Simon's Megalomaniacal Legal Resources

Judicial Review - Evidence - Keeprite Current (2)

. Boua v. Office of the Independent Police Review Director

In Boua v. Office of the Independent Police Review Director (Div Court, 2024) the Divisional Court considered Keeprite principles on the content of a JR record:

[8] As a general principle, the record on judicial review is restricted to the record that was before the decision-maker below: Durham (Regional) Police Service v. Ontario Civilian Police Commission, 2021 ONSC 2065, at para. 45. Fresh evidence may be permitted in limited circumstances, for example, to show there was an absence of evidence on an essential point, to disclose a breach of natural justice that cannot be proved using the record, or to provide general background that may assist the court in understanding the issues: Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). In a case management direction dated October 16, 2023, Ms. Boua was advised that the principles articulated in Keeprite would apply to her motion to cross-examine Mr. Anderson.

. Liu v. Ontario Labour Relations Board

In Liu v. Ontario Labour Relations Board (Div Court, 2024) the Divisional Court considers the contents and nature of a JR record:

[14] ... An application for judicial review would not be a de novo hearing of Ms. Liu’s complaints about the Union and the employer. The judicial review application would be based on the evidence before the Board. 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.). ...

. Lachance v. Solicitor General of Ontario

In Lachance v. Solicitor General of Ontario (Div Court, 2023) the Divisional Court consider a JR by local residents, here to resist ["quash the decision of the Solicitor General"] the construction of a new Ontario correctional facility.

Here, the court comments on JR record 'rights':

[37] I agree with the finding of Ryan Bell J. that by bringing this application for judicial review the applicants became entitled to receive all documents concerning their claims. Ryan Bell J. adopted the words of Sharpe JA in Payne v. Ontario Human Rights Commission, 2000 CanLII 5731 (ON CA) at para. 161:

An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court’s inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed.

. Filippova v. Whyte

In Filippova v. Whyte (Div Court, 2023) the Divisional Court considered a fresh evidence issue within a JR:

[49] Generally, the record on judicial review is restricted to what was before the decision-maker because this court’s function is to review the decision below, not to hear the case de novo. There are, however, exceptions to the general rule. One exception is background information that would assist the court in understanding the history and nature of the case that was before the administrative decision-maker. A second exception is affidavit evidence disclosing the complete absence of evidence on a material point – that is, not what is contained in the record, but what cannot be found in the record. A further exception is for evidence relevant to natural justice, procedural fairness, improper purpose, or fraud that is not contained in the tribunal’s record, and that could not have been raised before the decision-maker: Scott v. Toronto (City), 2021 ONSC 858, 100 Admin. L.R. (6th) 312 (Div. Ct.), at paras. 18-20.

. Ontario Secondary School Teachers' Federation v. Ontario

In Ontario Secondary School Teachers' Federation v. Ontario (Div Court, 2023) the Divisional Court considered OLRB labour JRs by the two teachers' unions (the EFTO and the OSSTF), here regarding the "duty to bargain in good faith pursuant to s. 17 of the Labour Relations Act". The OLRB dismissed the OSSTF application entirely - but allowed the EFTO application, though without any remedy.

In these quotes the court considers a JR fresh evidence motion by an applicant, here where the applicant argues for a new 'Keeprite' exception when the tribunal does not keep a formal transcript of it's evidence:

OSSTF Motion to Admit Fresh Evidence

[78] The decision of the OLRB to dismiss OSSTF’s application relied, among several other things, upon its finding that the Crown did not demand OSSTF to withdraw its grid movement grievances or do so on the basis of any misrepresentation. OSSTF claims that this finding is an error and that Blakely admitted during cross-examination that he asked for and received from OSSTF an undertaking to withdraw its grid delay grievances. The OLRB does not record or provide an official transcription of its proceedings, so this purported evidence is not in a certified official transcript of the proceedings.

[79] On this judicial review, OSSTF sought leave to file as fresh evidence the affidavit of Bob Fisher, an OSSTF staff representative who attended the hearing before the OLRB. The evidence sought to be admitted includes Fisher’s recollection of the evidence given at the hearing as well as notes taken by him.

[80] OSSTF submits that Fisher’s evidence is necessary because of the OLRB’s finding that the Crown did not require the withdrawal of the grid delay grievances in its negotiations with OSSTF. OSSTF argues that this conclusion was arrived at without evidence and was made despite a contrary admission from Blakely.

[81] Alternatively, OSSTF argues that the fresh evidence is necessary to evaluate the extent to which this alleged factual error had an impact upon the reasoning of the OLRB. It also argues that the fresh evidence is necessary to show that the OLRB failed to account for Blakely’s alleged admission in the decision, and that a denial of natural justice occurred as a result.

[82] In the further alternative, OSSTF submits that a new exception to the general rule against admitting such evidence should be made where an administrative body creates no record or transcript of viva voce evidence, and the underlying decision does not account for what OSSTF describes as a “critical evidentiary conflict”.

