Judicial Review – Evidence Admissibility
This is another procedural decision within the consolidated Federal Court of Appeal (“FCA”) proceeding considering sixteen judicial review applications from the Trans Mountain Expansion Project Approvals (discussed above).
In this decision, the FCA considered objections to the admissibility of various parts of:
(a) the two affidavits served by the respondent Trans Mountain Pipeline ULC (“TMP”); and
(b) the one affidavit served by the other respondent, the Attorney General of Canada (“Canada”).
The FCA explained that its consideration of such objections was governed by a comprehensive procedural order dated March 9, 2017. Under that order, the parties were permitted to object to the admissibility of all or part of any affidavits and, following the receipt of submissions, the FCA would rule on any such objections.
The procedural order also contained some general guidance on admissibility for the parties to consider, including:
(a) The general rule is that the only evidence admissible in applications for judicial reviews of administrative decisions is the record before the administrative decision-makers;
(b) The general rule is that new issues should not be raised in applications from administrative decisions; and
(c) However, one exception to (a) and (b) is where the administrative decision-maker did not have the power to receive full evidence on the issue or did not have full jurisdiction to deal with the issue: for this reason, issues relating to the duty to consult Indigenous peoples may be permitted.
Inclusion of Background Information and Summary of Record Below
The FCA noted that all parties accepted that affidavits filed in a judicial review application can provide background explanations and summaries regarding the administrative proceedings below and the massive record of those proceedings. However, the FCA cautioned that these are admissible for only one purpose: to assist the reviewing court and orient it.
The FCA found that all of the background statements objected to, were admissible for the limited purpose of orienting the court, but not as evidence of what actually happened below. The FCA stated that evidence of what actually happened below was to be found exclusively in the record of the administrative proceedings.
The FCA also considered applicants’ submissions that some of the background statements and summaries throughout the affidavits were too argumentative or contained statements of opinion. The FCA found that some of the background statements and summaries in the affidavits should have been more clinically expressed. However, the FCA assured the parties that it was “certain that the panel hearing these consolidated applications will not be misled or swayed by argumentative statements or statements of opinion.”
To provide further assurance, the FCA ordered that the objections filed by the applicants to all three of the respondents’ affidavits form part of the electronic record. The FCA explained that the panel would be able to read these and will exercise caution in taking the background statements and summaries as anything other than general statements adduced for the purpose of orienting the reviewing court and for no other purposes.
Evidence re TMC Engagement with Aboriginal Groups
Some of the applicants objected to evidence regarding TMC’s engagement and consultation with Aboriginal groups, on the grounds that, as a matter of law, TMC’s engagement with them is irrelevant, as the duty to consult is upon the Crown and is a non-delegable duty.
The FCA found the matter to be not so clear-cut and obvious that the FCA should determine the issue on an interlocutory basis. The FCA found the matter should be left for the panel hearing the matter on the basis of full argument.
Evidence re Consultation after Approvals
Some applicants objected to evidence filed regarding the duty to consult after the Order-in-Council was issued. They submitted that only material that was before the Governor in Council at the time of its decision can be relied upon concerning the issue of duty to consult.
The FCA disagreed, finding that the evidence of activities after the Governor in Council’s decision might shed light on whether there were certain things not done that could have been done concerning consultation before the Governor in Council decided the matter. In addition, the FCA found such evidence may be relevant to whether there is any point in quashing the decision. The FCA stated that there may be no point in quashing the Governor in Council’s decision if any deficiencies in consultation at the time of the Governor in Council’s decision have subsequently been repaired.
Reply Evidence
Some applicants raised the possibility that they may have to seek leave to file reply affidavits in response to the FCA’s ruling on evidentiary objections.
The FCA found that reply evidence is not necessary on the background statements and summaries contained in the affidavits due to the very limited orienting role played by those statements and the use of such statements in many of the applicants’ affidavits.
The FCA stated that it would seek submissions from the parties on whether reply evidence needs to be filed with respect to Aboriginal engagement and consultation activities that occurred after the Governor in Council’s decision approving the project.
