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Judicial Review - Evidence Practice

. Davidson v. Canada (Attorney General) [personal notes before tribunal inadmissible]

In Davidson v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered the interesting issue of when notes, taken by the party and his wife, were admissible on whether he was treated with procedural unfairness at the tribunal below:
[18] Further on the question of evidence, in support of his application before this Court, Mr. Davidson filed his affidavit attaching as an exhibit a copy of the notes taken by his wife and him during the two-day hearing before the Board. He relied heavily on these notes while advancing his written and oral submissions. Counsel for the respondent did not object to the filing of these notes and did not object to Mr. Davidson referencing them in his written materials or during his oral submissions.

[19] While it is unfortunate that a transcript of this hearing is not available and while it is understandable that Mr. Davidson wishes to offer the best evidence he can regarding the oral testimony provided during the hearing before the Board, nonetheless, this Court may not rely on notes taken by the applicant or his wife. Unlike certain tribunals, such as in the context of citizenship and immigration matters where the recording of proceedings is routine, hearings before the Board are not recorded.

[20] In my view, the notes taken during the hearing cannot be described as new evidence, and therefore, I need not be concerned with their admissibility under the exceptions to the admissibility of new evidence set out in paragraph 20 of this Court’s decision in Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright) 2012 FCA 22, 428 N.R. 297.

[21] Further, the notes from Mr. Davidson’s spouse are being used to challenge findings of fact and invite this Court to re-hear and re-weigh the evidence in order for us to arrive at our own conclusions as to the merits. That is not our role. We must therefore disregard these notes.
. Rosianu v. Western Logistics Inc. [federal - practice]

In Rosianu v. Western Logistics Inc. (Fed CA, 2021) the Federal Court of Appeal commented on the nature of admissible affidavit evidence, here in a judicial review:
[29] Moreover, as explained by the Federal Court, there are general principles applicable to affidavit evidence (specifically, in this context, Rule 81(1) of the Federal Courts Rules, SOR/98-106), for example, it cannot consist of arguments, opinions, or hearsay. Finally, the evidence must be relevant to an issue properly before the Court. ...
. Scott v. Toronto (City) [fresh evidence practice]

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 considered the procedure and practice for admitting 'fresh evidence:
[21] Evidence within the general rule or its exceptions may be adduced by way of affidavit on the judicial review pursuant to Rule 68 of the Rules of Civil Procedure, RRO 1990, Reg 194. However, if a party seeks to adduce fresh evidence – evidence not before the decision-maker and not fitting within an exception to the general rule – then the party must bring a motion to admit fresh evidence. If a party improperly includes evidence in its affidavit, the other party should raise an objection or move to strike the evidence. Since the court must ensure that it adheres to its supervisory role on judicial review, even where no objection is made the court can raise the question whether evidence before it is admissible.
. Kovacevic v. Kovacevic [fresh evidence in 'affidavit' form ]

In Kovacevic v. Kovacevic (Div Ct, 2022) the Divisional Court considered the documentary record normally available at a judicial review of an administrative proceeding:
[12] On the merits of the motion, Corbett J.’s decision was based on the well-established general rule that on an application for judicial review, affidavits containing material that was not before the decision-maker at first instance will not be allowed: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (CanLII), at para. 13. There are only very limited circumstances in which such affidavit evidence will be admitted: Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (CanLII), at paras. 10-13.
. Gordillo v. Canada (Attorney General) [excluded for including argument with evidence (bad practice)]

In Gordillo v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered an issue of fresh evidence in an appeal from a unsuccessful judicial review application:
[66] The admissibility of an affidavit is a question of law, reviewable on the standard of correctness: Canada (Attorney General) v. Iris Technologies Inc., 2021 FCA 223 at para. 20; Collins v. Canada, 2015 FCA 281 at paras. 49, 57. However, factual findings related to a determination of admissibility are entitled to deference: Iris Technologies at para. 20; Collins at para. 51.

[67] The application judge made no error of law in setting out the general rule that the evidentiary record before the reviewing court is confined to the record that was before the decision maker, or in setting out the limited exceptions to that rule.

[68] The appellants say that the application judge erred in failing to apply the exception recognized in Association of Universities for evidence "“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.”"

[69] But the application judge saw the situation differently. He found the affidavit to be "“replete with legal arguments”" – a conclusion he supported with a table comparing statements in the affidavit with statements in the appellants’ memorandum. He also found the affidavit to contain evidence that the appellants could have provided, but chose not to provide, in their disclosure, and to amount, therefore, to an impermissible attempt to improve the appellants’ position on judicial review from what it was before the decision maker. Indeed, the detailed accounts in the affidavit of the further evidence the applicants say they could have provided, and the hundreds of pages of documents exhibited to the affidavit, go well beyond what was necessary simply to bring the procedural defects the appellants asserted to the reviewing court’s attention.

[70] The factual findings of the application judge related to his conclusion that no exception to the general rule applied are entitled to deference. They disclose no palpable and overriding error. Thus, the Federal Court made no reviewable error in disregarding portions of the appellants’ affidavit.

[71] In view of the manner in which the appellants put their case in this Court, this conclusion creates some difficulty for the Court in deciding this appeal. In both their written and their oral submissions in the appeal, the appellants rely on documents exhibited to their affidavit but not put before the Commissioner – documents among those the application judge determined should not be considered. Having upheld this decision, this Court must now do its best to take no account of these portions of the appellants’ submissions or of the underlying documents.
. Knight v. HRTO [practice re policy guidelines]

In Knight v. HRTO (Div Ct, 2020) the Divisional Court clarified the documentary status of tribunal publications in the preparation of it's 'record of proceedings' under s.20 SPPA:
[13] I also observe that quite a few of the documents proposed to be introduced into the record by the applicant are guidelines and other statements of policy, procedure and the like taken from the HRTO website. Material such as this is not normally considered evidence. Parties typically may file and refer to such material, as they would to reported decisions of the court or other tribunals, in the course of submissions without the need to make such documents part of the evidentiary record of proceedings.


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