OLEYNIK v UNIVERSITY OF CALGARY, 2023 ABKB 265
SLATTER, STREKAF AND DE WIT JJA
3.18: Notice to obtain record of proceedings
3.22: Evidence on judicial review
9.4: Signing judgments and orders
14.71: Interlocutory decisions
The Appellant appealed an Order that struck out an Affidavit and related Brief that he had filed in support of a Judicial Review Application challenging a decision of the Office of the Information and Privacy Commissioner.
Upon the Appellant’s filing of the Judicial Review Application, the Privacy Commissioner filed a Certified Records of Proceedings in accordance with Rule 3.18. Thereafter, the University of Calgary filed a Cross-Application seeking to strike out the Appellant’s Affidavit and Brief filed alongside the Judicial Review Application, on the basis of non-compliance with Rule 3.22. Rule 3.22 limits the evidence that can be relied upon in Judicial Review proceedings. The Court reiterated the Chambers Judge’s observation, which is confirmed by Rule 3.22, that Judicial Review is a review of the administrative tribunal’s decision based on the record before the tribunal, not a form of fresh assessment.
On Appeal, the Appellant argued that his Affidavit was permitted under Rule 3.22(b.1), which allows for Affidavit evidence to be filed in respect of Judicial Review Applications of a limited nature. The Court disagreed, and held that the Judicial Review Application could not be characterized as falling under the Rule 3.22(b.1) exception because, at its base, it simply sought to set aside the decision of the Privacy Commissioner.
As a final note, the Court commented on its general disapproval of Appeals of interlocutory rulings. The Court stated that the preferred approach is to proceed with the merits hearing, and then prosecute one Appeal from the ultimate outcome (which, per Rule 14.71, could capture relevant interlocutory rulings).
The Court therefore dismissed the Appeal, with Costs in favour of the University of Calgary, and invoked Rule 9.4(2)(c) to waive the requirement of the Appellant’s approval of the form of Order.View CanLII Details