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Judicial Review - Evidence - Keeprite Exceptions (3). New Sunlight Inc. v. Minister of Infrastructure
In New Sunlight Inc. v. Minister of Infrastructure (Fed CA, 2025) the Divisional Court of Ontario dismissed a motion to compel examination of a witness, this within a JR "challenging the Ministry of Infrastructure’s plan to expropriate its two properties for several public infrastructure projects".
Here the court considered JR record exceptions:[13] Evidence that was not before the decision maker may be permitted on an application for judicial review where it (1) sets out general background that would assist the court; (2) shows procedural defects that are not apparent from the record or reasons; or (3) shows a complete lack of evidence to support a material finding of fact: Rockcliffe Park Residents Association v. City of Ottawa, 2024 ONSC 2690at para. 35.
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[15] Starting with the first exception, these topics do not constitute general background information. The general background is already found in the briefing deck. The topics are better characterized as an attempt to obtain more detail and information about the reasons and plan for the expropriation – that is, the merits of the decision. Examination on these topics would be more akin to an examination for discovery on the specified topics than an attempt to provide general background information.
[16] The topics the applicant seeks to cover also are not aimed at the second basis a party may be permitted to supplement the record -- demonstrating a procedural defect. The only procedural issue the applicant has raised is the absence of reasons for the Minister’s decision. The applicant has not directly characterized this as a procedural defect. Certain types of administrative decisions, like this one, are not made with a single set of reasons: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 137. Where that happens, the reasons are gleaned from the record as a whole. The absence of reasons does not amount to a procedural defect.
[17] To the extent the applicant’s point is it should be entitled to a better record of the reasons for decision, as set out above, Ms. Ho would not be in a position to supplement the reasons that can be discerned from the record. She herself was not the decision-maker and did not meet with the Minister about the decision. She also did not directly recommend a course of action to the Minister. Although her briefing deck could be said to assume the expropriations would proceed, it did not contain an explicit recommendation. A separate document that Ms. Ho did not author, entitled “decision note” set out the decision that was sought and the recommendation for initiating the expropriation process.
[18] Finally, the examination is not needed to show the third possible basis for supplementing a record on judicial review, that is, a complete lack of evidence on a material finding of fact. Instead, all the topics the applicant seeks to cover in the examination are dealt with in the record of decision as follows:[19] The proposed scope of the expropriation: The record of decision provides diagrams and other information showing the proposed scope of the expropriation.
[20] The rationale for the expropriation: The rationale is partly addressed in the decision note found in the record of decision. The decision note is a memorandum to the Minister. It says the province is seeking to expropriate under a single expropriation scheme to “assist the government in avoiding overcompensating landowners.” Ms. Ho’s briefing deck sets out the objectives of the expropriation as being to seek a full-site expropriation to reduce acquisition costs, secure project delivery timelines, maintain leverage in negotiations, and preserve opportunities for transit-oriented development.
[21] The expropriation scheme: As set out above, the decision note identifies the scheme as a single expropriation. Both the briefing deck and the decision note provide for full and partial expropriation options, with flexibility to adjust based on negotiations.
[22] Timelines: Timelines for various steps in the expropriation process are set out in the briefing deck. Many of the timelines may now be out of date, but that does not lead to a finding that there is a complete absence of evidence on the point. [23] In short, there is evidence on every topic the applicant has raised. There is no entitlement to supplement the record on these topics. To allow the applicant to examine on these issues would be akin to a limited right of discovery.
[24] The applicant has pointed to two cases it says support its entitlement to examine Ms. Ho: Payne and Rockcliffe Park. In both of those cases, a limited right of examination was permitted.
[25] The case before me is unlike Payne. The appellant in Payne had complained to the Ontario Human Rights Commission alleging discrimination by her employer on the basis of race. Commission staff investigated the complaint. A report of the investigation recommended that the Commission refer the complaint to a board of inquiry. However, after considering the matter at three meetings, the Commission decided not to request the appointment of a board of inquiry. This meant, in effect, the complaint was dismissed.
[26] The Court of Appeal allowed the examination of a person who was “privy to the decision-making process” at the Commission. The Court of Appeal was of the view that the appellant was entitled to know the recommendations and any other facts presented to the commissioners by Commission staff.
