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Judicial Review - Evidence - Keeprite Exceptions (3). The Philosopher’s Wool Environmental Preserve v. The County of Bruce
In The Philosopher’s Wool Environmental Preserve v. The County of Bruce (Ont Div Ct, 2025) the Ontario Divisional Court dismissed "in large part" a motion to quash a JR, this JR challenging a municipality's "decision to approve a plan of subdivision".
Here the court considers a typical JR record, and exceptions thereto:[74] Evidence that was not before the decision maker is generally not admissible on judicial review unless if falls within three recognized exceptions:a. Where the evidence seeks to provide general background information. However, the information cannot consist of evidence that goes to the merits of the matter.
b. Where the affidavit is designed to tell the reviewing court that there was a complete absence of evidence before the tribunal below on a certain subject matter.
c. Evidence that goes to the issue of natural justice, procedural fairness, improper purpose or fraud that could not have been put before the original decision maker. (Windrift Adventures v. Chief Animal Welfare Inspector, 2023 ONSC 4501 citing Bernard v. Canada (Revenue Canada), 2015 FCA 263.) . Haulage Network Driving Academy Inc. v. Ontario (Superintendent of Career Colleges)
In Haulage Network Driving Academy Inc. v. Ontario (Superintendent of Career Colleges) (Div Ct, 2025) the Divisional Court allowed a JR, here regarding the question of whether the "Superintendent [is] empowered to immediately forfeit a college’s security bond every time she issues a proposal to suspend, revoke or refuse to renew the college’s registration" (a LAT appeal was allowed).
Here the court considered the presumptive contents of JR records, and exceptions thereto:[11] The general rule is that affidavits containing material that was not before the decision maker are not admissible on an application for judicial review. The court has articulated a set of narrow exceptions to this rule. The following material may be admitted:a. Material that ought to have been included in the record of proceeding (that is, it is properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22);
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;
iii. Shows a complete lack of evidence to support a material finding of fact; or
iv. Where the evidence is relevant to the exercise of the court’s remedial discretion; and
c. Materials that are properly “fresh evidence” on the application.
Humberplex Developments v. Attorney General for Ontario, 2023 ONSC 2962 (Div. Ct.), at para. 15; Rockcliffe Park Residents Association v. City of Ottawa, 2024 ONSC 2690 (Div. Ct.), at para. 35; Lachance v. Ontario (Solicitor General), 2023 ONSC 7143 (Div. Ct.) at para. 11. . Parikh v. Walmart Canada Corporation et al. [single versus full panel]
In Parikh v. Walmart Canada Corporation et al. (Ont Divisional Ct, 2025) the Ontario Court of Appeal considers interlocutory motions within a labour JR, here where the JR was brought against an OLRB decision that refused "to extend the time for him to appeal an order dated November 30, 2022 made by a Ministry of Labour Inspector under the Occupational Health and Safety Act".
Here the court broadly considers a JR fresh evidence motion, which this single judge deferred to a full 3-judge JR panel:[15] Judicial review is not a new trial at which new evidence is considered and new facts are found. Rather judicial review is a process whereby the court assesses the reasonableness of the decision of a tribunal. The court is required to pay respectful attention to the tribunal’s reasons and to assess whether the reasons are justifiable, transparent, and intelligible. See: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII)
[16] At the hearing in January, the court will consider the reasonableness of what the OLRB wrote and decided based on the evidence and submissions that were made to the tribunal at the time.
[17] New evidence does not usually help the court assess the reasonableness of what a tribunal did on the material that was in evidence before it. Therefore, new evidence is usually not admitted on a judicial review application. See: Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 (CanLII).
[18] But there are exceptions. As discussed by Stratas JA in Association of Universities and Colleges:(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. [19] 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.
[20] Some cases have held that a single judge should not decide on fresh evidence as only the panel hearing the application can assess its utility and admissibility. Other cases have held that where the outcome is clear, it is efficient for a single judge to make evidence determinations in advance of the main hearing of the application.
[21] 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. [22] It is not clear to me whether some of Mr. Parikh’s material was put into evidence before the OLRB. I am also unaware of whether he has delivered a sworn affidavit as required. The court will not just look at loose documents uploaded to Case Center. A witness needs to swear or affirm in an affidavit that the documents are authentic. The documents should be attached as exhibits to the affidavit and their authenticity should be stated in the body of the affidavit.
[23] There is sufficient doubt in my mind about the admissibility and purpose of the documents being advanced by Mr. Parikh that, with the consent of the other parties, I defer the issue of admissibility to the panel that hears the application. . 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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