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6. JR EVIDENCE
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(a) Introduction
Having reviewed scores of administrative review (I use the term 'review' to include both appeals and JRs) cases where appellants and JR applicants attempt to supplement their case's evidentiary (almost always documentary) 'records', it's plain that the purpose of 'JR records' and 'appeal records' doctrine is quite similar.
To start with, the basics of an administrative tribunal's record compilation duty are set out in SPPA 20 and include all the evidentiary, procedural and pleading documents used at the tribunal hearing. Then, either for JRs [a duty by the tribunal) [JRPA 10] or for court appeals (a duty by the appellant) [RCP R61.09 'Perfecting Appeals'], duties to file. This forms the default basis of the 'record' - containing both the 'substantive evidence' (ie. the evidence adduced by the parties) and the 'procedural evidence' (that which reflects the procedures used).
The leading case strain in JR evidence law is that of 'Keeprite' [Re Keeprite Workers' Independent Union et al. and Keeprite Products Ltd. (Ont CA, 1980)], lately stated as [in Haulage Network Driving Academy Inc. v. Ontario (Superintendent of Career Colleges) (Ont Div Ct, 2025)] (SS: the descriptive terms are mine and will be used in the below analysis):[11] The general rule is that affidavits containing material that was not before the decision maker are not admissible on an application for judicial review. The court has articulated a set of narrow exceptions to this rule. The following material may be admitted:a. Material that ought to have been included in the record of proceeding (that is, it is properly part of the record pursuant to s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22); [SS: 'default record']
b. Evidence that was not before the decision maker, but which:i. Sets out general background that would assist the court; [SS: 'narrative evidence']
ii. Shows procedural defects that are not apparent from the record or the reasons; [SS: 'procedural fairness evidence']
iii. Shows a complete lack of evidence to support a material finding of fact [SS: 'evidence showing lack of evidence below']; or
iv. Where the evidence is relevant to the exercise of the court’s remedial discretion [SS: 'evidence in support of remedy']; and c. Materials that are properly “fresh evidence” on the application. [SS: 'fresh evidence'] These amount to the following different types of evidence, which form a useful list for our purposes:- the default record,
- narrative evidence,
- procedural fairness evidence,
- evidence showing lack of evidence below,
- evidence in support of remedy,
- fresh evidence.
The first, 'default record' - while it may attract some litigation when a tribunal is alleged to be lax about including all documentation required [under SPPA s.20] - can for the most part be safely relied upon to supply the full 'record' (that's the term that will be used). This is rarely contentious.
The second, 'narrative evidence' is often presented by the involved tribunal in their factum (if they participate in the review), but in any event is an effort by the parties to essentially educate the reviewing court as to the nature of the administrative regime involved (there are lots of different ones, so they often like some background), and the basic facts and issues of the case. When this is done objectively and summarily by a party, it should properly be done in sworn affidavit - although if done correctly it will rarely be contentious, and often can sneak in through a factum.
The third, 'procedural fairness evidence', focusses on whether the administrative hearing was 'fair' - as that term is used in Fairness doctrine (which see). This consists of evidence about the tribunal hearing or matters relating to that. In JR practice, such evidence is quite common and usually contentious. It should be advanced by sworn affidavit (for both it's veracity and so that it may be cross-examined on). This 'fairness' evidence will not normally run into any Fresh Law issues [ie. opposing arguments that it should have been advanced at the hearing below (and can't be advanced now), because it just procedurally 'happened'] - but it may run into a similar 'you didn't object promptly' argument [see Fairness - Prompt Objection Required].
The fourth, 'evidence showing lack of evidence below' is a category that I'd don't think is going to persist in the doctrine. While it apparently emanates from JRPA s.2(3) ['Lack of evidence'] (and is screamingly obvious besides) it is but one of the much larger category of fairness law (or soon will be, given it's growth). Therefore, I'm going to ignore it for present purposes.
