Evidence

Application to Overturn a Decision

Certified Tribunal Record

In an application for judicial review seeking to overturn a decision (certiorari), the decision maker must disclose all records that were before the decision maker in making the decision. This is called the certified record of decision or certified tribunal record.

In general, no new evidence can be provided to the court in an application for judicial review that is not in the certified tribunal record.

Federal Courts Rules, SOR/98-106, Rules 317 & 318; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 19

Exceptions

There are three exceptions to the general rule against the court receiving new evidence:

1. General background information where it might assist the court in understanding the issues relevant to the judicial review,
2. To bring procedural defects that cannot be found in the evidentiary record of the administrative decision-maker to the attention of the court, so that it can review for procedural unfairness,
3. To highlight a complete absence of evidence before a decision maker when it made a finding.

The list of exceptions is not necessarily closed; other exceptions may be recognized if they advance the role of the judicial review court without offending the role of the administrative decision-maker.

Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20

Application to Compel a Decision

Affidavits

In an application for judicial review seeking to compel a decision (mandamus), the applicant or another person with knowledge of the situation will need to submit an affidavit (written sworn testimony) setting out the facts. The government lawyer will have the opportunity to cross examine this person outside of court, but under oath, prior to the hearing.

The government may also submit one or more affidavits, and you can cross examine them on their testimony in a similar way.

Federal Courts Rules, SOR/98-106, Rules 306, 307 & 308