The Contents of the Record and Use of Affidavits on Judicial Review

by Scott McCrossin*

I. Introduction

The primary purpose of this paper is to explain the proper use of affidavits on a certiorari

application, also known as an application for judicial review. However, in order to get to that

point, it is first necessary to understand two other important matters. This paper therefore begins

with a brief review of some basic principles of judicial review. The misuse of affidavits on

judicial review seems almost invariably to arise from a misunderstanding of the scope of judicial

review, rather than a purposeful attempt to transgress its proper boundaries. The second part of

the paper considers what constitutes the record in a judicial review proceeding, which will help

to determine the extent of any further material necessary to support the application. It is only

then that the discussion will shift to the appropriate content of an affidavit on judicial review.

The focus of this paper is on proceedings brought before Nova Scotia courts, but some attention

will also be paid to the Federal Court.1

II. The Nature of Judicial Review

Legislation at the federal, provincial and municipal levels confer a multitude of decision-making

powers on various administrative tribunals and officials. Many—if not most—of these powers

are not subject to any statutory appeal procedures. Nonetheless, either through their inherent

jurisdiction or by statute2, the superior courts do possess at least a limited supervisory capacity

over administrative decision-makers. It is not the purpose of this paper to review the source of

the courts’ jurisdiction in this regard, but a basic description of what this supervisory power

entails is necessary in order to understand what material might be relevant to an application for

judicial review.

* Counsel, Department of Justice Canada. This paper was prepared for a presentation made to the Canadian Bar Association (Nova Scotia) Administrative Law Section on January 18, 2005. 1 It is noted that pursuant to s. 28(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, applications for judicial review of decisions made by certain tribunals proceed to directly to the Federal Court of Appeal, bypassing the Federal Court. However, because the procedural rules are the same, for ease of reference “Federal Court” will be used to refer generally to both courts. 2 For example, the Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.

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Lord Denning provided a helpful description of the role of a court on judicial review in R. v.

Northumberland Compensation Appeal Tribunal (Ex parte Shaw), where he observed:

. . . the Court of King’s Bench has an inherent jurisdiction to control all inferior tribunals, not in an appellate capacity, but in a supervisory capacity. This control extends not only to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that they observe the law. The control is exercised by means of a power to quash any determination by the tribunal which, on the face of it, offends against the law. The King’s Bench does not substitute its own views for those of the tribunal, as a court of appeal would do. It leaves it to the tribunal to hear the case again, and in a proper case may command it to do so.3 [Emphasis added.]

Along the same lines is the decision of the Nova Scotia Supreme Court in Waverley (Village) v.

Nova Scotia (Minister of Municipal Affairs), where Glube C.J.S.C. (as she then was) held:

A certiorari application is not an appeal. The court’s role is very limited. It must be based upon jurisdictional error, denial of natural justice or error of law in the face of the record and the court must exercise judicial discretion and practice curial deference. The review encompasses the propriety of the process resulting in the decision, not the appropriateness of the result.4

The Nova Scotia Court of Appeal also commented on the limits of the courts’ jurisdiction on

judicial review in Walker v. Keating. In that case, Justice Cooper cautioned that the Court must

be careful not to “put itself in the position of exercising an appellate rather than a supervisory

jurisdiction”.5

The Federal Court of Appeal has also repeatedly expressed the limits of its role on judicial

review. In Kohl v. Canada (Minister of Agriculture), the Court overturned a lower court

decision that had set aside the Minister’s decision to order the destruction of a bull. The

3 R. v. Northumberland Compensation Appeal Tribunal (Ex parte Shaw), [1952] 1 K.B. 338 at 352; [1952] 1 All E.R. 122 at 127-28 (C.A.). 4 Waverley (Village) et al. v. Nova Scotia (Minister of Municipal Affairs) et al. (1993), 126 N.S.R. (2d) 147 at 149 (¶6), 352 A.P.R. 147 (S.C.) [hereinafter “Waverley (S.C.)”], aff’d sub nom. Waverley v. Kerr (1994), 129 N.S.R. (2d) 298, 362 A.P.R. 298 (C.A.) [hereinafter “Waverley (C.A.)”].

5 Walker v. Keating (1973), 6 N.S.R. (2d) 1 at 7, 42 D.L.R. (3d) 105 (S.C.A.D.), per Cooper J.A. This decision must be approached with caution, as it has since been criticized for failing to acknowledge the Court’s ability to intervene when a tribunal’s handling of the evidence results in a reviewable error: see Anand, infra note 14 at paras. 13-17. Nonetheless, the Court of Appeal’s caution in limiting its function on judicial review remains pertinent.

