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Evidence - Extrinsic Evidence

. Kustka v. College of Physicians and Surgeons of Ontario

In Kustka v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considered COVID RHPA judicial reviews, here 2 JR applications by a physician and 2 by patients. These reasons for decision are from a motion to quash all of them, which was granted in full.

In these quotes the court considered extrinsic evidence [regulations, policy documents and government health publication] as a basis for initially assessing risk for the appointment of RHPA investigators:
Reliance on Policy/Regulation

[39] Dr. Kustka’s submission that the Registrar and ICRC impermissibly relied on policy documents and a regulation is misconceived. When the Registrar concluded she had reasonable and probable grounds to appoint investigators and the ICRC approved the Registrar’s appointment of investigators, they had before them authoritative guidance from multiple sources regarding mask-wearing. These sources included O. Reg. 364/20, which provided that face masks should be worn in most indoor public areas, subject to limited exceptions for those with medical conditions. They also included guidance from the Ontario College of Family Physicians stating that very few conditions justified an exemption and from the Canadian Thoracic Society supporting mask-wearing and stating that there was no evidence that masks would exacerbate an underlying lung condition.

[40] With respect to ivermectin, the record before the Registrar and ICRC included guidance from Health Canada and the Ontario Science Table that ivermectin should not be used to prevent or treat COVID-19.

[41] The Registrar and ICRC’s reliance on these sources does not constitute an impermissible delegation of authority, as argued by Dr. Kustka. In J.N. v. C.G., 2023 ONCA 77, the Court of Appeal recently confirmed that it is appropriate to rely on guidance from Health Canada and other well-known medical organizations with respect to the COVID-19 pandemic. See also A.V. v. C.V., 2023 ONSC 1634 (Div. Ct.) and Spencer v. Spencer, 2023 ONSC 1633 (Div. Ct.). There is no basis on which to intervene in the conclusion that these sources supported the existence of reasonable and probable grounds.
. Murray‑Hall v. Quebec (Attorney General)

In Murray‑Hall v. Quebec (Attorney General) (SCC, 2023) the Supreme Court of Canada casts doubt on the utility of extrinsic (here, Hansard) evidence on issues of legislative intent:
[91] It is true that, in everyday language and even in the speeches of some parliamentarians, the creation of exceptions or exemptions under a scheme of criminal offences is often described as a “legalization” effort. However, this way of speaking is incorrect and falsely suggests that positive rights authorizing particular conduct have been granted to the public. In this case, the statement by the federal Minister of Health that “limited home growing should be allowed” therefore cannot be seen as a clear expression of Parliament’s intent to confer a positive right to self‑cultivation (House of Commons Debates, vol. 148, No. 314, 1st Sess., 42nd Parl., June 13, 2018, at p. 20875). I would also point out that courts must be careful when relying on parliamentary debates as an expression of legislative intent. The use of this type of extrinsic evidence must be approached “with caution” given the fact that “statements by members of Parliament can be poor indicators of parliamentary purpose” (R. v. Sharma, 2022 SCC 39, at para. 89).
. Ontario v. St. Paul Fire and Marine Insurance Company

In Ontario v. St. Paul Fire and Marine Insurance Company (Ont CA, 2023) the Court of Appeal considered the 'pleadings rule', which sets out limits on what is to be considered when resolving an insurance 'duty to defend' application (and an exception to that rule):
B. Did the Application Judge Err in considering Extrinsic Evidence?

[27] I would not find that the application judge erred, contrary to the “pleadings rule”, by considering extrinsic evidence when determining the true nature of the underlying claim. The “pleadings rule” holds that a “court may look only to the provisions of the policy and to the pleadings in the underlying action to determine whether the insurer has a duty to defend the insured”: IT Haven Inc. v. Certain Underwriters at Lloyd’s, London, 2022 ONCA 71, 18 C.C.L.I. (6th) 219, at para. 35. This rule, which ordinarily prevents courts from considering other “extrinsic evidence”, is intended to encourage expedition and to discourage factual findings that could prejudice the underlying action: IT Haven Inc., at paras. 38-39. However, there is an exception to the pleadings rule that permits courts to consider extrinsic evidence that is explicitly referred to in the pleadings in the underlying action: Monenco, at para. 36; IT Haven Inc., at para. 37. The reports critical of Ontario’s bail release system that the application judge considered fall within this exception since they were referred to in the pleadings in the underlying action. Moreover, the application judge cited these documents without making factual findings, while listing multiple passages from the pleadings that supported her characterization of the true nature of the underlying claim. Simply put, she used this extrinsic evidence without violating the pleadings rule, and without creating any of the mischief the pleadings rule is intended to prevent. I would dismiss this ground of appeal.
. Ahamed v. Canada