[27] There are two key differences in that case. First, the appellant sought to examine a person who was privy to the decision-making process. There is no evidentiary basis in the current case to believe Ms. Ho had any information about the decision-making process other than the briefing deck that already appears in the record of decision. Second, in Payne, there was an evidentiary basis for a concern about procedural unfairness. The appellant had filed an affidavit by a former commissioner who raised concerns about excessive control by staff over the decision-making process. The affiant provided evidence about senior staff relying on information not contained in the Commission package. The concerns were particularly relevant to the case because the Commission decision did not follow the initial investigation report. The applicant does not raise any procedural fairness concerns in this case.
[28] Rockcliffe Park is also distinguishable. That case involved the approval of a heritage permit for the construction of a new building. The court permitted a limited examination of a city planner who prepared the staff report that went to the relevant committee and to city council. There, again, the applicant had provided a basis for the concern that their right to procedural fairness had been violated. They also articulated a concern that the decision was made in part on a basis for which there was a complete absence of evidence. The proposed affiant in that case also prepared the recommendation that went to city council. In this case, although Ms. Ho prepared the briefing deck, the official recommendation to the Minister is found in the decision note, which she did not prepare.
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[31] Overall, the applicant has not provided a foundation to justify supplementing the record. The proposed examination would not cover material that was before the decision-maker, reflects the decision-maker’s decision, or that would demonstrate one of the limited exceptions that permit supplementing the record. . Apitipi Anicinapek Nation v. Ontario [JR record in indigenous context]
In Apitipi Anicinapek Nation v. Ontario (Ont Div Ct, 2025) the Ontario Divisional Court allowed a Crown motion, here seeking "to quash part of the underlying application for judicial review for lack of jurisdiction".
Here the court notes an exception to the normal JR record "to allow evidence that the Crown had a duty to consult":[33] There is no issue that the evidence on an application for judicial review is limited to the evidence before the decision-maker, with limited exceptions: Humberplex Developments v Attorney General for Ontario, 2023 ONSC 2962 (Div. Ct.), at para. 15. In addition to those exceptions, AAN relies upon Mississauga First Nation. As set out in para. 10 of Mississauga First Nation, this Court noted that “courts have recognized an exception to the rule against extrinsic evidence in judicial review applications to allow evidence that the Crown had a duty to consult. This is generally treated as a subset of the rule permitting evidence on issues of procedural fairness.” . His Majesty the King as Represented by the Ministry of the Solicitor General v. Dr. John Carlisle
In His Majesty the King as Represented by the Ministry of the Solicitor General v. Dr. John Carlisle (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a Crown (Solicitor-General) JR, here brought against "the decision of the Presiding Coroner ... dismissing the SG’s Motion challenging the Coroner’s scope of issues for a Coroner’s Inquest into seven deaths at the Elgin-Middlesex Detention Centre (“EMDC”) that occurred between 2017 to 2021".
Here the court considered the Keeprite doctrine, and its exceptions, on the contents of a JR record:[22] In Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONSC 4501, beginning at para. 31, this Court reviewed the test for admitting evidence that was not in the record before the tribunal below.
[23] Generally, such evidence is inadmissible. There are three recognized exceptions to this general rule:a. where the evidence seeks to provide general background information; however, this information cannot consist of evidence that goes to the merits of the matter;
b. where the affidavit is designed to tell the reviewing Court that there was a complete absence of evidence before the tribunal below on a certain subject-matter; and
c. where the evidence goes to the issue of natural justice, procedural fairness, improper purpose or fraud, and which could not have been put before the original decision-maker.
See also: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ONCA), 29 O.R.(2d) 513 (C.A.). . 7084421 Canada Ltd. v. Tarion Warranty Corp.
In 7084421 Canada Ltd. v. Tarion Warranty Corp. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this against "a decision of the Respondent Tarion ... finding that: (a) The home municipally known as 103 Edward Street, Aurora (the “Home”) is entitled to statutory warranty coverage under the Ontario New Home Warranties Plan Act, RSO 1990, c.O.31 (the “Act”); and (b) The Applicant is “[t]he vendor responsible for providing the statutory warranties."
Here the court considers basic JR record doctrine:[22] This court has the discretion to refuse to deal with an issue that could have been raised before the administrative decision maker but is not raised until judicial review. The rationale for declining to hear such an argument rests on a number of considerations: showing respect for the legislative decision to confer first line responsibility on the administrative decision maker to make such decisions; obtaining the benefit, for the court on judicial review, of a decision of the specialized decision maker on the issue; avoiding any unfair prejudice to other parties; and ensuring that there is an adequate evidentiary record to decide the question: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, paras. 22-26. I would add to this list respect for the finality principle: this court should decline to order a fresh hearing below where an applicant failed to raise issues after having been given a reasonable opportunity to raise them in the proceeding under review.
