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JR - Evidence - Keeprite Exceptions (4). Doxy.Me Inc. v. Ontario Health et al.
In Doxy.Me Inc. v. Ontario Health et al. (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against "Ontario Health’s refusal to verify that its video service complies with required standards. The result of Ontario Health’s decisions is that Doxy’s physician clients are not entitled to receive payment from the Ontario Health Insurance Plan (“OHIP”) for any services rendered through its videoconferencing platform."
Here the court sets out exceptions to the presumptive contents of a JR record:[41] The evidence on an application for judicial review is generally restricted to the evidence that was before the original decision-maker. There are limited exceptions to this rule, which Penny J. described In 30 Bay ORC Holdings Inc. et al. v. City of Toronto, 2021 ONSC 251, at para. 114 as follows:(a) the materials ought to have been included in the record of proceedings (i.e., they are properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22);
(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. . Diarez v. Staff Plus et al
In Diarez v. Staff Plus et al (Ont CA, 2026) the Ontario Court of Appeal dismissed an HRTO JR, this brought against findings that the applicant's "allegations of discrimination against the respondents ... (“the employer”) had no reasonable prospect of success".
Here the court considers a JR record issue (Keeprite):[11] Mr. Diarez submitted a lengthy application record that contains an affidavit and many exhibits, some of which were not before the HRTO.
[12] An application for judicial review is generally decided on the basis of the record that was before the initial decision-maker. In exceptional circumstances, supplementary evidence may be permitted. The three recognized exceptions are set out in Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R.(2d) 513 (C.A.). They are:i) where the evidence seeks to provide general background information, which does not include information that goes to the merits of the matter;
ii) where the affidavit is designed to demonstrate that there was a complete absence of evidence before the tribunal below on a certain issue; and
iii) where the evidence goes to the issue of natural justice, procedural fairness, improper purpose or fraud that could not have been put before the original decision-maker. . Agneca Inc. v. The City of Toronto
In Agneca Inc. v. The City of Toronto (Ont Div Ct, 2026) the Ontario Divisional Court granted a Toronto motion to strike parts of an evidentiary record, here where the underlying procedure was a JR challenging the amendment of "a zoning bylaw to permit the building of supportive rental housing", here alleging that the City was 'close-minded' in it's decision-making.
Here the court considered exceptions to the Keeprite doctrine for JR records:Governing principles
[6] An application for judicial review is generally decided on the basis of the record that was before the initial decision-maker.
[7] In exceptional circumstances, affidavit evidence may be permitted. The three recognized exceptions are:i) where the evidence seeks to provide general background information, which does not include information that goes to the merits of the matter;
ii) where the affidavit is designed to demonstrate that there was a complete absence of evidence before the tribunal below on a certain issue; and
iii) where the evidence goes to the issue of natural justice, procedural fairness, improper purpose or fraud that could not have been put before the original decision-maker: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R.(2d) 513 (C.A.). [8] Affidavit evidence that a party seeks to adduce must also meet the usual admissibility requirements for evidence on an application.
[9] Further, it is open to a motion judge to make determinations about the record in advance of an application. A preliminary motion of this kind may be scheduled when there is concern that a voluminous record containing potentially inadmissible evidence would result in the respondent having to compile its own voluminous responding record. The records and the application can become unwieldy and compromised by collateral issues.
[10] A judge hearing such a motion balances competing interests. There is an important interest in defining the record, removing impermissible argument, and avoiding the proliferation of the record and collateral issues. At the same time, the motion judge should be cognisant of the panel’s role in determining the matter, including the panel’s assessment of the tenability of the various grounds for the application and of the evidence in support of those grounds. If the motion judge is uncertain about the relevance of certain material, the issue may be left to the panel to determine: Rockcliffe Park Residents Association v. City of Ottawa, 2024 ONSC 2690 at paras. 30-33. . West Carleton Community Alliance v. The City of Ottawa et al
In West Carleton Community Alliance v. The City of Ottawa et al (Ont Div Ct, 2026) the Ontario Divisional Court partially granted a motion, here seeking a stay of a by-law amendment's "implementation pending the hearing of its application" and further, the striking of "portions of the application and portions of the Applicant’s record" - these within a JR brought "to quash both the Amendment and the MSR" ["Municipal Support Resolution"].
The court considers the test for striking and preserving parts of the record, here in a JR context:[46] A single judge is permitted to strike materials in advance of an application being heard by the panel. In doing so, the motion judge balances competing interests. There is an interest in defining the record, removing impermissible argument, and avoiding the proliferation of the record and collateral issues. However, the motion judge should also be cognizant of the panel’s role in determining the matter, including the panel’s assessment of the tenability of the various grounds for the application and of the evidence in support of those grounds. If the motion judge is uncertain about the relevance of certain material, the issue may be left to the panel to determine: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transport), 2011 ONSC 4086; Humberplex Developments v Attorney General for Ontario, 2023 ONSC 2962 (Div. Ct.), City of Toronto v. CUPE Local 79 and Mathew Wilson, 2022 ONSC 6971, Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316, 350 D.L.R. (4th) 720 (Div. Ct.).
....
iii) Should portions of the Applicant’s affidavit evidence be struck?
[65] The general rule on applications for judicial review is that material that was not before the decision-maker at first instance should not be before the court on review. The task of the court is to review the decision below based on the materials that were before it: Sierra Club, at para. 13.
[66] In exceptional circumstances, affidavit evidence may be permitted. The three recognized exceptions are i) where the evidence seeks to provide general background information, which does not include information that goes to the merits of the matter; ii) where the affidavit is designed to demonstrate that there was a complete absence of evidence before the tribunal below on a certain issue; and iii) where the evidence goes to the issue of natural justice, procedural fairness, improper purpose or fraud that could not have been put before the original decision-maker: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.).