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Minister’s delegate had determined that there was a risk the bull carried mad cow disease. The

Court held:

The Court is not called upon to say if it agrees with the decision-maker’s appreciation of the facts he had before him, its role is not to make sure that this appreciation was correct. The power to make this decision is not the power of the court but of the decision-maker. The court is simply called upon to verify if the decision-maker’s suspicion can find some support in the evidence since it is only when such support does not exist and the suspicion appears irrational that there will be an abuse of power. This is clearly not the approach adopted by the motions judge who simply substituted his own opinion for that of the Minister.6

The proper scope of judicial review was also well-emphasized in a recent Federal Court decision

having local connections. In the process of striking seven expert affidavits filed by a Halifax

environmental group in support of its challenge to trawling in the waters off George’s Bank, the

Court observed:

The purpose of judicial review is not to determine whether a decision is correct in an absolute sense. On judicial review the court does not consider the wisdom of a decision. Rather, the purpose of judicial review is to determine whether the tribunal committed a reviewable error. The purpose of judicial review remains the same whether the decision under review is legislative, adjudicative or administrative in nature.7

Thus, as the Federal Court of Appeal cautioned in one of its leading decisions on the matter:

The essential purpose of judicial review is the review of decisions, not the determination, by trial de novo, of questions that were not adequately canvassed in evidence at the tribunal or trial court.8

The first step in understanding what material may properly be put before the court in support of a

judicial review application, therefore, is to understand that such material must not be intended

simply to persuade the court as to the merit (or lack of merit) of an impugned decision. Rather,

the material to be used on a judicial review application must be relevant to the allowable grounds

upon which a court may properly intervene in its supervisory capacity to ensure the propriety of

the administrative decision-making.

6 Kohl v. Canada (Minister of Agriculture), (1996) 185 N.R. 149 at 154-155 (F.C.A.). 7 Ecology Action Centre v. Canada (Attorney General) (2002), 227 F.T.R. 10 at ¶13. 8 Gitxsan Treaty Society v. Hospital Employees’ Union, [2000] 1 F.C. 135 at 144-145 (C.A.).

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III. What Constitutes the Record?

In Nova Scotia, the contents of the record on a certiorari application are governed by Civil

Procedure Rules 56.07 and 56.08. As will be seen, those rules call for a return to the court that

includes most of the material involved in the making of the impugned decision. However, before

proceeding to the Nova Scotia rules, it may be helpful to understand that at common law the

record contains a much narrower range of material. As Lord Denning explained in R. v.

Northumberland Compensation Appeal Tribunal (Ex parte Shaw):

[The record] has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings . . . I think the record must contain at least the document which initiates the proceedings; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them.9

The Supreme Court of Canada stated the same record contents in C.U.P.E., Local 301 v.

Montreal (City):

In the absence of any express statutory requirements, the traditional common law requirements for a record of an administrative tribunal’s proceedings include the document which initiated the proceedings and the document containing the tribunal’s adjudication. Neither the reasons for the ruling, nor evidence presented at the hearing, have been considered necessary elements of the record to be presented to the superior tribunal upon appeal or review.10

Therefore, at common law, the contents of the record are quite limited, and do not even include

the decision-maker’s reasons (if any).

(a) Nova Scotia

As noted above, Nova Scotia rules 56.07 and 56.08 prescribe the contents of the record on an

application for certiorari.11 As stated in Waverley (S.C.), this rule “clearly expands any common

law view of what must be returned as forming part of the record.”12

9 R. v. Northumberland Compensation Appeal Tribunal (Ex parte Shaw), supra note 3 at K.B. 352 and All E.R. 131. 10 C.U.P.E., Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, 144 D.L.R. (4th) 577 at ¶75. 11 See Appendix “A” for the text of Nova Scotia rules 56.07 and 56.08. 12 Waverley (S.C.), supra note 4 at ¶10.

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In Theriault v. Nova Scotia Marketing Board, Justice Hallett, then of the Nova Scotia Supreme

Court, explained the contents of the record as follows:

First, what is “the record” to be judicially reviewed on an application in the nature of certiorari? Since the passage of Civil Procedure Rule 56.07, the record consists of the documents that were before the tribunal. Civil Procedure Rule 56.07 provides that the tribunal must return to the Prothonotary its decision, the evidence and all exhibits that shall “for the purpose of an application for an order in the nature of certiorari, be deemed to be part of the record.” Therefore, in this province, the record is not simply the decision, but includes the evidence and the exhibits.13

The record therefore includes the transcript of any evidence taken at a hearing and the exhibits.14

Furthermore, a tribunal that electronically records a hearing must prepare, certify and include a

transcript of the hearing in its return, unless the court orders otherwise.15 In addition, the record

includes any substantive documents required by or otherwise filed with the tribunal even if they

are not formally entered as evidence and made exhibits at a hearing.16

On the other hand, notes taken by a tribunal member do not normally form part of the record. In

Yorke v. Northside-Victoria District School Board, the Nova Scotia Court of Appeal held that the

notes of a single-member Board of Appeal convened under the Education Act do not form part of

the record. The Court’s reasoning is insightful and worth quoting in full:

The apparent purpose in requiring notes to be delivered up as part of the record of the proceedings is the assumption that the notes are a record of the evidence taken in the absence of a certified transcript of the proceedings. In my opinion the notes of a Board member are not a proper record of the evidence as the notes are not a verbatim record of what a witness stated under oath and are therefore likely inaccurate and unreliable. Secondly, the notes may contain tentative observations of the Board member which the Board member may subsequently decide were not well founded. Therefore, the notes could be misleading. Thirdly, the notes of a

13 Theriault v. Nova Scotia Marketing Board (1981), 48 N.S.R. (2d) 116 at 125 (¶23), 92 A.P.R. (2d) 116 (S.C.) 125. 14 Anand v. Provincial Medical Board of Nova Scotia et al. (1981), 49 N.S.R. (2d) 490, 96 A.P.R. 490 (S.C.T.D.). 15 Canadian Automatic Sprinkler Association v. Labour Relations Board (1974), 14 N.S.R. (2d) 36 at 59, 11 A.P.R. 36 (S.C.T.D.), per Cowan C.J.T.D.

