The Prospects for Candour in Canada: The Importance of the “Record”
In an earlier post, I introduced the duty of candour in judicial review proceedings, which has been recognized by courts across the common law world. This is to be distinguished from those duties of candour that apply in national security proceedings, to regulated professionals and in private law settings.
In this and subsequent posts I will consider the potential for a duty of candour in judicial review proceedings in Canada. I begin by assessing a potential obstacle, namely the fact that judicial review is conducted on the basis of the “record” before the reviewing court.
Historically, judicial review is a proceeding conducted on the papers. A reviewing court does not receive live evidence but rather hears argument about whether the “record” before it reveals that the decision under review was lawful. This jurisdiction is supervisory, designed to permit courts to ensure that administrative decision-makers act in accordance with law.
This historical practice is reflected in Canadian statutory provisions relevant to judicial review. For instance, in Ontario, the Judicial Review Procedure Act, RSO 1990, c J.1, s. 10 provides that the person who has been served with a notice of application for judicial review shall file “the record of the proceedings” with the court; in British Columbia, on receipt of an application for judicial review, “the court may direct that the record of the proceeding, or any part of it, be filed in the court” (Judicial Review Procedure Act, RSBC 1996, c 241, s. 17).
The “record” may also be defined by statute. In BC, the “record” is defined as including the following:
(a) a document by which the proceeding is commenced;
(b) a notice of a hearing in the proceeding;
(c) an intermediate order made by the tribunal;
(d) a document produced in evidence at a hearing before the tribunal, subject to any limitation expressly imposed by any other enactment on the extent to which or the purpose for which a document may be used in evidence in a proceeding;
(e) a transcript, if any, of the oral evidence given at a hearing;
(f) the decision of the tribunal and any reasons given by it;
(g) in relation to a decision whether to give consent referred to in section 22 (2),
(i) a document or other evidence before the Indigenous governing body, subject to any limitation expressly imposed by any other enactment on the extent to which or the purpose for which a document or other evidence may be used in a proceeding, and
(ii) the decision of the Indigenous governing body and any reasons given by it… (Judicial Review Procedure Act, RSBC 1996, c 241, s. 1)
In Ontario, the obligation on an administrative decision-maker to build a “record” is found in the Statutory Powers Procedure Act:
A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include,
(a) any application, complaint, reference or other document, if any, by which the proceeding was commenced;
(b) the notice of any hearing;
(c) any interlocutory orders made by the tribunal;
(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;
(e) the transcript, if any, of the oral evidence given at the hearing; and
(f) the decision of the tribunal and the reasons therefor, where reasons have been given (RSO 1990, c S.22, s. 20).
Issues relating to the definition of the “record” in jurisdictions across Canada are addressed in detail in the essays in Volume 29 of the Canadian Journal of Administrative Law & Practice. For now, I simply want to highlight a common feature, that the definition of the “record” is not exhaustive. These statutory provisions set out bare minima for a decision-maker to comply with, making it possible in principle to expand the “record” to include other documents.
Indeed, as early as 1960 the New Brunswick Court of Appeal commented that in the exercise of its supervisory jurisdiction, it was “free to examine all the material the board has made available to us” (Re Universal Constructors & Engineers Ltd. and Labour Relations Board of New Brunswick (1960) 27 DLR (2d) 423, at p. 428). It has long been recognized that an applicant for judicial review who complains of procedural unfairness may provide relevant information by way of affidavit where the relevant information is not in the record prepared by the decision-maker; and that an affidavit may provide background context (including context about the absence of evidence on key points) without which the reviewing court would be unable to perform its function of ensuring lawfulness (see generally Bernard v. Canada (Revenue Agency), 2015 FCA 263, at paras. 23-25).
In recent decades, there has been pressure to further expand the content of the record.
First, the frontiers of judicial review have advanced. The definitions quoted above are all premised on an adjudicative decision-making model, with a decision made after an adversarial hearing. Judicial review now uncontroversially extends, however, to decisions outside the adjudicative paradigm, such as exercises of ministerial discretion, prison discipline, commissions of inquiry and investigations. The information courts require to ensure that decision-makers in these domains acted lawfully will be somewhat different from the information contained in the definitions above.
Second, the subject-matter of judicial review has changed. Richards JA (as he then was) made this point eloquently in Hartwig v. Commission of Inquiry into matters relating to the death of Neil Stonechild, 2007 SKCA 74. He noted that judicial understandings of the scope of the “record” are rooted in jurisprudence from an earlier era (at para. 16) when the supervisory jurisdiction was limited to “jurisdictional errors”. But an applicant for judicial review today may attack findings of fact and legal conclusions which in bygone days would have been ‘within jurisdiction’ and beyond the authority of the courts to assess. In Hartwig, the problem was that the applicants wished to introduce evidence that was before the tribunal but that the tribunal had not included in its record:
Each applicant argues that various findings made by the Commission are unreasonable or patently unreasonable. There is no suggestion from the Minister or elsewhere that, if they have standing, the applicants are not entitled to make these submissions. But, of course, the only way their positions can be properly advanced is if they are entitled to point to the evidence placed before the Commission and attempt to show how it was misunderstood, overlooked or otherwise wrongly interpreted. As a result, the position taken by the Minister as to the scope of the materials properly before the Court would, as a matter of practical reality, deny the applicants any prospect of successfully advancing the arguments they are otherwise entitled to make (at para. 20).
