Docket:
A-273-13
Citation: 2014
FCA 88
Present: STRATAS J.A.
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BETWEEN:
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FOREST ETHICS ADVOCACY ASSOCIATION
and DONNA SINCLAIR
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Applicants
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and
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THE NATIONAL ENERGY BOARD and
THE ATTORNEY GENERAL OF CANADA and
ENBRIDGE PIPELINES INC.
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Respondents
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and
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COUNCIL OF CANADIANS – THUNDER BAY CHAPTER
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Intervener
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REASONS FOR ORDER
STRATAS J.A.
[1]
The applicants move for an
order under Rule 312 permitting them to file additional evidence in this
judicial review.
[2]
The additional evidence
sought to be placed before the Court is a report published by the Energy Policy
Institute of Canada, a non-governmental body. The applicants note that one of
the deponents referred to this report during her cross-examination. They submit
that this makes it part of the record in these proceedings.
[3]
Of course, that is not so.
The record in these proceedings consists of the record actually filed by the
parties. The applicants’ record does not contain the report. It is not part of
the record in these proceedings until the applicants satisfy the Court that it
should be added under Rule 312.
[4]
At the outset, in order to
obtain an order under Rule 312 the applicants must satisfy two preliminary
requirements:
(1)
The evidence must be
admissible on the application for judicial review. As is well known, normally
the record before the reviewing court consists of the material that was before
the decision-maker. There are exceptions to this. See Gitxsan Treaty Society
v. Hospital Employees’ Union, [2000] 1 F.C. 135 at pages 144-45 (C.A.); Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22.
(2) The evidence must be
relevant to an issue that is properly before the reviewing court. For example,
certain issues may not be able to be raised for the first time on judicial
review: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654.
[5]
Assuming the applicants
establish these two preliminary requirements, they must convince the Court that
it should exercise its discretion in favour of granting the order under Rule
312. The Court exercises its discretion on the basis of the evidence before it
and proper principles.
[6]
In Holy Alpha and Omega
Church of Toronto v. Canada (Attorney General), 2009 FCA 101 at paragraph
2, this Court set out the principles that guide its discretion under Rule 312.
It set out certain questions relevant to whether the granting of an order under
Rule 312 is in the interests of justice:
(a)
Was the evidence sought to
be adduced available when the party filed its affidavits under Rule 306 or 308,
as the case may be, or could it have been available with the exercise of due
diligence?
(b)
Will the evidence assist the
Court, in the sense that it is relevant to an issue to be determined and
sufficiently probative that it could affect the result?
(c)
Will the evidence cause
substantial or serious prejudice to the other party?
[7]
For the purposes of
argument, I shall assume that the applicants have established the two
preliminary requirements. I turn to the three Holy Alpha questions.
[8]
On question (a), I note that
before filing their record on January 23, 2014 the applicants were aware of the
report they now seek to introduce. It was also a subject for discussion during
cross-examination on December 6, 2013. The report does not appear in the
applicants’ record.
[9]
This judicial review is at
the eve of hearing. The parties have filed their memoranda of fact and law. The
applicants have filed the requisition for hearing. Indeed, having confirmed
their readiness in their requisition for hearing, the applicants brought this
motion on the very next day. In these circumstances, the attempt to introduce
new evidence calls for a factual explanation.
[10]
The applicants have not
given that explanation. The only affidavit they offer in support of their
motion is sworn by a law clerk employed by the applicants’ law firm. That
affidavit consists of information and belief identifying the report and certain
documents, nothing more.
[11]
On question (b), the
applicants have not satisfied me that the addition of this non-governmental
report into the record is important in the sense that it might affect the
result.
[12]
Finally, on question (c),
the respondent Attorney General and the respondent Enbridge Pipelines Inc. have
identified prejudice: they have not had an opportunity to challenge this report
either through rebuttal evidence or cross-examination. The applicants have not
adduced any evidence or explanation that satisfactorily addresses this
prejudice. In the circumstances of this case, the addition of the report into
the record at this late stage would cause procedural unfairness.
[13]
As a general matter, a Court
will not exercise a fact-based discretion in a party’s favour unless it has
relevant evidence before it. Here, the affidavit tendered to the Court falls
short of the mark.
[14]
The applicants are
unsuccessful on this motion. However, I credit them for bringing it. Some try
to smuggle reports and other material properly introduced by way of affidavit
into books of authorities. This practice is improper and has been criticized by
the Supreme Court: Public School Boards’ Association of Alberta v. Alberta (Attorney General), [1999] 3 S.C.R. 845.
[15]
For the foregoing reasons, I
dismiss the motion with costs.
“David Stratas”
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