[1] This is an appeal of a decision of an applications judge who, at the beginning of the hearing, granted the respondent's motion and ordered that the evidence in support of affidavits for the applications for judicial review be restricted to the certified tribunal record.

[2] The applications judge had before him two applications for judicial review of decisions of the Canadian Human Rights Commission (the Commission) which had dismissed the appellant's two complaints, one against the Canada Custom and Revenue Agency (the CCRA), and another against Finance Canada.

[3] The appellant alleged in the complaints before the Commission that the respondent discriminated against him, by treating him and other spouses of government employees living and working outside Canada in an adverse differential manner on the basis of marital status and/or nationality, by deeming them residents of Canada and requiring them to pay taxes to the Canadian government on income earned abroad.

[4] The appellant sought to include, in his applications, affidavits which contained material which he had submitted to the Commission prior to its decisions but which the investigator had failed to bring to the Commission's attention. He also sought to include material which had been before the investigator when she recommended dismissal of the complaints, but which neither she nor the Commission had previously produced to the appellant prior to the filing of the applications. In respect of this second group of documents, leave had been granted by a prothonotary to file supplementary affidavits to which the said material was attached.

[5] In the first application for judicial review, the appellant filed a fifty page affidavit with twelve volumes of exhibits attached to it, for a total of about four thousand pages. Out of these four thousand pages, only sixty pages were before the Commission. In the second application for judicial review, the appellant filed a 13-page affidavit, which attached documents that were, for the most part, not before the Commission when it made its decision.

[6] The grounds invoked by the appellant in support of his applications for judicial review were multiple. Many related to procedural fairness, including reasonable apprehension of bias by the Commission.

[7] The applications judge's reasons are found in the following paragraphs which are in the recitative part preceding his formal order:

AND UPON the Court noting that the Canadian Human Rights Commission ("CHRC") dismissed the Applicant's application on the very narrow, specific finding that the Applicant was assessed as a factual resident and not as a spouse of a foreign service officer;

AND UPON finding that the additional documents that the Applicant wants to refer to relate to the alleged discrimination against the Applicant, an issue that was not dealt with by the CHRC;

AND UPON this Court deciding that, in light of the very specific finding by the CHRC, the evidence in this application should be restricted to the certified tribunal record;

AND UPON the Applicant expressing a wish to appeal that ruling and asking for an adjournment of these applications for judicial review pending the outcome of his appeal;

AND UPON finding that the same materials would have to be reviewed twice if the Applicant is successful on his appeal;

[emphasis added]

[8] The applications judge then issued his formal order, which was an order to adjourn. It read thus:

THIS COURT THEREFORE NOW ORDERS:

1. The Applicant shall have 10 days to file his appeal.

2. The applications shall be adjourned until the Court of Appeal decides on the appeal of the Applicant and may be brought back to this Court for scheduling a hearing date on five days notice after the decision of the Court of Appeal is issued.

3. If the Applicant fails to file a Notice of Appeal within 10 days of this order, either party may apply on five days notice for a scheduling of the resumption of these notices of appeal.

4. There will be no order as to costs.

[9] Before I proceed with an analysis of the applications judge's reasons for judgment, I must indicate that the form he adopted in disposing of the motion was not in conformity with the Federal Courts Rules, 1998, SOR/98-106. The decision to grant the respondent's motion was not encapsulated in a formal order as prescribed by rules 392 and 393. It was thus not appealable under section 27 of the Federal Courts Act (Saint John Shipbuilding & Dry Dock Co. Ltd. v. Kingsland Maritime Corp., [1979] 1 F.C. 523, (1978) 24 N.R. 377 (C.A.), The Queen v. Farmer Construction Limited, [1983] 83 D.T.C. 5272 (F.C.A.), Can-Am Realty Ltd. v. Canada, (1996) 96 D.T.C. 6593, (1996) 39 C.R.R. (2d) 300).

[10] I recognize, however, that the respondent has not argued that this appeal is irregular. The interest of justice would not be served if I were to apply these rules rigidly.