16 See, for e.g., Dominion Stores Limited v. Nova Scotia Labour Relations Board (1975), 15 N.S.R. (2d) 585 (S.C.T.D.) where the union resolution authorizing the application for certification and the union’s constitution were filed (as required by the Board’s regulations) with the Labour Relations Board as part of the certification application, with the documents held therefore to be, in effect, exhibits forming part of the record to be returned by the Board to the Court. See also Anand, supra note 14 at ¶9.

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Board member are personal notations of the member made during the hearing. In short, the notes are a personal and unreliable record of the evidence. As a general rule, handwritten notes would serve no useful purpose for a superior court when reviewing a Board decision.

I would not interpret the words in rule 56.08 that require the Board to return not only the evidence and the exhibits but “all other things in the proceeding” to include the notes of a Board member. Those notes are, in a sense, part of the Board’s working papers, not very different from drafts of what is ultimately released as the decision or award of the Board. When one looks at the form of the certificate provided in the rule there is a specific reference to returning the documents that are truly relevant to enable the court to conduct a proper review of the Board’s decision. Those documents are the judgment and the reasons, the process commencing the proceeding, the evidence and the exhibits. Then there is a catchall phrase requiring the Board to deliver up “all other papers and documents in the proceeding”. In my opinion, the Board’s member’s notes are not papers or documents in the proceeding. . . .

What the superior court needs to see are the decision and the reasons in particular, as well as the documents commencing the proceedings before the Board. If available, the court wishes to see a transcript of the evidence and the exhibits. A Board member’s notes are not a reliable record of the evidence and although one might say the handwritten notes are “papers” in the proceeding, in my opinion, considering the factors I have mentioned, I would not interpret the word “papers” to include them. The catchall clause was intended to require the delivery up of other papers and documents that were relevant to the proceeding before the Board; not the Board members notes. As a general rule, there is no valid reason that would warrant interpreting rules 56.07 and 56.08 to compel a Board member to deliver up his handwritten notes. There could be situations where the notes might be relevant to a review by a superior court, but that should have to be clearly proven before the notes should be ordered delivered up to the superior court.17 [Emphasis in original.]

The Court of Appeal’s decision is noteworthy because it dealt with the notes of single-member

tribunal. The Court had earlier held that notes taken by one member of a multi-member tribunal

and not adopted by the other tribunal members were not part of the record,18 but had not had the

opportunity to consider notes taken by a single-member tribunal. Conversely, the Trial Division

had previously held that the notes of a single arbitrator were part of the record, there being no

17 Yorke v. Northside-Victoria District School Board (1992), 112 N.S.R. (2d) 315 at ¶3-5, 307 A.P.R. 315 (S.C.A.D.), per Hallett J.A. (Chipman J.A. concurring, Clarke C.J.N.S. dissenting). 18 Walker v. Keating, supra note 5 at 7.

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possibility of conflict between notes made by more than one member.19 Unfortunately, the Court

of Appeal did not comment upon the earlier Trial Division decision in its reasons, and with then-

Chief Justice Clarke dissenting on the appeal, it is possible that more will yet be said on this

topic. Nonetheless, since these two decisions, the Supreme Court has again held that notes do

not form part of the record, but without comment on the apparent conflict between the two

earlier decisions.20 In addition, the latest case arose in the context of a ministerial briefing, and

it appears the notes in question simply formed the basis of oral briefings to a cabinet minister,

with the case’s application therefore perhaps being more limited as a result. Finally, it remains

noteworthy that notes do not form part of the record at common law.

In addition to notes made by tribunal members, other common materials do not form part of the

record on a certiorari application. In the ministerial setting, oral briefings and advice from staff

members do not form part of the record.21 Neither do briefs nor case authorities submitted

during the course of a hearing.22 Additionally, material produced after a decision was made do

not generally form part of the record, keeping in mind that judicial review is concerned more

with the form of decision-making than the substance, and thus later materials are rarely relevant

to such an application.23 However, the Court of Appeal has held that:

. . . correspondence from a decision-maker which gives a retrospective insight into the mind of the decision-maker and made subsequent to rendering the decision, should only form part of the record if provided by the decision-maker following a bona fide request of a party for additional reasons for judgment or if supplied voluntarily by the decision-maker such correspondence is forwarded to all the parties and it is apparent that the correspondence contains reasons for the decision.24 [Emphasis in original.]

19 Construction Association Management Labour Relations Bureau Limited v. International Brotherhood of Electrical Workers, Local 625, [1983] N.S.J. No. 31 at ¶13 (S.C.T.D.), per Nathanson J. 20 Waverley (S.C.), supra note 4 at ¶19. 21 Ibid. at ¶16 (S.C.) and ¶54 (C.A.). 22 See Waverley (S.C.), ibid. at ¶20 with respect to briefs filed by parties, and Construction Association Management Labour Relations Bureau Limited v. International Brotherhood of Electrical Workers, Local 625, supra note 19 at ¶14 with respect to case authorities. 23 See Canada Life Assurance Company v. Nova Scotia (Minister of Municipal Affairs) (1995), 146 N.S.R. (2d) 32, 422 A.P.R. 32 (S.C.), aff’d (1996), 150 N.S.R. (2d) 360, 436 A.P.R. 360 (C.A.), where Davison J. held that this principle extended to a letter written by the Minister which suggested he might have made a different decision had he been aware of other facts. 24 Ibid. at ¶57 (C.A.), per Hallett J.A. (Freeman and Roscoe JJ.A. concurring).

