Evidentiary Rules in a Post-Dunsmuir World: Modernizing the Scope of Admissible Evidence on Judicial Review
(2015) 28 CJALP 323
33 Pages Posted: 10 Aug 2017
Date Written: August 31, 2015
As the scope of judicial review in Canada has undergone a significant shift in the past decade, the rules of evidence admissible on judicial review have fallen behind. To a large extent, courts continue to limit the admissibility of evidence to situations involving alleged ‘‘jurisdictional errors” or a breach of the duty of fairness. This paper seeks to demonstrate how applying these old rules of evidence can, in certain circumstances, frustrate a courts’ modern role on judicial review, particularly following cases like Dunsmuir and Dore. The authors propose a general rule permitting parties to adduce evidence necessary to the arguments they are permitted to make, subject always to the courts’ discretion to exclude such evidence where there was a meaningful opportunity or expectation that the evidence be put before the decision maker at first instance. While courts should remain alert to the fact that a judicial review is not a trial de novo, the authors suggest that the courts’ task should not be bedeviled by outdated rules of evidence based on a conception of judicial review that has long since lost its currency.
Keywords: Administrative Law, Judicial Review
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