The Applicants applied for Judicial Review of a Ministerial Order as it related to the 2017 Alberta Linear Property Assessment Minister’s Guidelines (the “2017 Linear Guidelines”) pursuant to Rule 3.15. The Application sought to sever certain provisions in the 2017 Linear Guidelines that limited the Applicants’ ability to claim depreciation for taxation purposes. The Applicants filed a Certified Record of Proceedings pursuant to Rule 3.19 and filed five Affidavits in support of their Application. The Respondents objected to any reference to the Affidavits and sought to strike them.

Justice Price noted that Rule 3.22 sets out what evidence the Court may consider on an Application for Judicial Review. This includes the Certified Record of Proceedings and “any other evidence permitted by the Court”. The Court noted the general rule is that evidence which was not before the decision maker and related to the merits of the Decision are not permitted on Judicial Review. However, there are exceptions such as: to show a breach of natural justice not apparent from the record, to add background information, or to reveal that the decision maker had an inadequate record of its proceedings.

On the facts, the Court found that four of the five Affidavits fell within the limited exceptions of general inadmissibility. The Affidavit that was not admitted into evidence addressed the merits of tables forming part of the 2017 Linear Guidelines notwithstanding that the affiant was not involved in the preparation of those tables and did not have direct personal knowledge about them, which the Court held was inappropriate.