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Judicial Review - Fresh Evidence. DGN Truck & Forklift Driving School v. Ontario Superintendent of Care
In DGN Truck & Forklift Driving School v. Ontario Superintendent of Care (Div Court, 2024) the Divisional Court allowed a JR from the issuance of 'Revocations of Program Approval' (presumably under the Ontario Career Colleges Act, 2005).
Here the court grants a JR fresh evidence motion:Motion for Fresh Evidence
[5] Before discussing whether the decisions at issue were made in a procedurally fair manner, I am going to deal with the Applicants’ fresh evidence motion. In Association of Universities and Colleges of Canada and the University of Manitoba v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297, Stratas J. reviewed the recognized exceptions to the general rule against a court receiving evidence in an application for judicial review. The concern about receiving such evidence rests in the demarcation between the roles of the administrative tribunal and the reviewing court. As put by Stratas J. at para. 19, “this Court cannot allow itself to become a forum for fact-finding on the merits of the matter.” One of the recognized exceptions is when the evidence is necessary for the court to assess any alleged procedural defects in the process used by the decision maker. The fresh evidence sought to be introduced in this case is necessary for us to assess the issue this application will turn on: whether the Superintendent breached her duty of procedural fairness. Specifically, the evidence speaks to facts that are relevant to a number of the factors that must be assessed in this regard, namely the importance of the decision to the Applicants, the impact of the decision on them and whether they had a legitimate expectation that was breached unfairly. Therefore, to the extent necessary to discuss the issue of procedural fairness, the fresh evidence has been admitted. . Liu v. Ontario Labour Relations Board
In Liu v. Ontario Labour Relations Board (Div Court, 2024) the Divisional Court considers an issue of fresh evidence:[13] Ms. Liu has not brought a fresh evidence motion. If Ms. Liu had brought a motion to adduce fresh evidence on this motion, she would have had to establish the following:a. The evidence could not have, through the exercise of due diligence, been presented at the hearing before the motion judge;
b. The evidence is reasonably capable of belief;
c. The evidence is relevant to a potentially decisive issue on the motion; and
d. The fresh evidence, if believed, likely would have affected the result of the motion: R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, Alghaithy v. University of Ottawa, 2011 ONSC 5879 (Div. Ct) at para. 31. [14] Even if Ms. Liu had brought a fresh evidence motion, she has not explained why she could not have filed the evidence she now seeks to adduce as part of the record before the motion judge. She has also not established that the fresh evidence likely would have altered the motion judge’s assessment of the merits of her application for judicial review. ....
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