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Appeals - Appeal Book. Whitelaw v. Canada (Attorney General) [record required on appeal of JR]
In Whitelaw v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal considered the required contents of an Appeal Book under the Federal Rules [Rule 343], here where the moving party sought a transcript of the Federal Court which dismissed a JR application:[2] The present motion is being brought in a context where there is already an agreement on file between the parties on the contents of the Appeal Book (the Agreement). The Agreement, which was tendered for filing on December 19, 2024, was accepted for filing by Order of this Court dated January 16, 2025.
[3] However, the appellant claims that the transcript of the hearing before the Federal Court (the Transcript) should have been included in the materials listed in the Agreement. She says that the inclusion of that document was not in issue in her discussions with counsel for the respondents on the contents of the Appeal Book and that, therefore, she presumed it would be part of the listed materials in the Agreement. It was not. She blames the respondents for not having been straightforward in their communications with her and for being responsible, as a result, of this oversight of hers. I note that she also claims that this oversight occurred at a time she was facing some health issues related to the stress of having to meet the deadline for the filing of an agreement on the contents of the Appeal Book.
[4] In sum, the appellant is seeking to vary the content of the Agreement by adding a document – the Transcript – which she thought would be included in the Agreement’s listed materials.
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[7] Here, I agree with the respondents that granting the motion will not serve the interests of justice because the Transcript is unnecessary to dispose of the underlying appeal. Rule 343(2) is clear: it requires parties to an appeal before this Court to include in an Appeal Book "“only such documents, exhibits and transcripts as are required to dispose of the issues on appeal”". Although the Rule 343(2) test is a flexible one, a document should be included in the Appeal Book "“only if there is a reasonable basis for concluding that it is required to dispose of an issue on appeal”" (Bojangles’ International, LLC v. Bojangles Café Ltd., 2006 FCA 291, at para. 3).
[8] There is no such basis in the present case. As this Court stated in Collins v. Canada, 2010 FCA 128 (Collins), the transcript of the hearing before the Federal Court "“would disclose only the legal submissions made by the parties and any discussion that might have occurred in the course of the hearing”". It has therefore generally been considered irrelevant on appeal "“because it cannot assist this Court in determining whether the grounds of appeal are well founded”" (Collins at para. 3).
[9] The appellant contends that the Transcript is a "“foundational document”" to her appeal. This cannot be the case for two reasons. First and foremost, this is an appeal of a Federal Court’s decision dismissing a judicial review application. Our role on such appeals is to determine whether the Federal Court identified the appropriate standards of review to be applied to the Commission’s decision – correctness or reasonableness – and whether it properly applied those standards (Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at paras. 10‑12; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45‑47 (Agraira)). This requires this Court to "“step into the shoes”" of the Federal Court judge and focus on the administrative decision under review, rather than on that of the Federal Court (Agraira at para. 46; Jagadeesh v. Canadian Imperial Bank of Commerce, 2024 FCA 172, at paras. 24‑40 (Jagadeesh)).
[10] This means that the appellant in this case will get a fresh review of the Commission’s decision dismissing her complaint (Jagadeesh at para. 40, quoting Haynes v. Canada (Attorney General), 2023 FCA 158 at para. 16, leave to appeal to SCC refused, 41047 (6 June 2024); Sun v. Canada (Attorney General), 2024 FCA 152 at para. 4). More importantly, this means that any unfairness that might have occurred in the Federal Court would be cured by this Court’s review of the Commission’s decision (Jagadeesh at para. 41). In other words, assuming the hearing before the Federal Court was not as procedurally fair as it should have been, this would not assist the appellant in this judicial review appeal because the decision that matters in such context is the Commission’s decision, not the Federal Court’s.
[11] Second, in Collins, this Court identified an exception to the general rule that the transcript or recording of a hearing in the Federal Court is of no assistance to this Court in determining whether the grounds of appeal are well founded or not. That exception will apply when the transcript or recording provides evidence of a breach of procedural fairness committed by the Federal Court.
[12] However, it is important to underscore that Collins was not a judicial review matter; in that case, the appeal concerned an order of the Federal Court summarily dismissing an action in damages against the Federal Crown. Therefore, the Federal Court was not sitting in judicial review of an administrative decision-maker’s decision, as is the case here; it was the first instance decision maker so that this Court’s role in that case was different in the sense that the Court’s focus was – and could only be – on the Federal Court’s decision and the fairness of the process leading to it. . Dolma v. LPM Management
In Dolma v. LPM Management (Ont Divisional Ct, 2025) the Divisional Court dismissed a tenants s.210 RTA appeal, here from a non-payment of rent eviction order (which was already enforced).
