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. Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375)

In Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375) (Fed CA, 2023) the Federal Court of Appeal considered the law applicable to the compilation of a JR record of proceedings:
[77] In light of the applicants’ arguments and the fact that there was a transcript of the hearings before the CIRB, no evidence other than the transcript, the exhibits, other documents that were before the CIRB and, perhaps, the CIRB’s interim decisions are relevant to this application for judicial review.

[78] The general rule is that evidence in a judicial review application is limited to that which was before the administrative decision-maker because the task of the reviewing court is to assess the reasonableness of the administrative decision-maker’s decision and not to decide the case afresh. There are a limited number of exceptions to this rule. The exceptions allow, for example, for the filing of general background evidence that might assist the Court, evidence relevant to a claimed violation of procedural fairness or other procedural defect, or evidence to show that there was no evidence on a particular point before the administrative decision-maker (Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 F.T.R. 297 at para. 20; Bernard v. Canada (Revenue Agency), 2015 FCA 263, 261 A.C.W.S. (3d) 441 at paras. 13–28; leave to appeal to S.C.C. refused, 36834 (9 June 2016)).

[79] Here, large chunks of the affidavits filed by both parties go far beyond the permissible exceptions to the general rule and are in essence a re-argument of the case before the CIRB. I have given no weight to the portions of the two affidavits that are inadmissible and have instead focussed on the documents appended to the affidavits that are relevant to the issues in this application.


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