Rule 3.22 starts by greatly limiting what evidence can be given to the court to support a judicial review application. It does also mention “any other evidence permitted by the court”. Almost all decisions have construed narrowly that power to hear more evidence.
Early this summer, a King’s Bench decision tried to expand that power a great deal: Syncrude v. Min. of Enr. 2023 ABKB 317, JCC 2001 08134 (May 26) (¶’s 46-62). The decision is doubtful for many reasons. It cites little or no real Alberta appellate authority.
A new “exception” to a rule of law, which exception has wide or vague or common criteria, is not really an exception. It is a reversal of the general rule. That is doubly so here: some of the proposed “exceptions” in this Syncrude decision are wide, vague, and often encountered. Thus the totality of its suggested “exceptions” would be ubiquitous. Some of its suggested exceptions to allow new evidence are as follows:
a. “background and context”
b. showing complete absence of evidence
c. contextual information about the termination of consultation in an aboriginal matter
d. useful contextual information
e. incomplete Record of Proceedings
f. where the final decision maker “did not hear further from the parties themselves and so essentially created her own Record of Proceedings”
g. information well-known to the parties in content and substance
h. information not new to the parties or surprising them, or heard at some earlier level of prior proceedings
i. information which the decision-maker now in question did not consider
One should sometimes listen to “floodgates” arguments. I have seen a considerable number of damaging floods from opened floodgates, in the last 35 years.
The May Syncrude decision properly quotes statements that judicial review is not a re-decision of the merits; it is an attempt to enforce much narrower rules of administrative law. That is basic and unquestionable. Yet many of items a. to i. above do seem to look at other evidence which the merits supposedly require, not evidence which this decision maker heard or read. Especially concerning is “context” as an exception. In today’s legal usage, “context” often gets the widest scope and effect. For example, in interpreting anything written, context is often used as a way to try to contradict what the written document’s actual words say. And countless recent decisions stress how important context is for substantive policy decisions.
But an exception for context and background had already been expressly rejected by the Court of Appeal a month earlier. See the Northern Air Charters case, infra (¶’s 11-13).
Also troubling is a 10th suggestion in the Syncrude decision. It would admit new evidence where the impugned decision maker had not conducted a formal hearing. For a century, courts have stressed that there is a right to make written submissions or provide evidence to the decision maker, even where there is no formal hearing. But a decision-maker who got no evidence does not legitimate later giving the court brand-new evidence. A decision-maker who refuses to accept submissions or evidence is not the same as one to whom no one offered any such material. Once again, the courts are to apply the rules of administrative law; they are not a new commission of inquiry as to the merits.
For a King’s Bench justice thus to find 10 exceptions and largely overrule a long line of Queen’s Bench and King’s Bench decisions is worrisome. For example, see a very different review of Queen’s Bench case law (with fuller quotations): Univ. of Alta. v. Info. & Privacy Comm’r. 2011 ABQB 699, 525 AR 58.
And for a King’s Bench justice thus to overrule Court of Appeal authority is impossible. For such Court of appeal authority, see Law Socy. v. Ady (Alta CA 1994) 29 Admin LR (2d) 56, 57; Oleynik v. Univ. of Calg. 2012 ABQB 189, [2012] AJ # 315, affd and approved 2013 ABCA 105 (¶’s 28-29, 35-36); Northern Air Charters v. Alta. Health Serv. 2023 ABCA 114, Calg 2201 0220 AC (¶’s 8 ff.) (Mar 31).
Then the May Syncrude decision was overruled by a recent September 25 decision of the Court of Appeal (in different litigation). See Oleynik v. Univ. of Calg. 2023 ABCA 265, Calg 2301 0034 AC (¶’s 5-17). (This September 2023 decision is not to be confused with the 2013 Court of Appeal decision of similar name cited above.) The new September 25 2023 Court of Appeal decision reiterates the general rule against new evidence, and the important rationale for that rule. Given a Newfoundland decision in 2021, it appears that the same self-represented litigant has tried to overturn the general rule barring new evidence, at least four times.
The King’s Bench justice writing the May Syncrude decision discussed above may not have been given all the decided binding authority on point. And he could not know of the later September 2023 decision.
– Hon. J.E. Côté
