Tuesday, September 8, 2015

What Constitutes "the Record of the Proceedings" on Judicial Review and When Litigants May Need to Supplement it ?

   The Supreme Court of Canada's judgment in  Dunsmuir  v.  New Brunswick [2008] 1 S.C.R. has had profound and lasting impact on judicial review litigation.  One of the most significant impacts of this decision has been in the area of what properly constitutes "the record of the proceedings" as that term is used in s.10 the Judicial Review Procedures Act, R.S.O. 1990, c J.1  Once upon a time "the record of the proceedings" was limited to the tribunal's reasons for judgment, interlocutory decisions and possibly transcripts of the evidence - if they existed.  In years gone by the content of the "record of proceedings" was left largely to the tribunal to determine.  Over the years, we have experienced a steady expansion in what constitutes the "record of proceedings" in the context of judicial review proceedings.  Today, a party to the application,  and especially the moving party,  is at liberty to expand on the record filed by the tribunal in order to show breaches of natural justice, and constitutional error which cannot be proved by mere reference to the record. (see for example Keepwrite Workers' Independent Union  v. Keepwrite Products Ltd. (1980) 114 D.L.R. (3d) 162 (Ont.C.A.), Rafieyan   v.  Minister of Citizenship and Immigration, 2007 FC 727.)

   In this piece I wish to delineate for the reader how reliance on the traditional "record of the proceedings" can be fatal to the proper prosecution of a judicial review application asserting errors of jurisdiction, breaches of natural justice and constitutional error.

The Keepwrite Affidavit:

   If there was any doubt that affidavit evidence is properly admissible on a judicial review application in order to show errors of law or jurisdiction which cannot be proved by the traditional "record of the proceedings" such doubt was resoundingly clarified by the Court of Appeal for Ontario in its 1980 judgment in Re Keewprite Workers' Independent Union   v.   Keeprite Producs Ltd. 19 O.R. (2d) 513 (Ont.C.A.)  In that case the Divisional Court allowed the applicant trade union to file affidavit evidence before it in support of their contention that an arbitrator exceeded jurisdicition by making a ruling in the absence of evidence and overturned the arbitrator's dismissal of the grievance. The employer obtained leave to appeal to the Court of Appeal and advanced two grounds of appeal, namely,

1.   the Divisional Court erred in receiving the affidavits and the transcripts of the cross-examinaiton on them; and

2.   if this material was properly admitted, it showed that there was some evidence to support the arbitrator's finding that Mr. Jordan was "fighting".

   The unanimous Court of Appeal ruled that the Divisional Court did not err in receiving the subject evidence.  However, the court allowed the appeal finding that this evidence showed that there was some evidence to support the arbitrator's finding.

   In Siera Club   v.   Ontario , 2011 ONSC 4086 (Div. Ct.) the Divisional Court affirmed Keeprite (supra) and in Alghaithy   v.  The University of Ottawa 2011 ONSC 5879 (Div. Ct.) they expanded the scope to include constitutional error.  Accordingly, it is now firmly established that affidavit evidence is indeed admissible on a judicial review application in order to supplement the "record of the proceedings" in the following circumstances:  to show jurisdictional error, breaches of fairness and natural justice and constitutional error where the tribunal record falls short of showing such error.

Complaint, Investigation
and Referral to a formal
Hearing Schemes:

   Many tribunals are structured in a manner which calls for a complaint which is to be investigated by body A and depending on the outcome of the investigation body A then orders a formal hearing into the subject matter of the complaint. This model is typical in the professional regulation area. The question of whether the initial complaint, investigation report or transcripts or other evidence relied upon by body A ought to be part of the "record of proceedings" on the judicial review application is not an insignificant one.  While it is trite law that an investigation is not a hearing it is equally well established in our jurisprudence that where an investigation is triggered by a complaint and may lead to a hearing that both the manner and form of the complaint and investigation may give rise to questions of jurisdiction and potentially abuse of process in the actual hearing of the matter. (see for example Katzman  v.  Ontario College of Pharmacists 2001 Canli 16887 (Ont.C.A.) - where allegations discovered during an investigation exceeding two complaints properly before a complaints committee were referred by the said committee to hearing and quashed as an excess in jurisdiction.)

   When I am consulted on such questions my typical answer is "it depends".
Whether these items are necessarily part of "the record of proceedings" is determined by the nature of legal error which is asserted both before the tribunal of first instance and on judicial review.  If in the proceedings below the applicant on judicial review specifically asserted a lack of jurisdiction in the tribunal on account of the non-satisfaction of a statutory requirement granting them jurisdiction then clearly the complaint, investigation transcripts and report are highly relevant to the reviewing court's proper adjudication of the jurisdictional question.  In addition, if in the proceedings below the applicant on judicial review specifically asserted an abuse of process with respect to the intake, investigation and referral to a hearing then these items of evidence ought properly to be part of the "record of proceedings" in order for a reviewing court to exercise its constitutional oversight over administrative tribunals.  Indeed, where it can be demonstrated that there is a lack of commonality between the initial complaint and allegations pursued in a notice of hearing it is arguable that the tribunal may be obligated to include this evidence in the "record of proceedings".  Where the tribunal requests and receives a legal opinion on the jurisdiction question raised by the applicant that opinion and submissions on it ought properly to be part of the "record of proceedings" too.  Clearly, if the tribunal fails to include such evidence in the "record of proceedings" it is incumbent on the applicant to prepare an serve their own Application Record including this vital evidence.