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It should also be noted that material unnecessarily referred to or attached in a return does not

automatically form part of the record.25

Discretionary Decisions

One of the more difficult areas in terms of ascertaining the record on judicial review arises in the

realm of discretionary decisions made by government decision-makers. Boards and tribunals

often follow formal procedures, but the process followed by an administrative decision-maker

need not be so structured. As the Nova Scotia Court of Appeal observed in Canada Life

Assurance Co. v. Nova Scotia (Minister of Municipal Affairs):

An application in the nature of certiorari, of necessity, involves a review of the record of the proceedings in which the decision sought to be reviewed was made. If the application is for a judicial review of a tribunal decision what constitutes the record is resolved by the provisions of Civil Procedure Rule 56.08. Here, however, what is sought to be reviewed is the exercise of a statutory power by a Minister of the Government. It is not so easy to determine what shall constitute the record as Civil Procedure Rule 56.08 was not designed with such a review in mind.26

In such cases, determining what constitutes the record might be more difficult. As the Court of

Appeal reasoned in Waverley:

[44] . . . the record described in rule 56.08(1) can be considered only by analogy in matters involving the exercise of a statutory discretion . . .. There is little that approximates “the judgment, order, warrant, decision or reasons for judgment, together with the process commencing the proceeding, the evidence and all exhibits filed, if any, and all other things in the proceeding”.

* * * [51] . . . In discretionary matters that version of the record applies by analogy only, and circumstances must govern.

* * * [54] . . . a court cannot create a record where none exists. A Minister becomes informed of the affairs of his department from many sources, and where no formal procedure is prescribed, the sources of his information are not part of the record

25 See Waverley (S.C.), supra note 4. 26 Canada Life Assurance Co. v. Nova Scotia (Minister of Municipal Affairs) et al., supra note 23 at ¶45 (C.A.). See also Waverley (C.A.), supra note 4 at ¶30.

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unless they are in the nature of reports implemented by the exercise of his statutory discretion.27

The record does, however, extend to include any document incorporated by reference into the

primary documents.28 In a formal hearing, such documents would presumably be exhibits in any

event. However, in a discretionary matter where no such formal record exists, incorporation of

specific documents in the making of a decision appears to colour them as part of the record.

Finally on this point, it is important to note that “the court cannot call for material to supplement

the record where reasons are not required by law.”29 The admonishment has particular relevance

to cases involving discretionary decisions.

(b) Federal Court

Unlike the Nova Scotia rules, the Federal Courts Rules do not define the contents of the record

on judicial review. However, each party must file an application record, the contents of which

will include the order in respect of which the application is made, any supporting affidavits filed

by the parties, the transcripts of any cross-examinations conducted on the affidavits, the portions

of any transcripts from the tribunal hearing that the party intends to rely on, and a description of

any physical exhibits to be used by a party at the hearing.30 In effect, therefore, the record and

any other material relevant to the judicial review application will be placed before the court.

With respect to obtaining the tribunal record, Federal Courts Rule 317 allows a party to request

what is in effect the record (or parts thereof) from the tribunal:

317. (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.

It must be noted that, contrary to Nova Scotia practice, under the Federal Courts Rules a tribunal

is not under an automatic obligation to make a return to the court. The tribunal need only

provide the party with material that is not already in the party’s possession. In practice, the

27 Waverley, supra note 4 at ¶44, 51 & 54 (C.A.) 28 Ibid. at ¶23 (S.C.) and ¶52-53 (C.A.). 29 Ibid. at ¶13 (S.C.). 30 See Federal Court Rules 309 and 310.

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parties will often already have copies of the relevant materials that are in the possession of the

tribunal, such as transcripts and exhibits, and thus materials will not be provided by the

tribunal.31 Furthermore, a request for materials from the tribunal may be made by any party to

the judicial review, not just the applicant.

Once a Rule 317 request has been made, Rule 318 obligates the tribunal to transmit the requested

material to the Federal Court Registry and the party making the request—but not the other

parties—within 20 days of receiving the request, or to provide reasons for objecting to the

request, in which case the matter may go to the Court for further directions.32 The “material

relevant to an application” will be determined by reference to the stated grounds of judicial

review. As the Federal Court of Appeal explained in Canada v. Pathak:

A document is relevant to an application for judicial review if it may affect the decision that the court will make on the application. As the decision of the court will deal only with the grounds of review invoked by the applicant, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the applicant.33

It must be emphasized that materials provided by the tribunal in response to a request under Rule

317 do not form part of the record before the court unless they are included in the application

record filed by one of the parties.

