Call Us Now


Caution! Put all Necessary Evidence before an Administrative Decision Maker

Posted On: December, 23 2015

A recent case of the Federal Court of Appeal, Bernard v Canada (Customs and Revenue Agency), 2015 FCA 263, is a cautionary tale on the importance of collecting all necessary evidence and putting it before an administrative decision maker in the first instance, and not before a Court on judicial review.  An applicant challenging administrative or government decision making will normally be prevented from introducing new evidence before the reviewing Court which was not put before the original administrative decision maker. This rule exists not just for efficiency, but to maintain and protect the different roles entrusted to administrative decision-makers and reviewing courts by Parliament.

 In Bernard, the applicant sought judicial review of a Public Service Labour Relations and Employment Board decision not to reconsider its earlier decision, which the applicant alleged was tainted by a reasonable apprehension of bias. On judicial review, the applicant sought to file an affidavit containing paragraphs and exhibits which had not been put before the Board. The respondent moved to strike this new evidence. In response, the applicant submitted that the evidence was relevant to her allegations of bias and a breach of natural justice and should remain in the Court record.

 The Court found that this new evidence could have been placed before the Board in the first  instance and granted the respondent’s motion to strike it from the record. The Court explained that the rule preventing an applicant from introducing new evidence on judicial review is rooted in the fundamentally different roles accorded to administrative decision-makers as “merits deciders” and judicial review courts as “reviewers”. The evidence the applicant sought to file went to the merits of the matter before the Board and was available at the time of the Board’s proceedings.

 The Court noted that the general rule is subject to exceptions and the evidence did not fall within any of these. The Court explained that the general exceptions are:(1) if the evidence is filed to provide background information or a summary of the evidence that was before the administrative decision-maker; (2) if the evidence is filed to disclose a complete absence of evidence and tell the reviewing court what cannot be found in the record; and(3) if this evidence is filed to provide details relevant to an issue of natural justice, procedural fairness, improper purpose or fraud. However, if the evidence of natural justice, procedural fairness, improper purpose or fraud had been available at the time of the administrative proceedings and the party had the capacity to object to the issue at that time, this exception does not apply.

 This decision highlights the importance of seeking legal advice early on to identify and collect all necessary evidence when approaching an administrative decision maker to challenge a decision. Although administrative proceedings may be more informal than Court proceedings, it is important to understand the legal evidentiary principles applicable to maximize the chances of success. If this is not done, important evidence may be missing that is essential to a successful legal outcome of a case. 


No feedback yet

Leave a comment

Your email address will not be revealed on this site.
(For my next comment on this site)
(Allow users to contact me through a message form -- Your email will not be revealed!)

Contact Us



  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by SB

    "I just wanted to let you know how happy I am with the outcome and how very grateful I am for the guidance and support that you and your team provided.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Google user

    "Patrick James is really a great lawyer who is smart and great to deal with. He's been our litigation counsel for over 5 years on several different matters. Patrick recently gave our company great strategic advice that resulted in a big commercial litigation win for our company. He's fierce, tenacious, and really cares about getting the best outcome for his clients."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Google user

    "Patrick is a very good lawyer. He recently successfully defended a lawsuit against my company and has pursued several litigation claims for us in the past. All claims settled input favour. Mr. James is smart and quickly gives you great strategic advice. Patrick has been a real asset to our business."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Sandra L.

    "Andrew Wray and Patrick James recently helped settle a difficult situation for me and my family. The results were exactly what we were hoping for. They are honest, strategic and will provide you with the best advice for you and your financial situation. I highly recommend them to everyone I know."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Mark C.

    "Their team is highly focused and incredibly professional - from our experience it would be difficult not to believe that Pinto Wray James are one of Ontario's leading Firms in Labor and Employment law. The mindful client care and complete understanding of the case eased fears and the stress that comes with any legal dispute. Expect to find high level smartly crafted legal solutions at Pinto Wray James LLP - couldn't recommend more."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Sherry C.

    "Patrick is knowledgeable, strategic, supportive, and patient. His guidance and advice helped me to maintain focus and to keep things in perspective. His experience and keen perception provides him with an edge that allows him to assess the situation, the people involved, and to offer a strategic resolution that works best for all involved. If you ever require legal advice and assistance, I highly recommend him and his team. They will be there 100% for you."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Christian V.

    "Patrick is a fearless advocate for diverse clients. His strategic approach, and his empathy, are what set him apart as a litigator, and champion of the underdog."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by A Google User

    "I have no hesitation recommending Andrew Wray of Pinto Wray James LLP. He provided me with legal advice regarding an employment law issue and his council was practical and honest. Andrew's approach is very much one of blending legal excellence with good common sense. An excellent lawyer!"
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Larry S.

    "Patrick listens to his clients and shows compassion, empathy and professionalism. He cares deeply that the individual that has been wrongfully terminated gets the best judgment available to him. I would not hesitate in recommending him to friends or family."