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JR - Evidence - Keeprite Current (3). BizTech v. Accreditation Canada
In BizTech v. Accreditation Canada (Div Ct, 2025) the Divisional Court considered what are essentially two JRs, these opposing decisions by Accreditation Canada and the Superintendent of Career Colleges [under the Ontario Career Colleges Act, 2005], these resulting in the revocation of a college's educational program which "triggered a statutory right by BizTech students in the DMS Program to a full refund of their fees."
The court considers the parts of the JR record, here affidavits:[51] Evidence on an application for judicial review is ordinarily restricted to the evidence that was before the administrative decision-maker. However, additional evidence may be adduced in very limited circumstances, such as where there is a complete absence of evidence on an essential point, where the evidence addresses a breach of natural justice that cannot be proven by the record, or to provide general background or context to the issues on the application: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (Div. Ct.), at paras. 13-14; Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 F.T.R 297, at para. 21; Rockcliffe Park Residents Association v. City of Ottawa, 2024 ONSC 2690 (Div. Ct.), at paras. 35-36.
[52] Common ground exists between the parties that much of the affidavit evidence appropriately falls within the exceptions. Other evidence like aspects of Mr. Dharna’s evidence is not controversial as it only better organizes what was already before the decision-maker.
[53] That said, the portions of the affidavit material that are irrelevant, mere opinion, unnecessary, or argumentative will be ignored: Jaffer v. Ontario (Health Professions Appeal and Review Board), 2019 ONSC 6770 (Div. Ct.), at para. 38. An example of this would be a settlement offer made by BizTech. . The Ontario Health Coalition v. Ontario (Minister of Long-Term Care)
In The Ontario Health Coalition v. Ontario (Minister of Long-Term Care) (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this from "the June 14, 2023 decision of the Minister of Long-Term Care (the “Minister”) to approve funding and undertake to issue a licence for a new 320 bed long-term care home in Pickering, Ontario".
Here the court briefly considers the Keeprite JR record doctrine:[85] The Respondent challenges the admissibility of Dr. Armstrong’s affidavit on several grounds. Firstly, a party can supplement the record on a judicial review only if the new evidence is necessary to show an absence of evidence on an essential point, or to establish a breach of natural justice that is not evident from the record of the proceedings below: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (Ont. C.A.). . Leitch v. Human Rights Tribunal of Ontario
In Leitch v. Human Rights Tribunal of Ontario (Ont Divisional Ct, 2024) the Ontario Court of Appeal considered the Keeprite record doctrine:[10] A party can supplement the record on a judicial review if the new evidence is necessary to show an absence of evidence on an essential point, or to establish a breach of natural justice that is not evident from the record of the proceedings below: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (Ont. C.A.). Ms. Leitch argues the affidavits and recording are admissible because they show she was denied procedural fairness at the hearing before Vice-Chair Dawson.
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