An Administrative Lawyer’s Dream Come True: Bernard v Canada (Revenue Agency)

In Bernard v Canada (Revenue Agency), 2015 FCA 263 [Bernard], the main issue was rather simple: Justice Stratas of the Federal Court of Appeal addressed questions relating to the appropriate content of the record for judicial review.

Background Information

The respondent in this case was looking to strike out certain paragraphs of the applicant’s affidavit and some exhibits that were filed to support her application for judicial review. The respondent claimed that in an application for judicial review, the reviewing court should only consider the evidence that was before the administrative body, and since the administrative decision-maker did not see the paragraphs of the affidavit and the exhibits in the applicant’s file, it should be struck. The applicant, on the other hand, said that additions that were submitted in her affidavit were relevant to her case and must be included accordingly.

At the Federal Court of Appeal

Why would the court consider restricting information that can be put on the record? Justice Stratas eloquently stated that the general rule is not for increasing efficiency, but rather that it relates to something more essential (Bernard, para 16). The fundamental reason for this is a reoccurring theme of administrative law: to maintain a just separation of authorities presiding within the courts and those of administrative decision-makers. This is exemplified quite clearly in Justice Stratas’ explanation of what an application is for judicial review:

Applications for judicial review are proceedings where a reviewing court is invited to overturn decisions Parliament has entrusted to an administrative decision-maker. In this context, the administrative decision-maker and the reviewing court have differing roles that must not be confused (para 17).

Introducing new information to the court reviewing the administrative decision-maker’s ruling means that the court would essentially be the court re-trying a question that Parliament had originally given authority to the administrative-decision maker to do so. Justice Stratas does confirm that the “general rule is that evidence that could have been placed before the administrative decision-maker…is not admissible before the reviewing court” (para 13). However, there are certain exceptions where the rationale behind the general rule is not blurred.

There is a list of (non-exhaustive) exceptions to this general rule. The three recognized exceptions are explained below.

  1. “Sometimes on judicial review parties will file an affidavit that contains summaries and background aimed at assisting the reviewing court in understanding the record before it. For example, where there is a large record consisting of many thousands of documents, it is permissible for a party to file an affidavit identifying, summarizing and highlighting, without argumentation, the documents that are key to the reviewing court’s understanding of the record” (para 20).
  1. “Sometimes a party will file an affidavit disclosing the complete absence of evidence on a certain subject-matter” (para 24).
  1. “The third recognized exception concerns evidence relevant to an issue of natural justice, procedural fairness, improper purpose or fraud that could not have been placed before the administrative decision-maker and that does not interfere with the role of the administrative decision-maker as merits-decider” (para 25).

Justice Stratas, after reviewing the three exceptions to the general rule and giving examples of how the list is not closed and variations of the exceptions have been applied, held that the exceptions did not apply to the case at hand. He noted that the applicant is trying to introduce evidence that was “actually or reasonably available to her with some diligence at the time of the [administrative body’s] decision” (para 35). The impugned paragraphs and exhibits in the affidavit would have been good consideration for the administrative decision-maker to take into account, and so this type of evidence cannot be placed in front of the reviewing court.

The Guidance that Comes with Broader Administrative Law Themes

Bernard demonstrates the beauty of good administrative law: You can understand the holdings of a case without actually discussing the specific facts relating to the applicant or the respondent. The major theme described by Justice Stratas helped guide the understanding of the application of the rules within administrative law. He noted the following in regards to the general rule for restricting information that can be put on the record:

This rationale—the need to recognize the differing roles of administrative decision-makers and reviewing courts—is rooted in larger values that continually manifest themselves in the administrative law cases. These values—the rule of law, good administration, democracy and the separation of powers—animate all of administrative law (para 18).

Justice Stratas does a good job in writing such a clear holding for the court. Cases like Bernard help push administrative law forward and create crisp rules that can be used by either counsel in determining what is best for their clients. It seems as though the legal system—when it comes to administrative law at least—is finally starting to form an opinion, based on these broader themes, and consequently is allowing for more certainty to be achieved.

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