The Court of Appeal has addressed the issue of how to properly put materials before the Court on judicial review.
By way of history, Access Copyright made a Rule 317 request for the material that was before the Copyright Board and in its possession. The Copyright Board informed the parties that it did not have in its possession any relevant material not already in the possession of the applicant. Thus, Access Copyright added the material into the applicant's record. However, the Court of Appeal held that material should have been supplied under affidavit.
The Court of appeal held that materials produced by the administrative decision-maker in response to a Rule 317 request can simply be placed in the applicant's record or the respondent's record. No affidavit is necessary. The same is true for the portions of any transcript of oral evidence before a tribunal.
But if the materials are not transmitted to the parties under Rule 317, then the Court of Appeal held that the materials must be provided by way of affidavit pursuant to Rules 306-310. This way, the parties may be able to exercise their right to cross-examine.
The Court of Appeal ordered the parties to remedy the application record by properly filing the evidence and subsequent materials.