[67] Evidence must also meet the usual rules of admissibility. . Sayers Foods Ltd. v. Gay Company Ltd.
In Sayers Foods Ltd. v. Gay Company Ltd. (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a statutory JR, this brought against an adjudicator's order for "the Applicant to pay $685,574.91, plus interest .... pursuant to the prompt payment regime in the Construction Act" [under Part II.1 - Construction Dispute Interim Adjudication].
The court considered a JR 'fresh evidence' issue, here where some fresh evidence was admitted on mutual consent and more contested:(b) Contested Fresh Evidence
[41] In general, the record on judicial review should be the same record that was before the original decision-maker when the underlying decision was made: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086, paras. 10-15. Evidence that was not in the record below is generally inadmissible on judicial review unless it falls within recognized exceptions (Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 4501, paras. 33-39):I. Where the evidence provides background information to place a decision in context.
II. Where the evidence demonstrates a complete absence of evidence before the tribunal on a material point, to support an argument that a key finding is unreasonable because it rests on a factual finding unsupported by any evidence.
III. Where the evidence is in respect to natural justice, fairness, improper purpose, or fraud, and the evidence could not have been put before the original decisionmaker. See also: Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644, para. 12; Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882, paras. 12-18.
[42] Sayers argues that a more permissive standard for fresh evidence ought to be applied in judicial review of prompt payment determinations under the Construction Act (Sayers’ Factum on the Fresh Evidence Motion, paras. 9-15). We see no good basis for this argument, and the provisions of the Construction Act strongly militate against such an approach.
[43] Sayer cites no authority for its proposed approach to this issue. Rather, it argues that the short timelines for exchange of adjudication materials caused it unfairness, and materials it now seeks to adduce would have been adduced in the adjudication if it had had time to locate them.
[44] In our view, such materials are potentially admissible under one of the recognized exceptions, but only for the limited purpose of that exception: it is relevant to the argument of procedural unfairness. No relaxation in the Sierra Club principles are required to reach this conclusion. Fresh evidence may be used to establish prejudice arising from alleged unfairness. They may not be used for anything more, and in particular, they may not be used for an assessment of the underlying merits of the impugned determination. If the court found that there was procedural unfairness, and that this unfairness had deprived a party of a reasonable opportunity to adduce material evidence, and that this failure could have affected the result of the adjudication, then the remedy usually would be to allow the application and remit the matter for adjudication on a complete record.
[45] In this case, however, we are satisfied that the proposed fresh evidence – while it may have been admissible before the Adjudicator had it been tendered in the adjudication process – would not have affected the result. We are also satisfied that Sayers had a contractual obligation to mount its claim for a Contract credit in a timely manner if it wished to use that claim as a basis to stop paying for construction work as it was being done on its project. It had nine months to be gathering its evidence for its delay claim prior to the adjudication – not the mere days it says it had once the adjudication process was commenced.
[46] Further, as we explain below, we find no procedural unfairness that could ground a basis for this court to interfere with the impugned determination. Thus, even if these materials were admitted as fresh evidence, since there was no procedural unfairness, there is no need or the court to determine whether prejudice arose therefrom.
[47] Finally, we accept Gay Co.’s argument that the contested fresh evidence is replete with impermissible material. It contains factual argument, legal argument, inadmissible opinion evidence, hearsay on contentious issues, and de novo argument on the merits. None of this is properly admissible in any event: Gutierrez v. The Watchtower Bible and Tract Society of Canada, 2019 ONSC 3069, paras. 50-51; Lovell v. Ontario (Minister of Natural Resources and Forestry), 2022 ONSC 423, para. 8; Mensour v. The Corporation of the Town of Leamington, 2012 ONSC 3525, paras. 18-25; Rules 4.06(2) and 39.01(5) of the Rules of Civil Procedure; Belsito v. 2220742 Ontario Ltd., 2017 ONSC 7207, para. 17.
[48] For all of these reasons, the disputed fresh evidence tendered by Sayers (set out at Schedule “A” to the Factum of Gay Co. on the fresh evidence motion) is not admitted into evidence on this application. . Saltat v Correia and others
In Saltat v Correia and others (Ont Div Ct, 2026) the Ontario Divisional Court considers a JR record (fresh evidence) matter, here where an underlying issue was procedural fairness:[15] To the extent that the proposed supplementary evidence about counsel relates to procedural fairness at the HRTO or in the proceedings leading up to the hearing in this Court, it may be permitted under the legal test for supplementary evidence, as set out, for example, in Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). .... . Robinson v. The Corporation of the City of Pickering
In Robinson v. The Corporation of the City of Pickering (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against "a sanction imposed by Pickering’s City Council for breaches of the City’s Code of Conduct". These breaches related to applicant statements that the Integrity Commissioner found to be false, misrepresentative of the City's policy, and "which exposed the City to a potential breach of the Municipal Freedom of Information and Protection of Privacy Act".
The court considers a JR record supplementation issue, here relating to an argument of lack of procedural fairness:[9] The respondent submits that much of the evidence relied on by the applicant is not properly before the court because it was not before the Integrity Commissioner or Council. The applicant does not dispute this. She also has not justified why the material should be admitted, other than to say some of it relates to procedural fairness. There are exceptions to the general rule that the record on judicial review is restricted to the material before the decision-maker. One of the exceptions is for evidence relevant to procedural fairness that is not contained in the decision maker’s record and that could not have been raised before the decision-maker: Scott v. Toronto (City), 2021 ONSC 858, at para. 19. The applicant did not justify why the material she relied on that was not provided to the Integrity Commissioner or City Council met that test. It therefore is not admitted.
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