The fifth, 'evidence in support of remedy' is another category that shouldn't run into a fresh law argument opposition, as it only arises if and when the review (again, either an appeal or a JR) is allowed. But parties - insofar as they feel the need to - would normally address it in both their affidavits (ie. to state facts in support of a sought remedy) and their factum (to state remedy-supportive law).
The sixth and last category, presently called 'fresh evidence' - is a broad and ill-defined term - something that IMHO would benefit from it's further division into the firmer categories of 'fresh substantive evidence' and 'procedural evidence'. Think of this as the evidence that a party would add (in afterthought) to bolster their case, after the ruling comes down. It is distinct from 'procedural fairness evidence', which deals with the manner in which the hearing and related procedures have operated - ie. it's the guts of any case, what you are really fighting over. IMHO this is the correct use of the 'fresh evidence' term, and it should be clarified to: 'fresh substantive evidence'.
At this point I'll add in a practice note. When parties want to advance evidence on anything other than the default record (ie. anything new), they often just jam it into the appeal record (or even a factum) and hope that neither the registrar nor the opposing parties will object to it. But objects clearly can occur (and where the registrar objects it might be too late to correct before a delivery timeline runs out), and judges like to have such 'fresh evidence' issues decided by separate formal motions (which require a separate factum and additional paperwork). This extra work is a major PITA, but it's the safer practice.
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(b) JR Evidence Subjects
JR Record
Statutes
JR - Record to be Filed [JRPA 10]
JRPA s.10 Record to be filed in court
Administrative - Record [SPPA 20]
SPPA 20 - Record of Proceeding
Keeprite Doctrine
JR - Keeprite Current (1980) (+)
JR - Keeprite Exceptions (+)
JR - Record - Payne (2000)
Fresh Evidence
JR - Fresh Evidence
JR - Record - Supplementing Record
Practice
JR - Evidence Practice
Miscellaneous
JR - Evidence - Summons
JR - Non-Hearing Decisions
JR - Transcript
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(c) General JR Evidence Statutes
SPPA s.15(1) What is admissible in evidence at a hearing
SPPA s.15(2) What is inadmissible in evidence at a hearing
SPPA s.15(3) Conflicts
SPPA s.16 Notice of facts and opinions
SPPA s.29(1-3) Prohibition on photographs, recordings, dissemination; Non-Application; Offence
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(d) JR Evidence Rules (RCP)
General
RCP - R39.01(1) Evidence by Affidavit - General
RCP - R39.01(2-3) Evidence by Affidavit - Service and Filing
RCP - R39.01(4) Contents — Motions
RCP - R39.01(5) Contents — Applications
Cross-Examination on Opposing Affidavit on Motions or Applications
RCP - R39.02(1-2) Evidence by Cross-Examination on Affidavit
RCP - R39.02(3) To be Exercised with Reasonable Diligence
RCP - R39.02(4) Additional Provisions Applicable to Motions
Ex Parte Motions or Applications
RCP - R39.01(6) Full and Fair Disclosure on Motion or Application Without Notice
Expert Witness Evidence on Motions or Applications
RCP - R39.01(7) Expert Witness Report as per R53.03(2.1)
Out-of-Court Examination for Use in Motions and Applications
RCP - R39.03(1-2.1) Examination Before Motion or Application Hearing
RCP - R39.03(3) To be Exercised with Reasonable Diligence
In-Court Examination for Use in Motions and Applications
RCP - R39.03(4-5) Examination At the Motion or Application Hearing; Summons
Use of Discovery in Motions
RCP - R39.04(1-2) Evidence by Examination for Discovery
7. JR REMEDIES
(a) Overview
Aside from it's application to public law, the essence of judicial review as a legal procedure is it's available remedies. 'Remedies' are what the court can order in your favour if you win.
A primary thing that defines these JR remedies is that they are not themselves monetary in nature. There are two categories of JR remedies: the first is 'prerogative writs' - and second, 'injunctions and declaration remedies against statutory powers'.