In Ahamed v. Canada (Fed CA, 2020) the Federal Court of Appeal considered the use of non-public extrinsic evidence in statutory interpretation:
[21] The Tax Court based its finding that the internal documents in question are of marginal relevance on Superior Plus Corp. v. Canada, 2016 TCC 217 at para. 34, which provides such documents are not relevant to ascertaining the Minister’s mental process in auditing and assessing a taxpayer, unless they have been communicated to the Minister. The respondent argues that the Tax Court was correct to apply the same reasoning to statutory interpretation: internal finance documents that have not been communicated to the Minister are not relevant to ascertaining Parliamentary intent.

[22] It is tempting to follow this reasoning and to agree with the respondent’s position that documents must be publicly available in order to be relevant to statutory interpretation. Otherwise, it would be possible for members of the public to be left without access to certain information that is necessary to fully understand a particular law with which they are required to comply. Such a situation would be problematic for the reasons mentioned in Pepper (Inspector of Taxes) v. Hart, [1992] 3 W.L.R. 1032 at 1042 (U.K.H.L.):
A statute is, after all, the formal and complete intimation to the citizen of a particular rule of the law which he is enjoined, sometimes under penalty, to obey and by which he is both expected and entitled to regulate his conduct. We must, therefore, I believe, be very cautious in opening the door to the reception of material not readily or ordinarily accessible to the citizen whose rights and duties are to be affected by the words in which the legislature has elected to express its will.
[23] Notwithstanding this concern, the appellant argues that the scope of documents that could be relevant to statutory interpretation is viewed more broadly. For example, the appellant cites Delisle v. Canada (Attorney General), 1999 CanLII 649 (SCC), [1999] 2 S.C.R. 989 (Delisle), which concerned an argument that a provision of a federal statute violated the Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11. As part of his analysis on behalf of the majority of the Court in Delisle, Bastarache J. considered the purpose of the statutory provision in question in the course of interpreting it. At para. 17, he stated as follows:
[…]Although extrinsic sources may be used to interpret legislation and to determine its true meaning, when the meaning of the challenged provision is clear, they are of little assistance in determining the purpose of a statute in order to evaluate whether it is consistent with the Charter. Generally, the Court must not strike down an enactment which does not infringe the Charter in its meaning, form or effects, which would force Parliament to re-enact the same text, but with an extrinsic demonstration of a valid purpose. That would be an absurd scenario because it would ascribe a direct statutory effect to simple statements, internal reports and other external sources which, while they are useful when a judge must determine the meaning of an obscure provision, are not sufficient to strike down a statutory enactment which is otherwise consistent with the Charter. Legislative intent must have an institutional quality, as it is impossible to know what each member of Parliament was thinking. It must reflect what was known to the members at the time of the vote. It must also have regard to the fact that the members were called upon to vote on a specific wording, for which an institutional explanation was provided. The wording and justification thereof are important precisely because members have a duty to understand the meaning of the statute on which they are voting. This is more important than speculation on the subjective intention of those who proposed the enactment. (emphasis added)
[24] This passage recognizes the potential relevance of internal documents to the interpretation of "“obscure”" statutory provisions. It is not clear what constitutes "“obscure”", and I do not reach a conclusion on this point. I note that this passage does not state clearly whether internal, non-public documents can be relevant to statutory interpretation. In fact, the focus on "“what was known to the members [of Parliament] at the time of the vote,”" suggests that non-public documents are not relevant.

