Simon's Megalomaniacal Legal Resources

Judicial Review - Fresh Evidence

. Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency)

In Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a Federal Court judgment dismissing "an application for judicial review of two related decisions of the respondent, the Canadian Food Inspection Agency (the CFIA)" in a high-media case involving the cull of a flock of farmed ostriches.

Here the court considers 'ineffective assistance of counsel' doctrine, here in a fresh evidence motion targetted at raising that issue - discussing it in both JR and appeal contexts:

(2) Evidence of ineffective assistance

[33] We also decline to admit the evidence of ineffective assistance of counsel due to the nature of this appeal, where the alleged ineffectiveness occurred before a lower court hearing an application for judicial review.

[34] The affidavit the appellant wishes to tender outlines that the appellant’s counsel before the Federal Court took a security interest for unpaid legal fees in the proceeds that the appellant would receive under the Compensation for Destroyed Animals and Things Regulations, SOR/2000-233 [Compensation Regulations] if the flock were destroyed. Attached as exhibits to the affidavit are copies of the security agreement as well as email communications between the appellant’s principals, its counsel before the Federal Court, and another lawyer who acted as independent counsel to the appellant regarding the security agreement. The appellant alleges this security interest created a conflict of interest.

[35] In Mediatube Corp. v. Bell Canada, 2018 FCA 127, 156 C.P.R. (4th) 289 [Mediatube], a case involving a trial—as opposed to an application for judicial review—where ineffective assistance of trial counsel was alleged, Justice Stratas explained at paragraph 58 that "“[i]n adducing evidence, the appellant does not need to satisfy the stringent test for fresh evidence ""in ""Palmer v. The Queen, "1979 CanLII 8 (SCC), "[1980] 1 S.C.R. 759""”". Subsequent case law provides that "“the evidence being adduced ‘must be admissible (applying the usual rules of evidence), relevant to the issue raised on appeal, and credible’”" (Nguyen v. 1108911 B.C. Ltd., 2024 BCCA 48 [Nguyen] at para. 15, citing Boone v. Jones, 2023 BCCA 215 at para. 34, R. v. Aulakh, 2012 BCCA 340, 326 B.C.A.C. 177 at paras. 59–67, and Beaulieu v. Winnipeg (City of), 2021 MBCA 93 at paras. 28–35, 54–63).

[36] As for what is required for the appellant to succeed on this ground, "“the appellant must show that counsel’s acts or omissions constituted incompetence and a miscarriage of justice resulted”" (Mediatube at para. 29, citing R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520). In the context of an appeal, an actual conflict that affected counsel’s performance is generally sufficient; typically, it need not have affected the result of the trial: Mediatube at para. 57. See also Nguyen at para. 54.

[37] The foregoing statements regarding admissibility on appeal of evidence of alleged incompetence of counsel before a lower court must be modified in the context of an allegation of ineffective counsel before a lower court presiding over an application for judicial review, rather than a trial, due to the different standard of review applied in a judicial review appeal as opposed to other appeals.

[38] On appeal in a judicial review application, like the present one, this Court must determine whether the Federal Court identified the proper standard of review to be applied to the CFIA’s decisions and whether it properly applied that standard: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 [Agraira] at paras. 45–47; Northern Regional Health Authority v. Horrocks, 2021 SCC 42, [2021] 3 S.C.R. 107 [Horrocks] at paras. 10–12. Therefore, this Court essentially steps into the shoes of the Federal Court, performs a de novo review of the CFIA’s decisions, and accords "“no deference to the reviewing judge’s application of the standard of review”" (Horrocks at para. 10.)

[39] This Court has previously held that what is in essence a "“do-over”" on appeal effectively cures breaches of procedural fairness that occur before the Federal Court in a judicial review application: see Haynes v. Canada (Attorney General), 2023 FCA 158 at paras. 14–16, leave to appeal to SCC refused, 41047 (6 June 2024); Whitelaw v. Canada (Attorney General), 2025 FCA 68 at paras. 10, 16; Jagadeesh v. Canadian Imperial Bank of Commerce, 2024 FCA 172 at para. 40. That logic applies equally to allegations of ineffective assistance of counsel before the Federal Court in a judicial review application.

[40] An exception would arise only if an appellant raises errors in the court below for matters to which appellate standards of review apply, namely, "“findings of fact or mixed fact and law based on the consideration of evidence at first instance”" (Apotex Inc. v. Canada (Health), 2018 FCA 147, 157 C.P.R. (4th) 289 at para. 57) or in its exercise of remedial discretion (see e.g., Makivik Corporation v. Canada (Attorney General), 2021 FCA 184 at para. 65). The appellant does not allege that the Federal Court erred in respect of any such matters.

[41] Thus, the appellant’s ability to directly challenge the CFIA’s decisions before us means that the evidence of ineffective assistance is not relevant on appeal and should not be admitted: see Nguyen at para. 15.

. DGN Truck & Forklift Driving School v. Ontario Superintendent of Care

In DGN Truck & Forklift Driving School v. Ontario Superintendent of Care (Div Court, 2024) the Divisional Court allowed a JR from the issuance of 'Revocations of Program Approval' (presumably under the Ontario Career Colleges Act, 2005).

Here the court grants a JR fresh evidence motion:

Motion for Fresh Evidence

[5] Before discussing whether the decisions at issue were made in a procedurally fair manner, I am going to deal with the Applicants’ fresh evidence motion. In Association of Universities and Colleges of Canada and the University of Manitoba v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297, Stratas J. reviewed the recognized exceptions to the general rule against a court receiving evidence in an application for judicial review. The concern about receiving such evidence rests in the demarcation between the roles of the administrative tribunal and the reviewing court. As put by Stratas J. at para. 19, “this Court cannot allow itself to become a forum for fact-finding on the merits of the matter.” One of the recognized exceptions is when the evidence is necessary for the court to assess any alleged procedural defects in the process used by the decision maker. The fresh evidence sought to be introduced in this case is necessary for us to assess the issue this application will turn on: whether the Superintendent breached her duty of procedural fairness. Specifically, the evidence speaks to facts that are relevant to a number of the factors that must be assessed in this regard, namely the importance of the decision to the Applicants, the impact of the decision on them and whether they had a legitimate expectation that was breached unfairly. Therefore, to the extent necessary to discuss the issue of procedural fairness, the fresh evidence has been admitted.

. Liu v. Ontario Labour Relations Board

In Liu v. Ontario Labour Relations Board (Div Court, 2024) the Divisional Court considers an issue of fresh evidence:

[13] Ms. Liu has not brought a fresh evidence motion. If Ms. Liu had brought a motion to adduce fresh evidence on this motion, she would have had to establish the following:

a. The evidence could not have, through the exercise of due diligence, been presented at the hearing before the motion judge;

b. The evidence is reasonably capable of belief;

c. The evidence is relevant to a potentially decisive issue on the motion; and

d. The fresh evidence, if believed, likely would have affected the result of the motion: R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, Alghaithy v. University of Ottawa, 2011 ONSC 5879 (Div. Ct) at para. 31.

[14] Even if Ms. Liu had brought a fresh evidence motion, she has not explained why she could not have filed the evidence she now seeks to adduce as part of the record before the motion judge. She has also not established that the fresh evidence likely would have altered the motion judge’s assessment of the merits of her application for judicial review. ....