3.18: Notice to obtain record of proceedings
3.19: Sending in certified record of proceedings
3.22: Evidence on judicial review
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Applicant, Mr. Bergman, made an Application for Judicial Review of a municipal tax bylaw enacted by the Respondent, the Village of Innisfree. The Respondent filed a Certified Record of Proceedings as required by Rules 3.18 and 3.19. The Applicant filed two Affidavits seeking to supplement the Certified Record of the Respondent, pursuant to Rule 3.18(3) which allows the Court to add to, dispense with, or vary contents of the Record.

The Court considered Rule 3.22 in determining whether the Applicant’s supplemental materials should be added to the Certified Record. Rule 3.22 prescribes what evidence may be considered by the Court during a Judicial Review Application. The Court also considered the Applicant’s Affidavits in light of Rule 13.18, which allows Affidavits to be sworn on the basis of personal information and belief but does not allow hearsay. The Court found that relevant hearsay evidence could be permitted by the Court under Rule 3.22(d) using the principled exception to hearsay rule, if the evidence is necessary and reliable.

Finally, Justice Feth noted that the use of Affidavits in a Judicial Review Application is exceptional, citing both Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission), 2006 ABQB 904 and University of Alberta v Alberta (Information and Privacy Commissioner), 2011 ABQB 699. His Lordship also noted that a Judicial Review Application is to review the administrative decision maker’s actions, not determine the issue afresh, and the Applicant is not entitled to a hearing de novo on the original issue before the administrative decision maker. Justice Feth reviewed the relevant case law on when supplementary evidence could be permitted, ultimately finding that the Affidavit evidence would not be admitted as the evidence was not before the Respondent in making its decision, not relevant to the grounds for Judicial Review, and offended the hearsay rule.

The Respondent filed a cross-Application to stay the proceedings as an abuse of process, pursuant to Rule 3.68. The Court set out the test for abuse of process, which would be established where (i) the proceedings are oppressive or vexatious, and (ii) the proceedings violate fundamental principles of justice for fair play and decency; noting that specific requirements do not need to be established. Justice Feth also noted that the abuse of process doctrine could apply to re-litigation, even in cases where estoppel or res judicata are not met, but that the remedy of a stay would only be appropriate in the “clearest of cases”. In Justice Feth’s review of the Application and surrounding facts, His Lordship concluded that the Application was not an abuse of process, and on that basis did not order a stay.

The Respondent also applied for Summary Judgment pursuant to Rule 7.3(1)(b). Justice Feth, in applying the test from Hryniak v Mauldin, 2014 SCC 7, found that Summary Judgment was not appropriate as it was not a proportionate, expeditious or less expensive means to achieve a just result. Rather, the Court dismissed the Judicial Review Application on its merits.

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