Richards JA held that it was “necessary to revisit and revise traditional notions about the scope of the material properly before a court on a judicial review application” (at para. 32) and that in this instance the applicants could “bring forward” by affidavit the evidence relevant to their claims of unlawfulness (at para. 34).
Third, the change to the frontiers and subject-matter of judicial review has been accompanied by an expanded requirement of reasonableness imposed by courts on administrative decision-makers as part of the supervisory jurisdiction. In Canada, this requirement finds expression in the Vavilov framework for substantive review, which lends itself to arguments based on material an administrative decision-maker might not necessarily have referenced. Indeed, where the applicant contends that a decision-maker failed to grapple with a submission, or did not demonstrate responsive justification to important individual interests, or departed from its own previous decisions, the relevant material might not appear in the record.
A particular flashpoint, both before and after Vavilov, has been judicial review of decisions taking the form of regulations. In Sobeys West Inc. v. College of Pharmacists of British Columbia, 2016 BCCA 41 (noted here), ‘big box’ pharmacies challenged a regulation which, they argued, unjustifiably favoured the interests of the members of the College over those of the public. At first instance, they succeeded, largely on the basis of extrinsic evidence considered by the reviewing court. But the Court of Appeal reversed, holding that the extrinsic evidence did not form part of the record. It was enough, for Newbury JA, that there was “some evidence – anecdotal though it may have been in whole or in part – to support [the College’s] concerns” (at para. 70). By contrast, in Portnov v. Canada (Attorney General), 2021 FCA 171 (noted here), Stratas JA emphasized the availability of means of expanding the record for decision, at least where an applicant has “pleaded grounds that might have supported a plausible claim for disclosure of information” (at para. 50). See further Wihak and Oliphant, “Evidentiary Rules in a Post-Dunsmuir World: Modernizing the Scope of Admissible Evidence on Judicial Review” (2015) 28 CJLAP 323
Courts can (and have) expanded the definition of the record in response to such pressures.
To begin with, the definition of the “record” is in the hands of the courts, either because the relevant statutes are entirely silent, or because the statutes do not provide exhaustive definitions. Once the “record” is defined, the courts can rely on their inherent powers to compel administrative decision-makers to comply and furnish relevant information, or to permit applicants to introduce the information (as in Hartwig).
In addition, procedural provisions may permit applicants (and respondents) to create an expanded record. For example, the Federal Court Rules, SOR/98-106 permit an applicant to request information held by the decision-maker (s. 317); the decision-maker may object to production (s. 318) but if the information is produced the applicant can bring it before the court in the form of supporting exhibits to an affidavit (ss. 306, 309(2)(d), 312; Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128, at paras. 92-96). Under the same Rules, ss. 306-307, and again via affidavit parties may introduce evidence in their possession into the record (s. 309), which may be expanded still further if the parties conduct cross-examinations on the affidavits (s. 308; Canadian Copyright Licensing Agency (Access Copyright) v. Alberta, 2015 FCA 268, at paras. 19-24).
Nonetheless, Canadian courts have generally been cautious about expanding the scope of the “record”, even where such procedural provisions are available. Swinton J eloquently summarized the key reasons for concern in 142445 Ontario Limited (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636 (2009), 95 Admin LR (4th) 273:
One of the purposes of administrative tribunals is to provide an expeditious and inexpensive method of settling disputes. Often, these proceedings are much less formal than judicial proceedings. In keeping with this objective, a number of tribunals do not transcribe their proceedings – for example, the Ontario Labour Relations Board, the Human Rights Tribunal of Ontario and labour arbitrators under the Labour Relations Act.
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.
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 (at paras. 31-33).
See also Daly, “Updating the Procedural Law of Judicial Review of Administrative Action” (2018) 51 UBC L Rev 705.
Yet these concerns apply with greatest force to administrative tribunals. In judicial review of adjudicative decisions made after an adversarial process the pressure to expand the scope of the record is not as great as in other areas. Even though the adversarial process leading to the typical adjudicative decision is not necessarily a trial-type proceeding, it is nonetheless generally the product of robust engagement by two or more well-equipped antagonists: more often than not, relevant material will find its way into the record. By contrast, where an exercise of discretion, or the making of a regulation or by-law, is concerned there is no adversarial process apt to generate a detailed record for decision. Moreover, the respondent will often have relevant information in its possession to which the applicant is not necessarily privy. Here the pressure on the scope of the record is greater, and the policy concerns set out by Swinton J apply with less force. Of course, there are other concerns as far as other types of decision are concerned: I will address these in subsequent posts.
In short, the prospects for a duty of candour in Canadian administrative law must reckon with the limited scope of the “record” but must also be assessed in light of the possibility that the “record” can be expanded.
This content has been updated on January 23, 2023 at 17:33.