[25] Ruth Sullivan, in Sullivan on the Construction of Statutes, 6th ed., (Toronto: LexisNexis, 2014) at §23.11 casts a broad net for the types of documents that can be relevant to statutory interpretation:
Like evidence of external context, opinions about the purpose and meaning of legislation can be found anywhere: before enactment, in the materials generated by government employees participating in the legislative process (instructing officers, drafters, legal opinion givers) and, after enactment, in interpretive guidelines issued by administrative agencies, in judicial or administrative case law and in the daily decisions of government employees charged with administering the legislation. Until recently, the primary source of opinion about the meaning of legislation was judicial case law. Courts were unwilling to look at the practice of bureaucrats or the opinions of administrative tribunals and, except for standard textbooks, scholarly opinion was largely ignored. The current tendency, however, is to look at any material that meets the threshold test of relevance and reliability.
[26] Again, this passage does not state clearly that non-public documents can be relevant to statutory interpretation. However, it does appear that the legislative process (during which relevant documents could be created) begins early. In Mikisew Cree First Nation v. Canada, 2018 SCC 40, [2018] 2 S.C.R. 765 (Mikisew) at para. 120, Brown J. stated that "“the legislative process begins with a bill’s formative stages, even where the bill is developed by ministers of the Crown.”" Brown J went on in paragraph 121 to state
Public servants making policy recommendations prior to the formulation and introduction of a bill are not “executing” existing legislative policy or direction. Their actions, rather, are directed to informing potential changes to legislative policy and are squarely legislative in nature.
[27] Care must be taken not to read Mikisew too broadly. That case concerned whether the law-making process (described at paragraph 116 thereof as the steps from initial policy development to royal assent) was subject to the Crown’s duty to consult indigenous peoples about steps that could adversely affect their rights. Mikisew was not concerned with statutory interpretation.

[28] Sullivan, relying on the Newfoundland Court of Appeal decision in Reference re Upper Churchill Water Rights Reversion Act (1982), 1982 CanLII 3312 (NL CA), 134 D.L.R. (3d) 288, 36 Nfld. & P.E.I.R. 273, rev’d 1984 CanLII 17 (SCC), [1984] 1 S.C.R. 297 (Upper Churchill), goes on at §23.13 to state:
When the purpose of a provision is discussed or its meaning explained during the enactment process, and the legislation is then passed on that understanding, the explanation or discussion offers persuasive (if not conclusive) evidence of the legislature's intent.
[29] However, the Supreme Court of Canada in Upper Churchill offered a more nuanced approach to the relevance of extrinsic evidence. After discussing the relaxation of the former general exclusionary rule against admissibility of extrinsic evidence, the Court stated at p. 318:
It will therefore be open to the Court in a proper case to receive and consider extrinsic evidence on the operation and effect of the legislation. In view of the positions of the parties, particularly the appellants’ contention that the Reversion Act has extra-provincial effect, this is, in my opinion, such a case.

I agree with the Court of Appeal in the present case that extrinsic evidence is admissible to show the background against which the legislation was enacted. I also agree that such evidence is not receivable as an aid to construction of the statute. However, I am also of the view that in constitutional cases, particularly where there are allegations of colourability, extrinsic evidence may be considered to ascertain not only the operation and effect of the impugned legislation but its true object and purpose as well. This was also the view of Dickson J. in the Reference re Residential Tenancies Act, 1979, [1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714], at p. 721, where he said:
In my view a court may, in a proper case, require to be informed as to what the effect of the legislation will be. The object or purpose of the Act in question may also call for consideration though, generally speaking, speeches made in the Legislature at the time of enactment of the measure are inadmissible as having little evidential weight.
This view is subject, of course, to the limitation suggested by Dickson J., at p. 723 of the same case, that only evidence which is not inherently unreliable or offending against public policy should be admissible…
[30] ot only does the Supreme Court leave room for cases where extrinsic evidence will not be relevant, but it also limits the issues to which such evidence might be relevant. Moreover, it should be noted that Upper Churchill was in a constitutional law context, in which the Supreme Court has traditionally been more open to extrinsic evidence (see p. 317).

[31] In the end, though there are good reasons to be reluctant to consider non-public documents in the exercise of statutory interpretation, it is difficult to state unequivocally that such documents could never be relevant. The better question is whether the documents in question in the present appeal have an institutional quality such that they could represent the government’s position concerning the legislation at issue. If not, such documents are not relevant.


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