Berger, McDonald and Strekaf JJA

3.22: Evidence on judicial review

Case Summary

The Respondent, Sobeys West Inc. (“Sobeys”) brought an Application for Judicial Review of the Alberta College of Pharmacists’ (“College”) adoption of a policy into its Code of Ethics which restrained the ability of pharmacies to implement loyalty programs, including Air Miles rewards program. The reviewing Judge had permitted Sobeys to enter additional affidavit evidence which was not considered by the College when the impugned policy was adopted. The additional evidence included evidence which both pre and post dated the College’s decision to adopt the policy. On Appeal, the College asserted that the reviewing Judge erred by admitting Sobeys’ Affidavit, because, pursuant to Rule 3.22, Affidavit evidence is not generally permitted on an Application for Judicial Review.

The Court of Appeal confirmed the general position that evidence which was not before the tribunal whose decision is under review is not permitted without the leave of the Court. The Court also noted that allowing evidence which arose after the impugned decision on judicial review “has the potential to extend the review process indefinitely and is simply unworkable”. The Court of Appeal held that the reviewing Judge erred by allowing Sobeys’ Affidavit evidence to be admitted, and by relying upon it. The Appeal was allowed.

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