3.15: Originating application for judicial review
3.22: Evidence on judicial review

Case Summary

The Respondent sought to file an Affidavit with Exhibits containing additional new documents before for the Court, in the context of a Judicial Review. The Respondent relied on two Federal Court decisions decided under Rule 312 of the Federal Court Rules SOR/98-106. It was noted that the new Rules do not have a similar provision. The cases relied on by the Respondent were distinguished and Rule 3.22 was applied. Lee J. noted that “Alberta jurisprudence has clearly set out a more restrictive approach” than the Federal Court.

Lee J. referred to the general rule cited in para 40 of Alberta Liquor Store Assn v Alberta (Gaming and Liquor Commission), 2006 ABQB 904 (“Alberta Liquor Store Assn”): judicial review is conducted based on the return filed by the tribunal. Both Alberta Liquor Store Assn and Dodd v Alberta (Registrar of Motor Vehicle Services), 2010 ABQB 184, were identified as authorities that outline the limited exceptions to the general rule, where supplementary evidence may be allowed. The exceptions were: a) to show bias, or a reasonable apprehension of bias, if the facts in support of the allegation do not appear on the record; b) to demonstrate a breach of the rules of natural justice not apparent from the record; c) to address issues like standing; and d) where the tribunal makes no, or an inadequate, record of its proceedings, affidavits are permissible to show what evidence was actually placed before the tribunal.

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