Reminiscent of the discussion under the Nova Scotia rules, Federal Courts Rule 317 is arguably

put to its best use when invoked to obtain the documents relied upon by a discretionary decision-

maker. However, the limited scope of judicial review means that requests under Rule 317 are

not an avenue of discovery, and the limited content of the record as discussed above applies to

Rule 317 requests as well.34 Therefore, only the material that was actually relied upon by the

31 It is noted that some tribunals will nonetheless provide a record as a matter of course, such as the Office of the Umpire, which hears appeals of decisions under the Employment Insurance Act. 32 It does seem to be the practice of many tribunals to send copies of the requested materials to all parties once an appropriate request is received, but they are not obligated to do so by the Rule 318. 33 Canada v. Pathak, [1995] 2 F.C. 455 at ¶10, 180 N.R. 152 (C.A.), per Pratte J.A. 34 Ibid. at ¶4 (footnote 2), where the Federal Court of Appeal held (with respect to the predecessor of current Rule 317): “Rule 1612 does not authorize a party to seek the production of documents that he already has in his possession or use the request for production of documents as a means of investigation to find out whether the Tribunal has in its possession documents that might help his case.”

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decision-maker forms part of the material to be produced in response to a request under Rule

317. For example, in a case where the Canadian Human Rights Commission relied on the

investigator’s final report in deciding not to refer a complaint to a formal inquiry—but not the

documents considered by the investigator in preparing the report—the Federal Court of Appeal

held:

Only the report of the investigator and the representations of the parties are necessary matter for the Commission’s decision. Anything else is in the discretion of the Commission. If the Commission, therefore, elects not to call for some document, that document cannot be said to be before it in its decision-making phase, as opposed to its investigative phase. It is therefore not subject to production as a document relied upon by the Commission in its decision, although it may well have been relied upon by the investigator in his report.35

Therefore, the responsibility for putting the appropriate materials before the Federal Court on a

judicial review application falls to the parties. As a result, an understanding of the proper

contents of the tribunal record is all the more critical, especially in light of the short (and strictly

enforced) timelines provided under the Federal Courts Rules.36

IV. Appropriate Affidavits on Judicial Review

This paper began with a brief summary of the basic nature of judicial review. Understanding the

court’s function on judicial review is necessary in order to understand what material is relevant

(or even required) for the court to undertake its task. The discussion continued by exploring the

proper contents of the record on judicial review. Knowing how much of the material necessary

for the judicial review will be contained in the record enables counsel to identify what else

remains to be put before the court by way of affidavit. Furthermore, a clear understanding of

what material is normally before the court on a judicial review application will assist counsel in

structuring their argument on acceptable grounds, rather than finding out too late that their

application is premised on arguments (and material) the court will not consider.

35 Ibid. at ¶22. 36 Pursuant to s. 18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, an application for judicial review must be commenced within 30 days after the time the impugned decision was first communicated to the affected party. The applicant’s affidavits are then due within 30 days of commencing the application (Federal Courts Rule 306). Considering that the applicant may be responsible for putting the record before the Court through its affidavit, the determination of what is relevant, necessary and admissible must be made quickly.

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Ultimately, the proper use and content of an affidavit on a certiorari application will be

determined with regard to what is relevant to the application. The Nova Scotia Court of Appeal

provided some helpful guidance in this area in Canada Life Assurance Co. v. Nova Scotia

(Minister of Municipal Affairs):

. . . an affidavit is not a necessary component of a return under Civil Procedure Rule 56.08. But, if a party wishes to adduce additional evidence on the hearing of an application for judicial review, it must be by way of affidavit. Affidavit evidence is not only admissible but usually necessary when a court is reviewing a decision of an inferior tribunal where the grounds are lack of jurisdiction or bias or fraud. As a general rule, affidavit evidence is not admissible when the grounds for review are in error on the face of the record unless the affidavits show the record to be incomplete . . . .37 [Emphasis added.]

Similarly, in one of its leading cases on the matter, the Federal Court of Appeal held:

. . . I think the applicant is correct that on judicial review evidence extrinsic to the record before the tribunal whose decision is being reviewed may be introduced. However, the opportunity to do so is limited to those circumstances in which the only way to get at the want of jurisdiction is by the bringing of such new evidence before the reviewing Court.38

Therefore, affidavits (other than affidavits used solely to introduce the record) are not admissible

where the sole grounds of the application relate to errors that appear on the face of the record.

For example, many errors of law will be argued based on the reasoning contained in the decision

alone, while other reviewable errors will be based on the materials found in the record, including

certain errors of law premised on the tribunal’s appreciation of the evidence. On the other hand,

reviewable errors that go to the tribunal’s jurisdiction will often need to be supported by affidavit

evidence that goes beyond the contents of the record. Because such errors may not be revealed

by the record, extrinsic evidence may be required in order to demonstrate them. Nonetheless, for

an error that is not jurisdictional in nature, affidavits are generally limited to introducing the

record before the court.

Brown and Evans provide a useful explanation of the appropriate use of affidavits in Judicial

Review of Administrative Action in Canada:

37 Canada Life Assurance Co. v. Nova Scotia (Minister of Municipal Affairs) et al., supra note 23 at ¶64 (C.A.). 38 Gitxsan Treaty Society v. Hospital Employees’ Union, supra note 8 at 143 (C.A.).

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Subject to any prohibitions against giving evidence, privilege, or any other exclusionary rules such as the rule precluding reliance on hearsay evidence, all relevant evidence is admissible. Thus, any evidence that relates to excess of jurisdiction is admissible, as is evidence in support of an allegation that there was “no evidence” in support of a material finding of fact made by an administrative tribunal, evidence establishing an insufficient basis for the administrative action taken, or evidence of a breach of duty of fairness. Of course, where the basis for judicial review involves bias or fraud, it will almost always be necessary to have evidence which is not part of the administrative record. As Denning L.J. noted in an early case, “[w]hen certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary.” On the other hand, where the alleged error of law is not jurisdictional in nature and review is limited to only those errors of law which appear on the face of the administrative record, the applicant will be confined to the record of the tribunal’s proceeding, and supplementary affidavit evidence will not be admitted.39 [Emphasis added.]