Here the court considers the situation where an appellant files additional evidence documents (presumably in addition to those required by the Appellant's Certificate under RCP R61.05 ['Certificate or Agreement Respecting Evidence'] and R61.10 ['Appeal Book and Compendium']) in the appeal book, and the fresh evidence doctrine that applies to such excess documents (on an appeal):[17] There is a preliminary issue on this appeal. The tenant has included evidence that was not before the Board in the appeal materials, without seeking or obtaining leave to introduce fresh evidence. The landlord objects.
[18] One type of document in the application record is permitted without leave. The four pages of medical documents that the tenant put forward on the day of the second review hearing on August 22, 2024, do not need leave. Those documents were put forward to the Board at the second review hearing and are the subject of the ruling that is challenged on this appeal. Those documents are properly part of the appeal record.
[19] The appeal record also includes a medical product monograph regarding Olanzapine, which was not put forward to the Board, and an affidavit of one of the appellant’s legal representatives, sworn in December 2024 after this appeal was commenced. To be accepted by this Court, these materials must meet the legal test for fresh evidence on appeal. A motion to admit fresh evidence should have been brought, but I have decided to overlook that omission.
[20] Fresh evidence may only be considered on an appeal if it falls within certain limited categories. The relevant starting point is the decision in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. The appellant has put forward Volochay v. College of Massage Therapist, 2019 ONSC 5718 (Div. Ct.), which summarizes the Palmer test at para. 34. The tenant must show the following:(i) that the evidence could not have been adduced at trial by due diligence;
(ii) that the evidence is relevant in that it bears on a decisive or potentially decisive issue;
(iii) that the evidence must be credible in the sense that it is otherwise capable of belief; and,
(iv) that the evidence, if believed, taken with other evidence, could be expected to affect the result. [21] The drug monograph does not meet the above test. It would certainly have been available at the time of the Board hearings. Further, it is a complex document that should be accompanied by an expert opinion about the impact of that drug on the tenant, if they were still taking it. The medical records only show that it was prescribed in 2014. The monograph is not the sort of thing that should simply be added to the record and interpreted by the Court. Coming before the Court in this way, it cannot be said to meet the second or forth parts of the above test.
[22] The most extensive proposed fresh evidence is the affidavit of the tenant’s prior counsel, who assisted the tenant with the first review hearing. The affiant recounts events beginning in May 2024 (prior to the first review hearing) and over the course of the period up to and including the conclusion of the review hearing on July 19, 2024. The affidavit includes commentary about what transpired at the hearing and also communications with the tenant before and right after the hearing. The affidavit mainly provides counsel’s observations of her client, based upon which counsel believed that her client was disabled and that was a factor in the course of events before the Board. This is proposed to supplement counsel’s submissions to the Board to that effect.
[23] On the question of whether this affidavit is admissible as fresh evidence, it does not meet the first element of the test. The evidence all pre-dates the second review hearing and there is no basis to conclude that there is a good explanation for the failure to put it forward then. On the rest of the test, it has not been shown to be potentially decisive. It therefore is not admissible as fresh evidence. However, even if accepted on this appeal, it would not change the result on this appeal, which is focused on the ruling about the medical evidence put forward at the second review hearing. . Guillaume v. Ontario (Animal Care Review Board) [hyperlinking encouraged]
In Guillaume v. Ontario (Animal Care Review Board) (Ont CA, 2024) the Ontario Court of Appeal commented critically on the failure of a party to hyperlink documents in an motion record:[2] The moving party acts on her own behalf. She filed a voluminous motion record which was repetitive and difficult to comprehend. Nothing is hyperlinked, making it time consuming to locate the referenced documents. The materials indicate that she is seeking leave to appeal the Registrar’s dismissal order, but the decision of the Divisional Court dated February 28, 2024 was not filed in her materials, nor was the underlying decision of Nishikawa J. dated October 16, 2023. Instead, the moving party referred to and included in her motion record the decision of the Divisional Court dated June 3, 2024, which is not the subject of this appeal. Ms. Guillaume makes allegations of bias against the members of the panel of the Divisional Court without providing any particulars. I will refer to the various orders and appeals later in these reasons. . Hudson v. Canada
In Hudson v. Canada (Fed CA, 2024) the Federal Court of Appeal considers an appeal motion for fresh evidence, and in so doing draws a distinction between fresh evidence and the inclusion of documents in the appeal book:[1] In the present appeal from a judgment of the Tax Court of Canada, the appellant moves for an Order that:1. The Court grant the appellant leave to adduce fresh evidence pursuant to Rule 351 of the Federal Courts Rules, S.O.R./98-106, as follows: ... ....