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[30] Generally, the evidence before the court on judicial review is restricted to the record that was before the decision maker, and evidence that was not before the decision-maker is generally not admissible before this court: Association of Universities and Colleges of Canada v. The Canadian Copyright Licensing Agency, 2012 FCA 22, para. 19. This is because the court’s function is to review the legality of the decision when it was made. Stratas JA set out three exceptions to the general rule (at para. 20):. Evidence may be admissible to set out general background that would assist the courts.
. Evidence may be admissible to show procedural defects that are not apparent from the record or the reasons – for example, a reasonable apprehension of bias or a denial of procedural fairness.
. Evidence may be admissible to show a complete lack of evidence to support a material finding of fact. See also Re Keeprite Worers’ Independent Union and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 OR (2d) 513 (CA); Hanna v. Attorney General for Ontario, 2010 ONSC 4058, para. 13 (Div. Ct.); Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086, paras. 13, 20 (Div. Ct.). . Watter v. McMaster University [additional affidavit evidence]
In Watter v. McMaster University (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this against McMaster University Board of Governors deciding "that adequate cause existed to remove Dr. Watter from his faculty position ... ."
Here the court considers conventional record doctrine for judicial reviews, discussing when affidavit evidence may be added:[46] The general principle is that an application for judicial review is usually to be decided on the record that was before the original decision maker. Affidavit evidence is only admissible 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: Canadian National Railway Co. v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.), 56 Admin. L.R. (6th) 219, at paras. 10-11; Jaffer v. Ontario (Health Professions Appeal and Review Board), 2019 ONSC 6770 (Div. Ct.), at para. 37; Filippova v. Dr. Whyte and Senate Board for Student Appeals of McMaster University, 2024 ONSC 497 (Div. Ct.), at para. 49. . NOVA Chemicals Corp. v. Dow Chemical Canada ULC
In NOVA Chemicals Corp. v. Dow Chemical Canada ULC (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR, this against "a decision of the Committee of Adjustment of the Township of St. Clair (the “Decision”) granting the respondent Dow Chemical Canada ULC (“Dow”)’s application for a minor variance under s. 45 of the Planning Act".
Here the court considered JR record doctrine:[30] The general rule on an application for judicial review is that the evidence before the court should essentially be the material that was before the decision maker at the time the decision was being made: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (Div. Ct.), at para. 13; Rockcliffe Park Residents Assn. v. Ottawa (City), 2024 ONSC 2690 (Div. Ct.), at para. 34.
[31] As the Divisional Court explained in Sierra Club Canada, at para. 14, evidence to supplement the record before the decision maker is permissible only in exceptional circumstances, for example, to demonstrate an absence of evidence on an essential point in the decision, or to show a breach of natural justice that cannot be proved by mere reference to the record.
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[41] Even though there are portions of the affidavits that do not strictly speaking offend the usual practice, by any measure the amount of material placed before this court by these two well resourced parties was excessive and surplus to needs.
[42] Rather than surgically exclude objectionable portions of the Daichendt affidavit, evidence contained in the affidavits filed by the parties which violates the principles concerning appropriate evidence on judicial review applications that I have outlined above has not informed my decision. . The Philosopher’s Wool Environmental Preserve v. The County of Bruce
In The Philosopher’s Wool Environmental Preserve v. The County of Bruce (Ont Div Ct, 2025) the Ontario Divisional Court dismissed "in large part" a motion to quash a JR, this JR challenging a municipality's "decision to approve a plan of subdivision".
Here the court considers a typical JR record, and exceptions thereto:[74] Evidence that was not before the decision maker is generally not admissible on judicial review unless if falls within three recognized exceptions:a. Where the evidence seeks to provide general background information. However, the information cannot consist of evidence that goes to the merits of the matter.
b. Where the affidavit is designed to tell the reviewing court that there was a complete absence of evidence before the tribunal below on a certain subject matter.
c. Evidence that goes to the issue of natural justice, procedural fairness, improper purpose or fraud that could not have been put before the original decision maker. (Windrift Adventures v. Chief Animal Welfare Inspector, 2023 ONSC 4501 citing Bernard v. Canada (Revenue Canada), 2015 FCA 263.) . Haulage Network Driving Academy Inc. v. Ontario (Superintendent of Career Colleges)
In Haulage Network Driving Academy Inc. v. Ontario (Superintendent of Career Colleges) (Div Ct, 2025) the Divisional Court allowed a JR, here regarding the question of whether the "Superintendent [is] empowered to immediately forfeit a college’s security bond every time she issues a proposal to suspend, revoke or refuse to renew the college’s registration" (a LAT appeal was allowed).
