Tuesday, May 6, 2014

Certiorari is only available if the error appears on the face of the record. What, then, is the record?

Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363:

[43]       I view the extent of the material ordered by the Divisional Court and the list proposed by the respondent to be overly broad and unnecessarily detailed. It is well settled that the starting point for defining what a record of proceeding is to contain when no statutory definition is provided is the decision of Denning L.J. in R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw (1951), [1952] 1 K.B. 338 (Eng. C.A.), at pp. 351-52. There Denning L.J. stated that:

…throughout all the cases there is one governing rule: Certiorari is only available to quash a decision for error of law if the error appears on the face of the record. What, then, is the record? It has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings … I think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision.

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