A pipeline failure led to an investigation by the Association of Professional Engineers and Geoscientists of Alberta (APEGA). The investigation focused on the professional conduct and practices of the Applicants, leading to a decision by APEGA (the Decision). The Applicants brought an Originating Application for Judicial Review pursuant to Rule 3.15, arguing that the investigation should be stayed (the Application).

In the Application, one of the Applicants sought to have the Court consider further evidence to support its position that the Decision was tainted with a reasonable apprehension of bias.

Nixon J. noted that Rule 3.22 sets out that evidence that may be considered by the Court on Judicial Review. Citing Alberta College of Pharmacists v Sobeys West Inc, 2017 ABCA 306, Justice Nixon noted the general rule that evidence that was not before the tribunal and that relates to the merits of the decision is not permitted on Judicial Review.

However, the Court went on to list the situations where supplementary evidence has been admitted:

• to address standing;
• to show bias or a reasonable apprehension of bias where the facts in support of the allegation do not appear on the record;
• to demonstrate a breach of the rules of natural justice not apparent on the record;
• to reveal the evidence actually placed before the decision maker where the decision maker provided an inadequate or no record of its proceedings;
• where the evidence provides necessary background and context to the judicial review application, such as explaining the operation of a complex licensing system;
• to show a complete absence of evidence before the decision maker on an essential point;
• where the evidence provides necessary background and context to a related constitutional argument under the Charter; and
• in Aboriginal matters, to address useful contextual information about the termination of consultation.

Based on review of the evidence and analysis of the law, Nixon ruled that the further evidence sought should be admitted as it was necessary to consider the argument that the Decision was tainted by a reasonable apprehension of bias.