As a result, affidavit evidence will be appropriate, and indeed usually required, in order to

demonstrate such errors as bias, fraud, absence of evidence to support a material finding of fact,

and failure to comply with the rules of procedural fairness. In the latter case, the affidavit should

clearly demonstrate the applicant’s interest in the matter such that she has standing to bring the

application, as well as the facts that prove the lack of procedural fairness. As Brown and Evans

caution “an applicant for judicial review will be responsible for adducing the evidence

necessary to establish the court’s jurisdiction, its standing to bring the application, and such

evidence as may be required to discharge that burden in connection with the grounds of

review.”40

Errors commonly encountered in affidavits submitted in support of judicial review applications

include:

(i.) the affidavit contains evidence that was not before the decision-maker when it made

the decision;41

39 Donald J.M. Brown, Q.C. and Justice John M. Evans, Judicial Review of Administrative Action in Canada, vol. 2 (Toronto: Canvasback Publishing, 1998) 6:5300 [footnotes omitted]. 40 Ibid. at 6:5131. 41 See, for e.g., Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 (T.D.), where the Court observed (at 329):

It is trite law that a reviewing court is bound by the record filed before the federal board, commission or other tribunal the decision of which is under appeal. Reviewing court jurisprudence has followed this

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(ii.) the affidavit contains evidence of matters that occurred or attaches materials that

came into existence after the decision was made (such materials cannot undermine the

propriety of a decision that pre-dated their existence);

(iii.) the affidavit purports to provide “fresh evidence” (which again cannot undermine the

propriety of a decision otherwise properly made on the basis of the evidence before

the decision-maker);42

(iv.) the affidavit contains inadmissible opinion evidence or argument; and

(v.) the affidavit is irrelevant to any issue before the court on judicial review.

Counsel cannot introduce evidence simply for the purpose of persuading the court that the

decision-maker was wrong or should have reached a different conclusion—unless the decision is

alleged to have been so erroneous as to constitute an excess of jurisdiction. Such a case would

usually entail proving to the court that the decision was patently unreasonable. As Justice

Strayer explained in Vancouver Island Peace Society et al. v. Canada (Minister of National

Defence):

In support of their approach the applicants have filed some 40 affidavits to date and there are suggestions that more may be on the way. . . . With the greatest of respect I am unable to see how the applicants’ affidavits concerning the potential adverse effects can be relevant except possibly to the extent that they can demonstrate, if such is possible, that the initiating department could have had no reasonable basis whatever for concluding that there were no significant potential adverse effects from the naval visits. . . . In other words the issue before the court will be not whether visits by nuclear powered or nuclear armed naval vessels create significant potentially adverse environmental effects

rule, noting that if evidence not before the initial tribunal is introduced on judicial review, the review application would effectively be transformed into an appeal or a trial de novo.

42 See, for e.g., Brychka v. Canada (Attorney General) (1998), 141 F.T.R. 258, where MacKay J. held (at 267):

. . . on judicial review, a Court can consider only evidence that was before the administrative decision-maker whose decision is being reviewed and not new evidence. In this case, the applicant sought to introduce information concerning ulcerative colitis, suggesting new theories of its causes, which had not been before the Veterans Review and Appeal Board. While perhaps relevant in regard to the merits of the issues before the decision-maker, this was not on the record before the decision-maker in rendering its decision. For this reason, the Court takes no cognizance of the new medical evidence, drawn from the Internet by the applicant, and presented for the purposes of this application for judicial review. [Emphasis added.]

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but whether the initiating department made a decision on this question; if so, what material it had before it in reaching such a decision; and whether it decided so within the limits of judgment allowed to it under the Act and having regard to at least some legally relevant factors.43 [Emphasis added.]

Even in a case where the affidavit evidence is intended to demonstrate unreasonableness that

amounts to jurisdictional error, if similar evidence was presented to the decision-maker at first

instance there may be limited opportunity to present additional evidence to the reviewing court.

As the Federal Court noted in its rejection of the expert affidavits in the Halifax environmental

group’s challenge to trawling:

While in another case, on a different evidentiary record, expert evidence might be required and therefore be admissible to establish the ultra vires nature of a measure because of its effect, in the present case the applicant has failed to establish that such evidence is necessary. Substantial material was put before the decision-maker by the applicant regarding the three facts that the expert evidence is said to demonstrate. This material is before the court. Therefore, the prothonotary correctly concluded that this is not a case where the want of jurisdiction can only be made apparent by reference to extrinsic evidence.44

Ultimately, as noted above, the permissible content of an affidavit on judicial review will be

governed by what is relevant, with relevance being determined by reference to the stated—and

permissible—grounds of review.45

Finally, counsel must also be sure to comply with the requirements that more generally govern

the content of affidavits, including those found in Nova Scotia rule 38. In his decision in

Waverley (Village Commissioners) v. Nova Scotia (Minister of Municipal Affairs), Justice

Davison struck the affidavits of the applicants for failing to abide by many of the rules that apply