[11] In the case at bar, the transcripts of the proceedings show that the appellant indicated to the applications judge (AB, Vol. 1, pp 72 and 74):

There is the issue of thoroughness of neutrality of the investigation, and the documents, some of those documents in particular, the documents in the supplementary affidavit are key to proving the lack of thoroughness and neutrality.

...

The documents that I need to show that the Record was defective, and if I can't bring those documents in, how am I going to prove that?

[12] The applications judge then stated (AB, Vol. 1, p. 79):

That may be so, Mr. McFadyen. But, my authority only extends to review the decision of the Tribunal, and in order to do that, I can only look at the material that were before it.

[13] In so ruling, the applications judge erred.

[14] In Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario (2002), 291 N.R. 61, 2002 FCA 218, (2002) 19 C.P.R. (4th) 417 at para. 30, this court (Evans J.A.) stated:

¶ 30 In contrast, applications for judicial review are normally conducted on the basis of the material before the administrative decision-maker. However, affidavit evidence is admitted on issues of procedural fairness and jurisdiction. Supplementary affidavits and cross-examination on them require leave of the Court; Federal Court Rules, 1998, Rule 312.

See also Atlantic Engraving Ltd. v. Lapointe Rosenstein (2002), 299 N.R. 244, 2002 FCA 503, 23 C.P.R. (4th) 5.

[15] The principle that evidence outside the administrative record, that is outside the record before the tribunal, can be considered where the grounds for review are any of the various forms of jurisdictional error is well-established: as Denning L.J. noted in an early English leading case, "[w]hen certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary" (R. v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw, [1952] All E.R. 122 at 133 (C.A.)). This principle has been approved by the Supreme Court of Canada on numerous occasions: see, for example, Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at para. 86; R. v. Miller, [1985] 2 S.C.R. 613 at paras. 15 and 23-26;

Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 at para. 13. A breach of procedural fairness is also one of the forms of jurisdictional error to which this principle applies: see Chen v. Canada (Minister of Citizenship and Immigration) (1999), 240 N.R. 376, (1999) 174 D.L.R. (4th) 165 at para. 10 (F.C.A.); Robert W. Macaulay & James L.H. Sprague, Practice and Procedure Before Administrative Tribunals, looseleaf, vol. 3 (Toronto: Thomson Carswell, 1988) at 28-56.2ff; Donald J.M. Brown & The Hon. John M. Evans, Judicial Review of Administrative Action, looseleaf, vol. 2 (Toronto: Canvasback Publishing, 2004) at 6-62ff.

[16] The appellant, who is now represented by counsel, has informed us that he was able to reduce the evidence sought to be admitted by some 2000 pages. In allowing this appeal, I suggest that consideration be given by the appellant to select and bring forward his best evidence, and nothing more, to the attention of the applications judge, so that this matter may proceed expeditiously.

[17] I would allow this appeal with costs and set aside the decision of the applications judge. I would grant the appellant leave to serve and file relevant supporting affidavits and documentary exhibits on the alleged issues of procedural fairness, including reasonable apprehension of bias by the Commission.

(s) "Alice Desjardins"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-669-04

STYLE OF CAUSE: NEIL MCFADYEN v. ATTORNEY GENERAL OF CANADA

Appeal from an Order of von Finckenstein, J., dated December 1, 2004, File No. T-77-04

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: October 19, 2005

REASONS FOR JUDGMENT OF THE COURT:

DESJARDINS J.A.

CONCURRED IN BY: EVANS J.A.

SHARLOW J.A.

DATED: November 2, 2005

APPEARANCES:

Mr. Alan Riddell For the Appellant

Mr. Richard Casanova For the Respondent

SOLICITORS OF RECORD:

Soloway Wright LLP For the Appellant

Ottawa, Ontario

John H. Sims, Q.C. For the Respondent

Deputy Attorney General of Canada

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McFadyen v. Canada (Attorney General), 2005 FCA 360

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2005 FCA 360