The Applicant, Fort McKay First Nation (Fort McKay), in the context of an Application for Judicial Review, sought a preliminary Order for production of a further and better Record by the Minister of Environment and Sustainable Resource Development (ESRD) or, in the alternative, an Order allowing the admission of an Affidavit sworn by a member of Fort McKay (Mr. Stuckless).

Fort McKay had provided the ESRD with various documents relating to the decision under Judicial Review. The ESRD had included all of those documents as part of the Record. However, Fort McKay sought to have the ESRD produce further documents in the Record, on the basis that these documents had been provided to the ESRD during previous projects where the ESRD had made decisions in relation to the Applicant’s land.

Fort McKay argued that because all of the documents provided to the ESRD in previous projects were in the possession of the ESRD, Fort McKay had a reasonable expectation that the ESRD would consider and review them in making the decision. As a consequence, it argued, these documents should be considered as having been filed within the meaning of Rule 3.18(2)(d).

The Court declined to adopt this interpretation. The documents referenced pre-dated the present dispute and were not provided to the ESRD in this proceeding. The Court noted that to accede to Fort McKay’s position would make the process of determining what constituted the Record in a Judicial Review “exceedingly unwieldy and difficult”.

The Court declined to use its discretion to allow the Affidavit of Mr. Stuckless to be entered into evidence to be reviewed by the Court on judicial review. Moreover, the Court noted that the onus lay with the party seeking to admit the documents to show their relevance, and determined that the Applicant had not made it clear why the documents in this Affidavit were relevant. The Court noted that a party seeking to adduce further evidence is required to edit and organize its materials.