The Applicants applied for Judicial Review of CMOH Order 08-2022, which dealt with masking in schools in response to the COVID-19 pandemic.

There was a preliminary dispute about whether portions of the Applicants’ Affidavit evidence were properly before the Court. The Respondent argued that information about COVID-19 contained in the Applicants’ Affidavits should be ignored because it did not form part of the record before the administrative decision maker, which, the Respondent argued, should be the extent of the record on Judicial Review. 

Justice Dunlop disagreed with the Respondent’s argument, based in part on Rule 3.22. Justice Dunlop stated that the traditional categories of admissible additional evidence on a Judicial Review were based on the former Rules. The former Rules did not allow for the additional categories of new evidence now recognized under the current Rules.

The Court stated that these additional categories include: (1) information that was well-known to the parties in content and substance, and therefore should have formed part of the record in the first instance; (2) records which disclose content and substance which was before the decision maker, despite the records themselves not having been; (3) useful contextual information; and (4) records which provide necessary background and context to a Judicial Review and to related constitutional argument.

The Court therefore admitted the Applicants’ evidence.