II. Fresh Evidence
[6] The parties agree that a party seeking to adduce fresh evidence must establish that the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in the sense that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the court below; and that, if the evidence fails to meet the foregoing criteria, the Court still possesses a residual discretion to admit the evidence on appeal, though such discretion should be exercised sparingly and only in the clearest of cases, where the interests of justice so require (see Coady v. Canada (Royal Mounted Police), 2019 FCA 102 at para. 3).
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[10] I agree with the respondent that fresh evidence pursuant to Rule 351 should not be allowed. The appellant was aware of the importance of the tax returns and Dr. Raynor’s letters and has not convinced me that she exercised due diligence in introducing them into evidence. She points to a trial exhibit as evidence of Dr. Raynor’s vacation, but she does not point to any exchange with the Tax Court in which she asserted the necessity of relying on Dr. Raynor’s letters as hearsay evidence because of her unavailability. The appellant also does not adequately document her allegation that the Tax Court initially indicated that she could introduce Dr. Raynor’s letters through her testimony. Finally, I am also not convinced by the appellant’s bald allegation that she could not have introduced the B.C. Minister of Finance document as evidence at trial with the exercise of due diligence.
[11] Nevertheless, the appellant alleges in her notice of appeal that the Tax Court erred in refusing to accept at least the tax documents and Dr. Raynor’s letters as evidence. In order for this Court to be in a position to determine whether the Tax Court erred in this respect, it will be necessary to have reference to these documents. Therefore, though they will not be accepted as fresh evidence, they should be included in the appeal book. . Chad v. Canada (National Revenue)
In Chad v. Canada (National Revenue) (Fed CA, 2024) the Federal Court of Appeal considered a motion regarding the contents of an appeal book, here in an appeal of a decision that "struck, without leave to amend, an amended notice of application" as it was "so clearly improper as to be bereft of any possibility of success":[4] The parties appear to agree that the content of the appeal book is to be determined in accordance with Rules 343(2) and 344(1), and jurisprudence related thereto. Rule 343(2) provides that the appeal book should include "“only such documents, exhibits and transcripts as are required to dispose of the issues on appeal.”" Rule 344(1) provides as follows:344 (1) An appeal book shall contain, on consecutively numbered pages and in the following order,
344 (1) Le dossier d’appel contient, sur des pages numérotées consécutivement, les documents ci-après dans l’ordre suivant:
(a) a table of contents describing each document;
(a) une table des matières désignant chaque document;
(b) the notice of appeal and any notice of cross-appeal;
(b) l’avis d’appel et, le cas échéant, l’avis d’appel incident;
(c) the order appealed from, as signed and entered, and any reasons, including dissenting reasons, given in respect of that order;
(c) l’ordonnance portée en appel, telle qu’elle a été signée et inscrite ainsi que les motifs, le cas échéant, y compris toute dissidence;
(d) the originating document, any other pleadings and any other document in the first instance that defines the issues in the appeal;
d) l’acte introductif d’instance, les autres actes de procédure et tout autre document déposé dans la première instance qui définit les questions en litige dans l’appel;
(e) subject to subsection (2), all documents, exhibits and transcripts agreed on under subsection 343(1) or ordered to be included on a motion under subsection 343(3);
(e) sous réserve du paragraphe (2), les documents, pièces et transcriptions énumérés dans l’entente visée au paragraphe 343(1) ou dans l’ordonnance qui en tient lieu;
(f) any order made in respect of the conduct of the appeal;
(f) toute ordonnance relative au déroulement de l’appel;
(g) any other document relevant to the appeal;
(g) tout autre document pertinent;
(h) an agreement reached under subsection 343(1) as to the contents of the appeal book or an order made under subsection 343(3); and
(h) l’entente visée au paragraphe 343(1) ou l’ordonnance qui en tient lieu;
(i) a certificate in Form 344, signed by the appellant’s solicitor, stating that the contents of the appeal book are complete and legible.