Here the court considered the presumptive contents of JR records, and exceptions thereto:[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);
b. Evidence that was not before the decision maker, but which:
i. Sets out general background that would assist the court;
ii. Shows procedural defects that are not apparent from the record or the reasons;
iii. Shows a complete lack of evidence to support a material finding of fact; or
iv. Where the evidence is relevant to the exercise of the court’s remedial discretion; and
c. Materials that are properly “fresh evidence” on the application.
Humberplex Developments v. Attorney General for Ontario, 2023 ONSC 2962 (Div. Ct.), at para. 15; Rockcliffe Park Residents Association v. City of Ottawa, 2024 ONSC 2690 (Div. Ct.), at para. 35; Lachance v. Ontario (Solicitor General), 2023 ONSC 7143 (Div. Ct.) at para. 11. . Parikh v. Walmart Canada Corporation et al. [single versus full panel]
In Parikh v. Walmart Canada Corporation et al. (Ont Divisional Ct, 2025) the Ontario Court of Appeal considers interlocutory motions within a labour JR, here where the JR was brought against an OLRB decision that refused "to extend the time for him to appeal an order dated November 30, 2022 made by a Ministry of Labour Inspector under the Occupational Health and Safety Act".
Here the court broadly considers a JR fresh evidence motion, which this single judge deferred to a full 3-judge JR panel:[15] Judicial review is not a new trial at which new evidence is considered and new facts are found. Rather judicial review is a process whereby the court assesses the reasonableness of the decision of a tribunal. The court is required to pay respectful attention to the tribunal’s reasons and to assess whether the reasons are justifiable, transparent, and intelligible. See: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII)
[16] At the hearing in January, the court will consider the reasonableness of what the OLRB wrote and decided based on the evidence and submissions that were made to the tribunal at the time.
[17] New evidence does not usually help the court assess the reasonableness of what a tribunal did on the material that was in evidence before it. Therefore, new evidence is usually not admitted on a judicial review application. See: Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 (CanLII).
[18] But there are exceptions. As discussed by Stratas JA in Association of Universities and Colleges:(a) Sometimes this Court will receive an affidavit that provides general background in circumstances where that information might assist it in understanding the issues relevant to the judicial review: see, e.g., Estate of Corinne Kelley v. Canada, 2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada (Attorney General), 2005 FC 1013 at paragraphs 39-40; Chopra v. Canada (Treasury Board) (1999), 1999 CanLII 8044 (FC), 168 F.T.R. 273 at paragraph 9. Care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider. In this case, the applicants invoke this exception for much of the Juliano affidavit.
(b) Sometimes affidavits are necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfil its role of reviewing for procedural unfairness: e.g, Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980) 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). For example, if it were discovered that one of the parties was bribing an administrative decision-maker, evidence of the bribe could be placed before this Court in support of a bias argument.
(c) Sometimes an affidavit is received on judicial review in order to highlight the complete absence of evidence before the administrative decision-maker when it made a particular finding: Keeprite, supra. [19] The law is the same in Ontario. See: Gao v. Health Profession Appeal and Review Board, 2023 ONSC 742 (CanLII) at para. 16 and Keeprite cited above.
[20] Some cases have held that a single judge should not decide on fresh evidence as only the panel hearing the application can assess its utility and admissibility. Other cases have held that where the outcome is clear, it is efficient for a single judge to make evidence determinations in advance of the main hearing of the application.
[21] In Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316 (CanLII) Harvison Young J (as she then was) reconciled the competing policies in this way:[50] These two principles, considered within the context of the present case, are by no means irreconcilable. Defining the record appropriately in advance of the hearing enhances the panel’s ability to determine the merits, and is thus in the interests of justice. As I will discuss below, there is material contained within the affidavit material that is clearly inadmissible and should be struck. On the other hand, this court must take care not to usurp the role of the panel in determining the merits. In case of doubt concerning the admissibility of affidavit material filed, it should not be struck. [22] It is not clear to me whether some of Mr. Parikh’s material was put into evidence before the OLRB. I am also unaware of whether he has delivered a sworn affidavit as required. The court will not just look at loose documents uploaded to Case Center. A witness needs to swear or affirm in an affidavit that the documents are authentic. The documents should be attached as exhibits to the affidavit and their authenticity should be stated in the body of the affidavit.
