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Judicial Review - 'Record to be Filed in Court' [JRPA 10]

. Reflection Productions v. Ontario Media Dev. Corp.

In Reflection Productions v. Ontario Media Dev. Corp. (Div Ct, 2021) the Divisional Court considered an issue of the record required at an application for judicial review, and the efforts that a party must make to create it:
[71] The Applicant served a Notice of Examination under Rule 39.03 of the Rules of Civil Procedure, which is a mechanism to compel oral testimony. The Notice of Examination was quashed. The decision to quash was not appealed. The Notice of Application seeking judicial review does not raise the decision to quash the Notice of Examination as an error.

[72] A subpoena duces tecum is a mechanism to have a witness present oral testimony. It is not an order to produce documents to a party outside of court, as set out in Law Society of Saskatchewan v Abrametz, 2016 SKQB 134 at para 46:
The document in issue, a subpoena duces tecum, is understood to have a particular function - to compel the subpoenaed person to court, or other independent tribunal, to testify and to bring with him/her certain, specified documents. Watt J. (as he then was) described a subpoena in these terms in R. v. Finkle, [2007] O.J. No. 3506 (Ont. S.C.J.) (QL): "literally translated 'under penalty', [a subpoena] is a command to the person named to appear at a time and place specified to give testimony about a matter in issue between the parties to a proceeding" (para. 88). Watt J. then explained the function of a subpoena duces tecum and the limits that ought to attach to its use:
... A subpoena duces tecum requires the witness to bring with him or her things like books, papers and other things connected with his or her testimony. In the usual course, a subpoena duces tecum is not used to obtain these other things, which are often used as aides memoires for production at trial.

...

It is uncontroversial that, where alternative methods of obtaining evidence are available, the party who seeks the evidence may generally choose the means to achieve that end. At the same time, however, courts should be chary of manifest circumventions of traditional methods of acquiring evidence, especially those that avoid adherence to established constitutional principle. A subpoena duces tecum ought not to be used to avoid the scrutiny associated with other methods of acquisition. See, by comparison, R. v. French (1977), 1977 CanLII 2117 (ON CA), 37 C.C.C. (2d) 201, 213-4 (Ont. C.A.) per MacKinnon J.A., affirmed on other grounds (1979), 1979 CanLII 49 (SCC), 47 C.C.C. (2d) 411 (S.C.C.). [Emphasis in original.]
[73] Although not raised in the Notice of Application, the applicant now argues that the record filed by the decision-maker was underinclusive.

[74] Section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 provides:
Record to be filed in court

When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.
[75] Ergo, pursuant to s. 10 of the Judicial Review Procedure Act, it was available to the applicant to bring a motion seeking production of documents it alleges were relied on by the decision-maker but are not contained in the record: see, for example K.D. v. Peel Children’s Aid Society, 2017 ONSC 7392 (Div. Ct.) at paras. 16-17). The applicant failed to do so. As a result, it is precluded from raising this issue for the first time on judicial review.

[76] The applicant’s argument in this regard therefore fails.



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