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Federal Court - Record of Proceedings (3). Canada (Attorney General) v. Canadian Civil Liberties Association
In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.
Here the court considered adding to the JR record under R312 ['Additional steps'] (the parties seeking to add were intervenors and intervenors are not usually allowed to supplement the evidence record, but R 312 is more generous):[62] To admit new evidence under Rule 312, two preliminary requirements must be satisfied: 1) the evidence must be admissible on the application for judicial review; and 2) the evidence must be relevant to an issue that is properly before the reviewing court (see Forest Ethics Advocacy Assoc. v. National Energy Board, 2014 FCA 88 [Forest] at paras. 4-6). As for admissibility, evidence that was not before the decision-maker at the time of its decision is generally inadmissible. There are three limited exceptions to this general rule: to allow for the admission of background information, to highlight the complete absence of evidence before a decision-maker, and to deal with procedural defects that cannot be found in the record of the decision-maker (see Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at paras. 19-20).
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[122] It is not disputed that the record on judicial review is normally limited to the material that was before the administrative decision-maker, because they are the ones who have been empowered by Parliament to determine the merits of matters assigned to them. Reviewing courts are only tasked with assessing the correctness or reasonableness of the decision-maker’s decisions, and must therefore confine themselves to the evidentiary record that was before the original decision-maker: Access Copyright at paras. 14-19; Bernard v. Canada (Revenue Agency), 2015 FCA 263 at paras. 22-28; Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 [Tsleil-Waututh Nation] at paras. 85-87.
[123] For a motion to file additional evidence to succeed, an applicant must satisfy the Court that the evidence is admissible and relevant to the issue before the Court: Forest at para. 4. Once these preliminary requirements are met, the applicant must then convince the Court that it should exercise its discretion in favour of granting the Rule 312 motion. In the exercise of that discretion, the Court will be guided by the following considerations:a) Was the evidence sought to be adduced available when the party filed its affidavits under Rule 306 or 308, as the case may be, or could it have been available with the exercise of due diligence?
b) Will the evidence assist the Court, in the sense that it is relevant to an issue to be determined and sufficiently probative that it could affect the result?
c) Will the evidence cause substantial or serious prejudice to the other party? Holy Alpha and Omega Church of Toronto v. Canada (Attorney General), 2009 FCA 101 at para. 2.
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