The Respondent applied to strike an Affidavit in support of the Applicant’s Application for Judicial Review on two grounds, in part, because no leave to admit extrinsic evidence was sought under Rule 3.22.

In striking out significant portions of the Affidavit, Justice Friesen explained that an application for Judicial Review is not a “second kick at the can”.

Rule 3.22 sets out what evidence the Court may consider on Judicial Review. Mainly, a certified copy of the record of proceedings of the Decision subject to the Judicial Review is required. Sometimes the Court permits Questioning in support of an Application for Judicial Review and thus a copy of that transcript is also required. Lastly, the Court may consider any other evidence permitted by the Court or other enactments.

While not closed categories, new evidence on a Judicial Review is admitted to (a) address standing; (b) show an apprehension of bias where the facts in support of such allegation are not on the record; (c) demonstrate a breach of the rules of natural justice not apparent on the record; and (d) reveal the evidence actually placed before the decision maker where the decision maker provided an inadequate or no record of proceedings.

Justice Friesen held that it would have been prudent for the Applicant to seek leave prior to filing the Affidavit, but that, in and of itself, did not make the Affidavit inadmissible. None of the cases put forward by the Applicant established that an affidavit ought to be struck merely because no leave was sought under Rule 3.22.

In line with the Court’s discretion under Rule 3.22, the jurisprudence allows for a flexible approach to the admission of affidavit evidence. However, Friesen J explained that there is no automatic entitlement to introduce supplementary evidence at the Judicial Review. Properly construed, some of the evidence in the Affidavit was not new evidence going to the merits of the decision. Therefore, Friesen J admitted portions of that evidence for the purposes of providing background and context relevant to the issues on Judicial Review.

However, large parts of the Affidavit were duplicative, argumentative, and in some cases, improper. In such instances, the Court has discretion under Rule 3.68(4) to strike all or parts of the affidavit.

Justice Friesen exercised this discretion and struck duplicative paragraphs in the Affidavit because they summarized matters already on the record, and the same summary could have been provided in written or oral argument by reference to the existing record. The Affidavit also contained opinion and argument paragraphs that were not relevant to the issues on Judicial Review and were accordingly struck. Lastly, the Affidavit contained hearsay evidence for which neither the affiant’s source of information nor his belief in its truth was disclosed. These paragraphs were also struck from the Affidavit.