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Judicial Review - Factum. Boua v. Canadian Imperial Bank of Commerce
In Boua v. Canadian Imperial Bank of Commerce (Fed CA, 2026) the Federal Court of Appeal dismissed a JR, this brought against "two decisions of the Canada Industrial Relations Board" where "the Board ruled on a certain number of preliminary objections raised by both parties" in an unjust dismissal context.
The court considers the propriety of inclusion of evidence in a JR factum, here regarding bias allegations:[4] On the issue of bias, this Court must determine, having regard to the record before it, whether the alleged breaches took place (Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at para. 54). A tribunal’s impartiality is presumed. Any challenge to it is a serious allegation that cannot rest on mere suspicion or pure conjecture. On the contrary, this type of argument must be "“supported by material evidence demonstrating conduct that derogates from the standard”" from the standpoint of a reasonable and right‑minded person (Arthur v. Canada (Attorney General), 2001 FCA 223 at para. 8; Maritime Employers Association v. Longshoremen’s Union, Local 375 (Canadian Union of Public Employees), 2020 FCA 29 at para. 5; Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at pp. 394–395). Here, there is no evidence of this nature before us in the record, nor was any such evidence adduced before the Board, which had nevertheless given the applicant every opportunity to support this allegation.
[5] The memorandum of fact and law the applicant submitted before us does indeed contain details of what caused her to question the Board’s impartiality towards her. However, there is no evidence in the record supporting what the applicant says on this matter. These statements therefore remain essentially unsubstantiated allegations on which the Court cannot rely to determine the merits of the bias argument. As this Court has recently noted, it is not appropriate to put evidence before it by means of a memorandum of fact and law (Qualizza v. Canada, 2025 FCA 222 at para. 14). On judicial review, the evidentiary basis for the arguments put forward by the parties in their memoranda must be found in the record of either the applicant or the respondent filed under Rules 309 and 310 of the Federal Courts Rules, SOR/98-106, failing which it may not be considered (Rémillard v. Canada (National Revenue), 2022 FCA 63 at para. 56). Once again, evidence relating to the allegation of bias is completely absent in this case, which is sufficient to reject this argument. . The Hospital for Sick Children v. Information and Privacy Commissioner of Ontario
In The Hospital for Sick Children v. Information and Privacy Commissioner of Ontario (Ont Divisional Ct, 2025) the Divisional Court allowed a JR motion for a sealing order [under CJA s.137(2) 'Sealing documents'] for redactions.
Here the court criticises the IPC for 'filing' a letter explaining their position, rather than a proper motion factum:[13] In response to the motion, IPCO filed a motion record, including affidavit evidence, but no factum. On the eve of this motion, IPCO provided a letter to the court, which is neither proper evidence nor a factum.
[14] In the letter, it states that they are not opposing the motion but providing the letter "to assist the Divisional Court, given the IPC's role as the statutory tribunal responsible for cyber security...". As with other submissions by tribunals assisting the Court, they should have filed a factum. There is no ability to put a letter before the Court on a motion.
[15] IPCO was the only party opposing the motion at the outset. A schedule had been set up with the hospital and IPCO for the exchange of material. IPCO served an affidavit, that the hospital had to address. But for reasons that are unexplained, IPCO then failed to file their factum and sent a letter which had all the trimmings of a factum but was not properly before the Court.
[16] In the letter, IPCO proceeds to provide reasons why the order should not be granted and provides a detailed response to the hospital's factum. Their letter does not "assist" the court by clarifying procedures, policies or the law, but is full of statements of fact. Again, all of this should have been contained in a factum.
[17] IPCO asks that no costs be ordered against it, as it only became involved to assist the Court. That is not the position taken by IPCO up until the filing of their letter. They were the only party opposing the motion, which is why a schedule was set out in my previous direction and a hearing date booked. Filing a letter in lieu of a factum does not absolve them from costs consequences.
[18] I find the Hospital is entitled to their costs of the motion. They were successful on their motion. They were required to proceed with a scheduled motion, including affidavits, factums and reply material as a direct result of IPCO’s actions.
[19] The parties may each serve and file (by uploading onto Case Center) their bill of costs and no more than 2 pages of written submissions as to quantum, within ten days, and email to the court to my attention. . South Junction Triangle Grows Neighbourhood Association v City of Toronto
In South Junction Triangle Grows Neighbourhood Association v City of Toronto (Div Court, 2024) the Divisional Court noted that "in the ordinary course factums are delivered after [SS: my emphasis] all evidence is known", here where affidavits were filed and cross-examination was intended to be conducted upon them:[13] The City is prepared to produce its witness for cross-examination under Rule 39.02 in the ordinary course.
....
[19] I would not defer the cross-examination to the hearing. While the applicant has already delivered its factum, in the ordinary course factums are delivered after all evidence is known. In that way the court is given the benefit of factums that are responsive to the full evidentiary record.
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