[23] There is sufficient doubt in my mind about the admissibility and purpose of the documents being advanced by Mr. Parikh that, with the consent of the other parties, I defer the issue of admissibility to the panel that hears the application. . Taccone v. Registrar, Funeral, Burial and Cremation Services Act, 2002
In Taccone v. Registrar, Funeral, Burial and Cremation Services Act, 2002 (Div Court, 2024) the Divisional Court lists exceptions to the JR record 'fresh evidence' exclusion rule:[22] Exceptions exist, however. Justice Stratas explains in Association of Universities and Colleges Canada,[20] There are a few recognized exceptions to the general rule against this Court receiving evidence in an application for judicial review, and the list of exceptions may not be closed. These exceptions exist only in situations where the receipt of evidence by this Court is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker (described in paragraphs 17-18, above). In fact, many of these exceptions tend to facilitate or advance the role of the judicial review court without offending the role of the administrative decision-maker. Three such exceptions are as follows:(a) Sometimes this Court will receive an affidavit that provides general background in circumstances where that information might assist it in understanding the issues relevant to the judicial review: see, e.g., Estate of Corinne Kelley v. Canada, 2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada (Attorney General), 2005 FC 1013 at paragraphs 39-40; Chopra v. Canada (Treasury Board) (1999), 1999 CanLII 8044 (FC), 168 F.T.R. 273 at paragraph 9. Care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider. In this case, the applicants invoke this exception for much of the Juliano affidavit.
(b) Sometimes affidavits are necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfil its role of reviewing for procedural unfairness: e.g, Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980) 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). For example, if it were discovered that one of the parties was bribing an administrative decision-maker, evidence of the bribe could be placed before this Court in support of a bias argument.
(c) Sometimes an affidavit is received on judicial review in order to highlight the complete absence of evidence before the administrative decision-maker when it made a particular finding: Keeprite, supra.
[Emphasis added.] [23] The law is the same in Ontario. See: Gao v. Health Profession Appeal and Review Board, 2023 ONSC 742 (CanLII) at para. 16 and Keeprite cited above. The court continues to examine to proposed fresh evidence on the argument that it fit into the 'narrative' exemption, although denying it on the basis that (in part) it amounts to an extended factum:[27] The proposed evidence in this case does not fit into the “background” exception recognized in the case law. First, the evidence very much exceeds the limited role of background and “goes to the merits” as described by Stratas JA. In addition, allowing a decision-maker to expand on his or her understanding of the evidence and approach to the decision, beyond the words of the decision itself, is contrary to, and undermines, the careful demarcation of roles of the court and the decision-maker.
[28] This case is not a close call in my view. The Registrar starts at the beginning and gives his evidence on each step of the way through the investigation(s) that were being conducted by the applicants that are then the subject matter of his impugned decision.
[29] The affidavit is not required simply to put documents before the court on a neutral basis and without commentary. The affidavit does not exhibit any documents. Rather, it refers in the main to documents that are already before the court in the Record of Proceedings. The sole use of the affidavit then it to provide the commentary (and in some places spin) to which the applicants object.
[30] While some of the impugned affidavit explains the statutory scheme that is hitherto unknown to the court, this is really submissions for a factum. In fact, interpretation of a statute comes better from counsel as submissions than from a layperson as evidence.
[31] Even to the extent that the affidavit has some helpful background about the statutory scheme, it is not appropriate to expand factum length by moving submissions to an affidavit.
[32] There are differing views about whether this type of decision is best made by the panel that hears the application or by a single judge in advance. Counsel for the Registrar submits that the better process would be to defer the applicants’ motion to the panel and then to allow the parties a few extra pages of factum to deal with the motion.
[33] There are two competing policies at play. First, if the evidence may be helpful to the panel to aid them in deciding the merits, then the panel may wish to see it. On that basis, they should be the ones who decide if the affidavit should be allowed. On the other hand, it is important to keep judicial review proceedings focused on the issues, orderly, organized, and concise. A judicial review proceeding is not a time to throw everything at the wall to see what sticks.
[34] In Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316 (CanLII) Harvison Young J (as she then was) reconciled the competing policies in this way:[50] These two principles, considered within the context of the present case, are by no means irreconcilable. Defining the record appropriately in advance of the hearing enhances the panel’s ability to determine the merits, and is thus in the interests of justice. As I will discuss below, there is material contained within the affidavit material that is clearly inadmissible and should be struck. On the other hand, this court must take care not to usurp the role of the panel in determining the merits. In case of doubt concerning the admissibility of affidavit material filed, it should not be struck
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