JR - Remedies Generally
(b) Prerogative Writ Remedies
General
1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. [JRPA 2(1)1]
These 'prerogrative writs' [in JRPA law, "mandamus, prohibition or certiorari"] are old legal remedies that the JRPA meant to bring into the 20th (now 21st) century. They are defined fairly here in Wikipedia: prerogative writs.
JR - Prerogative Writs - General [JRPA 2(1)1]
JR - Prerogative Writs - Non-Statutory Powers [JRPA 2(1)1]
JR - Quo Warranto
Mandamus
'Mandamus' is defined in Wikipedia [30 April 2022] as:Mandamus (/mænˈdeɪməs/; lit. ''we command'') is a judicial remedy in the form of an order from a court[1] to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing), and which is in the nature of public duty, and in certain cases one of a statutory duty.
JR - Mandamus [JRPA 2(1)1] (+)
JRPA s.7 Summary disposition of mandamus, etc.
Prohibition
'Prohibition' is defined in Wikipedia [30 April 2022] as:... a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdiction.
JR - Prohibition [JRPA 2(1)1]
Certiorari and Modern Informality
Certiorari is the most commonly sought of the prerogative writs. It is defined in Wikipedia [30 April 2022] as follows:In law, certiorari is a court process to seek judicial review of a decision of a lower court or government agency. Certiorari comes from the name of an English prerogative writ, issued by a superior court to direct that the record of the lower court be sent to the superior court for review. The term is Latin for "to be made certain", and comes from the opening line of such writs, which traditionally began with the Latin words "Certiorari volumus..." ("We wish to be made certain...").
In modern Ontario JR law these formal prerogative writs are less mentioned by their old latin names, and informality reigns as a means of furthering legal accessibility. This informality is supported by these JRPA provisions [JRPA 7,9(1)]:7. An application for an order in the nature of mandamus, prohibition or certiorari shall be deemed to be an application for judicial review and shall be made, treated and disposed of as if it were an application for judicial review.
....
9(1) It is sufficient in an application for judicial review if the applicant sets out in the notice of application the grounds on which the applicant is seeking relief and the nature of the relief.
The result is that most JRPA s.2(1)1 prerogative writ remedies are effectively styled as a certiorari remedies, with the upshot being that they are either 'allowed' or 'dismissed' - which can be translated into 'old' certiorari language to mean either 'made certain' or 'set aside'. Assuming that the result is to 'set aside', then the next question is who the matter can be re-decided by: ie. the JR court (that the party are in front of) or whether it must be 'remitted back down' to the original decision-maker. If it is remitted back down then another question is whether it should be directed to the same adjudicator, or whether it should be directed to another (for example, where the issue was bias).
JR - Certiorari [JRPA 2(1)1]
JR - Remedies - Set Aside [JRPA 2(4)]
JRPA 2(4) - Power to Set Aside
JR - 'Remit/Decide' Choice on Grant (+)
(c) 'Statutory Powers' Injunctions and Declaration Remedies
2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. [JRPA 2(1)2]
Injunctions and declarations are familiar to most of us, but for the sake of clarity I'll quote these Wikipedia definitions [at 01 May 2022]:An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts.[1]
A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding order by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute (subject to any appeal).
However these JRPA 2(1)2 declaration and injunction remedies (as opposed to the prerogative writ remedies) apply only to "statutory powers", and statutory powers' are - overwhelmingly - government powers. Canadian law has a principle of deference to executive government that disparages the availability of injunctions against government entities, so there will be very few 'JR injunction' cases [I have found none in my regular case updating] - so you will see JR declaration cases, but no JR injunction cases.
JR - Declarations [JRPA 2(1)2]
But both declaration and injunctions occur in our law generally [ie. in non-JR contexts], are many of the same principles will apply to them in their JR form. For reference, these are my 'general' injunction and declaration sections.
JR - Declarations
JR - Injunctions and Stays
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