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Caution! Put all Necessary Evidence before an Administrative Decision Maker

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.

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