October 20 , 2023

Expanding Judicial Review Evidence

June 22, 2023

Competition v. Benefits

June 19, 2023

Clogged Courts

June 12, 2023

Preparing Applications in Uncertain Conditions

May 8, 2023

Competence is a Delicate Flower

March 30 , 2023

Urgent! Very Hard to Meet a Limitation Period

March 13 , 2023

Parties to Planning Appeals

March 7 , 2023

Costs in Family Law Litigation

January 30 , 2023

Dodging Settlement Privilege

January 4 , 2023

Lurking Dangers and Errors

January 3 , 2023

Your Real Goals

December 5 , 2022

Contracts for Higher Costs

November 24 , 2022

Scope of Offers to Settle

October 13 , 2022

Checklist for Cross-Examination

September 16 , 2022

Reviewing Latest Changes

August 22 , 2022

First Steps in Problem Solving

July 28 , 2022

Checklist of Powerful Procedural Principles

March 22 , 2022

Repeating a Cross-Examination Question

January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021


December 10, 2020

Traps and Confusion in Service Times

November 24, 2020

Don't Cut Corners

October 2 , 2020

Consent Orders

August 4 , 2020

Electronic Hearings

July 21, 2020

Ceasing to Act

June 29, 2020

Writing Skills

June 29, 2020

Keeping Up With the Law

June 22, 2020

Assets as a Test for Security for Costs

June 19, 2020

What is This Case About?

June 11, 2020

Cross-Examining Child Witnesses

May 20 , 2020

Formal Offers

May 13 , 2020

Vexatious or Self-Represented Litigants

January 7, 2020

G.S.T. and Costs

December 20 , 2019

Electronically Navigating the

October 7 , 2019

Questioning is a Bad Word

July 29 , 2019

Dismissal for Delay

May 7 , 2019

Rule 4.31 Fallacies

March 18 , 2019

More Dangers in Oral Fee Agreements

February 11 , 2019

Weir-Jones Decisions

January 9 , 2019

Discouraging Settlements

November 30, 2018

European Court Helps You Twice?

November 23 , 2018

Courts Overruling Tribunals

November 16 , 2018

New Evidence on Appeal

October 30 , 2018

Schedule C's Role

July 17 , 2018

Loopholes in Enforcing Settlements

May 7 , 2018

Enforcement of Procedure Rules

April 16, 2018

Limping Lawsuits are Often

April 3 , 2018

Court of Appeal Tips for
Summary Decisions

March 19, 2018

Serious Dangers in Chambers

February 13 , 2018

Court Backlog

December 18 , 2017

Lowering the Status of Courts

September 15 , 2017

Access to Court Decisions

July 4 , 2017

Strictissimi Juris

June 14 , 2017

Why Don't Your Clients Settle?

June 5 , 2017

Gap in Rules About Parties

June 5, 2017

Personal Costs Against

April 26, 2017

Clogged Courts

April 11, 2017

Dismissal for Want of

January 6, 2017

Incomplete Disclosure

December 15, 2016


November 23, 2016

Is Contract Interpretation Law?


Côté’s Commentaries

© J.E. Côté 2016-2023


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

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

The Hon. Jean Côté retired from the Court of Appeal of Alberta and would be willing to act as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at:

email: or phone 780-424-5345.