"Documents simply stuffed into an application record are not admissible"

In a recent decision, the Federal Court of Appeal had an opportunity to explain its rules as to how, on an application for judicial review, materials that were before the underlying administrative decision-maker are to be entered into the evidentiary record of the reviewing court. More specifically, the Court made it very clear that, on judicial review, with very few exceptions, an affidavit is required in order to introduce any exhibits that had been considered by the tribunal below. This requirement is set out in Rules 306 and 307 of the Federal Courts Rules (the “Rules”).

The case at hand

This issue came before the Federal Court of Appeal in the context of a judicial review application initiated by Access Copyright, a copyright collective, in relation to a decision of the Copyright Board with respect to provincial and territorial government copying.

In filing its Applicant’s Record with the Court, Access Copyright included a large number of documentary exhibits that, although they had unquestionably been before the Board, had never been served on the Respondents under cover of an affidavit in accordance with Rule 306 of the Rules. The Respondents in the proceeding (whom we represented) accordingly filed a motion with the Court asking that all of these materials be struck from Access Copyright’s Record. The Respondents’ position was that Rule 306 clearly requires that these materials can only be introduced before the Court if they had previously been appended to an affidavit.

Although this may appear to be a rather technical procedural argument, it reflects the legal principle that all evidence put before the Court is subject to being tested, through cross-examination, by the adverse party. This is why an affidavit is required by Rule 306, in respect of an applicant, and Rule 307, in the case of a respondent, in order to introduce these documentary exhibits.

The Court’s decision

In his decision dated November 26, 2015 in response to the Respondents’ motion, Justice Stratas of the Federal Court of Appeal held that Access Copyright had, indeed, committed a procedural error by having failed to introduce its evidentiary materials by means of an affidavit.

In his opinion, such a failure “offends a basic principle concerning the admissibility of evidence.” Having said this, he also noted that the rules governing the introduction of evidence to the Court appear not to be very well understood by the legal community. As such, he decided to take the opportunity presented by the Respondents’ motion to provide some “general guidance” as to the operation of the rules governing the production of evidence before the Court.

Justice Stratas then went on to summarize and explain the interrelationship between several of the Rules with respect to the filing of evidence with the Court.

The most important principle arising from these Rules is that “facts must be proven by admissible evidence.” The corollary to this is that “documents simply stuffed into an application record are not admissible.”

The outcome of the motion

Notwithstanding the fact that Access Copyright made this procedural error, Justice Stratas was also of the view that it was a minor irregularity that could be easily remedied. As such, he ordered that the disputed materials be removed from the Applicant’s Record, but that Access Copyright would be permitted to file a new affidavit pursuant to Rule 306 that would include the exhibits that had been improperly included in its Record. This has now been done by Access Copyright, and the Respondents have responded to its evidence with an affidavit of their own. Consequently, Access Copyright’s judicial review application is back on track and scheduled to be heard by the Federal Court of Appeal in 2016.

As to the lesson to be learned from this dispute between the parties, it is this: in attempting to bring evidence from an underlying decision-maker before the Federal Court of Appeal, legal counsel would be well advised to file an affidavit under either Rule 306 or 307. This can be summarized in the following pithy suggestion ‒ the filing of evidence before the Federal Court of Appeal generally requires more than a few staples and a paperclip.