The Applicants brought an Originating Application for Judicial Review. The Applicants filed an Affidavit together with their Originating Application. At the Judicial Review hearing, the Respondents objected to the admissibility of the Affidavit, relying on Rule 3.22 which limits the evidence to be heard at an Application for Judicial Review to: i) the certified record of the proceedings, ii) the transcript of any Questioning which was permitted under Rule 3.21, iii) any evidence permitted under another Rule or enactment, and iv) such other evidence permitted by the Court.

Justice Kubik confirmed that new evidence is only permitted to be admitted in Judicial Review proceedings in limited circumstances, including to establish bias or breach of procedural fairness, to address issues of standing, or where the tribunal whose decision is under review has failed to provide an adequate record of its proceedings.

Justice Kubik found that the certified record of proceedings had been provided and that it did not contain any gaps which would require the Court to exercise its discretion to allow additional evidence to supplement the record. Justice Kubik also noted there was no allegation of bias. As such, Justice Kubik held that there was no basis to admit the Affidavit, and deemed it inadmissible in the proceedings.