43 Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) (1992), 53 F.T.R. 300 at 304-306 per Strayer J. (as he then was). See also Mr. Shredding Waste Management Ltd. v. New Brunswick (Minister of Environment and Local Governments), 2004 NBCA 69 at ¶63. 44 Ecology Action Centre v. Canada (Attorney General), supra note 7 at ¶19. 45 It should also be noted that there are other methods of getting evidence before the court on a judicial review application—most obviously perhaps cross-examination on affidavits. See Brown and Evans, supra note 39 at 6:5132. Furthermore, the Nova Scotia Court of Appeal has held that, in appropriate cases, the decision-maker may be subject to examination in support of a certiorari application: see Waverley v. Kerr (C.A.), supra note 4, and see also 2201336 Nova Scotia Ltd. v. Labour Relations Board (Nova Scotia) (2001), 204 N.S.R. (2d) 211, 639 A.P.R. 211 (S.C.).

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to affidavits, a problem that he opined is “all too common in proceedings before our court”.46

He continued:

It would be helpful to segregate principles which are apparent from consideration of the foregoing authorities and I would enumerate these principles as follows:

1. Affidavits should be confined to facts. There is no place in affidavits for speculation or inadmissible material. An affidavit should not take on the flavour of a plea or a summation.

2. The facts should be, for the most part, based on the personal knowledge of the affiant with the exception being an affidavit used in an application. Affidavits should stipulate at the outset that the affiant has personal knowledge of the matters deposed to except where stated to be based on information and belief.

3. Affidavits used in applications may refer to facts based on information and belief but the source of the information should be referred to in the affidavit. It is insufficient to say simply that “I am advised”.

4. The information as to the source must be sufficient to permit the court to conclude that the information comes from a second source and preferably the original source.

5. The affidavit must state that the affiant believes the information received from the source. 47

Counsel should be especially careful to heed Justice Davison’s warning that although affidavits

on applications in Nova Scotia can be based on information and belief, “the source of the belief

must be specifically identified and the source should be the original source of the information.”48

Furthermore, it is important to note that affidavits based on information and belief are not

permissible in Federal Court, except on motions, pursuant to Federal Courts Rule 81.

Striking affidavits

Improper affidavits filed in support of a judicial review application can and should be struck. To

that end, Nova Scotia rule 14.25 states:

46 Waverly (Village Commissioners) et al. v. Nova Scotia (Minister of Municipal Affairs) et al. (1993), 123 N.S.R. (2d) 46 at ¶14 (S.C.T.D.), per Davison J. See also Matheson v. Truro (Town), [1999] N.S.J. No. 146 at ¶7-13 (S.C.), per MacAdam J. 47 Ibid. at ¶20 (pp. 52-53).

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14.25. (1) The court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that,

(a) it discloses no reasonable cause of action or defence; (b) it is false, scandalous, frivolous or vexatious;

(c) it may prejudice, embarrass or delay the fair trial of the proceeding;

(d) it is otherwise an abuse of the process of the court; and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly.

In addition, Nova Scotia rule 38.11 provides that the court “may order any matter that is

scandalous, irrelevant or otherwise oppressive to be struck out of an affidavit.” There is no

specific provision that allows the striking of affidavits in the Federal Court, but reliance in such

applications may be placed on Federal Courts Rule 4 and the inherent ability of the Court to

control its own processes.

A judgment call must be made whether to move to strike out an improper affidavit before the

judicial review hearing, or to wait until the hearing itself. The main difficulty is that counsel

might be drawn into answering irrelevant allegations contained in an opposing affidavit with

equally irrelevant evidence of their own, while also exposing their client to cross-examination.

On the other hand, a failure to answer an opposing affidavit risks leaving the party without

evidence of its own on a matter that the court may find relevant or even decisive of the judicial

review application. Furthermore, a party could be put at a disadvantage if the judge hearing the

application reads the opposing affidavit, and even though it is found to be improper or irrelevant

and therefore “not to be considered”, the information contained in it may prejudice the party.

In Nova Scotia, discussion about the appropriate timing of an application to strike an affidavit on

judicial review has primarily been concerned with the court’s ability on a preliminary motion to

ascertain what is relevant to the proceeding. As Justice Tidman held in Mossman v. Nova Scotia

(Attorney General):

I agree with Ms. Scott’s submission in her brief that there is merit in having these issues decided before the hearing of the main application so that all parties may know in a timely manner the factual allegations they must meet. However, it is

48 Ibid. at ¶15.

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difficult to decide on the issue of relevancy before the issues are crystallized at the hearing. I, thus, would not strike those portions of the affidavits to which objection is taken on the grounds of relevancy unless it is absolutely clear that a statement could in no circumstances be relevant to these issues raised at the hearing.49

For its part, the Federal Court has been very clear that judicial review applications are summary

proceedings that should be resolved as quickly as possible. As a result, the Court seriously

frowns upon preliminary motions.50 Nevertheless, it will sometimes be necessary to strike

improper affidavits in order to promote an expeditious judicial review proceeding. The Federal

Court provided a helpful review of the law in this area in Chopra v. Canada (Treasury Board):

There is considerable jurisprudence to the effect that only the evidence that was before the initial decision-maker should be considered by the court on judicial review. . . . Where affidavit material is clearly improper, the Federal Court of Appeal ruled that the material be struck out on motion previous to the hearing of the judicial review.

