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

See all articles by Lauren Wihak

Lauren Wihak

Heenan Blaikie LLP

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP; University of British Columbia (UBC), Faculty of Law

Date Written: August 31, 2015

Abstract

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that a judicial review is not a trial de novo, the authors suggest that the courts’ task should not be bedeviled by outdated rules of evidence based on a conception of judicial review that has long since lost its currency.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

Suggested Citation

Wihak, Lauren and Oliphant, Benjamin J. and Oliphant, Benjamin J., Evidentiary Rules in a Post-Dunsmuir World: Modernizing the Scope of Admissible Evidence on Judicial Review (August 31, 2015). (2015) 28 CJALP 323 , Available at SSRN: https://ssrn.com/abstract=2922097

Lauren Wihak

Heenan Blaikie LLP ( email )

P.O. Box 185, Suite 2600
South Tower, Royal Bank Plaza
Toronto, Ontario M5J 2J4
Canada

Benjamin J. Oliphant (Contact Author)

Gall Legge Grant & Munroe LLP ( email )

Vancouver, British Columbia
Canada

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

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