On the Record: Bernard v. Canada (Revenue Agency), 2015 FCA 263

I have written before, somewhat sceptically, about the problem of ‘rebottling old wine’, updating the adjectival law of judicial review to take account of developments in the substantive law. Stratas J.A. had an interesting take on the question of the content of the record for judicial review in Bernard v. Canada (Revenue Agency), 2015 FCA 263. Here, the respondent sought to strike out portions of the applicant’s affidavit and exhibits filed in support of her application for judicial review.

First, Stratas J.A. emphasized that the purpose of restricting the content of the record, which is not merely to ensure “efficiency” but “rests upon something more fundamental” (at para. 16), is to maintain the proper spheres of authority of courts and administrative decision-makers: “Applications for judicial review are proceedings where a reviewing court is invited to overturn decisions Parliament has entrusted to an administrative decision-maker. In this context, the administrative decision-maker and the reviewing court have differing roles that must not be confused” (at para. 17). To permit supplemental information to be introduced by way of affidavit or exhibit would be to invite the reviewing court to re-try a question the legislature tasked an administrative decision-maker with answering. This is a risk worth avoiding.

Second, the adjectival law is not a body of law all on its own divorced from the values that animate administrative law more generally: “This rationale—the need to recognize the differing roles of administrative decision-makers and reviewing courts—is rooted in larger values that continually manifest themselves in the administrative law cases. These values—the rule of law, good administration, democracy and the separation of powers—animate all of administrative law” (at para. 18).

Third, and here there is a response to recent criticism that the exceptions to the rule are unprincipled, unclear and uncertain, the exceptions “are recognized because they are consistent with the rationale behind the general rule and administrative law values more generally” (at para. 19). This is true of the background information exception:

The background information exception respects the differing roles of the administrative decision-maker and the reviewing court, the roles of merits-decider and reviewer, respectively, and in so doing respects the separation of powers. The background information placed in the affidavit is not new information going to the merits. Rather, it is just a summary of the evidence relevant to the merits that was before the merits-decider, the administrative decision-maker. In no way is the reviewing court encouraged to invade the administrative decision-maker’s role as merits-decider, a role given to it by Parliament. Further, the background information exception assists this Court’s task of reviewing the administrative decision (i.e., this Court’s task of applying rule of law standards) by identifying, summarizing and highlighting the evidence most relevant to that task (at para. 23).

The same is true of the no evidence exception (“This can be useful where the party alleges that an administrative decision is unreasonable because it rests upon a key finding of fact unsupported by any evidence at all”, at para. 24) and the natural justice, procedural fairness, improper purpose or fraud exception, which relates to information “that could not have been placed before the administrative decision-maker and that does not interfere with the role of the administrative decision-maker as merits-decider” (at para. 25). Other exceptions are also possible, as long as they are consistent with the general principles. For instance, “reviewing courts have received affidavit evidence that facilitates their reviewing task and does not invade the administrative decision-maker’s role as fact-finder and merits-decider” (at para. 28).

Here, the information the applicant sought to introduce ran afoul of the general rule without falling into any of the recognized exceptions:

The evidence the applicant seeks to introduce in the impugned paragraphs and exhibits was actually or reasonably available to her with some diligence at the time of the Board’s decision. It was relevant to the Board’s consideration of the merits before it, namely whether the 2008 decision was vitiated by bias or a failure of natural justice. The evidence in the impugned paragraphs and exhibits should have been placed before the Board as the merits-decider, not before this Court as reviewer (at para. 35).

Readers interested in judicial review procedure would do well to consult another recent motion decision by Stratas J.A. In Canadian Copyright Licensing Agency (Access Copyright) v. Alberta, 2015 FCA 268, he answers the following question: “on a judicial review, how does one bring the materials that were before the administrative decision-maker before the reviewing court?” (at para. 7). There follows a review of the rules applicable to the federal courts “against a common law backdrop” (at para. 11).

This content has been updated on January 15, 2016 at 15:26.