and should be struck. On the other hand, this court must take care not to usurp the role of the panel in determining the merits. In case of doubt concerning the admissibility of affidavit material filed, it should not be struck
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