On the other hand, there is also jurisprudence to the effect that the court has no jurisdiction to strike out affidavits by way of motion in anticipation of a judicial review proceeding. The appropriate procedure is to leave the affidavit for evaluation by the judge who hears the application on the merits. Judicial review is a summary procedure, the focus of which is advancing the application along to the hearing stage as expeditiously as possible. The ultimate adequacy of the allegations and evidence must be addressed by the judge hearing the application on its merits. There is an exceptional discretion to strike out affidavits but it ought to be exercised sparingly. To maintain the efficiency of judicial review proceedings, interlocutory contests as to affidavits should be discouraged and be left to be dealt with by the judge hearing the application.

This court has struck out affidavits, or portions of them, which are abusive or clearly irrelevant, where a party has filed evidence which is obviously inadmissible or where a court is convinced that admissibility would be better resolved at an early stage so as to allow the hearing to proceed in an orderly manner. The courts have also struck affidavits which contain opinion, argument or legal conclusions or would cause undue delay.

* * * In the instant application . . . [t]he sole ground advanced is that the affidavit contains evidence which was not before the decision-maker. In my view, the

49 Mossman v. Nova Scotia (Attorney General), [1994] N.S.J. No. 468 (S.C.) at ¶12 per Tidman J. See also Canada Life Assurance Company v. Nova Scotia (Minister of Municipal Affairs), supra note 23 at ¶27 (S.C.).

50 See, for e.g., David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.).

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affidavit is so substantial and considerable that it would be unfair to the applicant to let it proceed for judicial review without dealing with it. Consequently, it would assist the orderly progress of the judicial review if this matter was disposed of in advance of the hearing.51 [Emphasis added.]

Thus there are times when it will be appropriate to bring a preliminary application to strike an

affidavit or portions thereof on judicial review. Otherwise, a party should raise its objection in

its written submissions so the court and opposing party have notice of the matter and can be

prepared to address it.

V. Conclusion

In conclusion, applications for certiorari will primarily be determined based on the record before

the court. The contents of the record are well-defined in Nova Scotia, and will often contain all

the material necessary to argue the judicial review application. In cases where the error is

jurisdictional in nature and therefore will not appear on the face of the record, evidence in

support of the application may be introduced by way of affidavit.

Quite often parties attempt to reargue their case on judicial review—either to persuade the

reviewing court to give a decision different from that obtained at first instance, or alternatively to

uphold the correctness of the decision. Such arguments mistake the point of judicial review and

the court’s limited supervisory role on such applications. By understanding the proper scope of

judicial review, counsel will better be able to submit material that is both admissible and relevant

to the application—including affidavits.

51 Chopra v. Canada (Treasury Board) (1999), 168 F.T.R. 273 at 275, per Dubé J. [footnotes omitted].

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Appendix “A”: Nova Scotia Civil Procedure Rules 56.07 and 56.08

Endorsement on originating notice

56.07. (1) There shall be endorsed upon an originating notice for an order in the nature of certiorari a notice to the following effect, adapted as may be necessary and addressed to the judge, magistrate, justice or justices, officer, clerk or tribunal,

“You are hereby required forthwith after service of this originating notice on you to return to the prothonotary at , Nova Scotia, the judgment, order, decision or reasons for judgment, together with the process commencing the proceeding, the evidence and all exhibits filed, if any, and all things touching the proceeding as fully and entirely as they remain in your custody, together with this notice.”

Dated at _________, Nova Scotia, this ___ day of ___, 20__.

TO:_______

_________, of ____________ Street,

_________, Nova Scotia,

Solicitor for the Applicant.”

(2) All things required by paragraph (1) to be returned to a prothonotary shall, for the purposes of an application for an order in the nature of certiorari, be deemed to be part of the record.

Return of lower court

56.08. (1) Upon receiving an originating notice so endorsed, the judge, magistrate, justice or justices, officer, clerk or tribunal, shall return forthwith to the prothonotary the judgment, order, warrant, decision or reasons for judgment, together with the process commencing the proceeding, the evidence and all exhibits filed, if any, and all other things in the proceeding, together with the originating notice served upon him, with a certificate endorsed thereon in the following form,

“Pursuant to the accompanying notice I herewith return to this Honourable Court the following papers and documents, that is to say,

(i) the judgment, order or decision (or as the case may be) and the reasons therefor;

(ii) the process commencing the proceeding and the warrant issued thereon;

(iii) the evidence taken at the hearing and all exhibits filed; and

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(iv) all other papers or documents in the proceeding.

And I hereby certify to this Honourable Court that I have above truly set forth all the papers and documents in my custody and power in the proceeding set forth in the originating notice.”

(2) If the papers and documents, or any of them, are not in the possession of the person required to transmit them, he shall in lieu of or in addition to the certificate, so state and explain the circumstances.

(3) When the papers and documents have not been received by the prothonotary as provided in paragraph (1), the prothonotary shall return a certificate of the fact to the court.

(4) The return and certificate prescribed in paragraph (1) or (2) shall have the same effect as a return to a writ of certiorari.

(5) The court may dispense with the return of the evidence or exhibits or any part of them.

(6) A copy of this rule shall appear upon or be annexed to the originating notice served upon the judge, magistrate, justice or justices, clerk, officer or tribunal from whom the return is required.