3.22: Evidence on judicial review

Case Summary

The Appellant appealed a Chambers Judge’s Order (the “Decision”) dismissing its Application for leave to admit Affidavit evidence in support of its Application for Judicial Review.

The Court dismissed the Appellant’s Appeal. The Court noted that Rule 3.22(a) provides that a certified record of the proceedings is one of a few limited pieces of evidence admissible for Judicial Review Applications and that other evidence can be admitted under Rule 3.22(d). In the Decision, the Chambers Judge relied on the test set out in Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission), 2006 ABQB 904 (“Alberta Liquor”). The Court noted that Alberta Liquor stands for the proposition that Judicial Review Applications are generally conducted on the record before the administrative body that made the decision under review, and extrinsic evidence may only be admitted in the following four exceptional circumstances: (1) to show bias or a reasonable apprehension of bias, where the facts in support of the allegation do not appear on the record; (2) to demonstrate breaches of the rules of natural justice which are not apparent from the record; (3) background information for other issues such as standing; and (4) when the administrative decision maker makes no record, or an inadequate record.

The Appellant argued that the Chambers Judge applied the wrong test in the Decision and urged the Court to take a more expansive approach to the admission of extrinsic evidence in Judicial Review Applications than that set out in Alberta Liquor. Specifically, the Appellant argued that the Court should allow extrinsic evidence which provides necessary background and context to a Judicial Review Application. The Court reviewed several decisions provided by the Appellant and determined that each of them fell within the exceptions in Alberta Liquor. The Court therefore declined to apply a more expansive test than that set out in Alberta Liquor and determined that the Chambers Judge applied the correct test in the Decision.

The Appellant also argued that the Chambers Judge erred in concluding that the evidence the Appellant sought to introduce was irrelevant. However, the Court found no palpable and overriding error on this point in the Decision.

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