(i) le certificat établi selon la formule 344, signé par l’avocat de l’appelant et attestant que le contenu du dossier d’appel est complet et lisible. II. The Transcript
[5] The Minister objects to the inclusion of the Transcript in the appeal book because it contains only legal argument, and is not required to dispose of the issues on appeal: Collins v. Canada, 2010 FCA 128 at para. 2. Mr. Chad argues that the Minister tendered evidence at the hearing during her submissions, to which Mr. Chad objected, and that the Transcript is therefore not limited to legal argument. The Minister counters that the alleged evidence was simply submissions in reply to Mr. Chad’s argument that a request for information under the Access to Information Act, R.S.C. 1985, c. A-1, would not be an adequate alternative remedy.
[6] Mr. Chad argues that the limitation on the content of the appeal book contemplated in Rule 343(2) is a flexible one, and a document should be included if a party "“has a reasonable basis for believing that it may wish to rely on that document to support one of its argument on appeal.”" Mr. Chad cites Bojangles' International, LLC v. Bojangles Café Ltd., 2006 FCA 291 at para. 6, in support of this argument, but he takes the quoted passage further than was intended. It was not intended to override the principle that the document in question must be required to dispose of the issues on appeal. The mere fact that a party may wish to rely on a document cannot be sufficient.
[7] I agree with the Minister that the Minister’s submissions in question at the hearing were not evidence. Moreover, there is no indication that they were treated as such by the Federal Court. The issue of whether a request for information under the Access to Information Act would be an adequate alternative remedy is a question of law. The Transcript is not required to decide that issue; nor am I convinced that it is required to decide any other issue on appeal.
[8] I accept Mr. Chad’s argument that doubt as to whether a document should be included in the appeal book should be resolved in favour of inclusion (West Vancouver v. British Columbia, 2005 FCA 281 at para. 4), but I have no doubt that the Transcript should not be included.
III. The Chad Affidavit
[9] The Minister objects to the inclusion of the Chad Affidavit in the appeal book, with the exception of the Demand Letter, because it was not put before the Federal Court by either party in its motion record, and was not relied on as evidence. The Minister acknowledges that Mr. Chad referred to his affidavit in his written submissions before the Federal Court, but notes that he did not include it in his motion record. The Minister also notes that Mr. Chad’s counsel acknowledged explicitly at the hearing before the Federal Court that he was not relying on the Chad Affidavit as evidence.
[10] Moreover, the Minister notes that, in the context of a motion to strike a notice of application, the facts therein are taken to be true: Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 at para. 52. Therefore, no evidence is required to support those facts, either before the Federal Court or before this Court.
[11] Mr. Chad argues that his affidavit is required to counter the Minister’s submission, which was accepted by the Federal Court, that the amended notice of application "“largely includes bald and speculative allegations and conclusory statements which cannot support the relief sought”". Mr. Chad argues that he relies on his affidavit not for the truth of its contents, but as proof that the allegations were not unsupported.
[12] In my view, Mr. Chad’s argument cannot overcome the following facts (i) evidence is not required on a motion to strike, (ii) the Chad Affidavit was not submitted as evidence in the parties’ motion records, and (iii) Mr. Chad explicitly acknowledged that he was not relying on the Chad Affidavit as evidence.
[13] The Minister acknowledges that the Demand Letter should be included in the appeal book because it is referred to in the amended notice of application in issue. In reply, Mr. Chad argues that the Minister’s acknowledgement of the relevance of the Demand Letter to the present appeal must operate as an acknowledgement of the relevance of the rest of the Chad Affidavit. As he puts it, "“[w]hat is sauce for the goose is sauce for the gander.”" I find that expression misplaced in this context. It might apply if somehow the Minister’s case would be favoured by the inclusion of the Demand Letter in the appeal book, but I see no indication of that. In my view, the inclusion of the Demand Letter in the appeal book is not in dispute, but the inclusion of the rest of the Chad Affidavit is.
[14] I agree with the Minister that the bulk of the Chad Affidavit should be excluded from the appeal book because it is not in evidence. The Demand Letter should be included because its inclusion is not in dispute and because it is referred to in the amended notice of application.
IV. Conclusion
[15] For the foregoing reasons, I will order that the appeal book include the documents proposed by the Minister as listed in Schedule A to her responding motion record. I will also order that Mr. Chad pay the Minister’s costs of this motion in any event of the cause.
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