3.22: Evidence on judicial review

Case Summary

The Applicant, an inmate, was accused of assaulting a police officer. The conduct of the investigating officer (the “Officer”) led the Applicant to file a complaint with the Chief of the Edmonton Police Services (the “Chief”). The Applicant filed an Application for Judicial Review of the Chief’s Decision regarding his complaint.

The Applicant sought to rely on an Affidavit sworn by his counsel’s paralegal. The Affidavit exhibited documents and other rulings that the Applicant argued were useful to determine whether the Chief’s Decision was reasonable. The Respondent Officer agreed that two of the exhibits were admissible, but not the rest of the Affidavit (the “Unopposed Exhibits”). The Respondent Chief took no position.

Justice Germain cited prior case law for the proposition that the Court has the discretion to consider affidavit evidence on an application for Judicial Review, but that such use of affidavit evidence is exceptional and cannot be used to “alter or supplement the factual record used by the tribunal to decide the issue on its merits”. After reviewing the Affidavit, Germain J. permitted the Unopposed Exhibits to be entered, as they were materials that the Chief would have had before him, but rejected the other exhibits on the basis that they were hearsay and irrelevant.

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