The Applicants applied for a Judicial Review challenging bylaw 1998-20 (the “Bylaw”) passed by the Respondent on the grounds that it did not comply with the Municipal Government Act, RSA 2000, c M-26. The Bylaw had reduced the number of electoral divisions in the County.

The Respondent sought to include in the Certified Record of Proceedings (the “Record”) a copy of the challenged Bylaw as well as copies of bylaws from other counties that were similar to the Bylaw. The Applicants consented to the inclusion of the challenged Bylaw; however, the Applicants applied to have these other bylaws struck out from the Respondent’s Book of Authorities because they were evidence and not argument, and the Respondent had failed to bring an Application under Rule 3.22 for the bylaws’ inclusion. The Respondents cross-applied for the other counties’ bylaws inclusion into the Record.

Justice Rothwell concluded that, when considering materials in a legal brief, that evidence must be set out in an Affidavit, oral testimony, or through an authorized manner. As such, the additional bylaws were struck from the Respondent’s Book of Authorities.

In considering the Respondent’s request to have the materials added to the record, Justice Rothwell noted that Judicial Review is conducted upon the basis of the documents that were before the decision maker whose decision is being reviewed. Justice Rothwell further identified that Rules 3.18 and 3.19 enumerate the procedure for the filing of the Record.

Justice Rothwell ultimately concluded that the attempt to enter the other bylaws was not in accordance with Rules 3.18 or 3.22. As such, due to a lack of relevance and the fact the Record is to contain documents considered by the decision maker, Justice Rothwell declined the Respondent’s Application to include the other counties’ bylaws.