Affidavit evidence about evidence before tribunal admissible on judicial review? Maybe

SELI Canada Inc. v. Construction and Specialized Workers’ Union, Local 1611, 2011 BCCA 353 deals with whether, on a judicial review, affidavit evidence as to what happened at a tribunal is admissible. 

 

While some Ontario cases have been taken to suggest such evidence may be admissible (for example, in obiter, Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513(C.A.)) the general rule in Ontario is to exclude such evidence.  The British Columbia Court of Appeal disagrees and the issue may well be live in Ontario (Keeprite is Court of Appeal and cases excluding are Divisional Court).  The Court holds:

 

[68]           In 142445 Ontario Limited, c.o.b. as Utilities Kingston v. International Brotherhood of Electrical Workers, Local 636 (2009), 251 O.A.C. 62, 95 Admin L.R. (4th) 273, Ontario’s Divisional Court revisited the question of the admissibility of affidavits to establish what evidence was before a tribunal.  The court found that such affidavits should not generally be admitted.  At paras. 32-33, the court said:

[32]      If extensive affidavits can be filed on applications for judicial review in order to permit parties to challenge findings of fact before such tribunals, there would be a significant incentive for parties to seek judicial review since they could then attempt to reframe the evidence that was before the arbitrator. As a result, the process of judicial review is likely to be more prolonged and more costly.

[33]      Moreover, there may be real difficulties in trying to recreate the evidence before the tribunal, where the parties have conflicting views as to what has been said. Where there is a dispute about the evidence, the reviewing court will be put in the unfortunate position of trying to determine what the evidence was before the tribunal in order that it can then decide whether the decision was unreasonable. Such a process is unfair to the administrative tribunal and undermines its role as a fact finder in a specialized area of expertise.

[69]           In my view, neither of these concerns is persuasive in the case before us.  It is true that extensive affidavits or transcripts will assist a party who sets out to abuse the process of the court by trying to turn a judicial review application into a hearing de novo.  A court need not tolerate such a practice, and can refuse to admit affidavit evidence if it is not relevant to a genuine ground of judicial review.  The fear of abuse should not be a basis for refusing to admit affidavit evidence where it is filed in support of a recognized basis for judicial review.

[70]           It is true that there can be serious difficulties in trying to recreate the evidence that was before the tribunal by way of affidavit.  This difficulty is not a real concern in the case before us, because almost all of the hearing was recorded, and the recordings have been made available to all parties.  While there are some deficiencies in the recordings, including the fact that one full day of the hearing was not recorded, it is not suggested, at this juncture, that these deficiencies pose insurmountable difficulties in this case.

[71]           I do not completely share the Ontario Divisional Court’s view that relying on affidavit evidence to determine whether a finding of fact was unreasonable is “unfair” to the tribunal.  At least in a case such as the one before us, where a very formal, complex and lengthy hearing has taken place, a tribunal can protect the parties and itself by ensuring that proceedings are recorded.  If the tribunal does not itself have the resources to do so, it can at least ensure that its rules and procedures do not prevent the parties from taking appropriate steps to obtain an adequate record of the proceedings.