3.15: Originating application for judicial review
3.21: Limit on questioning
3.22: Evidence on judicial review

Case Summary

The Applicant sought to quash the Respondent, the City of Lethbridge’s, decision refusing to post pro-life advertising on the side of Lethbridge buses. The Applicant alleged that the Respondent’s decision infringed section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”), and was not saved by section 1 of the Charter.

The Applicant filed its Originating Application for Judicial Review on January 14, 2019 and subsequently filed an Affidavit in support of the Application. The Respondent objected to this Affidavit on the grounds that the Applicant had not sought leave from the Court to file it pursuant to Rule 3.22 and that it raised issues which were time barred by the 6-month limitation period set out in Rule 3.15(2).

The Court noted that pursuant to Rule 3.22, on Application for Judicial Review, the Court may consider: (a) transcripts of the proceedings subject to the Judicial Review; (b) if Questioning was permitted under Rule 3.21, transcripts of that Questioning; (c) anything permitted by any other Rule or enactment; and (d) anything else permitted by the Court. The Court stated that as a general rule, Affidavits are not permitted on Judicial Review, especially where they relate to the merits of the tribunal’s decision. The rationale of this general rule is to prevent Applicants from turning a Judicial Review into a trial de novo on the merits of the issue.

His Lordship reviewed the exceptions to this general rule arising from the case of Alberta College of Pharmacists v Sobeys West Inc., 2017 ABCA 306, where the Court stated that Affidavit evidence may be permitted where: (i) the evidence is tendered to establish a breach of natural justice which is not apparent on the face of the record; (ii) it provides some background information, mainly to establish standing, and (iii) there is no transcript of the tribunal’s decision.

The Court found that the impugned Affidavit provided a detailed history setting out the grounds for Judicial Review, and also set out information relevant to a breach of natural justice, given the Applicant’s allegation of bias in the tribunal’s decision. Accordingly, Justice Gates permitted the Applicant to file the Affidavit although the Affidavit would not be considered for any purpose falling outside the exceptions outlined above.

Justice Gates found that the tribunal’s decision exhibited a reasonable apprehension of bias, in that its reasons stated there would likely be issues with the pro-life content of the advertisements but did not identify those reasons. Additionally, the tribunal’s written reasons did not undertake any analysis of the Applicant’s Charter rights, and whether they had been minimally impaired. Lastly, the decision stated that there would be a reasonable apprehension of harm from the nature of the advertisements, but based this assertion only on emails from a few community members who had expressed concern over similar advertisements in the past. Accordingly, the decision was quashed and remitted for consideration.

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