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Appeal - Fresh Evidence - Appeals versus JRs. Ho v. The Corporation of the City of Ottawa and the Committee of Adjustment for the City of Ottawa
In Ho v. The Corporation of the City of Ottawa and the Committee of Adjustment for the City of Ottawa (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought against "the Committee of Adjustment for the City of Ottawa’s Consent Decision and the Minor Variance Decision" which "granted two applications by the Applicant’s neighbour (the “Owner”) for consent to sever its property (Consent Decision) and for authorization of the minor variances from the applicable zoning by-law (Minor Variance Decision)".
Here the court considered a motion styled as one for 'fresh evidence', to supplement the JR record:[10] Before the application for judicial review was heard, the Applicant brought a motion for leave to receive further evidence. The Applicant relies on r. 61.16(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 that “a motion under clause 134(4)(b) of the Courts of Justice Act (motion to receive further evidence) shall be made to the panel hearing the appeal.”
[11] The jurisdiction to adduce fresh evidence on a judicial review application is not found in r.61.16(2) of the Rules nor in s.134 (4)(b) Courts of Justice Act as both relate to appeals. The application before this court is not an appeal. It is an application for judicial review. In Liu v Ontario Labour Relations Board 2024 ONSC 1253 this court reiterated that:... Fresh evidence is only admissible on a judicial review application in exceptional circumstances. The proposed fresh evidence must fit into one of the narrow exceptions namely, to show a breach of natural justice that is not apparent on the record or to show a complete absence of evidence on an essential point: Kids Kingdom Daycare Inc. v. Ontario (Min. of Education), 2024 ONSC 487(Div. Ct.), at para. 28, Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.). ...
[16] The application before this court is an application for judicial review. It is not an appeal. As this court made clear in Liu it is only where exceptional circumstances can be established that a motion to adduce fresh evidence may be successful. The Applicant has not met the high bar of establishing exceptional circumstances and for that reason the motion to admit the fresh evidence was dismissed.
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