Tribunal's own procedures
provide for motions on 
questions of law, disclosure, 
apprehension of bias, etc.:

   Where a tribunal's own procedures provide for the parties before it to bring motions on question of law for adjudication those questions raised by a litigant and the answers to them provided by the tribunal would clearly be evidence coming within the ambit of the "record of the proceedings."  Indeed, where one party raises relevant questions of law, provides argument and supporting case law on the point and the responding party remains silent and the tribunal does not entertain those questions of law it could be argued that the tribunal has refused to exercise its jurisdiction on those points raised, committed an error of law or deprived the party who raised the questions of law of natural justice and fairness.  Understandably, if the motions are in writing and the submissions on them are also in writing those motions materials and written submissions would necessarily have to be part of the "record of proceedings" in order for a reviewing court to properly adjudicate the question of whether the tribunal exceeded its jurisdiction, deprived one of the litigants of natural justice and fairness or otherwise committed an error or law.

Constitutional claims raised
before the tribunal:

   Where one of the litigants before a tribunal asserts a constitutional claim in the proceedings before the tribunal in the form of a motion in writing or written submissions and the parties both make submissions on the point and the tribunal rules on it - it is arguable that all of the written submissions ought properly to be a part of the "record of proceedings". For example, one party may raise the reality that every jurisdiction in the country and elsewhere in similar jurisdictions has the same
pre-condition to that being advanced by the party.  On a constitutional claim this type of evidence would be very helpful to a reviewing court - particularly where the comparable jurisdictions all share similar constitutional principles.  Again, this is an area in which the traditional "record of the proceedings" consisting of tribunal rulings, orders, transcripts and exhibits will generally not capture crucial and relevant evidence on a very significant issue both before the tribunal at first instance and on judicial review.  If the tribunal fails to include it in "the record of the proceedings" it is incumbent on the party bringing the judicial review application to do so - otherwise they run the risk of failing to make their case to the reviewing court.

Impact of Dunsmuir
v. New Brunswick:

   "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable.  Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the the facts and the law."

   How is a litigant to demonstrate to a reviewing court the unreasonableness of a tribunal's decision when that litigant put intelligent submissions before the tribunal supported by binding legal authorities and the tribunal overlooks all of the litigant's written submissions and legal authorities preferring to accept hollus bolus the submissions of the other party ?

   Clearly, reliance on the traditional "record of the proceedings"will not assist the litigant in demonstrating to the reviewing court that the tribunal's decision falls outside of the range of "possible, acceptable outcomes which are defensible in respect of the facts and the law."  For example, where the tribunal fails to follow binding legal authorities from the Supreme Court of Canada which were properly before the tribunal it would be proper and necessary to bring evidence of the legal submission in writing and the case authority to the attention of the reviewing court. There is no other way to do this.  In addition, where a tribunal makes a purely conclusionary finding on a point and a litigant made strong and clear written submissions on the point of contention in the case which were simply overlooked and not considered by the tribunal those written submissions are the only possible avenue to demonstrating to the review court the unreasonableness of the tribunal's decision.  If the tribunal fails to make them part of the "record of the proceedings" it is incumbent on the party asserting the wrong to supplement the record.  This is one of the little gifts which the Supreme Court of Canada appears to have provided litigants.  Litigants are advised to put their best foot forward by expanding the record as much as is necessary in order to make their case rather than run the risk of having the "doors of justice" slammed in their faces.  Litigants are encouraged to heed the warning of the Divisional Court in Alghaithy   v.  The University of Ottawa (supra) where the court stated:

[33]   Finally, I note that this court has recently endorsed the practice of resolving issue about the admissibility of affidavit evidence before a motions judge prior to the hearing before a Divisional Court panel.  In Sierra Club  v,  Ontario, the Court stated, at para 7 to 8:

7.   We are of the view that this motion should have been brought prior to the hearing by the panel, in order to clarify the contents of the record prior to factums being filed.  Proceeding in such a manner would have enabled the parties to define the issues for the hearing based upon properly admissible evidence.  I note that this was the procedure followed in the decision of Hanna   v.  Ontario 2010 ONSC 4058 (Div Ct).  If the motion judge is unsure about the relevance of certain material, those issues may be left to be determined by the panel hearing the judicial review.

8.   To fail to define the appropriate record for the Court before the hearing encourages the proliferation of collateral issues, as occurred in this application.  Filing material by one party inevitably precipitates a response from the opposite party.  The consequence of failing to define the record is a proceeding before this court that becomes unnecessarily complicated, expensive and lengthy.  For the parties and for the court, the ground is continually shifting, and the core issues may be eclipsed by the procedural issues.









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