[83] The Crown opposes the motion to admit fresh evidence on the basis that none of the established exceptions apply to allow its admission, and there is no basis to establish a new exception. Hearing notes have consistently been rejected for not satisfying any of the exceptions.

[84] Further, OSSTF had a full opportunity to raise the issue of whether the Crown required an undertaking, to submit specific evidence to that effect before the OLRB, and to make final argument on the point with reference to the evidence said to be in support of its position in that regard. The OSSTF did not do so.

[85] Additionally, the Crown argues that OSSTF’s submission conflates the applicable standard of reasonableness in this instance with procedural fairness. There was no conflict on the facts. Even if there were such a conflict, a decision maker is not required to make explicit findings of every element in the facts that lead to its conclusion.

[86] The Crown also submits there is no credible basis to create a new exception to admit hearing notes taken by a party’s representative. This is an attempt to unduly expand the exceptions. Hearing notes taken by a representative are inherently inappropriate to admit as evidence because they raise concerns of reliability, accuracy, independence and objectivity, especially when taken by one of the parties (See: Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.), leave to appeal to S.C.C. refused, 35 N.R. 85 n).

[87] The OLRB also submitted that the affidavit evidence should not be admitted because it does not satisfy the established requirements, nor does it fall into the Keeprite exception where it is being tendered to demonstrate an absence of evidence.

[88] The OLRB submits that an argument that an administrative body did not take evidence into account is an issue of reasonableness, and not natural justice. It notes that OSSTF submitted to the OLRB at the hearing a summary of evidence, including hearing notes, which are different than what the OSSTF seeks to have admitted as fresh evidence on this judicial review. It points to the potential this raises for an unsuitable comparison of the notes of all parties as well as those of the adjudicator were such evidence admitted.

[89] The motion is characterized by the Respondents as a mere attempt to seek a re-weighing of the evidence that was before the OLRB by this court in order to secure a more favourable result.

[90] For the reasons advanced by the Crown and the OLRB, I am of the view that the “fresh” evidence sought to be tendered by OSSTF is not fresh, does not meet the test for admission nor should it qualify for the establishment of a new exception to the test for the admission of fresh evidence.

[91] I agree with both Respondents that this attempt by OSSTF to either augment or impugn the record is actually made in to support an argument that the OLRB ought to have made different findings of fact, and ought to have weighed the evidence differently. It must be remembered that this is an application for judicial review in which the basic standard of review is one of reasonableness. Even an appeal is not a forum that allows an opportunity simply to re-argue the case in the hope of securing a different outcome.

[92] Accordingly, the motion to admit fresh evidence is dismissed.

. Ashcroft Homes v. Tarion Warranty Corporation

In Ashcroft Homes v. Tarion Warranty Corporation (Div Court, 2023) the Divisional Court considered a JR of a decision by Tarion under s.14 of the Ontario New Home Warranties Plan Act (ONHWPA) "ordering it to pay $7,500 compensation to the purchaser for delayed occupancy".

Here the court considers the allowable 'record' on a JR:

Evidence that was not before the decision-maker

[2] Tarion objects to the use of new information filed by the Applicant contained in portions of the affidavit of Manny DiFilippo sworn December 10, 2022. Mr. DiFilippo’s affidavit includes evidence about the background of the epidemic and evidence concerning the impact of the dismissal of this application on the Applicant’s business.

[3] The evidence about the pandemic is more than mere background. It could have been placed before Tarion if due diligence had been exercised. The evidence about the impact of Tarion’s ruling on the Applicant’s business is not relevant to whether the decision was reasonable. We would not have admitted it as fresh evidence.

[4] Our decision is based on the record before the decision-maker. It would not be in the interest of justice to allow the Applicant to expand the record. This is a review of the reasonableness of a decision. There is no complaint about the procedure followed by the decision-maker. There has been no application to admit fresh evidence. The Applicant is not entitled to do the evidence over on review: Lovell v. Ontario (Minister of Natural Resources and Forestry), 2022 ONSC 423 at paras. 5-7 (Div. Ct.).

. A. Z. v. Office of the Independent Police Review Director

In A. Z. v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considered a JR of the dismissal of OIPRD screening, investigation and examination of a complaint of local police misconduct, here regarding their handling of sexual assault allegations. Paras 1-35 are illustrative of police and OIPRD procedures in such matters.

In these quotes the court considers the judicial review record before it, here on a fresh evidence request:

[40] On a judicial review, the court will normally consider only the material that was before the administrative decision-maker. In certain limited circumstances, additional evidence may be considered on judicial review – for example, to demonstrate a denial of procedural fairness that is not apparent from the record or to show an absence of evidence on an essential point: Wijayaratnam v. Office of the Independent Police Review Director, 2021 ONSC 6303 (Div. Ct.), at para. 27; Queensway Excavating & Landscaping Ltd. v. Toronto (City), 2019 ONSC 5860, 93 M.P.L.R. (5th) 84 (Div. Ct.), at para. 46.